Kerala state police circular on 498A misuse…

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

Categories: IPC 498A Misuse Judgements

Reportable judgement from SC: SC set aside proceedings initated under 498A and 304B

February 12, 2013 Fighting Legal Terror Leave a comment

Supreme Court of India

Rajiv Thapar & Ors. vs Madan Lal Kapoor on 23 January, 2013

Author: J S Khehar

Bench: D.K. Jain, Jagdish Singh Khehar

, , , ,

“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.

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.

Categories: 498A Judgements, Judgement, Judgements

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.

January 15, 2013 Fighting Legal Terror Leave a comment

Delhi High Court

Shiv Kumar vs State on 10 April, 2012

* 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

Categories: 498A Judgements

SC: Allegations against family members in 498A generall, reckless and vague hence FIR Quashed

December 26, 2012 Fighting Legal Terror Leave a comment

Supreme Court of India

Chandralekha vs State Of Rajasthan & Anr on 14 December, 2012

Author: ……………………………………………..J.

Bench: Aftab Alam, Ranjana Prakash Desai

, , , ,

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

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.

———————–

Categories: 498A Judgements, Judgement

Government cannot cancel appointment of candidate on the ground that 498A or a criminal case is pending

September 13, 2012 Fighting Legal Terror 10 comments

Central Administrative Tribunal – Lucknow

Vineet Kumar Aged About 32 Years … vs Union Of India Through Secretary, … on 12 September, 2012

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/-

Categories: 498A Judgements

My father is very old. Can I remove his name from case?

August 30, 2012 Fighting Legal Terror 1 comment

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.

https://498amisuse.wordpress.com/2010/09/22/landmark-judgement-sc-scope-of-discharge-under-crpc-2227/

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.

Categories: IPC 498A FAQ

Punjab & Haryana HC: Wife has file false 498A against sister-in-law….Quashed

August 6, 2012 Fighting Legal Terror Leave a comment

Punjab-Haryana High Court

Channo Devi @ Charno vs State Of Haryana And Another on 5 July, 2012

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

Categories: IPC 498A Misuse Judgements

Women are filing false 498A on Saturday to keep husband in custody on Sunday and deliberately avoiding child access to father – Calcutta HC

August 6, 2012 Fighting Legal Terror 3 comments

Smt. Banani Acharya (Sarkar) vs Sri Bikash Sarkar on 19 July, 2012

Author: Soumen Sen

7.2012

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;

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.

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.

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:-

“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.)

Categories: IPC 498A Misuse Judgements

HC: Wife and husband misuse 498A to grab parrents’s property- Quashed

April 6, 2012 Fighting Legal Terror 1 comment

Punjab-Haryana High Court

Smt.Sunita Goyal & Ors. vs State Of Punjab & Anr. on 21 February, 2012

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

Whether to be referred to reporter ? Yes/No

Categories: IPC 498A Misuse Judgements

HC: Dying declaration itself does not spell out offence punishable under Section 306 as also under Section 498A IPC: Acquitted

March 5, 2012 Fighting Legal Terror Leave a comment

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

Mr Sharma, Adv h/f Mr R. M. Daga, Advocate for applicant Mr S. Doifode, Additional Public Prosecutor for State Mr Ashish Chawre, Advocate for respondent no. 2

Coram : A. P. Bhangale, J

Dated : 17th February 2012

Oral Judgment

1. By Criminal Appeal No. 275 of 1996 and Criminal Revision Application No. 114 of 1996, acquittal of original accused Vasant Kumar Chudiwale is under challenge.

2. Accused Vasant Kumar had married with Maya on 27.6.1985 at Wardha. After marriage the couple resided at Wardha and Amravati where accused was working. Out of wedlock, accused and Maya were begotten with girl child. After two years of marriage, it is alleged that accused started ill-treating Maya on the ground that she had illicit relations with Rakeshkumar (PW 8), husband of her sister Meena. He insisted upon Meena to admit to the position and he will forgive her. Maya declined to admit such position which was non- existent. They came to Nagpur some time on 19.7.1987 and stayed at the house of Madanchand, uncle of deceased Maya. Looking at the tense situation, Madanchand called father and brother of Maya and a meeting took place in which it was decided to obtain clarification from Rakeshkumar. Therefore, brother of Maya by name Ramkumar went to Raipur, however, in the mean-while on 22.7.1987 Maya committed suicide by pouring kerosene on her person and 3

setting herself on fire in her uncle Madanchand’s house. Special Executive Magistrate recorded the dying declaration of Maya at the Government Hospital. It is alleged that Maya blamed accused for her suicide. Maya died on 25.7.1987. Brother of Maya lodged report at Police Station, Tahsil, Nagpur. After investigation, accused was charge-sheeted for the offences punishable under Sections 498A and 306 of the Indian Penal Code.

3. Learned Assistant Sessions Judge, Nagpur convicted the accused on both the counts and sentenced him to suffer rigorous imprisonment for one year each for the offences punishable under Sections 498A and 306 of the Indian Penal Code and directed him to pay fine of Rs. 500/- on each count.

4. Accused preferred appeal against the order of conviction and sentence and learned Extra Joint District Judge and Additional Sessions Judge, Nagpur while allowing the appeal, set aside the same. Aggrieved by the order of acquittal, the State has preferred appeal while uncle of deceased Maya by name Madanchand has preferred revision.

5. Learned Additional Public Prosecutor appearing for State and learned counsel appearing for revision-applicant tried to assail the judgment of acquittal by pointing dying declaration and they contend that Maya clearly and in specific words stated that her husband (accused) always used to say that she had illicit relations with her Jijaji (P. W. 8 Rakeshkumar) which she could not tolerate and that was the reason why she poured kerosene on her person and set herself on fire. Learned counsel further contend that Maya also blamed Rakeshkumar because of whose version, her husband suspected her chastity.

6. It is not in dispute that main plank of the prosecution case is the 4

said Dying Declaration (exhibit 35). Said Dying Declaration was recorded by the Special executive Magistrate and it bears thumb impression of Maya. It was recorded in Hindi language. She disclosed her name as Maya Chudiwale d/o Kewalchand Kashyap and Vasant Chudiwale as husband’s name and stated that she was residing at Wardha with joint family consisting of mother-in-law, brother- in-law, wife of brother-in-law. When questioned about how she was burnt, she disclosed thus :

Then she was asked about the cause, she stated thus : Reading the above dying declaration as it is, would at the most indicate intolerant nature of deceased as a result of which she decided to end her life by pouring kerosene upon her own body and igniting it. The reason stated was that accused was suspecting because of some statements made by Rakeshkumar (who is not acused) that he had illicit relation with Maya. In order to constitute 5

the offence under Section 306 of the Indian Penal Code, it is necessary that there must be some evidence that the accused has abetted the deceased to commit suicide. It is necessary that accused must have instigated the person who has committed suicide or intentionally aided by any act or illegal omission causing the doing of that thing. The Apex Court in Ramesh Kumar vs. State of Chhatisgarh reported in (2001) 9 SCC 618 has held as under : “Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the 6

offence of suicide should be found guilty.”

7. Thus, there should be positive act on the part of the accused necessary to spell mens rea. It is settled legal position that “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as “to go and die”, cannot be taken to be uttered with requisite mens rea. Section 306 of the Indian Penal Code requires abetment as an essential ingredient which is defined under Section 107 of the Penal Code which lays down that “a person abets the doing of a thing who, firstly instigates any person to do that thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing, is said to have committed the abetment.

8. Bearing the above principles in mind, in the present case, the dying declaration in question does not spell out offence punishable under Section 306 as also under Section 498A of the Indian Penal Code. Considering the evidence led before the trial Court, in my opinion, the lower Appellate Court was right in reaching to a conclusion of acquittal and to set aside the judgment and order passed by the trial Court for want of essential ingredients to make out offences punishable under Section 306 and 498A of the Indian Penal Code. I do not find any valid ground or reason to interfere with the impugned judgment and order. 7

9. In the result, both the criminal appeal as well as criminal revision application fail and are dismissed.

A. P. BHANGALE, J

joshi
http://indiankanoon.org/doc/103794258/

Categories: 498A Judgements

Child Access & Custody Guidelines- Approved by Bombay High Court, Courtesy “Child Rights Foundation”

February 24, 2012 Fighting Legal Terror Leave a comment

Child Access & Custody Guidelines- Approved by Bombay High Court

:
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.
Subject : Child Access & Custody
Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon’ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.
I convey my gratitude for your kind gesture in preparing a detail
guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.
With regards,
Yours faithfully,
Registrar (Inspection – II)

Categories: Advisary,Circular,Directions from Court

Court cannot summon accused under CrPC 319 after Trial has come to an end

February 12, 2012 Fighting Legal Terror Leave a comment

Delhi High Court
Rakesh Kanojia vs State Govt Of Nct Of Delhi & Anr on 7 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.REV.P. 782/2010 & Crl. M.A. No. 18672/2010 (Stay)

% Reserved on: 27th January, 2012 Decided on: 7th February, 2012

RAKESH KANOJIA ….. Petitioner Through: Mr. Anurag Ahluwalia and Mr. Rahul

Dhankar, Advocates.

versus

STATE GOVT OF NCT OF DELHI & ANR ….. Respondents Through: Mr. Manoj Ohri, APP for the State

with SI Ranjeev, PS Dabri.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. The Petitioner in the present petition is aggrieved by the order dated

20th November, 2010 passed by the learned Additional Sessions Judge in

Sessions Case No. 2/2009 summoning the Petitioner as an accused in the

case under Section 319 Cr.P.C.

