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Karnata HC: Husband RCR upheld and wife’s Divorce dismissed
Karnataka HC: bonafide of wife doubtful, her transfer petition dismissed
Court pulls up Rana Pratap Nagar police for violating SC guidelines on arrest
Nagpur: A judicial magistrate first class (JMFC) on August 23 rejected police custody remand of Ashwin Ingale underlining violation of supreme court guidelines by Rana Pratap Nagar police in a case registered under Section 498-A of Indian Penal Code (IPC) filed by wife for alleged torture at in-laws place. No notice was also served to Ingale before arrest violating the guidelines laid down by the apex court.
The violation, now on record, may lead to departmental action against the investigating officer apart from a proceedings of contempt of court to be instituted by high court having territorial jurisdiction as per the order issued by the apex court. Apart from Section 498-A of IPC, Ingale was booked along with mother, maternal aunt, sisters and a woman friend under additional charges under Sections 323, 504, 506 and 406 of IPC following a complaint from his wife Rasika on July 23 at Rana Pratap Nagar police station for alleged torture at in-law’s place along with charges of assault, threatening and criminal breach of trust. A woman friend of Ingale was also made an accused as they were thought to be having an illicit relationship.
Ingale was arrested on August 22 from a kin’s place by cops from Rana Pratap Nagar police station. Sources claimed Ingale’s arrest was made under pressure from a top politician. He was produced before a JMFC court by the cops who pleaded for two days of custody till August 25. Police wanted to secure remand custody to recover ‘streedhan’ of the complainant that they had recorded as reason in the document of arrest.
The court, finding the cops’ motive for arrest unjustified, observed that there was no reason ‘concrete and meritorious enough so as to justify the arrest made by the investigation officer in this case’. The court further lambasted the police stating ‘the reasons mentioned by investigation officer are mostly vague, general and cryptic in nature’. The magistrate also observed ‘the investigation officer has not recorded satisfactory reasons in this case before arresting the accused, as has been directed by Hon’ble supreme court in authority of Arnesh Kumar (supra).’ In a similar manner, court also observed that police did not make any ‘serious effort’ to serve the accused notice before arresting him.
Ingale was sent to magisterial custody till August 31. Counsel Sameer Sonwane, representing Ingale, said he would soon file a petition against the police for irregularities
High Court directs police to file perjury under CrPC 340 against wife for filing forged documents
In the High Court of Judicature at Madras
Dated 08.07.2013
Coram
The Honourable Mr.Justice R.SUBBIAH
Criminal Original Petition No.14889 of 2013
Karthick ..Petitioner
..vs..
1. The Commissioner of Police,
Chennai.
2. The Inspector of Police,
E-4, Abiramapuram Police Station,
Chennai-600 028. ..Respondents
Criminal Original Petition filed under section 482 of Criminal Procedure Code, to direct the 2nd respondent to register an FIR on the petitioner's complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.
For Petitioner : Mr.J.Saravanavel
For Respondents : Mr.C.Emalias, A.P.P.,
ORDER
The present petition has been filed seeking for a direction to the 2nd respondent to register a case on the petitioner’s complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.
2. Case of the petitioner, in brief, is as follows:
Petitioner is the husband of one Narayanee @ Krithika. A case in HMOP No.383 of 2007 is pending between the petitioner and his wife before the Family Court at Chennai. In the said petition, apart from other miscellaneous petitions, I.A.Nos.486, 1649 and 2429 of 2010 and 2035 of 2011are pending; of which, I.A.Nos.486 and 1649 of 2010 have been filed by the wife on behalf of the minor child Keerthana to enhance the maintenance and to pay the educational expenses respectively. I.A.No.2429 of 2010 has been filed by the wife to strike off the defence and I.A.No.2035 of 2011 has been filed by the petitioner to revise the order of maintenance. During the said enquiry in the said I.As., on 09.04.2004, 23 documents were filed by the wife Krithika through her power agent Viswanathan and the same were marked as Exs.P-1 to P-23. Among which, Ex.P-16 is a document, which is claimed by the said Krithika to be a document issued by the Regional Passport Officer, Delhi, Ministry of External Affairs, Government of India.
3. It is the further case of the petitioner that the said document is a non-existent and a forged document. The petitioner was informed by the Ministry of External Affairs by a letter dated 10.06.2012 that it seems to be a fabricated/forged document. The petitioner made a complaint dated 04.02.2013 to the 1st respondent seeking to initiate appropriate criminal proceedings for forgery and perjury against Krithika and her power of attorney Viswanathan for having fabricated a document and producing the same before the Family Court as evidence, and the same was forwarded to the 2nd respondent for taking action; but the 2nd respondent did not take any action. Hence, the present petition has been filed to register a case on his complaint.
4. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor.
5. It is the case of the petitioner that in a case pending between him and his wife in HMOP No.383 of 2007 before the Family Court, Chennai, his wife marked a document purported to be issued by the Regional Passport Officer, Ministry of External Affairs, Government of India and the same was marked as Ex.P-16. It is the case of the petitioner that the said document is a forged one and, hence, the petitioner had sent an application on 16.04.2012 to the Ministry of External Affairs under RTI Act to verify, whether Ex.P-16 is a genuine document or or not? But the Regional Passport Officer sent a reply dated 10.06.2012 that the document seems to be a fabricated/forged document. That apart, the petitioner had received a reply dated 05.07.2012 from the Regional Passport Officer in response to the RTI Application dated 26.04.2012. The questions raised by the petitioner in his letter dated 26.04.2012 with regard to Ex.P-13 and the answers given by the Regional Passport Officer by his letter dated 10.06.2012 are as follows:
Sl.No.
Questions raised by the petitioner Reply given by the Department
1. Whether this document is issued by you ?
No.
2. If it is issued by you, on what basis you have issued (as my passport comes under regional passport office at Chennai) and also on what basis you have mentioned various contents of the document?
Not issued by this office.
3. Whether you have issued any other document(s) relating to me to Narayanee ?
No. No record is available
6. After getting these answers from the Regional Passport Officer, the petitioner has lodged a complaint with the 1st respondent police to initiate action against his wife and power agent for their involvement in producing a false document before the court, which is punishable under the provisions of Indian Penal Code. The said complaint which was given to the 1st respondent was forwarded to the 2nd respondent and the 2nd respondent, after recording the statement of power agent, has raised a doubt with regard to the jurisdiction of police investigating the offence. Therefore, they have not taken any further action in the matter. On 06.05.2013, the petitioner sent an application under the RTI Act to know about the status of the complaint. But the Inspector of Police, the 2nd respondent sent a reply dated 17.05.2013 to the queries raised by the petitioner. The questions raised by the petitioner and the answers given by the 2nd respondent are as follows:
Sl.No.
Questions raised by the petitioner Reply given by the 2nd respondent
1. Whether FIR has been filed on the said accused – if it is so, in what sections and the present stage of the proceedings on the FIR.
No case registered against the petition dated 04.02.2013 preferred by the petitoner Thiru S.Karthick.
2. If the FIR is not filed the specific reason for the same?
The forgery documents said in the complaint was filed by the counter petitioner in the family court is lies within the compound of the High Court the Court only decide necessary action on this if it is deem fit.
3. Copies of the petition filed by me dated 04.02.2013 ?
Enclosed.
4. Copy of the statement if received from the accused person ?
Enclosed.
By giving the above recorded answers, the 2nd respondent expressed doubts about the jurisdiction of the police to investigate the offence since already the document was marked in the Court. Aggrieved over the same, the present petition has been filed.
7. It is the main submission of the learned counsel for the petitioner that the 2nd respondent is having jurisdiction to entertain the complaint and investigate the same since the document was created outside the court and thereafter, filed and marked in the court proceedings.
8. Per contra, it is the submission of the learned Additional Public Prosecutor that under section 195(1)(b((ii) Cr.P.C. will operate as a bar for the police to entertain the complaint since the document was already marked in the court proceedings. The only option available to the petitioner is to invoke section 340 of Cr.P.C.before the concerned court.
9. In view of the arguments advanced by both sides, the core question that has to be considered is, whether the police authorities can register a case for creating a forged document, which was allegedly marked in the course of evidence before the Court ?
10. The judgment relied on by the learned counsel for the petitioner reported in (2005) 4 SCC 370 (Iqbal Singh Marwah and another .vs. Meenakshi Marwah and another) is giving a fitting answer for this issue. The factual aspects of the cited case would show that in a probate proceedings, the petition was contested by the respondents on the ground that the Will was forged. Hence, the respondents moved an application before the court concerned requesting the court to file a criminal complaint against the appellants. A reply to the said application was filed on 27.07.1994; but the said application was not disposed of. Hence, the respondents filed a criminal complaint before the court of Chief Metropolitan Magistrate, New Delhi for prosecution under sections 192,193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the appellants and their mother on the ground that the Will produced by the appellants was a forged and fictitious document. The learned Metropolitan Magistrate held that the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195(1)(b)(i) and (ii) Cr.P.C. operate as a bar for taking cognizance of the offences under sections 192, 193, 463, 464, 471, 475 and 476 IPC. The complaint was accordingly dismissed by order dated 02.05.1998. Subsequently, the respondents in that case filed a criminal revision against the order of learned Metropolitan Magistrate before the Sessions Court, who relying upon the case of Sachida Nand Singh .vs. State of Bihar reported in (1998) 2 SCC 493, held that the bar contained in section 195(1)(b)(ii) would not apply where forgery of a document was committed even before the production of the said document in the Court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Sessions Judge by filing a petition under section 482 Cr.P.C. before the Delhi High Court, but the same was dismissed. Aggrieved over the same, the appellants preferred S.L.P. before the Hon’ble Supreme Court, wherein it has been observed as under:
“25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:
“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to haver been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong”.
………..
33. In view of the discussion made above,we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in cutodia legis.”
11. Therefore, a reading of the said paragraphs would clearly show that section 195(1)(b)(ii)Cr.P.C.will not operate as a bar to entertain the complaint by the police where forgery of the document was committed even before the said document was produced in the Court. In the instant case, it is the specific allegation of the complainant that the document was fabricated outside the Court and marked during the course of proceedings. Therefore, in my considered opinion, the respondents are having jurisdiction to entertain the complaint.
In view of the above reasons, the second respondent is directed to consider the complaint and if the allegations contained in the complaint discloses the commission of any cognizable offence, the second respondent is directed to register the case, investigate the same and proceed further in accordance with law. Criminal Original petition is disposed of accordingly.
Index: Yes. 08.07.2013
Internet: Yes.
gl
To
1. The Commissioner of Police,
Chennai.
2. The Inspector of Police,
E-4, Abiramapuram Police Station,
Chennai-600 028.
3. The Public Prosecutor,
High Court, Madras.
R.SUBBIAH, J.,
Kerala state police circular on 498A misuse…
Kerala state police circular on 498A misuse…cir_28_2012
Suppression of fact by wife to claim maintenance from husband attracts CrPC 340
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2013
CORAM:
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Criminal Revision Case No.1262 of 2012
P. Murugesan .. Petitioner
Vs.
B. Gokila .. Respondents
PRAYER: Criminal Revision case filed under Section 397 & 401 of the Code of Criminal Procedure, to call for the records in M.C.No.22 of 2007 on the file of the learned Judicial Magistrate, Mettupalayam, Coimbatore and set aside the order passed in Crl.M.P.No.4334 of 2012 on 24.08.2012.
For Petitioner : Mr.R. Murugesan
Party in person
For Respondent : Ms. Kavitha
for
M/s PVS Giridhar Associates
ORDER
The following are the allegations contained in the Protest Petition filed by the petitioner:
The Court below has directed the Inspector of Police, Sirumugai Police Station, to investigate the private complaint filed by the petitioner. But the police did not file any report even though the petitioner sent two letters dated 19.6.2012 and 26.07.2012 which were received on 26.6.2012 and 28.7.2012 alongwith the above said private complaint copy and marriage registration certificate of respondent. The respondent has re-married on 25.02.2010 but on 11.11.2011 during the cross examination she told that she has not remarried. Hence, the Court may be pleased to direct the police to re-open and re-investigagte the matter or direct the CBCID to investigate the complaint and file report.
2. Judicial Magistrate, recorded sworn statement of the petitioner and dismissed the petition stating that on going through the records and sworn statement, the only offence made out is under Section 193 IPC., that according to Section 195 Cr.P.C. this petitioner has no locus standi to file this complaint under Section 193 I.P.C. and hence the petition is not maintainable.
3. The petitioner/party-in-person would contend that inasmuch as the Court below has found that the respondent has committed offence u/s 193 I.P.C., even though it is of the view that the petitioner has no locus standi to lodge the complaint, there is no legal impediment for the Court below to prefer complaint against the respondent when adequate materials were available before the Court and without lodging complaint before the concerned Court, dismissing the petition is not sustainable.
4. Contending contra, the learned counsel appearing for the respondent Ms.Kavitha would submit that as per the finding rendered by the Court below, the petitioner has no locus standi to point out anything on the part of the respondent so as to make her accused, that by means of which he could not make any complaint and in this regard there is no legal infirmity found in the order passed by the Court below.
5. The petitioner says that the respondent wife was divorced and she re-married on 25.2.2010 in Arulmigu Subramaniaswamy Thirukkoil, Pachaimalai-Modachur, Erode District for which he has produced copy of the Marriage Certificate issued by the Executive Officer of the said Temple. He also adds that she is having a male child aged 1= years. Suppressing the fact, she is continuing the maintenance case. While she was examined in cross on 11.11.2011 in MC Case No.22/07 before the learned Judicial Magistrate, Mettupalayam, she has stated that she has not contacted second marriage. But when she was examined in the same court on 31.08.2012, she admitted that after divorce she contacted second marriage and her husband’s name is Arjunan, that after the said marriage she is having a male child aged 1 year 3 months. If it is so, while she deposed earlier on 11.11.2011 her child should have been aged 5 months. It is consciously admitted by her that the child was born out of the second marriage. Hence, it is manifest that she has given a false statement on 11.11.2011 as to her marriage that she has not married for the second time.
6. Significantly it is to note that she has made false statements while she was examined before the same Court in M.C.No.22 of 2007, i.e., Judicial Magistrate, Mettupalayam. Taking advantage of this situation, the petitioner has come forward with this claim.
7. The petitioner relies upon an unreported order of mine in M.P.SR.No.39639 of 2011 in Crl.O.P.No.18268 of 2011 dated 3.4.2012 wherein I have followed the decision of the Supreme Court reported in 2003 (1) Crimes 235(SC)=AIR 2003 SUPREME COURT 541= (2003) SCC 76 [N.Natarajan v. B.K.Subba Rao] wherein Their Lordships have observed as follows –
9……. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wordings of Section 340CrPC are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Judge.”
8. In the said case, I have followed the principles laid down by the Honourable Supreme Court and observed that in view of the above ratio, it is the contention of the learned counsel for the petitioner that the petitioner has got locus standi to file the application.
9. In the above stated case, I have also followed a decision of this Court in 1908 MLJ VOL XIX [Aiyakannu Pillai v. Emperor] wherein it is held that a complaint can be presented at any time subject to the law of limitation, an order under Section 476 (I) can be made at any time (the old provision for Section 340 Cr.P.C. is Section 476). In the said case I reached a conclusion that the petitioner in that case has locus standi to file the application.
10. The petitioner also placed reliance upon N.Natarajan’s case (supra) wherein Their Lordships have held as follows:
“It is well settled that in criminal law a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 CrPC there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed underSection 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wording ofSection 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed, covered by the said provision.”
11. He also cited another latest Supreme Court judgment on this point reported in 2012 (1) CTC 184 [Abdul Rehman & Others v. K.M.Anees-ul-Haq] wherein Their Lordships have thoroughly analysed all the relevant judgments and directed to transfer the criminal case filed by the husband to the Court of competent jurisdiction.
12. The learned counsel for the respondent cited a decision of Supreme Court reported in AIR 1978 SC 1753 [Dr. S.P.Kohli v. The High Court Punjab and Haryana] wherein Their Lordships have held as under:
“Further, it is well settled that prosecution for perjury should be sanctioned by Courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognized that there must be a prima facie of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.”
13. In AIR 1971 SC 1367 [Chajoo Ram v. Radhey Shyam and another] it is held thus:
“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. “
14. The learned counsel for the respondent cited a portion of the decision in N.Natarajan’s case (supra) which is as follows:
“Private complaint indulging in vexatious litigation based on hald-baked knowledge of law wasting time of court should be restrained in the interest of administration of justice from filing similar applications. If still he persists, such application/complaint should be dismissed at limine and appropriate proceedings be initiated against him.”
15. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur] it is held thus:
“4. As is plain from the aforesaid stances adopted by the parties, they are out for personal vendetta. It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other. The primary object to take proceedings under Section 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, when the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this Court to enter into the fact and become a complainant at the behest of the husband-petitioner. Thus, I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties.”
16. Armed with the above said decisions, the learned counsel for the respondent would submit that it is not for the petitioner to set the law in motion as far as the untenable claim is concerned and as per the decision of the Punjab and Haryana High Court [Jaswinder Singh’s case] the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other. She also states that as far as the contention of the petitioner is concerned, it is only to harass the respondent.
17. From the evidence of the respondent is has come to light that before the same Court she has taken different stands as to her marriage and the finding of the Court below that only offence made out against the first respondent is under section 193 I.P.C.is appropriate. Hence, as per the dictum laid down by the Honourable Supreme Court in N.Natarajan’s case it is incumbent upon the Magistrate to proceed with Section 340 Cr.P.C.as per the procedure laid down in the provision. In such a view of the matter, this Court is of the view that the learned Judicial Magistrate has to be directed to act in accordance with law as per Sections 195 and 340 Cr.P.C.
18. In fine, the revision is allowed directing the learned Judicial Magistrate, Mettupalayam to prefer complaint against the respondent and to act in accordance with Sections 195 and 340Cr.P.C. The learned Judicial Magistrate is also directed to dispose of the Maintenance Case within one month from the date of receipt of copy of this Order.
ggs To The Judicial Magistrate Mettupalayam Coimbatore
withdrawal of consent on the second motion by wife does not amount to perjury
CRA No.S-2467-SB of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.S-2467-SB of 2012 (O&M)
Date of decision: 09.10.2012
Gagan Sethi
....Appellant
Versus
Shilpa Sethi
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: - Mr. H.S. Dhindsa, Advocate, for the appellant.
*****
PARAMJEET SINGH, J.
Crl. Misc. No.50229 of 2012 For the reasons stated, application is allowed. Delay of 18 days in refiling the appeal is condoned.
Crl. Appeal No. S-2467-SB of 2012 The instant appeal has been filed against the order dated 26.05.2012 passed by learned Additional Sessions Judge, Ludhiana in an application underSection 195/340 Cr.P.C. moved in proceedings under Section 13-B of the Hindu Marriage Act (hereinafter called ‘the Act’).
Brief facts of the case are that the appellant and the respondent filed a petition under Section 13-B of Act for dissolution of marriage between the parties by way of mutual consent in the Court of learned District and Sessions Judge, Ludhiana, which was entrusted to the learned Additional District Judge. Before passing of the decree of divorce, respondent withdrew her consent and did not make a statement after the lapse of statutory period of six months for consent divorce CRA No.S-2467-SB of 2012 under Section 13-B of the Act. On that score, appellant filed an application under Section 195/340 Cr.P.C. for initiating proceedings against respondent – Shilpa Sethi for resiling from her statement made in the proceedings under Section 13-B of the Act at first motion. Learned Additional District Judge, Ludhiana, after appreciating the evidence, declined the application of the appellant under Section 195/340 Cr.P.C. Hence this appeal.
I have heard the learned counsel for the appellant and perused the record.
The learned counsel for the appellant was specifically asked how this appeal is maintainable against the order passed on an application under Section 195/340 Cr.P.C. Then the learned counsel for the appellant stated that this be treated as a petition under Section 482 Cr.P.C. Accordingly, the present appeal is treated as petition under Section 482 Cr.P.C.
Admittedly, petitioner and respondent have filed a petition under Section 13-B of the Act for dissolution of marriage between them by way of mutual consent. In this regard, even the statements of the parties were recorded on the first motion on 10.5.2010 and petition was adjourned to 15.11.2010 for cooling off the period of six months for recording the statements of the parties on the second motion. However, on the adjourned date, respondent made a statement that she was withdrawing her consent for mutual divorce and stated that she did not want to divorce and she had never entered into alleged compromise.
The learned counsel for the petitioner argued that respondent cannot withdraw her consent and it amounts to perjury on CRA No.S-2467-SB of 2012 behalf of the respondent.
I have considered the contention raised by the learned counsel for the petitioner.
It is to be seen whether consent once given during the proceedings under Section 13-B of the Act by either of the parties can be withdrawn at any stage or atleast before passing of the final decree of divorce. In the light of this, the following question arises for consideration of this Court:
“Whether withdrawal of consent on the second motion by wife amounts to making false statement and resiling from the statement amounts to cheating?”
In my opinion either of the parties can withdraw her/his consent given at the first motion in a proceeding under Section 13-B of the Act. The statutory cooling off period of six months is for that purpose so that parties may reconsider whether it is in their interest to go for mutual divorce. After considering the pros and cons either of the parties has option to withdraw the consent given at the first motion.
The specific period is granted with a purpose to the parties to think over the matter with regard to the mutual divorce. There is nothing specific in Section 13-B of the Act, which may compel either of the party to make a statement accepting the statement made at the first motion. There is no bar under any of the provisions of the Act debarring either of the parties to withdraw his/her consent. The parties can very well withdraw the mutual consent at any stage prior to the passing of the decree of divorce specifically when they come for second motion.
In the present case, respondent-wife has withdrawn the CRA No.S-2467-SB of 2012 consent at the second stage. The issue of withdrawal of consent at the second motion has been considered by the Hon’ble Supreme Court in the case of Sureshta Devi vs. Om Parkash (1991) 2 SCC 25 and it was held that a party can unilaterally withdraw the consent at any time till the passing of the decree of divorce.
The Hon’ble Supreme Court in para 13 in the case of Sureshta Devi (supra) has held as under: –
“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-
section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is CRA No.S-2467-SB of 2012 that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”
Further the Hon’ble Supreme Court in the case of Hitesh Kumat Bhatnagar vs. Deepa Bhatnagar, 2011 (5) SCC 234 has also considered the issue whether the consent can be withdrawn and declared the law as under: –
“14. The language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any CRA No.S-2467-SB of 2012 time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
15. In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen-month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.”
In view of the above position, I do no find any ground to interfere with the impugned order passed by the learned Additional Sessions Judge, Ludhiana.
Dismissed in limine.
(Paramjeet Singh) Judge October 09, 2012 R.S.
Transfer sought as judge did chamber mediation and allegation of bias against judge, DISMISSED: Kerala HC
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 29TH DAY OF OCTOBER 2014/7TH KARTHIKA,
1936
Tr.P(Crl.).No. 49 of 2014 ()
-----------------------------
MC 278/2013 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR.
PETITIONER(S)/PETITIONER:
-------------------------
JINUMOL BABY, AGED 23,
D/O.LISA BABY, PALAKULATH HOUSE,
THIRUVANCHOOR P. O.,
MANARKAD, KOTTAYAM DIST, PIN-686037,
BY ADV. SRI.P.M.SEBASTIAN
RESPONDENT(S)/RESPONDENTS:
--------------------------
TINU MATHEW, AGED 26,
S/O.THANKACHAN, THAKITIYIL HOUSE,
MEENACHIL P. O.,
PALA, KOTTAYAM DIST, PIN-686589
R1 BY ADV. SRI.P.K.RAVISANKAR
THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN
FINALLY HEARD ON 29-10-2014 ALONG WITH T.P.(C).
336/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - -
Tr.P.(Crl). No. 49 of 2014
& Tr.P.(C) No. 336 of 2014.
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 29th day of October, 2014.
JUDGMENT
This is a petition filed under Section 407 of the Code of Criminal Procedure seeking transfer of M.C. 278 of 2013 pending before the Family Court, Ettumanoor to Family Court, Pala or any other court.
2. Suffice to say, the respondent, who is a handicapped person, married the petitioner. Their relationship got strained. The respondent would say that they were leading a very happy life, but the petitioner would say otherwise. According to the respondent, one day she left the house and even though there were settlement talks and they stayed together for a while, they fell apart. Inspite of repeated demands by the parents of the respondent to the petitioner to return, that did not materialize. Thereafter the respondent moved M.C.278 of 2013.
Tr.P.(Crl).49/2014 & Tr.P.(C) 336/2014.
3. One of the grounds raised for transfer is that the Judge of the Family Court, Ettumanoor is biased. According to the petitioner, at the time of discussion the Judge of the Family Court told the petitioner to enter into a compromise by threatening her with dire consequences. According to the petitioner, in fact it is stated that the the petitioner believes that she will not get any favourable orders from that court and also that the Judge had already taken a decision in the matter.
4. In the light of the allegations made in the petition, a report was called for from the Family Court Judge concerned. The Family Court Judge has submitted a detailed report which on the very face of it shows that the allegations made in the petitions are totally false. It is discernible from the report that earnest and sincere efforts were made by the Tr.P.(Crl).49/2014 & Tr.P.(C) 336/2014.
Family Court Judge to have the matter settled and on failure to do so, posted the case for further proceedings. It is seen from the report that the averment of the petitioner that there were 12 postings of the case is obviously wrong in the light of the fact that in the report of the Family Court Judge it is stated that there was only one posting and that was on 1.7.2014. It is also stated in the report that she has no objection in transferring the petition and that the allegations against her is totally false and that may be taken serious note of.
5. After having given anxious consideration of the facts, it can be seen that the claim made by the petitioner that the Family Court Judge is biased is obviously false. This Court is of the view that if such petitions are to be entertained, that will give a wrong message and that should not be encouraged. The Family Court Judge in her report has detailed the sincere efforts made by her to settle the matters in her Chambers. Tr.P.(Crl).49/2014 & Tr.P.(C) 336/2014.
The statements made by the Judge need not be doubted.
In the result, these petitions are without merits and they are accordingly dismissed.
P. BHAVADASAN, JUDGE sb.
Delhi High Court: Matrimonial laws are being misused
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 736/2013 & CM 15769/2013
% Date of decision : May 26, 2014
MS. NIDHI KAUSHIK ….. Appellant Through : Ms. Jyoti Singh, Sr. Adv.
with Mr. Sachin Chauhan, Ms. Saahila
Lamba, Mr. Sameer Sharma, Advs.
versus
UNION OF INDIA & ORS. ….. Respondents Through : Ms. Archana Gaur, Adv. for
respondent no.1.
Mr. J.C. Seth, Mr. Amitesh Gaurav,
Advs. for respondent no.2.
CORAM:
HON’BLE MR. JUSTICE P.K. BHASIN
HON’BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
J.R. MIDHA, J.
1. The appellant has challenged the judgment dated 4 th September, 2013 whereby the learned Single Judge dismissed her writ petition. The appellant is seeking appointment to the post of Supervisor Trainee (HR) in Bharat Heavy Electronics Ltd. (―BHEL‖) by setting aside of the order of cancellation of the offer of her appointment. Respondent nos.2 to 4 are the contesting respondents and are hereinafter referred to as ―the respondents‖ instead of respondents no.2 to 4.
LPANo.736/2013 Page 1 of 159
2. Factual matrix
2.1 The appellant, BBA from I.P. University and Chartered Financial Analyst in ICFAI University, applied for the post of Supervisor Trainee (HR) in BHEL and was selected on the basis of performance in the written examination followed by the interview. At the time of interview dated 18th June, 2012, the appellant’s submitted the bio-data form. Para 12 of the said form is relevant and reproduced hereunder:
“12.Whether involved in any Criminal case / Law suit at any time? Yes No
If yes, please give current status …………………………………”
2.2 On 3rd September, 2012, BHEL issued the provisional offer of appointment to the appellant. The appellant was required to submit the attestation form before the issuance of final offer of appointment.
2.3 On 24th September, 2012, the appellant submitted the attestation form in which, in reply to ‗Para 12(i)’, she disclosed that an application was pending under Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to in short as ―DV Act‖). The appellant attached the copy of the notice with the attestation form. Relevant portion of the attestation form is reproduced hereunder:
“12. (a) Have you ever been arrested? No (b) Have you ever been prosecuted? No (c) Have you ever been kept under detention? No
LPANo.736/2013 Page 2 of 159 (d) Have you ever been bound down? No (e) Have you ever been fined by a Court of Law? No (f) Have you ever been convicted by a Court of Law for any offence? No (g) Have you ever been debarred from any nomination or rusticated by any University or any other educational authority institution? No (h) Have you ever been debarred/disqualified by any Public Service Commission Staff Selection Commission for any of its examination selection? No (i) Is any case pending against you in any Court of law at the time of filling up this Attestation Form? Yes (ii) If the answer to any of the above mentioned questions is Yes, give full particulars of the case / arrest/detention / fine/ conviction/sentence/punishment etc. and/or the nature of the case pending in the Court/University/Educational Authority etc. at the time of filling up this form.
Complaint pending under Domestic Violence Act (Brother and Sister in Law Matrimonial Dispute) I here also attach a copy of Court Notice” 2.4 On 26th September, 2012, the appellant reported for joining but was not allowed to join and was told to furnish the copy of the application under DV Act mentioned in her attestation form. On 28th September, 2012, the appellant visited the office of the
LPANo.736/2013 Page 3 of 159 respondents to submit the copy of the said application but the same was not taken and she was told that these documents are not needed anymore. The appellant sent an e-mail to the Manager (HR) on 28th September, 2012 to place this fact on record. The copy of the same has been filed along with the writ petition. 2.5 Vide letter dated 9th October, 2012, BHEL cancelled the provisional letter of appointment to the appellant on the ground that she had suppressed the material fact of the pendency of case under DV Act in the bio-data form dated 18th June, 2012. The letter dated 9th October, 2012 is reproduced hereunder: “Ref.No.PA: HRM:101-05 Dated : 09.10.2012 Ms. Nidhi Kaushik
C-2/38A
Yamuna Vihar,
Delhi, Pin-110053
Sub: Provisional Offer of Appointment – Cancellation This has reference to Provision Offer of Appointment dated 3rd Sept., 2012, for the post of Supervisor Trainee (HR). You submitted the attestation form on 24th Sept., 2012, in which you have indicated that there is a case pending against you under Domestic Violence Act. It is noticed that you had suppressed this material fact in the Bio-data form, which you filled on 18th June, 2012 at the time of interview.
In this connection your attention is invited to the clause published on the Web site for recruitment which provides: “In case it is detected at any stage of recruitment process that the candidate has suppressed any material fact(s), the candidature of such candidates is liable to be rejected.” Accordingly your candidature is rejected and the Provisional Offer of Appointment is hereby withdrawn and cancelled.
Yours faithfully,
LPANo.736/2013 Page 4 of 159 For & on behalf of BHEL
sd/-
(Radhika Jain)
Manager (HR)”
2.6 On 15th October, 2012, the appellant preferred a departmental appeal against the order of cancellation of appointment dated 9th October, 2012 before the Chairman and Managing Director of BHEL on various grounds inter alia:- 2.6.1 The proceedings under the DV Act arising out of matrimonial discord between the appellant’s brother and his wife are civil in nature.
2.6.2 The appellant was not involved in any criminal case and therefore, there is no concealment of any material fact in the bio- data form dated 18th June, 2012.
2.6.3 The appellant bonafidely believed that no criminal case was pending against her.
2.6.4 In any case, there is no intentional/deliberate concealment of any material fact as the appellant voluntary disclosed the information relating to the complaint under the DV Act in the attestation form.
2.6.5 In Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC 644, the Supreme Court condoned the minor indiscretions and granted relief to the candidate who had concealed the involvement in a FIR whereas in the present case, no FIR had been registered against the appellant.
2.7 Vide letter dated 5th December, 2012, the departmental appeal of the appellant was rejected by the appellate authority of BHEL. The rejection letter dated 5th December, 2012 is reproduced hereunder:
“Ref.No.PA:HRM:101-05 Dated : 05.12.2012 Ms. Nidhi Kaushik
C-2/38A
LPANo.736/2013 Page 5 of 159 Yamuna Vihar,
Delhi, Pin-110053
Sub: Appeal regarding your candidature for the post of Supervisor Trainee (HR)
This has reference to your appeal dated nil to CMD, BHEL regarding your candidature for the post of Supervisor Trainee (HR).
Your appeal has been examined in detail by us. We regret to inform you that our decision for cancellation of your provisional offer of appointment for the aforementioned post, communicated vide our letter Ref. No. PA:HRM:101- 05 dtd.09.10.2012, remains unchanged.
Yours faithfully,
For & on behalf of BHEL
sd/-
(Radhika Jain)
Manager (HR)”
2.8 The appellant filed the writ petition bearing W.P.(C)No.7457/2012 to challenge the cancellation of the provisional offer of appointment on various grounds inter alia that the proceedings under the DV Act arising out of matrimonial discord between her brother and his wife are civil in nature, no criminal case was pending against her and therefore, there was no concealment in the bio-data form. The respondents contested the writ petition on the ground that the appellant is involved in a serious offence of domestic violence of attempt to murder her sister-in-law and the proceedings under DV Act was a criminal case in which the appellant was accused No.4. 2.9 The learned Single Judge accepted the respondent’s contention that the proceedings under Section 12 of the DV Act was a criminal case which was concealed by the appellant and
LPANo.736/2013 Page 6 of 159 therefore, the respondent was justified in cancelling the offer of appointment. The relevant portion of the impugned judgment is reproduced hereunder:-
“6. Also, I cannot agree with the argument urged on behalf of the petitioner that on a summons being issued in a Domestic Violence Act, it cannot be said that a criminal case is not pending and that unless cognizance is taken by the Metropolitan Magistrate, a criminal case cannot be said to have come into existence. This argument is an unnecessarily strict reading of the requirement of para 12 of the Bio-data form because the expression „criminal case‟ used in that paragraph is basically to ascertain any form of criminal case including any summons being issued in a complaint case against the candidate. Therefore, I am unable to agree with the
argument that there is no requirement to furnish any details of a criminal complaint case and the requirement to submit such information would only have been after cognizance was taken by the Metropolitan Magistrate.”
3. Submissions of the Appellant
3.1. The proceedings under Section 12 of the DV Act relating to matrimonial dispute between the appellant’s brother and sister-in- law are civil in nature and therefore, there was no suppression/concealment in the bio-data form. 3.2. ‗Domestic Violence’ per se is not an offence under DV Act and no punishment has been provided in the Act. The breach of a protection order under Section 18 of the DV Act is a criminal offence under Section 31 of the DV Act. However, no order was passed under Section 18 of the DV Act in the present case.
LPANo.736/2013 Page 7 of 159 3.3. Reference was made to the relevant provisions and Clause 3 of the ‗Objects and Reasons’ of the DV Act which states that law was enacted to provide a remedy civil in nature. Reliance was placed on Varsha Kapoor v. Union of India, (170) 2010 DLT 166; Shambhu Prasad Singh v. Manjari, (190) 2012 DLT 647; R.Nivendran v. Nivashini Mohan, II (2010) DMC 119; Bipin Prataprai Bhatt v. Union of India, I (2011) DMC 734; Sabana v. Mohd. Talib Ali, MANU/RH/1336/2013 and; Gangadhar Pradhan v. Rashmibala Pradhan, 2012 Cri.LJ 4106.
3.4. The dispute between the appellant’s brother and sister-in-law was finally settled on 15th January, 2013 in pursuance to which the complaint under DV Act was withdrawn on 30th March, 2013. 3.5. There was no concealment of any material fact by the appellant as no criminal case was pending against the appellant. 3.6. The appellant bonafidely believed that she was not involved in any criminal case and voluntarily disclosed the application under Section 12 of the DV Act in attestation form prior to the final offer of appointment. Reliance was placed on Commissioner of Police v. Dhaval Singh, (1999) 1 SCC 246.
3.7. Even if the complaint under DV Act is treated to be a criminal case, and it is assumed that the appellant concealed or suppressed such information, the same would not result in cancellation of her appointment as the involvement in a criminal case would not always result in denial of public employment. Every brush with criminal law is not a disqualification in appointment. It is only when a person stands convicted for a very
LPANo.736/2013 Page 8 of 159 serious act which shocks the moral conscious of the society and evidences that a person is of depraved character and suffers from the tag of moral turpitude, the conviction results in denial of public employment. Reliance was placed on the following judgments. 3.8. In Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC 644, notice of show cause was issued against respondent for cancellation of his candidature on the grounds of concealment of involvement criminal case under Sections 352/34 IPC. The Supreme Court taking note of nature of case registered held that the case against respondent was not such a serious offence like murder, dacoity or rape and hence more lenient view should be taken. The observation of the Court is reproduced hereunder: “12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.”
3.9. In Commissioner of Police v. Mehar Singh, (2013) 7 SCC 685, the Supreme Court observed that while deciding whether a person should be appointed, what is relevant is the nature of the offence and extent of his involvement. The observation of the Court has been reproduced as under:
“34. … It bears repetition to state that while deciding whether a person against whom a
criminal case was registered and who was later on acquitted or discharged should be appointed
LPANo.736/2013 Page 9 of 159 to a post in the police force, what is relevant is the nature of the offence, the extent of his involvement, whether the acquittal was a clean acquittal or an acquittal by giving benefit of doubt because the witnesses turned hostile or because of some serious flaw in the prosecution, and the propensity of such person to indulge in similar activities in future…”
(Emphasis supplied)
3.10. In Government of NCT of Delhi v. Robin Singh, (2010) 171 DLT 705, the respondent was alleged of concealment of involvement in a criminal case, of which he was ultimately acquitted. The question before this Court was whether pendency of a criminal proceeding or conviction or an acquittal be a justified ground to dismiss a government servant from service or deny entry into service. The Court held that offences which are grave, serious and involve moral turpitude will not justify public employment. However, respondent’s offence being non-cognizable, bailable, involving no moral turpitude and not shocking the moral conscience of the society does not justify denial of employment. Relevant portion of the judgment is reproduced hereunder: “19. A criminal record is a record of a person’s criminal history, generally used by potential employers to assess the candidate’s trustworthiness. The information included in a criminal record varies between countries and even between jurisdictions within a country. In most cases it lists all non-expunged criminal offenses and may also include traffic offenses such as speeding and drunk-driving. In some countries the record is limited to actual
LPANo.736/2013 Page 10 of 159 convictions (where the individual has pleaded guilty or been declared guilty by a qualified court) while in others it also includes arrests, charges dismissed, charges pending and even charges of which the individual has been
acquitted. The latter policy is often argued to be a human rights violation since it works contrary to the presumption of innocence by exposing people to discrimination on the basis of
unproven allegations.
20. It is unfortunate that in India we are not marching ahead in the comity of nations and prefer to be governed by the recruitment
processes which are a legacy of the British era; ignoring that the purpose of governance then was to rule and the purpose of governance now is to serve.
21. We have prefaced our decision with the statement whether pendency of a criminal
proceeding or for that matter a conviction by a competent court of law may justify eyebrows to be raised, but would it justify the shutting of one’s eye?
22. Now, a man can be booked for the offence of over-speeding and perhaps may be
convicted for parking his motor vehicle in a non-parking area. Would this man be of a
character, compelling in public interest and for public good, not to induct him in public service? The answer would be in the negative. As against that, a man has committed murder or has broken into a departmental store and stolen cash. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service. The answer would be in the affirmative.
23. Not to induct persons with a criminal
background in public service, is based on the
LPANo.736/2013 Page 11 of 159 premise that considerations of public policy, concern for public interest, regard for public good would justify a prohibition. Thus, the primary consideration is, whether public
interest and public good would be jeopardized if a person with a criminal background is
inducted in public service. And this takes us straight to the core of the issue, whether brush with penal law would justify the eyes to be closed against the offender or only such brush with penal law which is of a higher degree of criminality. If the answer is in the negative, the further question: what should be the higher degree of criminality which would justify the eyes being shut to such person needs to be addressed.
24. With respect to the first two examples given by us in para 22 above, none would argue that for such trivial offences the eyes must be shut against the offender, and with regard to the next two, everybody would agree that the eyes
should be shut to such a person who has to be ignored. We concede that the examples are in the extreme, but they certainly help us in understanding as to the process of reasoning required to be adopted to decide as to on which side of the border-line a case would fall.
25. A look at the penal laws in India would show that most of the penal offences can be categorized under two broad categories i.e. felony and misdemeanour. A further look at the sections stipulating penalties would show that felonies are treated as more grave vis-à-vis misdemeanours. Further, by classifying offences as cognizable and non-cognizable, higher and lower degrees of criminality to the offences can be discerned. Further, by classifying offences as
LPANo.736/2013 Page 12 of 159 bailable and non-bailable, the degree of
criminality can be further discerned.
26. The civil concept of an offence being of a depraving character is to look at whether the act complained of suffers from the tag of a moral turpitude or not.
27. We do not intend to make a catalog of
reported decisions as to what misdemeanours should normally attract the penalty of removal or dismissal from service. We may simply state that with respect to conviction for grave and serious offences alone, on the anvil of public interest and for public good, Courts have held that the offender has rendered himself unfit to continue in office and in extreme cases
summary dismissal or removal from service by invoking Article 311 of the Constitution is also held justified.
28. Thus, we have a guideline of serious and grave offences being the touchstone in case of the door being shown to the government
servant.
29. Looking through the prism of case law
pertaining to when can the door be shown to a government servant and by doing reverse
engineering we can safely say that what is good for the door to be shown, is good for
prohibiting entry through the door, and thus while denying public employment with respect to the offence committed by a person, it can be said, and we say so, that it may be a serious violation of the constitutional right of a citizen to be fairly treated in the matter of public employment if trivial offences committed by the citizen would justify the State shutting its eyes and denying employment.
30. Having answered the question posed in para 1 above, and the answer being in favour of the
LPANo.736/2013 Page 13 of 159 citizen, we need to answer the further question as to which offences or brush therewith, would justify non entry into public service.
31. We have a clue; of offences being grave, serious and involving a moral turpitude
justifying public employment not being given. These would certainly not justify the offender being inducted into public service. None would disagree that convicted and fined for parking a car in a no-parking area or convicted for over- speeding would attract the de minimis principle, but the problem would be in cases closer to the borderline. For therein would lie the problem as to in which side of the boundary line should they be categorized. xxx xxx xxx
36. Life is too precious to be staked over petty incidents and the cruel result of conviction for petty offences being the end of the career, the future and the present, of young and
inexperienced persons cannot blast their life and their dreams.
xxx xxx xxx
40. All these offences are non-cognizable and needless to state are bailable. No moral
turpitude, as generically understood, is
involved. The acts do not shock the moral
conscious of the society and with reference to the motive do not evidence a person with
depraved character. The offences are not of the kind which would justify dismissal or
removal from service, if the respondent had committed the same if in service.
41. Thus, being charged with the said
offences, of which the respondent has
ultimately been acquitted, would not be a bar and cannot be treated as a bar to seek public employment and on being successful at the
LPANo.736/2013 Page 14 of 159 entrance exam, to be denied the same.”
(Emphasis supplied)
3.11. In Commissioner of Police v. Narender Kumar Singh, MANU/DE/0457/2013, one of the respondents was named as an accused along with all his family members in an FIR filed by his sister-in-law, which eventually was withdrawn upon a settlement. This Court held that no criminality of a kind which justifies denial of public employment can be attached to cases where trivial incidents are blown out of proportion and FIRs get registered in the heat of passion. Further, while restoring the employment, the Court held that it is the tendency of the estranged wife naming each and every member of his family of her in-laws as an accused of dowry harassment. The Court also held that the primary consideration, for denying public employment to persons with criminal records, should be if public interest and public good could be jeopardized if such a person is inducted in public service. The relevant paragraphs are reproduced hereunder:
“16. And this takes us straight to the core of the issue: Whether brush with penal law would
justify the eyes to be closed against the offender or only such brush with penal law which is of a higher degree of criminality? If the answer is in the negative, the further question: What should be the higher degree of criminality which would justify the eyes being shut to such person?
17. With respect to the two illustrative
situations we have highlighted in para 13
above, not even a fool would argue that for trivial offences public employment should be prohibited. The two examples are in the
LPANo.736/2013 Page 15 of 159 extreme but help to decipher the process of reasoning to be adopted to decide borderline cases.
xxx xxx xxx
29. The aforesaid view would hold good even when a person has to be considered for
employment and pertaining to heinous offences even if the person has been acquitted, would not mean that the person is of good character. We highlight that a person being acquitted at a criminal trial may not necessarily mean that the person is innocent. It would only mean that the prosecution could not muster sufficient and credible evidence to sustain a conviction. In today’s environment where witnesses are
suborned and hence turned hostile, one has to be careful. Thus, the fact of mere acquittal by itself may not be relevant and the background under which an acquittal took place may also become relevant for the reason we are not
concerned with the consequence of a man being acquitted but are concerned on the subject of character verification. But at the same time the circumstance under which the complaint was made and who was the complainant becomes
important, for the reason in India we find that disputes between neighbours relating to land are blown out of proportion in nearly every case and all adult members of the opposite family are roped in. In the field of domestic law, we find the dowry harassment laws being misused by the offending spouse naming each and every adult family member of her husband. Experience shows that when tempers cool and good sense prevails, the exaggerated versions are withdrawn. This is the fate suffered by Narender Kumar Singh who was named as an accused along with all his family LPANo.736/2013 Page 16 of 159 members in FIR No. 36/2010 filed by his estranged sister-in-law and unfortunately he was also named as an accused along with all other family members in FIR No. 152A/2008 which pertained to a fight amongst neighbours and in which all his family members were named as accused. Both complaints were withdrawn upon a settlement. Similar is the fate of Hawa Singh. Even he was a victim of a trivial dispute involving neighbours. He and all male family members were named as accused. Tempers cooled. The dispute got settled. All were acquitted. The same is the fate of Pravesh Kumar and Praveen Kumar who were named as accused along with all other male family
members in a petty dispute pertaining to land with neighbours.
30. We are not influenced by the fact that the said four young men were ultimately acquitted or discharged for the reason, the acquittal or discharge was the result of a compromise, but certainly would be influenced by the fact that the complaints would show trivial incidents being blown out of proportion, and this is at the core of what needs to be appreciated. If one can see through and find out that trivial
incidents got exaggerated when quarrels took place amongst neighbours and the heat of the passion led to FIRs being registered, no
criminality of a kind which justifies public employment being denied attaches to the stated wrong committed; assuming that the wrong
was committed.
xxx xxx xxx
32. One lasting word. The five young men
before us come from humble socio-economic
background. The incidents alleged against them have a rural setting. We have already noted
LPANo.736/2013 Page 17 of 159 above the tendency in rural India, in
interpersonal disputes, to rope in all adult male members of the opposite group. Small incidents of pushing, jostling or slapping are converted into alleged offences which seem to be serious. A fist blow directed towards the head is
sometimes registered as an offence punishable under Section 308 IPC. A fight between two neighbouring boys in which the sister of one boy intervenes and is pushed by the other boy results in Section 354 IPC being added in the FIR. One should not therefore go by the label of the Sections recorded in the FIRs but should look at the attributes of the act keeping in view the genesis of the quarrel which may sometimes take a serious dimension of pushing and
beating. But the seriousness is not of a
dimension where one would label the
wrongdoer as an evil person unworthy of public employment. It has to be kept in mind that with lack of education and the social pressures in rural India, young men are not able to reason with the same level of logic application as educated youth in the city would. As time passes and experience is gained in life, ones senses of rationality and reaction are chiselled, meaning thereby, the impulsive reaction of the youth cannot be equated with the thought off reaction of an experienced person.
33. As regards the fact that save and except Jagjeevan Ram all other had suppressed the information that in the past they were named as an accused for having committed an offence we note the observations made by the Supreme
Court in Sandeep Kumar’s case (supra) wherein it was observed that probably the information was not furnished due to fear, that if they did so, they would automatically be disqualified. The
LPANo.736/2013 Page 18 of 159 Supreme Court noted that the emphasis should be on the seriousness of the offence for which a person has been alleged to be involved. The tendency of the young and the inexperienced to commit minor indiscretions when they are
tender and inexperienced in age has to be
ignored. And we may only add that this would include, suppressing an information out of fear but only when the information is of a kind which pertains to a minor indiscretion. In other words, the matter can be looked at from another angle. Had these young men furnished the relevant information and based thereon were held
disentitled to be offered the job and they had approached the Court seeking a mandamus that letters offering appointment should be issued. Would the Court not have issued the mandamus on the reasoning afore-noted? The answer
would be „Yes‟.
34. Considering the factual allegations which resulted in the five young men being named as accused, and one of them ultimately being
convicted but let off on probation we concur with the view taken by the Tribunal in the orders which are a subject matter of WP(C) No. 8807/2011, WP(C) No. 8499/2011, WP(C) No.
2069/2012 and WP(C) No. 5142/2012 which we dismiss and disagreeing with the view taken by the Tribunal which is a subject matter of
challenge in WP(C) No. 8142/2011 we allow
the same and restore employment of the writ petitioner.”
(Emphasis Supplied)
4. Submissions of the respondent
4.1. The appellant is involved in a criminal case relating to serious offence of domestic violence of attempt to murder her
LPANo.736/2013 Page 19 of 159 sister-in-law under Section 307 IPC which was concealed by her in the bio-data form dated 18th June, 2012. The appellant is accused No.4 in the criminal case under DV Act. The serious crime of attempt to murder under DV Act is not a trivial offence/case as claimed by the appellant.
4.2. The appellant’s contention that the proceedings under Section 12 of the Domestic Violence Act are civil in nature is not relevant. The judgments cited by the appellant that the proceedings under Section 12 of the Domestic Violence Act are civil in nature are also not relevant because the respondent has rejected the appellant’s appointment on the ground of making a false declaration in the bio-data form.
4.3. Even if the proceedings under Section 12 of the DV Act were not a criminal case, the appellant was required to disclose it. The technical defence that the case under DV Act was not criminal but civil in nature is neither tenable nor relevant since the Court dealing with DV Act is a Court of Law, it is not necessary to decide whether it is a criminal case or civil case. 4.4. The concealment of pendency of case under DV Act is a material fact which resulted in the cancellation of the appointment of the appellant in terms of Clause 20 of the ‗Terms and conditions’ of provisional offer of appointment.
4.5. The reliance was placed on Jainendra Singh v. State of U.P., 2012(8) SCC 748, in which the appellant therein was selected for the post of a Constable in police department and he submitted a declaration at the time of appointment that he was not involved in
LPANo.736/2013 Page 20 of 159 any criminal case. However, it came to the notice of the respondent that the appellant was involved in a criminal case for the offence under Sections 147, 323, 336 IPC pending at the time of his selection though he was subsequently acquitted. The appointment of the appellant was terminated for concealment of his involvement in a criminal case which was challenged by a writ petition before the High Court. The High Court declined to interfere with the order of termination against which the appellant approached the Supreme Court. The Supreme Court examined the previous cases namely, Ram Kumar v. State of U.P., (2011) 14 SCC 709; State of W.B. v. Sk. Nazrul Islam, (2011) 10 SCC 184; Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC 644; Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103; Kamal Nayan Mishra v. State of M.P., (2010) 2 SCC 169; Union of India v. Bipad Bhanjan Gayen, (2008) 11 SCC 314; R. Radhakrishnan v. Director General of Police, (2008) 1 SCC 660; Deptt. of Home Secy., A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746; Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437; Bank of Baroda v. Central Govt. Industrial Tribunal, (1999) 2 SCC 247; Commissioner of Police v. Dhaval Singh, (1999) 1 SCC 246; Delhi Admn. v. Sushil Kumar, (1996) 11 SCC 605; Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100 and held that verification of character and antecedents is one of the most important criteria to test whether the selected candidate is suitable for the post. The Supreme Court further held that the authorities invested with the responsibility of appointing constables are under duty to verify the antecedents of
LPANo.736/2013 Page 21 of 159 candidates to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in criminal case, he cannot held to be suitable for appointment for the post of constable. The Supreme Court further held that the concealment of a material fact by a candidate at the time of seeking appointment renders his appointment liable to be cancelled. However, considering different view taken by coordinate Benches, the Supreme Court referred the issue to the larger Bench and the said reference is still pending.
4.6. The cancellation of provisional appointment of appellant as well as rejection of the appeal was after due deliberations. Full and exhaustive consideration was given to the decision making process. The scope of judicial review is limited and this Court can only look into the decision making process and cannot interfere in the decision taken. Reliance was placed on Tata Cellular v. Union of India, (1994) 6 SCC 651 in this regard.
5. What is the nature of proceedings under Section 12 of the DV Act?
5.1. The appellant was facing proceedings under Section 12 of DV Act relating to a matrimonial dispute between her brother and sister-in-law at the time of submitting the bio-data form. According to the appellant, the said proceedings were civil in nature whereas the respondents’ contention is that it was a criminal case. The question which has therefore, arisen for consideration is – What is the nature of proceedings under Section 12 of the DV Act?
LPANo.736/2013 Page 22 of 159 5.2. Statement of Objects and Reasons of the DV Act. The Protection of Women from Domestic Violence Act, 2005 was enacted on 13th September, 2005 and came into force on 26th October, 2006. The Objects and Reasons of the Act record that the civil law does not address the phenomena of domestic violence and therefore, the law be enacted to provide a remedy in civil law for protection of women from being victims of domestic violence. The relevant portion of the Statement of Objects and Reasons is reproduced hereunder:-
“INTRODUCTION
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has
recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurance of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in the Parliament.
STATEMENT OF OBJECT AND REASONS
Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the
LPANo.736/2013 Page 23 of 159 Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on
Elimination of All Forms of Discrimination Against Women (C E D A W) in it’s General Recommendation No. XII (1989) has recommended that State Parties should act to protect women against violence of any kind especially that occulting within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of IPC. The Civil Law does not however address this phenomenon in its entirety.
3. It, is therefore, proposed to enact a law keeping in view of the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the Civil Law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society…”
(Emphasis supplied)
5.3. Civil rights under the DV Act
DV Act created certain civil rights namely, right to protection against domestic violence, right to maintenance, right to reside in a shared household, right to compensation on account of domestic violence, right to custody of children and right to medical expenses. Section 12 of the DV Act empowers the accused person to approach the Court to seek any of the following reliefs:- – Protection order under Section 18.
– Residence order under Section 19.
– Monetary relief under Section 20.
– Custody order under Section 21.
– Compensation under Section 22.
– Interim injunction under Section 23.
LPANo.736/2013 Page 24 of 159 5.4. Concurrent jurisdiction of Civil Court, Family Court or Criminal Court to deal with application under Section 12 of the DV Act
Section 26 empowers the aggrieved person to seek the reliefs under Section 18 to 22 in any legal proceedings before a Civil Court, Family Court or Criminal Court. Section 26(1) is reproduced hereunder:-
“Section 26. Relief in other suits and legal proceedings.–
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”
(Emphasis supplied)
5.5. Procedure to be followed
Section 28(2) of the DV Act provides that the Court can formulate its own procedure for disposal of an application under Section 12 of the DV Act and it is not bound to follow the Code of Criminal Procedure. Rule 6(5) specifies that the procedure under Section 125 Cr.P.C. should be followed with respect to the application under Section 12. Section 125 provides for trial in a
LPANo.736/2013 Page 25 of 159 summary manner. Section 28 is reproduced hereunder:- “Section 28. Procedure.- (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.”
(Emphasis supplied)
5.6. Domestic violence per se is not an offence under DV Act Domestic violence defined in Section 3 of the DV Act per se is not an offence and the Act does not provide for any punishment for the same. However, breach of a protection order passed by the Court , amounts to an offence under Section 31 of the DV Act which is punishable with imprisonment which may extend to one year or fine up to Rs.20,000/- or both. The two main ingredients of an offence under Section 31 of the DV Act are that there should be a protection order under the Act and breach by the respondent.
5.7. The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of an offence under IPC.
The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of any offence under IPC. The reason appears to be that the proceedings under Section 12 of the D.V. Act are civil in nature triable by a Civil Court, Criminal Court as well as Family Court. However, in the event of breach of a
LPANo.736/2013 Page 26 of 159 protection order, a fresh criminal case has to be initiated against the accused (either by an FIR or by a criminal complaint before the Court) and in that criminal case, at the stage of framing the charge, the Court is empowered to frame a charge under IPC or any other law if the facts disclose the commissioner of such offence. The fresh complaint under Section 31 of the DV Act would be a criminal case as the respondent would be accused of an offence under Section 31 of the DV Act and as per Section 31(2), it should preferably be tried by the Magistrate who passed the order. This is clear from the reading of Section 31(2) and (3) of D.V. Act. Sections 31 and 32 are reproduced hereunder:- “Section 31. Penalty for breach of protection order by respondent.–
(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
Section 32. Cognizance and proof.–
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under
LPANo.736/2013 Page 27 of 159 sub-section (1) of section 31 shall be cognizable and non- bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.”