2. The contention of the learned counsel for the Petitioner is that an order

under Section 319 Cr.P.C. can be passed only during the pendency of the

trial. Once the judgment is dictated/pronounced the trial comes to an end

and the Court has no jurisdiction to summon an additional accused under

Section 319 Cr.P.C. It is contended that the impugned order dated 20th

November, 2010 summoning the Petitioner was passed after the learned

Crl. Rev. P. 782 of 2010 Page 1 of 10 Additional Sessions Judge dictated and pronounced the judgment in the

abovementioned Sessions Case convicting the other family members of the

Petitioner, that is, Munni Devi, Archana and Rajesh for offences under

Sections 307/498A/34 IPC. In this regard reference is made to Section 353

Cr.P.C. which states that the judgment in every trial shall be pronounced by

the Presiding Officer immediately after the termination of the trial or at some

subsequent time of which notice shall be given to the parties or their pleader.

Reliance in this regard is placed on Michael Machado and another vs.

Central Bureau of Investigation and another, AIR 2000 SC 1127; Prasanna

Das and another vs. State of Orissa, 2004 (13) SCC 30; Gopal Krishna vs.

State of Bihar, 1987 CRI. L.J. 1487; and Samartha Ram vs. State of

Rajasthan and others, 2002 (2) Crimes 536.

3. It is further stated that the statement of the Complainant completely

exonerates the Petitioner who is the husband and hence the Petitioner could

not have been summoned even on merits. The Complainant had filed

another FIR under Sections 498A/406 IPC at PS Patel Nagar, Dehradun. The

proceedings therein have been stayed by the Hon’ble High Court of

Uttaranchal at Nainital.

Crl. Rev. P. 782 of 2010 Page 2 of 10

4. Learned APP for the State on the other hand contends that the

application for summoning the Petitioner under Section 319 Cr.P.C. was

filed by the public prosecutor on 21st October, 2010 when the trial was going

on. However, the learned Magistrate directed that this application will be

decided along with the main case. The learned Trial Court thus while

pronouncing the judgment of conviction of the other family members of the

Petitioner on the same day passed the order summoning the Petitioner under

Section 319 Cr.P.C. Since the two orders were passed simultaneously it

cannot be said that the impugned order passed after the trial was concluded.

It is thus contended that there is no merit in the petition and the petition be

dismissed.

5. I have heard learned counsel for the parties.

6. The impugned order dated 20th November, 2010 reads as under: –

“Vide separate judgment dictated and announced in Open Court, all the four accused Bishan Lal, Munni Devi, Archna and Rajesh are convicted U/s 498-A read with Section 34 IPC. Besides that, accused Munni Devi, Archna and Rajesh are also convicted u/s 307/34 IPC.

Accused Archna and Rajesh be taken into custody. Since accused Munni Devi is also liable to the taken in to custody, but keeping in view her age and ill health, she is not taken into custody at present.

Crl. Rev. P. 782 of 2010 Page 3 of 10 I have also considered the application filed by Ld. APP on 21.10.10 U/s 319 Cr.P.C. with the prayer for summoning Rakesh, husband of Complainant Renu as accused in this case. While dictating the judgment against the aforesaid accused, I have found that there is sufficient evidence again the husband of the Complainant Sh. Rakesh also. Therefore, summons be issued to Sh. Rakesh, son of Sh. Bishan Lal, R/o 1134, Gali No. 5/6, Main Sagarpur, New Delhi, for the next date of hearing.”

7. Thus it is evident that this order on the application was passed after

the pronouncement of judgment in Sessions Case No. 2/2009 convicting

Munni Devi, Archna and Rajesh, though the application had been filed on

21st October, 2010 by the Public Prosecutor when the trial was still pending.

In Michael Machado (Supra) their Lordships held that:

“10. Powers under Section 319 of the Code can be invoked in appropriate situations. This section is extracted below:

“319. Power to proceed against other persons appearing to be guilty of offence. – (1) Where, in the course of any inquiry Into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

Crl. Rev. P. 782 of 2010 Page 4 of 10 (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Sub- section (1) then –

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

11. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which

Crl. Rev. P. 782 of 2010 Page 5 of 10 the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty in the Court to proceed against other persons.

13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1: (AIR 1983 SC 67: 1983 Cri L J 159) this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned: “But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.”

14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where It had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action.”

Crl. Rev. P. 782 of 2010 Page 6 of 10

8. Further Section 353 Cr.P.C. states that after the arguments are heard

the trial comes to an end and pronouncement of judgment is a post

culmination trial procedure. Though the application was filed prior to the

conclusion of the trial, there is no doubt that the impugned order was passed

after the pronouncement of the judgment of conviction of the other family

members of the Petitioner though on the same day. In any case the judgment

having been pronounced, the trial had come to an end and the trial Court had

become functus officio. The trial Court could not have passed order on the

application under Section 319 Cr.P.C. after pronouncing the judgment.

9. In the present case the Complainant in her statement to the SDM

clearly exonerated the Petitioner. To reproduce the words of the

Complainant it was stated “in all this there was no hand of my husband

Rakesh, he used to remain quite. My husband Rakesh never troubled me for

anything”. Thus the SDM directed registration of FIR only against Munni

Devi, Rajesh and Archna, that is, the mother, brother and sister of the

Petitioner. When the Complainant appeared in the witness box on 28th

August, 2009 she implicated the Petitioner also stating that on the first day

her husband, sister-in-law, brothers-in-law, father-in-law and mother-in-law

commented that car and cash of Rs. 1 lakh had not been given though all the

Crl. Rev. P. 782 of 2010 Page 7 of 10 articles were given as per their choice. The further allegations in the

statement against the Petitioner are that in the second week of December her

husband had gone to Dehradun when he told her father that they have to sell

the old house and purchase a new one and asked him to give Rs.5 lakhs for

the purchase of new house, which the father of the Complainant refused. It

is further stated that when they reached Delhi, her husband, father-in- law,

mother-in-law, brothers-in-law and unmarried sister-in-law stated that the

Complainant had not brought car and cash. The Complainant further stated

that her husband, that is, the Petitioner did not utter any word and kept mum

though he had told her father that she would not be harassed. On 13th March,

2003 the Complainant’s father-in-law, mother-in-law, husband, brothers-in-

law and sister-in-law created an atmosphere of lawlessness and her father-in-

law after directing her to get the demand fulfilled from her father left the

house to attend his duties. Thereafter her other in-laws excluding her father-

in-law in the presence of her husband gave beatings to her and taunted her.

At about 9.00-9.30 P.M. on 13th March her mother-in-law, sister-in-law

caught hold of her hand forcibly and Rajesh, the brother-in-law forcibly

administered her the bottle and forced her to drink harpic. Her husband, the

Petitioner herein instead of saving her started closing the doors and

Crl. Rev. P. 782 of 2010 Page 8 of 10 windows. She fell unconscious and regained consciousness in the hospital

where her husband and brother-in-law Rajesh were present who extended

threats that on arrival of SDM she should not name them or otherwise they

will kill her.

10. A perusal of the allegations before the Court also shows that the

grievance of the Complainant was that the Petitioner was a silent spectator

and did nothing. This is what she stated to the SDM in her first statement.

There is no overt act of the Petitioner in causing injury to the Complainant.

Further the demand of a loan of Rs. 5 lakhs for purchasing the new house, as

held in catena of judgments, is not demand of dowry. I find that the

evidence on record against the Petitioner in view of improvements would not

entail conviction of the Petitioner. A perusal of the impugned order dated

20th November, 2010 does not even spell out the offence for which the

Petitioner has been summoned.

11. In view of the law laid down by the Hon’ble Supreme Court, since the

proceedings before the learned Trial Court had come to an end and even on

the merits no case for summoning is made out, I find merit in the contention

of the learned counsel for the Petitioner.

Crl. Rev. P. 782 of 2010 Page 9 of 10 12 In view of the aforesaid discussion, the impugned order dated 20 th

November, 2010 summoning the Petitioner is hereby quashed. The petition

and the application are disposed of accordingly.

(MUKTA GUPTA)

JUDGE

FEBRUARY 07, 2012

http://indiankanoon.org/doc/49621430/

Categories: 498A Judgements

Hello Supreme Court? 16 Lakhs for withdrawing 498A!! What are the charges to get relief in Murder case!!

December 23, 2011 Fighting Legal Terror 1 comment

Supreme Court of India

Devendra Kumar Sharma vs Bhavna Sharma on 10 October, 2011

Bench: Dalveer Bhandari, Deepak Verma

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8535 OF 2011

(Arising out of SLP(C) No.18439/2007) DEVENDRA KUMAR SHARMA Appellant(s) :VERSUS:

BHAVNA SHARMA Respondent(s) O R D E R

1. Leave granted.

2. We have heard the learned counsel for the parties.

3. During the pendency of this appeal, the parties have amicably settled the matter. Mr. Sushil Kumar Jain, learned counsel for the appellant has handed over four bank drafts amounting to Rs.16 lakhs, to the learned counsel for the respondent. This amount is paid in full and final settlement of the entire claim of the respondent Bhavna Sharma and her children.

4. Learned counsel for the respondent submits that he has clear instructions from the respondent Bhavna Sharma that in case Rs. 16 lakhs is paid to her, she would not pursue the criminal case filed by her against the appellant.

-2-

5. Consequently, we quash the following criminal cases filed by respondent Bhavna Sharma: (i) Case No.656/07, Protection under Domestic Violence at Court No.11 A.C.G.M., Jaipur; and (ii) Case No.353/Date 28.5.09 in Assistant Collector & Magistrate at Collectorate, Jaipur.

6. Learned counsel for the parties pray that in view of the aforesaid settlement, the parties may be granted decree of divorce by mutual consent.