5.8. DV Act not in derogation of any other law Section 36 of the DV Act provides that the provisions of the Act are in addition to and not in derogation of any other law. This means that in addition to DV Act, various other provisions under the general laws as well as specific statutes can be invoked by the aggrieved person. Section 5(e) of the DV Act expressly provides that the Magistrate upon receipt the complaint of domestic violence, shall inform the aggrieved person of her right to file a complaint under Section 498A of the Indian Penal Code wherever relevant. Section 5(e) and 36 is reproduced hereunder:- “Section 5 – Duties of police officers, service providers and Magistrate.–A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person–
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant
Section 36. Act not in derogation of any other law.– The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.”
5.9. Since the domestic violence per se is not an offence, the opposite party under the DV Act has been clearly mentioned as the
LPANo.736/2013 Page 28 of 159 ‘respondent’ in Sections 12 to 23 of the DV Act. The respondent has been specifically defined in Section 2(q) of the DV Act. 5.10. Rule 6 of the Protection of Women from Domestic Violence Rules, 2006 provides that the application under Section 12 of the DV Act and the affidavit shall be in Forms I and II respectively of the Rules. Rule 5(1)(2) provides that upon receipt of complaint of domestic violence, the protection officers shall prepare a domestic incident report in Form I and submit the same to the Magistrate. Clause 8 of Form I provides that upon receipt of information about an offence under IPC or any other law, the police officer shall inform the aggrieved person to initiate criminal proceedings by lodging an FIR under Cr.P.C. and if the aggrieved person does not want to initiate criminal proceedings, then he shall make a daily diary entry with remarks that the aggrieved person due to intimating nature of relationship wants to pursue civil remedies only. Clause 8 of Form I is reproduced hereunder:- “8. Instruction for the police officer assisting in registration of a Domestic Incident Report: Wherever the information provided in this Form discloses an offence under the Indian Penal Code or any other law, the police officer shall–
(a) inform the aggrieved person that she can also initiate criminal proceedings by lodging a First Information Report under the Code of Criminal Procedure, 1973 (2 of 1974).
(b) if the aggrieved person does not want to initiate criminal proceedings, then make daily diary entry as per the information contained in the domestic incident report with a remark that the aggrieved person due to the intimate nature of the relationship
LPANo.736/2013 Page 29 of 159 with the accused wants to pursue the civil remedies for protection against domestic violence and has requested that on the basis of the information received by her, the matter has been kept pending for appropriate enquiry before registration of an FIR.
5.11. Clause 2 of Form II recites the prayers which can be claimed by the aggrieved person under the DV Act which is reproduced hereunder:-
“2. It is prayed that the Hon’ble Court may take cognizance of the complaint/Domestic Incident Report and pass all/any of the orders, as deemed necessary in the circumstances of the case (a) Pass protection orders under Section 18 and/or (b) Pass residence orders under Section 19 and/or (c) Direct the respondent to pay monetary relief under Section 20 and/or
(d) Pass orders under Section 21 of the Act and/or (e) Direct the respondent to grant compensation or damages under Section 22 and/or
(f) Pass such interim orders as the court deems just and proper
(g) Pass any orders as deems fit in the circumstances of the case.”
Clause 4 of Form II seeks information with respect to the details of previous litigation, if any, under IPC, Cr.P.C., Hindu Marriage Act and other Acts.
5.12. The affidavit to be filed along with the application under Section 12 of the DV Act is to be as per Form III which clearly provides that the parties in the application under DV Act are named as complainant and respondent.
LPANo.736/2013 Page 30 of 159 5.13. Clause 4(x) of the Form IV recognizes the right of the aggrieved person to file an application for relief under Sections 12 and 18 to 23 under the DV Act.
5.14. Rule 8(1)(ii) provides the duties and functions of the protection officers to inform the aggrieved person about her rights as given in Form IV.
5.15. From the aforesaid provisions of the DV Act, it is clear beyond doubt that the proceedings under Section 12 of the DV Act are purely civil in nature. However, the relevant provisions of DV Act have been time and again interpreted by the Supreme Court and the High Courts and the consistent view has been taken that the proceedings under Section 12 of the DV Act are civil in nature. The relevant judgments are discussed hereunder: 5.16. In Indra Sarma v. V.K.V. Sarma, 2013 (14) SCALE 448, the Supreme Court examined the scope of DV Act and held that the Act was enacted to provide a remedy in civil law for protection of women from being victims of domestic violence. The Supreme Court further noted that the relief available under Sections 18 to 22 can be sought in any legal proceedings before Civil Court, Family Court or a Criminal Court. Relevant portion of the said judgment is reproduced hereunder:
“D.V. ACT
14. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who
LPANo.736/2013 Page 31 of 159 are victims of violence of any kind occurring within the family.
15. “Domestic Violence” is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the DV Act.
xxx xxx xxx
17. Section 26 of the DV Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. Further, any relief referred to above may be sought for in addition to and along with any other reliefs that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Further, if any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”
(Emphasis supplied)
LPANo.736/2013 Page 32 of 159 5.17. In Varsha Kapoor v. Union of India, (170) 2010 DLT 166, the Division Bench of this Court held that DV Act was enacted to provide monetary relief to the wife since invoking criminal machinery under Section 498-A IPC had serious ramifications. The relevant portion of the judgment is reproduced hereunder:
“25. Since invoking criminal machinery under Section 498A IPC has serious ramifications, need was felt to have civil law on domestic violence inasmuch as there was no law enabling the Court to give protection order to give monetary relief in case women go to Court complaining violence. In order to provide such remedies, DV Act has been enacted. It is in this backdrop, we have to appreciate that married women (i.e. wives) are given rights to agitate their grievances against wide spectrum of respondents under proviso to Section 2(q) of the DV Act, with attempt to put an end to domestic violence and at the same time saving matrimonial home, which was not possible under the remedies provided in criminal law and there was no such provision under the existing Family Laws. When this was the lacuna in law sought to be plugged by passing the DV Act and the purpose was to remove the said mischief, leaving family relatives of a husband or a male partner out of purview of the „respondent‟ would negate the purpose for which the DV Act is passed. …”
(Emphasis supplied)
5.18. In Shambhu Prasad Singh v. Manjari, (190) 2012 DLT 647, the Division Bench of this Court held that domestic violence per se is not a criminal offence and only when a protection order under Section 18 is violated by the respondent, such action would constitute punishable offence which can be tried under Section 31
LPANo.736/2013 Page 33 of 159 of the DV Act. The relevant portion of the judgment is reproduced hereunder:
“9. The basic objective in enacting the Act is to secure various rights to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship. Domestic violence, is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to such domestic violence is given the right to move to Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, right to residence, compensation etc. or even move to Court seized of any other pending proceeding, such as divorce and maintenance etc. (Section 26). Section 17 has, for the first time, enacted a right to residence in favor of such women. The Act being a beneficial one, the Court should adopt a construction to its provisions which advances the parliamentary intention rather than confining it. If the latter course is adopted the result would be to defeat the object of the law. As noticed earlier, domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for more than one relief. The Court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence etc. If such an order is violated by the respondent (a term defined in the widest possible terms, to include female relatives of the husband or the male partner etc), such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act.”
(Emphasis supplied)
LPANo.736/2013 Page 34 of 159 5.19. In Savita Bhanot v. Lt. Col. V.D. Bhanot, 168 (2010) DLT 68, V.K. Jain, J. of this Court examined the nature of proceedings under DV Act and held as under:-
“6. The Act by itself does not make any act, omission or conduct constituting violence, punishable with any imprisonment, fine or other penalty. There can be no prosecution of a person under the provisions of this Act, for committing acts of domestic violence, as defined in Section 3 of the Act. No one can be punished under the Act merely because he subjects a woman to violence or harasses, harms or injures her or subjects her to any abuse whether physical, sexual, verbal, emotional or economic. No one can be punished under the provisions of the Act on account of his depriving a woman of her right to reside in the shared household.
7. Section 31 of the Act provides for punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the breach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.
9. The Statement of Objects and Reasons for enacting Prevention of Women from Domestic Violence Act, 2005 would show that since subjecting of a woman to cruelty by her husband or his relative was only a criminal offence and civil law did not address the phenomenon of domestic violence in its entirety, the Parliament proposed to enact a law keeping in view the rights guaranteed
LPANo.736/2013 Page 35 of 159 under Articles 14,15 and 21 of the Constitution of India so as to provide for a remedy under the civil law, in order to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence. Thus, the Act provides civil remedies to the victims so as to give them relief against domestic violence and the punishment can be given only if there is breach of order passed under the Act.”
5.20. In Sabana v. Mohd. Talib Ali, 2014 (1) RLW 26 (Raj.), the Rajasthan High Court considered the issue whether the proceedings under the DV Act were criminal in nature. The Division Bench of Rajasthan High Court held that various reliefs provided by the DV Act are remedial in nature and fall in realm of civil law and can never be construed to be criminal proceedings. The observation of the Court is reproduced hereunder: “19. … the first question that comes for our consideration is whether the proceedings under the Act are criminal in nature…
xxx xxx xxx
21. … while disposing of an application preferred under Section 12 of the Act, the Magistrate may direct the respondent to pay monetary relief to the aggrieved person in respect of loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property from her control…
22. Undoubtedly, the various reliefs that may be extended by the Magistrate to a woman victim of domestic violence within the ambit of the Act are remedial in nature and squarely fall within the arena of civil law and by no stretch of imagination the proceedings under the Act could be construed to be criminal proceedings inasmuch as on occurrence of the domestic violence, the reliefs to be extended in terms of
LPANo.736/2013 Page 36 of 159 Sections 18 to 23 of the Act in no manner penalise the respondent for any act of violence committed by him or her. Rather it provides for remedial measures to protect the victim of domestic violence and to prevent the occurrence of domestic violence. In other words, the reliefs for which an aggrieved person is entitled against the respondent in terms of the said provisions are provided for as remedial measures and the said provisions, in no manner, could be construed to as providing for penalties for commission of the offences.
23. As a matter of fact, the penal provisions incorporated in the Act are Sections 31 and 33 which provide for penalty for breach of protection order by the respondent and for not discharging duty by the Protection Officer respectively. Obviously, the punishment provided as aforesaid under Sections 31 and 33 are the penalties for an offence committed under the Act and it have no nexus with the act of domestic violence as such which was the subject matter of proceedings before the Magistrate wherein the protection orders were passed… xxx xxx xxx
49. … It is pertinent to note that the Act has been enacted by the legislature with the sole object to provide a remedy in the civil law for protection of women from being victims of domestic violence and to prevent the occurrence of the domestic violence in the society….” (Emphasis supplied)
5.21. In Bipin Prataprai Bhatt v. Union of India, (2010) 3 GLH 276, the husband challenged the constitutional validity of Section 26(1) of the DV Act on the ground that it is violative of Article 20(1) of the Constitution. The Division Bench of Gujarat High Court dismissed the petition holding that the proceedings under Sections 18 to 22 of the DV Act are civil in nature and have nothing to do with the conviction for any offence. Article 20(1) is
LPANo.736/2013 Page 37 of 159 attracted only in matter of conviction of offence and it does not relate to a civil relief which may be granted without any conviction. The Court further held that the relief under Sections 18 to 22 of the DV Act can be sought even from a Civil Court as provided in Section 26 as the reliefs are civil in nature. The relevant portion of the said judgment is reproduced hereunder: “8. From the Statement of Objects and Reasons of the Domestic Violence Act, it will be evident that domestic violence is a human right issue and is a serious deterrent to development. After the Vienna Accord, 1994, followed by Beijing Declaration and the Platform for Action (1995), and after the United Nations Committee on Convention on Elimination of All Forms of
Discrimination Against Women, the Central Government, having noticed that domestic violence is widely prevalent but has remained largely invisible in the public domain where a woman is subjected to cruelty by her husband or his relatives, except offence u/Sec. 498A of the I.P.C. no civil law exists, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India to provide for remedy under the civil law, which is intended to protect the women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. It covers those women who are or have been in relationship with the abuser where both parties have lived together and shared a household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. It provides for right of a women to reside in her matrimonial house or shared household, irrespective of right or title in such home or household; it empowers the Magistrate to pass protection orders in favour of the aggrieved persons to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace
LPANo.736/2013 Page 38 of 159 or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and from causing violence to the aggrieved person.
9. From Sec.26(1) of Domestic Violence Act, it will be evident that the aggrieved person can ask for relief in other suits and legal proceedings as available u/Secs. 18, 19, 20, 21 and 22 of the said Act.
Sec. 18 empowers the Magistrate to pass a protection order prohibiting respondents from committing any act of domestic violence, aiding or abetting in the commission of acts of domestic violence, entering a place of employment of the aggrieved person, etc.
Under Sec.19, the Magistrate, on being satisfied that domestic violence has taken place, may pass a residence order restraining the respondents from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, irrespective of legal or equitable interest of women in the shared household, etc.
Sec. 20 deals with monetary reliefs which empowers the Magistrate to direct the respondents to pay to the aggrieved women to meet the expenses incurred and losses suffered by aggrieved person and any child of the aggrieved person as a result of the domestic violence. Under Sec.21, the custody order of the child or children of the aggrieved person or the person making an application on her behalf can be passed by a Magistrate. Under Sec.22, the Court is also empowered to pay compensation.
10. Sec.23 empowers the Magistrate to grant interim and ex-parte orders; including the power vested u/Secs. 18, 19, 20, 21 and 22 of the Domestic Violence Act. All the aforesaid reliefs can be granted under other suits and legal proceedings in view of Sec.26 of the Domestic Violence Act, relevant portion of which is quoted hereunder:
LPANo.736/2013 Page 39 of 159 “26. Relief in other suits and legal proceedings. – (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act”.
From the aforesaid provisions of Domestic Violence Act, it will be evident that the reliefs granted are civil in nature and have nothing to do with the conviction for any offence.
Under Art.20(1), no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
From the aforesaid provisions, it will be evident that Art.20(1) is attracted only in the matter of conviction for any offence and it do not relate to civil relief as may be granted without any conviction.
11. As it will be evident that Secs. 18 to 22 of the Domestic Violence Act relate to relief, which can be sought for even from civil court and they are civil in nature, the petitioner cannot derive the advantage of Art.20(1) of the Constitution to challenge the validity of Sec.26 of the Domestic Violence Act.”
(Emphasis supplied)
5.22. In Narendrakumar v. State of Gujarat, Criminal Misc. Application No. 19853 of 2013 and Criminal Misc. Application No. 18703 of 2013 decided on 17th January, 2014, the petitioners invoked Section 482 Cr.P.C. to seek quashment of proceedings under Sections 18, 19, 20 and 21 of the DV Act. The Gujarat High Court examined the scope of DV Act as well as Code of Criminal
LPANo.736/2013 Page 40 of 159 Procedure and held that the proceedings under Sections 18 to 22 of DV Act are civil in nature. The Court further held that merely because judicial authorities contemplated under Code of Criminal Procedure are found competent to deal with the proceedings arising out of DV Act, it cannot be argued that such proceedings deal with crime. Relevant portion of the said judgment is as under: “SUBMISSIONS:
14. The argument is that the expression “violence” used in D.V. Act connotes criminality and criminality can be inferred from the criminal mindset and that procedure contemplated under Section 28 of D.V. Act for the purpose of Sections 12, 18, 19, 20, 21, 22, 23 and 31 of D.V. Act is the one under the Cr.P.C., and thus the proceedings under D.V. Act are criminal in nature. The contention is also that Section 31(1) of D.V. Act speaks of a cognizable offence. That Section 27 speaks of jurisdiction of the Court and the Court of Judicial Magistrate First Class or the Metropolitan Magistrate Court as the case may be constituted under Cr.P.C. is declared as a competent court to grant various orders and to try offences. Reliance is also placed upon Section 4(2) of the Cr.P.C. to contend that even the offences under other laws can be tried in accordance with the procedure under Cr.P.C., and in absence of special law i.e. D.V. Act providing a separate procedure, all the provisions of Cr.P.C. are applicable to D.V. Act. It is contended that the legislature could not have provided for a civil remedy to be dealt with in accordance with the procedure laid down in Cr.P.C. While placing reliance upon Inderjit Singh Grewal v. State of Punjab [(2011) 12 SCC 588], the contention is that Section 468 of the Cr.P.C. was made applicable to the proceedings under D.V. Act, and thus, according to the submissions made by learned counsel for the petitioners, the proceedings
LPANo.736/2013 Page 41 of 159 under D.V. Act can be quashed under Section 482 of Cr.P.C.
REASONS:
15. The argument that expression „violence‟ necessarily connotes criminality overlooks Section 3(iv) which defines economic abuse. The clause refers to deprivation of all or any economic or financial resources to which the aggrieved person is entitled or requires out of necessity including household necessities, stridhan, property jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance, disposal of household effects, any alienation of assets, shares, securities etc. in which aggrieved person has an interest or is entitled to use by virtue of domestic relationship or which may be reasonably required by the aggrieved person. Expression „domestic violence‟ also includes prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Thus „economic abuse‟ being part of expression „domestic violence‟ as defined in Section 3 of D.V. Act constitute abuse of various civil rights of an aggrieved person. In addition, various kinds of mental and physical harms, injuries, harassments and abuses to a woman in domestic relationship constituting various offences under IPC would constitute „domestic violence‟. Thus domestic violence includes objectionable acts punishable under IPC and other objectionable commissions or omissions in relation to civil or human rights of aggrieved person. Pertinently, except as under Section 31, the Magistrate is not empowered to take cognizance of any objectionable criminal acts within the meaning of IPC, while exercising the jurisdiction under D.V. Act. Having regard to the nature of reliefs which can be prayed for by aggrieved person in an application under D.V. Act, it is clear that the D.V. Act predominantly focuses on fallouts of domestic violence
LPANo.736/2013 Page 42 of 159 resulting into deprivation of or necessitating securing of various civil rights of aggrieved person like residence in a shared household, protection of aggrieved person, right to residence, monetary reliefs, orders for custody of child/children, orders for compensation etc. The criminal acts are left to be dealt with by aggrieved person with appropriate complaint even as the police officer, protection officer, service provider or Magistrate in know of domestic violence is inter-alia obliged to inform the aggrieved person of her right to file a complaint under Section 498A of IPC, as contemplated under Section 5 of D.V. Act. Pertinently, proviso to Section 5 cautions and reminds the police officer of his duty to proceed in accordance with law upon receipt of the information of commission of a cognizable offence. Thus, in addition to the reliefs available to the aggrieved person under D.V. Act, acts of commission of a cognizable offence against the aggrieved person can be separately proceeded with. This is one more indicator indicating the focus of D.V. Act on the reliefs for aggrieved person, other than punishment to the offender.
„15.1 From the scheme of D.V. Act, as aforementioned, the emphasis on „aggrieved person‟, „domestic violence‟, „domestic incident report‟ is eloquent. As per Section 12, aggrieved person or protection officer or any other person on behalf of the aggrieved person is entitled to move an application, and as noticed in Section 2(a), „aggrieved person‟ is a woman in domestic relationship with „respondent‟ alleging a commission of domestic violence by such respondent. Thus the application under Section 12 can be moved by or on behalf of a woman suffering from domestic violence. Thus the „domestic violence‟ is only the cause of action for reliefs under Sections 17 to 23 of the D.V. Act.‟
15.2 Further, the provisions are also made for establishment of various facilitators like shelter homes, service providers, protection officers to assist the
LPANo.736/2013 Page 43 of 159 Magistrate and aggrieved person as also to enhance her knowledge about rights available to her under D.V. Act or IPC or Dowry Prohibition Act. Thus the remedies contemplated under D.V. Act except the one under Section 31 are not remedies under criminal law. Domestic violence may confer a cause upon the aggrieved person to proceed against the „respondent‟ under criminal law and or under D.V. Act. Therefore, though the expression „violence‟ connotes criminality referable to criminal mindset, the object of act being to assist the aggrieved person suffering from domestic violence by providing to her various reliefs as above and the act of domestic violence not being punishable under D.V. Act, it cannot be said that mere use of expression „violence‟ would render the applications under Sections 12, 17 to 24 of the D.V. Act as criminal proceedings. The fact that the civil remedies are provided to aggrieved person is also made eloquent by objects and reasons of D.V. Act as well.
15.3 True that the object of Section 31 is to punish the offender for violation of protection orders issued under Section 18 of D.V. Act. Breach of protection orders is classified as cognizable and non-bailable offence under Section 32, and upon testimony of the aggrieved person, the Court may conclude that offence under Sub-Section (1) of Section 31 has been committed by the accused. Protection order can be issued under Section 16 and its breach is cognizable under Section 32. The purpose of Sections 31 and 32 appears to be to ensure compliance of protection orders, if necessary, by enforcing a criminal machinery against the offender. It is only while hearing a case under Section 31 that a charge can be framed also under Section 498A of IPC or any other provision of that Code or the Dowry Prohibition Act, as the case may be, on disclosure of the commission of an offence under those provisions. Pertinently, except in relation to few provisions like Section 5 and 31, there is no reference to the expression „offence‟, „crime‟ or the like in entire
LPANo.736/2013 Page 44 of 159 D.V. Act. Therefore, even by virtue of doctrine of exclusion, an inference that none of the commissions or omissions except those made specifically punishable, the D.V. Act not intended to punish the „respondent‟. 15.4 For the foregoing reasons, it cannot be said that the acts or omissions constituting „domestic violence‟ as defined in Section 3 of D.V. Act constitute an offence under D.V. Act so as to attract Section 4(2) of Cr.P.C. 15.5 In contrast, in order to attract Section 4(2) of Cr.P.C., the commissions or omissions complained of must necessarily be an offence as defined in Section 2(n) of Cr.P.C. Reference to various terms as quoted in para 13.1 of this judgment as also the constitution of various courts to try offences; the procedure to investigate or inquire into the offences; obligations cast upon the police or others for prevention and detection of offences; provisions for maintenance of public order and tranquility etc., all go to indicate that predominant object of Cr.P.C. is to provide for the procedure to deal with offences. Since the scheme of Cr.P.C. predominantly prescribes a procedure to try offences, Section 482 of Cr.P.C. also can be applied in relation to offences and not in relation to civil proceedings.
15.6 The procedure contemplated under Section 28 of D.V. Act applying the Criminal Procedure Code to the proceedings under Sections 12, 18 to 23 and 31 of D.V. Act would not ipso facto attract Section 482 of Cr.P.C. Having regard to the scheme of D.V. Act, Section 28 while adopting the provision of Cr.P.C. intends to apply procedure necessary for passing orders for securing the civil rights contemplated under Sections 12, 18 to 23 of D.V. Act. To illustrate, a Magistrate may issue the summon or warrant for securing the presence of „respondent‟ as defined in Section 2(q) of the D.V. Act. Pertinently, Section 28, while referring to various provisions of D.V. Act prefixes the expression „offence‟ to Section 31 only thus making the intent of the act very specific and eloquent. In other words, the expression
LPANo.736/2013 Page 45 of 159 „offence‟ is prefixed to Section 31 as referred to in Section 28, while the said expression is omitted in Section 28 in reference to other provisions of D.V. Act, because Section 31 declares the breach of protection order an offence and other provisions do not. Further, under the very provision, Magistrate is empowered to prescribe its own procedure as well in which event the Magistrate may not have to rely upon Cr.P.C. 15.7 Thus, mere use of the provisions of Cr.P.C. for limited purposes of Sections 12, 18 to 23 and 31 of D.V. Act would not ipso facto attract Section 482 of Cr.P.C. 15.8 Further, „domestic violence‟ as defined in Section 3 of the Act has attributes of crime inasmuch as such acts may constitute an offence under one or other provisions of IPC. The Magistrate is one of the authority contemplated under Cr.P.C. to deal with offences. It appears that, keeping the above aspect in view, it was deemed appropriate to authorise a judicial mind well- versed with the procedure dealing with crime, also to deal with the proceedings arising under D.V. Act since criminal acts as defined under Section 3 of D.V. Act give rise to cause of action under that Act. Furthermore, in case of breach of protection orders, the Magistrate is empowered to proceed under Section 31 of D.V. Act and also to frame charge for the offence under Section 498A of IPC. Therefore also it appears that the Magistrate has been selected as competent judicial authority to deal with the proceedings arising under D.V. Act and the Court of Sessions is contemplated as competent appellate authority. Thus merely because judicial authorities contemplated under Cr.P.C are found competent to deal with the proceedings arising under D.V. Act, it cannot be argued that such proceedings deal with crime.” (Emphasis supplied)
5.23. In Naorem Shamungou Singh v. Moirangthem Guni Devi, AIR 2014 Mani 25, the Manipur High Court held that the DV
LPANo.736/2013 Page 46 of 159 Act provides the remedies available under Civil law. The Court further held that though Section 28(1) of the Act provides that all proceedings shall be governed by provisions of Cr.P.C. but Section 28(2) empowers the Court to lay down its own procedure for disposal of the application under Sections 12 and 23(2). The flexibility has been given to the Court as the proceedings under Sections 12 and 18 to 23 provide civil remedies whereas Section 31 provides a criminal offence. Relevant portion of the said judgment is reproduced hereunder:
“[11] In this context, it may be noted that Protection of Women from Domestic Violence Act, 2005 was enacted by the Parliament keeping in view that phenomenon of domestic violence which is widely prevalent has remained largely invisible in the public domain and even though there is a specific offence under section 498-A of the Indian Penal Code dealing with cruelty by husband and relatives, there is no civil law to address this issue. The Parliament keeping in mind the said aspect and to provide the remedy under the Civil law which is intended to protect the women from being victims of domestic violence and to prevent occurrence of domestic violence, enacted the said law as evident from the Statement of Objects and Reasons, …
The Statement of Objects and Reasons indicates that various issues arising out of and relating to domestic violence are sought to be dealt with by enacting the said law and by providing remedies which are normally available under the civil law. Therefore, even if Section 28(1) of the Act provides that the proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure, 1973, in view of different remedies which one can obtained under Section 12 of the Act, some of which are of civil in nature, the Act
LPANo.736/2013 Page 47 of 159 itself has provided under sub-section (2) of Section 28 that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12. Therefore, the Legislature has introduced an element of flexibility in the procedure to be adopted while dealing with application under section 12 of the Act. This is, perhaps, because of the intention of the Legislature in seeking to provide civil remedies also under the said Act. Code of Criminal Procedure had been enacted primarily to provide a fair procedure to deal with the offences punishable under various penal Acts and is geared to find out the guilt or innocence of the person, who has been charged of any offence. Protection of Women from Domestic Violence Act, 2005 has been enacted primarily to give relief to the victims of domestic violence many of which are of civil nature and as such, while devising and granting appropriate relief under the Act, the provisions of Code of Criminal Procedure which is fashioned for criminal trial may not be appropriate in all cases. Many of the reliefs contemplated under the Act are of civil nature which cannot normally granted by the Criminal Court, but only by a Civil Court. That is the reason why the Legislature incorporated sub-section (2) in Section 28 permitting the Court to lay down its own procedure for disposal of an application under section 12 of the Act. [12] Thus, it is clear that even though section 28(1) specifically provides that all proceedings under section 12 shall be governed by the provisions of Cr.P.C., 1973, it is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate a proceeding initiated under section 12. Therefore, this Court will hold that the Courts while dealing with proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 shall abide by the provisions of Cr.P.C., 1973 as far as possible. However, any departure from the provisions of Cr.P.C. will not have the effect of vitiating the
LPANo.736/2013 Page 48 of 159 proceeding in view of the fact that the statute itself specifically provides for the Court to lay down its own procedure for disposal of an application under section
12.”
(Emphasis supplied)
5.24. In Vijaya Baskar v. Suganya Devi, MANU/TN/3477/2010 the Madras High Court examined the scope of DV Act and held that the term civil law used in the Object and Reasons of the Act is not an empty formality and would exemplify and demonstrate that the proceedings in the first instance should be civil in nature. The legislature was conscious of the fact that the enforcement of a criminal law on the husband and relatives would have deliterious effect in the matrimonial relationship. The object of the Act is that the victim lady should be enabled by law to live in matrimonial family atmosphere of her husband’s house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband’s family and for that, civil law and civil remedies are most efficacious and appropriate. The High Court referred to Rule 6(5) of the DV Rules which provides that the application under Section 12 shall be dealt with and enforced in the same manner laid down in Sectio 125 Cr.P.C. The Court further observed that the violation of protection order would constitute an offence under Section 31 and Section 32 provides that such violation would amount to a cognizable and non-bailable offence. Relevant portion of the said judgment is reproduced hereunder:
LPANo.736/2013 Page 49 of 159 “11. Paramount, it is, to consider the gamut and the scope of the Act, namely The Protection of Women from Domestic Violence Act, 2005; certain excerpts from the objects and reasons are of immense importance which would run thus:
“2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”
12. The term „civil law‟ twice used therein is not an empty formality and that would exemplify and demonstrate, display and convey that the proceedings at the first instance should be civil in nature. The legislators were conscious of the fact that all of a sudden if criminal law is enforced on the husband and his relatives, certainly that might boomerang and have deliterious effect in the matrimonial relationship between the husband and wife. The object of the Act is that the victim lady should be enabled by law to live in the matrimonial family atmosphere in her husband/in- laws’ house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband’s family and for that, civil law and civil remedies are most efficacious and appropriate and keeping that in mind alone in the Act, the initiation of action is given the trappings of civil proceedings which the authorities including the Magistrate responsible to enforce the said Act should not lose sight of.
LPANo.736/2013 Page 50 of 159
13. The status of the respondents should not be treated as that of accused and that would spoil the very tenor and tone with which the Act has been drafted. Keeping that in mind alone, Section 13 of the Act would contemplate only service of notice on the respondents and Rule 6(5) of the Protection of Women from Domestic Violence Rules, would contemplate that the applications under Section 12 shall be dealt with inconformity with Section 125 of the Code of Criminal Procedure, 1973.
14. It is obvious that the proceedings under Section 125 Cr.P.C are not in stricto sensu criminal proceedings.
15. After the passing of the protection order, if there is any violation, then only, such violation would constitute an offence under Section 31 of the said Act and Section 32 of the Act would indicate that such violation would amount to a cognizable and non-bailable offence.” (Emphasis supplied)
Respondent‟s response
5.25. The respondents did not make any submission with respect to the interpretation of the provisions of the DV Act mentioned above.
5.26. The respondents also did not controvert any of the judgments relied upon by the appellant in which it is held that the proceedings under DV Act are civil in nature.
5.27. The respondents also did not cite any judgment in support of his contention that the proceedings under the DV Act is a criminal case.
5.28. The respondent’s only contention is that the provisions of the DV Act and the judgments relied upon by the appellant to show
LPANo.736/2013 Page 51 of 159 that the proceedings under DV Act are civil in nature, are irrelevant.
5.29. This argument is absurd on the face of it because the question as to whether the proceedings under DV Act are civil or criminal has arisen because of a perverse view taken by the respondents that the proceedings under Section 12 is a criminal case despite clear provisions of the DV Act and the catena of judgments mentioned above.
5.30. The respondents have dared to take a position contrary to the well settled law. The consequences of taking such a position shall be discussed in the later part of this judgment.
6. Whether any criminal case was pending against the appellant at the time of submitting the bio-data form?
6.1. The respondents have cancelled the offer of appointment of the appellant on the sole ground that she has suppressed the pendency of a criminal case under the DV Act relating to a serious offence of domestic violence of attempt to murder her sister-in-law. According to the respondents, the proceedings under Section 12 of the DV Act is a criminal case. The question which therefore, arises for consideration is – What is the meaning of the term ―criminal case‖?
6.2. The learned counsel for the respondents have made no submissions as to what is the meaning of the term ―criminal case‖ except referring to the definition of ―Criminal‖ in Blacks Law Dictionary. The respondents have also not explained, what meaning they intended to give. The learned Senior Counsel for the
LPANo.736/2013 Page 52 of 159 appellants, on the other hand has referred to and relied upon the relevant provisions of the DV Act as well as the relevant judgments mentioned above according to which the proceedings under the DV Act are purely civil in nature.
6.3. The term ―criminal case‖ is not defined in any statute. We are of the view that ―criminal case‖ mentioned in Q.12 of the bio- data form means ―proceedings in respect of an offence alleged to have been committed by the appellant pending before a criminal Court‖ as defined in Section 6(2)(f) of the Passports Act, 1967. 6.4. The term ―offence‖ is defined in Section 2(n) Cr.P.C., Section 40 IPC and Section 3(38) of the General Clauses Act according to which the offence means an act or omission punishable by any law. Section 2(n) of Cr.P.C. and Section 3(38) of the General Clauses Act are reproduced hereunder:- “Section 2 (n) Cr.P.C.- “Offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle- trespass Act, 1871 (1 of 1871)”
“Section 3(38) General Clauses Act – “Offence” shall mean any act or omission made punishable by any law for the time being in force.”
6.5. In Yeo Swee Choon alias Bah U v. The Chartered Bank of India Australia and China Rangoon and Ors., (1892) ILR 19 Cal 605, the Division Bench of the Calcutta High Court considered the meaning of the term ―criminal case‖. The Division Bench held that the case in which imprisonment is inflicted as a punishment for an
LPANo.736/2013 Page 53 of 159 offence is a criminal case. The relevant portion of the said judgment is reproduced hereunder:-
“1. …The first point which has been referred to us and upon which our opinion is required is, whether this matter is a criminal case within the meaning of Section 69 of the Lower Burma Courts Act. The learned Recorder thinks it is not a criminal case, but a civil one. The Judicial Commissioner thinks it is a criminal case, and, as I said just now, we agree with the Judicial Commissioner. The punishment which can be awarded under this section is a punishment for something which the person to be punished has done, and is not in any way an imprisonment to which he is subjected in order to compel him to do something in the future; and that brings the case within the definition of a criminal case which is to be found in the various cases which have been cited before us by Sir Griffith Evans, which were O’Shea v. O’Shea and Parnell I.L.R. 15 P.D. 59, In re Ashwin I.L.R. 25 Q.B.D. 271 In e Freston I.L.R. 11 Q.B.D. 545 Harris v. Ingram I.L.R. 13 Ch. D. 338 and Ex parts Marsden I.L.R. 2 Ch. D. 786. These cases show, as one would expect they would show, that where imprisonment is inflicted as a punishment for something done, the case in which it is inflicted is a criminal case. To hold anything else would be, in our opinion, to sacrifice the substance of the matter to a mere question of words; in other words, it would be to say that where a man is punished for an offence which he has committed it is to be taken as a civil matter when the Court which is authorized to inflict the punishment happens to be a Civil Court. That, as I said just now, would be to sacrifice the real intention of the Legislature to a mere form of words. We think, therefore, that the view taken by the Judicial Commissioner on the first point is correct.”
6.6. In Sunil Kumar Ghosh v. State of West Bengal & Ors., MANU/WB/0519/1969, the Division Bench of the Calcutta High
LPANo.736/2013 Page 54 of 159 Court held that the crime means an act punishable by law and criminal proceedings mean the proceedings for inflicting punishment on the accused. The relevant portion of the judgment is reproduced hereunder:-
“8. Obviously, this is not a charge of an offence included in the Indian Penal Code, which constitutes the general law of crimes in this country, but an offence created by a special statute, namely, the Police Act, to be met with by a statutory penalty. The question is whether this constitutes a ‘criminal charge’, which expression is not defined in the Constitution or in the General Clauses Act.
9. The question has, therefore, to be answered with reference to general principles.
10. The Dictionary meaning of the word ‘charge’ in the legal sense, is ‘accusation’. ‘Criminal charge’, therefore, would mean accusation of a ‘crime’.
11. The Dictionary meaning of the word ‘crime’, again, is an ‘act punishable by law’ (Shorter Oxford Dictionary). To punish means to ‘inflict penalty on an offender’. If these Dictionary meanings prevail, any offence which is created by any statute and is punishable by any penalty imposed thereby would be included within the concept of a ‘criminal charge’.
12. The most common way adopted by leading treatises is to define crimes by distinguishing it from civil wrongs. In Salmond on Torts (10th Ed., p. 7), the distinction is drawn as follows :
The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy provided by law. A civil wrong is one which gives rise to civil proceedings – proceedings, that is to say, which have as their purpose the enforcement of some right claimed by the plaintiff as against the defendant : for example, an action for the recovery of a debt * * *. Criminal proceedings, on the other hand, are those
LPANo.736/2013 Page 55 of 159 which have for their object the punishment of the defendant for some act of which he is accused. He who proceeds civilly is a claimant, demanding the enforcement of some right vested in himself, he who proceeds criminally is an accuser, demanding nothing for himself, but merely the punishment of the defendant for a wrong committed by him.
13. The element of punishment as the differentia of a crime is also emphasised by Winfield (Torts, 7th Ed., pp. 10-11) and Kenny [Outline of Criminal Law (16th Ed., p. 539)]. In some cases, of course, criminal law provides for payment of monetary compensation by the convicted person to the person injured, but even in those cases, such compensation is awarded in addition to some punishment.
14. Quoting observations in decisions, Wilshere (Criminal Law, 17th Ed., pp. 1-2) explains the essential characteristics of a crime as follows:
The essential characteristic of a criminal offence is that it entails a liability to punishment : the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common feature that they will be found to possess is that they are prohibited by the State and that those who commit them are punished.
15. The old distinction between mala prohibita and mala in se has broken down because many acts which have been made punishable as an offence by statutes do not involve any moral turpitude:
In particular, nothing in the moral character of an act or omission can distinguish it from a civil wrong or make it a criminal offence. There are, for example, many breaches of statutory regulations and bye-laws which, because they are punishable in criminal proceedings, must be classed as criminal offences though they do not involve the slightest moral blame, as, for example, ‘the
LPANo.736/2013 Page 56 of 159 failure to have a proper light on a bicycle * * * (Salmond, ibid).
16. But a statutory offence should not be a criminal offence “unless the punishment is inflicted as a result of a criminal proceedings” (p. 2, ibid.), i.e. in a proceeding before a criminal court.
17. Judged by the foregoing tests, the offence under section 29 of the Police Act is a criminal offence and the charge of such an offence is a criminal charge because- (a) By the statute, violation of duty or willful breach of any order made by a competent authority has been prohibited and made punishable by fine or
imprisonment or both.
(b) The offence list triable before a Magistrate, i.e., a criminal court.
(c) The proceeding is a criminal proceeding because the object of the proceeding is not the enforcement of some right belonging to any complainant or person injured by such act but the punishment of the delinquent Police Officer, and it started with a prosecution (Annexure D/1).”
6.7. Coming back to the facts of the present case, it is clear that the appellant was not accused of any offence in the proceedings under Section 12 of the DV Act and therefore, she was not involved in any criminal case. Although serious allegations are made in the application under Section 12, the Magistrate had no jurisdiction to take cognizance of any criminal offence. 6.8. With respect to the respondent’s contention that the application under Section 12 of the DV Act contains serious allegations of attempt to murder, this Court is of the view that the proceedings under Section 12 of the DV Act are purely civil in nature and making any allegations relating to an offence would not
LPANo.736/2013 Page 57 of 159 make the appellant accused of any offence. Section 5(e) of the DV Act specifically casts the duty upon the police officer, service providers and Magistrate to inform the aggrieved person of her right to file a separate complaint to the police. The domestic incident report under Form 1 under Rules 5(1)(2) also clearly record the instructions for the police officer to inform the aggrieved person to initiate criminal proceedings by lodging an FIR with the police. Clause 8(b) further recognises that the aggrieved person may not want to initiate criminal proceedings due to intimate nature of relationship with the accused and therefore, may wish to pursue the civil remedies only.
6.9. The respondent’s argument can be tested by taking an example of a civil suit in which the plaintiff makes a serious allegation that the defendant has cheated him but chooses not to lodge an FIR or file a criminal complaint before the competent Magistrate. Can it be said that the defendant is accused of an offence of cheating. The answer is clearly ‗No’ because in the proceedings before the Civil Court, the defendant is not accused of an offence and Civil Court has no jurisdiction to take cognizance of an offence. In the present case also, the proceedings are purely civil in nature and the Court dealing with application under Section 12 is not competent to take cognizance of any offence under IPC. The Section 5(e) imposes a duty on the Magistrate to inform the complainant to file an FIR for any offence under IPC. Section 31(2) further provides that upon breach of a protection order, the separate criminal case has to be initiated which should preferably
LPANo.736/2013 Page 58 of 159 be tried by the same Court. In the fresh criminal case under Section 31 of the DV Act, the Magistrate is empowered to frame a charge under IPC if the facts so disclose but so far as the proceedings under Section 12 are concerned, the Court has no jurisdiction to take cognizance of any offence under IPC. 6.10. The respondents’ contention that the domestic violence is an offence, is contrary to the well settled law. The respondents’ argument is devoid of merit. The respondents’ next contention that the appellant is accused No.4 in the criminal case is also false as the appellant is respondent No.4 and not accused No.4. The consequence of raising grounds contrary to well settled law shall be discussed in later part of the judgment.
6.11. Under Section 4(2) of Code of Criminal Procedure, all offences under IPC or under any other law have to be investigated, inquired into and tried according to the Code of Criminal Procedure. Since domestic violence per se is not an offence and Sections 12 and 18 to 23 also do not constitute any offence, the Metropolitan Magistrate dealing with the application under Section 12 of the DV Act cannot inquire into or try the appellant for any offence.
6.12. In the present case, the learned Magistrate formulated its own procedure under Section 26(2) of the DV Act and merely issued summons of the application under Section 12 of the DV Act. The Magistrate has not taken any cognizance nor could he have taken cognizance of any offence under the DV Act. That apart, according to First Schedule of Cr.P.C., Section 307 IPC is triable
LPANo.736/2013 Page 59 of 159 by a Court of Session and the Magistrate was not even competent to take cognizance of that offence.
6.13. In view of the above, we hold that no criminal case was pending against the appellant at the time of submitting the bio-data form as she was not an accused of any offence in those proceedings and the Court dealing with the application under Section 12 of the DV Act was not holding a trial of any offence punishable by law.
7. The validity of an order has to be judged by the reasons stated in the order itself and can‟t be supplemented by fresh reasons later on
7.1. The respondent has cancelled the appellant’s provisional appointment on the sole ground that she was involved in a criminal case. We have perused the original record of the respondents which reveal that the Senior Manager (HR) in his note dated 28 th September, 2012 noted that the case against the appellant was a criminal case, which was approved by all the officers up to the level of Director (HR). The respondents contested the writ petition also mainly on the ground that the appellant was involved in a criminal case which was accepted by the learned Single Judge. However, at the time of hearing of this appeal, an additional ground was raised that even if the proceedings under Section 12 of the DV Act do not fall within the meaning of criminal case, it would fall within the second part i.e. law suit. The question arises whether the respondent can raise this additional ground. 7.2. The law on this issue is well settled that the validity of an order has to be judged by the reasons stated in the order itself
LPANo.736/2013 Page 60 of 159 and not by anything else, otherwise an order bad in the beginning, by the time it comes to the Court on account of a challenge, get validated by additional grounds later brought out. An affidavit can‟t be relied upon to improve or supplement an order.
7.3. In Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16], the Supreme Court held that an administrative order cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Bose, J., held as under: “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
7.4. This question again arose before the Constitution Bench of the Supreme Court in Mohinder Singh Gill v. The Chief Election Commisioner, (1978) 1 SCC 405 in which Krishna Iyer, J following Gordhandas Bhanji (supra) held as under:- “8. … when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.
LPANo.736/2013 Page 61 of 159 …Orders are not like old wine becoming better as they grow older.”
7.5. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520, the Supreme Court, following Mohinder Singh Gill (supra) again held that an affidavit cannot be relied on to improve or supplement an order. The Supreme Court observed as under:-
“34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr., New Delhi [(1978) 1 SCC 405 : AIR 1978 SC 851] : (SCC p. 417, para 8)
35. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of U.P. v. Kaushal Kishore Shukla[(1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498] : (SCC p. 705, para 13)
“The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.”
7.6. In East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678, the Supreme Court following the earlier decisions mentioned above again reiterated the law laid down in the aforesaid judgments. Relevant portion of the said judgment is as under: “9. There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons
LPANo.736/2013 Page 62 of 159 cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the court where the validity of any such order is under challenge.”
7.7. In Rashmi Metaliks Limited and Another v. Kolkata Metropolitan Development Authority and Others, (2013) 10 SCC 95, the Supreme Court following Mohinder Singh Gill (supra) and Gordhandas Bhanji (supra) held as under:-
“14. …Regardless of the weight, pithiness or sufficiency of the explanation given by the appellant Company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the authority or any of the respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind.
15. The impugned judgment [Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, MAT No. 1031 of 2013, decided on 11-7-2013 (Cal)] is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned judgment [Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, MAT No. 1031 of 2013, decided on 11-7-2013 (Cal)] itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision.”
(Emphasis supplied)
7.8. In Dipak Babaria and Another v. State of Gujarat and Others, (2014) 3 SCC 502, the Supreme Court following Mohinder Singh Gill (supra) and Gordhandas Bhanji (supra)
LPANo.736/2013 Page 63 of 159 again held that the Government cannot improve its stand by filing subsequent affidavits.
“64. That apart, it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commr. of Police v. Gordhandas Bhanji. …”
“…This proposition has been quoted with approval in para 8 by a Constitution Bench in Mohinder Singh Gill v.Chief Election Commr. …”‘
(Emphasis supplied)
7.9. In Kunjumon Thankappan v. Chief Passport Officer, 2012 (1) KHC 720, a passport was impounded on the ground that a criminal case was pending against the passport holder. The impounding order was challenged in appeal on the ground that no criminal case was pending against the person except two cases pending before the Family Court which were also settled. The Kerala High Court held that the proceedings pending before the Family Court do not render a person ineligible for issuance of passport under Section 6(2)(f) and therefore, the impounding order was bad. An additional ground was raised before the High Court that there was a suppression of a material fact by the petitioner. The Kerala High Court relying on Mohinder Singh Gill (supra) held that since the suppression was not a reason relied upon in the impounding order, and therefore, which is ground cannot be raised
LPANo.736/2013 Page 64 of 159 by the respondents. Relevant portion of the said order is reproduced hereunder:
“9. As far as the suppression alleged against the petitioner is concerned, that is not a ground relied on in Ext. P1 order. It is the settled position of law Mohinder Singh Gill v. Chief Election Commissioner, New Delhi: AIR 1978 SC 851 that the validity of an order has to be judged based on the reasons stated in the order itself and not by anything else. Therefore, since suppression alleged is not a reason relied on in Ext. P1, I am not inclined to entertain the submission now made by the learned counsel for the respondents.”
(Emphasis supplied)
7.10. Since the appellants provisional appointment was cancelled on the sole ground that the proceedings under Section 12 of the DV Act is a criminal case; the additional ground raised by the respondent before us can’t be looked into in view of the principles laid down by the Supreme Court in the aforesaid judgments.
8. Whether there was any concealment of a material fact by the appellant in the bio-data form?
8.1. The learned counsel for the respondents has strongly relied on the judgment of the Supreme Court in Jainendra Singh (supra) and the judgments discussed therein in which the Supreme Court has dealt with the issue of concealment of a material fact relating to the involvement of a candidate in a criminal offence. The Supreme Court held that information with respect to the involvement in a criminal case affects the character and antecedents of the candidate which is one of the most important criteria to test whether the
LPANo.736/2013 Page 65 of 159 selected candidate is suitable for the post. The particulars of the concealed offences in those cases are as under: Name of the case Criminal offence concealed Delhi Administration Through – Section 304/324/34 IPC Its Chief Secretary v. Sushil
Kumar, (1996) 11 SCC 605
Commr. of Police v. Dhaval – 147/342/327/504 IPC Singh, (1999) 1 SCC 246
Regional Manager, Bank of – 307 IPC Baroda v. Presiding Officer,
Central Govt. Industrial
Tribunal, (1999) 2 SCC 247
Kendriya Viyalaya Sangathan – 323/341/294/506-B/34 IPC v. Ram Ratan Yadav, (2003) 3
SCC 347
Secy. Deptt. Of Home Secy. – Various provisions of IPC and A.P. v. B. Chinnam Naidu, Andhra Pradesh Public (2005) 2 SCC 746 Examinations ( Prevention of Malpractices and Unfair
Means) Act, 1997
R. Radhakrishnan v. Director – 294(b) IPC
General of Police, (2008) 1
SCC 660
UOI v. Bipad Bhanjan Gayen, – 376/417 IPC
(2008) 11 SCC 314
Kamal Nayan Mishra v. State – 323/341/294/506-B/34 IPC of MP, (2010) 2 SCC 169
Daya Shankar Yadav v. UOI, – 323/504/506 IPC (2010) 14 SCC 103
Commissioner of Police v. – 325/34 IPC
Sandeep Kumar, (2011) 4 SCC
644
State of West Bengal v. S.K. – 148/323/380/448/427/506 IPC Nazrul Islam, (2011) 10 SCC
184
Ram Kumar v. State of UP, – 324/34/504 IPC AIR 2011 SC 2903
LPANo.736/2013 Page 66 of 159 Jainendra Singh v. State of UP, – 147/323/336 IPC (2012) 8 SCC 748
8.2. In Jainendra Singh (supra) and other cases discussed therein, the candidates were accused of offences in respect of which the FIR was lodged against them and they concealed the same at the time of seeking the appointment. It was in that context that the Supreme Court laid down the principles relating to the consequences of concealment of a criminal offence relating to the involvement of a candidate in a criminal case which had an effect on the antecedents and character of the candidate. However, in the present case as the appellant is not accused of any offence in the case under Section 12 of the DV Act. Secondly, there was no concealment by the appellant in the bio-data form. Thirdly, the appellant is involved in a case of civil nature under Section 12 of the DV Act which does not effect her antecedents or suitability to the post for which she was selected.
8.3. It is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts of the case involved in it. The ratio of any decision has to be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has to be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically
LPANo.736/2013 Page 67 of 159 applied to another case without regard to the factual situation and circumstances of the two cases. In Bharat Petroleum Corporation Ltd v. N.R. Vairamani, (2004) 8 SCC 579, the Supreme Court had held that a decision cannot be relied on without considering the factual situation. The Supreme Court observed as under:- “9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737: (1951) 2 All ER 1 (HL)] (AC at p. 761) Lord Mac Dermott observed: (All ER p. 14 C-D)
“The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge…” This extract is taken from Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
10. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL)] (All ER p. 297g-h) Lord Reid said, “Lord Atkin’s speech … is not to be treated as if it were a statutory definition. It will require qualification in new circumstances”. Megarry, J. in Shepherd Homes Ltd. v.Sandham (No. 2) [(1971) 1
LPANo.736/2013 Page 68 of 159 WLR 1062 : (1971) 2 All ER 1267] observed: “One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament.” And, in Herrington v.British Railways Board [(1972) 2 WLR 537 : (1972) 1 All ER 749 (HL)] Lord Morris said: (All ER p. 761c)
“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.”
This extract is taken from Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
This extract is taken from Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * *
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”
LPANo.736/2013 Page 69 of 159
9. Whether the respondents adopted fair procedure for appointment and cancellation of the appointment of the appellant
9.1. Question 12 of the bio-data form as well as Question 12(i) of the attestation form are again reproduced hereunder:- Question 12 of Bio-Data Form – Whether involved in any Criminal case / Law suit at any time?
Question 12(i) of Attestation Form – Is any case pending against you in any Court of law at the time of filling up this Attestation Form?
9.2. Since Question 12 of the attestation form covers all types of cases pending in any Court of law, we see no reason in asking a question relating to criminal case and law suit in the bio data form. 9.3. We have gone through the attestation forms of the Indian Administrative Service as well as Delhi Judicial Service. The para 12 of the attestation form taken from the candidates of Indian Administrative Services at the time of interview is reproduced hereunder:
―12.(a) Have you ever been arrested? Yes/No (b) Have you ever been Prosecuted? Yes/No (c) Have you ever been kept under detention? Yes/No (d) Have you ever been bound down? Yes/No (e) Have you ever been fined by a Court of Law? Yes/No (f) Have you ever been convicted by a Court of Law for any offence? Yes/No
(g) Have you ever been debarred from any examination or rusticated by any University or any other educational authority/institution? Yes/No
(h) Have you ever been debarred/disqualified by any Public Service Commission/Staff Selection Commission for any of
LPANo.736/2013 Page 70 of 159 their examination/selection? Yes/No
(i) If any case pending against you in any court of law at the time of filling up this attestation Form? Yes/No (j) Is any case pending against you in any University or any other educational authority/institution at the time of filling up this Attestation Form? Yes/No
(k) Whether discharged/expelled/withdrawn from any training institution under the Govt. or otherwise? Yes/No (l) If the answer to any of the above mentioned question is ‗Yes’, give full particulars of the case/arrest/detention/fine/conviction/sentence/ punishment etc. and/or the name of the case pending in the Court/ University/Educational Authority etc. at the time of filling up this form? Yes/No‖
9.4. The para 12 of the attestation form of Delhi Judicial Service examination is reproduced hereunder:
―(a) Have you ever been arrested, prosecuted, kept under detention, or bound down/convicted by a court of law for any offence, or debarred/disqualified by any Public Service Commission from appearing at its examination/selection, or debarred educational authority/Institution?
(b) Is any case pending against you in any court of Law, University or any other educational authority/institution at the time of filling up this attestation form. If the answer to (a) or (b), is ―Yes‖ full particulars of the case, arrest, detention, fine, conviction, sentence etc. and the nature of the case pending in the court/University/Educational authority etc. at the time of filling up this form, should be given.‖
9.5. In both the attestation forms reproduced above, the information is sought with respect to any case pending in any Court as sought by the respondent in Query 12 of the attestation form. However, there is no separate question as to the pendency of a
LPANo.736/2013 Page 71 of 159 criminal case or law suit as sought by the respondent in the bio data form.
9.6. The normal practice appears to be to seek information relating to all pending legal cases in the attestation form for verification to enable the employer to verify the character and antecedents of the candidate to ascertain his/her suitability for the post. Such queries are ordinarily not made in the bio data form. Logically, the query as to the pending criminal cases is not part of the bio data of a person.
9.7. The learned counsel for the respondent submitted that the appellant should have disclosed all cases pending before any Court in answer to Question 12 of the bio-data form. If the respondents wanted to seek information relating to all cases pending in Courts, the respondent could have sought information relating to all cases pending in any Court as in Question no.12(e) of the attestation form. We, therefore, see no justification to first seek limited information in question no.12 of the bio data form and then seek exhaustive information in the attestation form. Question no.12(e) of the attestation form would certainly include criminal cases as well as law suits.
9.8. The respondent’s contention that all legal proceedings pending before a Court of law would fall either in the category of a “criminal case” or “law suit” is absolutely misconceived. There can be many category of cases which would neither fall in the category of “criminal case” nor in the category of a “law suit” such as writ petitions, appeals, applications, execution petitions,
LPANo.736/2013 Page 72 of 159 revision petitions, review applications, etc. do not fall in the category of either a “criminal case” or a “law suit”. 9.9. Question 12 in the bio-data form is ambiguous and confusing. It has two parts, first relating to involvement in any ―criminal case‖ and second part relating to involvement in any ―law suit‖. The term law suit is a technical word and since it has been used along with the term criminal case, a candidate can confuse same having a meaning related to the first word. Secondly, assuming that the respondent meant ‗law suit’ to be a ―suit‖, it is not defined in Code of Civil Procedure except to a limited extent in Section 26 of the Code of Civil Procedure that the suit shall commence on the institution of a plaint. Suit is ordinarily understood as a proceeding in a civil Court although it is capable of a very wide connotation depending upon the context in which it is used. Section 2(l) of the Limitation Act defines the suit in a limited way that it excludes applications and appeals. Taking the aforesaid definitions, the term suit would exclude appeals, revision petitions, review applications, application for restoration of a suit, execution petitions, writ petitions, election petitions, property tax matters, Income tax matters, Excise matters, Sales Tax matters and other proceedings under special laws. Taking this interpretation, a candidate against whom no civil suit is pending but large number of appeals, execution petitions, revision petitions, writs and other petitions/applications are pending, may give a true answer that no civil suit is pending but what is the value/worth of such limited information to the respondents when the employer wants
LPANo.736/2013 Page 73 of 159 information about all cases pending in Courts. It cannot be disputed that in the present context, there is no difference in the category of cases which fall within the meaning of ‗suits’ and the others which are not suits. We see no wisdom in seeking information only with respect to a suit and not the other proceedings. It appears that no mind has been applied while framing Question no.12.