7. In the peculiar facts and circumstances of this case and in the interest of justice, we deem it appropriate to grant a decree of divorce by mutual consent of the parties. All the disputes between the parties stand resolved and no action would be taken by the parties against each other.

8. This appeal is accordingly disposed of. …………………J

(DALVEER BHANDARI)

…………………J

(DEEPAK VERMA)

New Delhi;

October 10, 2011.

Categories: 498A Judgements

SC acknowledges that criticism of IPC 497(Adultry) is fair…Quashes case against all accused

December 8, 2011 Fighting Legal Terror Leave a comment

W.Kalyani vs State Tr.Insp.Of Police & Anr. on 1 December, 2011

Author: A Alam

Bench: Aftab Alam, R.M. Lodha

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2232 OF 2011

(ARISING OUT OF SLP (CRIMINAL) NO.648 OF 2010) W.KALYANI ….APPELLANT VERSUS

STATE TR.INSPECTOR OF POLICE & ANR. …RESPONDENTS WITH

SPECIAL LEAVE PETITION (CRIMINAL) NO.3856 OF 2010 AND

SPECIAL LEAVE PETITION (CRIMINAL) NO.2450 OF 2010 J U D G M E N T

Aftab Alam, J.

1. Delay condoned in special leave petition (criminal) No.3856 of 2010.

2. The Andhra Pradesh High Court by its judgment and order dated November 2, 2009 quashed the proceedings arising from a criminal complaint in respect of accused nos. 5, 6 and 9 but declined to interfere in favour of 2

accused No.8 in the complaint. These three Special Leave Petitions arise from the same judgment. SLP (Crl.) Nos.2450/2010 and 3856/2010 are filed by the complainant who is aggrieved by the order insofar as it quashed the proceedings against accused Nos. 5, 6 and 9 and SLP (Crl.) No.648 of 2010 is filed by accused no. 8 whose petition for quashing was dismissed by the High Court.

3. On hearing counsel for the parties and on going through the materials on record, we find no merit in SLP (Crl.) Nos.2450 of 2010 and 3856 of 2010. These two special leave petitions are dismissed.

4. Leave granted in SLP (Crl.) No.648 of 2010 filed by accused No.8 in the complaint.

5. Gummadi Sailaja filed a complaint against nine accused under Sections 498-A, 386, 341 read with Section 34 of the Indian Penal Code. Accused no. 1 is her husband and accused no.2, her mother-in-law. Accused No.3 is the younger brother of her husband and 3

accused No.9 is his wife. Accused No.4 is the maternal uncle of the husband of the complainant. Accused No.6 and accused No.5 are husband and wife and they along with accused No.7 are said to be close friends of the complainant’s husband who actively participated in her marriage with her husband. Accused No.8, the appellant, is described in the complainant as the girl friend of the complainant’s husband with whom he had illicit sexual relations.

6. It is stated in the complaint that the complainant came in contact with accused No.1 through a matrimonial site on the internet. At that time accused No.1 was a software engineer working in the US and she had herself done M. Phil. They agreed to marry and accused No.1 promised that he would not ask for any dowry. However, when his mother, accused No.2, came to know of the proposal she demanded a sum of Rs.10,00,000/- (Rupees Ten Lacs only)and 50 sovereigns of jewellery as dowry. The complainant and her people did not wish to miss her match with accused No.1 and she also believed that 4

accused No.1 was not aware of the demand made by his mother. She, therefore, agreed to meet the demand of accused No.2 and their marriage took place in the night of February 3-4, 2007. After marriage they stayed together in his house at Visakhapatnam. After a few days she was taken to Tirupati for `darasanam’ of Lord Venkateswara. Accused No.8 also accompanied them and it is further alleged that her husband and accused No.8 moved together very freely as if they were spouses. The specific allegations against accused No.8 in the words of the complainant are as follows:

"Along with them one Kalyani also followed to Tirupathi with whom the A1 moved very freely as if she were his wife. Kalyani said to be the girl friend of A1, moved with A1 very freely as if they were wife and husband and used to sleep in one cot keeping the complainant outside the room."

The complaint goes on that her husband, accused No.1, took her to Florida, USA where she was subjected to great harassment and cruelty. In January 2008 he lost his job in the US and came back to Hyderabad. Here again there is a long narrative of the cruelty meted 5

out to the complainant in connection with the demand for further dowry and to get her consent for divorce under duress and coercion and physical assault. What is however, significant to note is that in the latter part of the complaint there is no mention of accused No.8 and she seems to figure only during the visit to Tirupathi.

7. The police after investigation submitted charge- sheet against all the accused. In the police charge sheet the different accused are charged differently. So far as the appellant is concerned, she is charged under Sections 341 and 497 of the Penal Code. Section 497 deals with the offence of adultery and provides as follows:

"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."

The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.

8. As regards Section 341 of the Penal Code, on the basis of the allegation made in the complaint, we fail to see how the charge of wrongful restraint can be made out against the appellant.

9. All the allegations in the complaint taken on their face value do not make out any case against the 7

accused. We are, therefore, satisfied that the proceedings against the appellant are equally fit to be quashed and the High Court was in error in not allowing the quashing application filed by the appellant. We, accordingly, set aside the order of the High Court and quash the proceedings of CC No.482 of 2008 on the file of the First Additional Judicial First Class Magistrate, Amalapuram, East Godavari District, arising out of Crime No.80 of 2008 of Ainavilli Police Station insofar as the appellant, accused No.8 is concerned.

10. In the result, the appeal is allowed. …………………………………………………………J. (Aftab Alam)

……………………………………………………………J. (R.M. Lodha)

New Delhi,

December 1, 2011.

Categories: 498A Judgements

SC: Sky is the limit of our power….498A Case

September 29, 2011 Fighting Legal Terror 1 comment

A.Subash Babu vs State Of A.P.& Anr on 21 July, 2011

Bench: J.M. Panchal, H.L. Gokhale

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1428 OF 2011

(Arising out of S.L.P. (Crl.) No. 6349 of 2010) A. Subash Babu … Petitioner(s)

Versus

State of A.P.& Anr. …Respondent(s) J U D G M E N T

J.M. PANCHAL, J.

1. Leave granted.

2. This appeal by grant of Special Leave, questions the legality of Judgment dated 26.02.2010, rendered by Reportable

the learned Single Judge of the High Court of Judicature, Andhra Pradesh in Criminal Petition No. 2426 of 2005 by which the prayer made by the appellant, a Police Officer, to quash the proceeding in C.C. No. 820 of 1996 initiated for commission of offences punishable under Sections 498A, 494, 495, 417 and 420 IPC, has been partly allowed by quashing proceedings insofar as offence punishable under Section 498A IPC is concerned, whereas the proceedings relating to the offences punishable under Sections 494, 495, 417 and 420 IPC are ordered to continue against the appellant.

3. The appeal arises in the following circumstances:- The respondent no. 2 is the original complainant. According to her, the petitioner who is Sub-Inspector of Police, cheated her and her parents by stating that his first wife had died after delivering two children who are studying and staying in a hostel, even though his first wife by name Sharda is very much alive and living with him at Reportable

Avanthinagar near Erragadda and thus by making false and fraudulent representation, the appellant married with her at Yadagirigutta on 09.10.1994. The case of the respondent no. 2 is that the appellant had collected total amount of Rs.28,000/- from her father towards hand loan on the false plea that he was constructing his own house at Borabanda and the appellant further demanded a sum of Rs.20,000/- from her father and when her father expressed inability to pay the amount, the appellant threatened the complainant and her father with dire consequences by showing his licensed revolver. According to the complainant, several times the appellant had tried to snatch away gold ornaments put on by her by threatening her with dire consequences and had demanded gold ornaments together with cash of Rs.15,000/- from her parents. The case of the respondent no. 2 is that when additional demand was not fulfilled the appellant had threatened her and her father again by saying that he would wipe out the evidence of his marriage with the complainant which had taken place at Yadagirigutta by destroying all the photographs and negatives and would walk Reportable

out of her life. Thus feeling aggrieved by the acts of the appellant in cheating her, committing bigamy and meting out cruelty to her for dowry, etc., the respondent no. 2 lodged FIR dated 26.05.1995 with Ranga Reddy Police Station, Balanagar and prayed to take appropriate action against the appellant for alleged commission of offences under Sections 498A and 420 IPC.

4. The Investigating Officer, investigated the FIR lodged by the respondent no. 2 and submitted charge sheet in the Court of learned Judicial Magistrate, First Class, Hyderabad, West and South Court, R.R.District at Kothapet, Sarunagar for commission of offences punishable under Sections 494, 495, 417, 420 and 498A IPC. On receipt of the charge sheet the learned Magistrate took cognizance of the offences and summoned the appellant. The record shows that earlier Criminal Petition No. 812 of 2001 was filed by the appellant before the High Court to quash the proceedings initiated pursuant to C.C. No. 820 of 1996 pending on the file of the learned Judicial Magistrate. However, the said petition was Reportable

withdrawn by the appellant and therefore the petition was dismissed by the High Court vide order dated 09.04.2005 reserving liberty to the appellant to file a fresh petition in case of necessity. After few days thereof, the appellant filed Criminal Petition No. 2426 of 2005 in the High Court for quashing the proceedings in the Criminal Case pending before the learned Magistrate. The record does not indicate as to why Criminal Petition No. 812 of 2001 filed by the appellant in which similar reliefs as claimed in Criminal Petition No. 2426 of 2005, were claimed, was withdrawn and which were the new/additional circumstances/grounds which prompted the appellant to file Criminal Petition No. 2426 of 2005. The said petition was filed mainly on the ground that the proceedings against the appellant were registered for commission of above mentioned offences on the basis of charge sheet submitted by the Sub-Inspector of Police, Women Police Station, Amberpet, R.R. District and not on the basis of complaint made by the aggrieved person within the meaning of Section 198 of the Code. According to the appellant the person aggrieved by alleged commission of Reportable

offences under Sections 494 and 495 is his wife and cognizance of those offences could have been taken only on the basis of the complaint filed by his wife in the Court or by someone on her behalf as contemplated by Section 198A (1)(c) of the Code, and therefore, the learned Magistrate could not have taken cognizance of those offences on the basis of submission of charge sheet by Sub-Inspector of Police on the basis of the investigation into the FIR lodged by the respondent No. 2 who is not the aggrieved person within the meaning of Section 198 of the Code. It was pleaded that there was no averment that pursuant to deception or fraudulent or dishonest inducement made by the appellant, there was any delivery or destruction of property belonging to the original complainant and therefore Section 420 IPC was not attracted. It was the case of the appellant that the provision of Section 498A was also not attracted because the respondent no. 2 was not the wife of the appellant. It was also the case of the appellant that Section 417 IPC merged into offence under Section 495 IPC which is a graver offence than Section 417 and as there were no allegations Reportable

constituting offence under Section 417 IPC, the proceedings initiated for alleged commission of the offences should be quashed.