9.10. We also see no wisdom in using a technical word ‗law suit’ in Question no.12 because a person who does not have a background of law and is not conversant with the Court procedure, may not understand the meaning of the term ―law suit‖. Can the employer use such technical words in the bio data form? Let us test this. If the respondent had put a question ―Whether any suit pending against you is barred by res judicata?‖, or ―Whether any suit has abated in law?‖ Such questions can of course put in a written test for judicial service or public prosecutors but such questions cannot be put in a bio data form in a case like the present one. Secondly, if at all such a question had to be used, it should have been defined in the bio data form as to what is the meaning of the word. But the difficulty is that the respondents are themselves not clear as to the meaning of criminal case as well as law suit. It was the duty of the respondents to have defined these words in the bio data form and, at least explained to this Court as to what is the meaning of these words. But we are pained to note that despite specific question repeatedly put to the learned counsel for the respondents, could not explain the meaning of the word ―law suit‖
LPANo.736/2013 Page 74 of 159 except saying that the proceedings under Section 12 of the DV Act is a law suit and all proceedings pending in the Court of Law other than criminal cases are law suits. Since the question 12 of the bio- data form is ambiguous and vague, the benefit of doubt as to its meaning would go to the appellant.
9.11. In Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103, the Supreme Court noticed that the questions 12(a) and (b) of the verification form were ambiguous and vague and could lead to hardship and mistakes. The Supreme Court held that the employer cannot dismiss, discharge or terminate the employee for misunderstanding a vague and complex question and giving a wrong answer. The Supreme Court suggested to make questions simple, clear and straight forward. Relevant portion of the said judgment is reproduced hereunder:
“19. The appellant submitted that in this case Questions 12(a) and (b) in the verification form were complex, ambiguous, tangled, involved and confusing for the following reasons:
(i) Question 12(a) involved three distinct and separate issues. The first relates to criminal prosecution and conviction. The second relates to disqualification by Public Service Commission. The third relates to debarment from examinations by universities/educational authorities.
(ii) The first part of Question 12(b) sought information relating to pendency of cases. The second part of Query 12(b) was not a query, but an instruction common to Queries (a) and (b), as to how further information should be given if the answer to the query was “yes”.
(iii) There was a variation between the English
LPANo.736/2013 Page 75 of 159 version and the Hindi version of Question 12(a) and the words “restricted by any university or other education institution”, in Query 12(a) appear to have been erroneously printed instead of the words “rusticated by any university or other educational institution”. (iv) The second part of Query 12(b) as also the nature of Queries 12(a) and 12(b) contemplated the declarant employee to answer Queries 12(a) and (b) in monosyllable answers of “yes” or “no”; and only if the declarant answered Query 12(a) as “yes”, he had to give further particulars. If an employee answers Query 12(a) by the word “yes” it would really mean that he has been arrested, prosecuted, kept under detention and bound down/fined/and convicted by a court of law even if he has not been subjected to all those processes. (v) The first part of Query 12(a) is capable of being interpreted in two ways. One way of reading it is: “whether the declarant had ever been arrested, or prosecuted, or kept under detention, or bound down/fined, or convicted by a court of law for any offence”, thereby requiring the declarant to state whether he was subjected to any one of those events/processes. Another way of reading it is: “whether the declarant has been arrested, prosecuted, kept under detention, bound down/fined, and convicted by any court of law for any offence” thereby requiring the declarant to state whether he had undergone all those
events/processes with reference to a criminal offence. The above questions can confuse not only a person with basic education, but may even confuse a person legally trained to assume that he has to answer “yes” only if he had been convicted and not otherwise.
20. We agree that the English version of the questions were involved and confusing. If the queries in 12(a) and (b) in this case had been split into separate questions with instructions, to provide clarity and precision, there would have been no room for controversy. For example, if Questions 12(a) and (b) had been split up into five
LPANo.736/2013 Page 76 of 159 separate questions with a note as follows, there would have been no confusion or ambiguity:
(a) Have you ever been arrested or prosecuted or kept under detention?
(b) Have you ever been bound down or fined or convicted by a court of law for any offence? (c) Have you ever been debarred or disqualified by any Public Service Commission from appearing in any of its examinations or selections?
(d) Have you ever been debarred from taking any examination by any university, or expelled or rusticated from any educational institution?
(e) Whether any case is pending against you in any court or before any university/educational authority/institution at the time of filling up of this verification roll?
Note: If the answer to any of the above queries is “yes”, then give details.
21. If the object of the query is to ascertain the antecedents and character of the candidate to consider his fitness and suitability for employment, and if the consequence of a wrong answer can be rejection of his application for appointment, or termination from service if already appointed, the least that is expected of the employer is to ensure that the query was clear, specific and unambiguous. Obviously, the employer cannot dismiss/discharge/terminate an employee, for misunderstanding a vague and complex question, and giving a wrong answer. We do hope that CRPF and other uniformed services will use clear and simple questions and avoid any variations between the English and Hindi versions. They may also take note of the fact that the ambiguity and vague questions will lead to hardship and mistakes and make the questions simple, clear and straightforward.”
LPANo.736/2013 Page 77 of 159 Recording of reasons
9.12. An important requirement of a fair procedure is to consider all the relevant material and give reasons for the decision. It is well settled that even in administrative matters, the reasons are required to be given by the administrative authority. The reasons are live links between the mind of the decision maker and the belief formed. Reasons convey judicial idea in words and sentences. Reasons are rational explanation of the conclusion. Reason is the very life of law. It is the heart beat of every belief and without it, law becomes lifeless. Reasons also ensure transparency and fairness in the decision making process. The reasons substitute subjectivity by objectivity. Recording of reasons also play as a vital restraint on possible arbitrary use of the power. 9.13. We do not find compliance of the same in this case as no reasons have been given in the order of cancellation of appointment as to how the case under Section 12 of the DV Act is a criminal case. Relevant case law in this regard is given here under: 9.14. In Cyril Lasrado v. Julaiana Maria Lasrado, (2004) 7 SCC 431, the Supreme Court held that recording of reasons is one of the fundamentals of good administration and failure to give reasons amounts to denial of justice. Relevant portion of the said judgment is reproduced hereunder:
“12. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All ER 1148 : (1971) 2 QB 175 : (1971) 2 WLR 742 (CA)] observed: (All ER p. 1154h) “The giving of reasons is one of the fundamentals of good
LPANo.736/2013 Page 78 of 159 administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed: “Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision…” (Emphasis supplied)
9.15. In Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, the Supreme Court held that judicial trend has always been to record reasons by the administrative authorities which felicitate the process of judicial review of the Courts. The Supreme Court summarized the principles relating to the recording of reasons. Relevant portion of the said judgment is reproduced hereunder:
“12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] .
15. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties,
LPANo.736/2013 Page 79 of 159 must speak. It must not be like the “inscrutable face of a sphinx”.
28. In Gurdial Singh Fijji v. State of Punjab [(1979) 2 SCC 368 : 1979 SCC (L&S) 197] this Court, dealing with a service matter, relying on the ratio in Capoor [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : AIR 1974 SC 87] , held that “rubber-stamp reason” is not enough and virtually quoted the observation in Capoor[(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : AIR 1974 SC 87] to the extent that: (Capoor case [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : AIR 1974 SC 87] , SCC p. 854, para 28)
“28. … Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.” (See AIR p. 377, para 18.)
30. The English version of the said principle given by the Chief Justice is that: (H.H. Shri Swamiji case[(1979) 4 SCC 642 : 1980 SCC (Tax) 16 : AIR 1980 SC 1] , SCC p. 658, para 29)
“29. … „reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself‟.” (See AIR p. 11, para 29.)
46. The position in the United States has been indicated by this Court in S.N. Mukherjee [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445 : AIR 1990 SC 1984] in SCC p. 602, para 11 : AIR para 11 at p. 1988 of the judgment. This Court held that in the United States the courts have always insisted on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as “the courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review”. In S.N. Mukherjee [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445 : AIR 1990 SC 1984] this Court relied on the decisions of the US Court in Securities and Exchange Commission v. Chenery Corpn.[87 L Ed 626 : 318 US 80
LPANo.736/2013 Page 80 of 159 (1942)] and Dunlop v. Bachowski [44 L Ed 2d 377 : 421 US 560 (1974)] in support of its opinion discussed above.
47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
LPANo.736/2013 Page 81 of 159 (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision- making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 andAnya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires,
“adequate and intelligent reasons must be given for judicial decisions”.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.”
(Emphasis supplied)
9.16. In Ravi Yashwant Bhoir v. District collector, Raigad, (2012) 4 SCC 407, the Supreme Court again summarized the law relating to recording of reasons as under:-
LPANo.736/2013 Page 82 of 159 “Recording of reasons
38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.
39. In Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212 : 1991 SCC (L&S) 742 : AIR 1991 SC 537] , this Court has observed as under: (SCC p. 243, para 36) “36. … Every State action may be informed by reason and it follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is the trite law that „be you ever so high, the laws are above you‟. This is what men in power must remember, always.”
40. In LIC v. Consumer Education and Research Centre [(1995) 5 SCC 482 : AIR 1995 SC 1811] this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. “Duty to act fairly” is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. Mohan Lal Capoor [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : AIR 1974 SC 87] and Mahesh Chandra v. U.P. Financial Corpn. [(1993) 2 SCC 279 : AIR 1993 SC 935]
41. In State of W.B. v. Atul Krishna Shaw [1991 Supp (1) SCC 414 : AIR 1990 SC 2205] , this Court observed that: (SCC p. 421, para 7)
“7. … Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review.”
42. In S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : AIR 1990 SC 1984] , it has
LPANo.736/2013 Page 83 of 159 been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
43. In Krishna Swami v. Union of India [(1992) 4 SCC 605 : AIR 1993 SC 1407] this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out from the record. The Court further observed: (SCC p. 637, para 47) “47. … Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article
21.”
44. This Court while deciding the issue in Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [(2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904] , placing reliance on its various earlier judgments held as under: (SCC pp. 345-46, para 27)
“27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice
LPANo.736/2013 Page 84 of 159 delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice.
„3. … The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.‟ [Ed.: As observed in State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573, p. 576, para
3.]
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.”
45. In Institute of Chartered Accountants of India v. L.K. Ratna [(1986) 4 SCC 537 : (1986) 1 ATC 714 : AIR 1987 SC 71] , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p. 558, para 30)
“30. … In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member.
LPANo.736/2013 Page 85 of 159 It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a „finding‟. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding.”
46. The emphasis on recording reason is that if the decision reveals the “inscrutable face of the sphinx”, it can by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out the reasons for the order made, in other words, a speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.”
(Emphasis supplied)
10. Whether the appellant can be denied the employment on the ground of pendency of an application under DV Act? 10.1. The respondents have not at all applied its mind to the question as to whether the appellant can be denied the employment on the ground of pendency of an application under DV Act. Upon query by this Court, Mr. M.G. Abhyankar, General Manager (HR) admitted that the copy of the application under Section 12 of the DV Act was not before the respondent either at the time of cancellation of the provisional appointment or at the time of rejection of the appeal. As such, the appointment has been
LPANo.736/2013 Page 86 of 159 cancelled and the appeal has been rejected without even caring to look into the copy of the application. What is more shocking is that on 26th September, 2012 when the appellant reported for joining she was told to furnish the copy of the application in pursuance to which she visited the office of the respondent on 28th September, 2012 to submit the copy but the same was refused and she was told that these documents are not required anymore meaning thereby that the decision was taken without considering the necessity of looking into the application. The appellant placed this fact in her e-mail dated 28th September, 2012, copy whereof is on record and not denied by the respondent.
10.2. The appellant has placed on record the copy of the application under Section 12 of the DV Act which arises out of a matrimonial discord between the appellant’s brother, Rohit Kaushik and his wife, Suman Sharma who were married on 11th May, 2011 and they separated on 10th July, 2011 due to temperamental incompatibility. On 11th April, 2012, Suman Sharma filed a complaint under Section 12 of the Domestic Violence Act before the Metropolitan Magistrate, Karkardooma Courts seeking protection order under Section 18; residence order under Section 19; maintenance order under Section 20 and compensation under Section 22. The complainant impleaded her husband, Rohit Kaushik and her seven relatives, namely, father-in- law, mother-in-law, sister-in-law and four uncles. The petitioner is the sister-in-law and the main allegation against her in para 2(i) is that six days before ‗Karvachoth’, the appellant and her mother
LPANo.736/2013 Page 87 of 159 dragged the complainant out of the bedroom and pushed her on the water bucket in the bathroom and the complainant got an electric shock whereupon the MCB tripped.
10.3. The complainant, Suman Sharma and her husband, Rohit Kaushik resolved all their disputes by a settlement dated 17 th December, 2012 whereupon the complaint was disposed of on 30th March, 2013. In terms of the said settlement, the parties dissolved their marriage by mutual consent vide decree of divorce and Rohit Kaushik paid a sum of Rs.13,50,000/- to the complainant. The copies of the first motion has been placed on record by the appellant whereas copies of the complete order sheets of the complaint have been placed on record by the respondent. The complainant as well as her husband Rohit Kaushik have deposed on oath before the learned District Judge that they married on 11 th May, 2011 and separated on 10th July, 2011 due to temperamental incompatibility. In the order dated 15 th January, 2013 passed by the learned Additional District Judge accepted the said statement. Para 4 of the order dated 15th January, 2013 is reproduced hereunder:
“4. As per the averments contained in the petition and material available on record, it is apparent that the marriage between the petitioners was solemnized on 11/05/2011 according to Hindu rites and ceremonies at Delhi. No child was born out of the said wedlock. The petitioners have been living separately since 10/07/2011 due to temperamental incompatibility. All the efforts made by the parties to sort out their differences and reconciliation failed.”
LPANo.736/2013 Page 88 of 159 10.4. The allegation of the complainant against the appellant on the face of it appears to be false as the complainant had separated from her husband on 11th July, 2011 and therefore, the parties were not staying together during ‗Karavachoth’ which fell near Diwali in October/November, 2011. This appears to be one of the cases of matrimonial discord where the aggrieved wife has made complaint against the husband and all her family members and levelled all sorts of allegations.
10.5. Let us assume, that the appellant had disclosed the proceeding under Section 12 of DV Act in the Bio data form. Could the respondent cancel her appointment in that event? Answer is clearly ―No‖. The appellant cannot be denied employment as no criminal case was pending against her and proceedings under the DV Act do not adversely affect her character/antecedents and her suitability for the post. Even in respect of the criminal case, it is well settled that appointment can be denied only in cases in which the criminal case has such affect on the character and antecedents of the candidate that they are not suitable for the post.
10.6. On careful consideration of all the relevant documents placed on record by the parties, it is clear that the complaint under DV Act filed by the appellant’s sister-in-law – Suman Sharma against her husband and the relatives containing false averments is not a ‗material’ fact and does not in any manner effect her suitability to the post in question. However, the concerned
LPANo.736/2013 Page 89 of 159 authorities neither considered the complaint and the other documents. There was no application of mind at any stage. The records placed on record do not show any such consideration.
10.7. In matrimonial disputes, the tendency of the wife is to implicate all the family members of the husband including the married brothers and sisters who are living separately from the husband.
10.8. In Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476, the Supreme Court observed that in matrimonial cases there has been tendency to involve as many members of the family of the opposite party as possible and that such tendency needs to be curbed.
10.9. In Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741, allegations of torture and harassment were made against the appellants, the sister-in-law and brother-in-law. The Supreme Court held that merely general allegations of mental and physical torture were made without mentioning any such specific incident and thereby quashed the proceedings against the appellants. The Court further observed that in cases of matrimonial disputes, the Courts are expected to be cautious while considering whether the FIR discloses commission of an offence or there is over implication by involving the entire family of the accused (husband) to settle score. The Court referred to G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 and B.S. Joshi v. State of Haryana, (2003) 4
LPANo.736/2013 Page 90 of 159 SCC 675. The relevant portion of judgment in Geeta Mehrotra (supra) is reproduced hereunder:
“21. It would be relevant at this stage to take note of an apt observation of this Court recorded in G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693 : 2000 SCC (Cri) 733] wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: (SCC p. 698, para 12)
“12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their „young‟ days in chasing their „cases‟ in different courts.”
The view taken by the Judges in that matter was that the courts would not encourage such disputes.
xxx xxx xxx
25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the
LPANo.736/2013 Page 91 of 159 FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”
(Emphasis supplied)
10.10. In Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, the Supreme Court while discussing Section 498-A IPC observed that it is a matter of common experience that most of the complaints are filed in the heat of the moment over trivial issues without proper deliberations. The Court further observed that tendency of over implication of all the family members is reflected
LPANo.736/2013 Page 92 of 159 in a very large number of cases. The relevant portion of the judgment is reproduced hereunder:
“30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. xxx xxx xxx
32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.
xxx xxx xxx
34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. … xxx xxx xxx
36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of
LPANo.736/2013 Page 93 of 159 common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful.
37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.”
(Emphasis supplied)
11. Whether the respondents applied their mind on the relevant questions at the time of cancellation of the appointment dated 9th October, 2012?
11.1. The respondent has submitted the original record before this Court which have been examined. The record reveals that the attestation form dated 24th September, 2012 was examined by the Manager (HR) on 26th September, 2012 and she prepared a note in which she pointed out that the appellant has not disclosed the
LPANo.736/2013 Page 94 of 159 proceedings under the DV Act in the bio-data form and she sought the advice of the GM (HR) as well as PSHQS as to whether the offer of appointment was valid and her joining be carried out. The matter was thereafter examined by the Senior Manager (HR) who observed in his note dated 28th September, 2012 that “though the proceedings under the DV Act are quasi-civil in nature but they are conducted as criminal cases and the appellant has suppressed the material fact pertaining to the criminal case in which she was added as one of the accused and therefore he proposed to regret the joining to the appellant.” However no reasons have been given as to how the proceeding under Section 12 of the DV Act was a criminal case. The note of the Senior Manager (HR) was approved by the Executive (Law), AGM (HR), GM (HR), GM (HR-Law), GM (HR-SAP & Admin.), ED (HR & CC) and Director (HR). The Executive (Law) also noted that the pendency of the case has been viewed as a material fact in the proposal and the candidature needs to be rejected as per Clause 20 of the terms and conditions and the offer of appointment be withdrawn/cancelled.
11.2. The record produced by the respondents does not show any deliberations made by the officers of the respondent as to what is the nature of proceedings under DV Act i.e. whether civil or criminal; and whether the proceedings under the DV Act would affect the character and suitability of the appellant to the required post. It appears that the officers had only the copy of the notice received by the appellant which was attached to the attestation
LPANo.736/2013 Page 95 of 159 form. The officers did not even consider it proper to call for the copy of the application to find out the nature of the proceedings against the appellant. The officers took the decision only on the basis of the observations made by the Senior Manager (HR) in his note dated 28th September, 2012 that though the proceedings are quasi-civil in nature but the proceedings are conducted as criminal cases and therefore, the appellant is involved in a criminal case. This observation by itself is contrary to the well settled law and no officer cared to look into it. The Executive (Law) as well as the GM (HR-Law) who are expected to know the law did not care to look into the nature of the proceedings under DV Act.
11.3. It appears that none of the officers were aware of the nature of proceedings under DV Act and they also did not take care to either look into the law themselves or seek legal opinion in the matter. As such, the whole proceedings before taking the decision of cancellation of the appointment have been conducted carelessly without looking into the law and the observations of the Senior Manager (HR) that the appellant was involved in criminal case is based on surmises and conjectures. The decision making process of the respondent is therefore, clearly deficient. The respondents were expected to first take a correct view of the applicable law for which they had to either look into the law themselves or if in doubt, they could have taken a legal opinion. However, the officers neither knew the law nor cared to look into the law nor thought it proper to seek a legal opinion. A wrong view of the law
LPANo.736/2013 Page 96 of 159 was taken and then applied to the case which was bound to lead to a wrong decision.
11.4. The respondents have relied upon Tata Cellular v. Union of India, (1994) 6 SCC 651. In Rashmi Metaliks Limited and Another v. Kolkata Metropolitan Development Authority and Others, (2013) 10 SCC 95 the Supreme Court summarized the grounds upon which an administrative action is subject to judicial review as under:
“9.Tata Cellular [(1994) 6 SCC 651] states thus: (SCC pp. 677-78, para 77)
“77. The duty of the court is to confine itself to the question of legality. Its concern should be: (1) Whether a decision-making authority exceeded its powers?
(2) committed an error of law,
(3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached or,
(5) abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury [Associated Provincial Picture Houses Ltd. v.Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] unreasonableness.
LPANo.736/2013 Page 97 of 159 (iii) Procedural impropriety…”
11.5. Applying the above principles to the present case, we hold the order of cancellation of the present appeal of the appellant to be illegal, irrational as well as suffering from procedural impropriety.
12. Whether the CMD applied his mind on the grounds raised by the appellant in her appeal?
12.1. On 15th October, 2012, the appellant preferred a departmental appeal against the order of cancellation of appointment dated 9th October, 2012 before the Chairman and Managing Director of BHEL on various grounds inter alia that the appellant was not involved in any criminal case and therefore, there is no concealment of any material fact in the bio-data form dated 18th June, 2012; the proceedings under the DV Act is the result of matrimonial discord between the appellant’s brother and his wife which is not a criminal case; there was no intentional/deliberate concealment of any material fact as the appellant voluntarily disclosed the information relating to the complaint under the DV Act in the attestation form dated 24th September, 2012; the appellant bonafidely believed that no criminal case was pending against her; and in Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC 644, the Supreme Court condoned the minor indiscretions and granted relief to the candidate who had concealed the involvement in a FIR whereas in the present case in the present case, no FIR had been registered against the appellant.
LPANo.736/2013 Page 98 of 159 12.2. The appeal dated 15th October, 2012 marked by Director (HR) to Executive Director (HR & CC) who marked it to General Manager (HR & Law) who marked it to Executive (Law). The Executive (Law) prepared a note dated 9th November, 2012 that the recruitment section may consider the representation of the appellant and in particular whether the pendency of a case under Section 12 of the DV Act was a material fact. The relevant portion of the comments of the Executive (Law) dated 9 th November, 2012 are reproduced hereunder:
“3. In the light of the aforesaid judgment the withdrawal of candidature of Miss Nidhi Kaushik seems to be sustainable. Recruitment Section may also see/ consider the representation of Miss Nidhi Kaushik and in particular reconfirm whether pendency of case under Section 12 of the Act is a material fact.”
12.3. The detailed note dated 9th November, 2012 of the Executive (Law) of BHEL was put up before AGM (HR – RMX) who observed that the candidate herself considered the Court notice of the case under DV Act as a ‗material’ fact and chose to suppress it at the interview stage and declare it at the next stage for reporting of the joining. It was further observed that the company had earlier considered the issue and had concluded that the material suppressed was a material fact and there is no provision for review by the recruitment section. The relevant portion of the note date 14th November, 2012 of the AGM (HR – RMX) is reproduced hereunder:
LPANo.736/2013 Page 99 of 159 “From the above, it may be seen that the candidate herself considered the Court Notice a „material‟fact and chose to suppress it at interview stage and declare it at the next stage of reporting for joining. She also declared in the bio-data form that the statements „in this form are true and complete‟ when she had actually suppressed the information that a Court Notice had been issued to her. The Company had earlier considered the issue and had concluded that the information suppressed was a material fact, since no exceptions to the type of criminal case/law suit has been specified. As regards, review by Recruitment section in view of the candidate‟s assurance of the best efficiency and diligence towards duties (Ref: Para 18), we wish to state that there are no provisions under which this may be done.” (Emphasis supplied)
12.4. The note dated 14th November, 2012 of AGM (HR – RMX) was approved by the ED (HR & CC) and Director (HR) on 23 rd November, 2012 whereupon the letter dated 5th December, 2012 was issued to the appellant.
12.5. The record of BHEL submitted before this Court reveals that:
12.5.1. The appellant’s appeal to the CMD was never put up before the CMD.
12.5.2. The appeal was considered by the same officers who had earlier taken the decision to cancel the offer of appointment.
12.5.3. There is no authorization by the CMD in favour of the officers who considered the appeal.
LPANo.736/2013 Page 100 of 159 12.5.4. The record further reveals that none of the grounds raised by the appellant in the appeal were considered by any of the officers before whom the file was put up, namely that the proceedings under the DV Act are civil in nature; the appellant was not involved in any criminal case; she bonafidely believed that no criminal case was pending against her and in any case there was no intentional/deliberate concealment of any material fact as the appellant voluntarily disclosed the information relating to the complaint under Domestic Violence Act in the attestation form dated 24th September, 2012.
12.5.5. Although the Executive (Law) in his comments dated 9th November, 2012 specifically called upon the HR (Dept.) to consider whether the pendency of the case under Section 12 of the DV Act was a material fact, the HR (Dept.) clearly refused to consider it.
12.5.6. The observation that the candidate herself considered the concealment to be material is false as the appellant never made such admission.
12.5.7. As such, it is a clear case of non-application of mind by the respondent on the appeal filed by the appellant.
12.6. The decision making process of the respondent at the stage of cancellation of the offer of appointment as well as at the stage of appeal suffer from illegality, irrationality and procedural impropriety and therefore, this case warrants judicial review.
LPANo.736/2013 Page 101 of 159 12.7. It is also noted that the complaint under Section 12 of the Domestic Violence Act was not before the authorities either at the stage of cancellation or at the stage of deciding the appeal.
12.8. The respondents’ submission that the appeal was rejected after full deliberations is false as the officers refused to consider the appeal on merits.
12.9. The observations made by the Supreme Court in Commissioner of Police v. Dhaval Singh, (1999) 1 SCC 246 squarely apply to the present case. In Commissioner of Police v. Dhaval Singh, (1999) 1 SCC 246, the respondent while seeking public appointment was alleged of concealment of material fact relating to pendency of criminal case against him. However, before any order of appointment could be made, respondent wrote to the concerned officer and disclosed the material fact. The Supreme Court held that since the respondent voluntarily disclosed the pending criminal case, the order of cancellation of candidature despite such disclosure is without proper application of mind. The relevant observations of the Court are reproduced hereunder:-
“5. That there was an omission on the part of the respondent to give information against the relevant column in the Application Form about the pendency of the criminal case, is not in dispute. The respondent, however, voluntarily conveyed it on 15-11-1995 to the appellant that he had inadvertently failed to mention in the appropriate column regarding the pendency of the criminal case against him and that his letter may be treated as “information”. Despite receipt of this communication, the candidature of the respondent was
LPANo.736/2013 Page 102 of 159 cancelled. A perusal of the order of the Deputy Commissioner of Police cancelling the candidature on 20-11-1995 shows that the information conveyed by the respondent on 15-11-1995 was not taken note of. It was obligatory on the part of the appellant to have considered that application and apply its mind to the stand of the respondent that he had made an inadvertent mistake before passing the order. That, however, was not done. It is not as if information was given by the respondent regarding the inadvertent mistake committed by him after he had been acquitted by the trial court — it was much before that. It is also obvious that the information was conveyed voluntarily. In vain, have we searched through the order of the Deputy Commissioner of Police and the other record for any observation relating to the information conveyed by the respondent on 15-11-1995 and whether that application could not be treated as curing the defect which had occurred in the Form. We are not told as to how that communication was disposed of either. Did the competent authority ever have a look at it, before passing the order of cancellation of candidature? The cancellation of the candidature under the circumstances was without any proper application of mind and without taking into consideration all relevant material. The Tribunal, therefore, rightly set it aside. We uphold the order of the Tribunal, though for slightly different reasons, as mentioned above.”
(Emphasis supplied)
13. Consequences of refusing to follow well settled law
13.1. If an authority does not follow the well settled law, it shall create confusion in the administration of justice and undermine the law laid down by the constitutional Courts. 13.2. The respondents have dared not to follow the well settled law relating to the nature of proceedings under Section 12 of the
LPANo.736/2013 Page 103 of 159 DV Act. Reference in this regard may be made to the provisions of the DV Act and the catena of the judgments in which it is clearly held that the proceedings under Section 12 of the DV Act are civil in nature. The respondents did not controvert any of the provisions or the judgments and termed them as irrelevant meaning thereby that the binding law is irrelevant for them. The consequence of an authority not following the well settled law amounts to contempt of Court. Reference in this regard may be made to the judgments given below.
13.3. In East India Commercial Co. Ltd. v. Collector of Customs, Calcutta, AIR 1962 SC 1893, Subba Rao, J. speaking for the majority observed reads as under:
“This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared under Art. 215, every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Under Art. 226, it has plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority including inappropriate cases any Govt. within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High
LPANo.736/2013 Page 104 of 159 Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest Court in the State is binding on authorities, or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings, contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.” (Emphasis supplied)
13.4. The above legal position was reiterated in Makhan Lal v. State of Jammu and Kashmir, (1971) 1 SCC 749, in which Grover, J. observed (at page 2209)–
“The judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in the implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this Court was binding on the respondent-State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not in the previous petition.
(Emphasis supplied)
LPANo.736/2013 Page 105 of 159 13.5. In Baradakanta Mishra Ex-Commissioner of Endowments v. Bhimsen Dixit, (1973) 1 SCC 446, the appellant therein, a member of Judicial Service of State of Orissa refused to follow the decision of the High Court. The High Court issued a notice of contempt to the appellant and thereafter held him guilty of contempt which was challenged before the Supreme Court. The Supreme Court held as under:-
“15. The conduct of the appellant in not following previous decisions of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court‟s disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion in the administration of law”
(Emphasis supplied)
LPANo.736/2013 Page 106 of 159 13.6. In Re: M.P. Dwivedi, (1996) 4 SCC 152, the Supreme Court held as under:-
“22. … It appears that the contemner was completely insensitive about the serious violations of the human rights of the undertrial prisoners in the matter of their handcuffing inasmuch as when the prisoners were produced before him in court in handcuffs, he did not think it necessary to take any action for the removal of handcuffs or against the escort party for bringing them to the court in handcuffs and taking them away in handcuffs without his authorisation. This is a serious lapse on the part of the contemner in the discharge of his duties as a judicial officer who is expected to ensure that the basic human rights of the citizens are not violated. Keeping in view that the contemner is a young judicial officer, we refrain from imposing punishment on him. We, however, record our strong disapproval of his conduct and direct that a note of this disapproval by this Court shall be kept in the personal file of the contemner. We also feel that judicial officers should be made aware from time to time of the law laid down by this Court and the High Court, more especially in connection with protection of basic human rights of the people and, for that purpose, short refresher courses may be conducted at regular intervals so that judicial officers are made aware about the developments in the law in the field.”
(Emphasis supplied)
13.7. In T.N. Godavarman Thirumulpad v. Ashok Khot, (2006) 5 SCC 1, the Supreme Court held that disobedience of the orders of the Court strike at the very root of rule of law on which the judicial system rests and observed as under:-
“5. Disobedience of this Court’s order strikes at the very root of the rule of law on which the judicial
LPANo.736/2013 Page 107 of 159 system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilised life in the society. That is why it is imperative and invariable that courts’ orders are to be followed and complied with.” (Emphasis supplied)
13.8. In Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC 273, the Supreme Court held as under:-
“26. … Disobedience of orders of the court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs…
xxx xxx xxx
29. Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt. Inordinate delay in complying with the orders of the courts has also received judicial criticism. … Inaction or even dormant behaviour by the officers in the highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. … Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be a
LPANo.736/2013 Page 108 of 159 sufficient ground of defence in a contempt proceeding. Obviously, the purpose is to ensure compliance with the orders of the court at the earliest and within stipulated period.”
(Emphasis supplied)
13.9. In Priya Gupta v. Addl. Secy. Ministry of Health and Family Welfare and others, (2013) 11 SCC 404, the Supreme Court held as under:-
“12. The government departments are no exception to the consequences of wilful disobedience of the orders of the Court. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No court or tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. (Ref. East
LPANo.736/2013 Page 109 of 159 India Commercial Co. Ltd. v. Collector of Customs [AIR 1962 SC 1893] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] .) (SCC p. 57, paras 90-91)
13. These very principles have to be strictly adhered to by the executive and instrumentalities of the State. It is expected that none of these institutions should fall out of line with the requirements of the standard of discipline in order to maintain the dignity of institution and ensure proper administration of justice.
xxx xxx xxx
19. It is true that Section 12 of the Act contemplates disobedience of the orders of the court to be wilful and further that such violation has to be of a specific order or direction of the court. To contend that there cannot be an initiation of contempt proceedings where directions are of a general nature as it would not only be impracticable, but even impossible to regulate such orders of the court, is an argument which does not impress the court. As already noticed, the Constitution has placed upon the judiciary, the responsibility to interpret the law and ensure proper administration of justice. In carrying out these constitutional functions, the courts have to ensure that dignity of the court, process of court and respect for administration of justice is maintained. Violations which are likely to impinge upon the faith of the public in administration of justice and the court system must be punished, to prevent repetition of such behaviour and the adverse impact on public faith. With the development of law, the courts have issued directions and even spelt out in their judgments, certain guidelines, which are to be operative till proper legislations are enacted. The directions of the court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by all concerned. The law declared by this Court whether in the form of a substantive judgment inter se a party or are directions of a general nature
LPANo.736/2013 Page 110 of 159 which are intended to achieve the constitutional goals of equality and equal opportunity must be adhered to and there cannot be an artificial distinction drawn in between such class of cases. Whichever class they may belong to, a contemnor cannot build an argument to the effect that the disobedience is of a general direction and not of a specific order issued inter se parties. Such distinction, if permitted, shall be opposed to the basic rule of law.
xxx xxx xxx
23. … The essence of contempt jurisprudence is to ensure obedience of orders of the Court and, thus, to maintain the rule of law. History tells us how a State is protected by its courts and an independent judiciary is the cardinal pillar of the progress of a stable Government. If over-enthusiastic executive attempts to belittle the importance of the court and its judgments and orders, and also lowers down its prestige and confidence before the people, then greater is the necessity for taking recourse to such power in the interest and safety of the public at large. The power to punish for contempt is inherent in the very nature and purpose of the court of justice. In our country, such power is codified…”
(Emphasis supplied)
13.10. In Hasmukhlal C. Shah v. State of Gujarat, (1978) 19 Guj LR 378, a Division Bench of Gujarat High Court after examining several decisions on the point, observed:
“11…in Government which is ruled by laws there must be complete awareness to carry out faithfully and honestly lawful orders passed by a Court of law after impartial adjudication. Then only will private individuals, organizations and institutions learn to respect the decisions of Court. In absence of such attitude on the part of all concerned, chaotic conditions might arise and the function assigned to the Courts of
LPANo.736/2013 Page 111 of 159 law under the Constitution might be rendered a futile exercise…”
13.11. In State of Gujarat v. Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya, 1982 CriLJ 2255, the Division Bench of the Gujarat High Court summarized the principles as under:-
“11. From the above four decisions, the following propositions emerge:
(1) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State;
(2) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;
(3) If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in section 2(b) of the Contempt of Courts Act, 1971.”
(Emphasis supplied)
13.12. In C.T. Subbarayappa v. University of Agricultural Sciences, Bangalore, (1998) 5 Kant LJ 263, the Karnataka High Court held as under:
“8. It was expected that after declaration of the law by this Court regarding powers of the Board of Regents vis-
LPANo.736/2013 Page 112 of 159 a-vis the recommendations of the Selection Committee based on merits, the Board will function in accordance with the Constitutional mandates and the requirements of law, but it seems the members of the Board had hardly any regard for the rule of law and the decisions rendered by this Court. In the case of Baradakanta
Mishra v. Bhimsen Dixit [(1973) 1 SCC 446 : AIR 1972 SC 2466.] , it has been held that such an action can very well be held as coming within the principles underlying the law of contempt.
9. In the above view of the matter, though I am not proposing to direct initiation of contempt proceedings for the present, it is high time that the University authorities be warned that if they, in future, are found to be acting in violation of the law declared by the Courts, then they may be subjected to appropriate contempt proceedings. At the same time it is necessary to direct the Registrar of the University to always acquaint the members of the Board of Regents and other University authorities about the law declared by this Court and the Supreme Court for its strict adherence and compliance. It should be taken to be the duty of the Registrar to place before the members of the Board of Regents all the relevant judgments of the Court as and when meetings are held dealing with the relevant subjects. In conclusion, for the reasons stated above the appointment of the second respondent as Assistant Professor as contained in order dated 18-12- 1995 (Annexure-E) is quashed and the Board of Regents is directed to reconsider the question of appointment to the said post out of the three names recommended by the Selection Committee in accordance with the Statute 30 and law declared by this Court. This should be done within six weeks from today. Till that time the second respondent is permitted to continue on the post, which will be subject to the final decision of the Board of Regents.
(Emphasis supplied)
LPANo.736/2013 Page 113 of 159 13.13. In Parmal Singh v. Union of India, WP(C) No.7231/2011 decided on 29th September, 2011, the Division Bench of this Court taking note of the judgment of the Supreme Court in Baradakanta Mishra (supra) directed the authorities to apply the principles of law to other similarly situated persons. This Court further imposed punishment of censure against the officer in default with directions to keep the copy of the judgment in his service book to be considered as and when his case was considered for promotion by the DPC. The Division Bench held as under:- “8. If a general issue of law affecting large number of persons is decided by a Court and a specific reference is made that the department should consider extending the principle of law declared across the board to all so that others are not forced in litigation, it is expected that the bureaucrat applies himself properly and does not foist litigation on the others.
9. The note extracted herein above says that the Ministry of Finance has agreed to extend the implementation of the Court judgment to only those applicants who approach the Court and not the others.
10. The decision creates an artificial distinction not recognized by law for the reason it would be arbitrary to say that law means
A for those who go to the Court, and it means B for those who do not.
11. While disposing of the writ petition and directing the respondents to treat the mandamus issued vide order dated 9.10.2009 passed in WP (C) No. 12258/2009 as the mandamus issued in the instant writ petition, we censure Sh. Pritam Lal, Under Secretary, (Pr-V), Government of India, Ministry of Home Affairs and direct that a copy of this decision would be placed in his service book and as and when his case is placed
LPANo.736/2013 Page 114 of 159 before a Departmental Promotion Committee, it be highlighted that this Court has censured Sh. Pritam Lal, Under Secretary (Pr-V).”
(Emphasis supplied)
13.14. In EX-CT Nardev v. UOI, (2011) 180 DLT 328 (DB), the Division Bench of this Court, in which one of us (J.R. Midha, J.) was a member, applied the aforesaid principles of law to a service matter and held as under:
“15. The instant case manifests such conduct of the respondents. The present adjudication has been necessitated only because the respondents have failed to abide with the dicta laid down by this Court in the judgment passed as back as in 2002 and subsequently.
16. It, therefore, needs no elaboration that failure to abide by the principles laid down by the Supreme Court as well as by this Court in the aforenoticed binding judicial precedents would render the authorities liable for proceedings under the Contempt of Court Act. We have brought this noteworthy aspect to the notice of the respondents and are refraining from taking further action on this occasion.
17. There is yet another aspect to this matter. The failure of the executive to abide with the well settled legal principles generates unwarranted and frivolous litigation. This very issue has also been considered inHead of Deptt. Air Force Station v. R.K. Giri through LRs. (supra).
18. For the reasons and the ratio of the aforenoticed judicial precedents, we are of the view that the present writ petition was wholly unnecessary and the respondents should have voluntarily taken the initiative to grant such relief to the petitioners to which they were entitled in view of the rule position as well as the principles of law laid down by this Court which had been affirmed by the Division Bench as well as by the
LPANo.736/2013 Page 115 of 159 Supreme Court. Valuable judicial time has been wasted. The petitioners, positioned as they are, can ill afford this kind of litigation. The respondents are therefore liable to pay costs of this litigation. However, it is clear that in case the judicial pronouncements are not complied with and action taken at the earliest by the respondents, we would be compelled to take more serious view in the matter.
(Emphasis supplied)
13.15. In Head of Department, Air Force Station Amla v. Ram Kumar Gir, III (2010) ACC 279, the Air Force raised a plea of sovereign immunity in a case of motor accident compensation arising out of a road accident. This Court noted that the law was well settled by the judgment of the Supreme Court that the doctrine of sovereign immunity has no application in respect of the compensation cases under Motor Vehicles Act. Taking note of Baradakanta Mishra (supra), this Court issued a notice to the Attorney General to look into the matter and consider the implication of the government refusing to follow the well-settled law. Relevant portion of the said order is reproduced hereunder:- ―34. If the Executive does not follow the certain well settled law laid down by the Hon’ble Supreme Court, it shall create confusion in the administration of justice and undermine the law laid down by the Apex Court and shall impair the constitutional authority of the Apex Court. The disobedience of the law laid down by the Court shall also amount to contempt of Court. xxx xxx xxx
36. Before passing any further order in this matter, this Court would like the learned Attorney General to personally look into the matter and consider the implication of Government raising the plea of
LPANo.736/2013 Page 116 of 159 sovereign immunity in claims under the Motor Vehicles Act, 1988 despite clear and well settled law by the Hon’ble Supreme Court. The learned Attorney General shall ascertain the number of pending motor accident claim cases in various Courts/Tribunals where the plea of sovereign immunity has been raised and shall also consider the possibility of issuance of a circular/Government of India directive in respect of all pending motor accident claim cases as well as cases that may arise in future.”
(Emphasis supplied)
In pursuance to the above notice, the Law Ministry issued a memorandum to the effect that sovereign immunity should not be pleaded by the Government in any case for compensation arising out of motor vehicle accident involving the government vehicles on government duty. The relevant portion of the order dated 28 th May, 2010 passed in the above matter is reproduced hereunder:- “1. The learned counsel for the appellant submits that the Air Headquarters, Department of JAG (Air) has issued as circular dated 12th May, 2010 to all its departments directing them not to raise the plea of sovereign immunity in any case of motor vehicle accident. It has been further directed that if any such case has been filed, the same may be withdrawn. Copy of the said circular has been placed on record.
2. The learned counsel for the appellant further submits that the Solicitor-General of India has advised the Law Ministry to issue a memorandum to the effect that the sovereign immunity should not be pleaded by the Government in cases for compensation arising out of motor vehicle accidents involving the use of Government vehicles on Government duty. The learned counsel for appellant submits that the memorandum is expected to be issued shortly.”
LPANo.736/2013 Page 117 of 159
14. False and misleading statements by the respondents The appellant impleaded Chairman and Managing Director of BHEL as respondent no.2, Director (HR) as respondent no.3 and General Manager (HR) as respondent no.4. Respondents no.2 to 4 filed a reply dated 6th April, 2013 and additional reply dated 23rd August, 2013 supported by an affidavit of Shri B. Shankar, Executive Director (HR & CC) before the Writ Court. Respondent nos.2 to 4 also filed a synopsis dated 21 st November, 2013 supported by an affidavit of Shri B. Shankar, Executive Director (HR & CC) and an additional synopsis dated 22 nd February, 2014. The respondents have made the following false and misleading statements in the replies dated 6 th April, 2013 and 23rd August, 2013 as well as the synopsis dated 21 st November, 2013 and 22nd February, 2014 which are as under:-
14.1. The appellant is involved in a criminal case in under DV Act in which she is accused of having committed offence of attempt to murder which is punishable under Section 307 with imprisonment for a period of 10 years. The appellant was accused No.4 in the said criminal case. The appellant has admitted that a criminal case is pending against her in the attestation form dated 24th September, 2012.
All the aforesaid statements are absolutely false and incorrect. As discussed above, domestic violence is not an offence under the DV Act. Secondly, the proceedings under Sections 12 and 18 to 23 of the DV Act are purely civil proceedings and the learned Magistrate did not and could not have taken cognizance of Section 307 IPC and therefore, no criminal case was pending
LPANo.736/2013 Page 118 of 159 against the appellant. Thirdly, the appellant was respondent no.4 and not accused no.4 as deposed by respondents in their affidavit. Fourthly, the appellant never admitted the pendency of a criminal case in the attestation form.
14.2. In para 2.11 of the reply dated 6th April, 2013, the respondents stated that the appellant‟s appeal against the respondent‟s cancellation letter dated 9th October, 2012 was considered and dismissed by Chairman and Managing Director vide letter dated 5th December, 2012.
This statement is absolutely false and incorrect as the appellant’s appeal to the Chairman and Managing Director was never considered by the Chairman and Managing Director of BHEL. The original records produced by the respondents before this Court reveal that the appellant’s appeal was never put up before the Chairman and Managing Director. The records also do not reveal any authority by the Chairman and Managing Director to the officers of BHEL to consider the appeal which was addressed to the Chairman and Managing Director. Mr. M.G. Abhyankar, General Manager (HR) admitted before this Court on 19 th May, 2014 that the appellant’s appeal was not considered by the Chairman and Managing Director. The appellant’s appeal was considered by the same officers who had earlier taken the decision to cancel and appellant’s offer of appointment. The respondents have also admitted this fact in para 8 of the synopsis dated 22 nd April, 2014 where it is stated that the appeal was considered by eight senior officers of BHEL and rejected by the Director (HR).
LPANo.736/2013 Page 119 of 159 This clearly shows that the statement made in para 2.11 of the reply is false.
The original records produced by the respondents further reveal that the appellant’s appeal was not considered on merits. Although the Executive (Law) had observed in his note dated 9th November, 2012 that the HR Department may consider whether pendency of application under Section 12 of the DV Act is a ―material fact‖, AGM (HR-RMX) declined to consider this important aspect on the ground that the appellant herself considered the Court notice under DV Act to be material and therefore, it was concluded that the notice under DV Act was a ―material fact‖. We do not find any admission of the appellant in this regard and the observation clearly appears to be perverse. The AGM (HR-RMX) further observed that there was no provision for review by the recruitment section and therefore, declined to consider any of the grounds raised by the appellant. It is thus clear from the record that the respondents rejected the appeal of the appellant without considering it on merits and therefore the statement made before this Court the appellant’s appeal was considered and rejected after due deliberation is absolutely false. This Court would not have known the truth if the original records would not have been called and perused.
14.3. Concealment of material facts.
The respondents are also guilty of concealment of material fact from this Court that the appellant’s appeal was not put up before the Chairman and Managing Director; there was no
LPANo.736/2013 Page 120 of 159 authorization by the Chairman and Managing Director to the officers to consider the appeal and the appeal was considered by the same officers who had initially cancelled the appellant’s offer of appointment and further that the appeal was not even considered on merits and none of the grounds raised by the appellants were even looked into.
14.4. The respondents misled this Court.
The respondents attempted to mislead this Court by raising a frivolous defence with respect to the nature of proceedings under Section 12 of the DV Act and the catena of judgments referred to and relied upon by the appellant. The law with respect to the nature of proceedings under Section 12 of the DV Act is clear and unambiguous from the relevant provisions as well as the catena of judgments of the Supreme Court and various High Courts including this Court that the proceedings are civil in nature; domestic violence is per se not an offence; the Civil Court, Family Court and Criminal Court have concurrent jurisdiction to entertain and try the application under Section 12; the Court can formulate its own procedure to conduct the proceedings under Section 12 and the DV Act is not in derogation with other laws and that the appellant had to invoke the offences under IPC by a separate action. The respondents however, did not controvert or respond to any of the provisions or the judgments referred to hereinabove and still took a stand that the case under Section 12 of the Domestic Violence Act is a criminal case and attempted to meet the settled position of law by calling it irrelevant. This is a clear attempt to
LPANo.736/2013 Page 121 of 159 mislead this Court. Anyway we are not misled and we hold that the law is well settled and submissions of the appellant with respect to the nature of proceedings under DV Act were relevant and the respondent’s plea of same being irrelevant was to mislead this Court.
14.5. The respondents submitted before this Court that the appellant is accused of a serious offence of domestic violence to attempt to kill her sister-in-law under Section 307 IPC. To make good this argument, the respondents were required to place the correct law before this Court as to what is the meaning of ‗criminal case’, ‗an offence’ and ‗accused of an offence’. However, the respondents failed in its duty and instead only reference was made to the meaning of the word ‗Criminal’ in Black Law Dictionary mentioned in para 7 of the synopsis dated 21st November, 2013. Since no reference was made by the respondent to the definition of ‗offence’ and ‗accused of offence’ and other relevant provisions of Cr.P.C., the appellant also did not make any submissions in reply. It appears that the respondents took a chance to test the legal knowledge of this Court. It took us some time to take out the relevant provisions of Cr.P.C., IPC, General Clauses Act and the relevant judgments mentioned above but we would like to place on record that so far as the respondents are concerned they have utterly failed in their duty to place the correct law before this Court.
14.6. The appellant’s offer of appointment was cancelled by the respondent vide letter dated 9th October, 2012 on the sole ground
LPANo.736/2013 Page 122 of 159 that the proceedings under Section 12 of the DV Act is a criminal case which has been concealed by the appellant. The stand taken by the respondents before the writ Court in its reply dated 6th April, 2013 and additional reply dated 23rd August, 2013 was also on the same lines that the appellant is accused of a serious offence of domestic violence of attempt to murder her sister-in-law which was suppressed by her. However, in the synopsis filed by the respondents before this Court, an additional ground was taken that even if the proceedings under Section 12 of the DV Act is not a criminal case, it would fall within the term ‗law suit’. First of all, no additional ground can be urged which was not there in the original order of cancellation of appointment. Secondly, the additional ground urged is contradictory and inconsistent to the first ground. Thirdly, no submissions were made by the learned counsel at the time of hearing as to what is the meaning of the term ‗law suit’ and how it would cover the proceedings under Section 12 of the DV Act. This is yet another attempt to mislead this Court. 14.7. The relevant portions of the replies dated 6 th April, 2013, additional reply dated 23rd August, 2013, synopsis dated 21st November, 2013 and 22nd February, 2014 are reproduced hereunder:-
14.7.1. Relevant extract of the reply dated 6th April, 2013 ―PRELIMINARY OBJECTIONS
1. …While appearing for interview she filed Bio- Data form on 18.6.2012, wherein she made a deliberate false declaration in response to the specific query No.12
LPANo.736/2013 Page 123 of 159 wherein she declared that she was not involved in any criminal case/law suit. … Later on petitioner herself admitted that the criminal case was pending against her, while signing the Attestation Form on 24.9.2012…
…
2. She did not disclose that she is accused No.4 in Criminal Case No.V-175/12 in which Summons dt.12.4.2012 (Annexure R-6) were issued to her by the Court of MM but she deliberately and falsely indicated in the Bio-data Form on 18.6.2012 that there is NO case pending against her. …. It appears that the case involved alleged serious offences of Domestic Violence of attempt to murder Smt. Suman Sharma,
complainant…
…
4. Moreso, the appeal filed by the petitioner to the Chairman & Managing Director of respondent Corporation has since been dismissed vide letter dt.5.12.2012…
PARAWISE REPLY:
1.1 …It is submitted that the petitioner has deliberately and intentionally concealed facts pertaining to criminal case pending against her, while filling up her BIODATA. … The petitioner therefore, suppressed the pendency of this criminal case against her in her Bio-data from dt. 18.6.2012 (Annexure R-5). … she did not disclose that she was arrayed as Accused No.4…
1.2 …On this date the petitioner was in knowledge of the fact that she was under Trial of a criminal offence against her…
1.3 … The Petitioner’s contention that on 18.6.2012 there was no criminal case nor law suit pending against her is patently wrong and contrary to the documents on record. In fact the Petitioner has made herself liable for the offence of perjury by making false statement on oath
LPANo.736/2013 Page 124 of 159 before this Hon’ble Court.
…
1.5 … in the present case the trial is still pending and the allegation is attempt to murder the complainant by her husband and relatives, including the Petitioner.
REPLY TO BRIEF FACTS:
2.2 …The Petitioner submitted the Bio-data Form but concealed the factum of pendency of criminal case against her.
2.6 to 2.10 …This Attestation Form revealed pendency of the criminal case against Petitioner but she is now feigning ignorance of pendency of criminal case…
2.11 In reply to Para 2.11 it is submitted that the Petitioner‟s appeal against the Respondent‟s cancellation letter dt.9.10.2012 was considered and dismissed by the Respondent No.2 vide letter dt.05.12.2012 (Annexure R-8).
PARAWSIE REPLY TO THE GROUNDS:
3.1 … It is submitted that the petitioner had deliberately and intentionally concealed the factum of criminal case pending against her under Domestic Violence Act. The petitioner was served vide Court Summons dt.12.4.2012 in the criminal case under Domestic Violence Act. The petitioner suppressed the pendency of the criminal case in her Bio-data form dt.18.6.2012…
…
3.6 …The petitioner herein is involved in criminal case where the Complainant had alleged in her complaint before Metropolitan Magistrate that there was attempt to kill the Complainant if demand of the dowry is not met…‖
(Emphasis supplied)
LPANo.736/2013 Page 125 of 159 14.7.2. Relevant extracts of additional reply dated 23rd August, 2013
―3. That the respondent, BHEL has ascertained particulars of the said Court case V-175/2012 and found that she was involved in a serious offence against her sister-in-law, Ms. Suman Sharma, who had filed complaint against her and others…‖
4. That the Petitioner in her Rejoinder has falsely reiterated that she was not engaged in any Criminal case or law suit pending against her and she did not make false allegation deliberately at the time of submission of the bio-data on 18.6.2012, which is found to be false and misleading. The definition of ‗Domestic Violence’ as contained in Section 3 of the Domestic Violence Act reads as under … Obviously the acts of „Domestic Violence‟ and „offences‟ punishable under the Criminal Law…”
(Emphasis supplied)
14.7.3. Relevant extracts of synopsis dated 21st November, 2013 of the respondents before this court
―Legal Submissions:
6. In her Appeal and submissions made by her Counsel in the Court she stressed that Domestic Violence was not in criminal Court. This plea is obviously irrelevant, as the Declaration made by her on 18.6.2012 (at Page 182) was that she was involved in ―any criminal case/law suit at any time‖. Further the query No.12(h)(i) in Attestation Form (at page 196) was generic and it asked whether ―Is any case pending against you in any Court of Law‖ to which reply was ‗Application pending in Domestic Violence Act’. Certainly the Court of Domestic Violence was a Court of Law. It is not necessary to decide whether it was a criminal court, as she had made declaration with respect to both ―criminal case/law suit‖ in Bio-data and also with respect to any case pending in Court of law in Attestation Form (Page 196). Without prejudice to the
LPANo.736/2013 Page 126 of 159 above it is pertinent to submit that the case was being tried by Metropolitan Magistrate and in the allegation of „Domestic Violence‟ was „criminal‟ as it is attempt to murder. …
7. Further under Section 32 of the Act the Court of „Domestic Violence‟ takes „cognizance‟ of Criminal Offence. The word „Criminal‟ is described by Blacks Law Dictionary to mean (i) ―having the character of crime, in the nature of a crime <criminal mischief> connected with the administration of penal justice <the criminal Courts>. In this case the allegation against the Appellant was attempt to Murder and the case of Appellant was being tried by a M.M. This case was settled later on in March, 2013 when the complainant got payment of Rs.13.5 lacs. However, till then the case was pending trial when the False Declaration was made on 18.6.2012 and even when provisional letter of appointment was cancelled/withdrawn by Respondent on 9.10.2012.
8. In this case it is not necessary to decide whether it was criminal case because she had made an omnibus declaration in her bio-data dt.18.6.2012 that no criminal case/law suit was pending, which have been conclusively proved to be false to her own knowledge, as she had received Court Summons dt.12.4.2012 and had attended the D.V. Court on 4.6.2012. This false declaration was made with criminal intent to conceal and to defraud BHEL so that was she could get appointment in Bharat Heavy Electricals Ltd. (BHEL), which is a ‗Maharatna’ Company of the Govt. of India, whose Management would not recruit any person whose integrity is doubtful and who has tainted antecedents. … …
10. Legally no public employment can be given to fraudulent persons, who have the audacity to make false declaration about any litigation against them. The technical defence that the case Domestic Violence (of attempt to murder) was not criminal case is neither
LPANo.736/2013 Page 127 of 159 tenable nor even relevant as the declaration related to any case in Court of law….‖
(Emphasis supplied)
14.7.4. Relevant extracts of synopsis dated 22nd February, 2014 of the respondents before this Court
―6. … She was 27 years of age residing in Delhi at the time of filing the Bio-data on 18.6.2012 wherein she made a false declaration that she was not involved at any time in any criminal case/law suit, which was found to be false, as she was summoned and had appeared in the Domestic Violence Court Karkardooma on 4.6.2012 in which she was accused of having committed alleged crime of „attempt to murder‟ her sister in law, which case was pending till 30.3.2013 i.e. even after cancellation of her letter of appointment letter on 9.10.2012 (page 204). This case was settled on 30.3.2013 (Page 303) after payment of Rs.13.5 lacs to complainant, as initial instalment. Hence it was not a ‗trivial’ offence/case, as claimed as by her.
7. The various judgments cited by the Appellant during oral arguments could be broadly summarised as under:-
a) Judgments whether the Domestic Violence Court (in which Appellant case was pending) is a Criminal or Civil Court?
…
c) Cases of Semi-Literate persons, coming from village back-ground or who were in the age group of 19- 20 years and pleaded bonafide mistake.
It is submitted that the judgments with regard to cases covered under (i) above are irrelevant, as this case is not dependent upon whether Domestic Violence Court is criminal or civil. It was a case of false declaration by Appellant which declaration was of generic nature i.e. in respect to both criminal and/or civil cases. Moreover, various Section of Domestic
LPANo.736/2013 Page 128 of 159 Violence Act are of criminal nature e.g. as Section 28 of the Domestic Violence Act says Criminal Procedure Code will apply and the DV Court is presided by Metropolitan Magistrate. Section 23 (grant of interim & exparte orders), Sections 31, 32 & 34 of the Act deal with criminal matters. But this issue is not relevant, since here Nidhi Kaushik had made false declaration saying that she was not involved in any criminal case or civil suit at any time. … As regards category (iii) type of cases it is submitted that the appellant was not involved in a „trivial‟ dispute. Certainly it is proved on record that the complainant had alleged the Appellant that she had tried to commit murder of her sister in law, which is a very serious offence and attracts imprisonment for a period of 10 years under Section 307 IPC.
…
8. …the cancellation of provisional appointment of Appellant was made after due deliberations and further her Appeal was considered by 8(eight) Sr. Officers of BHEL when her Appeal was rejected by Director (HR). The office notes have been filed alongwith Affidavit dt.20.1.2014. Hence there is full and exhaustive consideration …”
(Emphasis supplied)
15. Consequences of filing false affidavit 15.1. In Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757, the Supreme Court held as under:-
“38…The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the party concerned in perverting
LPANo.736/2013 Page 129 of 159 the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery of by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the rule of law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice.
(Emphasis supplied)
15.2. In Murray & Co. v. Ashok Kr. Newatia, (2000) 2 SCC 367, the Supreme Court held as under:-
“While it is true that the statement made in the affidavit has been introduced as and by way of a denial but the fact remains that such a statement has in fact been made in an affidavit before this Court. The litigant public ought to be extremely careful and cautious in the matter of making statements before courts of law. Whether, however, the respondent has obtained a definite advantage or not is wholly immaterial in the matter of
LPANo.736/2013 Page 130 of 159 commission of offence under the Act, though the same would be a relevant factor in the context of punishment to be imposed against a contemner…”
(Emphasis supplied)
16. Ethics in Litigation – Duty not to deceive or mislead 16.1. The most basic obligation of the litigant and his lawyer is not to deceive or mislead the Court. This responsibility extends to every function including the presentation and interpretation of facts, drafting of pleadings and documents, legal argument and other submissions to, or communications with the Court. The duty not to intentionally mislead or deceive is only the bare minimum required of the advocate and solicitor. As an officer of the Court, he is expected to advance the public interest in the fair administration of justice even if this would jeopardise his client’s interests. Hence, he is required to inform the Court of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues. In the same context, he is prohibited from advancing submissions, opinions or propositions which he knows to be contrary to the law. He is bound not to make any statements which are inaccurate, untrue and misleading. 16.2. In D.P. Chadha v. Triyugi Narain Mishra, (2001) 2 SCC 221, the Supreme Court held as under:-
“22. … A lawyer in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the
LPANo.736/2013 Page 131 of 159 place of righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning. However, a point of law well settled or admitting of no controversy must not be dragged into doubt solely with a view to confuse or mislead the Judge and thereby gaining an undue advantage to the client to which he may not be entitled. Such conduct of an advocate becomes worse when a view of the law canvassed by him is not only unsupportable in law but if accepted would damage the interest of the client and confer an illegitimate advantage on the opponent. In such a situation the wrong of the intention and impropriety of the conduct is more than apparent…”
(Emphasis supplied)
16.3. This Court is of the view that the respondents did not fairly state the facts but stated them in such a way as to mislead the Court as to true facts and thereby abused the process of law. The respondent did not disclose all the material facts fairly and truly and stated them in distorted manner and thereby misled the Court. The respondents have attempted to overreach and mislead this Court by false and untrue statements and withholding true information which would have a bearing in the matter. The respondent’s conduct to mislead the Court not only injured the appellant but also caused most mischievous consequence to the administration of justice i.e. namely abuse of the process of Court.
LPANo.736/2013 Page 132 of 159 The respondent has attempted to impede or undermine or obstruct the free flow of the holy stream of justice, which has caused serious damage to the institution. The law does not require the Court to sit back with folded hands and fail to take any action in the matter. We cannot, therefore, condone the deliberate attempt to mislead the Court.
17. Frivolous litigation
17.1. In Urban Improvement Trust, Bikaner v. Mohan Lal, 2009 (13) SCALE 671, the Supreme Court showed a serious concern that frivolous and unjust litigation by the Government and statutory authorities are on increase. The Supreme Court observed as under:- “4. It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.
5. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions
LPANo.736/2013 Page 133 of 159 to obstruct the path of justice. We may refer to some of the decisions in this behalf.
5.1) In Dilbagh Rai Jarry v. Union of India [1973 (3) SCC 554] where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court):
“The State, under our Constitution,
undertakes economic activities in a vast
and widening public sector and inevitably
gets involved in disputes with private
individuals. But it must be remembered
that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a
substantial defence and never to score a
technical point or overreach a weaker
party to avoid a just liability or secure an unfair advantage, simply because legal
devices provide such an opportunity. The
State is a virtuous litigant and looks with unconcern on immoral forensic successes
so that if on the merits the case is weak, government shows a willingness to settle
the dispute regardless of prestige and other lesser motivations which move private
parties to fight in court. The lay-out on
litigation costs and executive time by the State and its agencies is so staggering
these days because of the large amount of
litigation in which it is involved that a
positive and wholesome policy of cutting
back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just
terms, giving the legal mentors of
LPANo.736/2013 Page 134 of 159 government some initiative and authority
in this behalf. I am not indulging in any
judicial homily but only echoing the
dynamic national policy on State litigation evolved at a Conference of Law Ministers
of India way back in 1957.
5.2) In Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.Rs. [(1979) 4 SCC 176] held:
“2… It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the
purpose of defeating legitimate claims of
citizens and do what is fair and just to the citizens. Of course, if a government or a
public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the
court, but what we feel is that such a plea should not ordinarily be taken up by a
government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has
become unavailable…”
5.3) In a three Judge Bench judgment of Bhag Singh and Ors. v. Union Territory of Chandigarh through LAC, Chandigarh: [(1985) 3 SCC 737]:
“3…. The State Government must do what
is fair and just to the citizen and should not, as far as possible, except in cases
where tax or revenue is received or
recovered without protest or where the
State Government would otherwise be
irretrievably be prejudiced, take up a
technical plea to defeat the legitimate and just claim of the citizen.”
6. Unwarranted litigation by governments and statutory
LPANo.736/2013 Page 135 of 159 authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted
and fought up to the highest court of the
land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party
approach the Court and secures a decision. The reluctance to take decisions, or
tendency to challenge all orders against
them, is not the policy of the governments or statutory authorities, but is attributable to some officers who are responsible for
taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect
themselves against any future accusations
of wrong decision making, or worse, of
improper motives for any decision making.
Unless their insecurity and fear is
addressed, officers will continue to pass on the responsibility of decision making to
courts and Tribunals. The Central
Government is now attempting to deal with
this issue by formulating realistic and
practical norms for defending cases filed
against the government and for filing
appeals and revisions against adverse
decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such
an exercise. The State Governments and
the statutory authorities, who have more
litigations than the Central Government,
should also make genuine efforts to
LPANo.736/2013 Page 136 of 159 eliminate unnecessary litigation. Vexatious and unnecessary litigation have been
clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to
justice to bona fide and needy litigants.”
17.2. In the recent case of Subrata Roy Sahara v. Union of India, MANU/SC/0406/2014, J.S. Khehar, J. observed that the Indian judicial system is grossly afflicted with frivolous litigation and this abuse of the judicial process is not limited to any particular class of litigants and the State and its agencies litigate endlessly upto the highest Court, just because of the lack of responsibility, to take decisions.
150. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault?…
xxx xxx xxx
152. This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly upto the highest Court, just
LPANo.736/2013 Page 137 of 159 because of the lack of responsibility, to take decisions. So much so, that we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason. In private litigation as well, the concerned litigant would continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before. The effort is not to discourage a litigant, in whose perception, his cause is fair and legitimate. The effort is only to introduce consequences, if the litigant‟s perception was incorrect, and if his cause is found to be, not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant, no matter how irresponsible he is, suffers no consequences. Every litigant, therefore likes to take a chance, even when counsel‟s advice is otherwise.
153. Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to Court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and ill-considered claims, to somehow or the other, defeat the process of law. …
(Emphasis supplied)
18. Imposition of costs
18.1. In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the costs. The relevant paragraphs of the said judgment are reproduced hereunder:-
“43. …We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to
LPANo.736/2013 Page 138 of 159 ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
xxx xxx xxx
52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.
xxx xxx xxx
C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings… xxx xxx xxx
54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to the hilt for four
LPANo.736/2013 Page 139 of 159 decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation….” (Emphasis supplied)
18.2. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences. The Supreme Court held as under:- “82. This Court in a recent judgment in Ramrameshwari Devi and Ors. (supra) aptly observed at page 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court’s otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider
LPANo.736/2013 Page 140 of 159 ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.”
Summary of Principles of law
19. Nature of proceedings under DV Act
19.1. DV Act was enacted to provide a remedy in civil law for the protection of woman from being victims of the domestic violence as noted in the Statement of Object and Reasons. 19.2. The object of the DV Act appears to be that Section 498A IPC dealing with the cruelty to the women is not an appropriate remedy because with the arrest of the husband and his family members, leads to such acrimony that it becomes difficult for the parties to live together again. Secondly, there was no provision to protect the women from further cruelty and to protect her being outstayed from matrimonial home. DV Act empowers the Magistrate to pass a protection order and appoint a protection officer to protect the women from further violence. The Magistrate is also empowered to pass an injunction order to restrain the women from being thrown out from her matrimonial home. The Magistrate is also empowered to pass appropriate orders for maintenance and compensation to the women. In proceedings under Section 12 of the DV Act, the Magistrate is empowered to award the reliefs under Sections 8 to 23 of the Act. Since the proceedings under Section 12 of the DV Act are civil in nature, it does not aggravate the situation which happens with the arrest of the husband and his family members under Section 498A IPC. The breach of the protection order under Section 18 amounts to an
LPANo.736/2013 Page 141 of 159 offence under Section 31 of the DV Act. However, if there is no breach of the protection order under Section 18, the proceedings remain civil in nature.
19.3. The proceedings under Sections 12 and 18 to 23 of DV Act are purely civil in nature. The reliefs under Sections 18 to 22 of the DV Act can be sought in the Civil Court, Family Court or Criminal Court as they are civil in nature and have nothing to do with the conviction for any offence as provided in Section 26(1) of DV Act.
19.4. The Court dealing with proceedings under Sections 12, 18 to 23 can formulate its own procedure under Section 28(2) of the DV Act. Thus, any departure from the provisions of Code of Criminal Procedure does not vitiate the proceedings initiated under Section 12.
19.5. There is no reference to the expression ―offence‖, ―crime‖ or the like in DV Act except Sections 5, 31, 32 and 34 of the DV Act. Section 28 uses the word ―offence‖ only in respect of Section 31 and the word ―the proceedings‖ in respect of Sections 12 and 18 to 23 of the DV Act.
19.6. The opposite party in the proceedings under Section 12 of the DV Act is specifically named as respondent and not an accused. The respondent has been defined in Section 2(q) of the DV Act.
19.7. ―Domestic violence‖ defined in Section 3 of the DV Act is per se not an offence under the Act and no punishment has been provided for the same.
LPANo.736/2013 Page 142 of 159 19.8. The Act by itself does not make any act, omission or conduct constituting violence, punishable with any imprisonment, fine or other penalty. There can be no prosecution of a person under the provisions of this Act, for committing acts of domestic violence, as defined in Section 3 of the Act. No one can be punished under the Act merely because he subjects a woman to violence or harasses, harms or injures her or subjects her to any abuse whether physical, sexual, verbal, emotional or economic. No one can be punished under the provisions of the Act on account of his depriving a woman of her right to reside in the shared household. 19.9. Section 31 of the Act provides for punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the reach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.
19.10. The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of any offence under IPC because the proceedings under Section 12 of the D.V. Act are civil in nature
LPANo.736/2013 Page 143 of 159 triable by a Civil Court, Criminal Court or Family Court. However, in the event of breach of a protection order, a fresh criminal case has to be instituted against the accused (either by an FIR or by a criminal complaint before the Court) and in that criminal case, at the stage of framing the charge, the Court is empowered to frame a charge under IPC or any other law if the facts disclose the commission of such offence. This fresh case under Section 31 would be a criminal case as the respondent would be accused of an offence under Section 31 of the DV Act and it would be tried by the Magistrate. This is clear from the reading of Section 31(2) and (3) of D.V. Act.
19.11. Section 36 of the DV Act provides that the provisions of the Act are in addition to and not in derogation of any other law. This means that in addition to DV Act, various other provisions under the general laws as well as specific statutes can be invoked by the aggrieved person. Section 5(e) of the DV Act expressly provides that the Magistrate upon receipt the complaint of domestic violence, shall inform the aggrieved person of her right to file a complaint under Section 498A of the Indian Penal Code wherever relevant.
19.12. The relevant provisions of DV Act have been time and again interpreted by the Supreme Court and the High Courts and the consistent view has been taken that the proceedings under Section 12 of the DV Act are civil in nature. Reference may be made to Indra Sarma (supra), Varsha Kapoor (supra), Shambhu Prasad Singh (supra), Sabana (supra), Bipin Prataprai Bhatt (supra),
LPANo.736/2013 Page 144 of 159 Narendrakumar (supra), Naorem Shamungou Singh (supra) and Vijaya Baskar (supra).
20. “Criminal case” mentioned in the bio-data form
20.1. The term ―criminal case‖ used in the bio-data form means ―the proceedings in respect of an offence alleged to have been committed by the candidate pending before a criminal court‖ as used in Section 6(2)(f) of the Indian Passports Act, 1967. 20.2. The term ―offence‖ as defined in Section 2(n) Cr.P.C., Section 40 IPC and Section 3(38) of the General Clauses Act means an act or omission punishable by any law.
21. The validity of an order has to be judged by the reasons stated in the order itself and can‟t be supplemented by fresh reasons later on.
The validity of an order has to be judged by the reasons stated in the order itself and not by anything else, otherwise an order bad in the beginning, by the time it comes to the Court on account of a challenge, get validated by additional grounds later brought out. An affidavit can’t be relied upon to improve or supplement an order. Reference may be made to the judgments of the Supreme Court in Gordhandas Bhanji (supra), Mohinder Singh Gill (supra), Pavanendra Narayan Verma (supra), East Coast Railway (supra), Rashmi Metaliks Limited (supra), Dipak Babaria (supra) and Kerala High Court in Kunjumon Thankappan (supra).
LPANo.736/2013 Page 145 of 159
22. Recording of reasons
An administrative authority is required to record reasons as held by Supreme Court in Cyril Lasrado (supra), Kranti Associates (P) Ltd. (supra) and Ravi Yashwant Bhoir (supra).
23. Tendency of implicating all family members of the husband in matrimonial disputes.
In matrimonial disputes, the tendency of the wife is to implicate all the family members of the husband including the married brothers and sisters who are living separately from the husband and exaggerated versions of the incident are reflected in a large number of complaints. Experience shows that matrimonial laws are being misused by the offending spouse by naming each and every adult family member of spouse but when tempers cool and good sense prevails, the exaggerated versions are withdrawn. Reference may be made to the judgments of the Supreme Court in Sheoraj Singh Ahlawat (supra), Geeta Mehrotra (supra) and Preeti Gupta (supra).
24. Consequences of refusing to follow well settled law If an authority does not follow the well settled law, it shall create confusion in the administration of justice and undermine the law laid down by the constitutional Courts. The consequence of an authority not following the well settled law amounts to contempt of Court as held by the Supreme Court in East India Commercial Co. Ltd. (supra), Makhan Lal (supra), Baradakanta Mishra (supra), M.P. Dwivedi (supra), T.N. Godavarman Thirumulpad (supra), Maninderjit Singh Bitta (supra), Priya
LPANo.736/2013 Page 146 of 159 Gupta (supra) and various High Courts in Hasmukhlal C. Shah (supra), Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya (supra), C.T. Subbarayappa (supra), Parmal Singh (supra), Ex-CT Nardev (supra) and Head of Department, Air Force Station Amla.
25. Findings
25.1. The proceedings under Section 12 of the DV Act filed by the appellant’s sister-in-law are civil in nature as held by the Supreme Court and various High Courts in Indra Sarma (supra), Varsha Kapoor (supra), Shambhu Prasad Singh (supra), Sabana (supra), Bipin Prataprai Bhatt (supra), Narendrakumar (supra), Naorem Shamungou Singh (supra) and Vijaya Baskar (supra). 25.2. The respondent has not controverted the provisions of the DV Act as well as the judgments mentioned above. The respondent’s contention that the provisions of the DV Act and the judgments mentioned above are irrelevant is highly irresponsible. If the respondent could not controvert the settled position of law arising out of clear statutory provisions and the judgments, the respondent should have fairly conceded instead of labeling the submissions as irrelevant.
25.3. No criminal case was pending against the appellant at the time of submitting the bio-data form as she was not an accused of any offence in the proceedings under Section 12 of the DV Act and the Court dealing with the application was not holding a trial of any offence punishable by law.
LPANo.736/2013 Page 147 of 159 25.4. The respondent’s contention that the appellant is involved in a serious offence of domestic violence relating to attempt to murder under Section 307 IPC and the respondent is accused No.4 in the criminal case is false. The respondent’s submission is contrary to law as well as facts on record.
25.5. The respondent has cancelled the appellant’s provisional appointment on the sole ground that she was involved in a criminal case. However, at the time of hearing of this appeal, an additional ground was raised. Since the appellants provisional appointment was cancelled on the sole ground that the proceedings under Section 12 of the DV Act was a criminal case; the additional ground raised by the respondent at this stage before us can’t be looked into in view of the principles laid down by the Supreme Court in Gordhandas Bhanji (supra), Mohinder Singh Gill (supra), Pavanendra Narayan Verma (supra), East Coast Railway (supra), Rashmi Metaliks Limited (supra), Dipak Babaria (supra) and Kerala High Court in Kunjumon Thankappan (supra). 25.6. An important requirement of a fair procedure is to consider all the relevant material and give reasons for the decision. It is well settled that even in administrative matters, the reasons are required to be given by the administrative authority as held by the Supreme Court in Cyril Lasrado (supra), Kranti Associates (P) Ltd. (supra) and Ravi Yashwant Bhoir (supra). We do not find compliance of the same in this case as no reasons have been given in the order as to how the case under Section 12 of the DV Act is a criminal case.
LPANo.736/2013 Page 148 of 159 25.7. Clause 12 of the bio-data form is ambiguous and confusing because ‗law suit’ is a complicated technical word for a candidate who has not studied law and is not conversant with the legal procedures in Court. A person may confuse the term law suit ejusdem generis with the preceding word, ‗criminal case’. The word law suit would certainly exclude many categories of litigations such as writ petitions, appeals, applications, execution petitions, revision petitions, review applications. Lastly, if the respondents have chosen to use an undefined word they should have defined the meaning in the bio-data form so that the candidate knows its meaning but the difficulty is that the respondent themselves do not know the meaning of the term law suit and therefore, they have not made any submissions as to its meaning before this Court. The respondents are also not aware as to the meaning of term ‗criminal case’ used in clause 12 of the bio-data form. The interpretation of the respondent is absolutely ambiguous and contrary to the well settled law. In view thereof, no adverse view can be taken against the appellant. Considering that Clause 12 of the bio-data form is ambiguous and vague, and will lead to hardship and mistakes, we hope that the respondent will use clear and straight questions in future. The respondents may take note of the attestation form of Indian Administrative Service and Indian Judicial Service reproduced above.
25.8. In the bio-data form as well as the attestation form, the respondents are seeking information about cases pending in Court. The criminal law ordinarily sets into motion by registration of an
LPANo.736/2013 Page 149 of 159 FIR with the police. If the accused is arrested by the police, the candidate has to furnish the information in clause (a) of the attestation form. However, there can be cases where the accused has not yet been arrested. Let us take the example of a candidate against whom a complaint of serious offence of cheating and forgery has been made to the police but FIR has not yet been registered but the preliminary investigation has started and the candidate is aware of it or FIR has been registered but the accused has not been arrested or the accused is absconding or has taken anticipatory bail. This fact is very material which effects his character and suitability to the post but none of the questions in the attestation form covers this situation and therefore, the candidate is not bound to disclose the same. The respondents may therefore consider incorporating the additional questions in the attestation form: – ―Whether any complaint been made against you to the police or has the police registered any FIR against you, in which you are accused or suspected to be an accused of any offence punishable by law?‖; ―Have you been declared proclaimed offender by any Court?‖; and ―Whether you have taken anticipatory bail from any Court.‖
25.9. The procedure adopted by the respondents for appointment as well as cancellation of the provisional appointment of the appellant and considerations of her appeal, was neither fair nor reasonable.
25.10. The proceedings under Section 12 of the DV Act arising out of the matrimonial discord between the appellant’s brother and his
LPANo.736/2013 Page 150 of 159 wife does not affect her suitability to the selected post and therefore, cannot be a ground for denying her the employment. The respondent could not show anything to the contrary. 25.11. The decision making process of the respondent at the stage of cancellation of appointment dated 9th October, 2012 as well as rejection of the appeal dated 5th December, 2012 is clearly deficient inasmuch as the respondents were not clear as to the nature of proceedings under the DV Act and they neither thought it proper to look into the law or even seek legal opinion. What is more shocking is that even now the respondents are not clear about the same. The respondents have taken a view that the proceedings under Section 12 of the DV Act is a criminal case which is contrary to the well settled law detailed above. That apart, the respondents did not apply their mind to any of the relevant questions. The respondent’s Senior Manager (HR) in his note observed that the proceedings under Section 12 of the DV Act is a criminal case which was approved by all the officers up to the level of Director (HR) without caring to look into the law or even seeking a legal opinion in the matter.
25.12. The respondents have dared not to follow the well settled law relating to the nature of proceedings under Section 12 of the DV Act. Reference in this regard may be made to the provisions of the DV Act and the catena of the judgments in which it is clearly held that the proceedings under Section 12 of the DV Act are civil in nature. The respondents did not controvert any of the provisions or the judgments and termed them as irrelevant meaning thereby
LPANo.736/2013 Page 151 of 159 that the binding law is irrelevant for them. The respondents are therefore liable for consequences laid down by the Supreme Court in East India Commercial Co. Ltd. (supra), Makhan Lal (supra), Baradakanta Mishra (supra), M.P. Dwivedi (supra), T.N. Godavarman Thirumulpad (supra), Maninderjit Singh Bitta (supra), Priya Gupta (supra) and various High Courts in Hasmukhlal C. Shah (supra), Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya (supra), C.T. Subbarayappa (supra), Parmal Singh (supra), Ex-CT Nardev (supra) and Head of Department, Air Force Station Amla (supra). 25.13. The respondents have made false and misleading statements on oath that proceedings under Section 12 of the DV Act is a criminal case; the appellant was accused no.4 in the said criminal case; the criminal case related to serious offence of domestic violence of attempt to murder under Section 307 IPC; the appellant admitted that a criminal case was pending against her in the attestation form dated 24th September, 2012; and the appeal filed by the appellant to the Chairman and Managing Director of the respondent corporation considered and dismissed after deliberations by the CMD vide letter dated 5 th December, 2012. All the aforesaid statements are absolutely false and incorrect. As discussed above, domestic violence is not an offence under the DV Act. Secondly, the proceedings under Sections 12 and 18 to 23 of the DV Act are purely civil proceedings and therefore, no criminal case was pending against the appellant. Thirdly, the appellant was respondent no.4 and not accused no.4 as deposed by respondents in
LPANo.736/2013 Page 152 of 159 their affidavit. Fourthly, the appellant never admitted the pendency of a criminal case in the attestation form. Lastly, the appeal filed by the appellant was dismissed by the same officers who had cancelled the provisional appointment without even considering the grounds raised by the appellant. The records do not show any deliberation as the appeal was not even considered on merits. The respondents are guilty of concealment of material facts from this Court.
25.14. The respondents misled this Court and failed to disclose material facts. The respondents stated before the Writ Court as well as this Court that the appeal filed by the appellant before the Chairman and Managing Director of the respondent corporation was dismissed vide letter dated 5th December, 2012. Ordinarily, the Courts believe the statements made on affidavit. Very often, the Court do not even call for the record. This course is adopted on the presumption that the government would present a true and faithful account of the events. However, this Court called upon the respondents to produce the original records. On perusal of the said records, it was noticed that the appeal filed by the appellant was not dismissed by the Chairman and Managing Director of the respondent corporation but by the same officers who had earlier cancelled the provisional appointment of the appellant. As such, the statement made by the respondent before the Writ Court as well as before this Court is false and incorrect. The respondents had a positive duty to disclose all relevant and material facts which they failed.
LPANo.736/2013 Page 153 of 159 25.15. The record produced by the respondents does not show any deliberations made by the officers of the respondent as to what is the nature of proceedings under DV Act i.e. whether civil or criminal; and whether the proceedings under the DV Act would affect the character and suitability of the appellant to the required post. It appears that the officers had only the copy of the notice received by the appellant which was attached to the attestation form. The officers did not even consider it proper to call for the copy of the application to find out the nature of the proceedings against the appellant. The officers took the decision only on the basis of the observations made by the Senior Manager (HR) in his note dated 28th September, 2012 that though the proceedings are quasi-civil in nature but the proceedings are conducted as criminal cases and therefore, the appellant is involved in a criminal case. This observation by itself is contrary to the well settled law and no officer cared to look into it. The Executive (Law) as well as the GM (HR-Law) who are expected to know the law did not care to look into the nature of the proceedings under DV Act. It appears that none of the officers were aware of the nature of proceedings under DV Act and they also did not take care to either look into the law themselves or seek legal opinion in the matter. As such, the whole proceedings before taking the decision of cancellation of the appointment have been conducted carelessly without looking into the law and the observations of the Senior Manager (HR) that the appellant was involved in criminal case is based on surmises and conjectures. The decision making process of the respondent is
LPANo.736/2013 Page 154 of 159 therefore, clearly deficient. The respondents were expected to first take a correct view of the applicable law for which they had to either look into the law themselves or if in doubt, they could have taken a legal opinion. However, the officers neither knew the law nor cared to look into the law nor thought it proper to seek a legal opinion. A wrong view of the law was taken and then applied to the case which was bound to lead to a wrong decision. 25.16. We are of the opinion that the respondents have failed to discharge its duty to make a full and candid disclosure in the Court, in this case. We would be failing in our duty if we did not place on record the displeasure of the Court with regard to the conduct of the respondent corporation. We deprecate the conduct adopted by the respondents in an attempt to mislead the court 25.17. According to the Respondents, BHEL is a ‗maharatna‟ company of the Government and the management is very particular not to employ any person with doubtful integrity and tainted antecedents. However, we are shocked and pained to note that in resisting a small claim, the respondents have resorted to making false and misleading statement on oath and have dared to refuse to follow the law well settled by the Apex Court as well as by this Court, which has pricked our conscience. The respondents have failed in their duty to be fair and reasonable. It appears that something has gone seriously wrong in working of the Legal and HR departments of the respondents. The respondents need to do serious introspection.
LPANo.736/2013 Page 155 of 159 25.18. The respondents have filed an affidavit dated 20th January, 2014 in which they have disclosed that initially 150 posts were advertised but management subsequently reduced the number to
100. Out of 100 candidates, 94 candidates joined the training. After the training, written test and interview only 88 persons were found fit for absorption into service. In the synopsis dated 22 nd April, 2014, it is stated that it is not practicable to train the appellant. It is noted that vide order dated 3 rd December, 2012, the learned Single Judge had directed the respondents to keep the one post of Supervisor Trainee (HR) of general category vacant till the next date of hearing. On the next date of hearing i.e. 15th April, 2013, counsel for respondents made a statement that in case the petitioner’s succeeds in the writ petition or there are any further orders of the Court, the petitioner will be appointed by respondent no.2. In view of the said statement, the learned Single Judge vacated the interim order dated 3rd December, 2012. This Court is of the view that in view of the statement made by respondents before the Writ Court on 15th April, 2013, the respondents cannot now refuse to appoint the appellant.
26. Conclusion
26.1. In the facts and circumstances of this case, the appeal is allowed and the impugned judgment dated 4 th September, 2013 is set aside. The order of cancellation of the offer of appointment of the appellant and the letter dated 5th December, 2012 dismissing the appellant’s appeal are hereby quashed. The provisional offer of
LPANo.736/2013 Page 156 of 159 appointment of the appellant dated 3rd September, 2012 is restored. The respondent BHEL shall complete all the formalities and issue the final offer of appointment to the appellant within five days and the appellant shall report for joining the respondent on 2nd June, 2014 at 10:00 am. The respondents shall pay a costs of Rs.50,000/- to the appellant.
26.2. Next question arises as to what action should be taken against the respondents with respect to the false statements made on oath and refusal to follow the well settled law by the Apex Court and this Court. It cannot be gainsaid that the judgments mentioned above are binding on the respondents who could not have bypassed or disregarded them except at the peril of contempt of this Court. This cannot be said to be a mere lapse. It is a fit case for ordering inquiry or initiating proceedings for contempt of court. However, before taking further action in this matter, this Court would like the Secretary, Ministry of Heavy Industries & Public Enterprises and the CMD of BHEL to look into this matter and consider the implication of the respondents’ refusal to follow the well-settled law, making false statements on oath, making wrong submissions on facts and misleading this Court. The learned ASG is requested to assist this Court in this matter.
27. List on 30th May, 2014 for response from the Secretary, Ministry of Heavy Industries & Public Enterprises and CMD of BHEL. A senior officer from the office of Secretary, Ministry of Heavy Industries & Public Enterprises shall remain present with
LPANo.736/2013 Page 157 of 159 complete instructions. The CMD of BHEL shall take an independent view in the matter without the aid and advice of the officers involved in taking decision of the cancellation of the appellant’s appointment/rejection of the appeal and shall depute a senior officer with complete instructions to attend the Court.
28. The Executive Director (HR & CC) of BHEL, who has filed the affidavits containing false and misleading statements shall remain personally present in Court on 30 th May, 2014 to show cause why action be not taken against him. He shall also disclose the names of other officers responsible for the lapses.
29. Copy of this judgment be given dasti to the Standing Counsel for Union of India, who shall have the same delivered to the Secretary, Ministry of Heavy Industries & Public Enterprises and CMD of BHEL without any delay. The Standing Counsel shall also send a copy of this judgment to the Secretary (Law & Justice) and U.P.S.C. for considering the suggestions of this Court to incorporate additional questions in the attestation form for appointments in government and statutory bodies.
30. Copy of this judgment be also sent to the Registrar General of this Court to consider the above suggestions.
31. The original record of BHEL (two files) be returned back to the respondents after retaining a photocopy of the same on record. The record of the writ court as well as the LCR be returned back forthwith.
LPANo.736/2013 Page 158 of 159
32. Considering the principles of law discussed in this judgment, copy of this judgment be sent to the Principal District & Sessions Judge and the Delhi Judicial Academy.
33. Pending application is disposed of as infructuous.
J.R. MIDHA, J.
P.K. BHASIN, J.
MAY 26, 2014
aj/dk/dev
LPANo.736/2013 Page 159 of 159
HC: Transfer petition of wife dismissed, ground (Mysore, bangalore 170 KM is well connected)
1
C.P.No.126/14
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF JUNE 2014
BEFORE
THE HON’BLE MR. JUSTICE RAM MOHAN REDDY
CIVIL PETITION No.126/2014
BETWEEN:
DAKSHAYANI N.,
AGED ABOUT 34 YEARS,
W/O SRI K.SHIVANNA,
C/O ANUSUYA,
R/AT NO.23, GROUND FLOOR, 3RD MAIN, MEENAKSHINAGAR, SHARADHA COLONY,
BEHIND KRISHNA KALYAN MANTAP, BASAVESHWARANAGAR,
BANGALORE – 79.
…PETITIONER
(BY SRI N.VAGEESH, ADV.)
AND:
SHIVANNA K.,
AGED ABOUT 45 YEARS,
S/O LATE SRI KRISHNAPPA, R/AT MIG 80, BOGADI 2ND STAGE, HUDCO, SHARADADEVI NAGAR, MYSORE – 570 026.
…RESPONDENT
THIS CIVIL PETITION FILED UNDER SECTION 24 OF CPC PRAYING TO TRANSFER THE PETITION FILED BY THE RESPONDENT IN M.C.NO.593/2013, WHICH IS PENDING ON THE FILE OF ADDITIONAL FAMILY COURT, MYSORE, TO THE PRINCIPAL FAMILY COURT, BANGALORE.
THIS CIVIL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: 2
C.P.No.126/14
ORDER
This petition for transfer of M.C.No.593/2013 on
the file of the Additional Family Court, Mysore, to the
Principal Family Court, Bangalore instituted by the
respondent/husband for divorce is without merit, since
the distance from Bangalore to Mysore by road is about
170 kms and well connected by public transport facility
both by train and by road. In fact, KSRTC runs buses
every ten minutes from Bangalore to Mysore. In that
view of the matter, petition stands rejected.
Sd/-
JUDGE
kcm
Supreme Court: Wife cannot implicate one and all in Domestic Violence case…Quashed against 9 respondents
, , , ,
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 43 OF 2013
(SPECIAL LEAVE PETITION (CRL.)NO.8522 OF 2010) ASHISH DIXIT & ORS. APPELLANTS VERSUS
STATE OF U.P. & ANR. RESPONDENTS O R D E R
1. Leave granted.
2. This appeal is directed against the judgment and order dated 05.07.2010 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No.8358 of 2008. By the impugned judgment and order, the High Court has refused to quash the proceedings initiated against the petitioners by the respondent no.2-wife, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity “the Act, 2005”).
3. In the petition filed by respondent no.2, apart from arraying her husband and her parents-in-law as parties to the proceedings, has included all and sundry, as
: 2 :
respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.
4. In a matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by respondent no.2 be confined to her husband as also her parents-in-law and should not have allowed the impleadment of respondent nos.4 to 12.
5. In view of the above, while allowing this appeal in part, we quash the proceedings as against appellant nos. 4 to 12 in Case No.240 of 2007. We direct the learned Chief Judicial Magistrate, Agra to proceed with the aforesaid case; only against the husband i.e. Shri Ashish Dixit, S/o. Padmakar Dutt Sharma, her father in law, Shri Padmakar Dutt Sharma, S/o.late Pt.Diwakar Dutt Sharma and Smt.Girja Dixit, W/o.Shri Padmakar Dutt Sharma, her mother in law.
: 3 :
6. We are of the opinion that the direction issued by the High Court, inter-alia, directing the appellants herein to appear before the Trial Court and seek bail is wholly unnecessary. …………………..J.
(H.L. DATTU)
…………………..J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI;
JANUARY 07, 2013.
Reportable judgement from SC: SC set aside proceedings initated under 498A and 304B
, , , ,
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.__174___ OF 2013
(Arising out of SLP (Criminal) No. 4883 of 2008)
Rajiv Thapar & Ors. …. Appellants
Versus
Madan Lal Kapoor …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on 30.11.1991. After her marriage, Dr. Monica Thapar got admission in a Post Graduate Diploma course in Gynaecology (DGO) at Medical College, Surat, in June 1992. Accordingly, she started working as a Resident at the aforesaid Medical College. At his own request, Rajiv Thapar, who was (and still is) a member of the Indian Revenue Services, was transferred from Ahmedabad to Surat. On 16.9.1992, while the husband and wife were living at Surat, Dr. Monica Thapar fell ill. For her treatment, she was admitted to Mahavir Hospital, Surat. She was diagnosed as suffering from Malaria. Having been treated for the same, she was discharged on 20.9.1992. Two days thereafter, Dr. Monica Thapar again fell ill on 22.9.1992. This time, she was taken to Medical College, Surat i.e., the hospital where she was herself working as a Resident. She was first examined by a radiologist, and thereafter, by Dr. Girish Kazi, a cardiologist. It was suspected, that she has a hole in her heart. Based on the aforesaid diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The said echo-cardiography confirmed the presence of a large hole in her heart. On the advice of doctors who attended on Dr. Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack on 26.9.1992. The same supposedly proved fatal.
3. The factum of death of Dr. Monica Thapar was conveyed to the immediate family of Rajiv Thapar, as well as to the family of the deceased. A decision was taken to cremate the dead body at Delhi. Accordingly, after embalming the body of Dr. Monica Thapar, it was transported by rail to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar including her father Madan Lal Kapoor (respondent-complainant herein) were present at the time of arrival of the body at Delhi.
4. Madan Lal Kapoor made a complaint to the Police Control Room alleging, that he suspected that his daughter had been poisoned. This suspicion was based on the fact, that the body had turned blue. On the aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of powers vested in him under Section 176 of the Code of Criminal Procedure (hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings. In the first instance, the body of the deceased was subjected to a post- mortem examination, for which the following Medical Board was constituted:-
(i) Dr. Bharat Singh, Medical Superintendent, Civil Hospital, Delhi.
(ii) Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi. (iii) Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital, New Delhi.
(iv) Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi.
The Medical Board came to the conclusion, that Dr. Monica Thapar had died of cardiac decomposition. The final opinion of the Medical Board, was recorded in a report dated 28.9.1992, in the following words:- “OPINION In view of the clinical reports submitted and post mortem findings observed, the Board of Direcors is of the opinion that, death is consequent to cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension. No definite opinion can be given about falciparm Malaria, histopathological assessment.
Viscera is preserved for chemical analysis as desired by SDM. Time since death is about 48 hours and is consistent with the history.”
(emphasis is ours)
During the post-mortem examination, samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken. These samples were sent for chemical examination to the Central Forensic Science Laboratory, New Delhi. The report of the Forensic Laboratory dated 9.2.1993, recorded the following conclusions:-
“SPECIFICATION OF THE ARTICLE CONTAINED IN THE PARCEL
1. Parcel contained:
(a) One wide-mouth bottle containing stomach, intestine with contents, Exhbt 1a.
(b) One wide mouth bottle containing liver, spleen & kidney, Exhbt 1b.
(c) One phial containing few drops blood, Exhbt 1c.
xxx xxx xxx
RESULTS OF ANALYSIS
The Exhibit nos. 1a, 1b and 1c gave negative tests for common poisons.”
It is therefore apparent, that the Central Forensic Science Laboratory, New Delhi, having analysed the samples from the stomach, intestine, liver, spleen, kidney and blood, concluded that the same did not contain any “common poison”.
5. Insofar as the inquest proceedings initiated by the Sub-Divisional Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are concerned, it would be relevant to mention, that Madan Lal Kapoor (the respondent-complainant herein) the father of the deceased, in the first instance, refused to record any statement before the SDM, Delhi, on the ground that he would record his statement only after the receipt of the post-mortem report. Even on the receipt of the post-mortem report, the said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record their statements before the SDM, Delhi, on the assertion, that the mother of the deceased knew the facts best of all, and as such, her statement needed to be recorded first of all. It was pointed out, that her statement could not be recorded immediately because she was in a state of shock. It may be noted, that neither the mother nor the brother of Dr. Monica Thapar appeared before the SDM, Delhi, to record their statements. Madan Lal Kapoor had sought time thrice, from the SDM, Delhi, to get the statement of his wife recorded. Madan Lal Kapoor, father of the deceased, however, eventually recorded his statement before the SDM, Delhi, even though the mother of the deceased had not appeared before the Magistrate to record her statement.
6. The SDM, Delhi, during the course of inquest proceedings, recorded the statements of the following accused persons:-
(i) Rajiv Thapar (husband of the deceased; appellant no. 1 herein).
(ii) Kusum Thapar (mother-in-law of the deceased; appellant no. 5 herein).
(iii) Sangeeta Thapar (wife of the brother-in-law of the deceased; appellant no. 4 herein).
In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria (a colleague of the deceased at Medical College, Surat). Insofar as the accusations and counter allegations are concerned, it is not essential to refer to the statements of any of the rival parties. It is however, appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the same is not available on the record of the case, reference thereto in the inquest report, is being extracted hereunder:-
“Statement of Mr. Pritu Dhalaria
Sh. Pritu Dhalaria stated that Monika Thapar was known to him from the date she got admission in the Medical College in June,
92. And he regards her as his elder sister. He further stated that both Monika and Rajeev were happy and living a happy married life. On 17th September, 1992, he came to know that Monika was ill and admitted in the Mahavir Hospital. In the evening of 17.9.1992, when he met Monika he came to know that she was suffering from Malaria. And on 24.9.1992, he came to know that she was admitted in the Urmil Heart Hospital. He further stated after Echo-Cardiography doctor declared that Monika was suffering from A.S.D. (Larger Hole in Heart) and pulmonary Hypertension. He stated that on 26.9.1992, at about 2.00-2.15 p.m., Monika’s situation became serious. And inspite of all attempts of doctors, she got heart attack and died on 3.30 p.m. He also stated that the MS of Civil Hospital, Surat, Dr. Khanna was present alongwith the other doctors at that time.”
(emphasis is ours)
7. The statement of Dr. Pritu Dhalaria fully coincides with the version expressed by the appellants-accused. That Dr. Monica Thapar had two bouts of illness. In the first episode, she was diagnosed as suffering from Malaria. She was treated for the same and discharged. Thereafter, she was diagnosed with a large hole in her heart, on the basis of an echo- cardiography. She died of a massive heart attack on 26.9.1992. At the time of her death, Dr. Khanna and other doctors of the Civil Hospital, Surat, were present.
8. The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the following conclusions:-
“Conclusion
Allegation levelled by Shri Madan Lal Kapoor, father of the deceased regarding harassment and dowry death, it appears that allegation are not correct in the light of the fact of Natural death in the statements the husband and in laws of the deceased produced photocopies of letters written by Sh. Madan Lal Kapoor and Rajiv Kapoor. Perusal of the letter shows that both the families enjoyed a normal happy relationship and not an abnormal and strained relation till the death of Monika.
Sh. Rajeev Thapar has produced copy of telephone Bill of residential phone shows the Telephone Cells are made to Madan lal phone No.574390 at Mohali Chandigarh on 17.09.92, 21.09.92, 24.09.92 and 25.09.92 during the course of illness of Monika
Sh. Rajeev Kapoor, the brother of the deceased well aware of the situation of Monika as per his letter dated 22nd September, 92 and at that time the families are enjoying a very good relationship. So it is not possible in these circumstances that Monkka was harassed by her in-laws. The few lines as under:-
“How are you Now? I hope by now you will have recovered from Malaria. We should have faith in God. Please give top priority to your health.
Off and on I go to Janakpuri, all are very nice there, very affectionate and very caring. You must be knowing that Sanjay Bhai Saheb have been promoted to the rank of Squadron Leader..
The brother is no likely to praise the family of his sister’s in-laws in case his sister is being harassed for dowry.
Statement of Sh. Pritu, Colleague of Mrs. Monika, also shows that Monika and Rajiv enjoyed a very happy and cordial relationship, which also shows that allegations of harassment does not appear to be correct. According to the statements given before me Monika stayed with her in-laws in Delhi only for 4-5 days. Hence the charged of harassment levelled does not appear to be correct. From the statement and evidence produced before me, it does not appear that she was being harassed. Report of Sh. S.K. Pathi M.d. Radiologist during the treatment of Monika.
“Mild Cardiac enlargement with dilated pulmonary vessels and evidence of Pulmonary Dedema. Advise: Echocardiography.”
Report of Dr. J.C. Damaswala M.D. during the treatment of Monika.
“Large osteum secundum ASD Measuring 3.0 cm with Ltd. To Rt. Shunt on colour flow and conventional Doppler.”
Death certificate issued by Urmil Heart and Lung Centre:-
Cause of Death: Cardio-Respiratory arrest due to Malaria ASD C Pulmonary Hypertension.
The post-mortem of the dead body revels that death is due to Cardiac de-compensation due to enlarged atrial Septal Defect and pulmonary Hypertension (As per board of doctors)
The CFSL report of the viscera reveals negative tests for common poison.
Inquest proceedings started on 27.09.1992 and till now mother of the deceased has not come forward to give her statement. Father of the deceased visited SDM office three times but never brought his wife for recording statement. Now there is no point in waiting for her statement when death is proved natural and beyond any doubt.
The case of the death is clearly determined to be natural inquest proceedings under Section 176 Cr.PC may be closed as foul play in the death of Smt. Monika Thapar is completely ruled out and the allegation made in the PCR called on 29.09.1992 have not been turned out by the evidence on record. Sd/-
Sub-Divisional Magistrate, Kotwali, Delhi.
6.7.1993”
A perusal of the inquest report reveals that the SDM, Delhi, concluded that “… foul play in the death of Smt. Monika Thapar is completely ruled out…” The SDM, Delhi, also held “…death is proved natural and beyond any doubt…”
9. On 29.9.1992, Madan Lal Kapoor (the respondent-complainant), father of the deceased Dr. Monica Thapar, filed a complaint before the Commissioner of Police, Delhi. Prior thereto, on the same issue, he had filed similar complaints before the Police Commissioner, Surat, Police Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy. Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura, New Delhi. The aforesaid complaints had been filed by the father of the deceased praying for registration of a First Information Report, interalia, under Sections 304B and 498A of the Indian Penal Code. Since the complaints filed by Madan Lal Kapoor did not bear any fruitful result, he filed a criminal complaint before the Metropolitan Magistrate, Delhi on 6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning. Relevant portion of the complaint made by Madan Lal Kapoor (the respondent- complainant) is being extracted hereunder:-
“10. That in the second week of September, 1992, accused no.1 Rajiv Thapar called his mother from Delhi, on the false pretext that Monika was pregnant and needed care. As a matter of fact, it was in the pursuance of the conspiracy hatched by the accused themselves to do away with the life of Monika in some mysterious manner and on the pretext the mother of Rajiv Thapar accused no.1 was called from Delhi, and sometimes thereafter on that pretext she was admitted in some hospital of their choice, where the conspiracy could be implemented.
11. That on 26.9.1992 the complainant enquired on telephone from accused no.2 about the welfare of his daughter but now she was quite alright and there was nothing worry about her. The complainant enquired from him about the details of her illness and hospital where she was admitted, but accused no.2 did not disclose as the voice of Mr. Thapar accused no.2 was some what in co-herent on the phone, the complainant suspected something wrong, when the complainant told him that he along with his wife was going to Surat, accused no.2 told him that there was no need of going and everything was alright, but when the complainant told him in clear term that he apprehended something wrong regarding the illness of his daughter, on which accused no.2 told the complainant on phone that Monika had expired.
12. That accused no.2 in conspiracy with his co-accused did not disclosed the kind of illness, of the treatment she was given with a criminal intention that the complainant and his wife may not able to see their daughter and give her proper treatment. Mrs. Monika was not suffering from any disease. Of course, due to constant harassment, torture, physical and violent and mental torture, her health had broken down and she fell ill. Her death was due to constant torture for not meeting the illegal demand of a Maruti Car.
13. That the dead body of Monika was brought to Delhi under mysterious circumstances, no permission was obtained for taking dead body from Surat to Delhi in the train.
14. That the complainant and his wife reached Delhi and saw some poisonous substance had been administered to her, on this report of the complainant, the post-mortem was conducted at Delhi.
15. That the complainant was moved hell and earth in the matter. He has given complaint to police Commissioner, Surat. Deputy Commissioner, Athwa Crime Women Cell, South, Moti Bagh, Nanakpura, New Delhi, Police Officer Incharge, Umra , Police Station, Athwa Lines, Surat and another authority; but no action has been taken, even the copy of the Post Mortem Report has not been supplied to the complainant.
16. That the death of Mrs. Monika took place within a year of her marriage under mysterious circumstances on account of demand of dowry which demand was not met and thereafter she was tortured mentally and physically and leading to her illness and in that condition she was administered some poisonous matter. The accused have committed serious offences under Sections 304B/120B/498A/109 I.P.C. They be tried according to law and convicted.
Sd/-
Dated 6.7.93 Madan Lal Kapoor Complainant”
(emphasis is ours)
10. The complaint extracted above, reveals mere aspersions, based on suspicion. The complaint did not express any concrete fact disclosing how the appellants-accused were responsible for having taken his daughter’s life. In fact, the narration of facts hereafter reveal, the shifting stance of the father of the deceased, about the cause of his daughter’s death. On 24.5.1995, Madan Lal Kapoor (the respondent-complainant) examined himself and his son Rajiv Kapoor before the Metropolitan Magistrate, Delhi in order to substantiate the allegations levelled by him in respect of the unnatural death of his daughter Dr. Monica Thapar. Based on the statements made by Madan Lal Kapoor (the respondent-complainant) and his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated 24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi, while summoning the accused, recorded the following observations:- “It is further alleged that at the time of her death she was doing Diploma in Gynaecology in territories at Surat where his son in law was employed. The complainant did not receive any telephone call either from his daughter or son in law and he therefore rang up to Ramesh Thapar at Delhi to enquire about the welfare of his daughter and Ramesh Thapar told him on telephone that his wife Kusum Thapar had been called to Surat to look after his daughter as she was said to be pregnant but subsequently she was aborted. The complainant enquired from him as to the particulars of the hospital where she was admitted and what was the ailment she was suffering from, she replied that her daughter was quite all right and he should not worry about her welfare again insisted to given particulars of the hospital and the complainant suspected that her in-laws were not behaving with her properly and were harassing, therefore, he insisted that he himself and his wife shall go to Surat and he told him that he suspected some foul play in the matter on which Ramesh Thapar told him from Delhi that his daughter Monika has already expired, and he enquired as to where she will be cremated. The accused brought the dead body of his daughter from Surat to Delhi but they did not allow him and his family members to see the dead body but on their insistence, they saw the dead body of his daughter and he saw that the face and mouth of his daughter was blue. He suspected that her daughter has been given some poisonous matter, as a result of which she had died. He informed the police and the police came and got the post mortem of the dead body conducted, but thereafter nothing was done by police in this matter. He sent a registered letter to the Police Commissioner, Delhi and he went to Surat and filed a complaint before the Police Commissioner but nothing was done. The complainant suspect that his daughter has been admitted because his daughter had not brought sufficient dowry according to the status and had also failed to fulfill the demands of above named accused persons of bringing dowry and Maruti Car and cash.
I have carefully considered the argument put forward by Ld. Counsel for complainant. I have also carefully gone through the complaint and have carefully considered the preliminary evidence adduced by the complainant in support of his case, and from the material on record in my considered opinion, there are sufficient grounds for proceedings against all the accused persons for committing offence punishable u/s. 304B/498A/406/120B IPC.
Accordingly, I order that accused Rajiv Thapar, Ramesh Thapar, Sangeet Thapar and Mrs. Kusum Thapar be summoned for 19.12.1995 on filing of PF.”
11. The appellants assailed the aforesaid summoning order dated 24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the High Court of Delhi (hereinafter referred to as, the High Court). The challenge raised was primarily on the ground, that Madan Lal Kapoor (the respondent- complainant) had suppressed vital material, in his complaint. It was alleged, that the complainant did not disclose the particulars of the post-mortem examination, the report of the Central Forensic Science Laboratory, as also, the inquest report. The High Court dismissed the aforesaid petition summarily on the premise, that the same had been prematurely filed. Accordingly, liberty was granted to the appellants to move the trial Court, if they were so advised, for seeking a recall of the summoning order (dated 24.8.1995). Immediately, on the disposal of the petition by the High Court, the appellants moved an application before the Metropolitan Magistrate, Delhi, praying for a recall of the summoning order dated 24.8.1995. The aforesaid application was dismissed by the Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of the opinion that at this stage, there is no ground to review or recall the order dated 24.8.1995 passed by my L.D. Predecessor, whereby he summoned the accused for the above stated offences after taking cognizance…”
12. Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary evidence. Based thereon, and having formed an opinion, that there was sufficient material to proceed against the accused under Sections 498, 496, 304B read with Sections 120-B of the Indian Penal Code, the Metropolitan Magistrate, Delhi, committed the case to the Court of Sessions, as the offence under Section 304B is exclusively triable by a Court of Sessions.
13. While examining the matter further, with the pointed object of either discharging the accused (under Section 227 of the Cr.P.C.) or framing charges against them (under Section 228 of the Cr.P.C.), the Additional Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the respondent-complainant) had not brought the following record/material/documents to the notice of the Metropolitan Magistrate, Delhi:-
(i) The post-mortem report dated 28.9.1992.
(ii) The inquest report dated 6.4.1993.
(iii) The correspondence made by the respondent and his son. The Additional Sessions Judge, Delhi also felt, that the Metropolitan Magistrate, Delhi, had not fully complied with the provisions of Section 202 of the Cr.P.C. (requiring him to enquire into the case himself). Therefore, the Additional Sessions Judge, Delhi examined the allegations made in the complaint in conjunction with all of the aforesaid material.
14. Since the learned counsel representing Madan Lal Kapoor (the respondent-complainant) had raised an additional plea (before the Additional Sessions Judge, Delhi), that the deceased was also suspected of having been strangulated to death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of the Medical Board, which had conducted the post-mortem examination). The Additional Sessions Judge, Delhi, sought clarifications on the allegations of strangulation, from the two doctors. The Court also recorded the statement of Dr. Amit Banerjee.
15. The Additional Sessions Judge, Delhi then heard detailed arguments on charge. Upon consideration, the Additional Sessions Judge, Delhi, recorded detailed findings, which are being summarized hereunder:- (i) The inquest proceedings conducted by the SDM, Delhi, which interalia contained the broad facts of the married life of the deceased, were inconsistent with the theory of harassment extracted in the complaint.
(ii) The accused Rajiv Thapar, husband of Dr. Monica Thapar (deceased) had been seeking medical advice, and had been getting the deceased’s medical treatment at Surat, whereupon it came to be discovered, that she had a large hole in her heart.
(iii) The Medical Board which conducted the post-mortem examination on the body of the deceased, confirmed the conclusion certified by Urmil Heart and Lung Centre, Surat, that her death occurred because of cardiac de-compensation, and that Dr. Monica Thapar had died a natural death.
(iv) The plea of strangulation raised on behalf of the complainant was held to be unsubstantiated consequent upon the clarification rendered by Dr. L.T. Ramani and Dr. Amit Banerjee.
(v) The post-mortem report and the Central Forensic Science Laboratory’s report, which recorded a negative opinion on poisoning, were taken into consideration to conclude, that the death of Dr. Monica Thapar was not due to poisoning.
(vi) The statement made by Dr. Pritu Dhalaria, a colleague of the deceased at the Medical College, Surat, referred to in the inquest proceedings (relevant portion extracted above), was relied upon to disbelieve the theory of foul play, in the death of Dr. Monica Thapar.
(vii) Based on the facts recorded in the inquest report, as also in the statement of Dr. Pritu Dhalaria, that Dr. Monica Thapar had died after her admission and treatment in the Urmil Heart and Lung Centre, Surat, it was deduced, that Rajiv Thapar, the husband of the deceased could have neither strangulated nor poisoned the deceased, while she was admitted for treatment at the Urmil Heart and Lung Centre, Surat.
Based, interalia, on the aforesaid evaluation of the complaint filed by Madan Lal Kapoor (the respondent-complainant), the Additional Sessions Judge, Delhi concluded, that no prima facie case was made out against the appellants/accused either under Section 304B of the Indian Penal Code or under Section 498 of the Indian Penal Code. The Additional Sessions Judge, Delhi, accordingly discharged the appellants/accused by an order dated 7.8.1999.
16. Dissatisfied with the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant) filed a Criminal Revision Petition (bearing no. 42 of 2000) in the High Court. The aforesaid Criminal Revision Petition was dismissed in default on 11.8.2005. The order dated 11.8.2005 was assailed through a Special Leave Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court. The aforesaid Special Leave Petition was allowed by this Court on 31.8.2007. The matter was remanded back to the High Court for adjudication on merits. It is thereupon, that the High Court passed the impugned order dated 8.5.2008, setting aside the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi. The instant order dated 8.5.2008 is the subject matter of challenge in the present appeal.