5. The High Court considered the submissions advanced at the Bar as well as the provisions of Sections 198(1)(c) of the Code of Criminal Procedure, Section 494 and 495 IPC and the Judgment of Division Bench of Andhra Pradesh High Court in Mavuri Rani Veera Bhadranna Vs. State of A.P. and Anr. 2007 (1) ALD (Crl.) 13 (A.P.) and concluded that the Division Bench in Mavuri Rani Veera Bhadranna (supra) had taken note of the fact that the offence punishable under Section 494 IPC as amended by the State of Andhra Pradesh was made cognizable, and though there was no corresponding amendment to Section 198 of the Criminal Procedure Code, the investigating agency was entitled to investigate, and the Magistrate was not precluded from taking cognizance of the said offence on report filed by the police. Having so concluded the Division Bench proceeded to quote part of the Judgment in Mavuri Rani Reportable

Veera Bhadranna (supra) and after noting contentions on behalf of the parties proceeded to consider the decision in the case of S.Radhika Sameena Vs. Station House Officer, 1997 Criminal Law Journal 1655 and held that the decision of the Division Bench in Mavuri Rani Veera Bhadranna (supra) was holding the field with regard to competency of the police to file charge sheet and competency of the Magistrate to take cognizance of the offences punishable under Sections 494 and 495 IPC on the report filed by the police. The High Court further concluded that taking cognizance of the offences punishable under Sections 417, 420, 494 and 495 IPC was in accordance with law, but the victim i.e. the respondent no. 2 in the present case was second wife and therefore prima facie marriage between appellant and the second respondent was void and therefore, offence under Section 498A IPC was not made out against the appellant.

6. In view of the above mentioned conclusions, the learned Single Judge of the High Court by the impugned Judgment Reportable

partly accepted the petition filed by the appellant under Section 482 of the Code of Criminal Procedure by quashing the proceedings in C.C.No. 820 of 1996 on the file of the learned Judicial Magistrate, First Class, West and South, Kothapet, R.R.District, insofar as offence punishable under Section 498A IPC is concerned, whereas the prayer made by the appellant to quash the proceedings insofar as the offences punishable under Sections 494, 495, 417 and 420 IPC, are concerned, is rejected, giving rise to the instant appeal.

7. The learned Counsel for the appellant argued that the learned Magistrate could not have taken cognizance of offences under Sections 494 and 495 IPC on the basis of the police report submitted by the Investigating Officer because though the State legislation amended the First Schedule to the Code of Criminal Procedure, 1973 by making the offences under Section 494 ad 495 IPC cognizable, the legislation made by the Parliament in respect of Section 198 of the Code of Criminal Procedure remained the same and in the event of Reportable

any repugnancy between the two legislations, the legislation made by the Parliament would prevail. It was emphasized that Section 198 A inserted by Section 5 of the Act 46 of 1983 with effect from 25.12.83 provides that no Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code except upon a police report of facts which constitute such offences or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s, her mother’s, brother or sister or with the leave of the Court by any other person related to her by blood, marriage or adoption, but no provision is made to enable a court to take cognizance of offences punishable under Sections 494 and 495 of the Indian Penal Code upon police report and therefore the proceedings pending before the learned Magistrate in respect of those offences should have been quashed. Referring to Section 198(1)(c) which inter alia provides that no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by a person aggrieved, where the person Reportable

aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code, is the wife etc., it was pleaded that in the instant case no complaint was made to the Court but was made to the police and on the basis of charge sheet, the Magistrate had taken cognizance of the offences which is contrary to Section 198 of the Code and is illegal. What was asserted was that the High Court failed to notice that under Section 198(1)(c) of the Criminal Procedure Code only a legally wedded wife or someone on her behalf as mentioned in the said Section can make a complaint to Magistrate for the offences under Section 494 and 495 IPC and as admittedly the complaint was made by the respondent no. 2 who is claiming to be second wife of the appellant herein and that too to the police and not in the Court, the proceedings initiated for alleged commission of those offences should have been quashed. In support of above stated contentions, the learned Counsel for the petitioner placed reliance on the decision in Mavuri Rani Veera Bhadranna (Supra).

Reportable

8. On the other hand, the learned Counsel for the respondents argued that by Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, the offences under Sections 494 and 495 have been made cognizable in the State of Andhra Pradesh, and therefore the respondent No. 2 who is aggrieved person so far as commission of offences punishable under Sections 494 and 495 IPC are concerned, was justified in lodging FIR with the police and the police after investigation, was justified in submitting charge sheet on the basis of which proceedings are pending before the learned Magistrate in respect of alleged commission of offences by the appellant under Section 494, 495, 417, 420 and 498A IPC. The contention by the learned Counsel for the respondents was that 198(1)(c) of the Code of Criminal Procedure will have to be read in the light of the amendment made in the Code by the State Legislature and therefore the learned Magistrate did not commit any error in taking cognizance of the offences on the basis of charge sheet submitted by the Investigating Officer.

Reportable

9. This Court has heard the learned Counsel for the parties at length and also considered the documents forming part of the appeal.

10. The contention that the respondent no. 2 is not an aggrieved person so far as commission of offences punishable under Sections 494 and 495 IPC is concerned, has no substance and cannot be accepted. Section 494 of IPC reads as under:-

"Whoever, having a husband or wife living, marries in any case in which such marriage is

void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Whereas Section 495 of the IPC is as follows:-

"Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent

marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also

be liable to fine."

Reportable

As far as Section 494 IPC is concerned, the criminality attaches to the act of second marriage either by a husband or by a wife who has a living wife or husband, in a case in which second marriage is void by reason of its taking place during the life of such husband or wife. When a law, such as Section 11 of Hindu Marriage Act, 1955 declares that a second marriage by a husband, who has living wife, with another woman is void, for breach of Section 5 (i) of the said Act, it brings/attaches several legal disabilities to the woman with whom second marriage is performed. Say for example, she would not be entitled to claim maintenance from her husband even if she is inhumanly treated, subjected to mental and physical cruelty of variety of kinds etc. and is not able to maintain herself. Law of inheritance would prejudicially operate against her. She herself would suffer outrageous, wrong and absurd social stigma of being another woman in the life of the male who contracts second marriage with her. The members of the cruel society including her kith and kin like parents, brother, sister etc. would look down upon her and she would be left in lurch by one and all. Reportable

When a Court of law declares second marriage to be void on a petition presented by husband who contracts the second marriage on the ground that he has a spouse living at the time of marriage, it only brings untold hardships and miseries in the life of the woman with whom second marriage is performed apart from shattering her ambition to live a comfortable life after marriage.

Having noticed the agony, trauma etc. which would be suffered by the woman with whom second marriage is performed, if the marriage is declared to be void, let us make an attempt to ascertain the purpose of enacting Section 494 IPC. This Section introduces monogamy which is essentially voluntary union of life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. Polygamy was practiced in many sections of Hindu society in ancient times. It is not a matter of long past that in India, hypergamy brought forth wholesale polygamy and along with it misery, plight and ignominy to woman having no parallel in the world. In post vedic India a King could take and generally Reportable

used to have more than one wife. Section 4, of Hindu Marriage Act nullifies and supersedes such practice all over India among the Hindus. Section 494 is intended to achieve laudable object of monogamy. This object can be achieved only by expanding the meaning of the phrase "aggrieved person". For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book. Having regard to the scope, purpose, context and object of enacting Section 494 IPC and also the prevailing practices in the society sought to be curbed by Section 494 IPC, there is no manner of doubt that the complainant should be an aggrieved person. Section 198(1)(c) of the Criminal Procedure Code, amongst other things, provides that where the person aggrieved by an offence under Section 494 or Section 495 IPC is the wife, Reportable

complaint on her behalf may also be filed by her father, mother, sister, son, daughter etc. or with the leave of the Court, by any other person related to her by blood, marriage or adoption. In Gopal Lal Vs. State of Rajasthan (1979) 2 SCC 170 this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it contravenes the conditions specified in Clause (i) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared. Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose Reportable

of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband.

Even otherwise, as explained earlier, she suffers several legal wrongs and/or legal injuries when second marriage is treated as a nullity by the husband arbitrarily, without recourse to the Court or where declaration sought is granted by a competent Court. The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant’s interest and the nature and the extent of the prejudice or injury suffered by the complainant. Section 494 does not restrict right of filing complaint to the first wife and Reportable

there is no reason to read the said Section in a restricted manner as is suggested by the learned Counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife.