17. A perusal of the order of the High Court would reveal that the Additional Sessions Judge, Delhi, had primarily relied on certain observations made in the judgment rendered by this Court in Satish Mehra Vs. Delhi Administration, (1996) 9 SCC 766:-
“15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself”
Madan Lal Kapoor (the respondent-complainant), before the High Court, had relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, to contend that the judgment relied upon by the Additional Sessions Judge, Delhi, having been overruled, had resulted in an erroneous conclusion. For the same proposition, reliance was placed on the judgment of this Court in Suresh Kumar Tekriwal Vs. State of Jharkhand, (2005) 12 SCC 278. On behalf of the complainant, reliance was also placed on the decision in State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, to contend, that only the material placed on record by the prosecution, could be gone into at the time of framing charges. And if, on the basis of the said material, the commission of the alleged offence was prima facie made out, the charge(s) was/were to be framed. At the stage of framing of charges, it was submitted, that the requirement was not to determine the sufficiency (or otherwise) of evidence to record a conviction. For this, reliance was placed on State of M.P. Vs. Mohanlal Soni (2000) 6 SCC 338, wherein this Court had concluded, that the requirement was a satisfaction, that a prima facie case was made out. On behalf of Madan Lal Kapoor, reliance was also placed on State of A.P. Vs. Golconda Linga Swamy (2004) 6 SCC 522, to contend that at this stage, meticulous examination of the evidence was not called for.
18. As against the submission advanced on behalf of Madan Lal Kapoor (the respondent-complainant), the appellants/accused contended, that the Court was justified in considering the material on the record of the case, and on the basis thereof, to arrive at a just and reasonable conclusion. In this behalf, it was averred that the post-mortem report, the report of the Central Forensic Science Laboratory, the inquest proceedings recorded by the SDM, Delhi, and the letters addressed by the family members of the complainant (duly noticed in the inquest proceedings), were a part of the record of the case, and as such, were to be taken into consideration while passing the orders contemplated under Sections 227 and 228 of the Cr.P.C. The submission advanced on behalf of Madan Lal Kapoor (the respondent- complainant) before the High Court, was accepted. The High Court arrived at the conclusion, that the Additional Sessions Judge, Delhi had erroneously placed reliance on the decision rendered by this Court in Satish Mehra Vs. Delhi Administration (supra), which had already been overruled by the judgment rendered by a larger Bench in State of Orissa Vs. Debendra Nath Padhi (supra).
19. While considering the contention advanced on behalf of the appellants/accused, the High Court concluded, that the material/documents/record which the complainant was placing reliance on, did not fall within the ambit and scope of the term “record of the case” contained in Section 227 of the Cr.P.C. According to the High Court, the record of the case referred to in Section 227 of the Cr.P.C. was only such record, documents and articles which, on consideration by the Magistrate, are sent to the Court of Sessions, consequent upon passing an order of commitment. The material and documents relied upon by the appellants/accused in the present controversy would, therefore, not fall within the zone of consideration at the hands of the Court of Session under Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the behest of the appellants/accused were declined. For the aforesaid reasons, the High Court accepted the Criminal Revision Petition filed by Madan Lal Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly quashed. The parties were accordingly directed to participate in the further proceedings before the Court of Sessions.
20. We have considered the submissions advanced at the behest of the rival parties. We are of the view, that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 of the Cr.P.C. specially because the Additional Sessions Judge in his order dated 7.8.1999, had concluded, on the basis of the material relied upon by the accused, that no case was made out against the accused. This according to learned counsel, was permissible in view of the inherent jurisdiction vested in the High Court under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being extracted hereunder:-
“482. Saving of inherent power of High Court
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice. This Court had an occasion to examine the matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent-complainant), wherein it was held thus:-
“29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.”
(emphasis is ours)
Recently, this Court again had an occasion to examine the ambit and scope of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & Ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 of the Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed, that under Section 482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 of the Cr.P.C. in the facts and circumstances of this case.
21. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.
24. The complaint made by Madan Lal Kapoor (the respondent-complainant) proceeds on the assumption, that his daughter Dr. Monica Thapar was administered poison. The said assumption was based on the fact, that the respondent-complainant, (as also the members of his family), found the body of their daughter had turned blue when they laid their eyes on it for the first time after her death. The motive disclosed in the complaint is non- cordiality of relations between the deceased Dr. Monica Thapar, and the family members of her husband (the appellants herein), on account of non- fulfillment of dowry demands. Insofar as the allegation, that the appellants had poisoned Dr. Monica Thapar to death is concerned, the appellants have placed reliance on the post-mortem report dated 28.9.1992, chemical analysis findings recorded in the Central Forensic Science Laboratory’s report dated 9.2.1993, the inquest report dated 6.7.1993, and the order passed by the Additional Sessions Judge, Delhi, dated 7.8.1999. It is clear, that Madan Lal Kapoor (the respondent-complainant), was associated with the investigative process from the very moment the body of Dr. Monica Thapar arrived at Delhi. It was at his instance, that the post- mortem examination was conducted. The body of the deceased, after the same was subjected to the post-mortem examination, was handed over jointly to Madan Lal Kapoor (the father of the deceased) and to Rajiv Thapar (the husband of the deceased). The cremation of the body of Dr. Monica Thapar was carried out jointly by the two families. A high level Medical Board, constituted for conducting the post-mortem examination, in unequivocal terms returned a finding, that “cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension” was the cause of Dr. Monica Thapar’s death. It would be pertinent to notice, that samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken for forensic examination in order to verify the allegation of poisoning levelled by Madan Lal Kapoor. The Central Forensic Science Laboratory, New Delhi, in its report dated 9.2.1993 negatived the aforesaid allegation by concluding, that the samples did not indicate the presence of any common poisoning substance. Relying on the inquest report dated 6.7.1993, rendered by the SDM, Delhi, it was sought to be asserted, that echo-cardiography conducted at the Urmil Heart and Lung Centre, Surat, disclosed the presence of a large hole in Dr. Monica Thapar’s heart. Even according to the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had suffered a massive heart attack, and had died at the said hospital on 26.9.1992. It was the submission of the learned counsel for the appellants, that the aforesaid material is evidence of sterling quality which was sufficient to demonstrate, that there was not the remotest possibility, that the trial against the appellants would lead to their conviction.
25. The evidence, relied upon by the appellant has not been contested or refuted by Madan Lal Kapoor (the respondent-complainant), even though he was aware of the same when he filed the complaint. During the course of the proceeding before the committing Magistrate, and even before Sessions Court and the High Court, the appellants had placed emphatic reliance on the material referred to above. The same remained unrefuted in the pleadings filed on behalf of Madan Lal Kapoor. During the course of hearing at the stages referred to above, the veracity of the documents/material referred to above was not contested. The aforesaid position has subsisted even before this Court. It was accordingly submitted on behalf of the appellants, that even if trial is allowed to proceed against the appellants, at the culmination thereof, it would be impossible to return a finding of guilt against any of the accused.
26. According to the learned counsel for the appellants, the material in the nature of the post-mortem report, the Central Forensic Science Laboratory’s report, as also the inquest report, would be sufficient to exculpate the appellants from the allegations and accusations levelled in the complaint.
27. We are one with the aforesaid submission. From the documents/material relied upon by the appellants, for exactly the same reasons as have been projected on behalf of the appellants, we are satisfied to conclude, that the death of Dr. Monica Thapar was not caused by poisoning. Merely because her body had turned blue, when it arrived at Delhi, in our view, is not a sufficient basis to infer that she had been poisoned to death. In fact material relied upon by the appellants is sufficient to condemn the factual basis of the accusation as false.
28. It also needs to be noticed, that Madan Lal Kapoor (the respondent- complainant) took a summersault before the Additional Sessions Judge, Delhi by alleging, that Dr. Monica Thapar had been strangulated by the appellants, (even though the assertion in the complaint was, that she had been poisoned to death). To determine the veracity of the allegation of strangulation, as the cause of her death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, New Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi (members of the Medical Board which had conducted the post-mortem examination) to clarify the altered accusation levelled by Madan Lal Kapoor. The aforesaid doctors, as is apparent from the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, opined in the negative. They affirmed, that the death of Dr. Monica Thapar had not been caused by strangulation. We are therefore satisfied to affirm, that the death of Dr. Monica Thapar has not been shown to have been caused by strangulation. On an overall examination of the matter, we have no other option, specially in the absence of any submission to the contrary, but to conclude, that the material relied upon by the appellants would lead to the indubitable conclusion, that Dr. Monica Thapar had not died on account of having been strangulated.
29. We shall now advert to the allegation made in the complaint by Madan Lal Kapoor, that there was non-cordiality of relations between the deceased Dr. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in consistent and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as “very affectionate and very caring”. The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint.
30. Even though the statement of Dr. Pritu Dhalaria has been relied upon by the SDM, Delhi in the inquest report, which completely knocks out all the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are of the view, that it would be improper to make any reference thereto in deciding the present controversy. Reliance on the statement of Dr. Pritu Dhalaria would be permissible only after the same is recorded by a court on oath, whereupon, he has to be subjected to cross-examination. Only then, his statement would acquire credibility for reliance. Any fact situation based on the oral testimony, by one or the other party, cannot be the basis of a determination, akin to the one in hand.
31. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory’s report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.
32. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.
33. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.
…………………………….J.
(D.K. Jain)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 23, 2013.
False rape case filed by lady. SC Quash FIR. Her lie is nailed by call details…
, , , ,
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 175 OF 2013
(Arising out of SLP (Criminal) No. 1800 OF 2009)
Prashant Bharti …. Appellant
Versus
State of NCT of Delhi …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. On 16.2.2007, Priya (hereinafter referred to as, the complainant/prosecuterix), aged 21 years, a resident of Tughlakabad Extension, New Delhi, made a phone call to the Police Control Room (hereinafter referred to as, the PCR). Police personnel immediately reached her residence. She made a statement to the police, leading to the registration of first information report no. 47 of 2007 at Police Station Lodhi Colony, New Delhi, under Sections 328 and 354 of the Indian Penal Code. In her statement to the police, the complainant/prosecuterix alleged, that the appellant herein Prashant Bharti (hereinafter referred to as, the appellant-accused) was known to her for about four months. The appellant-accused was a resident of Lodhi Colony, New Delhi. It was alleged that on the preceding day i.e., on 15.2.2007, the appellant-accused had made a phone call to the complainant/prosecuterix, at about 8.45 pm, and asked her to meet him at Lodhi Colony, New Delhi. When she – reached Lodhi Colony, he drove her around in his car. He also offered the complainant/prosecuterix a cold drink (Pepsi) allegedly containing a poisonous/intoxicating substance. According to the complainant/prosecuterix she felt inebriated after taking the cold drink. In her aforesaid state, the appellant-accused started misbehaving with her. He also touched her breasts. Inspite of the complainant/prosecuterix stopping him, it was alleged, that the appellant-accused continued to misbehave with her. The complainant/prosecuterix then got the car stopped, and hired an auto-rickshaw to return to her residence. In her statement, the complainant/prosecuterix requested the police to take legal action against the appellant-accused.
3. Immediately after recording the statement of Priya (the complainant/prosecuterix) on 16.2.2007, the police took her to the All India Institute of Medical Sciences (hereinafter referred to as, the AIIMS), New Delhi. She was medically examined at 1.44 pm. It is sufficient to record herein, that as per the medical report prepared at the AIIMS, there was no evidence of poisoning.
4. Based on the statement made by the complainant/prosecuterix, the appellant-accused Prashant Bharti was arrested at 6 pm, on the same day on which the complainant recorded her statement, i.e., on 16.2.2007, a day after the occurrence.
5. After a lapse of five further days, on 21.2.2007, at 8.20 am, the complainant/prosecuterix made a supplementary statement to the police. On this occasion, she alleged, that Prashant Bharti, the appellant-accused, had been having physical relations with her in his house, on the assurance –
that he would marry her. It was alleged by the complainant/prosecuterix, that the appellant-accused had subsequently refused to marry her. With reference to the incident of 15.2.2007, she alleged, that she had been administered some intoxicant in a cold drink (Pepsi) by Prashant Bharti, so as to enable him to have a physical relationship with her. But, it was alleged, that she did not succumb to his said desire on 15.2.2007. The complainant/prosecuterix further alleged, that after she returned to her residence on 15.2.2007, she did not feel well and accordingly, had gone to sleep. She therefore explained, why she had made her earlier complaint, on the following day of the incident. In her supplementary statement, she requested the police to take legal action against Prashant Bharti, the appellant-accused, for having physical relations with her (on 23.12.2006, 25.12.2006 and 1.1.2007) at his residence, on the basis of a false promise to marry her.
6. Immediately after recording her supplementary statement, the complainant/prosecuterix was taken to the AIIMS. She was medically examined at the AIIMS at 12 noon, on 21.2.2007. In the medical report prepared at the AIIMS after her examination, it was recorded, that she had no external injuries, and that her hymen was not intact. It was pointed out, that a vaginal smear was not taken, because more than a month had elapsed from the date of the alleged intercourse(s). Likewise, it was pointed out, that her clothes were not sent for forensic examination, because she had changed the clothes worn by her at the time of the alleged occurrence(s). In other words, the assertions made by the –
accused could not be tested scientifically, because the complainant was being medically examined, after a substantial delay.
7. Based on the supplementary statement of Priya (the complainant/prosecuterix) recorded on 21.2.2007, the offence under Section 376 was added to the case.
8. On 27.2.2007, the statement of the complainant/prosecuterix was recorded under Section 164 of the Code of Criminal Procedure by the Metropolitan Magistrate, New Delhi (in first information report no. 47 of 2007). A relevant extract of the aforesaid statement, is being reproduced below:-
“… then Prashant asked for my number and detail of address. I gave my office telephone number to him. In evening, Mr. Prashant Bharti called me and talked about loan and after some days, Prashant Bharti came to meet in my office and thereafter we became good friends and one day, Prashant Bharti told me that he loves me and wish to marry me and thereafter, we started meeting frequently and I consented for marriage.
One day, when all the family members were gone somewhere, Prashant Bharti called me to his home for party and he told me that he will marry me soon and will inform to his parents about our relationship and he made relation with me. And, whenever his home was vacant, he usually calls me up and when his parents came, I asked him to tell them about our relationship and he did not inform this and on this issue, we have fight with each other and I informed to his parents. Then his parents called Prashant about this and Prashant Bharti denied our relationship to his father and neither he wish to marry me and on that day, I was sent to my home by his parents.
After two days, Prashant Bharti called me and asked me to meet him, as he wish to tender apology and when I was going to reach my home from office, then I, through auto rickshaw, reached at Central School, Lodhi Colony, where Prashant Bharti was standing near to his Santro Car, and he met me there and he asked me that he has committed mistake and he wish to tender apology and after some –
time, he took me to his car and thereafter, he told me that he is feeling thirsty and thereafter, he brought Pepsi in car and we both took the Pepsi. And, after drinking the same, I lost my conscious and thereafter, he started misbehaving with me and I asked him that why he was doing so, then he told me that, as I complained to his father, he will take revenge from me, and he forcibly misbehaved with me, and I immediately got down from the car and by Auto, I came to my house and as I was unwell, I could not lodge my complaint with police. On the next day, I called 100 number PCR and there police official, accompanies me and I informed everything to SHO Surinder Jeet and on that basis, he was arrested.”
9. By an order dated 12.3.2007, the Additional Sessions Judge, Delhi granted bail to the appellant-accused. In the aforesaid order passed on 12.3.2007, the following factual position was relied upon, to extend the benefit of bail to the appellant-accused. The appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer, on the basis of his mobile phone call details. Verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. The complainant/prosecuterix, on and around the time referred to in the complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at –
Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. Even though the complainant/prosecuterix was married to one Manoj Kumar Soni, S/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was not married. At the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled further allegations against the accused of having repeatedly raped her (on 23.12.2006, 25.12.2006 and 1.1.2007), on dates preceding the first complaint.
10. On 28.6.2007, the police filed a chargesheet under Sections 328, 354 and 376 of the Indian Penal Code. In the chargesheet, it was clearly mentioned, that the police investigation, from different angles, had not yielded any positive result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged – against the appellant-accused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below:- “I the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 IPC.”
(emphasis is ours)
11. Aggrieved by the first information report (bearing no. 47 –
of 2007) registered at the Police Station Lodhi Colony, New Delhi, the appellant-accused filed Writ Petition (Crl.) no. 1112 of 2007 before the Delhi High Court for quashing the said first information report on the ground, that the appellant-accused had been falsely implicated. The High Court, dismissed the said writ petition on 27.8.2007, without going into the merits of the controversy, by recording the following observations:- “This Court cannot quash the FIR on the ground that FIR was false FIR. In case of a false FIR, it must be brought to its logical conclusion and Investigating Officer must give a report to that effect. In this case, if it is found that the petitioner has been falsely implicated and the complaint was false, it would be obligatory on the part of the Investigating Officer to register a case and book the prosecuterix for falsely implicating the person in an offence under Section 376 IPC. It is a very serious matter that a prosecuterix just by making a false statement can book somebody in offence under Section 376 IPC, which is serious in nature and invites a minimum punishment of 07 years. I consider that Investigating Officer shall submit a detailed report and in case, it is that the petitioner was falsely implicated, he would take steps for booking the complainant for falsely implicating the petitioner.”
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12. Interestingly, even the complainant/prosecuterix filed Writ Petition (Crl.) no. 257 of 2008 before the Delhi High Court seeking quashing of the first information report lodged by the complainant/prosecuterix herself. The High Court noticed the observations recorded in the order dated 27.8.2007 (passed in Writ Petition (Crl.) no. 1112 of 2007) and dismissed the writ petition filed by the complainant/prosecutrix.
13. On 1.12.2008, the Additional Sessions Judge, New Delhi, framed charges against the appellant-accused, by observing as under:- “4. Considering the facts and circumstances of the case that prosecuterix has levelled specific allegations against the accused that she was given pepsi to drink and after consuming the same she was intoxicated and accused teased her, moved his hands on her breast and earlier made physical relations with her on the assurance of marriage, I am of the considered opinion that prosecution has brought prima facie sufficient material on record against the accused for charge under Sections 354/328/376 IPC. Let charge be framed accordingly.”
14. Dissatisfied with the action of the trial Court in framing charges against him, the appellant-accused filed Criminal Revision Petition no. 08 of 2009, whereby he assailed the order dated 1.12.2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16.1.2009, by interalia observing as under:- “12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.”
15. Despite notice having been issued to the complainant/prosecuterix by this Court in the present case, she failed to enter personal appearance (or be represented through counsel). To procure her presence, bailable –
warrants were issued in furtherance of this Court’s order dated 12.5.2010 and again on 16.10.2012. Priya, the complainant/prosecuterix entered personal appearance on 8.11.2012. During the course of hearing, consequent upon clarifications sought from her in respect of her marital status (at the time of the alleged occurrences with the appellant-accused), she informed this Court, that even though she was married earlier, she had divorced her previous husband before the dates of occurrence. To verify the factual position pertaining to her marital status as on the dates of occurrence(s), she was asked to produce the judgment and decree of divorce, from her previous husband. She accordingly produced a certified copy of the judgment and decree of the Court of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008. A photocopy thereof duly attested by Priya, the complainant/prosecuterix, and her counsel, were taken on record. A perusal of the same reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. She was divorced from her said husband by mutual consent under Section 13B of the Hindu Marriage Act, 1955, on 23.9.2008. Priya, the complainant/prosecuterix also affirmed, that she had remarried thereafter. She also produced before us a “certificate of marriage” dated 30.9.2008. A photocopy thereof duly attested by Priya and her counsel, was also taken on record. A perusal of the same reveals, that Priya (date of birth, 17.6.1986), daughter of Anup Kumar was married to Manoj (date of birth, 8.12.1983), son of Ram Kumar, on 30.9.2008.
16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecuterix – against the appellant-accused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecuterix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecuterix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant/prosecuterix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, –
it would clearly emerge, that the complainant/prosecuterix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecuterix, that she was induced to a physical relationship by Prashant Bharti, the appellant-accused, on the basis of a promise to marry her, stands irrefutably falsified.
17. Would it be possible for the prosecution to establish a sexual relationship between Priya, the complainant/prosecuterix and Prashant Bharti, the appellant-accused, is the next question which we shall attempt to answer. Insofar as the instant aspect of the matter is concerned, medical evidence discussed above reveals, that the complaint made by the complainant/prosecuterix alleging a sexual relationship with her by Prashant Bharti, the appellant-accused, was made more than one month after the alleged occurrences. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. One’s word against the other. Based on the falsity of the statement made by the complainant/prosecuterix noticed above (and other such like falsities, to be narrated hereafter), it is unlikely, that a – factual assertion made by the complainant/prosecuterix, would be acceptable over that of the appellant-accused. For the sake of argument, even if it is assumed, that Prashant Bharti, the appellant-accused and Priya, the complainant/prosecuterix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the complainant/prosecuterix herself, that the said physical relationship was with her consent consequent upon the assurance of marriage. But then, the discussion above, clearly negates such an assurance. A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.
18. Insofar as the assertion made by the complainant/prosecuterix, in her first complaint dated 16.2.2007 is concerned, it is apparent, that on the basis thereof, first information report no. 47 of 2007 was registered at Police Station Lodhi Colony, New Delhi. In her aforesaid complaint, Priya, the complainant/prosecuterix had alleged, that the appellant-accused had called her on her phone at 8.45 pm and asked her to meet him at Lodhi Colony, New Delhi. When she reached there, he drove her around in his car. He also offered her a cold drink (Pepsi) containing a poisonous/intoxicating substance. Having consumed the cold drink, she is stated to have felt inebriated, whereupon, he took advantage of her and started misbehaving with her, and also touched her breasts. Insofar as the instant aspect of the matter is concerned, the presence of the complainant/prosecuterix, as well as the appellant-accused, at the alleged place of occurrence (Lodhi Colony, New Delhi), on the night of – 15.2.2007 after 8.45 pm, has been established to be false on the basis of mobile phone call details of the parties concerned. Details in this respect have been summarized in paragraph 8 above. The same are not being repeated for reasons of brevity. The proof of the aforesaid factual matter must be considered to be conclusive for all intents and purposes, specially, in view of the observations made by this Court in Gajraj Vs. State (NCT) of Delhi [(2011) 10 SCC 675], wherein it was held as under:- “19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi PW23, pointed out by the learned counsel for the accused-appellant, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the accused-appellant came to be identified during the course of investigation, was legitimate and unassailable. The IEMI number of the handset, on which the accused-appellant was making calls by using a mobile phone (sim) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies . In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid authentic digital evidence which is a byproduct of machine operated electronic record having no manual interference. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the accused- appellant.”
The aforesaid factual conclusion, that the two concerned parties were not present at Lodhi Colony, New Delhi after 8.45 pm on 15.2.2007, as has been established on the basis of the investigation carried out by the police, cannot be altered at the culmination of the trial, since the basis of the aforesaid determination is scientific evidence. Neither has the said material been contested by the complainant/prosecutrix. Once it is concluded, that the complainant/prosecuterix and the appellant-accused were at different places, far away from one another, and certainly not in –
Lodhi Colony, New Delhi on the night of 15.2.2007, it is obvious that the allegation made by Priya, the complainant/prosecuterix against Prashant Bharti, the appellant-accused of having outraged her modesty, was false. What stands established now, as has been discussed above, will have to be reaffirmed on the basis of the same evidence at the culmination of the trial. Such being the fact situation, we have no other alternative but to conclude, that the allegations levelled by the complainant/prosecuterix, which culminated in the registration of a first information report at Police Station Lodhi Colony, New Delhi on 16.2.2007, as well as her supplementary statement, would never lead to his conviction.
19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”) has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor (Criminal Appeal No…… of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under:
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section –
482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal –
proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”
20. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16.2.2007 and 21.2.2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. In so far as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant- accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16.2.2007. Secondly, verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. Thirdly, the complainant/prosecuterix, on and around the time referred to in the –
complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16.2.2007. Fourthly, at the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (as per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Fifthly, even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled allegations against the accused for offence of rape. Sixthly, even though the complainant/prosecuterix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was unmarried. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008, the complainant was married to Lalji Porva on 14.6.2003. The aforesaid marriage subsisted till 23.9.2008. The allegations made by the complainant dated 16.2.2007 and 21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and –
15.2.2007, i.e., positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30.9.2008. This is evidenced by a “certificate of marriage” dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship, based on an assurance of marriage. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the “certificate of marriage” dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. Tenthly, The factual position indicated in the charge-sheet dated 28.6.2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the –
complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28.6.2007. Eleventhly, as per the medical report recorded by the AIIMS dated 21.2.2007 the assertions made by the complainant that the accused had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21.2.2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination.
21. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C.
22. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar’s case (supra) stand – satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.
Disposed of in the aforesaid terms.
…………………………….J.
(D.K. Jain)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 23, 2013.
Delhi HC-498A-Statements made either by the deceased or by one to another would definitely fall under hearsay evidence and such statements are not admissible.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APPEAL No.786/2009
% Judgment reserved on :23rd January, 2012 Judgment delivered on:10th April, 2012
SHIV KUMAR ….. Appellant Through: Mr.S.B.Dandapani, Adv.
versus
STATE ….. Respondent Through: Mr.Naveen Sharma, APP for State
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide instant appeal, the appellant has challenged the impugned judgment dated 29.05.2009 passed by learned Additional Sessions Judge (East) FTC, Karkardooma Courts, Delhi whereby he was held guilty and convicted for the offence punishable under Sections 498A and 304B Indian Penal Code, 1860.
2. Also challenged the order on sentence dated 30.05.2009 whereby he has been sentenced to rigorous imprisonment for a term of three years and fine of ` 5,000/- for the offence punishable under Section 498A Indian Penal Code, 1860 and in default of payment of fine, simple imprisonment for three months. He is further sentenced to rigorous imprisonment for ten years for the offence punishable under Section 304B Indian Penal Code, 1860. Both the sentences were Crl.APPEAL No.786/2009 Page 1 of 18 ordered to run concurrently. Benefit of Section 428 Cr. P.C. was also extended to him.
3. Learned counsel for appellant submitted that the present appellant had already deposited the fine amount of ` 5,000/- imposed upon him vide receipt No.0392275.
4. The facts of the case in brief are that the deceased Smt.Nirmal was married to the appellant on 29.06.2001 and was residing at her matrimonial house at D-339, Gali No.12, Laxmi Nagar, Delhi with her husband i.e. appellant and other in-laws. The accused persons in furtherance of their common intention subjected her to cruelty and harassed her for their unlawful demand of dowry. She died on 16.08.2003 in Irwin Hospital, Delhi under unnatural circumstances.
5. Shri Hori Lal Gupta, father of the deceased made his statement to the SDM which culminated into FIR No.363/2003 under Section 498A Indian Penal Code, 1860 at police station Shakarpur, Delhi. After investigation, police filed the charge-sheet for the offence punishable under Section 498A/304B/34 Indian Penal Code, 1860 against appellant, Anand Gupta, brother-in-law (Dever), and Krishan Murari, brother-in-law (elder Jeth). Thereafter, supplementary charge-sheet was also filed against accused Pawan Kumar brother-in-law (younger Jeth), Smt.Kiran Devi, mother-in-law of the deceased, Ms.Sarvesh @ Chanchal, sister-in-law (Nand), Smt.Rekha, sister-in-law (Nand), Manoj Kumar, (Nandoi) husband of above mentioned Rekha, and Lala Ram Gupta, father-in-law of deceased, for the aforesaid offences being committed.
Crl.APPEAL No.786/2009 Page 2 of 18
6. After considering the submissions of accused persons, and on perusal of the record, prima facie case punishable under Section 498A/304B/34 Indian Penal Code, 1860 was revealed. Thereafter, vide order dated 12.04.2004, charges under aforesaid Sections were framed against all the accused persons mentioned above, including the appellant. They pleaded not guilty but claimed trial.
7. The prosecution to substantiate the guilt of accused persons examined, as many as 14 witnesses and thereafter, statement under Section 313 Cr. P.C. of the accused persons were also recorded. Accused persons also examined nine witnesses in their defence.
8. Learned Trial Judge has recorded in the impugned judgment that instant case was very ably conducted and the submissions were supported by cogent, credible and reliable evidence and they have forcefully militated against the certitude of guilt of the appellant and Smt.Kiran Devi, mother-in-law of deceased. The appellant failed to rebut the presumption under Section 113B of the Indian Evidence Act, 1872. However, sufficient evidence did not come on record against other accused persons. On the basis of the clinching evidence, Smt.Kiran Devi and present appellant were found guilty for the offences punishable under Section 498A Indian Penal Code, 1860 and the appellant was also held guilty and convicted for the offence punishable under Section 304B Indian Penal Code, 1860.
9. Learned Trial Judge has recorded that the scales of justice have heavily tilted in favour of the prosecution and against the appellant and co-convict Smt.Kiran Devi. Since, the prosecution could not prove its Crl.APPEAL No.786/2009 Page 3 of 18 case against other accused persons, namely Anand Gupta, Krishan Murari, Pawan Kumar, Ms.Chanchal, Smt.Rekha and Manoj Kumar – as mentioned above, hence they were acquitted.
10. On the quantum of sentence, considering the age of Smt.Kiran Devi, a lenient view was taken against her and the benefit as per the provision of Section 4 of the Probation of Offenders Act, 1958 was extended to her.
11. Learned counsel for appellant submitted that deceased Nirmal married with appellant on 29.06.2001. This was her second marriage. After a few months of the marriage, she had a miscarriage and was admitted in the Lady Harding Hospital for about 08 days. After discharge from the hospital, she joined her husband and was living in her matrimonial home. On 10.07.2003 she fell from the second floor of the house and was admitted in Irwin Hospital in unconscious condition. She was under treatment till 07.08.2003 when the hospital discharged her due to shortage of bed. Nirmal was taken away by her parents. On 16.08.2003, when her condition deteriorated, she was again taken to the same hospital, where she died within one hour. Her post-mortem was conducted on 17.08.2003. The cause of the death was found to be ‘cerebral damage’.
12. PW1 Shri Hori Lal Gupta father of the deceased complained that his daughter was subjected to cruelty and harassed for dowry by her in- laws and they were responsible for her death. Since deceased Nirmal died within seven years of her marriage at her matrimonial home under unnatural circumstances, case was registered against appellant and 09 Crl.APPEAL No.786/2009 Page 4 of 18 other members of the family for the offences punishable under Section 498A and 304B/34 Indian Penal Code, 1860.
13. During trial, accused Lala Ram Gupta, father of appellant expired. Out of the remaining 08 accused persons, 06 were acquitted and only the appellant and his mother were convicted.
14. Learned counsel for appellant has submitted that PW1 Shri Hori Lal Gupta, PW2 Smt.Kamlesh; and PW3 Shri Pardeep found to be star witnesses in this case. The remaining witnesses were formal witnesses.
15. PW1 Shri Hori Lal Gupta, mentioned two instances of dowry demand. Firstly, ` 20,000/- soon after the marriage for purchasing a three wheeler scooter rickshaw; and secondly two years later a demand of ` 2,000/- to secure the release of appellant from police custody who was alleged to have been detained in the police station Shakarpur for stealing a mobile phone. He also claimed that his daughter was subjected to cruelty at her matrimonial home.
16. This witness in his testimony deposed that he was unemployed, his source of income was some rent and the earning made by his sons. He could not tell the exact date on which the demand of dowry was made by the accused persons from his daughter. He also could not tell the date when such demand was communicated to him by his daughter. He had not given any list of dowry to the police articles which were given in the marriage nor any bill thereof were produced. He admitted the factum regarding non-lodging of any complaint regarding harassment or dowry demand by in-laws to his daughter for the period
Crl.APPEAL No.786/2009 Page 5 of 18 from July, 2001 to July, 2003. He claimed that he arranged the amount of ` 20,000/- from a relative, but could not tell the name of said relative. He admitted that accused persons used to come to see his daughter in a normal manner when she was in his house for one year. He also admitted that when accused persons took his daughter to their home again, he did not give any dowry or cash.
17. PW2 Smt.Kamlesh, mother of the deceased also testified on the same lines with some contradictions.
18. PW3 Shri Pardeep, brother of deceased also testified that they had not given the amount of ` 2,000/- to the accused as they were not having that much money. He has also stated that on the date of the incident when he went to the house of deceased, to bring her for Namkaran ceremony of his nephew, he was told by one of the neighbours that his sister was beaten up by the accused persons and she was taken to hospital, but he could not tell the name of that person and by whom she was beaten.
19. PW8 ASI Shamshuddin was the IO of the case. He deposed that till 10.07.2003, no complaint from Nirmal of her parents was received by him. He stated that one Gudiya told him that after an altercation, Nirmal had gone to the roof top and made jump downside. However, this person was not examined by the prosecution as a witness.
20. DW7 Smt.Baikunth Dasi, testified that deceased Nirmal was suffering from fits and used to tear clothes herself.
Crl.APPEAL No.786/2009 Page 6 of 18
21. On merits, learned counsel for appellant has submitted that there is no eye witness, no suicide note and no dying declaration. Learned Trial Judge relied solely on the evidence of PW1 Shri Hori Lal, father of deceased in convicting the accused persons.
22. Appellant was not present in the house when the incident took place. Co-convict, mother of appellant took Nirmal to the hospital. There is nothing in the evidence to show that the deceased had any quarrel before the incident either with the appellant or any of his family members.
23. He submitted that except the bald statements of the interested witnesses, no other evidence was adduced by the prosecution to prove that in actual fact, the accused persons treated the deceased cruelly or any dowry demand was made and given.
24. No complaint was ever made either by the deceased to her parents of cruelty or dowry demand during the period her marriage sustained. Neighbours were not examined to prove whether there was really any incidence of cruelty.
25. As for the nature of death, it was not conclusively proved as to whether it was a suicide or accident. Deceased was suffering from fits and she could have fallen from the roof during once such attacks. The deposition of DW7 regarding the fact that she was suffering from fits was rejected by learned Trial Judge on the ground that no medical evidence was produced, ignoring the reality that in many societies, fits is still believed to be a curse of God and the patient is never taken to a
Crl.APPEAL No.786/2009 Page 7 of 18 doctor but subjected only to certain religious rituals.
26. To strengthen his contentions, learned counsel for appellant has relied upon Durga Prasad & Anr v State of M.P. : 2010 Crl.LJ 3419 wherein it has been held as under:-
“………….. in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be
shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise
than under normal circumstances, within 7 years
of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand
for dowry. Only then would such death be called
“dowry death” and such husband or relative shall be deemed to have caused the death of the woman
concerned.”
27. Further in Gurditta Singh v. The State of Rajasthan : 1992 Crl. L. J. 309 wherein it has been held as under:-
“34. The words “it is shown” occurring in Section 304B are of significance for the reason that the initial burden of proving that circumstances
envisaged by Section 304B, IPC did exist is on the prosecution. This being shown or established, the question of presumption Under Section 113B of the Evidence Act would arise. In other words to draw a presumption Under Section 113B of the Evidence Act, the necessary ingredient that it is shown that soon before her death she was subjected to cruelty or harassment, in connection with the demand of
dowry has to be proved. Only when these facts are proved then by virtue of the deeming provision of Crl.APPEAL No.786/2009 Page 8 of 18 Section 304B, the Court shall presume that the
husband or any relative of the husband had caused dowry death.
34A. Whenever it is directed by the Evidence Act that the Court shall presume a fact, that fact shall be taken as proved unless and until it is disproved. Meaning thereby that the presumption is a
rebuttable presumption. In this view of the matter, the prosecution has to prove the main factor of
cruelty or harassment in connection with any
demand of dowry.
35. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by Section 304B is to be seen before the death of a woman. The
Courts are to scrutinise the evidence carefully
because cases are not rare in which occasionally there is demand and then the atmosphere becomes
Calm and quiet and then again there is demand.
Where a wife dies in the house of the husband
within the short span of seven years of her
marriage, it is of considerable difficulty to assess the precise circumstances in which the incident
occurred because ordinarily independent witnesses are not available as the torture and harassment is confined in the four walls of the house. However, the courts are to be vigilant to scrutinise the
evidence regarding the harassment and torture
carefully if the witnesses are relatives of the
deceased and relations between them and her in-
laws are strained for any reason whatsoever it
might be.”
28. Learned counsel has also relied upon G.K.Devarajula Naidu v. Crl.APPEAL No.786/2009 Page 9 of 18 State of A.P. : 2004 Crl.L.J. 4571 wherein it has been observed as under:-
“…….. It is no doubt true that in several cases it may not be practically possible to get direct
evidence relating to harassment under Section
498A Indian Penal Code, 1860. The statements
said to have been made either by the deceased or by one to another would definitely fall under
hearsay evidence and such statements are not
admissible………”
29. Learned APP on the other hand, submits that PW1 Shri Hori Lal Gupta, deposed that all the accused persons used to taunt his dauthter for bringing insufficient dowry. The appellant and accused persons namely Lala Ram Gupta, Manoj Kumar, Chanchal, Kiran Devi had demanded a sum of ` 20,000/- from his daughter for purchasing a new three wheeler scooter rickshaw for appellant. He arranged the said amount and given the same to accused Lala Ram Gupta, who had come to his house after about 1 ½ months of the said demand with accused Krishan Murari, Manoj Kumar and the appellant. However, the behaviour of the accused persons did not change and after about two months of the aforesaid payment, accused persons had beaten his daughter for dowry. The appellant had struck her head on the wall, due to which had fallen down. At that time, his daughter was pregnant for three months. Convict Kiran Devi, mother-in-law of deceased had given a kick blow on her stomach. Thereafter, accused persons had taken his daughter to Lady Harding Hospital where convict Kiran Devi got done abortion of the child of the deceased. Accused persons after getting his daughter admitted in the hospital did not come back and Crl.APPEAL No.786/2009 Page 10 of 18 looked after her. She remained hospitalised about 08-10 days. She had taken her to his home after the abortion. She remained in the house for about a year. None of the accused persons came to meet her to inquire about her health during that period. After the period of one year, the appellant with accused persons came to his house and requested him to send his daughter. They promised that they will not ill treat her or harass her in future. On their assurances, he sent his daughter with them. On 30.06.2003 his daughter had made a phone call at his house, which was received by his younger daughter Ms.Rekha Rani stating that the appellant was detained by police on the allegations of committing theft of a mobile phone. Therefore, an amount of ` 2,000/- was required for getting him released from the police station. She told that accused Lala Ram was asking her (deceased) to arrange for the amount from him (father of deceased). On 07.07.2003, he had sent his son Pradeep to the house of deceased for inviting accused persons to his house for 10.07.2003 for attending the Naamkaran ceremony of his grandson. Convict Kiran Devi had promised that all of them will come with Niraml. But none came to his house in the said ceremony. He sent his son Pradeep and his son-in- law Mahesh Chand to bring his daughter Nirmal to his house. When they reached at the matrimonial house of deceased, one neighbour told to his son Pradeep that Nirmal was beaten by the accused persons to the extent that she had become unconscious and she was taken to the Irwin Hospital.
30. PW2 Smt.Kamlesh, mother of deceased deposed that on the marriage of deceased they had spent about ` 2.00Lacs, but the accused Crl.APPEAL No.786/2009 Page 11 of 18 persons not satisfied with the dowry given in the marriage. They used to demand dowry from deceased. Her daughter (deceased) had told her that when some sweets were sent to her through her daughter Ms.Rukmani, accused Anand had hit her daughter on her cheeks and convict Kiran Devi had kicked her and made her to spit out that sweet. At that time, her daughter was pregnant by three months and thereafter her daughter was admitted in Lady Harding Hospital and her abortion was got done against her wishes. Rest she supported the deposition made by her husband.
31. PW3 Shri Pardeep Kumar, brother of deceased also supported the version deposed by his parents.
32. PW10 Shri V. P. Singh, SDM deposed that on 16.08.2003 he had joined as SDM at Preet Vihar. On that day he had received the information through SHO Shkarpur, Delhi that one lady Nirmal was taken to LNJP Hospital where she was declared brought dead. He had asked the SHO/IO to get the dead body preserved in the mortuary of Maulana Azad Medical College and Hospital, Delhi. On 17.08.2003 he went to the mortuary of above college and hospital where father of deceased had met him. Statement of Pradeep Kumar and father were recorded in his presence regarding identification of dead body vide Ex.PW3/A and Ex.PW1/B respectively. From No.25.35 was filled up by the IO vide Ex.PW8/A. He sent request for post-mortem vide Ex.PW8/C. Statement of father of deceased was recorded vide Ex.PW1/A by one of his relatives in his presence. On 26.08.2003, parents of deceased with their son came to the office of witness and got
Crl.APPEAL No.786/2009 Page 12 of 18 the statement of mother of deceased was recorded vide Ex.PW2/A in his presence by one of the relatives of Smt.Kamlesh.
33. PW12 Ramashanker Mishra, who took the deceased to Walia Nursing Home deposed that he knew appellant and his family members. On 10.07.2003 at about 09:45AM he head commotion and came out of his house and saw crowd in front of the house of appellant. He saw that wife of appellant was lying in the street in injured condition. He went inside the house. He arranged a three-wheeler scooter, by which appellant brought his wife to Walia Nursing Home. He alongwith mother of appellant went to the shop of Anand where Anand and father of appellant were present. He sent them to the hospital. Appellant was residing at the second floor of the house. He had helped him in taking separate accommodation from his parents.
34. PW14 Dr.Mukta Rani, LBS Hospital, Khichripur, Delhi deposed that on 17.08.2003 she conducted post mortem on the body of the deceased, who was brought in the hospital with alleged history of fall on 10.07.2003 from the second floor. She was discharged from LNJP Hospital but was again brought there on 16.08.2003 at about 01:40PM. She was declared brought dead. She given her report vide Ex.PW14/A.
35. On 26.03.2004, CFSL report No.CFS/EE/2003 (DEL 836) dated 23.02.2004 was placed before her alongwith parcel of post-mortem report of this case for opinion. After perusal of the record, she opined that cause of the death of Nirmal was due to cerebral damage. Her opinion to this effect is Ex.PW14/B.
Crl.APPEAL No.786/2009 Page 13 of 18
36. Learned APP further submitted that all the witnesses mentioned above, fully supported the prosecution case. The deceased died under suspicious circumstances within seven years of her marriage. The allegations of demand of dowry and cruelty are also proved against the appellant. Therefore, the impugned judgment and order on sentence are proper and there is no discrepancy in the same. Therefore, instant appeal deserves to be dismissed.
37. Heard learned counsel for parties.
38. The deceased fell from the second floor of the house on 10.07.2003; thereafter admitted in Irwin Hospital in unconscious condition. She remained under treatment till 07.08.2003, & discharged due to shortage of bed. On 16.08.2003, when her condition got deteriorated, she was again taken to the said hospital, where she died within one hour. In the present case, there is no statement or dying declaration of the deceased. Only PW1 Shri Hori Lal gupta, father of the deceased is star witness, relying whereupon the Trial Court convicted the appellant for the offences mentioned above.
39. During cross-examination, PW1 Shri Hori Lal Gupta, father of the deceased could not tell the date on which the demand of dowry was made by accused persons from his daughter. He also could not tell the date when such demand was communicated to him by his daughter. He failed to file any list of dowry articles to the police which were given in marriage nor any bills thereof were produced in Court.
40. I note that the incident took place on 10.07.2003 and the injured
Crl.APPEAL No.786/2009 Page 14 of 18 succumbed to her injuries on 16.08.2003. In between there is no complaint against the appellant and the same has been admitted by PW1 Shri Hori Lal Gupta, father of the deceased. Even for the alleged amount of ` 20,000/- given to the father of the appellant, after taking from a relative, he could not tell the name of said relative. Even admitted that when accused persons took his daughter again to their house, he did not given any dowry or cash.
41. PW3 Shri Pradeep, brother of deceased also testified that they had not given the amount of ` 2,000/- to the appellant as they were not having that much money. This witness deposed that on the date of the incident, when he went to the house of deceased, to bring her for Namkaran ceremony of his nephew, he was told by one of the neighbours that his sister was beaten up by the accused persons and she was taken to hospital; however, he could not tell the name of that person and by whom she was beaten, nor produced in the court.
42. PW8 ASI Shamshuddin, has admitted the factum that till 10.07.2003, no complaint from parents of deceased was received by him. This witness also deposed that one Gudiya told him that after an altercation, deceased had gone to the top of the roof and jumped downside. However, the prosecution has not produced said Gudiya in the witness box.
43. DW7 Smt.Benkuth Dasi, testified that deceased Nirmal was suffering from fits and used to tear clothes herself.
44. The appellant was not present in the house when the incident
Crl.APPEAL No.786/2009 Page 15 of 18 took place. There is nothing in evidence to show that the deceased had any quarrel before the incident either with the appellant or any of his family members. No complaint was ever made either by the deceased to her parents for cruelty or dowry demand during the period of her marriage sustained. Not a single neighbour was examined to prove whether there was really any incident of cruelty. The Trial Judge did not rely upon the testimony of DW7 regarding the fact that deceased was suffering from fits, however, rejected her evidence on the ground that no medical evidence was produced.
45. To held an accused guilty for the offence punishable under Section 304B Indian Penal Code, 1860, it has to be shown that apart from the fact that a woman died on account burn or bodily injury, otherwise than under normal circumstances, within seven years of her marriage, but it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any other relative of her husband. The question of presumption under Section 113 B of the Indian Evidence Act, 1872 would arise when the necessary ingredients show that soon before her death; she was subjected to cruelty or harassment in connection with the demand of dowry. This fact has to be proved. When these facts are proved only then, by virtue of the deeming provision of Section 304B Indian Penal Code, 1860 the Court shall presume that the husband or any relative of the husband has caused the dowry death. Meaning thereby, the presumption, is a rebuttable presumption. In this view of the matter, the prosecution has to prove the main factor of cruelty or harassment in connection with any demand of dowry. The courts are to be vigilant to Crl.APPEAL No.786/2009 Page 16 of 18 scrutinise the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in-laws are strained for any reason whatsoever it might be.
46. No doubt, it is true that in several cases it may not be practically possible to get direct evidence relating to harassment under Section 498A Indian Penal Code, 1860. The statements said to have been made either by the deceased or by one to another would definitely fall under hearsay evidence and such statements are not admissible.
47. As deposed by PW1 Shri Hori Lal Gupta, father of the deceased that the appellant had struck her head on the wall due to which she had fallen down. These facts have not been proved by PW14 Dr.Mukta Rani, who conducted the post-mortem on the body of the deceased. Even otherwise, the cause of death has been opined as ‘cerebral damage’, which demolishes his deposition to this effect.
48. From the date of the incident, when the deceased fall from the second floor of the house till her death, she remained unconscious. If the deposition of PW1 to be believed, then he would have made the complaint against the appellant regarding the demand of dowry or cruelty being committed with the deceased, immediately on the day of incident. There was no necessity to wait till she died.
49. I find no connectivity with cruelty for the demand of dowry to the death of the deceased. There has to be some atrocities soon before the death, which is, missing in the present case.
Crl.APPEAL No.786/2009 Page 17 of 18
50. Therefore, after considering the submissions of learned counsel appearing for the parties, I am of the considered view that the appellant has wrongly been convicted for the offence under Section 304B Indian Penal Code, 1860. At the best, he could have been convicted for the offence punishable under Section 498A Indian Penal Code, 1860.
51. Therefore, I modify the impugned judgment and order on sentence dated 29.05.2009 and 30.05.2009 respectively and held the appellant guilty and convicted for the offence punishable under Section 498A Indian Penal Code, 1860 only.
52. The appellant has already undergone more than four years’ incarceration; whereas the maximum punishment provided for the offence punishable under Section 498A Indian Penal Code, 1860 is only three years.
53. Accordingly, jail authorities are directed to set the appellant free henceforth, if he not required in any other case.
54. Consequently, Criminal Appeal is partially allowed.
55. Copy of order be sent to the Jail Superintendent, for compliance.
56. Trial Court Record be remitted back immediately.
57. No order as to costs.
SURESH KAIT, J
APRIL 10, 2012/Mk
Crl.APPEAL No.786/2009 Page 18 of 18
SC: Allegations against family members in 498A generall, reckless and vague hence FIR Quashed
, , , ,
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2070 OF 2012
[Arising out of Special Leave Petition (Crl.) No.9092 of 2011]
CHANDRALEKHA & ORS. … APPELLANTS
Vs.
STATE OF RAJASTHAN & ANR. … RESPONDENTS
O R D E R
1. Leave granted.
2. This appeal, by special leave, challenges order dated 14/9/2011 passed by the Rajasthan High Court dismissing the petition filed by one Rajeev Bhandari and appellants 1, 2 and 3 herein (original petitioners 2, 3 and 4 in the Special Leave Petition No.9092 of 2011) under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of FIR lodged by respondent 2 against them under Sections 498A and 406 of the Indian Penal Code.
2. Rajeev Bhandari is the husband of respondent 2. Appellant 1 is the mother-in-law and appellants 2 and 3 are the sisters-in-law of respondent
2.
3. In the special leave petition, Rajeev Bhandari was arraigned as petitioner 1. However, on 9/12/2011, this court dismissed the special leave petition insofar as Rajeev Bhandari is concerned. Therefore, today, the challenge to the impugned order can be said to be raised only by appellants 1, 2 and 3.
4. It is necessary to give a gist of the facts. On 1/4/2009, respondent 2 lodged the FIR in question at Thana Mahila, District Jodhpur against Rajeev Bhandari, his father Meghraj Bhandari and appellants 1, 2 and 3 alleging offences under Sections 498A and 406 of the IPC. In the FIR, she stated that she got married to Rajeev Bhandari on 9/7/2002 at Jodhpur; her father gave cash of Rs.1,25,000/- and gold and silver ornaments, other articles, clothes, household utensils, etc. to her husband’s family; she resided at Ahmedabad with her husband after her marriage; her husband behaved well for about two and half months; after that, the behaviour of Rajeev Bhandari, his father and the appellants 1, 2 and 3 changed; they started harassing her because she had brought less dowry; they did not give her sufficient food to eat; in her absence, appellants 1, 2 and 3 used to scatter her clothes and belongings and they demanded cash of Rs.6 lakhs. It is further stated in the complaint that on 26/1/2003, all of them harassed her and asked her to bring Rs.6 lakhs and gold and silver items from her father and threatened her that if she does not bring them, she will suffer. According to her, she suffered mental shock because of this behaviour and, hence, she left the matrimonial home in the morning of 27/1/2003. Then, her husband Rajeev Bhandari came searching for her and assured that there will be no demand of dowry. Due to this assurance, she again went to the matrimonial home. However, there was no difference in the behaviour of Rajeev Bhandari and appellants 1, 2 and 3. The dowry demand persisted. She, therefore, phoned her father and told him to come to Ahmedabad. On 14/2/2003, her father came to Ahmedabad and took her to Jodhpur on 15/2/2003. Since then, she has been staying with her parents. According to her, her husband Rajeev Bhandari and appellants 1, 2 and 3 have not contacted her thereafter. She contacted them and asked them to return her original degree certificate, silver and gold ornaments and other articles. But, they ignored her request. She, therefore, requested the police to take legal action against her husband Rajeev Bhandari, her father- in-law Meghraj Bhandari and appellants 1, 2 and 3. It must be stated here that during the pendency of the proceedings, Meghraj Bhandari died.
5. Before the Rajasthan High Court, it was submitted that a perusal of the FIR shows that respondent 2 had left her matrimonial home in the year 2003 and was residing in Jodhpur. No offence can be said to have been committed by the appellants in the territorial jurisdiction of Jodhpur. Hence, registration of FIR at Mahila Thana, Jodhpur is illegal. It was also urged that there is delay in lodging the FIR. On these grounds, it was prayed that the FIR be quashed. The Rajasthan High Court was of the view that part of cause of action had accrued at Jodhpur. It was held that since the offence is a continuous offence, FIR cannot be quashed on the ground of jurisdiction. The High Court also refused to quash the FIR on the ground of delay.
6. Before we refer to the submissions of learned counsel for the appellants, we must note that office report dated 16/8/2012 indicates that respondent 2 has been served. However, she has not engaged any counsel. We, therefore, requested Ms. Asha Nair to assist us on her behalf as amicus curiae. Ms. Nair has accordingly assisted us.
7. Learned counsel for the appellants submitted that respondent 2 left the matrimonial home on 15/2/2003 and the FIR was filed on 1/4/2009 after six years. Counsel submitted that the allegations made in the FIR are of general nature and extremely vague. The FIR, therefore, deserves to be quashed. Ms. Nair, on the other hand, has supported the order of the High Court.
8. We must, at the outset, state that the High Court’s view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3.
9. Hence, impugned judgment and order dated 14/9/2011 passed by the Rajasthan High Court in S.B. Criminal Misc. Petition No.1935 of 2009 is quashed and set aside insofar as it refuses to quash the FIR in question against appellants 1, 2 and 3. FIR No.66 of 2009 lodged at Mahila Thana, District Jodhpur, Rajasthan is quashed insofar as it relates to appellants 1, 2 and 3 viz. Smt. Chandralekha, Vandana and Vinita respectively. We make it clear that so far as Rajeev Bhandari s/o. Meghraj Bhandari is concerned, the proceedings shall go on in accordance with law. We have not quashed FIR No.66 of 2009 insofar as it relates to Rajeev Bhandari. Needless to say that the court seized of the complaint shall deal with Rajeev Bhandari’s case independently, without being influenced by anything said by us on the merits of the case and in accordance with law.
10. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
DECEMBER 14, 2012.
———————–
8
Gujrat HC: Non payment of maintenance -> Breach of statement made by husband before the Court does not constitute contempt of the court
MCA/2701/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.
CIVIL APPLICATION No. 2701 of 2008
In
SPECIAL
CIVIL APPLICATION No. 17411 of 2006
=========================================================
MINAXIBEN
PRATAPBHAI PARMAR W/O. MAFATLAL @ MAHESHBHAI – Applicant(s)
Versus
MAFATLAL
@ MAHESHBHAI PARSHOTTAMBHAI DESAI – Opponent(s)
========================================================= Appearance
:
MR
BHUNESH C RUPERA for Applicant
None for
Opponent
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER 21st October, 2008
ORAL
ORDER (Per
: HONOURABLE MS. JUSTICE R.M. DOSHIT)
The
applicant, estranged wife, has taken out this application under the Contempt of Courts Act.
It is the
complaint of the applicant that the opponent-husband has failed to carry out directions issued by this Court in above Special Civil Application No. 17411 of 2006.
Learned
advocate Mr. Rupera has appeared for the applicant. He has submitted that by Order dated 7th March, 2008 made by the learned Single Judge in above writ petition, the opponent was directed to clear arrears of maintenance by 30th April, 2008 and to file an undertaking to that effect in the Court by 14th March, 2008. The said directions have not been complied with by the opponent. Hence, the present Application.
We are
afraid, we are unable to read the order as suggested by Mr. Rupera. The above writ petition was filed by the opponent against the order for payment of maintenance made by the Court below. The said petition has been dismissed with cost by the learned Single Judge. While dismissing the petition, the learned Single Judge has recorded the statement made by the applicant thus, ..the petitioner assured this Court that arrears will be cleared latest by 30.4.2008 and undertaking to this effect shall be filed by the petitioner latest by 14.3.2008. It is evident that the aforesaid sentence was uttered by the opponent i.e., it was the statement made by the opponent before the Court and not a direction issued by the Court to the opponent. Breach of statement made before the Court does not constitute contempt of the court.
Application is misconceived. Hence, rejected.
{Miss R.M
Doshit, J.}
{K.M Thaker, J.}
Prakash*
Gujrat HC: Just admission of dues of maintenance cannot be said to have committed the contempt and willful disobedience of the order of Court: Contempt dismissed
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MCA/1308/2006 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION – FOR CONTEMPT No. 1308 of 2006
In
SPECIAL
CIVIL APPLICATION No. 8143 of 2005
=====================================================
USHABEN
CHANDUBHAI RAVAT & 1 – Applicant(s)
Versus
CHANDUBHAI
BHIKHUBHAI RAVAT – Opponent(s)
===================================================== Appearance
:
MR MR PRAJAPATI for Applicant(s) : 1 – 2. MR
HARSHADRAY A DAVE for Opponent(s) : 1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/03/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. The
applicant has preferred this application seeking initiation of contempt proceedings against the opponent and after holding the opponent guilty of deliberate and willful disobedience of order dated 18.2.2006 made in Special Civil Application No. 8143 of 2005, punish the opponent.
2. Heard
the learned advocate Mr. MR Prajapati for the applicants and Mr HA Dave for the opponent.
3. Both
the parties are husband and wife. Due to constant harassment, the applicant no. 1 started to live separately with opponent no. 2 and after living separately from opponent, it was difficult for the applicant no. 1 to survive with minor daughter Yuti ? applicant no. 2 herein, and therefore, applicant no. 1 has filed Special Civil Suit No. 54 of 2001 before the 5th Jt. Civil Judge(JD), Junagadh, for getting maintenance amount of 36 months under section 18 and 20 of the Hindu Adoption and Maintenance Act, which was partly allowed on 8.10.2003 against which the opponent had preferred First Appeal No. 361 of 2004 before this Court which was withdrawn on 26.10.2004. It appears that during the pendency of the First Appeal, due to non-compliance of the order dated 27.2.2004, the applicant had initiated contempt proceedings against the opponent by filing Misc. Civil Application No. 1598 of 2005 but it was rejected on 23.8.2005. That after withdrawal of the First Appeal, the applicant no. 1 has initiated execution proceedings against the opponent in the trial court by filing Special Darkhast No. 2 of 2004 and after hearing both the parties, the trial court issued attachment warrant against the opponent. Against the order of attachment warrant, the present opponent has approached this Court by filing Special Civil Application No. 8143 of 2005 and obtained stay against execution proceedings. That after hearing learned advocates of both the parties, this Court has passed an order directing the opponent to pay an amount of Rs. 1 lac to the applicant on 24.10.2005. That before granting interim relief to the applicant, this Court has invited calculations regarding amount of maintenance from both the sides and after going through the said calculation, this Court has passed the said order dated 24.10.2005. In the above Special Civil Application No. 8143 of 2005, on 18.2.2006,this Court has passed the order, which reads as under:
1.Husband, petitioner is directed to pay Rs. 6000/- between 1st to 10th date of every month.
The
husband is directed to pay remaining amount i.e. Rs. 5,51,754/- within one month from the date of receipt of the writ.
If
the husband neglected to pay the amount, then he will have to pay 12% interest on the same.??
4. Despite
the above order passed by this Court, the present opponent has not complied with the said order, therefore, the applicant has issued legal notice to the opponent but as the opponent is alleged to have deliberately and willfully disobeyed the order of this Court dated 18.2.2006, the contempt proceedings was launched against the present opponent.
5. After
hearing the learned advocates appearing for both the sides, opponent has filed the statement of the amount paid to the applicant and the amount due to be paid, on page No. 33 of this application. We have perused the said statement. In view of the statement, the applicant no. 1, who is staying at Junagadh, has sent a letter and clarified all due amount and has contended in paragraph-2 of her letter that due to unavoidable circumstances, that is, examination of her daughter, she was unable to come before this court, but if, the Court is required to hear the applicant no. 2, she is ready to come before this court.
6. We
have gone through the contents of the letter of applicant no. 1 and read the reply of opponent, it appears that there is delay in complying with the order passed by this Court, but from the contentions it appears that every person has a right to utilise the provisions of law. In the present case, opponent had challenged the order of the legal fraternity and try to get some justice in her favour. The conduct of the present opponent shows that when a person is utilising the provisions of law, then, none can say that he has disobeyed the order passed by this Court. From the statement in affidavit dated 9.3.2008 produced by the opponent, it appears that he has admitted all dues but from the said admission, it cannot be said that he has committed the contempt and willful disobedience of the order of this Court.
7. From
the aforesaid discussion, it appears that the goal of the applicant which is fulfilled by opponent’s statement, then there is nothing on record to say that the opponent has disobeyed the order of this Court.
8. In
view of aforesaid reasons, the present application is disposed of. No order as to costs. Notice discharged.
(D.A.
MEHTA, J.)
(Z.K.
SAIYED, J.)
mandora/
Karnataka HC: Complainant roped in everyone in 498A including 70 yer mom and 75 year dad, Quashed
Madras HC: DV Act : Unless the complainant, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application….Proceedings Quashed
Dated:- 31.08.2009
Coram:-
The Hon’ble Mr. Justice R.REGUPATHI
Crl. O.P. No. 91 of 2009 and
M.P. No. 1 of 2009
K. Viswanathan … Petitioner
vs.
Sivamalar … Respondent
Prayer: Petition filed under Section 482 of the Code of Criminal Procedure for the relief as stated therein.
For Petitioner : Mr.V. Gopinath,
Senior Counsel
For Respondent : Mr. P. Duraisamy
O R D E R
The 5th respondent in the C.M.P filed before the trial court, admittedly driver of the 1st and 2nd respondents is the petitioner herein and he seeks for a direction to call for the records and quash the proceedings in C.M.P. No. 8207 of 2008 filed under Sections 12, 17, 18 and 19 of the Protection of Women from Domestic Violence Act 2005 before the Judicial Magistrate No. 1, Coimbatore, who took the same on file and ordered issuance of summons. The 5th respondent in the C.M.P. No. 8207 of 2008,
3. Learned Senior Counsel for the petitioner submits that admittedly, the petitioner is neither a family member nor having any domestic relationship with the family of respondents 1 and 2 and under such circumstance, he is erroneously included as one of the respondents in the application. By referring to Para 13a of the application, wherein the applicant prays for a declaration to the effect that she is entitled to reside in the shared household and the prayer at Para 13b for a direction to respondents 1 to 5 to hand over gold jewellery and sridhana property in their custody, learned Senior counsel submits that a person can be included as a respondent in an application of this kind only in the event of the aggrieved person establishing the domestic relationship with such person sought to be taken as respondent as a family member living together in the joint family and contended that the petitioner is not a person coming under the purview of "respondent" and he is not in possession and control over the sridhana property; therefore it is a fit case to quash proceedings against him.
4. Per contra, learned counsel for the respondent submits that specific allegations have been made in Para No. 6 of the application to the effect that the petitioner was always acting as if he was also a family member in the household and playing a dominant role by taking important decisions, but curiously respondents 1 to 4 are under the clutches of the petitioner for unknown reasons. It is also alleged that the petitioner even had the audacity to abuse the husband of the respondent herein in front of his parents.
5. Heard the submissions made on either side and perused the materials available on record.
6. The words "respondent" and "domestic relationship" have been defined in 2 (f) (q) of the Protection of Women from Domestic Violence Act, 2005. 2(f): ""Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family" 2(q) ""respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act."
7. Having regard to the operation of the Act as against the person who is sought to be taken as "respondent" in the proceedings initiated thereunder, it must be pointed out that unless the aggrieved person, namely, respondent herein, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application. If the respondent has any grievance against the petitioner, she is always at liberty to initiate proceedings against him before the appropriate forum for any offence committed by him against her, if she is so advised.
8. Considering the facts and circumstance, I do not find any justification on the part of the trial court in including the petitioner as one of the respondents in the application; therefore, the proceeding pending in CMP No. 8207 of 2008 on the file of the learned Judicial Magistrate No. I, Coimbatore is directed to be quashed in so far as the petitioner / 5th respondent is concerned.
9. Accordingly, the Criminal Original Petition is ordered and consequently, miscellaneous petition is closed. Ar
To
1. Judicial Magistrate No. I,
Coimbatore
Gujrat HC: DV Act :Family members (respondent 2-6) may not be made to suffer for matrimonial dispute between husband and wife. Relief Granted to them
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CR.MA/2422/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2422 of 2011
=========================================
MAYANKKUMAR
SURESHCHANDRA SHELAT & 5 – Applicant(s)
Versus
STATE
OF GUJARAT & 1 – Respondent(s)
========================================= Appearance
:
MR MAYUR RAJGURU for Applicant(s) : 1 – 6. MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR DAKSHESH MEHTA for Respondent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 28/09/2011
ORAL
ORDER
The
present application has been filed by the petitioners, who are the husband and his family members (petitioner No. 1-husband and petitioner Nos. 2-6 – family members) under sec. 482 of the Code of Criminal Procedure for quashing Complaint No. 3026/2010 under the Domestic Violence Act, 2005 pending before the Court of Metropolitan Magistrate, Court No. 1, Ahmedabad, on the grounds set out in the application.
2. Heard
learned advocate Mr. M. Rajguru for the petitioners and learned advocate Mr. Dakshesh Mehta for respondent No. 2.
3. In
view of rival submissions and considering the details which have been referred giving rise to various litigations and also the facts stated, it requires detailed examination and therefore the matter requires consideration. Submissions have been made by learned advocate Mr. Rajguru that it is an over implication where the complaint has been filed as and by way of abuse of the process of court.
4. On
the other hand, learned advocate Mr. Mehta has pointedly referred to the orders and various details stating that respondent No. 2-wife has been deprived of even legitimate right of maintenance and the husband has not cared to even remain present in the proceedings and has successfully avoided remaining present even in the execution proceedings. He has also stated that the properties have been disposed of denying the right to respondent No.2-wife.
5. However,
as could be seen, petitioner No.1-husband may be responsible for the quarrel between him and respondent No. 2 wife regarding matrimonial ties, but as it appears, prima facie, that for his defaults the family members may not be made to suffer by such further offshoots and the proceedings. In the circumstances, without any further elaboration, the following order is passed:
Rule.
Expedited. Ad-interim relief in terms of para 3(b) qua petitioner Nos. 2 to 6 (family members). It is also directed that petitioner No. 1-husband shall be obliged to deposit the amount of maintenance before he could be heard in the matter.
It
is clarified that it will be open for respondent No. 2 complainant-wife to proceed in accordance with law for recovery of the amount of outstanding maintenance from petitioner No. 1 husband.
D.S.
permitted.
(Rajesh
H. Shukla, J.)
(hn)
Top
AP HC: Respondents 2 and 3 and the complainant did not live together in a shared house…DV act proceedings quashed
CRIMINAL PETITION No.4140 of 2010
2-8-2012
Nagamuthula Kondaiah
State of A.P., rep. by P.P. & another.
Counsel for the Petitioner: Sri P.SRIDHAR REDDY
Counsel for the Respondent No.1: The Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
ORDER:
1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of II Additional Judicial Magistrate of First Class, Kothagudem.
2. The petitioner is the respondent and the second respondent is the complainant in the DVC case. The respondent filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioner herein with a plea to restrain him from dispossessing her from shared household and also to pay compensation.
3. For the sake of convenience, I refer the parties as arrayed in the DVC. It is pleaded and alleged in the complaint as follows.
4. (a) The complainant is the legally wedded wife of Chembeti Chinna Koteshwar Rao, whereas their marriage took place as per Hindu Rites and Customs on 15.11.2008. In fact, her husband was first married to one Uma Maheshwari, daughter of the respondent on 11.8.2000 and a girl by name Keerthi who is aged 7 years was born to them. On 7.3.2008 Uma Maheshwari died. The respondent used to reside in their house as family member. In fact he was looking after the affairs of the house. Her husband reposed implicit confidence on the respondent in all respects. Factually, the husband of the petitioner married her as she was a relative of him and also for taking necessary care of the minor. According to the complainant, further she and her husband have been taking care of the minor. The respondent got no interest in the welfare of the minor. On the other hand, he made several efforts to grab the amounts kept in the name of the minor girl.
(b) She alleges that apart from that, the respondent has also been making efforts to subject her to domestic violence one way or the other for the purpose of ruining the matrimonial house. The petitioner is always under threat and danger in the hands of the respondent. While such circumstances existed, on 30.6.2009 the respondent along with some anti-social elements entered the house and threatened her with dire consequences and expressed his intention to kidnap the minor. Apart from that on 1.7.2009, the respondent attempted to kidnap the minor and in that context, criminally intimidated her again threatening her with dire consequences. Later, she informed about the incident to her husband, following which they gave a report in Palvancha Police Station, which was registered in Cr.No.170 of 2009 under Sections 363, 511, 506 read with Section 34 IPC and then the respondent was arrested by the police. She claims that because of the conduct of the respondent, her health is endangered. It is also stated that the respondent left the sharing roof of the petitioner’s matrimonial house, but he is continuously making an onslaught to wreck vengeance against the family.
5. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.
6. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Act’ are important.
(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. So existence of domestic relationship and living in shared house as defined in Sections 2(f) and 2(s) of the Act are the conditions precedent for the aggrieved party to initiate proceedings under the Act. (b) By virtue of Section 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. The meaning of the proviso can be better understood while analyzing what is meant by domestic relationship.
(c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thereby to constitute domestic relationship in between two parties, they should have lived in a shared house and they are related by consanguinity marriage or through a relationship in the nature of marriage, adoption or as members of a joint family. The person aggrieved, covered by the proviso under Section 2(q) falls within the ambit of the definition of domestic relationship being a relative of the respondent by marriage.
(d) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. Section 3 of the Act contemplates "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if-
(a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."
(e) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Significantly, it is emphasized that to constitute a shared household, it must be a household where the aggrieved person lives or lived in a domestic relationship subject to the other formalities incorporated therein.
7. Thereby the main requirements here are as to whether the complainant and the respondent lived together in a shared house and whether the complainant is related to the respondent by consanguinity, marriage or through a relationship in the nature of marriage, adoption or being a member of a joint family who lived together as envisaged in Section 2(f) with regards to domestic violence. Pertinently, the daughter of the respondent i.e the first wife of the husband of the complainant died, thereby the first marriage of the husband of the complainant does not exist now. Thus, the complainant is altogether a different person, who got no relationship with the respondent by virtue of any marriage otherwise or by consanguinity or by being a member of a joint family within the meaning of section 2(f). What is envisaged under the proviso in Section 2(q), which section defines what is meant by ‘respondent’ that an aggrieved wife or female living in a relationship in the nature of a marriage may file a complaint against a relative of the husband or male person is well within the ambit of the definition of domestic relationship only. In other words, when domestic relationship as defined in Section 2(q) is one of the conditions to file an application under the Act, a relative of the husband or male person must be one who comes within the ambit of that definition which excludes a relative like the respondent in this case.
8. With regards to the question of living in a shared house as defined in Section 2(s), the respondent must have a right to live in the house or allowed to live in the house under an obligation having domestic relationship as contemplated in Section 2(f) with the other inmates of the house which is one of the conditions to initiate the proceedings under the Act. Importantly in the definition of shared house also it is emphasized that the person aggrieved must have lived in a shared house having got domestic relationship which in fact does not include a person like the respondent herein subject to the formalities mentioned. That apart, neither the complainant nor her husband got any obligation to allow him to reside in the house. It is not a case of husband keeping the respondent in the house aiding the respondent to harass the complainant, rather it is admittedly a case of both the complainant and her husband living together harmoniously and both of them facing the alleged conduct of the respondent. If he is residing in the house unwantedly, they can take measures to send him out. Thus, as the respondent cannot be brought within the purview of the provisions enumerated that debars the complainant to file the complaint.
9. In addition to the discussion made above, the complaint is based only on surmises and conjectures. There are no specific allegations, in other words, there are only bald allegations against the respondent. It clearly appear that false allegations were made against the respondent for some purpose. It is something unbelievable in view of the circumstances of the case that the respondent preferred to stay in the house of the complainant and her husband after the death of his daughter, who was the first wife of the husband of the complainant. It is claimed by the respondent that the husband of the complainant has filed D.W.O.P.No.777 of 2009 on the file of the Court of Principal District Judge, Khammam for appointing him as the Guardian of the minor and he has also filed O.S.No.169 of 2009 on the file of the Court of Principal Senior Civil Judge, Kothagudem for damages against him on the ground that he made derogatory allegations against him in another legal proceedings and he also gave report to the Station House Officer, Palvancha Police Station and got him arrested, which establish that the complainant and her husband are bent upon to harass him to force him to accept their terms.
10. Hence good grounds are made out to quash the proceedings in the DVC. No body should be tried or enquired into unnecessarily in any proceeding. If it is done, it is nothing but abusing the process of law and harassing him or her.
11. In the result, the criminal petition is allowed and the impugned proceedings in the D.V.C.No.1 of 2010 are quashed.
______________________
G. Krishna Mohan Reddy, J
Date: 2.8.2012
Note:
L.R. copy be marked.
B/o
DA
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.4140 of 2010
2.8.2012
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.4140 of 2010
Date: 2.8.2012
Between:
Nagamuthula Kondaiah
.. Petitioner/Accused
And
The State of A.P., rep. by its
Public Prosecutor and another.
.. Respondents
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.5558 of 2009
ORDER:
1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of Additional Judicial Magistrate of First Class, Armoor, Nizamabad district.
2. The petitioners are the respondents 1 to 3 and the second respondent herein is the complainant in the DVC case. For the sake of convenience, I refer the parties as arrayed in the DVC.
3. The complainant filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioners herein to pass protection orders, residence order, maintenance order, custody order and to pay monetary relief compensation order and any other reasonable order respectively.
4. The claim of the complainant is as follows.
Her marriage with the first respondent was performed on 14.7.2008 at Tirupati. Before the marriage, the first respondent was engaged to another girl belonging to Ramadugu, by reason of which, he expressed his unwillingness to marry her and therefore the engagement was cancelled subject to paying damages. For two days after the marriage, the first respondent was cordial with her. Later, the parents of the first respondent i.e. respondents 2 and 3 started harassing her expressing that she was not suited to the first respondent and if another girl was married to the first respondent, they would have got a dowry of Rs.20.00 lakhs with the help of which, the husband of their daughter i.e. the fourth respondent could have been sent to foreign countries for getting better jobs. Further it is alleged that the respondents 1 to 4 harassed her asking her to leave the house voluntarily and also suggested her to marry another male person. Further, she was not allowed to take coffee, breakfast and launch by the respondents and she was also not allowed to speak to the first respondent and lead marital life with him. It is further alleged that whenever she was wearing good clothes, they used to irritate her saying where you were going. It is also alleged that the fourth respondent pushed the complainant out of the house while asking her to leave the house expressing that they would conduct another marriage to the first respondent after getting rid of her. It is further alleged unable to bear the torture of the respondents, the complainant left the house and has been staying with her parents house.
5. Learned counsel for the respondents would contend that the marriage between first respondent and the complainant is in dispute, by reason of which alone, the domestic violence case is not maintainable. Further the complainant and the first respondent never lived together and there was no consummation of marriage.
6. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.
7. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) are to be considered.
(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. Thereby the main criteria to file the case is that there should be domestic relationship between the person aggrieved and the respondent. It necessitates to understand what is domestic relationship in this context.
(b) By virtue of Section 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; (c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. So, to satisfy this definition both should have lived or live in a shared house and they are related by consanguinity marriage etc.
(d) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
(e) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. This is the criteria in fact to grant the reliefs under the Sections 18 to 22.
(f) Section 3 of the Act reads – "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if- (a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."
8. From the pleas taken, it appears that after the marriage, the first respondent and the complainant lived together. There is no basis to say that the respondents 2 and 3 and the complainant lived together in a shared house as defined though no doubt the other ingredients are satisfied. On this ground, the complaint is not tenable and hence ultimately the proceedings are to be quashed so far as the respondents 2 and 3 are concerned. In the result, the petition is dismissed so far as the first respondent is concerned and is allowed so far as the other respondents are concerned.
______________________
G. Krishna Mohan Reddy, J
Bombay HC: DV act proceedings cannot be inititated against grand sons to claim monetary and medical relief
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 892 OF 2009
1. Ganesh s/o. Rajendra Kapratwar .. Petitioners Age. 50 years, Occ. Business,
R/o. Talgalli, Degloor,
Tq. Degloor, Dist. Nanded.
2. Abhijeet s/o. Ganeshrao Kapratwar
Age. 24 years, Occ. Service,
R/o. As above.
3. Parijeet s/o. Ganeshrao Kapratwar
Age. 21 years, Occ. Education,
R/o. As above.
Versus
1. The State of Maharashtra .. Respondents
2. Sow. Shantabai w/o. Rajendra Kapratwar
Age. 66 years, Occ. Household,
R/o. Talgalli, Degloor,
Tq. Degloor, Dist. Nanded.
Shri Y.R. Barhate, Advocate for the petitioners. Shri K.M. Suryawanshi, A.P.P. for respondent No.1/State. Shri B.G. Deshmukh, Advocate for respondent No.2. CORAM : P.R. BORKAR,J.
DATED : 10.02.2010
(2)
ORAL JUDGMENT :-
1. This is a petition for quashing and setting aside proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act” for brevity), against the petitioners at the behest of respondent No.2 bearing Misc. Criminal Application No. 75 of 2009, pending before the Judicial Magistrate, First Class, Degloor and also for quashing and setting aside order dated 26.08.2009, taking cognizance of the complaint and issuing notice to the petitioners.
2. Brief facts giving rise to this petition may be stated as below :-
. Admittedly respondent No. 2 is mother of petitioner No.1 and petitioner No.1 is father of petitioner Nos. 2 and
3. It is also not disputed that respondent No.2 has two more sons besides petitioner No.1. Respondent No.2 approached the Court of Judicial Magistrate, First Class, Degloor under section 12 (1) of the Domestic Violence Act. It is stated (3)
therein that respondent No.2 is residing with her second son Anil. Her youngest son Ram is serving at Chandigarh, Haryana along with his family. Petitioner No.1 has his business of finance. His elder son Abhijeet who is petitioner No.2 is serving in Delhi as an Engineer and earning Rs. 30,000/- per month. However, the petitioners are not providing maintenance to respondent No.2. It is further stated that the petitioners are disputing with respondent No.2 on trifle matters and causing her mental torture. The husband of respondent No.2 purchased a plot at Vishal Nagar, Degloor and constructed a house. But the petitioners were threatening to dispossess her forcibly and she is likely to lose shelter. It is further stated that respondent No.2 is suffering from so many diseases such as blood pressure. As there is cataract in her eye, doctor advised surgery. Due to lack of money, respondent No.2 is unable to undergo surgery and therefore she wanted maintenance, so also medical expenses from the petitioners.
3. Along with petition the original application under Domestic Violence Incident Report, Application under Section 23 (1) of the Domestic Violence Act and affidavit are (4)
enclosed. Considering the documents the learned Judicial Magistrate, First Class, Degloor, issued notices to the petitioners by order dated 26.08.2009 and same is challenged in this matter.
4. This Court by order dated 1st October, 2009 refused to entertain the petition so far as petitioner No.1 is concerned and therefore the petition was dismissed as against petitioner No.1. So far as petitioner Nos. 2 and 3 are concerned, they being grand-sons of respondent No.2, the petition is to be considered and notice before admission was issued to respondent No.2
5. Heard Adv. Shri Y.R. Barhate for the petitioners, A.P.P. Shri K.M. Suryawanshi for respondent No.1 and Adv. Shri B.G. Deshmukh for respondent No.2.
6. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission.
7. The learned advocate for the petitioner argued that (5)
petitioner Nos. 2 and 3 are grand-sons of respondent No.2 and as such during lifetime of petitioner No.1 i.e. their father, they are not liable to pay maintenance, nor they are duty bound to provide medical expenses for cataract operation of respondent No.2. He also pointed out that it is not case of respondent No.2 that the petitioner No.1 is not in a position to pay maintenance or he is not able to pay medical expenses because of old age, unemployment or disability etc. It is further argued that when petitioner No.1 is there, respondent No.2 will not be entitled to get medical expenses or maintenance from petitioner Nos. 2 and 3. Thus proceedings under the provisions of Domestic Violence Act against petitioner Nos. 2 and 3 is an abuse of process of law.
8. It is argued that petitioner No.2 is residing at Nioda, (U.P.) and he is serving there and not residing at Degloor; whereas petitioner No.3 is residing with petitioner No.1 at Degloor. On the other hand the learned advocate for respondent No.2 argued that as per Section 2-A of the Domestic Violence Act “aggrieved person” is defined as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any (6)
act of domestic violence by the respondent. Phrase “domestic relationship” is defined under section 2 (f) of the said Act as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. “Domestic violence” is defined in section 3 of the Act.
9. The only allegation regarding domestic violence is that the petitioners quarreled with respondent No.2 on petty matters and/or threatened to dispossess her from the house, which was constructed by her husband on the plot purchased by him. It is nobody’s case that the cataract which requires surgical operation is a result of any domestic violence. So far as maintenance and medical expenses are concerned, section 20 of the Domestic Violence Act is relevant and it lays down that while disposing of application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic (7)
violence and such relief may include, but not limited to the medical expenses.
10. In this case there is no dispute that petitioner No.1 Ganesh was liable to pay maintenance and he would also be liable to incur medical expenses as mentioned in section 20 (1) (b) of the Domestic Violence Act. However, so far as petitioner Nos. 2 and 3 are concerned, under Hindu Adoptions and Maintenance Act, 1956, as grand-sons they would have been liable to pay maintenance under section 22 (1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not not been alive. When the father of petitioner Nos. 2 and 3 is alive and is capable of paying maintenance, section 22 (1) of the Hidu Adoptions and Maintenance Act, will not be applicable and under section 20 of the Hindu Adoptions and Maintenance Act, petitioner No.1 would be liable to pay maintenance to his mother i.e. respondent No.2. As per section 20 (b) of the Domestic Violence Act, the maintenance includes even medical attendance and treatment.
11. So in the above said circumstances, the proceedings under section 12 (1) may not be tenable against petitioner (8)
Nos. 2 and 3 so far as relief of maintenance and medical expenses are concerned. However, residence order under section 19 of the Domestic Violence Act can be passed against all the petitioners. Section 17 which recognizes right to reside in a shared house. It is argued before this Court by the learned advocate for the petitioners that respondent No.2 has been residing separately for 10 years. In-fact, in the Domestic Violence Incident Report, in para 4 it is specifically stated that applicant has been residing with her second son Anil. However, this would be a question of fact and the parties will have to go before the Magistrate, so far as direction is sought against forcible dispossession is concerned. It would be a question of fact whether for 10 years respondent No.2 has been residing separately, and there is threat of her dispossession from the house as claimed.
12. So, in these circumstances, this petition is allowed partly. The petition is dismissed so far as petitioner No.1 is concerned as stated earlier. The proceedings against petitioner Nos. 2 and 3 may proceed, further only in respect of reliefs which could be granted in sections 18 and 19 of the Domestic Violence Act. (9)
13. The Criminal Writ Petition accordingly disposed of. [P.R. BORKAR,J.]
snk/2010/FEB10/crwp892.09
Delhi HC: If Family members did not stay together with complainnant as joint family and stayed separately, cannot be made respondent to the DV act
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 452/2012
% Judgment delivered on: 7th February, 2012
SONIA CHAUHAN RAGHOVE ….. Petitioner Through : Mr.M.B. Singh, Adv.
versus
SANJIVE RAGHOVE & ORS ….. Respondent Through : NEMO.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl.M.A. 1565/2012(Exemption)
Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.
Crl.M.A. 1566/2012(Delay)
Delay condoned.
Criminal M.A. stands disposed of.
+ Crl. M.C. 452/2012
1. Vide the instant petition, the petitioner has challenged the impugned judgment dated 15.11.2011 passed by ld. ASJ (01), District- West Delhi and order dated 16.08.2010 passed by ld. MM in
Crl.M.C.No.452/2012 Page 1 of 6 Complaint Case no. 278/01/2010, filed under Section 12(1)(3(4)(5) read with Sections 18,19,20 and 22 read with Rule 6(1) of the Domestic Violence Act, has issued summons only against respondent no. 1 i.e. husband of the complainant and declined to issue summons against respondent no. 2 to 5.
2. I note in order dated 16.082010, ld. MM of Mahila Court, West Delhi has recorded that respondent no. 1 Dr. Sanjeev Raghav, husband of the applicant, who is residing at Rewari, Haryana. Respondent no. 2 and 3 are residing separately and cannot be stated to be in domestic relationship with the applicant. Therefore, ld. Trial Judge not preferred to issue summons against the aforesaid respondents.
3. Similarly, respondent no. 4 is residing in Delhi. She is the married sister in law, who does not share any domestic relationship with the applicant. Therefore, respondent No.4 has also not been summoned.
4. As far as the respondent no. 5 is concerned, who is stated to be the friend of respondent No.1 and not a relative, therefore respondent No.5, has also been summoned.
5. Being aggrieved by the order dated 16.08.2010 the petitioner has challenged the aforesaid order passed by ld. MM before the court of Sessions.
6. Vide order dated 15.11.2011, ld. ASJ after considering the fact has held that respondent no. 1 is the husband of the applicant and respondent no. 2 to 4 are the father-in-law, mother-in-law and sister-in- law of the applicant respectively and respondent no. 5 is the colleague of respondent no. 1. It is alleged in the application that petitioner had
Crl.M.C.No.452/2012 Page 2 of 6 married with respondent no. 1 on 10.03.2004. After the marriage, they lived together as husband and wife at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. It is further alleged that she was harassed, humiliated and ill-treated by respondent no. 1 to 4 for not fulfilling their demands of dowry. They hatched a conspiracy to turn the complaint out of the matrimonial home and while acting on the same, respondent no. 1 had started applying for the job outside Chandigarh.
7. I note that ld. ASJ, has perused the impugned order dated 16.08.2010, wherein it is recorded that respondent no. 2 to 4 cannot be summoned as they cannot be stated to be in domestic relationship with the complainant. Respondent no. 5 has not been summoned as he is a friend of respondent no. 1 and not the relative.
8. I note ld. ASJ has also dealt the issue raised by ld. Counsel for the petitioner and has referred Section 2 (f) of the Act that respondent no. 2 to 4 being the blood relatives of respondent no.1 and with whom petitioner lived immediately after her marriage fall within the domestic relationship.
9. It is further submitted by the ld. Counsel for the petitioner that as per the provisions of Section 2 (q) of the Act, the male partner of the respondent is liable for violation of the Act. Respondent no. 5 being the business partner of the respondent no. 1 is liable to summoned.
10. Section 2 (a) of the Act defines aggrieved persons. For the convenience, said Section is reproduced as under:- “Aggrieved person means any woman who is, or has been in a domestic relationship with the respondent
Crl.M.C.No.452/2012 Page 3 of 6 and who alleges to have been subjected to any act of domestic violence by the respondent”
11. I note, ld. Addl. Sessions Judge has been guided by the case titled as Vijay Verma vs. State N.C.T of Delhi & Anr. decided by this Court in 2010 (4) JCC 2377 wherein it is recorded as under:
“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:
“(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become Crl. M.C. No. 3878 of 2009 Page 3 of 7 aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot Crl.M.C.No.452/2012 Page 4 of 6 be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married Crl. M.C. No. 3878 of 2009 Page 4 of 7 and establishes her own household with her husband. Such son, daughter, daughter-in- law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time”.
Crl.M.C.No.452/2012 Page 5 of 6
12. It is clear from the judgment recorded by ld. ASJ that complainant had admitted in her application under Section 12 of the Act, that had stayed together at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. However, respondent no. 2 & 3 are living together separately from the petitioner. Respondent no. 4 is the married sister and is also living separately from the petitioner.
13. There is no allegation in the application, which would show that petitioner along with respondent no. 1 and respondent no. 2 to 4 had lived together as a joint family.
14. As respondent no. 5 is concerned, he is alleged to be a business partner of the respondent no. 1. Respondent no. 5 being the business partner of the respondent no. 1 does not fall under the category of the male partner as provided by the proviso to Section 2 (q) of the Act.
15. In the view of above, I find no discrepancy in the order passed by the ld. Trial Courts, therefore I refrain to interfere with the same.
16. Accordingly, the instant petition is dismissed.
17. No order as to cost.
SURESH KAIT, J
FEBRUARY 07, 2012
Jg
Crl.M.C.No.452/2012 Page 6 of 6
AP HC: Proceedings under the DV Act are not maintainable against the female members, the proceedings are liable to be quashed
THE HON’BLE SRI JUSTICE P.SWAROOP REDDY
Criminal Petition No. 4106 of 2008
22-10-2008
Smt. Menakuru Renuka and Others.
Smt. Menakuru Mona Reddy.
2.State of A.P. rep. By Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad.
Counsel for Petitioners : C.Praveen Kumar.
Counsel for Respondent1: K.M.Mahender Reddy.
:Order:
This petition under Section 482 Cr.P.C. is filed by the petitioners, who are respondent Nos. 2 to 4 in D.V.C. No. 1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The first respondent herein, who is the complainant (herein after called as the complainant) in the above D.V.C., filed the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) claiming reliefs under Sections 18, 19 and 20 of the Act.
2. According to the complainant, her marriage with M.S. Mahender Reddy son of the first and second petitioners and the brother of the third petitioner herein was performed on 29.06.1997. According to the complainant, huge amount to a tune of Rs.1.00 crore was given to the petitioners apart from several other articles. After the marriage,
the spouses lived in United States of America for some time. There was harassment by the husband, even after the birth of a child. Even after they returned to India, there was harassment by the husband, as well as parents-in-law, including the sister-in-law. It is the case of the complainant that not only she, but her father was assaulted by the present petitioners. In the D.V.C., she sought reliefs of separate residence, compensation of Rs.8.00 crores and Rs.1.50 Lakhs towards house hold expenses.
3. The contention of the petitioners is that even if the entire allegations in the complaint are taken to be true also, the provisions of the Act would not attract against present petitioner Nos. 1 and 3, as under Section 2 (q) of the Act, women are not liable and the reliefs that are now being claimed by the petitioners can be granted against the husband only and not from any other member of the family, including the present second petitioner, father-in-law. It is also the contention of the petitioners that the complainant has also filed a case against the petitioners and her husband under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act in Crime No.77 of 2008 of Pulivendula Police Station that was registered on 12.6.2008, which perhaps is a counter blast to the report given by the second petitioner herein at Varthuru Police Station, Bangalore City on 6.6.2008.
4. A reading of the complaint given to the Protection Officer would show that the complainant was continuously harassed at USA, as well as in India, in several ways. While they were in USA, the present petitioners – parents-in-law and sister-in-law were instigating her husband to harass her and after they came to India also, all the family members of the husband, including the sister-in- law harassed her and they even assaulted her and her father. In the DVC, the complainant claimed protection under Section 18; provision for residence under Section 19; maintenance under Section 20 and compensation under Section 22 of the Act.
5. In the counter filed on behalf of the first respondent, the allegations in her complaint are repeated mostly and it is contended that the acts of the present petitioners and her husband attract the provisions of the Protection of Women from Domestic Violence Act, 2005; proviso to Section 2 (q) makes women also liable, her husband, parents-in-law and sister-in-law are liable under this Act. According to her, the third petitioner herein, her sister-in-law, used to influence her husband and other family members; she along with her parents instigated and abetted physical violence against her and that criminal cases by both sides have nothing to do with the present case.
6. Learned Senior Counsel – Sri C. Padmanabha Reddy, appearing for the petitioners contends that in view of the provisions of Section 2 (q) of the Act, women are not liable and for that reason the proceedings against them have to be quashed. It is the next contention of the learned senior counsel that the relief claimed in the DVC cannot be claimed against any of the petitioners and for that reason also the proceedings have to be quashed against the petitioners.
7. On the other hand, Sri D. Prakash Reddy, learned Senior counsel appearing for the respondent, contends that in view of proviso to Section 2 (q) of the Act, the DVC is maintainable against women i.e., petitioner Nos.1 and 3 also and the claims made by the first respondent are maintainable against all the petitioners herein, who are the
parents-in-law and sister-in-law.
8. Now, two questions would arise for consideration: — First is whether the proceedings under the Domestic Violence Act are maintainable against women in view of Section 2 (q) of the Act; and
— Second would be whether the reliefs claimed by the first respondent- complainant are maintainable against the petitioners herein.
9. As far as the first question is concerned, Section 2 (q) of the Act reads as under:
“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”.
10. Thus, the Section says “respondent” means any adult male person, there by excluding women altogether; but the proviso provides for filing complaint against the relatives of the husband or a male partner. In view of the same, the learned senior counsel appearing for the first respondent wife contends that women are also liable.
11. As contended, the proviso to Section 2(q) is giving scope for including female relatives of the husband also. Here, any doubt as to whether a female relative can be included, perhaps, is clear from the main Section 2 (q), it covers, the persons having domestic relationship.
As per Section 2 (f) of the Act, “domestic relation” would “include persons that any time lived together in a shared house hold, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family”. Thus, this would cover close members of the husband’s family like mother-in-law, sister-in-law, co-sisters etc. Thus, thereby excluding them (female members of the domestic relationship) from being the respondents, when the Section says adult male persons of the domestic relationship are included, female members of the domestic relationship have to be automatically excluded or else Section 2 (q) of the Act would have been “respondent’ means “any adult person” instead of “any adult male person”. Thus, the question of selfsame female member in domestic relationship excluded as respondent in view of the contents of the main provision again being included under the proviso to the Section may not arise. Therefore, it has to be treated that the proviso intends to include only male persons other than those in domestic relationship also. There appears to be unintentional omission to specifically excluding women in the proviso or it may be because main Section makes it clear that only male persons can be respondents, it is not again specified in the proviso.
12. Clause 4 (1) of the Statement of Objects and Reasons of the Act reads as follows:
“It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Event hose women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
Thus, it would not enable a female relation of husband or a male partner to file a complaint against wife or female partner.
13. As per Section 2 (a) of the Act, “aggrieved person” means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”. As per Section 2 (f) “domestic relationship” as already referred is “a relationship between two persons, who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
Thus, when Section 2 (a) and (f) of the Act are read together, a case of Domestic Violence can be filed by any woman in Domestic relationship, not only by the wife. Wife is generally taken as the wife of the main respondent, who again is, mostly, a son in the family. The above referred Clause 4 (1) of the Statement of Objects and Reasons and Section 2(a) of the Act clarifies that even those women, who are sisters, widows, mothers and single women, living with the abuser are entitled to legal protection under the Act. Thus aggrieved sisters and mothers also can file a DVC and when the intention of the Act is to prevent any female relation of the husband or the male partner to file a DVC against the wife or the female partner, when a DVC is filed by a wife against the brother of her husband, when a sister or mother filed a DVC under the Act against several male members of the family, the question would be who would be wife or female partner that would be entitled to immunity. In such an event, all the wives against whose husbands the DVCs are filed are obviously entitled to immunity. Here, a question may arise as to when DVC is filed only against a female without including her husband like the third petitioner herein or against unmarried girls, what would be the position. My answer is, the intention of the Act is to altogether exclude women, when most women are excluded there is no question of the Act intending to include people like unmarried girls. Thus, it appears that the intention of the Act is to exclude women altogether.
14. In Ajay Kant v. Alka Sharma1, a single Judge of Madhya Pradesh High Court held that “the persons referred to in the proviso of Section 2 (q) of the Act are the persons against whom a complaint can be filed under Sections 31(2) and 33 of the Act, that as there is no definition for the word “complaint” in the Act and, since as per Section 2(d) Cr.P.C., complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under Cr.P.C. that some person, whether known or unknown, has committed an offence, but does not include a police report, that a complaint can be filed for two offences mentioned in Sections 31(2) and 33 of the Act and the word “complaint” that appeared in proviso to Section 2(q) of the Act is only to give right to the aggrieved women to give complaint for contravention of Sections 31(2) and 33 of the Act, but not to include them as respondents in a DVC.
15. There appears to be some confusion in the above decision, as 31(1) of the Act reads that “a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable………”, which again shows that the penalty can be only against the respondent and the question is who is respondent. Section 33 of the Act contemplates action against protection officer, who fails to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause. Here again, the question of failing to discharge the duties of protection officer would arise only in relation to a respondent in the DVC, thereby leading to the same confusion as to who is respondent.
16. Here, it is pertinent to refer to Section 2 (o) of the Act, which says “protection order” means an order made in terms of Section 18′ and Section 18 of the Act provides that the order is contemplated only against the respondent.
17. In the above circumstances, the decision in Ajay Kant’s Case (Supra 1) may not be of any substantial guidance.
18. In view of my above discussion, I hold that female members cannot be made respondents in the proceedings under the Act.
19. Coming to the question of the reliefs claimed by the first respondent before the trial court under Sections 18 to 22 of the Act are concerned – Section 18 of the Act deals with grant of a protection order from domestic violence; from alienating any assets, operating bank lockers etc. which can be definitely granted against the present second petitioner – father-in-law. An order under Section 19, an order for residence, can also be granted against the second petitioner. The reliefs under Sections 20 and 22 also can be granted against the second petitioner, father-in-law.
20. Learned senior counsel appearing for the second petitioner relied on a decision of our High Court in Mohammed Maqeenuddin Ahmed v. State of A.P.2. This is a case where compensation for medical expenses was granted against father-in-law. Perhaps, the above decision is not applicable to the facts of the present case, in view of the nature of the claims made by the complainant herein. In the circumstances, I hold that the reliefs can be granted against the second petitioner.
21. In view of the above finding, as the question of maintainability of the proceedings against the female members is held in favour of petitioner Nos. 1 and 3 herein, holding that proceedings under the Act are not maintainable against the female members, the proceedings are liable to be quashed, as far as petitioner Nos.1 and 3 herein are concerned. Accordingly, the present petition is allowed to the extent of petitioner Nos.1 and 3, quashing the proceedings pending against them in D.V.C. No.1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The petition in so far as it relates to the second petitioner is hereby dismissed.
22. In the result, the Criminal Petition is ordered accordingly.
?1 2008 CRLJ 264
2 2007 CrlLJ 3361
Decree of divorce passed in foriegn country not valid in India as wife did not contest the proceeding in that country
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 990/2010
SHEENAM RAHEJA … Plaintiff Through: Mr. Deepak Anand, Advocate
along with plaintiff in person.
versus
AMIT WADHWA ….. Defendant Through: Defendant is ex parte.
% Date of Decision : September 10, 2012
CORAM:
HON’BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. The plaintiff has filed the present suit seeking a decree of
declaration in favour of the plaintiff and against the defendant,
declaring that the proceedings initiated by the defendant for the
dissolution of marriage between the parties on the ground of
irreconcilable differences, arising out of File No.1-09-FL-149089,
pending before the Superior Court of California, County of Santa
Clara, San Jose, USA are illegal, invalid and void ab-initio.
2. During the pendency of the present suit, however, a decree of
dissolution was passed by the Superior Court of California, County of
CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and
thereupon the plaintiff amended her plaint to seek appropriate orders
declaring the order of dissolution of marriage dated January 14, 2011
and January 18, 2011 passed by the Superior Court of California as
null and void and non-est in the eyes of law.
3. The plaintiff and defendant were married on 15th April, 2000
according to Hindu rites and ceremonies at New Delhi. The marriage
was duly registered under the Hindu Marriage Act, 1955 on 24th
April, 2000. From the wedlock two female children were born on 17th
August, 2001 and 2nd July, 2004, aged 9 years and 6 years
respectively. Both the children are presently in the custody of the
defendant, who, as detailed in the plaint, has taken them away
clandestinely. Shorn of details, the marriage of the plaintiff ran into
troubled waters on account of cruelty inflicted upon her by the
defendant, his mother, sister and other relatives. The mother and sister
of the defendant publicly humiliated the plaintiff for dowry, whenever
she visited India, even though for short spells. On account of said
cruelty and harassment, the plaintiff had become unwell, and on 7th
July, 2008, when the plaintiff came to India along with her two
CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period
the mother-in- law of the plaintiff, without the knowledge and consent
of plaintiff, preponed the already confirmed tickets of the two
children for 17th August, 2008 and took them away with her to USA
on 5th August, 2008. The aforesaid act of the plaintiff’s mother-in-law
naturally caused apprehension in the mind of the plaintiff about her
safety and security in USA, as it became clear to her that the
defendant had no intention to call her to USA. The mother-in-law of
the plaintiff with malafide intentions locked the matrimonial home i.e
H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff
therein. Since the parents of the plaintiff had limited financial
resources, the plaintiff in order to withdraw money from her savings
bank account visited the State Bank of Patiala, Branch Pusa Road,
New Delhi and was flabbergasted to discover that her savings had
already been withdrawn fraudulently by the defendant and his
relatives by forging her signatures. On coming to know that her bank
account had been cleaned out in this manner, the plaintiff informed
the law enforcing agencies and got registered FIR bearing
No.164/2009 under Sections 420/467/468/471/120-B IPC with the
CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the
matter is still pending for investigation. To be noted at this juncture
that the plaintiff had also lodged a complaint in USA against the
defendant for domestic violence committed in the USA.
4. As averred in the plaint, the plaintiff in the third week of
March, 2010, through a whisper campaign amongst close relatives of
the plaintiff and defendant, came to know that the defendant has filed
some proceedings before a Court in USA. The plaintiff checked the
website of the said Court and came to know that a case for dissolution
of marriage of the parties on the ground of irreconcilable differences
had been filed by the defendant before the Superior Court of
California, County of Santa Clara, San Jose, USA. It is the allegation
of the plaintiff that the plaintiff was never served with the petition and
other pleadings by the defendant, who has played a fraud on the
judicial process to the extent that he did not even disclose the address
of the plaintiff to the Californian Court. The plaintiff on 8th April,
2010 after obtaining copies of the Court papers through her friends in
USA sent a letter to the Court at California, disputing the jurisdiction
of the said Court to entertain the petition of the defendant for
CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the
provisions of the Hindu Marriage Act, 1955. The plaintiff also
instituted the present suit seeking a declaration that the proceedings
before the Superior Court at California were illegal, invalid and void
ab-initio.
5. During the pendency of this suit, the plaintiff learnt that a final
order of dissolution of marriage was granted by the Superior Court of
California, County of Santa Clara, San Jose, USA in favour of the
defendant on January 14, 2011 (vide notice of entry judgment dated
January 18, 2011). The plaintiff now seeks to assail the said order of
dissolution of the marriage as null, void and non-est by amendment of
the plaint.
6. Summons of the institution of the present suit were issued to
the defendant on 18th May, 2010. By an order of the same date this
Court opined that prima facie the continuance of proceedings in the
Superior Court of California, County of Santa Clara, San Jose, USA
would act to the prejudice of the plaintiff, as she did not appear to
have any means to contest the said proceedings, and, in the
circumstances, the defendant was restrained from proceeding further
CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order
of this Court along with the copy of plaint and application by all
modes including E-mail, Registered A.D post and UPC at the local
address and at the USA address-3651, Cabernet, Vineyards Circle,
San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,
signifying the receipt of the copy of the plaint and the injunction
order of this Court, duly served upon the defendant by the United
States Postal Service and Indian Postal Service, are placed on record
by the plaintiff. It is pleaded that despite being aware of the restraint
order passed by this Court, the defendant knowingly, wilfully and
intentionally continued to proceed with the case in USA in breach of
the interim injunction passed by this court. The plaintiff also served
upon the defendant legal notice dated 12th October, 2010, making the
defendant aware of the consequences ensuing from the breach of
injunction order dated 18th May, 2010 passed by this Court, but to no
avail.
7. Mr. Deepak Anand, the learned counsel representing the
plaintiff, had drawn my attention to the fact that the order of the
Superior Court of California, County of Santa Clara, San Jose, USA
CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this
Court was on the file of the said Court. The relevant portion of the
order of the Superior Court of California states:
“The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010
(sic.)-purports to prohibit Husband from
proceeding with his divorce action in
California based on the theory that California recognizes divorce based on a finding of
irreconcilable differences which, according to the order, is contrary to Indian marriage law.”
8. After noting that this Court had prohibited the husband from
proceeding with the divorce action in California, the Court at
California, however, observed that the Indian order did not indicate
that the husband was ever served with the Indian order. The learned
counsel for the plaintiff contended and I think rightly so, that the said
observation is of no consequence in view of the fact that there is proof
of service upon the defendant on 5th June, 2010, through the United
States Postal Service, which even bears the signatures of the
defendant, namely, Amit Wadhwa with the date and time of service
i.e 05-June-2010 – 10.35 A.M endorsed on it. This is quite apart from
CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes
including E-mail, proof whereof has been placed on record. The
learned Superior Court of California, despite full and complete
knowledge of the existence of the injunction order passed by this
Court, authorized the defendant to proceed with his request to enter
the plaintiff’s default in case bearing No.1-09-FL-149089 for legal
separation and dissolution of marriage initiated by the defendant in
USA.
9. The learned counsel for the plaintiff on the aforesaid facts and
on the basis of the affidavits by way of evidence filed by the plaintiff
contends that the marriage between the parties having been
solemnized and registered under the provisions of the Hindu Marriage
Act, 1955 in New Delhi, within the jurisdiction of this Court, its
dissolution could be effected only under the said Act. Both the parties
are Indian citizens holding Indian passports and are permanent
residents of India, hence are governed by Indian laws. The Superior
Court of California does not have the jurisdiction to grant decree of
divorce as per the provisions of Hindu Marriage Act, 1955, as neither
the marriage between the parties was solemnized in USA nor the
CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of
California at the time of the presentation of the petition. The
jurisdiction assumed by the foreign Court as well as the grounds on
which the relief is claimed must be in accordance with the
matrimonial law under which the parties are married i.e. the Hindu
Marriage Act, 1955. The plaintiff and the defendant have both resided
together in India and hence as per Section 19 of the Hindu Marriage
Act, 1955, the jurisdiction for the grant of decree of divorce vests
with the Courts in India. It is further the contention of the learned
counsel for the plaintiff that the plaintiff has till date not submitted
herself to the jurisdiction of the foreign Court i.e Superior Court of
California, County of Santa Clara, San Jose, USA nor was she
represented through counsel and the Court passed the decree in her
absence.
10. The learned counsel placed reliance on the provisions of
Section 13 of the Code of Civil Procedure, 1908 to contend that the
plaintiff is entitled to a decree of declaration as claimed by her. For
the sake of facility of reference, the provisions of Section 13 of the
CPC are reproduced hereunder:-
CS (OS) No.990/2010 Page 9 of 21 “13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties
under whom they or any of them claim
litigating under the same title except-
(a) where it has not been pronounced by a
Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the
proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) where the proceedings in which the
judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a
breach of any law in force in India.”
11. Mr. Anand relied on the decision in the case of Y. Narasimha
Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC
451, where the Hon’ble Supreme Court interpreted each and every
clause of Section 13 of the Civil Procedure Code vis-à-vis
matrimonial law with a view to secure required certainty and protect
the sanctity of the institution of marriage and the unity of family
which are the cornerstones of our societal life. Clauses (b), (c), (d)
CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the
following manner :
“16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the
merits of the case, the courts in this country will not recognise such judgment. This clause
should be interpreted to mean (a) that the
decision of the foreign court should be on a ground available under the law under which
the parties are married, and (b) that the
decision should be a result of the contest
between the parties. The latter requirement is fulfilled only when the respondent is duly
served and voluntarily and unconditionally
submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without
appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a
representative for objecting to the jurisdiction of the court, should not be considered as a
decision on the merits of the case. In this
respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.
17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the
judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the
CS (OS) No.990/2010 Page 11 of 21 customary or the statutory law in force in this country. Hence, the only law that can be
applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign
judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a
judgment which is in defiance of the law.
Hence, it is not conclusive of the matters
adjudicated therein and, therefore, unenforceable in this country. For the same
reason, such a judgment will also be
unenforceable under clause (f) of Section 13, since such a judgment would obviously be in
breach of the matrimonial law in force in this country.
18. Clause (d) of Section 13 which makes a
foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the
matrimonial disputes, this principle has to be extended to mean something more than mere
compliance with the technical rules of
procedure. If the rule of audi alteram partem has any meaning with reference to the
proceedings in a foreign court, for the
purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is
necessary to ascertain whether the respondent was in a position to present or represent
himself/herself and contest effectively the said proceedings. This requirement should apply
equally to the appellate proceedings if and
CS (OS) No.990/2010 Page 12 of 21 when they are filed by either party. If the
foreign court has not ascertained and ensured such effective contest by requiring the
petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where
necessary, it should be held that the
proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial
matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European
Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be
recognised only if it is of the forum where the respondent is domiciled or habitually and
permanently resides, the provisions of clause (d) may be held to have been satisfied.”
12. The Supreme Court thereafter deduced the following rule as
regards to the binding effect of a decree of dissolution of marriage
passed by a foreign court :-
“The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the
matrimonial law under which the parties are
CS (OS) No.990/2010 Page 13 of 21 married. The exceptions to this rule may be as follows:- (i) where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently
resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the
respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”
13. Reliance was also placed by Mr. Anand on the decision of
Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT
635, wherein a learned Single Judge of this Court, Hon’ble Mr.
Justice D.P.Wadhwa (as his Lordship then was) after noting that the
petitioner had never contested the proceedings for divorce filed by the
respondent in the Supreme Court at Nova Scotia, held that it would
not mean that she conceded the jurisdiction of that Court or that the
Supreme Court at Nova Scotia was the Court of competent
jurisdiction. The silence of the wife, which the learned Judge
observed, was not because of her own volition but because of the
CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings
there, could not confer jurisdiction on that Court, more so as the
husband was not permanently residing within the jurisdiction of the
Supreme Court of Nova Scotia. The Court further observed as under:-
“It is also clear that the ground on which
the decree of divorce had been granted by
the foreign Court is not a ground on which
such a decree could be granted under the
Act. Since the petitioner wife was not in a
position to contest the proceedings in a
foreign Court as she had no means to go
there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit
Canada complete, the rules of natural
justice stood violated. It is a matter of
common knowledge that mere buying an air
ticket is not enough to visit Canada. There
are various other formalities to be
completed. I am of the firm view that the
foreign judgment on which the husband
relied has no legal validity in this country.”
14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT
682, this Court relying upon the decision of the Supreme Court in the
case of Narasimha Rao (supra), held that as laid down by the
Supreme Court, the first and foremost requirement of recognising a
foreign matrimonial judgment is that the relief should be granted to
the petitioner on a ground available under the matrimonial law under
CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and
effectively submits to the jurisdiction of the forum and contests the
claim which is based on a ground available under the matrimonial law
under which the parties are married. On the facts of the case before it,
the Court further held as under:-
“25. The ground on which the marriage of
the defendant was dissolved is not available in the Hindu Marriage Act. The parties are
Hindus. Their marriage was solemnised
according to the Hindu rites. Their
matrimonial dispute or relationship was,
therefore, governable by the provisions of
Hindu Marriage Act. Since the plaintiff did
not submit to the jurisdiction of the USA
Court nor did she consent for the grant of
divorce in the US Court the decree obtained
by the defendant from the Connecticut Court
of USA is neither recognisable nor
enforceable in India.”
15. The learned counsel for the plaintiff also vehemently contended
that the defendant-husband has practiced fraud upon the Court at
USA inasmuch as no summons were ever served on the plaintiff at
any point of time. The proof of service of summons do not have any
acknowledgement/receipt/signature of the person to whom the
summons and copies were delivered. The issue of service of
CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the
observations made hereinafter.
16. In the instant case, the Superior Court of California has passed
the decree of dissolution of marriage on the ground of irreconcilable
differences. The said ground, not being a ground available for
dissolution of marriage under Section 13 of the Hindu Marriage Act,
1955 under which the marriage between the parties was contracted, it
cannot be said that the judgment is passed on merits. Further, it can,
by no stretch of imagination, be said that the decision of the Superior
Court of California was the result of the contest between the parties.
On the contrary, the judgment dated 14.01.2011 shows no application
of mind or appreciation of facts and is merely mechanical in its form
as well as substance. Moreover, the impugned proceedings and the
decree of dissolution are in violation of the principles of natural
justice, which the Supreme Court in the case of Narasimha (supra)
interpreted to mean something more than mere compliance with the
technical rules of procedure. It was observed by the Supreme Court
that it should not be deemed sufficient that the respondent had been
duly served with the process of the court but it must also be
CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or
represent himself/herself and contest effectively the said proceedings
and if the foreign court had not ascertained and ensured effective
contest by requiring the petitioner to make all necessary provisions
for the respondent to defend including the costs of travel, residence
and litigation where necessary, it should be held that the proceedings
were in breach of the principles of natural justice. In this regard, the
order dated 18.05.2010 passed by this Court and the order dated
03.09.2010 passed by the Superior Court of California are of
significance. This Court on 18.05.2010 concluded that prima facie the
continuance of proceedings in the Superior Court of California would
act to the prejudice of the plaintiff, as she did not appear to have any
means to contest the said proceedings, and, in the circumstances, the
defendant was restrained from proceeding further with the aforesaid
case till the next date of hearing which was 21.10.2010. The Superior
Court of California on 03.09.2010, despite being aware of the order of
this Court, disregarded the same merely on the technical ground that
the order did not indicate that the husband was ever served with the
Indian order and in completely ignoring the principles of natural
CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the
husband’s petition for dissolution of marriage and that there was no
legal basis to stay the divorce proceedings, authorizing the husband to
proceed with his request to enter wife’s default.