A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married with the respondent no. 2 herein by concealing from her the fact of former marriage and therefore her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is, maintainable and cannot be quashed on this ground.

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To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries would be height of perversity.

11. Section 495 IPC provides that if a person committing the offence defined in Section 494 IPC conceals from the person with whom subsequent marriage is contracted, the fact of the former marriage, the said person is liable to punished as provided therein. The offence mentioned in Section 495 IPC is an aggravated form of bigamy provided in Section 494 IPC. The circumstance of aggravation is the concealment of the fact of the former marriage to the person with whom the second marriage is contracted. Since the offence under Section 495 IPC is in essence bigamy, it follows that all the elements necessary to constitute that offence must be present here also. A married man who by passing himself off as unmarried induces an innocent woman to become, as she thinks his wife, but in reality his mistress, commits one of the grossest forms of frauds known to law Reportable

and therefore severe punishment is provided in Section 495 IPC. Section 495 begins with the words "whoever commits the offence defined in the last preceding Section…….." The reference to Section 494 IPC in Section 495 IPC makes it clear that Section 495 IPC is extension of Section 494 IPC and part and parcel of it. The concealment spoken of in Section 495 IPC would be from the woman with whom the subsequent marriage is performed. Therefore, the wife with whom the subsequent marriage is contracted after concealment of former marriage, would also be entitled to lodge complaint for commission of offence punishable under Section 495 IPC. Where second wife alleges that the accused husband had married her according to Hindu rites despite the fact that he was already married to another lady and the factum of the first marriage was concealed from her, the second wife would be an aggrieved person within the meaning of Section 198 Cr. P.C. If the woman with whom the second marriage is performed by concealment of former marriage is entitled to file a complaint for commission of offence under Section 495 IPC, there is no reason why she Reportable

would not be entitled to file complaint under Section 494 IPC more particularly when Section 495 IPC is extension and part and parcel of Section 494 IPC.

For all these reasons, it is held that the woman with whom second marriage is contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 IPC.

12. The argument that the learned Magistrate could not have taken cognizance of offence punishable under Sections 494 and 495 IPC on the basis of the police report i.e. charge sheet, as those offences are non- cognizable and therefore, the relief claimed in the petition filed before the High Court under Section 482 of the Code should have been granted is devoid of merits.

13. In this regard, it would be, relevant to notice the provisions of Article 246 of the Constitution. Article 246 deals with subject matter of laws made by the Parliament Reportable

and by the legislatures of State. Clause (1) of Article 246 inter alia provides that notwithstanding anything contained in Clauses (2) and (3) of Article 246, the Parliament has exclusive power to make laws with respect to any of the maters enumerated in List 1 in the Seventh Schedule. Sub- Clause 2 of the said Article provides that notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the legislature of any State also have power to make laws with respect to any of the matters enumerated in List 3 in the Seventh Schedule, whereas, Clause (3) of Article 246 amongst other things provides that subject to Clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 2 in the Seventh Schedule. Entry 2 in List 3 i.e. Concurrent List in the Seventh Schedule mentions "Criminal Procedure, including in matters included in the Code of "Criminal procedure, at the commencement of this Constitution". Thus there is no manner of doubt that Parliament and subject to Clause (1), the legislature of any State also has power to make laws with Reportable

respect to Code of Criminal Procedure. Section 2(c) of the Code of Criminal Procedure, 1973 defines the phrase "Cognizable Offence" to mean an offence for which and "Cognizable Case" means a case in which, a Police Officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. Part I of the First Schedule to the Code of Criminal Procedure, 1973 relating to offences under the Indian Penal Code inter alia mentions that Section 494 and 495 are non- cognizable. Section 154 of the Criminal Procedure Code relates to information in cognizable cases and provides inter alia that every information relating to the commission of a cognizable offence, if given orally to an Officer in charge of a Police Station, shall be reduced to writing by him and be read over to the informant. Section 156 of the Code provides that any Officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over a local area within the limits of such station would have power to enquire into or try under provisions of Chapter XIII of Criminal Procedure Code. Reportable

As Sections 494 and 495 are made non-cognizable, a Police Officer would not have power to investigate those cases without the order of a Magistrate, having a power to try such cases or commit such cases for trial as provided under Section 155(2) of the Code.

However, this Court finds that the Legislative Assembly of the State of Andhra Pradesh enacted the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. By the said Amending Act, the First Schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 came to be amended and against the entries relating to Section 494 in column 4 for the word "Ditto", the word "Cognizable" and in column 5 for the word "Bailable" the word "Non-bailable" were substituted. Similarly, against the entries relating to Section 495 in column 4, for the word "Ditto" the word "Cognizable" and in column 5 for the word "Ditto", the word "Non-bailable" were substituted. What is relevant to be noticed is that the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was reserved by the Governor of Andhra Pradesh on the 21st October, 1991 for Reportable

consideration and assent of the President. The Presidential assent was received on 10th February, 1992 after which the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was published on the 15th February, 1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus there is no manner of doubt that Sections 494 and 495 IPC are cognizable offences so far as State of Andhra Pradesh is concerned.

14. Having noticed the amendment made by the Legislative Assembly of the State of Andhra Pradesh regarding Section 494 and 495 IPC, this Court proposes to consider the effect of assent given by the President on 10th February, 1992 to the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. Article 254 of the Constitution reads as under:-

"254 Inconsistency between laws made by Parliament and laws made by the

Legislatures of States:-

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which

Parliament is competent to enact, or to any Reportable

provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of

a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has bee reserved for the consideration of the President and has received his assent, prevail in that State.

Provided that nothing in this clause shall prevent Parliament from enacting a law adding to, amending, varying or repealing the law made by the legislature of the State". There is no manner of doubt that Amending Act of 1992 is on the subject which is already in existence in the Code of Criminal Procedure, 1973. However, in view of Clause (2) of Article 254 of the Constitution, an undoubted power to legislate, of course subject to assent of the President on the Reportable

subject already in existence, is available to the State Legislature. Clause (1) of Article 254 is operative subject to provisions of Clause (2). If a law passes a test of Clause (2), it will make Clause (1) inapplicable to it. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State Law which has been reserved for his consideration as required by Article 200, it will prevail notwithstanding its repugnancy to an earlier law of Union. Clause (2) provides for curing of repugnancy which would otherwise invalidate a State law which is inconsistent with a Central law or an existing law. The clause provides that where the State law has been reserved for the consideration of the President and has received his assent, the State law would prevail in the particular State notwithstanding its repugnancy to a Central law or an existing law. Clause (2) comes into play only when (1) the two laws in question deal with a matter in Concurrent List (2) the State law has been made with the consent of the President and (3) the provision of law made by Parliament was earlier. When all these three conditions are satisfied, Reportable

the law made by the State Legislature will prevail. Where there is inconsistency between laws made by Parliament and laws made by the State Legislature, the law made by the Parliament shall prevail. If the State makes law enumerated in Concurrent List which contains provisions repugnant to the provision of an earlier law made by the Parliament, the law so made by the State if it receives assent of President will prevail in the State. When the State Act prevails under Article 254(2) over a Central Act, the effect is merely to supersede the Central Act or to eclipse it by the State Act. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union Law relating to a concurrent subject would be that the State Act will prevail in that State and overrule the provisions of the Central Act, in that State.

In view of the above settled legal position, this Court has no doubt that the amendment made in the First Schedule to the Code of Criminal Procedure, 1973 by the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, shall prevail in the State of Andhra Reportable

Pradesh, notwithstanding the fact that in the Criminal Procedure Code, 1973 offences under Section 494 and 495 are treated as cognizable offences. The reasoning given by the Division Bench of High Court of Andhra Pradesh in Mavuri Rani Veera Bhadranna (supra) that though the State Legislation amended the Schedule making the offence under Section 494 IPC cognizable, the legislation made by the Parliament i.e. Section 198 of the Criminal Procedure Code remains and in the event of any repugnancy between the two legislations, the legislation made by the Parliament would prevail, because, Section 198 of the Criminal Procedure Code still holds the field despite the fact that the State Legislation made amendment to the Schedule of Criminal Procedure Code, with respect, is erroneous and contrary to all cannons of interpretation of statute. Once First Schedule to the Code of Criminal Procedure, 1973 stands amended and offences punishable under Sections 494 and 495 IPC are made cognizable offences, those offences will have to be regarded as cognizable offences for all purposes of the Code of Criminal Procedure, 1973 including for the Reportable

purpose of Section 198 of the Criminal Procedure Code. Section 198(1)(c), after the Amendment made by the Code of Criminal Procedure(Andhra Pradesh Second Amendment) Act, 1992 cannot be interpreted in isolation without referring to the fact that offences under Sections 494 and 495 IPC have been made cognizable so far as the State of Andhra Pradesh is concerned. Therefore, the provision made in Section 198(1)(c) that no Court shall take cognizance of an offences punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved will have to be read subject to the amendment made by the Legislative Assembly of the State of Andhra Pradesh in 1992. Once, it is held that the offences under Section 494 and 495 IPC are cognizable offences, the bar imposed by operative part of sub-section 1 of Section 198 of the Criminal Procedure Code beginning with the words "No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence" gets lifted so far as offences punishable under Sections 494 and 495 IPC are concerned. Reportable

As those offences have been made cognizable offences in the State of Andhra Pradesh since 1992, the same will have to be dealt with as provided in the Section 156 which inter alia provides that any officer in charge of a Police Station, may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII. Even without the authorization under Section 155(2) or Section 156(3) of Criminal Penal Code, offences under Sections 494, 495 and 496 having been rendered cognizable and non- bailable by virtue of the Criminal Procedure Code (Amendment Act, 1992) can be investigated by the Police and no illegality is attached to the investigation of these offences by the police. If the Police Officer in charge of a Police Station is entitled to investigate offences punishable under Section 494 and 495 IPC, there is no manner of doubt that the competent Court would have all jurisdiction to take cognizance of the offences after receipt of report as contemplated under Section 173(2) of the Code. Thus, this Reportable

Court finds that correct proposition of law was not laid down in Mavuri Rani Veera Bhadranna (supra) when the Division Bench of the Andhra Pradesh High Court in the said case held that as Section 198 of Criminal Procedure Code still holds the field despite the amendment made by State Legislature, the Court would have no jurisdiction to take cognizance of an offence punishable under Section 494 IPC on the basis of report submitted by the Investigating Officer. Even if it is assumed for the sake of argument that in view of Section 198(1)(c) of the Code of Criminal Procedure, the Magistrate is disentitled to take cognizance of the offences punishable under Sections 494 and 495 IPC despite the State amendment making those offences cognizable, this Court notices that in Mavuri Rani Veera Bhadranna (supra), the Division Bench has considered effect of Section 155(4) of the Criminal Procedure Code and thereafter held that the bar under Section 198 would not be applicable as complaint lodged before police for offence under Section 494 IPC also related to other cognizable offences and if police files a charge sheet, the Court can take cognizance also of offence Reportable

under Section 494 along with other cognizable offences by virtue of Section 155 (4) of the Criminal Procedure Code.