17. The cumulative effect of the aforesaid facts, in my considered
opinion, is that the decree of dissolution of marriage passed by the
Superior Court of California cannot be said to have been passed on
merits nor can it be said to be in compliance with the principles of
natural justice. The plaintiff-wife did not contest the claim nor agree
to the passing of the decree. In fact, the plaintiff in the present case
did not have the wherewithal to contest the impugned proceedings. As
noticed above even her bank account had been fraudulently operated
by the defendant and his relatives by forging her signatures and First
Information Report in this regard was lodged by her being FIR
No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect
of which Status Report has been filed by the Investigating Agency
from time to time. In these circumstances, the judgment, having been
passed in default of wife’s appearance, is clearly in violation of the
principle of audi alteram partem as enunciated by the Supreme Court
CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,
where the wife is not in a position to contest the case in a foreign
jurisdiction, resulting in grave injustice to the wife.
18. Lastly, this Court cannot help but refer to the following
observations made by the Hon’ble Supreme Court in Neeraja Saraph
(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case
pertained to desertion of an Indian wife by an NRI husband:-
“…But the rule of domicile replacing the
nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be
examined by incorporating such provisions as-
(1) No marriage between a NRI and an
Indian woman which has taken place in
India may be annulled by a foreign
court;
(2) Provision may be made for adequate
alimony to the wife in the property of the
husband both in India and abroad.
(3) The decree granted by Indian courts
may be made executable in foreign
courts both on principle of comity and by
entering into reciprocal agreements like
Section 44-A of the Civil Procedure Code
which makes a foreign decree executable
as it would have been a decree passed by
that court.”
CS (OS) No.990/2010 Page 20 of 21
19. Regretfully the plight of women and their exploitation by NRI
husbands is yet to be ameliorated through legislative measures as
suggested in the said case.
20. In view of the aforesaid, the decree of dissolution of marriage
passed by the Superior Court of California in favour of the defendant
can not be said to be conclusive under Section 13 of the Civil
Procedure Code and hence is not enforceable in India. The decree of
dissolution of marriage dated January 14, 2011 and judgment entered
on January 18, 2011 passed by the Superior Court of California,
County of Santa Clara, San Jose, USA in favour of the defendant be
and is hereby declared null and void and unenforceable in India being
opposed to the laws in force in this country.
21. Resultantly, the suit stands decreed in terms of the prayer made
by the plaintiff. The plaintiff shall also be entitled to recover cost in
the sum of Rs.2 lakhs from the defendant.
22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012
stand disposed of.
REVA KHETRAPAL
(JUDGE)
September 10, 2012/’k’
CS (OS) No.990/2010 Page 21 of 21
Government cannot cancel appointment of candidate on the ground that 498A or a criminal case is pending
Original Application No. 331/2011
This the 12th day of September, 2012
Honble Mr. Justice Alok Kumar Singh, Member (J)
Honble Sri S.P.Singh, Member (A)
Vineet Kumar aged about 32 years son of Sri Vijay Pal Singh resident of 741, Civil Lines, Kalyani Devi, Unnao.
.
Applicant
By Advocate: Sri P.K. Srivastava
Versus
1. Union of India through Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
2. Director, Central Bureau of Investigation, Govt. of India, 5B, 7th Floor, CGO Complex, Lodhi Road, New Delhi-110003.
3. Staff Selection Commission, through its Chairman, Block No.12, CGO Complex, Lodhi Road, New Delhi-110003.
4. The Regional Director (NR), Staff Selection Commission, Block No. 12, CGO Complex, Lodhi Road, New Delhi-110003.
Respondents
By Advocate: Sri S.P. Singh
(Reserved on 10.9.2012)
ORDER
By Honble Mr. Justice Alok Kumar Singh, Member (J)
This O.A. has been filed for the following reliefs:-
i) to quash the orders dated 12.5.2011 and 17.6.2011 contained in Annexure 1 and 2 to this O.A. holding such orders bad in law, not enforceable and simultaneously directing the opposite parties to appoint the petitioner on the post of Assistant Public Prosecutor in CBI in pursuance of his selection by the Staff Selection Commission (SCC) within a specified time limit that may be allowed by this Honble Tribunal. ii) to issue any other order or direction as this Honble Tribunal deems fit and proper may also be passed along with the costs of the original application.
2. In short, the case of the applicant is that the Staff Selection Commission (SSC) (Respondent No.3) advertised 17 vacancies for selection for the post of Assistant Public Prosecutor (APP) for Respondent No.2 i.e. C.B.I. vide advertisement published in the employment news / weekly news 22-28 August, 2009. Reservation for the relevant categories were also made and the applicant belonging to OBC category, being eligible for the post, participated in the selection and after interview, he was finally selected in the month of July, 2010. He stood at position No. 10 in the select list and second amongst the OBC category candidates. On 12.8.2010, CBI, New Delhi asked for certain documents which were to be sent by registered post or in person latest by 31.8.2010 along with two set of attestation form were also enclosed for filling. The applicant appeared in person on 26.8.2010 in the office of the CBI, New Delhi along with the requisite certificate. Thereafter, when the applicant did not receive any communication and other selected candidates were being given appointment letters for joining by 15.1.2011, he preferred an application under Right to Information Act on 29.4.2011 and received communication dated 20.5.2011 enclosing therewith point-wise reply furnished by CBI on 12.5.2011. The SSC also issued a show cause notice of the same date i.e. 12.5.2011 to the applicant calling upon him to show cause as to why not the candidature of the applicant be cancelled because he has misled the SCC regarding his involvement in the criminal case. He submitted a detailed reply on 25.5.2011 (Annexure -9) saying that the candidature of the applicant has been rejected in an arbitrary manner without application of mind. It has also been clarified that at the time of submission of forms in response to the advertisement , no criminal case was pending against the applicant. At that relevant time, he was staying at Banaras Hindu University pursuing his PHD. During that period, a matrimonial discord brewed up with his elder brother Pradeep Kumar Singh and his wife who were staying in Vikas Nagar, Lucknow. His elder brother filed a divorce suit. On the other hand, his brothers wife lodged an FIR under case Crime No.43/2010 u/s 498-A, 323, 504 and 506 IPC and > Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur falsely roping therein the entire family which included the applicant , his married sister and Bua etc. (Annexure 10). During investigation, the police added Section 324, 292, 294 ,452 IPC also. But the applicant was enlarged on bail on 27.5.2010 (Annexure 11).
3. It has been further pleaded that the police finally submitted charge sheet against all the family members except the father and the Learned CMM, Kanpur took cognizance on 27.5.2010. As already said at the time of filling form, neither there was any requirement by the SSC nor there was any occasion for the applicant to inform the SSC as regard the lodging of FIR in the criminal case. Similarly, at the time of interview held on 23.6.2010 also, whatever information was sought by the SSC were duly supplied. Nothing has been concealed by the applicant at both the above stages. During course of time, some of the family members also challenged the charge sheet u/s 482 Cr PC before the Honble High Court vide Misc. Application No. 23046/2010 and the proceedings of the lower court were stayed. Thereafter, the matter was sent to the mediation centre for amicable resolution. The efforts however failed and ultimately the above case was also dismissed on 8.3.2011. After the applicant was declared successful by the SCC and recommended for appointment in response to the letter dated 12.8.2010, it was for the first time the applicant had to submit attestation form to CBI answering certain queries as mentioned at point No.12 as under:- 12 a) Have you ever been arrested? Yes/No
b) Have you ever been prosecuted? Yes/No
c) Have you ever been kept under detention? Yes/No
d) Have you ever been bound down? Yes/No
e) Have you ever been fined by a court of law? Yes/No
f) Have you ever been convicted by a court
of law for any offence Yes/No
g) Have you ever been debarred from any
Examination or rusticated by any University? Yes/No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination? Yes/No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes/No
j) detention /fine/conviction/ sentence
Punishment etc and /or the name of the
Case pending in the Court/ university
Educational authority etc. at the time of
Filling up this form? Yes/No
Note 1) Please also see the WARNING at the top of this attestation form.
2) Specific answer to each of the question should be given by striking out Yes/No as the case may be.
The warning at Point No. 1,2 and 3 mentioned in the said attestation form are being berating been reproduced herein:-
1. The furnishing of false information of suppression of any factual information in the application for would be a disqualification and is likely to render the candidate unfit for employment under the Govt.
2. If detained, arrested prosecuted bound down, fined, convicted debarred acquitted etc. subsequent to the completion and submission of this form the detail should be communicated immediately to the Union Public Service Commission or the authority to whom the attestation form has been sent earlier as the case may be, failing which it will be deemed to be suppression of factual information.
3. If the act that information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.
4. The applicant answered the aforesaid questions correctly including about the criminal case and he also gave complete description of the criminal case at the foot of the point No. 12. Thus at no point of time, he concealed any thing either from the CBI or from the SSC. Reference has also been made to para 2.2.7 of the chapter 2 of the Manual of CBI (Admn.) of Govt. of India, New Delhi which provides for verification of character and antecedents. It is also provided that even if a person has been convicted after obtaining specific approval of the Govt. if appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, he may be appointed. In the case of the applicant, he has not been convicted and there is no provision in the rules including the CBI manual that selection of a candidate may invite ineligibility in case a criminal case is found to be pending. Still his candidature has been canceleld without any application of mind . Hence this O.A.
5. The O.A. has been contested by filing a detailed CA on behalf of the CBI (R.No.1). It has been admitted that the applicant was finally selected but the SSC while recommending the names of the candidates for appointment in the CBI had advised to verify their character/antecedents before issuing offer of appointment. The applicant was therefore, directed to furnish the required information in the attestation form for verification of his character/ antecedents vide letter dated 12.8.2010. The applicant filled the attestation form under his signature. In column No.12 of the Attestation form, he has furnished information as under:- a) Have you ever been arrested? Yes
b) Have you ever been prosecuted? No
c) Have you ever been kept under detention? No
d) Have you ever been bound down? No
e) Have you ever been fined by a court of law? No
f) Have you ever been convicted by a court
of law for any offence No
g) Have you ever been debarred from any
Examination or rusticated by any University
or any other educational authority/
institution? No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination/ selection? No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes
6. It has been also admitted that the applicant has further mentioned that a case Crime No. 43/2010 dated 21.2.2010 u/s 498-A/323/504/506 IPC and > of DP Act has been registered against him in the Police Station Kidwai Nagar, Kanpur. It was further mentioned that Honble High Court has referred the matter to the mediation centre and proceedings has been stayed. Based on the information furnished by the applicant, the District Magistrate, Unnao was requested vide letter dated 6.9.2010 for verification of character /antecedents of the applicant. He sent his report on 31.12.2010. Similarly, S.P. Unnao also sent his report on 5.10.2011 mentioning about the pendency of the above criminal case. The verification about the conduct of the applicant was also made by the CBI itself through its Dy. S.P. who reported on 28.9.2010 that the charge sheet dated 6.6.2010 under the aforesaid sections has been filed, which is under trial. After examining the above reports, it was found that the applicant is involved in the above criminal case which is still pending . Though he has not been convicted, it was decided not to appoint him in the organization. Accordingly, his dossier was returned to SSC vide letter dated 3.2.2011 followed by letter dated 15.2.2011 requesting to sponsor another candidate of OBC category in his place. The applicant was also informed about this vide letter dated 12.5.2011 with reference to his application dated 29.4.2011 under RTI. Thereafter, SSC issued a show cause notice dated 12.5.2011 to the applicant . He submitted his reply to the SSC on 25.5.2011. After due consideration of the reply, the SSC vide its letter dated 17.6.2011 had cancelled the candidature of the applicant.
7. The applicant also filed Rejoinder Reply reiterating his averments contained in the O.A. and also saying that now even the criminal case against him and his family members has been decided on 29.3.2012 and all the accused along with applicant have been acquitted. After this judgment, no appeal has been filed in the higher court of law. Therefore, the applicant deserves to be appointed in pursuance of his selection by the SSC.
8. No Counter Reply has been filed on behalf of SSC which has passed the impugned order dated 17.6.2011 (Annexure -2).
9. We have heard the learned counsel for parties and perused the material on record.
10. Before entering into the merit of the case, certain facts are required to be mentioned which are either admitted or not denied from the other side. It is worthwhile to mention that out of the four respondents, including Union of India, CBI and SSC, only CBI has filed Counter Reply.
11. Admittedly, the applicant got finally selected by the SSC for the post of Assistant Public Prosecutor for CBI in response to the advertisement published in the employment news/weekly news 22-28 August, 2009. He stood at position No.10 in the select list and second amongst the OBC category candidates. On 12.8.2010, the CBI, New Delhi asked for certain documents which were required to be sent by registered post or to be made available in person latest by 31.8.2010. Those documents also included two set of attestation forms which were to be filled by the applicant. The applicant personally submitted those forms/ documents on26.8.2010 in the office of the CBI, New Delhi.
12. Earlier, in response to the advertisement in question, the applicant had filled the form (Annexure 5) on 21.6.2010 showing him a practicing advocate in Unnao Bar Association from 11.1.2003. This form consisted of 16 columns which we have gone through but did not find any column requiring to give any particulars of involvement in any criminal case. Similarly, the typed copy of the advertisement in question, which has been brought on record also does not show any such requirement. It is also noteworthy that till that relevant time, only an FIR has come into existence in case Crime No. 43/2010 dated 21.2.2010. But any charge sheet/ criminal case was not pending. It has also not been denied that at that time, the applicant was staying at BHU pursing his PHD and during that period , a matrimonial discord brewed up with his elder brother and elder brothers wife who were staying in Vikas Nagar, Lucknow. His elder brother filed a divorce suit. On the other hand his elder brothers wife lodged an FIR under case Crime No. 43/2010 U/Ss 498-A, 323, 504 and 506 IPC and > Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur. It is a matter of common knowledge that in such unfortunate matrimonial disputes, cases are lodged from both sides and from the side of the wife, when an FIR is lodged, allegation of harassment on account of non-fulfillment of demand of dowry etc. are usually made not only against the husband but also against all the family members and some times even against married sisters etc. as has been done in the present case also. The applicant was however, released on bail. Thus, at the time of filling form, neither there was any requirement in the form or in the advertisement issued by the SSC nor there was any occasion for the applicant to inform the SSC in respect of lodging of FIR in a criminal case. For the first time, after his final selection, such information was sought vide letter dated 12.8.2010 in the shape of attestation form at point No.12. It is also not disputed that the applicant furnished correct information in column No.12. The relevant sub columns are (a) and (i) : a) Have you ever been arrested? Yes
i) Is any case pending against you
in any Court of law at the time of filling
up this Attestation form? Yes
13. In fact these replies have been categorically admitted in para 8 of the counter reply filed by the CBI itself. Not only this, it has also been fairly admitted in the same paragraph of Counter reply that the applicant has also gave particulars such as case Crime No. 43/2010 dated 21.2.2010 U/Ss 498-A, 323, 504, 506 of IPC and > of D.P. Act Police Station, Kidwai Nagar, Kanpur and that the Honble High Court has referred the matter to the Mediation Centre and proceedings have been stayed and that the applicant was granted bail by the CMM Court, Kanpur. In the show cause notice issued on 12.5.2011 (Annexure -8), it is mentioned as to why the candidature may not be cancelled as the candidate has mislead the Commission regarding his involvement in criminal case. But in fact, there does not appear to be any concealment or act of misleading on the part of the applicant because admittedly, he has revealed the relevant information with full particulars in response to the relevant columns of the attestation form as mentioned above. Probably, that was the reason that while passing the impugned order dated 17.6.2011 (Annexure -2), cancelling the candidature of the applicant, the ground of concealment or misleading has not been mentioned. Instead it has been simply said that on account of his involvement in the said case, it has been decided not to appoint him in the CBI as APP. We would come to that question hereinafter. But we find that the explanation/ reply was sought unnecessarily and wrongly from the applicant by means of show cause notice dated 12.5.2011 that he has mislead the Commission regarding his involvement in the criminal case, whereas he had furnished all the required information correctly in response to para 12 of the attestation form as already mentioned. This becomes further clear from the reply submitted by the applicant in response to the above show cause (Annexure -9). It is a detailed reply comprising 10 paragraphs. The relevant paragraphs of the reply are as under:- 4. It so happened there after that a criminal case wide CR Case No. 43/2010/ U/S 498-A, 323, 504, 506 IPC and > D.P.Act has been registered at police station Kidwai Nagar, Kanpur (U.P. on 21.2.2010 on the complaint of Smt.Meera Devi. The said Smt. Meera Devi is wife of elder brother of the applicant namely Pradeep Kumar Singh. Entire family of the applicant and also certain distant relatives has been roped in the said criminal case which is essentially the matrimonial dispute between my elder brother and his wife. The Axe has also fell upon the applicant only because he is the younger brother of husband of said Smt.Meera Devi as he has also being named in the said case.Teh copy of the FIR enclosed as Annexure -1.
5. The applicant came to know of such FIR only on 14.3.2010 when he was arrested while he was staying in Lucknow. The applicant was released on bail wide order dated 15.3.2010 by CMM, Kanpur . Copy is enclosed as Annexure No.2. Mother was also named in the FIR was released on bail on 15.3.2010 the elder brother was also released on bail on 20.3.2010. I.O. supplemented the charge with sections 324, 292, 294, 452 on 17.3.2010. For which the applicant was released on bail 27.5.2010 by the CMM Court, Kanpur. Rest of the person named in FIR sought stay on their arrest by preferring the writ petition .Wherein the Honble High Court, Allahabad wide order dated 29.3.2010 stayed the arrest of remaining.
6. The applicant received the interview letter from SSC conveying the interview date fix on 23.6.2010.The applicant was required to submit the biographical data at the time of interview. The format was sent along with the interview letter. The applicant appeared in the scheduled interview on 23.6.2010 and also submitted the biographical data. It is pertinent to mention that there was no requirement as per the information sought in the said biographical data to bring in the notice of the SSC as to any criminal case which could have been lodged/ instituted after the submission of the application form till the date of interview. The applicant was neither only inquired in this behalf by the SSC in all bonafides and good faith. He submitted the biographical data without any concealment of information , he was expected to fill in prescribed bio data form.
7. The applicant was declared successful when the result was declared in July/ August, 2010.
8. Thereafter, the applicant received letter dated 12.8.2010 from the CBI, HO , New Delhi where under he was required to submit certificate in support of date of birth, education certificate, caste certificate in original before the CBI by 31.8.2010. Two attestation form fully filled by the candidate was also required to be submitted by 31.8.2010, attestation form was also enclosed with this letter.
9. The applicant appeared before the CBI, H.O. on 26.8.2010 for the purpose of verification of his certificates and submissions of attestation form in response to the letter of CBI. The applicant submitted the attestation form the said form contained every detail of which the applicant was required to make disclosure at point No.12, therein the applicant was required to answer various questions by putting in yes/ no option, a few of which questions pertaining to the arrest / prosecution conviction criminal case etc. the applicant made true and correct disclosure to every question wide point no. 12 of the form. The applicant in all bonafide and with a view to give complete information regarding the criminal case in which he was unfortunately found involved by writing details of the same in his own handwriting at the foot of the page no. 4 below the point No.12 (i) .At the point of time, Honble High Court , Allahabad ordered dated 15.7.2010 the dispute seems to be between husband and wife, matter was referred to mediation centre and further proceedings of criminal case No. 43/2010 was remain stayed. The copy of the order is enclosed as Annexure No. 3. It is also relevant to mention that it was not required in the attestation form that SSC is also to be informed by the candidate as regard to lodging of criminal case.
10. The applicant never concealed anything at any point of time either from the SSC or from the CBI. The application form submitted to the SSC was duly filled in and complete in all respect. Since no case was lodged against the applicant by that time, there was no occasion of any concealment on the part of the applicant. Again there was no requirement in the application form that SSC has to be kept informed regarding future involvement in criminal case, subsequent to submitting the application form neither was there any column in biographical data sent by the SSC along with the interview letter. Requiring the applicant to disclose the criminal case lodged after submitting the application form till the date of interview. Again there was no occasion for the applicant to conceal anything from the SSC when he was not asked for the same by the SSC, in the first place. For the first time, after the submission of application form in connection with the present requirement process the applicant was required to disclose the criminal case pending against the applicant when he had to submit the attestation form sent by the CBI and where in the applicant mentioned everything without even iota of any concealment .The applicant did never have any point of time nor will in future any intention to mislead either the SSC or CBI. In view of the above, it is most humbly requested the candidature of the applicant may not be cancelled. The applicant sincerely desires to serve the institution of the CBI with complete determination and dedication and if he is given appointment on the said post he would ever feel obliged.
Applicant
Sd/-
25.5.2011
14. Now, we come to the impugned order of cancellation of candidature of the applicant which has been passed after considering the above reply comprising 10 paragraphs running into four pages. In comparison to the above, the impugned order is very short which consists of only seven lines and there is not even a whisper about the main and sole point i.e. the applicant has concealed or mislead the Commission about his involvement ina criminal case. It appears that when the Commission did not find any act of misleading or concealment, then they left that point and instead passed an order saying that on account of his involvement in the criminal case, it has been decided not to appoint him. The detailed explanation / reply submitted by the applicant has not been discussed at all. Thus, there does not appear to be any sequence or proximity or coherency between the show cause notice, the detailed reply submitted by the applicant vis-a-vis the above order passed by the SSC. There also does not appear any application of mind in passing the impugned order. It is also not a reasoned order because none of the points raised by the applicant in his reply have been dealt with. Not only this, there also does not appear to be any rule or provision in the CBI manual or elsewhere as claimed by the applicant that a person duly selected by the SSC shall be held ineligible or unsuitable for appointment in the CBI merely because of pendency of a criminal case. There was also no direct involvement of the applicant in this case. Being husbands brother (Devar), he along with his married sister and Bua who were living separately, were also implicated. It was also not a case of moral turpitude or any serious offence. Reference has also been made in the pleadings contained in O.A. to para 2.2.7 of the chapter 2 of the Manual of CBI (Admn.), Govt. of India, New Delhi which provides for verification of character and antecedents. It says that even if a person has been convicted then after obtaining specific approval of the Govt. , if appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, he may be appointed. In the present case, what to say of conviction, the applicant has been finally acquitted on 29.3.2012 and no appeal has been filed in the higher court of law. In the present case, the SSC has not even filed any Counter reply. It is only the CBI who has filed Counter Reply. Thus, the author of the impugned order i.e. the SSC (R-3) has not even dared or cared to controvert the pleadings of the O.A. Therefore, as against the SSC, the pleadings of the O.A. stand uncontroverted and admitted.
15. From the side of the applicant, reliance has been placed on the following four case laws:-
(1) Commissioner of Police and others Vs. Sandeep Kumar (2011) 4 SCC 644. Before Markandey Katju and Gyan Sudha Misra, JJ. The case in hand appears to be substantially covered by the preposition of law laid down in this case law. In the above case, in the application form itself, an information was sought as to whether the applicant has been arrested, prosecuted, kept under detention, convicted by any court of law etc. But the candidate i.e. Sandeep Kumar wrongly answered in negative , though he was involved in a case U/Ss 325/ 34 IPC. The selection was for the post of Head Constable (Ministerial). In the case before us, the selection is for APP in CBI wherein no such information was sought at the time of filing of form and he did neither conceal any information nor give any wrong information. Coming back to the case of Sandeep Kumar (Supra), after applying in February, 1999, he was qualified in all the test for selection. Then on 3.4.2001, he filled the attestation form, wherein for the first time, he disclosed that he had been involved in a criminal case with his tenant which later on has been compromised in 1998. Therefore, in August, 2001, a show cause notice was issued to him as to why his candidature may not be cancelled on account of concealment of the fact that he was involved in the above criminal case and for making a wrong submission in his application form. He submitted his reply but the authorities were not satisfied and canceled the candidature of the applicant in May 2003. Sandeep Kumar filed a petition before CAT, which was dismissed but the Honble Delhi High Court allowed it. Thereafter, an appeal was filed by the Commissioner of Police. The Honble Apex Court did not find any substance in the appeal and therefore upheld the judgment of Delhi High Court. The relevant paragraphs are as under:- 8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character Jean Valjean in Victor Hugo’s novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed: I come now to Mr Watkin Powell’s third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to showand to show to all students everywherethat this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this landand I speak both for England and Walesthey strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bardsof the poets and the singersmore melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrongvery wrongin going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed. (Vide Morris v. Crown Office1, QB at p. 125C-H.) In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
13. For the reasons given above, this appeal has no force and it is dismissed. No costs.
As said above, the case in hand is substantially and squarely covered by the above case law.
2. Ram Kumar Vs. State of U.P. and others reported in 2011 (3) LBESR 544. Before R.V. Raveendran and A.K. Patnaik, JJ. This case has been decided by the Honble Apex Court in August 2011 i.e. after about 4 months of the decision of the above case of Commissioner of Police (supra) which was decided in March 2011. In this judgment, the aforesaid case of Commissioner of Police (supra) was also cited and considered. From the other side, reliance was placed on the judgment of Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437, in which the case under sections 323, 341, 294, 506-B read with Section 34 IPC was pending and this material was suppressed in the attestation form. The criminal case was however, withdrawn. Appointment in question was on the post of Physical Education Teacher in Kendriya Vidyalaya Sangathan. On these facts, the Honble Apex Court held in that case that he was to serve on the said post and he could not be suitable for that post because the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. Therefore, his dismissal from service was not interfered with. On the other hand, the facts of the case of Ram Kumar (supra) were that the post in question was of a constable and the applicant had submitted an affidavit dated 12.6.2006 to the recruiting authority in the proforma of verification roll. In para 4,he had stated that no criminal case was registered against him. He was selected and appointed as male constable and deputed for training. Thereafter, Police Station, Jaswant Nagar, Etawah submitted a report about pendency of criminal case under Sections 324/323/ 504 IPC. Subsequently the criminal case was disposed of on18.7.2002 and the appellant was acquitted. Along with the above report of the police station, the order of acquittal was also enclosed. The said report was however, submitted to the SSP, Ghaziabad who by order dated 8.8.2007 cancelled the order of selection on the ground that he has submitted an affidavit stating wrong facts and concealed correct facts and his selection was irregular and illegal. Aggrieved by this order, a writ petition was filed before a single judge who dismissed it on 30.8.2007, in the light of the judgment of Kendriya Vidyalaya Sangathan (supra). Then a special appeal was filed before the Division Bench which has also dismissed it on 31.8.2009. After considering all the facts and circumstances, the Honble Supreme Court observed as under:-
7. We have carefully read the Government Order dated 28.04.1958 on the subject Verification of the character and antecedents of government servants before their first appointment and it is stated in the Government order that the Governor has been pleased to lay down the following instructions in supercession of all the previous orders:
The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point.
8. It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
9. In the facts of the present case, we find that though Criminal Case No.275 of 2001 under Sections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.
10. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment.
In respect of Kendriya Vidyalaya Sangathan (supra), the Hnble Apex Court observed that the facts of that case were therefore, materially different from the facts of the case of Ram Kumar (Supra). Therefore, the Honble Apex Court allowed the appeal and set aside the appeal of Learned Single Judge and Division Bench of the High Court of Allahabad and quashed the order passed by the SSP, Ghaziabad with a direction that the applicant will be taken back in service within a period of 2 months from the date of receipt of order. But he will not be entitled for any back wages for the period he has remained out of service. Thus, this case is applicable in the present case before us with full strength.
3. Awadhesh Kumar Sharma Vs. Union of India and others reported in (2000) 1 UPLBEC 763. Before M. Katju and Shitla Prasad Srivastava, JJ. According to the facts of this case, the petitioner applied for appointment as Mazdoor in Central Ordinance Department, Kanpur and he was finally selected for the post vide letter dated 7.1.1989.However, he did not mention about his involvement in a criminal case under Sections 147/323/352/504 IPC which was later converted into Section 307 IPC. Hence, his selection was cancelled. However, in the criminal case, he was acquitted vide judgment and order dated 7.7.1989. Thereafter, he made representation that since he has been acquitted in the criminal case, he may be permitted to join duty. But he was informed by letter dated 12.10.1990 that he can be considered as a fresh candidate as and when vacancies are released. He then filed a petition before the CAT which was dismissed and the review application was also dismissed. Then he filed writ petition. The Division Bench of our High Court opined that when the petitioner was acquitted, it has to be deemed in law that he was never involved in any criminal case. It is settled law that every statute ordinarily operates prospectively unless expressly made retrospectively whereas every judgment of a Court of law operates retrospectively unless expressly made prospectively. The only material against the petitioner was the criminal case in which he was acquitted. Therefore, the Honble High Court mandated that since he has been selected, he must now be allowed to join duty. The impugned orders dated 26.2.1997 and 24.12.99 were quashed and the mandamus was issued to appoint the petitioner within 6 weeks in accordance with law in pursuance of selection letter issued in his favour earlier. This case law also applies in the present case with full force.
4. Harendra Panwar, Constable Vs. State of U.P.and others reported in 2012 (2) LBESR 94 (All)- Present : Sunil Hali, J. In this case also, pursuant to the advertisement, the petitioner applied for the post of Constable for which he was selected from District Etawah and was appointed as a Constable in the Police Department on 26.11.20005. After completion of the post recruitment training the petitioner was posted as Constable in District Etawah in June 2006. On 18.8.2007, his selection was cancelled by the respondent No.2 for the reasons that he did not disclose that a case Crime No. 32 of 2005 under Sections 147, 148, 149, 307, 504 and 506 IPC at P.S. Kandhala, District- Muzaffar Nagar was against him. The Honble High Court while referring to G.O. dated 28.4.1958, providing for verification of character and antecedents of the Govt. servants as a pre-requisite for being appointed as a Govt. servant, observed that character and antecedents of the appointee shall have to be verified by having an over view of his personality in respect of his moral character and integrity. This is done in order to enable the appointing authority to draw its satisfaction as to whether a person is fit to be appointed to the said post. The Honble Court found that in the G.O. no such obligation is caste on the appointee to disclose any such information regarding his involvement in a criminal case. But in column 11 of the form, it was required to inform as to whether the petitioner has been convicted in any case or not. The Honble High Court then observed that in the case before it , the petitioner was not convicted in any case. Therefore, withholding of an information which was not required to be given by the petitioner could not have become a ground for cancellation of his appointment. The Honble High Court specifically observed that it is trite in law that mere involvement in a criminal case is not an impediment for appointment to the post of a constable. Moreover, after a person has already been acquitted from the criminal charge, the stigma attached to a person is obliterated. The Honble High Court observed that while recording its satisfaction, the appointing authority may on verification of the conduct, antecedents and character come to a conclusion that the over all profile of the petitioner is not conducive for his appointment. This will depend upon many factors including the reputation of the person, his behaviour in the public, his integrity and morality etc. The notes attached to column 3 of the G.O. dated 28.4.58 itself provide that a conviction need not of itself involve the refusal of a certificate of good character. Stands of conviction should be taken into consideration if it involves moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means a Government. The case of Ram Kumar (supra) was also referred, which was followed by the Honble High Court saying that in the order before it also no satisfaction has been recorded by the appointing authority that the petitioner is not suitable to be appointed with reference to the nature of alleged suppression and the nature of criminal case. Therefore, the Honble High Court allowed the writ petition and quashed the impugned order with the direction to the respondents to take back the petitioner in service within a period of one month with all consequential benefits except back wages for the period he remained out of service.
16. From the side of the respondents following case laws have been relied upon:-
(1). State of West Bangal and Others Vs. SK. Nazrul Islam (2011) 10 SCC-184. In this case law there was concealment of fact regarding antecedents. A criminal charge sheet had already been filed against him. The authority i.e. Police Directorate, West Bangal therefore, did not appoint him as a constable. He went to the Tribunal which declined any relief. The Honble High Court however directed to issue appointment letter subject to final decision of pending criminal case. The Honble Apex Court held that no mandamus could have issued by High Court because a criminal case was pending. It was also observed that the person cannot be held to be suitable in the police till he has not been acquitted. The above case law is not applicable here because of different facts and circumstances. Admittedly, there is no concealment of facts regarding antecedents in the case before us. Moreover, here the applicant has already been acquitted. Therefore, this case law is not applicable in the present case.
(2). Arun Kumar Yadav Vs. GNCT of Delhi through Chief Secretary, Delhi Secretariat and Others , O.A.No.2339 of 2008 (Swamynews-52-53)—In this case there was concealment of involvement in a criminal case, though he was acquitted. The Tribunal held that though the applicant was acquitted but the fact remains that he concealed this fact. As said above in the case before us however, there is no such concealment. Therefore this judgment of CAT Principal Bench (decided on 12.8.2010) has also no application in the present matter. Moreover, this was decided on 12.8.2010 by the Principal Bench whereas subsequently in March, 2011 the Honble Apex Court has decided the case of Commissioner of Police (Supra) in which similar question was involved as already discussed on page 15 of this order. We are therefore bound to obey the preposition of law laid down in the above case of Commissioner of Police, being the law of land. Further, from the perusal of the electrostat copy of this judgment as published in Swamynews as filed on behalf of respondents, it appears that following three judgments were also considered by the Principal Bench CAT in that case. We obtained these case laws also from our CAT library and the same were also perused by us. We would like to make a brief mention of these judgments also as under:- (1). Union of India and Others Vs. Bipad Bhanjan Gayen (2008) 11 SCC-314.
(2). R. Raqdhakrishana Vs. Director General of Police and Others (2008) 1 SCC-660.
Both these cases do not apply in the present case because of different facts. In both these cases wrong information was disclosed by the candidate which is not a case here.
(3). Delhi Administration Through its Chief Secretary and Others Vs. Sushil Kumar (1996) 11 SCC-605—According to facts of this case appointment was denied on the ground of undesirability because on verification it was found that his appointment to the post of constable was not desirable. The involvement of the applicant was under Section-304 IPC, 324 read with 34 IPS, which was very serious offence. He was however acquitted. But, the appointing authority took a view that in the background of the case, it was not desirable to appoint him as a constable to a disciplined force. The Apex Court found that appointing authority has rightly focused this aspect and found him not desirable to appoint him to the service. But, in the present case neither any such consideration has been made nor any such order has been passed by the appointing authority. Instead the impugned order has been passed by the Commission. However, that order has no connectivity with the show cause notice as already discussed. The applicant was asked to show cause in respect of alleged concealment of his involvement in the criminal case. But the order cancelling his candidature was passed on the ground of his involvement and not concealment. The sole point of concealment was thus given up. Further, the Commission has not even defended the order passed by it. The Commission has not filed any Counter Affidavit refuting the averments and pleadings of the applicant contained in O.A. Moreover, in the case before us the offence is of not of a serious nature. It was an outcome of a matrimonial dispute and allegations were of harassment on account of non-fulfillment of demand of dowry wherein, the applicants brother-in-law (Devar), was also implicated though, he was living separately in a different district/city making preparations for appearing in competitive examinations as per uncontroverted pleadings. Even, married sister and Bua living separately were also implicated as is normally done these days in such cases. Lastly the above is a case law of 1996. During last 15-16 years, the law has further developed and we do not have any justification to ignore the recent and two consecutive case laws on this point of Honble Apex Court in the above cases of Commissioner of Police (Supra) and Ram Kumar (Supra), both of 2011. Therefore, the respondents cannot derive any benefit from the above case law. A photostat copy of a letter dated 29.8.2012 of CBI (Administration) showing internal correspondence has also been filed alongwith the above case law. In fact no cognizance can be taken of such a paper at this stage because, it is not a part of pleading. It has been filed after closure of final arguments. Still, we have perused it. It is mentioned in this letter that as per verification report dated 14.8.2012 the applicant has been acquitted in the relevant criminal case and the limitation period of filing an appeal has also expired. Further, it is mentioned that another case no.757/2010 under Section-12 of Domestic Violence Act is pending in the Court of Metropolitan Magistrate, Kanpur in which the applicant is also one of the accused. Therefore, a request has been made vide this letter to bring it to the notice of learned counsel for the respondents to apprise this Tribunal before passing final orders. As said above this subsequent fact has not been pleaded in the counter affidavit. This Tribunal cannot travel beyond the pleadings, which are on record. This alleged case also does not find place either in show cause notice or any documents on record including the impugned order of cancellation of candidature. Otherwise also, it appears to be an offshoot of same matrimonial dispute giving rise to above main criminal case which has already ended in acquittal. It is a petty case of similar nature under different Act. It has no significance after acquittal in the main case.
17. Thus in the case before us, firstly there is no concealment at all in respect of involvement in the criminal case. Admittedly the applicant had furnished all the required information with all the particulars. Therefore, the show cause notice in respect of alleged concealment was ab-anitio wrong and against the record and when this fact was specifically pointed out in the reply it was not dealt with at all in the impugned order. Instead the impugned order was passed on a new ground i.e. merely on the ground of involvement in a criminal case, though it has been nowhere provided either in any law or in the Manual of CBI (Admn.) or in the conditions of the relevant advertisement that candidature or selection can be cancelled on this ground. On the converse in para 2.2.7 of the chapt. 2 of the Manual of CBI (Admn.) (as pleaded in O.A. (which is not controverted in C.A.) that even if a person is a convict, he can be appointed after obtaining approval of the Govt., if appointing authority feels that there are redeeming features and reasons to believe that the person has cured himself of the weakness, if any. In the present case, such facts were not considered at all and there was no application of mind by the appointing authority on these points. In fact, appointing authority has not passed any order whatsoever. After receiving of verification report the dossier was admittedly sent from CBI to the Commission which issued show cause notice dated 12.5.2011 and then impugned order dated 17.6.2011 was passed by the Commission cancelling the candidature of the applicant. But even the Commission was not sure as to who took the actual decision. It is a typical order which has been passed by the Commission saying the CBI has decided not to appoint him and at the same time, it is mentioned that Commission has also decided the same. But there is neither any separate decision of the CBI nor any such joint decision of both of them on record. Secondly, as has been observed in the cases of Ram Kumar (Supra ) and Harendra Panwar (supra) in the present case also, no such satisfaction has been recorded by the appointing authority that the applicant was not fit or suitable to be appointed to the post in question. Thirdly, the applicant has been ultimately acquitted in the criminal case and no appeal has been filed which, as laid down in the case of Awadhesh Kumar Sharma (Supra), would mean that he was not involved in any criminal case on the alleged date because the judgment of acquittal in his favour operates retrospectively. Fourthly, it is trite in law that mere involvement in a criminal case is not an impediment for appointment and after acquittal ,the stigma attached to a person is obliterated.
18. In the conspectus of the discussion made hereinabove and having regard to the preposition of law laid down by the Honble Apex Court in the aforesaid judgments, this O.A. is partly allowed. The impugned order dated 17.6.2011 cancelling the candidature of the applicant (Roll No. 0901040793-OBC) is hereby quashed. The other order which has been impugned dated 12.5.2011 is in fact an information furnished under Right to Information Act and as such in respect of it neither any order can be passed nor it is required to be passed. In the follow up action, the opposite parties are directed to appoint the applicant on the post in question in pursuance of his selection, expeditiously. No order as to costs.
(S.P.Singh) (Justice Alok Kumar Singh)
Member (A) Member (J)
HLS/-
My father is very old. Can I remove his name from case?
Your options are as below…
1. If charge sheet is still not filed, then police can file “B” report for your father. For this you have to influence the police by the way of bribe, influence etc
2. If charge sheet is already filed then try for exemption under 205 of crpc
205. Magistrate may dispense with personal attendance of accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of’ the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of’ the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
3. You can also file an application under 227 of crpc for discharge if the case in the court of session or under 239 of crpc if the case in front of magistrate. Read below judgment to understand about discharge under 227.
Under 239 crpc slightly different stand is taken but principals are same.
4. You can also prefer an application under 482 of crpc in high court or under article 226/227 of constitution of India, as the case may be for Quash. Even if the quash did not succeed, you can ask for a prayer to High Court for a prayer to exempt father citing his age.
5. If nothing works then atleast you can move application for temporary exemption on every hearing date and if the magistrate is liberal then atleast 2-3 dates your father can skip.
Chargesheet delayed is justice denied, FIR Quashed: HC
The killing of a wild sambar deer in 1998 has had to be buried 15 years on with the death of the veterinary doctor who identified the animal. What this means is that the six of the accused – the seventh one is dead – will get away scot free, thanks to the forest department sleeping for 12 years before filing a chargesheet.
Pawan Chandra Shetty, counsel of Prakash Shetty, the accused
Kids are not things, HC tells warring families but advice falls on deaf ears
A division bench of the High Court on Monday ruled that two minor children would live with their father and their maternal grandparents would have the rights to only visit them. That should have been the end of the case. However, the two families were involved in an ugly spat outside the court and almost came to blows in the presence of the children. Despite the best efforts of their advocates the warring parties left the court on a bitter note.
SC lawyer, but still had to wage a 12-year legal war to get back property
He is a senior Supreme Court lawyer who had fought the Indira Gandhi assassination case and the son of former Election Commissioner G V G Krishnamurthy. Yet, it took G Venkatesh Rao 12 long years to get a tenant evicted from his property in Indiranagar. The litigation proved costly, for Rao spent Rs 35 lakh, fought 15 cases and lost Rs 1.5 crore in rents and fell into debt.
Delhi HC: CrPC 125 is often being misused by greedy women
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 3948/2008
Date of Decision: 18.05.2012
SANTOSH MALHOTRA ….. Petitioner Through: Ms. Nandita Rao, Advocate.
versus
VED PRAKASH MALHOTRA AND OTHERS …. Respondents Through: Ms. Arati Mahajan,
Advocate.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition under Section 482 CrPC assails the order dated 23.8.2008 of ASJ passed in criminal revision filed by the petitioner against the order of the M.M. dated 8.3.2007.
2. The petitioner is the wife of the respondent No. 1 and the mother of the respondents No. 2 & 3. She filed a petition under Section 125 CrPC against them seeking maintenance. In the said case, the learned M.M. declined the request of the petitioner for grant of interim maintenance vide his order dated 8.3.2007. The said order was taken in revision by the petitioner in the court of Additional Sessions Judge, who vide the impugned order dated 23.8.2008 granted interim maintenance to the petitioner against her husband (respondent No. 1) at the rate of Rs. 2000/-
Crl.M.C. 3948/2008 Page 1 of 8 per month from the date of the filing of the application. The petitioner has challenged the said order of the ASJ in the present petition and seeks enhancement of compensation against her husband (respondent No.1) as also compensation against her sons i.e. respondents No. 2 & 3.
3. It is noted that all the grounds which have been taken in the present petition under Section 482 CrPC are the same which were taken by the petitioner in the revision petition before the ASJ. Practically, the present petition though, filed under Section 482 CrPC is nothing, but a second revision petition against the order of the M.M. Though, the second revision petition was not maintainable, but having regard to the fact that no findings have been recorded by the ASJ qua the respondents No. 2 & 3 i.e. the sons of the petitioner and respondent No.1, I deem it a case warranting exercise of power of this court under Section 482 CrPC.
4. Before proceeding further, it may be noted that the petitioner and the respondent No. 1 are residing in the same house. This house is three storied comprising of ground, first and second floors. It is undisputed that both the parties are cooking and eating separately. Undisputedly, the respondent No.1 is meeting all the household expenses such as water, electricity charges, maintenance of house, payment of house tax etc. It is also undisputed that respondent No.1 is a person retired from Air India and also that the petitioner owns a house at Mumbai. It is also admitted case that under Section 24 of Hindu Marriage Act, the petitioner was granted Rs. 3500/- per month maintenance from the respondent No. 1 vide order dated 25.11.2009 of ADJ. In CM (M) No. 357/2010, this court enhanced the maintenance to Rs. 4500/- per month and undisputedly, the Crl.M.C. 3948/2008 Page 2 of 8 same is being paid by the respondent No. 1 to the petitioner. It is further undisputed that both the respondents No. 2 & 3, who are the sons of the petitioner and the respondent No.1 are not residing with them in the said house. Respondent No. 2 Prem Prakash is residing at Australia, while respondent No.3 Anil is living sometimes with his sister at Mumbai and sometimes in rented premises.
5. Having noted above the undisputed and admitted facts, the petitioner’s case as set out is that the maintenance of Rs. 4500/- per month is not sufficient and need to be enhanced. She has alleged her husband to be getting Rs. 10,000/- per month as pension and Rs. 15,000/- from the banks as interest on deposits and further, a sum of Rs. 3000/- per month from insurance. With regard to her son Prem Prakash (respondent No.2), who is residing at Australia, she alleged his income to be more than Rs. 2 lakhs per month. Regarding her son Anil (respondent No.3), she alleges him to be working at Mumbai and earning Rs. 30,000/- per month.
6. On the other hand, the respondents pleaded that the petitioner has F.D. to the tune of Rs. 10 lakhs from which, she was getting fixed interest @ Rs. 15,000/- per month. It is alleged that she owns a property at Mumbai, which is lying vacant and can be let out by her. The respondent No. 1 denied that he was earning Rs. 15,000/- per month as interest from bank. It is pleaded that he was getting only Rs. 5000/- per month on the investments made by him in addition to the sum of Rs. 3000/- which he was getting from LIC.
Crl.M.C. 3948/2008 Page 3 of 8
7. I have heard learned counsel for the parties and perused the impugned judgment and also the records.
8. This is a case of really one of the unfortunate family of scattered members. All the four members are living their independent lives. The petitioner seems to be trying to abuse the benevolent provisions of Section 125 CrPC. This Section is designed to help the needy and not the greedy. It is not meant for settling the personal scores, but it is experienced that it is often being misused and the present case is an instance. Here is a lady who owns a house at Mumbai, but is neither prepared to let it out on rent nor give it to her son who is living at the mercy of his sister and sometimes, in some rented house at Mumbai. Though, the petitioner has denied to be having F.D. of Rs. 10 lakhs in the different banks, but she, in any case has admitted the F.D. of Rs. 2 lakhs. She knows that her husband is a retired and ailing person. The pleas that her husband (respondent No.1) is getting Rs. 10,000/- p.m. as pension and Rs. 15,000/- from investments is nothing but a bundle of lies. The respondent No.1 is a retired person and has placed documentary evidence on record to show that he is getting Rs. 3086/- per month as pension through Employee Contributory Scheme based on his own contribution made after his retirement. This fact has already been taken note of by this court in CM (M) No. 357/2010. In the said case, it was the petitioner’s own submission that her husband was getting interest of Rs. 5000/- per month from deposits. Now, she has alleged that he was getting Rs. 15,000/- p.m. without there being any basis for the same. In fact, in the said petition, this court had enhanced the maintenance from Rs. 3500/- Crl.M.C. 3948/2008 Page 4 of 8 per month to Rs. 4500/- per month based on the material available on record to the effect that the income of the respondent No. 1 was Rs. 8000/- per month i.e. Rs. 5000/- as interest from deposits and Rs. 3086/- from Employee Contributory Pension Scheme. Neither before the courts below nor in the CM (M) No. 357/2010 nor in the present proceedings, the petitioner has been able to show her husband’s income as alleged by her. All that she has alleged is vague and baseless.
9. Taking all these into consideration, the learned M.M. observed that she was capable of maintaining herself.
10. From the undisputed factual matrix, it comes out to be that the petitioner owns a house at Mumbai. She has some fixed deposits in the banks, which according to the respondents are worth Rs. 10 lakhs, which according to the petitioner, is only Rs. 2 lakhs. In any case, she is undisputedly getting some interests on these deposits, which has not been disclosed. No evidence has been adduced by either of the parties as regards to deposits amount or the interest therefrom. This emerges to be a triable issue. Undisputedly, she was living in a house where she was not incurring any expenses on rent or other amenities such as water, electricity, cable, house tax etc. She is continuously getting Rs. 4500/- per month from her husband. She was also entitled to the medical facilities of her husband as per his service rules.
11. With regard to the respondent No. 2, who is residing at Australia, it was submitted by the respondents that he is working in a remote area and was the only bread earner of his family and was not in a regular
Crl.M.C. 3948/2008 Page 5 of 8 permanent employment. His salary was stated to be about 800 Australian Dollars per week, which was stated to be insufficient for him and his family needs. With regard to the respondent No.3, it was stated that he is unemployed and even unable to maintain himself and is living at the mercy of his sister at Mumbai.
12. It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).
13. With regard to the claim of the petitioner from her sons (respondents No. 2 & 3), it was submitted on behalf of her son Prem Prakash that his weekly income was about 800 Australian Dollars. The details of the expenses of his family have also been submitted in writing. However, he has offered 100 Australian Dollars per month as maintenance to the petitioner, which according to me, at this stage, seems to be just and reasonable. The petitioner has claimed arrears of maintenance from him, but the same was outrightly refuted saying that this respondent was in a very bad financial condition to give any arrears. With regard to respondent No. 3 Anil also, there is nothing on record at Crl.M.C. 3948/2008 Page 6 of 8 this stage to see his income. But, since he is an able-bodied young boy, it is his moral as well as legal duty to give something to his mother. In the absence of there being any material available on record, he would be liable to pay maintenance to his mother (petitioner) @ Rs. 1500/- per month.
14. The matter does not end here. During the proceedings conducted on 26.3.2012, the respondent No. 1 had stated that he had let out the second floor of the premises to a tenant @ Rs. 10,000/- per month. He offered 50% of the rent i.e. Rs. 5000/- per month to be given to the petitioner w.e.f. 22.4.2012. The petitioner and her counsel agreed to this offer but later, she demanded the whole of the rent and also alleged the rent to be more than Rs. 10,000/- per month. In the proceedings conducted on 26.3.2012, the offer as given by her son Prem Prakash of 100 Australian Dollars per month as also of her husband of Rs. 5000/- per month out of the rent and to continue pay Rs. 4500/- per month as before, was outrightly declined by the petitioner in the subsequent proceedings. This shows the conduct of the petitioner, who seem to be not only greedy and trying to settle the scores, but was extremely aggressive also. However, irrespective of all that, I think that the offers given by the respondents No. 1 & 2 are quite just and reasonable given the facts and circumstances of the case.
15. In view of the above discussion, it comes out to be that the petitioner would be entitled to maintenance @ Rs. 4500/- per month from the date of this order from her husband (respondent No.1) under Section 125 CrPC. In addition, she would be entitled to maintenance of 100 Crl.M.C. 3948/2008 Page 7 of 8 Australian Dollars from her son Prem Prakash (respondent No.2) and Rs. 1500/- per month from her son Anil (respondent No.3). Having regard to the peculiar circumstances of the respondents No.2 and 3, they are directed to pay these amounts of maintenance to petitioner from the date of this order. The issues regarding claims of maintenance from them from the date of application, shall be determined at time of final disposal of the petition by the Trial Court. She would be also entitled to Rs. 5000/- per month w.e.f. 22.4.2012 being half of the rent of the premises of second floor let out by the respondent No. 1. It is clarified that in the event of any increase in the rent amount of the said premises at any point of time, half of the rent whatever may be, shall be continued to be paid to the petitioner by her husband (respondent No.1). Consequently, the impugned order stands modified in the manner as indicated above.
16. Petition along with miscellaneous applications stand disposed of.
M.L. MEHTA, J.
MAY 18, 2012
akb
Crl.M.C. 3948/2008 Page 8 of 8
HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc.No.M-8902 of 2011 (O&M)
Date of decision: 18.5.2012
Smt. Sushila & another
—–Petitioners
Vs.
Suresh Kumar
—–Respondent
CORAM:- HON’BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. J.P. Sharma, Advocate for the petitioners.
None for the petitioner.
—
RAKESH KUMAR GARG, J.
1. Petitioners are wife and daughter of respondent-
Suresh Kumar. They were provided maintenance allowance at
the rate of Rs.750/- per month each under Section 125 CrPC, to
be paid by the respondent vide order dated 22.8.2006.
Subsequently, in an application filed on 11.10.2008 under Section
127 Cr.P.C., the Sub Divisional Judicial Magistrate, Mohindergarh,
vide order dated 20.3.2010, enhanced maintenance allowance to
Rs.2,000/- per month to petitioner No.1 and Rs.1,000/- per month
to petitioner No.2, from Rs.750/-.
2. Feeling aggrieved from the aforesaid order, the
petitioners filed revision petition before the Sessions Judge, CRM No.M-8902 of 2011 2
Narnaul by raising grievance that petitioner No.2-Monika was also
entitled to maintenance allowance at the rate of Rs.2,000/- per
month instead of Rs.1,000/- per month. Vide order dated
27.11.2010, maintenance allowance of Monika was enhanced to
Rs.2,000/- per month, but it was ordered that the enhanced
amount would be payable to both the petitioners with effect from
20.3.2010 i.e. date of order passed by the Sub Divisional Judicial
Magistrate, Mohindergarh. Whereas the enhanced maintenance
allowance should have been awarded from the date of application
i.e. 11.10.2008 instead of date of order.
3. From the aforesaid facts, as narrated above, it may be
noticed that only grievance of the petitioner is that the enhanced
maintenance should have been allowed from the date of
application instead of the date of order of Sub Divisional Judicial
Magistrate, Mohindergarh.
4. It is useful to refer to Section 127 CrPC, which reads
thus:-
127. Alteration in allowance.- (1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance, or interim CRM No.M-8902 of 2011 3
maintenance, as the case may be.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- (a) The woman has, after the date of
such divorce, remarried; cancel such
order as from the date of her
remarriage;
(b) The woman has been divorced by
her husband and that she has
received, whether before or after the date of the said order, the whole of the sum which, under any customary or
personal law applicable to the parties, was payable on such divorce, cancel
such order-
(i) In the case where such
sum was paid before such
order, from the date on
which such order was made,
(ii) In any other case, from
the date of expiry of the
period, if any, for which
maintenance has been
actually paid by the husband
to the woman;
(c) The woman has obtained a divorce
from her husband and that she had
voluntarily surrendered her rights to maintenance or interim maintenance,
as the case may be after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any CRM No.M-8902 of 2011 4
person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance, in pursuance of the said order.”
5. The plain import of Section 127 is that a provision is
made therein for an alteration of the maintenance allowance
consequent upon a change in the circumstances of either party at
the time of application for alteration. However, mere allegation of
change in circumstances in the application are not enough and
the same requires to be proved. Thus, while dealing with such an
application, the Magistrate should consider the matter in the light
of criteria which usually weighs with Court in the proceedings u/s
125 CrPC and after an inquiry, an appropriate order for alteration
can be passed. It may further be noticed that the aforesaid
provision has put no bar on the powers of the Court to order
alteration in the maintenance allowance from the date of
application. In other words, the order for payment of enhanced
maintenance allowance can be made from the date of application,
for the reasons established on the record.
6. In the facts and circumstances of the case, it has
been established that there exists reasons for enhancing the
maintenance allowance from the date of application.
7. At this stage, it is useful to refer to judgments of this
Court in the case of Smt. Tripta v. Sat Parkash 1984 CCC 482, CRM No.M-8902 of 2011 5
wherein it has been observed that it is the discretion of the trial
Court to grant maintenance either from the date of order or from
the date of application and in the case of Bhagat Singh v. Smt.
Parkash Kaur 1972 Vol.LXXIV PLR 952, wherein it has been
held that the Magistrate had the power to make alteration in the
maintenance from the date of application.
8. Thus, keeping in view the aforesaid judgments of this
Court and the discussion, as above, this petition is allowed and
the impugned order is modified to the extent that the enhanced
maintenance allowance to the petitioners shall be payable from
the date of application instead of the date of order of Sub
Divisional Judicial Magistrate, Mohindergarh.
May 18, 2012 ( RAKESH KUMAR GARG ) ak JUDGE
Calcutte HC: Even after grant of divorce, divorcee wife is entitled to grant a maintenance under CrPC 125
1
6.
02.08.2012
d.d.
CRR No.2716 of 2012
In re: Arabinda Mallick
…Petitioner.
– And –
In the matter of : An application under Section 482 of the Code of Criminal Procedure, 1973.
Mr. Haradhan Banerjee,
Mr. Partha Pratim Mukherjee
…… For the Petitioner.
Present petition has been filed under Section 482 of the Code of Criminal Procedure praying that the impugned order dated 16th July, 2012 passed by Judicial Magistrate, Second Court at Sealdah in Miscellaneous Execution Case No.8 of 2012, be set aside, whereby Warrant of Arrest was issued against the petitioner.
Counsel for the petitioner contended that divorce was granted to the petitioner on the ground of desertion by the wife. Hence, divorced wife is not entitled to grant a maintenance.