15. Section 155(4) of the Code inter alia provides that:- "Where a case relates to two or more

offences of which at least one is

cognizable, the case shall be deemed to be

a cognizable case, notwithstanding that the other offences are non-cognizable"

Here in this case in the charge sheet it is mentioned that the appellant has also committed offence punishable under Section 420 of the Indian Penal Code which is cognizable and therefore this is a case which relates to two or more offences of which at least one is cognizable and therefore the case must be deemed to be cognizable case notwithstanding that the other offences are non- cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495 IPC. The case of the respondent no. 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498A of the IPC. A question may arise as to Reportable

what should be the procedure to be followed by a complainant when a case involves not only non- cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also alongwith non-cognizable offences it should not be treated as a non- cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate could not have taken cognizance of the offences punishable under Sections 494 and 495 IPC on the basis of submission of charge sheet, cannot be accepted and is hereby rejected.

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16. This Court finds that the High Court has quashed the proceedings pending before the learned Magistrate under Section 498A of IPC on the spacious ground that the marriage of the appellant with the respondent no. 2 is void and as respondent no. 2 is not the wife, she was not entitled to lodge first information report with the police for commission of offence u/s. 498A IPC and on the basis of police report, cognizance of the said offence against the appellant could not have been taken by the learned Magistrate. Such reasoning is quite contrary to the law declared by this Court in Reema Aggarwal Vs. Anupam and others (2004) 3 SCC 199. After examining the scope of Section 498A of the Indian Penal Code and holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise, this Court speaking through Hon’ble Mr. Justice Arijit Pasayat, has held as under:-

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"Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting

legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations

who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children

of void and voidable marriages. Can it be said that the legislature which was conscious

of the social stigma attached to children of void and voidable marriages closed its eyes to

the plight of a woman who unknowingly or unconscious of the legal consequences

entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been

declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in

any manner or for any of the purposes Reportable

enumerated in the relevant provisions-

Sections 304B/498A, whatever be the

legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The

absence of a definition of "husband" to specifically include such persons who

contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions."

17. In view of firm and clear law laid down on the subject, this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the appellant under Section 498A of the Code on the ground that the respondent no. 2 was not wife within the meaning of Section 498A of the IPC and was not entitled to maintain complaint under the said provision. The question therefore which arises for consideration of the Court is whether the said finding recorded by the High Court can and should be set aside in the present appeal which is filed by Reportable

the husband. It was argued by the learned Counsel for the appellant that quashing of proceedings with reference to offence punishable under Section 498A of Indian Penal Code is neither challenged by the State Government nor by the original complainant before this Court and the same having attained finality, the same cannot be disturbed in an appeal filed by the husband appellant in which grievance is made regarding non-grant of relief in full by the High Court.

18. This Court does not find any substance in the above mentioned argument of the learned Counsel for the appellant. The law declared by this Court in case of Reema Aggarwal (Supra) was binding on all Court including the learned Single Judge of High Court of A.P. who decided the present case in view of salutary provisions of Article 141 of the Constitution. The learned Single Judge of the High Court could not have afforded to ignore the law declared by this Court in Reema Aggarwal (Supra) while considering the question whether proceedings initiated by the respondent no. 2 for commission of offence punishable under Section 498A Reportable

of IPC should be quashed or not. The High Court has completely misdirected itself in quashing the proceedings for the offence punishable under Section 498A of IPC. There is no manner of doubt that the finding recorded by the High Court that the respondent no. 2 is not the wife within the meaning of Section 498A of the Indian Penal Code runs contrary to law declared by this Court in case of Reema Aggarwal (Supra). There may be several reasons due to which the State might not have challenged that part of the Judgment of the learned Single Judge quashing the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal Code. So also because of several reasons such as want of funds, distance, non-availability of legal advice, etc. the original complainant might not have approached this Court to challenge that part of the judgment of the learned Single Judge which is quite contrary to the law declared by this Court. However, this Court while entertaining an appeal by grant of special leave has power to mould relief in favour of the respondents notwithstanding the fact that no appeal is filed by any of the respondents Reportable

challenging that part of the order which is against them. To notice an obvious error of law committed by the High Court and thereafter not to do anything in the matter would be travesty of justice. This Court while disposing of an appeal arising out of grant of special leave can make any order which justice demands and one who has obtained illegal order would not be justified in contending before this Court that in absence of any appeal against illegal order passed by the High Court the relief should not be appropriately moulded by the Court or that the finding recorded should not be upset by this Court.

19. In Chandrakant Patil Vs. State (1998) 3SCC 38, even in absence of an appeal by Government specifically for that purpose and in absence of revisional power as is available to High Court and Sessions Court, under Criminal Procedure Code, this Court held that the Supreme Court has power under Article 142 read with Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 to enhance the sentence for doing complete justice in the matter that in Reportable

the circumstances of the case appeared to it, to be too inadequate. In the said case it was contended that the Supreme Court has no power to enhance sentence in the absence of an appeal by the Government presented specifically for that purpose more so because Supreme Court has no revisional powers which the High Court and Court of Sessions are conferred with by the Criminal Procedure Code. While negativating the said contention this Court has firmly ruled that powers of the Supreme Court in appeals filed under Article 136 of the Constitution are not restricted by the appellate provisions enumerated under the Code of Criminal Procedure or any other statute. What is held as firm proposition of law is that when exercising appellate jurisdiction the Supreme Court has power to pass any order. The power under Article 136 is meant to supplement the existing legal frame work. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. Though challenge was not made by any of the two respondents to the finding recorded by the learned Single Judge that the complaint lodged by the Reportable

respondent no. 2 for alleged commission of offence punishable under Section 498A of the Indian Penal Code is not maintainable because she is not a wife, this Court feels that absence of challenge either by State or by the original complainant should not persuade or prevent this Court from doing justice between the parties by restoring the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal Code on the file of the learned Magistrate. The conclusion arrived at by the High Court is such as to shake the conscience and sense of justice and therefore it is the duty of this Court to strike down the finding recorded with respect to the offence punishable under Section 498A, irrespective of technicalities. The judgment of the High Court quashing the proceedings initiated by the learned Magistrate for commission of offence punishable under Section 498A is tainted with serious legal infirmities and is founded on a legal construction which is wrong. So the technical plea advanced by the learned counsel for the appellant that in absence of appeal by any of the respondents, quashing of proceedings with respect to the offence punishable under Reportable

Section 498A IPC, cannot be set aside, is hereby rejected. As held in Ramakant Rai Vs. Madan Rail (2003) 12 SCC 395 following Arunachalam Vs. P.S.R. Sadanatham (1979) 2 SCC 297 and P.S.R. Sadanatham Vs. Arunchalam (1980) 3 SCC 141, the appellate power vested in the Supreme Court under Article 136 is not to be confused with the ordinary appellate power exercised by appellate Courts and appellate Tribunals under specific statutes. It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice. Article 136 is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice, is the sky itself. Further, the powers under Article 136 can be exercised by the Supreme Court, in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist. Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well settled that illegality should not be allowed to be perpetuated and failure by this Court to Reportable

interfere with the same would amount to allow illegality to be perpetuated. When an apparent irregularity is found by this Court in the order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it. There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.

20. Therefore, that part of the impugned judgment by which the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal code is quashed by the High Court will have to be set aside while disposing the appeal filed by the appellant.

21. For the foregoing reasons, the appeal filed by the appellant fails and therefore the same is hereby dismissed. The impugned Judgment quashing the complaint filed by the respondent no. 2 for alleged commission of offence by the Reportable

appellant under Section 498A IPC, is hereby set aside and the complaint lodged by the respondent no. 2 under Section 498A of the Indian Penal Code as well as charge sheet submitted by the Investigating Officer for the same shall stand restored/revived. Subject to above mentioned direction the appeal stands disposed of.

……………………………….J.

[J.M. Panchal]

……………………………….J.

[H.L. Gokhale]

New Delhi;

July 21, 2011.

http://indiankanoon.org/doc/1342950/

Categories: 498A Judgements

Heavy misuse of 498A and DV Act….Wife states in Dying declaration that she suffered inuries while cooking but husband arrested on a 15 days delayed FIR…Though granted Bail

September 26, 2011 Fighting Legal Terror Leave a comment

Pravinbhai vs State on 21 September, 2011

Author: Abhilasha Kumari,

Gujarat High Court Case Information System

CR.MA/186020/2009 6/ 6 ORDER

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL

MISC.APPLICATION No. 1860 of 2009

=========================================================

PRAVINBHAI

RAMANBHAI DEVIPUJAK – Applicant(s)

Versus

STATE

OF GUJARAT – Respondent(s)

========================================================= Appearance

CB DASTOOR for

Applicant(s) : 1,

MR LB DABHI ADDL. PUBLIC PROSECUTOR for Respondent(s) :

=========================================================

CORAM

HON’BLE

SMT. JUSTICE ABHILASHA KUMARI

Date

: 25/03/2009

ORAL

ORDER

1. Rule.

Mr. L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent-State of Gujarat.

2. This

application has been filed under Section 439 of the Code of Criminal Procedure, 1973, for grant of bail in connection with FIR, being C.R. No. I-62 of 2008, registered at Koth Police Station, Taluka : Dholka, District : Ahmedabad, for offences punishable under Sections 498(A), 307 and 114 of the Indian Penal Code, Sections 3 and 7 of the Dowry Prohibition Act and Sections 5, 6 and 7 of the Domestic Violence Act.

3. The

allegation contained in the FIR is that the applicant, along with other co-accused persons, is involved in the commission of the above-mentioned offences.

4. Mr.

C.B. Dastoor, learned Advocate for the applicant has submitted that the applicant is innocent and he has been falsely implicated in the commission of the alleged offence. That, the daughter of the complainant sustained injuries accidentally, while she was preparing food at night and this has been stated by her, in her Dying Declaration. That, the applicant and his parents themselves, took the daughter of the complainant to the hospital, to provide medical treatment to her. That, the FIR is filed after a period of about 15 days, with some ulterior motive. Even otherwise, the daughter of the complainant has been discharged from the hospital, long back. That, there is no likelihood that the applicant may abscond, tamper with the evidence or pressurize the witnesses and, therefore, the application for bail may be favorably considered.

5. Mr.

L.B. Dabhi, learned APP on behalf of the respondent-State has strongly opposed the grant of bail to the applicant.

6. I

have considered the submissions made by the learned Counsel for the respective parties, and perused the contents of the FIR as well as other material on record. It appears from the narration in the FIR that the allegations levelled against the applicant are of a vague and general nature. It further transpires from the material on record that the daughter of the complainant has herself stated, in her Dying Declaration, that she has received injuries accidentally, while cooking. Considering the totality of the facts and circumstances of the case, as emerging from the material on record, the manner in which the offence is alleged to have taken place and the nature and gravity of the offence, the application deserves to be allowed.

7. For

the reasons stated above, the application is allowed. The applicant is ordered to be released on bail in connection with FIR being C.R. No. I-62 of 2008 registered with Koth Police Station, Taluka : Dholka, District : Ahmedabad, on his executing a personal bond to the tune of Rs.10,000/- (Rupees Ten Thousand Only), with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the applicant:

a) shall

not take undue advantage of his liberty or abuse his liberty in any manner;

b) shall

not act in a manner injurious to the interest of the prosecution or tamper with evidence or intimidate witnesses;

shall maintain law and order and shall cooperate fully with the investigating officers and shall make himself available for investigation, as and whenever directed;

d) shall

mark his presence before the Investigating Officer of the concerned Police Station on the 15th and 30th day of every English calendar month, between 10:00 am to 5:00 pm, till the commencement of trial;

e) shall

not leave the local limits of the State of Gujarat without the prior permission of the concerned Sessions Judge;

f) shall

furnish his residential address to the Investigating Officer and also to the court at the time of execution of the bond and shall not change his residential address without prior permission of this Court;

g) shall

surrender his Passport, if any, to the lower Court within a week.

8. If

the applicant commits breach of any of the above conditions, the concerned Sessions Judge will be free to issue warrants or take appropriate action in the matter.

9. It

is made clear that no observations made by this Court be construed as having any bearing on the merits of the case, at the time of the trial. The trial Court will proceed in accordance with law, unaffected and uninfluenced by any observations contained in this order.

10. Bail

before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate, if prayed for.

11. Rule

is made absolute. Direct Service is permitted.

(SMT.

ABHILASHA KUMARI, J.)

Umesh/

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Categories: 498A Judgements

What happens when husband takes back 498A wife? He gets 304B…Read this Judgement from HC

September 19, 2011 Fighting Legal Terror Leave a comment

Prem Singh & Others vs State Of Uttaranchal on 13 September, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION No. 260/2006 (Under Section 482 of the CrPC)

Prem Singh & Others …….Applicants Versus

State of Uttaranchal ……Respondent

Mr. Arvind Vashistha, Advocate, for the applicants. Mr. P.S. Bohara, Brief Holder, for the State.

13th September, 2011

Hon’ble Servesh Kumar Gupta, J.

By way of this Criminal Miscellaneous Application, the prayer has been made to quash the Criminal Case No. 2272/2002, State v. Prem Singh & Others, and the order of cognizance dated 22.10.2002 passed therein by the Chief Judicial Magistrate, Nainital. The said criminal case is based upon a chargesheet submitted against the applicants for the offences punishable under Section 147, 323, 506, 498A IPC and Section 3/4 Dowry Prohibition Act, pertaining to Police Station Ramnagar, District Nainital.

2. Having heard learned Counsel for the parties and on perusal of the papers on record, it transpires that marriage of Smt. Sunita with Prem Singh was solemnized on 20.11.1997. Soon after the marriage, differences cropped up between the wedded couple on the question of dowry and other issues. After passing of few years in the mental agony, Smt. Sunita lodged an FIR on 11.6.2002 against the applicants for the offences as stated above. After the investigation, the chargesheet, under the aforesaid sections, was filed against the applicants. The learned Magistrate 2

registered the chargesheet and passed the impugned order of cognizance.

3. It is further revealed before this Court that husband Prem Singh filed a divorce petition no. 266/2002, while on the other hand, Smt. Sunita filed the miscellaneous case no. 89/2002 seeking maintenance under Section 125 CrPC. However, good sense prevailed between the two and with the intervention of some elders, the wedded couple again resumed their matrimonial life. They filed a compounding deed dated 29.3.2003, wherein it was settled that both the parties will live together peacefully keeping behind all the differences and will withdraw all the cases filed against each other by them. The compounding deed was filed in the concerned court on 4.4.2003. On the basis of this deed, the divorce petition no. 266/2002 was dismissed by the learned Judge on 9.11.2003 and the proceedings of Section 125 CrPC were also quashed.

4. Smt. Sunita thus started living in her matrimonial house. But unfortunately, after passing almost a year, she died there. After her death, prosecution under Section 304B IPC was launched against the husband and his parents. That trial in the court of Special Judge, E.C. Act, Moradabad ended in acquittal of all the accused. But the charge for the offence of Section 498A IPC could not be compounded since the offence under this section is non-compoundable.

5. In view of the facts and circumstances of the case narrated above, the impugned chargesheet, the Criminal Case No. 2272/2002 and the order of cognizance dated 22.10.2002 passed therein will not serve any purpose and thus meaningless now. The same are liable to be quashed. 3

6. Resultantly, the impugned chargesheet, the entire proceedings of Criminal Case No. 2272/2002 and the order of cognizance dated 22.10.2002 passed therein, all are hereby quashed. Registry is directed to inform the court concerned accordingly.

(Servesh Kumar Gupta, J.)

13.9.2011

Prabodh

http://indiankanoon.org/doc/660805/

Categories: 498A Judgements

Trial court can add the charge at any stage before completion of the trial

August 17, 2011 Fighting Legal Terror Leave a comment

Rupaben vs State on 16 August, 2011

Author: Md Shah,

Gujarat High Court Case Information System BODY

SCR.A/802/2011 3/ 3 JUDGMENT

THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL

CRIMINAL APPLICATION No. 802 of 2011

For

Approval and Signature: HONOURABLE

MR.JUSTICE MD SHAH =========================================================

Whether

Reporters of Local Papers may be allowed to see the judgment ? YES

To be

referred to the Reporter or not ? NO

Whether

their Lordships wish to see the fair copy of the judgment ? NO

Whether

this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO

Whether

it is to be circulated to the civil judge ? NO

=========================================================

RUPABEN

SANJAY PUNJWANI – Applicant(s)

Versus

STATE

OF GUJARAT & 2 – Respondent(s)

========================================================= Appearance

AR GUPTA WITH

MS NEETA PANDIT for Applicant(s) : 1, MR LR PUJARI, ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, SERVED BY RPAD – (N) for Respondent(s) : 2 – 3. MR KB ANANDJIWALA WITH MR GT DAYANI for Respondent(s) : 2 –

=========================================================

CORAM

HONOURABLE

MR.JUSTICE MD SHAH

Date

: 16/08/2011

ORAL

JUDGMENT

1. The

present petitioner has lodged complaint against the present respondent for the offence punishable under Sections 498-A, 323 and 114 of the Indian Penal Code and under Sections 3 and 7 of the Dowry Act. The present petitioner has not placed on record the copy of complaint.

2. This

Court has gone through the complaint as well as copy of chargesheet provided by learned advocate for the respondent, the same is ordered to be taken on record. Prima facie it is found that the chargesheet is filed for the offence punishable under Sections 498-A, 323 and 114 of Indian Penal Code and under Sections 3 and 7 of Dowry Act, but nothing is reflected in the complaint to show that the complaint is also filed for offence punishable under Sections 406, 420, 467 and 506(1) of the Indian Penal Code. It is pertinent to note that, in pursuance of the order passed by this Court in Criminal Misc. Application No.11510 of 2010 dated 28.9.2010 the trial is required to be completed within one month by the trial court.