This Court relying upon Rohtash Singh Vs. Ramendri (Smt) and Ors., (2000) 3 Supreme Court Cases 180 had already held that after grant of divorce, divorcee wife is entitled to grant a maintenance. It will be apposite to reproduce paragraph 10 of Rohtash Singh (supra) and the same reads as under: 2
” Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position. ”
At this stage, Counsel for the petitioner submits that this Court need not adjudicate the right of deserted wife to get maintenance as already Criminal Revision No.1251 of 2011 filed by the petitioner is pending in this Court. However, Counsel for the petitioner states that he will limit his prayer to urge that there is no justification for the trial Court to issue Warrant of Arrest as no notice was served upon the petitioner earlier. Counsel has further undertaken that petitioner shall appear before the trial Court on 14th August, 2012, date fixed for appearance.
In view of the undertaking given by the Counsel for the petitioner, present petition is disposed of by issuing a direction that the Warrant of Arrest issued against the petitioner be kept in abeyance till 14th August, 2012 to enable the petitioner to appear before the trial Court on the date fixed, i.e., 14th August, 2012. However, it is made clear that in case petitioner fails to appear before the trial Court on 14th August, 2012, trial Court shall be 3
well within its right to initiate all coercive action against the petitioner to secure his presence.
Let a photostat copy of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Counsel for the petitioner on usual undertakings.
( Kanwaljit Singh Ahluwalia, J. )
Women won’t be called to police stations for statements: Bombay high court
MUMBAI: Women, children and physically handicapped persons, who are either witnesses or complainants, will not be summoned to police stations for recording of their statements from now onwards, the Bombay high court was informed on Monday.
The court was informed through a circular issued by Deven Bharti, inspector general of police (law and order).
The circular issued to all police stations across Maharashtra has directed police to ensure that women, children and physically handicapped are not summoned to police stations for recording of statements.
Asking the police to strictly follow section 160 of the Criminal Procedure Code, the circular states if the statement of any woman, child below the age of 15, and physically handicapped person is required, the policeman concerned will have to go to their residence and record the statement.
The circular was submitted to a division bench of justices AM Khanwilkar and AR Joshi during the hearing of a plea filed by an advocate Geetal Haldankar, who had alleged that when she had gone to lodge a complaint with the police against an estate agent she was made to sit in the police station till late in the night.
According to Haldankar, she had rented a flat in Diva in neighbouring Thane district through one Shubhda Narvekar. She was, however, not given an agreement by Narvekar.
Recently, when she returned from work, the landlord of the house had removed her lock from the door and put his own. When Haldankar approached the Diva police to file a case against Narvekar, the police there refused to take her complaint and made her sit there till late in the night.
Haldankar wrote a letter to the senior police inspector complaining about the behaviour of the police officials but did not receive any reply. The advocate later approached the high court seeking direction to police to lodge a case.
The high court was today also informed that Haldankar’s complaint has been lodged and investigations are on following which her petition was disposed of.
Panjap&Harayana HC: Disowning son will not help him in matrimonial cases
CRM No.M-9277 of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-9277 of 2012
Date of decision : 01.08.2012
Rajinder Kumar Dhingra and others
…Petitioners
Versus
Sunaina
…Respondent
CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: None.
JITENDRA CHAUHAN, J. (Oral)
The present petition under Section 482 Cr.P.C. is for quashing of complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005, titled as ‘Sunaina Versus Abhishek Dhingra and others’ bearing case No.152 dated 28.05.2010 (Annexure P-1).
It is averred in the petition that petitioner Nos.1 and 2 are the parents of the husband of the complainant-Sunaina and they have already disowned their son. A public notice was also issued in this regard. Petitioner No.3 is the married sister-in-law whereas petitioner No.4 is the husband of petitioner No.3. Their marriage was solemnized in the year 1998. It has been averred that the petitioners have no CRM No.M-9277 of 2012 -2- relation with the accused-husband. To fortify their contentions, ration cards, Annexure P-2 to P-5 have been placed on record. It is further contended that after leaving the matrimonial home, the respondent-wife made a complaint to the Superintendent of Police, Amritsar, against the petitioners.
From the perusal of the complaint, specific entrustment to the petitioners is made out. There are specific allegations of violence against the petitioners. FIR No.69 dated 27.04.2010 under Sections 498-A, 406 and 506 IPC stands registered against the petitioners. Keeping in view the averments made in the complaint and the fact that the FIR is lodged way back in the year 2010, not case for grant of relief sought is made out.
Dismissed in limine.
01.08.2012 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter ? Yes / No
Woman SI demands bribe for bail to Sec 498A accused – Tv9
Punjab & Haryana HC: Wife has file false 498A against sister-in-law….Quashed
Criminal Misc. No.M-2116 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-2116 of 2011 (O&M)
Date of decision: 5.7.2012
Channo Devi @ Charno
……Petitioner
Versus
State of Haryana and another
…….Respondents
CORAM: HON’BLE MRS. JUSTICE SABINA
Present: Mr.H.S.Sullar, Advocate,
for the petitioners.
Mr.Gaurav Dhir, DAG, Haryana.
Mr.Sanjay Jain, Advocate,
for respondent No.2.
****
SABINA, J.
Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom.
FIR (Annexure P-1) reads as under:-
“The complainant submits as under:-1. That the complainant was married with accused no. 1 Ram Ji son Criminal Misc. No.M-2116 of 2011 (O&M) 2 of Kuldeep Singh, R/o Village Munak Distt. Karnal as per Hindu Rites and ceremonies at village Sarangpur, P.S. Sadar Ambala, Tehsil and Distt. Ambala on 15.02.2009,
2. That the father of the complainant spent on the marriage of the complainant more than his capacity. He arranged the marriage in Dulhan Farm Hissar Road Ambala city and provided good food and other facilities to the Baraties and spent Rs. 2,00,000/- on marriage party in Dulhan Farm. 3. That at the time of departure of Barat a huge dowry was entrusted to the accused nos. 1 and 2 for the purpose of giving the same to the complainant in her matrimonial house which was for the exclusive use of the complainant a separate list of the dowry article is attached along with the complaint, 4. That accused no. 1 husband and accused no. 2 the father in law of the complainant and Smt. Nahmo Devi alias Bimla accused no. 3 and Nanad Channo Devi were not satisfied with this much and they started to tease the complainant on the pretext that the complainant has not brought anything worthwhile in her marriage and started to say that her (complainant’s) father has not given a car in the marriage and instead has given a Motor Cycle. All the accused started to demand a car and the others to pressurize the complainant to meet out their illegal demand of car and they also started to give beatings to the complainant Criminal Misc. No.M-2116 of 2011 (O&M) 3 every now and then on one pretext or the other 5. That having felt disturbed mentally and harassed the complainant reported the same to her father and told that her in law i.e. husband, father, mother-in-law and Nanad were demanded a car and also told that they often beat her to compel her to met out their illegal demand. The father of the complainant on the receipt of the complainant went to village Munak alongwith members of his Biradari and he alongwith other member panchayat made their best to make the accused persons understand that he could not given anything more than what he had already give in the marriage of his daughter on this all accused persons became furious and they started to quarrel with the father of the complainant and other members of brother hood accompanying him the accused persons also declared that they would not keep the complainant in their house unless a car is not given to them. However with the accused agreed to keep the complainant in her matrimonial house and also promised that they would not demand anything again in future. 6. That time went on going and the accused persons out of lust of dowry again started to demand a car in the same manner and fashion and again started to maltreat the complainant and beat her or the other to pressurize their demand. They also started to deny her food and other Criminal Misc. No.M-2116 of 2011 (O&M) 4 basic amenities of life in her matrimonial house. The complainant continued to bear all the same with the hope that good sense would prevail on the accused persons one day or the other but the accused persons did not mend their habits and they made the complainant to and her life by committing suicide. The accused persons created such an atmosphere in the house that she felt danger to her life. The accused persons harassed the complainant to such an extent to coerced the parents of the complainant to meet the unlawful demand of the accused persons. 7. That when the parents of the complainant did not meet the unlawful demand of the accused persons all the accused persons gave beatings to the complainant on 27.06.2010 and tried to put her on fire by sprinkling on her clothes. The complainant however made hue and cry and on hearing her noise the people from the neighborhood gathered at the spot and they escaped her from the cruel clutches of the accused persons. The complainant left the house of the complainant feeling danger to her life and came to the house of her parents at village Sarangpur P.S. Sadar Ambala Tehsil and District Ambala. She told everything to her parents. Upon which the father of the complainant made an application to S.P. Karnal through the complainant stating there in everything what happened to Criminal Misc. No.M-2116 of 2011 (O&M) 5 her in her in laws house on 28.06.10. The application made to S.P. Karnal was made over to Incharge Parivar Pramarash Kendar Karnal for necessary action but the matter could not be solved and the grievances of the complainant were not redressed for the eye-wash of the complainant and her father the Incharge Parivar Pramarash Kendar Karnal got a fictitious as well as vage compromise effected where in the accused party had promised to take the complainant to her matrimonial house by 15.07.2010 but non has come to take the complainant back in her matrimonial house and she still is living with her parents at village Sarangpur P.S. Sadar Ambala Tehsil and Distt Ambala the accused no. 1 filed a petition u/s 13 of H.M. Act in the courts at Karnal against complainant. 8. That the complainant has not condoned the act of maltreatment meted out to her by the accused persons and all the accused persons are liable to be punished for the criminal acts done by them and all the accused persons are liable to be punished accordingly. 9. That all accused persons have also retained the dowry articles, Jewellery, wearing apparels and other articles entrusted to them at the time of marriage and have not returned them to the complainant and converted the same to their own use. 9. That all the accused have committed an offence punishable under section 498A/307/406/34 Criminal Misc. No.M-2116 of 2011 (O&M) 6 IPC within the cognizance of this Hon’ble Court and this Hon’ble Court has got the jurisdiction to hear the present complaint.”
Learned counsel for the petitioner has submitted that the petitioner was the married sister-in-law of the complainant. The petitioner had got married much before the marriage of the complainant with her brother and was residing in her matrimonial home. The petitioner had been falsely involved in this case as a divorce petition had been filed against the complainant by her husband. The present FIR was a counter blast to the said litigation. Learned State counsel as well as learned counsel for complainant-respondent No.2, on the other hand, have submitted that the petitioner and her co-accused had harassed the complainant on account of insufficiency and demand of dowry. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
“The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible Criminal Misc. No.M-2116 of 2011 (O&M) 7 to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint Criminal Misc. No.M-2116 of 2011 (O&M) 8 are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Criminal Misc. No.M-2116 of 2011 (O&M) 9 In Kans Raj vs. State of Punjab and others, 2000 (2) RCR (Criminal) 696 (SC), their Lordships of the Apex Court have observed that a tendency has developed for roping in all the relations in dowry cases and if it is not discouraged, it is likely to affect case of the prosecution even against the real culprits. The efforts for involving the other relations ultimately weaken the case of the prosecution even against the real accused. In the present case, the marriage of the complainant took place with Ramji Lal, brother of the petitioner, on 15.2.2009. The petitioner is married sister-in-law of the complainant and is residing in her matrimonial home at village Munak. Admittedly, the petitioner was married at the time of marriage of her brother with the complainant. It appears that the petitioner has been falsely involved in this case merely because of her relationship with the husband of the complainant. It is generally seen that in matrimonial disputes all the family members of the husband are involved in criminal litigation by the complainant party with a view to put pressure on the husband and his family members. A perusal of the FIR also reveals that there are general allegations levelled against the petitioner. The petitioner had no reason to demand a car by way of dowry as she could not have used the same being residing in her own matrimonial home. Hence, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, the petition is allowed. FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 IPC registered at Criminal Misc. No.M-2116 of 2011 (O&M) 10 Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA)
JUDGE
July 05, 2012
anita
Women are filing false 498A on Saturday to keep husband in custody on Sunday and deliberately avoiding child access to father – Calcutta HC
1
7.2012
05
r.
C.O. 2453 of 2012
Smt. Banani Acharya (Sarkar)
-vs-
Sri Bikash Sarkar
Mr. S. Mukherjee,
Mr. Susanta Kumar Pal,
……. For the petitioner.
Supplementary affidavit filed by the petitioner be kept with the record. The present application is arising out of an order passed by the learned Additional District Judge in an application for custody of a male child. The learned trial Judge directed the wife to hand over the custody of the child forthwith to the husband and the husband was also directed to produce the child before the Court on first and third Saturday of each month from 11.00 A.M. to 12.30 P.M. when the wife was directed to visit the minor child during such period.
The wife being aggrieved by the said order filed this revisional application. The child is only about 4 years old and has become the pawn in the hands of the parents. In the tug-of-war the helpless child is in quandary with whom he 2
should spend his childhood and his innocent eyes show that he requires both the parents.
The custody proceeding commenced with the filing of the application by the wife under Section 38 of the Special Marriage Act, 1954 on 11th January, 2012 in which the wife prayed for a direction upon the husband to return the minor child and give custody to the wife. Initially, on 9th April, 2012, the learned Civil Judge directed the husband to send the child on each Friday in the afternoon to the house of the wife/petitioner and the petitioner was directed to return the child to the custody of the husband on Sunday evening on each week and such arrangement was to continue until further orders.
The wife in the said proceeding, thereafter, filed an application for modification of the order upon proof of change of circumstances. The change of circumstances alleged in the said petition was that since the passing of the order dated 9th April, 2012, the husband on his own whims violated and disrespected the order dated 9th April, 2012 and never sent the said minor male child to the house of the petitioner with the dishonest intention to torture the petitioner mentally and thus committed offences which are punishable under the Contempt of Courts Act, 1971. On 16th May, 2012, the petitioner got information from one of her well-wisher that on 10th May, 2012 a street dog bite her minor child and the said child was in acute distress. 3
Following receipt of such information, the petitioner on 16th May, 2012 visited the matrimonial home when she found that the said child was lying in an unconscious condition with high fever and with the help of the well-wishers and inhabitants of the locality, she rescued her minor son and, thereafter, arranged for necessary medical treatment. Gradually, the son recovered and the said male child is under the supervision of the medical practitioner who alleged to have suggested in his prescription dated 20th June, 2012 that the child requires bed rest for seven days. The wife relied upon the Photostat copy of the patient cards issued by the Department of Health & Family Welfare, Govt. of West Bengal in the name of the minor child between 10th May, 2012 and 20th June, 2012 regarding treatment. On 10th June, 2012 at about 6.00 p.m., the respondent husband along with some miscreants alleged to have trespassed into the house of the petitioner and demanded dowry of Rs.1,00,000/- and threatened the petitioner with dire consequences, in the event, such amount is not paid by the petitioner. It was alleged that the said petitioner along with miscreants forcibly wanted to take away the child who was under treatment but due to the resistance of the petitioner and inhabitants of the locality they could not succeed and left the place with the threat of repeating such offensive acts in future. Subsequently, on 19th June, 2012 similar attempts were made but they were not successful. In short, the custody of the child to the father was sought to be resisted, inter alia, on the following grounds:-
i. The opposite party/husband has criminal records;
4
ii. She is well placed in life so as to take care of the minor. iii. The family environment would be conducive of a balanced up bringing of the minor.
iv. The minor is likely to receive adequate education, medical treatment and cultural training having regard to his socio-economic position in society.
v. The minor is expected to have a reasonably good start in life at the end of his minority.
It was on the aforesaid basis the wife claimed permanent custody of the child. The said matter was contested by the husband. It appears that the husband contended before the trial Judge that in terms of the direction for custody passed on 9th April, 2012, the child was handed over to the mother but the mother refused to hand over the child after 2nd June, 2012 and since 2nd June, 2012 the minor is in the custody of the petitioner/wife. The wife also did not permit the husband to see and take back the minor child to his place in terms of order dated 9th April, 2012. It was also submitted that the said child is studying in a school which is adjacent to the house of the husband and the school would reopen after summer vacation and soon after the reopening of the school on 26th June, 2012, the examination would start. In view thereof, it is important that the child should be handed over to the father. It appears that both the parties have lodged general diary with the respective Police Station alleging violation of the order passed by the trial Judge. The respondent/husband also appears to have filed a petition on 2nd June, 2012 5
praying for a direction upon the wife to hand over the custody of the child. On careful consideration of the record, the trial Judge before arriving at the conclusion observed that the custody of the minor was with the father and for which the mother prayed for custody of the child by filing the said petition along with a prayer for divorce and after hearing the parties, initially, an order was passed on 9th April, 2012 by way of an interim arrangement. On the basis of the materials on record the learned Civil Judge arrived at a finding that the wife claimed to have taken custody of the child only on 16th May, 2012 after getting the information that the child was suffering from fever and lying in distress condition. The medical examination record shows that the child was treated in the Naihati State General Hospital on 10th May, 2012 and 15th May, 2012 and on 4th June, 2012 was fixed for further medical examination. Accordingly, it cannot be said that the child was not treated by the father. In fact, when the child was sick he was under the custody of the father and the child was treated on 10th May, 2012 and 15th May, 2012 at the Naihati State General Hospital. The child was further treated on 8th June, 2012, 11th June, 2012 and 20th June, 2012 respectively when the child was under the custody of the mother. The mother did not complain that the child was not handed over to her till 16th May, 2012 alleging refusal by father to hand over the child and even no application alleging violation of the order dated 9th April, 2012 was moved on 30th May, 2012 when the suit was fixed for hearing. On 9th June, 2012 during the hearing of the matter, the learned Civil Judge passed an order in which an 6
observation was made by the Court that the male child used to reside with his father and after enquiring from the child by the Court it was found that the child was not willing to go with his mother. The Court also recorded the difficulties being created by the petitioner in effecting service on her of the petitions filed by the husband. The learned Civil Judge, on the basis of the earlier recordings and materials on record considered the interim custody of the child keeping in mind that the welfare of the child should be the paramount consideration. It is very unfortunate that a child only of 4 years had to suffer such mental trauma only because of the fights between his parents. In allowing the said application for interim custody in favour of the father, the proximity of the school, the reluctance of the child to go along with his mother, the immediate treatment of the child by the father during his stay with his father and refusal of mother to hand over the child to the father in compliance of the order dated April 9, 2012 were taken into consideration and, accordingly, the wife was directed to hand over the custody of the child forthwith to the husband with certain visitation rights and, accordingly, the trial Judge fixed on 7th July,2012 for production of the child. Thereafter what happens really shocks the judicial conscience and brings out certain disturbing features as to how the orders of the Civil Court have been attempted to be nullified or rendered otiose. Such facts are revealed from a supplementary affidavit affirmed by the wife on 17th July, 2012 after the petitioner was successful in persuading one of the learned single Judges to release the matter on grounds which are admonishable, to put it mildly. In fact, it appears that the present petition was initially heard by Justice Prasenjit Mandal. After some 7
extensive hearing it was submitted on behalf of the petitioner that the petitioner had lost confidence in the Court and in view of such submission, the matter was released by His Lordship. It is extremely unfortunate that such submission was made before His Lordship without disclosing the reason for losing confidence of the Court.
In the supplementary affidavit, the wife stated that on 22nd June, 2012 the wife lodged a complaint against the husband in the Barasat Police Station for committing offences under Sections 498A/406/448/506/120B of the Indian Penal Code, 1860 which was registered as Barasat P.S. Case No.1292 dated 22nd June, 2012 which resulted in an arrest of the opposite party/husband on 14th July, 2012 from the residence of the opposite party and it is contended that on production of the husband on 15th July, 2012, the learned Chief Judicial Magistrate at Barasat rejected his bail application and remanded him to jail custody till 27th July, 2012. It is significant to mention that on 13th July, 2012 the learned Advocate for the petitioner was successful in releasing the matter from the learned single Judge and on the very next date the husband was arrested by the police. In the application before the Civil Court, the wife alleged that she was driven out of the matrimonial home on 25th March, 2008 and in July, 2010 the husband on the pretext of keeping the son with whom for a day or two took the son from her custody but did not return which had resulted in an application filed under Section 38 of the Special Marriage Act, 1954 in which an order was passed on 9th April, 2012.
8
It is a fact that the wife did not return the child nor produce the child on 7th July, 2012 as directed by the impugned order. In order to render the order passed by the Civil Judge on 4th July, 2012 ineffective and inimplementable recourse was taken to such proceedings with an ulterior motive. The police arrested the husband on the basis of an application filed on June 22, 2012 under Section 156(3) of the Code of Criminal Procedure, 1973. The basis of the said petition is a general diary lodged on June 16, 2012. The police arrested the husband on 14th July, 2012 and produced him on 15th July, 2012. The said production resulted in a routine order of remand being passed by the learned Chief Judicial Magistrate at Barasat, North 24-Parganas on 15th July, 2012. This Court in great anxiety observed that in most of such cases police arrests the so- called accused on the basis of such complaints mostly on Saturdays so that they are produced on Sundays before a Court which are practically non-functional resulting in routine orders of remand. This a clear infringement of fundamental rights of a citizen and it shakes the basic fabric of administration of justice. The police have an important role to play. It is unfortunate that in many cases such arrests are made on the basis of false complaint and usually such arrests are made on Saturday in order to ensure custody on Sunday since routine orders of remand are ordinarily passed at times even without requiring the police to produce the case dairy. In most of the cases, case diaries are not produced and the Investigating Officer is let off without any stricture or punitive orders. If a case is registered on 22nd June, 2012 this Court is unable to appreciate as to 9
why the said husband/opposite party was arrested on 14th July, 2012. The reasons are obvious. It calls for an investigation. The wife did not disclose the proceeding initiated under Section 156(3) of the Criminal Procedure Code. before the Civil Court. However, since the Chief Judicial Magistrate is in seisin over the matter it is expected that he should conduct a proper enquiry into the matter and must be very cautious in future in dealing with such matters arising out of matrimonial disputes especially when it involves custody matters since it has become the regular feature that matrimonial disputes are initiated in Criminal Courts by taking recourse to proceedings under Section 498A of the Indian Penal Code, 1860. The Courts are required to be extremely cautious and circumspect in passing an order in an application filed under Section 156(3) Criminal Procedure Code and in dealing with bail application. The advice given to the wife to initiate such proceeding in order to frustrate the order of Civil Court would be disastrous for the wife once the Court comes to a finding that such proceedings are mala fide, vexatious and an abuse of the process of law and such advisor cannot escape his or her liability and responsibility. Such irresponsible and improper acts are deprecated.
The date of filing of the petition under Section 156(3) Criminal Procedure Code the date of arrest of the husband and the subsequent order of remand give a clear impression that such process was initiated with an ulterior motive to render the order of the Civil Judge ineffective.
10
The learned Counsel on behalf of the petitioner refers to two decisions reported in AIR 1992 Madras 272 (Mrs. Umamaheswari v. V.Sekar) and AIR 1990 SC 1156 (Manju Tiwari v. Rajendra Tiwari) for the proposition that the mother should be given the custody of a child less than 5 years of age with liberty to the father to visit the father during the weekends.
In determining the question relating to the custody of a child, the paramount consideration should be the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts.
In Ashish Ranjan v. Anupma Tandon & Ors. reported in 2010 (14) SCC 274 after considering the earlier decisions on this point the Hon’ble Supreme Court held:-
“18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as 11
well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.”
In Mohan Kumar Rayana V. Komal Mohan Rayana reported in 2010 (5) SCC 657 while considering the custody of a minor under the Hindu Minority and Guardianship Act, 1956, the Hon’ble Supreme Court observed that wishes of the minor need to be given due weightage. In that case, the order of the family court directing custody of child to continue with the mother was upheld on the basis of the wishes expressed by the minor. In Anjali Kapoor v. Rajiv Baijal reported in 2009 (7) SCC 322, the Hon’ble Supreme Court while considering Section 17 of the Guardians and Wards Act, 1890 held that when a conflict arises between the rights of natural guardians vis-à-vis welfare of the child what would best serve welfare and interest of the child should be the sole and predominant criteria. The Children are not mere chattels as observed in Rossy Jacob v. Jacob A. Chakramakkal reported in 1973 (1) SCC 840. The Hon’ble Supreme Court in Anjali Kapoor (supra) quoted with approval observations of the English Court and the other foreign Courts in deciding such custody matters giving predominance to the welfare of the child as it appears from Paragraphs 19 to 21 which are reproduced hereinbelow:-
12
“19. In McGrath (infants), Re 1893 (1) Ch 143 it was observed that: “… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
20. In American Jurisprudence, 2nd Edn., Vo.39, it is stated that: “…An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.”
21. In Walker v. Walker & Harrison (1981 New Ze Recent Law 257) the New Zealand Court (cited by British Law Commission, Working Paper No.96) stated that: “Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequach of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”
The learned Civil Judge, in my mind, upon taking into consideration the aforesaid factors and the wishes of the child restored the custody of the child in favour of the father by way of an interim arrangement. Such custody orders are 13
always interlocutory in nature which can be varied and/or changed with the change of circumstances.
On the basis of the order of remand it is sought to be argued that in view of such changed circumstances the order of trial judge is to be reviewed and the child should be allowed to remain with the mother. The said submission cannot be accepted. This Court before passing this order has enquired from child his wishes. The impression of this Court is that the child wants to see the father and be with the father although he was brought to the Court by the mother. The child was in a complete helpless condition. It is unfortunate that the said beautiful child has been dragged unnecessarily in this unfortunate litigation. If the mother is really fond of her child and want her child to have a proper and better living, she should not have initiated such criminal proceeding against the husband and make an attempt to render the order of the Civil Judge nugatory. In the absence of any materials on record as to whether the Chief Judicial Magistrate at Barasat was informed of the said custody matter and the orders passed by the Civil Judge, it would not be proper for this Court to make any remark on the order passed by the Chief Judicial Magistrate in entertaining the application filed under Section 156(3) Criminal Procedure Code or in passing an order of remand. However, the Chief Judicial Magistrate at Barasat is directed to immediately call for the record and consider the prayer for bail of the petitioner forthwith upon receipt of this order and to pass appropriate orders. If the said Chief Judicial Magistrate found that the said complaint is malicious, vexatious, 14
mala fide and filed with an ulterior motive, the learned Magistrate should dismiss such complain. Furthermore, if it appears to the learned Magistrate that the Investigating Officer has acted improperly or on the basis of insufficient materials, appropriate order should be passed against the Investigating officer. The learned Civil Judge should also pass appropriate orders taking into considerations the order passed by the Chief Judicial Magistrate and to ensure that the welfare of the child does not suffer in any manner whatsoever. The Civil Judge should decide the custody of the child till the husband is released on bail. Meanwhile as an interim measure the wife/petitioner must ensure that while in her custody, the welfare and the benefit of the minor is not compromised. This is the primary consideration for not disturbing the present custody of the child and subject to the order that may be passed by the Civil Judge.
A copy of this Order be immediately forwarded by the learned Registrar General, High Court, Calcutta to the learned District Judge, Barasat, the learned 5th Additional District Judge at Barasat, learned Chief Judicial Magistrate at Barasat, North 24-Parganas and the Director General of Police for compliance and necessary action.
Since this revisional application is dismissed no notice is required to be sent upon the opposite party/husband. However, the learned Registrar General is directed to effect service of this order on the husband/opposite party. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the petitioner in compliance of necessary formalities. (SOUMEN SEN, J.)
15
If notice is returned as “Unclaimed” then it is “deemed as served” DV Case – Karnataka HC
HC: Refusal to have sexual life with spouse amounts to cruelty-Husband granted divorce
HC: Wife and husband misuse 498A to grab parrents’s property- Quashed
Criminal Misc.No.M-18643 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM No.M-18643 of 2008
Date of Decision:- 21.2.2012
Smt.Sunita Goyal & Ors. …Petitioners Vs.
State of Punjab & Anr. …Respondents CORAM: HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Akshay Bhan, Advocate for the petitioners.
Mr.Palwinder Singh, Senior DAG Punjab for respondent No.1.
Mr.Ashok Singla, Advocate for
Mr.Ravish Bansal, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
Petitioners Smt.Sunita Goyal, Vijay Goyal, unfortunate parents-in- law and Abhishek Goyal, brother-in-law (Devar) of complainant Soni Goyal, wife of Mahavir Goyal respondent No.2 (for brevity “the complainant”), have directed the instant petition for quashing the impugned FIR, bearing No.246 dated 15.9.2007 (Annexure P5), registered against them, on accusation of having committed the offences punishable under Sections 406, 498-A, 323, 506 and 120- B IPC by the police of Police Station Division No.5, Ludhiana.
2. Concisely, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the present petition and emanating from the record, are that the marriage of the complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery, weighing 80 Tolas, cash and dowry beyond his capacity at the time of Criminal Misc.No.M-18643 of 2008 -2- her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. It was claimed that although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She and her husband also apprehend danger to their lives at the hands of the petitioners. On 30.8.2007 at 8 A.M., they were stated to have given severe and merciless beatings to the complainant and her husband Mahavir Goyal. The matter was reported to the police, where DDR No.12 dated 31.8.2007 was entered, but no action was taken by the police against them.
3. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the petitioners have harassed, treated her with cruelty in connection with and on account of demand of dowry and gave severe beatings to her as well as to her husband on 30.8.2007. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioners-accused, by virtue of FIR (Annexure P5) in the manner indicated hereinabove.
4. The petitioners did not feel satisfied with the initiation of criminal prosecution against them and preferred the instant petition, for quashing the FIR (Annexure P5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC inter-alia on the grounds (i) that the impugned FIR (Annexure P5) has been registered ostensibly on the complaint of Soni Goyal in furtherance to the oblique motive of aforesaid Mahavir Goyal, Soni Goyal and Chuhar Lal Garg by misusing the provisions of Sections 406 and 498-A of I.P.C. The impugned FIR was got registered as a counter-blast and in retaliation to the aforesaid complaint dated 30.08.2007 (Annexure P1) lodged by petitioner no.2 with P.S. Division No.5, Ludhiana under Section 384 read with section 120-B of I.P.C. against Mahavir Goyal, Soni Goyal and Chuhar Lal Goyal and also as a counter-blast to the disassociation and de-linking of Mahavir Goyal by petitioner no.2 from their property and the filing of the civil suit (Annexure P4) by petitioner Criminal Misc.No.M-18643 of 2008 -3- no.1 against Mahavir Goyal and Soni Goyal; (ii) the criminal case was lodged by the complainant with the sole intention to pressurize and blackmail them to transfer their property in the name of her husband Mahavir Goyal; (iii) the allegations in the FIR are absolutely concocted, false, frivolous and evince the element of malafide, after thought and maliciously & vexatiously registered against the petitioners in order to wreak vengeance and the incident of 30.8.2007 and story of payment of Rs.2,50,000/- were concocted by the complainant party; (iv) the complainant has concealed the fact that the Zen car has already been transferred in the name of Soni Goyal (complainant) on 22.4.2008, as per the transfer report/documents (Annexure P9 colly); (v) the dowry articles given at the time of marriage have already been given to the complainant, vide letter (Annexure P10). She did not make any grievance against the petitioners during five years after her marriage. As soon as, petitioner No.2 refused to part and disowned the husband of the complainant from his property, then she filed the false criminal case against them in order to take the revenge and no offence whatsoever is made out against the petitioners. On the strength of aforesaid grounds, the petitioners sought to quash the criminal prosecution against them, as depicted hereinbefore.
5. The complainant-respondent No.2 did not file any reply to deny the specific personal allegations contained in the petition. However, the DSP Crime filed the reply on behalf of State of Punjab (respondent No.1), taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the prosecution that as per the inquiry report (Annexure R1/T) and during the course of investigation, both the parties were called and the complainant’s father-in-law agreed to give the share of Rs.25 lacs from his property to Mahavir Goyal, husband of the complainant, out of which, Rs.10 lacs were already taken by him (husband) and the remaining amount was to be paid subsequently. Consequently, the complainant and her husband agreed to shift to residential HIG Flat No.11-FF, opposite Khalsa College, Ludhiana, as per Criminal Misc.No.M-18643 of 2008 -4- report (Annexure P13). Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has reiterated the allegations contained in the impugned FIR (Annexure P5). However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.
7. Ex facie, the celebrated argument of learned counsel that since there are direct allegations of cruelty, maltreatment and harassment to the complainant by the petitioners, so, no ground for quashing the criminal prosecution against them is made out, is neither tenable nor the observations of Hon’ble Supreme Court in case Central Bureau of Investigation v. K.M.Sharan 2008(4) S.C.C. 471, are at all applicable to the facts of the present case, wherein a criminal case was registered against the then Vice Chairman of the Delhi Development Authority and other senior officials for entering into conspiracy with Dharmbir Khattar and others to give undue favour to M/s DLF Universal Limited, New Delhi in the matter of allowing 300 Floor Area Ratio (FRA) in respect of one of the projects of DLF Universal by charging rates much below the prevailing rates and obtained or agreed to obtain illegal gratification from M/s DLF as quid pro quo. The total bribe amount was 1.10 crores. During the course of investigation and subsequent search conducted at the residence of son of one of the accused A.M.Sharan, who was at that time, Commissioner (Land Disposal, DDA), certain papers/documents relating to assets acquired/expenses incurred by him and his family members besides the cash amount of Rs.36 lacs were recovered and seized by the CBI. The CBI collected sufficient oral as well as documentary evidence constituting the grave Criminal Misc.No.M-18643 of 2008 -5- offences. On the peculiar facts and in the special circumstances of that case, it was observed that “where there are direct allegations and evidence to support the criminal offence, the High Court was not justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under Section 482 Cr.PC.”
8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the complainant in the present controversy, particularly when the Hon’ble Apex Court in cases Dhariwal Tobaco Products Limited and others v. State of Maharashtra and another, 2009(2) SCC 370; M/s Pepsi Foods Limited v. Special Judicial Magistrate 1998(5) SCC 749; Ashok Chaturvedi v. Shitul H.Chanchani 1998(7) SCC 698 and Central Bureau of Investigation v. Ravi Shankar Srivastava (2006)7 SCC 188 has ruled that “whenever the High Court comes to the conclusion that allowing the criminal prosecution to continue would be an abuse of the process of court and that, the ends of justice require that the proceedings should be quashed, it would not hesitate to do so, in exercise of inherent powers irrespective of other factors.”
9. Such thus being the legal position and material on record, now the short and significant question, though important that, arises for determination in this petition is, as to whether the criminal prosecution initiated against the petitioners deserves to be quashed or not under the present set of circumstances?
10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the affirmative and the criminal prosecution cannot be permitted to continue in this respect.
11. As is evident from the record, that the marriage of complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery,weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, Criminal Misc.No.M-18643 of 2008 -6- maltreating her and demanded more dowry articles. Although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She is working as a teacher in National College, Dakhan. Petitioner Nos.1 and 2 are her parents-in-law, whereas petitioner No.3 is her brother-in-law (Devar). She has not intentionally arrayed her husband Mahavir Goyal in a dowry related case in the array of the accused. According to the petitioners that on 30.8.2007, Mahavir Goyal and his wife (complainant) created nuisance in the house, broke the crockery & centre table and threatened the petitioners that in case the half share of the property and the money were not given to them, they would falsely implicate them in some false criminal case. Petitioner No.2 objected to it, then his son Mahavir Goyal, husband of the complainant, slapped him (his father petitioner No.2). The matter was reported to the police by petitioner No.2, through the medium of complaint of same date (Annexure P1). So much so, he disowned his son Mahavir Goyal from his whole movable and immovable properties and published the notice dated 1.9.2007 (Annexure P2) in Hindustan Times, Chandigarh in this connection. At the same time, in order to avoid the possibility of false implication, Sunita Goyal (petitioner No.1) wrote a UPC letter dated 3.9.2007 (Annexure P3 colly), asking her daughter-in-law (complainant) to take all the dowry articles and her other belongings.
12. Not only that, petitioner No.1 filed a civil suit for a decree of permanent injunction restraining the complainant and her husband Mahavir Goyal from interfering in the peaceful possession of their residential house, by way of plaint (Annexure P4 colly). Admittedly, in civil suit, bearing No.206 dated 13.9.2007 filed by petitioner No.1, counsel for the complainant and her husband (defendants therein) suffered a separate statement that they shall not interfere in the possession of the plaintiff in the suit property and they have no objection in case her (petitioner No.1) suit is decreed to that extent. In this manner, on the basis of statements of the parties, the suit of petitioner No.1 was decreed and the Criminal Misc.No.M-18643 of 2008 -7- complainant and her husband were restrained from interfering in her possession over the suit property, vide order dated 28.7.2010 (copy taken on record as Annexure P14).
13. It is not a matter of dispute that neither the complainant nor her husband made any complaint, raising any accusing finger towards the petitioners at any point of time before lodging the FIR (Annexure P5) nor made any such averment/statement during the course of pendency of the civil suit between them. Therefore, the arguments of learned counsel that the petitioners have been falsely implicated to pressurize and blackmail them to transfer the property and the complainant has lodged the false criminal case against them (intentionally excluding her husband in dowry related matter) vexatiously and maliciously in order to wreak vengeance, have considerable force.
14. The matter did not rest there. Even as per the FIR (Annexure P5), the father of the complainant gave a Maruti Zen Car and gold jewellery, weighing 80 Tolas besides cash. It was also alleged that the petitioners demanded more dowry articles and her father gave Rs.2,50,000/- in cash to them. That means, very very vague allegations of demand of dowry and payment of indicated amount are assigned to the petitioners. Above-all, the mere fact that the complainant did not name her husband as accused that the dowry articles were entrusted to him at the time of marriage or he has also demanded the more dowry articles, is indicative of the fact that she colluded with her husband and lodged a false complaint, on the basis of which, the FIR (Annexure P5) was registered against the petitioners without any material/evidence muchless cogent in this behalf.
15. Moreover, the indicated Zen car has already been transferred in the name of complainant, by means of transfer of ownership report/documents (Annexure P9 colly). The petitioners have specifically mentioned in their petition that whatever dowry articles were given at the time of marriage of complainant, have already been given to her, vide Annexure P10 (colly). That is the only reason Criminal Misc.No.M-18643 of 2008 -8- that the complainant intentionally did not file any reply to controvert all these vital personal aspects of the matter contained in the main petition, for the reasons best known to her. In this manner, no overt act or specific role, except one minor incident of 30.8.2007, which appear to have been concocted after the complaint (Annexure P1) of petitioner No.2 and notice (Annexure P2), are attributed to the petitioners. It is very highly impossible to believe that the petitioners would treat the complainant with cruelty or demand the dowry articles from her in the absence of her husband. She appears to have intentionally colluded with her husband in order to grab the property in this regard as discussed hereinabove.
16. It is now well settled proposition of law that, in order to attract the penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioners to indicate that the dowry articles were actually entrusted to them and they have misappropriated the same or they further demanded any dowry articles and evidence in support thereof. All other relatives of the husband cannot, in all cases, be held to be involved in the demand of dowry, especially when in this case, the husband of the complainant is not an accused. In cases, where such accusation is made, the overt acts attributed to persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences related to demand of dowry. As all the essential ingredients to constitute the offences and complicity of petitioners are totally lacking, therefore, to me, no criminal prosecution can legally be permitted to continue against them.
17. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if Criminal Misc.No.M-18643 of 2008 -9- not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction.
18. An identical question came to be decided by this Court in cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of section 498-A IPC.”
19. Sequelly, if the crux of the allegations levelled against the petitioners as discussed hereinabove, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R.(Criminal) 92. Such malafide prosecution if allowed to continue, it will inculcate and perpetuate injustice to the petitioners and is nothing else, but sheer and deep misuse/abuse of process of criminal law in this relevant connection, which is not legally permissible. Therefore, the contrary submissions of learned counsel for complainant “stricto sensu” deserve to be and are hereby repelled Criminal Misc.No.M-18643 of 2008 -10- under the present set of circumstances, as the indicated Bench mark and the ratio of law laid down in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Thus, seen from any angle, to my mind, no offences whatsoever are made out against the petitioners, in the obtaining circumstances of the case.
20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
21. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR (Annexure P5) and all other subsequent proceedings arising therefrom are hereby quashed and the petitioners are discharged from the indicated criminal case registered against them. (Mehinder Singh Sullar)
Judge
21.2.2012
AS
Whether to be referred to reporter ? Yes/No
Denying sex to spouse on first night ground for marriage annulment: Delhi high court
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 21.03.2012
FAO No.185/2001
Smt. Shashi Bala ……appellant. Through: Mr. Atul Bandhu, Adv.
Vs.
Shri Rajiv Arora ……Respondents Through: Mr. R.G. Srivastava, Adv.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim FAO 185/01 Page 1 of 19 filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.
2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty FAO 185/01 Page 2 of 19 to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on FAO 185/01 Page 3 of 19 these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.
3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant FAO 185/01 Page 4 of 19 took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to FAO 185/01 Page 5 of 19 live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.
4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-
(i) Whether the respondent has treated the petitioner with cruelty? (ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the respondent without any reasonable cause or excuse? If so, its effect. The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.
5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one FAO 185/01 Page 6 of 19 year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.
6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. FAO 185/01 Page 7 of 19 Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.
7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even FAO 185/01 Page 8 of 19 towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-
1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.
8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. FAO 185/01 Page 9 of 19
9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage FAO 185/01 Page 10 of 19 without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:
“In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman’s mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.” The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:
“(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.”
Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the FAO 185/01 Page 11 of 19 authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:- “(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”
Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred FAO 185/01 Page 12 of 19 bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.
10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and FAO 185/01 Page 13 of 19 according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the FAO 185/01 Page 14 of 19 whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.
“55.From the evidence on record, it is gathered that on the wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be performed but the respondent wife refused to participate in the same. This version of PW 2 has been fully corroborated by his father PW 3. The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1 in her cross-examination has stated that their marriage had been consummated on that very night and her husband had come to her and she did not have to persuade the petitioner. On the other hand the petitioner has stated that their marriage could not be consummated on their wedding night and he had sex with his wife for the first time only on 25.2.91. RW1 in her cross-examination has stated that the atmosphere that night was very tense and both the parties could not sleep and they did not speak to each other and her husband had grievance about the insufficient dowry which had been given in the marriage . RW 1 has also admitted that on 18.2.91, she did not take proper food as she was not feeling well. This version of RW1 that she did not take food that night is corroborated by the version of PW1 who has stated that on the wedding night at the time when the dinner was served the attitude of the respondent was indifferent and she did not take any dinner but she took only a little sweet.” FAO 185/01 Page 15 of 19
11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent FAO 185/01 Page 16 of 19 especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the FAO 185/01 Page 17 of 19 best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent.
12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual FAO 185/01 Page 18 of 19 relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.
13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.
KAILASH GAMBHIR, J
21.03. 2012
FAO 185/01 Page 19 of 19
Bail Faq
Can my bail cancelled by court?
Considerations for cancelling the bail are totally different from those which are considered for granting bail….
Bail can be cancelled only under two conditions
1) if it was obtained by supression of facts OR
2) The accused violates any conditions which were imposed while granting the bail…
This judgement you must read. It will solve most of your doubts regarding “Grounds on which bail can be cancelled” https://498amisuse.wordpress.com/2012/02/15/supreme-court-grounds-on-which-bail-can-be-cancelled/
You may also go through “HC: AB can be cancelled by same session judge if it was obtained by supression of facts” https://498amisuse.wordpress.com/2011/05/02/hc-ab-can-be-cancelled-by-same-session-judge-if-it-was-obtained-by-supression-of-facts/
And regarding general knowledge about bail read all judgements at https://498amisuse.wordpress.com/category/resource/bail-resource/judgement-bail/
- Where should I apply for AB? Should I apply to High Court only or any other court can give AB?
- Anticipatory bail has to be applied in the Sessions court or District Court. If your application is rejected in this court then you need to appeal against that order in High Court and then in Supreme Court. Magistrate courts or trial courts or any court below the rank of Sessions or District courts cannot give Anticipatory bail.
- What is AB
- Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
- Here is an explanation of Anticipatory bail given by the Supreme Court
- (http://ipc498a.files.wordpress.com/2007/09/sc-ab-gurbaksh-singh-sibbia-1980.pdf). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.
Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.
- (http://ipc498a.files.wordpress.com/2007/09/sc-ab-gurbaksh-singh-sibbia-1980.pdf). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
- WHEN CAN A PERSON APPLY
- When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him,
He has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him,
- CONDITIONS THAT MAY BE IMPOSED BY THE COURT
- The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
(a) a condition that the person shall make himself available for interrogation by the police officer as and when required;
(b) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(c) a condition that the person shall not leave India without the previous permission of the court.
- The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
- ARREST
- If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.
- ANTCIPATORY BAIL NOT A BLANKET ORDER
- The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
- CANCELLATION
- An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
- Factors, which are relevant for considering the application for grant of anticipatory bail, are :
- The nature and gravity or seriousness of accusation as apprehended by the applicant;
The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested;
The possibility of the appellant, if granted anticipatory bail, fleeing from justice.
- The nature and gravity or seriousness of accusation as apprehended by the applicant;
- ANTICIPATORY BAIL NOT AVAILABLE IN UTTAR PRADESH
Woman arrested for lodging false complaint
Woman arrested for lodging false complaint
Bangalore, March 7 2012, DHNS:
The KG Nagar police arrested a woman for lodging a false complaint that she was robbed of her gold chain by unidentified persons.
On Wednesday morning, Bhagyalakshmi had gone to her relative Shanthakumar’s house in KG Nagar, and left her gold chain in the bathroom. She went out thereafter.
Once she reached Allama Prabhu Road, she reportedly called Shanthakumar and told him that two men accosted her and robbed her of the gold chain.
Shanthakumar rushed to the spot, and took her to the police station to lodge a complaint.
When the police took her to the spot where she was supposedly robbed, her replies raised suspicions.
Meanwhile, a domestic help at Shanthakumar’s house found the gold chain in the bathroom and alerted him. The police then confronted Bhagyalakshmi, who admitted that her complaint was false. She was subsequently arrested. Further investigations are on.
http://www.deccanherald.com/content/232849/woman-arrested-lodging-false-complaint.html
HC: Maintenance under HMA25 is valid even if divorce is rejected
Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
in
S.B.Civil Misc.Appeal No.1049 of 2010
Vishram Singh
vs.
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
HC: Maintenance under HMA25 is valid even if divorce is rejected
Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
in
S.B.Civil Misc.Appeal No.1049 of 2010
Vishram Singh
vs.
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
HC: Dying declaration itself does not spell out offence punishable under Section 306 as also under Section 498A IPC: Acquitted
Bombay High Court
Criminal Appeal No. 275 Of 1996 vs Unknown on 17 February, 2012
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 275 of 1996
Applicant : State of Maharashtra
versus
Respondent : Vasant Kumar s/o Dindayal Chudiwale, aged about 35 years, resident of Hospital
Road, Wardha
Mr S. S. Doifode. Additional Public Prosecutor for appellant-State Mr Ashish Chawre, Advocate for respondent
———
Criminal Revision Application No. 114 of 1996
Applicant : Madanchand s/o Saheblal Kashyap, aged about 70 years, resident of Central
Avenue, Bhawsar Chowk, Nagpur
versus
Respondents : 1) The State of Maharashtra 2) Vasant Kumar s/o Dindayal Chudiwale,
aged about 35 years, resident of Hospital
Road, Wardha
2
Mr Sharma, Adv h/f Mr R. M. Daga, Advocate for applicant Mr S. Doifode, Additional Public Prosecutor for State Mr Ashish Chawre, Advocate for respondent no. 2
Coram : A. P. Bhangale, J
Dated : 17th February 2012
Oral Judgment
1. By Criminal Appeal No. 275 of 1996 and Criminal Revision Application No. 114 of 1996, acquittal of original accused Vasant Kumar Chudiwale is under challenge.
2. Accused Vasant Kumar had married with Maya on 27.6.1985 at Wardha. After marriage the couple resided at Wardha and Amravati where accused was working. Out of wedlock, accused and Maya were begotten with girl child. After two years of marriage, it is alleged that accused started ill-treating Maya on the ground that she had illicit relations with Rakeshkumar (PW 8), husband of her sister Meena. He insisted upon Meena to admit to the position and he will forgive her. Maya declined to admit such position which was non- existent. They came to Nagpur some time on 19.7.1987 and stayed at the house of Madanchand, uncle of deceased Maya. Looking at the tense situation, Madanchand called father and brother of Maya and a meeting took place in which it was decided to obtain clarification from Rakeshkumar. Therefore, brother of Maya by name Ramkumar went to Raipur, however, in the mean-while on 22.7.1987 Maya committed suicide by pouring kerosene on her person and 3
setting herself on fire in her uncle Madanchand’s house. Special Executive Magistrate recorded the dying declaration of Maya at the Government Hospital. It is alleged that Maya blamed accused for her suicide. Maya died on 25.7.1987. Brother of Maya lodged report at Police Station, Tahsil, Nagpur. After investigation, accused was charge-sheeted for the offences punishable under Sections 498A and 306 of the Indian Penal Code.
3. Learned Assistant Sessions Judge, Nagpur convicted the accused on both the counts and sentenced him to suffer rigorous imprisonment for one year each for the offences punishable under Sections 498A and 306 of the Indian Penal Code and directed him to pay fine of Rs. 500/- on each count.
4. Accused preferred appeal against the order of conviction and sentence and learned Extra Joint District Judge and Additional Sessions Judge, Nagpur while allowing the appeal, set aside the same. Aggrieved by the order of acquittal, the State has preferred appeal while uncle of deceased Maya by name Madanchand has preferred revision.
5. Learned Additional Public Prosecutor appearing for State and learned counsel appearing for revision-applicant tried to assail the judgment of acquittal by pointing dying declaration and they contend that Maya clearly and in specific words stated that her husband (accused) always used to say that she had illicit relations with her Jijaji (P. W. 8 Rakeshkumar) which she could not tolerate and that was the reason why she poured kerosene on her person and set herself on fire. Learned counsel further contend that Maya also blamed Rakeshkumar because of whose version, her husband suspected her chastity.
6. It is not in dispute that main plank of the prosecution case is the 4
said Dying Declaration (exhibit 35). Said Dying Declaration was recorded by the Special executive Magistrate and it bears thumb impression of Maya. It was recorded in Hindi language. She disclosed her name as Maya Chudiwale d/o Kewalchand Kashyap and Vasant Chudiwale as husband’s name and stated that she was residing at Wardha with joint family consisting of mother-in-law, brother- in-law, wife of brother-in-law. When questioned about how she was burnt, she disclosed thus :
Then she was asked about the cause, she stated thus : Reading the above dying declaration as it is, would at the most indicate intolerant nature of deceased as a result of which she decided to end her life by pouring kerosene upon her own body and igniting it. The reason stated was that accused was suspecting because of some statements made by Rakeshkumar (who is not acused) that he had illicit relation with Maya. In order to constitute 5
the offence under Section 306 of the Indian Penal Code, it is necessary that there must be some evidence that the accused has abetted the deceased to commit suicide. It is necessary that accused must have instigated the person who has committed suicide or intentionally aided by any act or illegal omission causing the doing of that thing. The Apex Court in Ramesh Kumar vs. State of Chhatisgarh reported in (2001) 9 SCC 618 has held as under : “Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the 6
offence of suicide should be found guilty.”
7. Thus, there should be positive act on the part of the accused necessary to spell mens rea. It is settled legal position that “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as “to go and die”, cannot be taken to be uttered with requisite mens rea. Section 306 of the Indian Penal Code requires abetment as an essential ingredient which is defined under Section 107 of the Penal Code which lays down that “a person abets the doing of a thing who, firstly instigates any person to do that thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing, is said to have committed the abetment.
8. Bearing the above principles in mind, in the present case, the dying declaration in question does not spell out offence punishable under Section 306 as also under Section 498A of the Indian Penal Code. Considering the evidence led before the trial Court, in my opinion, the lower Appellate Court was right in reaching to a conclusion of acquittal and to set aside the judgment and order passed by the trial Court for want of essential ingredients to make out offences punishable under Section 306 and 498A of the Indian Penal Code. I do not find any valid ground or reason to interfere with the impugned judgment and order. 7
9. In the result, both the criminal appeal as well as criminal revision application fail and are dismissed.
A. P. BHANGALE, J
Court orders man to apologize to estranged wife on Facebook
A court in the US has ordered a man to post an apology to his estranged wife on his Facebook page for 30 days to avoid a jail sentence for blasting her on the social networking site, a case that stirred controversy over freedom of speech rights.
Mark Byron, a Cincinnati-based photographer, was so bothered by his pending divorce and child visitation issues that he wrote a nasty note to “vent” out his frustration.
“I just went on Facebook to vent,” Byron said. “I kind of likened it to having a drink with a friend at a bar and telling them about things.”
The note implied that his wife was out to ruin his life. “If you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely – all you need to do is say you’re scared of your husband or domestic partner and they’ll take him away!” the note on his Facebook wall said.
Despite Byron blocking his wife from seeing his Facebook wall, she learnt of the post which touched off a battle that resulted in a Hamilton County judge ordering Byron jailed for his Facebook rant.
To avoid 60-days in jail, Byron was asked to post on his page an apology to his wife and all of his Facebook friends, something free-speech experts found troubling.
“The idea that a court can say, ‘I order you not to post something or to post something’ seems to me to be a 1st Amendment issue,” free-speech expert Jack Greiner said.
Magistrate Paul Meyers said Byron could either go to prison and pay a USD 500 fine or post an apology and pay child support.
The apology was written by the judge and Byron has been posting all the news stories about his case on his Facebook page.
http://www.indianexpress.com/news/court-orders-man-to-apologize-to-estranged-wife-on-facebook/916627/0
NRI woman dupes Punjabi husband, seeks divorce
MOGA: Close on the heels of a Canadian NRI conspiring to eliminate his wife by hiring contract killers, a case of an Australian NRI woman duping her Punjabi husband has come to light.
Bagipura village resident Gurwinder Singh had married Amandeep Kaur, who has been living in Australia, in 2009 and sent her Rs 16.70 lakh for further studies, said family members of Gurwinder.
While leaving for Australia after solemnizing the marriage, Amandeep had promised to help Gurwinder reach Australia after getting visa for him, which she never did. Instead, she sent divorce papers to Gurwinder some days ago.
Police have booked Amandeep Kaur, her father Ajmer Singh, mother Jasbir Kaur and brother Amarinder Singh for fraud and cheating. Amarinder was arrested on Wednesday.
It was on Tuesday when Moga’s Nihal Singh Wala police booked Gurjit Singh of Canada for allegedly hiring contract killers to eliminate his Punjabi wife Harpreet Kaur. The victim had told the police that she came to know of her husband marrying again in Canada, and had been pressurizing her for divorce.
कोर्ट ने कहा, बनावटी थी निशा की दहेज वाली कहानी
नोएडा।। याद है आपको नोएडा की निशा शर्मा? 2003 में एक दिन अचानक मीडिया ने सेक्टर-56 में रहने वाली निशा को सुर्खियों में ला दिया, क्योंकि उसने दहेज मांगे जाने पर भरे मंडप में शादी से इनकार कर दिया था और बरात लौट गई। लेकिन कोर्ट ने बुधवार को नौ साल पहले निशा की ओर से दर्ज कराए गए दहेज के आरोप को बनावटी कहानी ठहरा दिया।
निशा से शादी करने पहुंचे मुनीष दलाल ने इस केस में नौ साल तक कोर्ट के चक्कर काटे। बुधवार को दिल्ली के विकासपुरी स्थित अपने घर में मुनीष ने कहा कि हमें इंसाफ तो मिला, लेकिन जिंदगी बर्बाद होने के बाद। हम इस मामले को ऐसे ही नहीं छोड़ेंगे। झूठे केस में फंसाने पर निशा और उसके पिता डी.डी. शर्मा के खिलाफ हर्जाने का केस करेंगे।
कोर्ट ने बुधवार को निशा शर्मा के दहेज केस को न सिर्फ बनावटी कहानी माना, बल्कि मामले में एकतरफा रिपोर्टिंग करके चारों आरोपियों की मानहानि करने के आरोप में एक बड़े अखबार के रिपोर्टर के खिलाफ मुकदमा शुरू करने का आदेश भी दिया। इन चारों आरोपियों मुनीष, उनकी मां विद्या दलाल, बुआ सावित्री देवी और निशा के कथित प्रेमी नवनीत को बाइज्जत बरी कर दिया गया। कोर्ट ने कहा कि जब निशा शर्मा की मुनीष दलाल के साथ शादी ही नहीं हुई, तो दहेज ऐक्ट कैसे लागू हो सकता है।
सीजेएम ने निशा की कहानी पर कई सवाल खड़े किए। फैसला सुनने के लिए निशा की ओर से वकील समेत कोई भी व्यक्ति कोर्ट में नहीं था। इससे पहेल भी इस केस की सुनवाइयों में गवाही देने निशा शर्मा कभी नहीं पहुंची और न ही उनके पिता डीडी शर्मा शादी की तैयारियों की सीडी और जरूरी सबूत पेश कर सके।
http://navbharattimes.indiatimes.com/articleshow/12093143.cms
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