3. In

pursuance of the order passed by this court, charge was framed, and before framing of the charge, no application for further investigation nor adding of the charge is given by the complainant or by the prosecutor. After framing of the charge and when the trial has commenced, application for adding of charge Exh.13 has been submitted by the learned advocate for the complainant. This Court has gone through the said application. Prima facie, in the opinion of this Court, if the alleged offence is made out in reference to tampering of passport and visa then the petitioner should lodge complaint for the said offences. The question does not arise to add the charge in the said case for the offence punishable under Sections 406, 420, 467 and 506(1) of the IPC. In the opinion of this Court, the said application is rightly rejected by the trial court and therefore the question does not arise to interfere with the said order and hence this application is rejected.

4. It

is also submitted by learned advocate Mr.Anandjiwala for the respondent that visa was cancelled by the competent authority at Sharjah as visa was issued in the capacity of spouse in the favour of the petitioner and the present respondent has not played any role for cancellation of visa and competent authority at Sharjah has cancelled the visa.

5. It

is also clarified that, during the trial, if the court satisfies and think fit then the court can add the charge at any stage before completion of the trial. The trial court is directed to decide and dispose of the case, as early as possible, preferably within one month from the date of receipt of writ of this order. It is also submitted by the learned advocate for the both the parties that they will give full cooperation for conducting the trial smoothly. Rule is discharged to the aforesaid extent. Direct service is permitted.

(

M.D. SHAH, J. )

syed/

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http://www.indiankanoon.org/doc/542767/

Categories: 498A Judgements

Filing multiple 498A is becoming very common now

August 12, 2011 Fighting Legal Terror Leave a comment

Sujit Kumar vs The State Of Bihar on 10 August, 2011

IN THE HIGH COURT OF JUDICATURE AT PATNA

Cr.Misc. No.26777 of 2011

Sujit Kumar son of Ramanand Singh, Resident of Village-Utari Gangajal at present Village-Teliya Police Station-Rajapakar, District-Vaishali. …. Petitioner. Versus

The State of Bihar …. Opposite Party. ———–

2. 10.08.2011 Heard learned counsel for the petitioner and learned counsel appearing for the State.

The petitioner is in custody in connection with Rajapakar P.S. Case No. 29 of 2011 for the offence under Sections 379, 494, 323, 498A and 504 of the Indian Penal Code. It is submitted on behalf of the petitioner that the case was initially registered as a complaint. The marriage had taken place in the year 2004. Prior to the present case, another case was also registered against the petitioner for the offence under Section 498A of the Indian Penal Code in which the petitioner is on bail.

It is also submitted that the petitioner earlier filed a case before the Family Court, Hajipur for restitution of conjugal right in 2008. He submits that the informant does not want to live with the petitioner and she is harassing the petitioner repeatedly by instituting false cases. It is also submitted that the case is of marital discord and incompatibility in temperament. Considering the facts and circumstances of the case, let the petitioner, namely, Sujit Kumar, be released on bail on furnishing bail bonds of Rs. 5,000/- (Five Thousand only) with two sureties of the like amount each to the satisfaction of Chief 2

Judicial Magistrate, Vaishali at Hajipur.

Kamlesh (Ashwani Kumar Singh, J.)

http://indiankanoon.org/doc/1997761/

Categories: 498A Judgements

HC: Far relatives implicated in 498A Falsely, Quashed against respondent 3 to 6

August 12, 2011 Fighting Legal Terror Leave a comment

Radha Kant Adhikari & Others vs State Of Uttaranchal & Another on 2 August, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION No. 891/2007 (Under Section 482 of the CrPC)

Radha Kant Adhikari & Others …….Applicants Versus

State of Uttaranchal & Another ……Respondents

Mr. M.K. Ray, Advocate, for the applicants. Mr. P.S. Bora, Brief Holder, for the State/respondent no. 1. Mr. Yogesh Pandey, Advocate, for the complainant/respondent no. 2.

2nd August, 2011

Hon’ble Servesh Kumar Gupta, J.

By way of this criminal miscellaneous application, moved under Section 482 CrPC, the applicants have challenged the summoning order dated 15.12.2006, passed by the Judicial Magistrate, Khatima in Criminal Case No. 1100/2006, Smt. Reena Adhikari v. Radha Kant Adhikari, whereby the applicants have been summoned to face the trial for the offences punishable under Section 498A, 323, 504, 506 IPC and one punishable under Section 3/4 of the Dowry Prohibition Act.

2. Brief facts of the case are that respondent no. 2 Smt. Reena Adhikari lodged a complaint on 28.8.2006 before the Judicial Magistrate, Khatima stating that she got married to the applicant no. 1 Radha Kant Adhikari on 5.9.2004. Her parents gifted articles and ornaments in the marriage as per their status. After sometime of marriage, differences cropped up between the two families on the question of dowry. Radha Kant Adhikari (husband), Anand Adhikari (father-in-law), Namita Adhikari (mother-in-law), Km. Jayanti Adhikari (unmarried sister-in-law), Dhruv Adhikari (younger brother-in- law) and Smt. Sushma (aunt {Bua} of the husband of the 2

respondent no. 2 and is working as a Nurse in Community Health Centre, Sitarganj), who are the prospective accused, started taunting Smt. Reena Adhikari for bringing insufficient dowry. It is further alleged that father of the complainant tried to resolve the matter and, accordingly, gave a plot of land in village Bakunthpur as well as sewing machine, interlock machine and rupees twenty thousand cash to Radha Kant Adhikari (husband of the respondent no. 2) in order to open a tailoring shop on the said plot. But it did not satisfy the hunger of dowry being nurtured by the in-laws of the complainant, and they started harassing her for more dowry. Finally the complainant was ousted from her in-laws’ house along with her girl child. It is further alleged that on 24.8.2006, at about 6 am, all the applicants came at the parental house of the complainant and demanded rupees thirty thousand and started abusing her for the same. When the complainant and her parents expressed their inability to fulfill the said demand, then all the applicants assaulted Smt. Reena Adhikari (complainant) at her parental house. On her raising the alarm, Shivpad Mandal, Gaur Chand Sarkar and many other people of the same village came at the place of occurrence and rescued the complainant and her parents. The applicants allegedly threatened that if the complainant shall be sent to her in-laws’ house without fulfilling their demand of dowry, then she shall be burnt alive.

3. The learned Magistrate, after recording the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC, summoned the accused applicants as stated above.

4. Heard learned Counsel for the parties and perused the materials available on record.

5. It has been contended on behalf of the applicants that on the alleged date of incident, that on 24.8.2006, Radha Kant Adhikari (husband) was in Gujarat in search of job. Smt. Sushma, who is aunt (Bua) of Radha Kant Adhikari (husband of the complainant) is working as Nurse and she stays at a distance of 18 kms from the alleged place of occurrence. Furthermore, she was on duty on the alleged date of incident. In support, copy of attendance sheet has also been annexed, albeit the same is illegible. It is further contended that applicants have been falsely implicated in this case

6. All told, the allegations made by the complainant Smt. Reena Adhikari in her complaint, do not, prima facie, inspire the confidence at least against the applicants no. 3 to 6, who are respectively mother-in-law, unmarried sister-in- law, younger brother-in-law and aunt (sister of her father-in- law) of the complainant. It appears to be highly improbable that these persons would accompany Radha Kant Adhikari (husband) and Anand Adhikari (father of Radha Kant Adhikar) and together abused and beat the complainant, that too at her parental house. Furthermore, Smt. Namita Adhikari is an old lady. Applicant no. 6 Smt. Sushma, who is aunt (Bua) of the complainant, is a married woman and she is living separately and she is not at all the beneficiary of demand of dowry. As such, applicants no. 3 to 6 appear to be falsely implicated being the relatives of the complainant and her husband. Hence, the impugned summoning order is liable to be quashed so far as it relates to the applicants no. 3 to 6.

7. For the reasons stated above, the present miscellaneous application under Section 482 CrPC is partly allowed. Impugned summoning order dated 15.12.2006, passed by the Judicial Magistrate, Khatima in Criminal Case No. 1100/2006, is quashed only in respect of applicants no. 3 4

to 6, namely, Smt. Namita Adhikari, Km. Jayanti Adhikari, Dhruv Adhikari and Smt. Sushma, However, learned trial court shall proceed with the trial against the applicant no. 1 Radha Kant Adhikari and applicant no. 2 Anand Adhikari. Accordingly, interim order dated 29.11.2007 stands vacated so far as it relates to applicants no. 1 & 2.

(Servesh Kumar Gupta, J.)

2.8.2011

Prabodh

Categories: 498A Judgements, IPC 498A Misuse Judgements, Judgement

CrPC amendment: AP HC: Courtesy Rajesh

June 11, 2011 Fighting Legal Terror Leave a comment

CrPC Amendment Circular-AP

Categories: Advisary,Circular,Directions from Court

30 Lakhs for settlement of 498a: Such husbands are promoting legal terror

May 20, 2011 Fighting Legal Terror 3 comments

CR.MA/1669/2011 5/5 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1669 of 2011

For Approval and Signature:

HONOURABLE MR.JUSTICE MD SHAH

=========================================================

Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

=========================================================

KEYURBHAI HARSHADRAI PARIKH & 3 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

M/S THAKKAR ASSOC. for Applicant(s) : 1 – 4. Mr.L.R.Pujari, APP for Respondent(s) : 1,

MR RAJESH H SAHJANI for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE MD SHAH

Date : 22/04/2011

ORAL JUDGMENT

1. Leave to add the husband of the respondent No-2 as petitioner No.5 is granted and draft amendment is allowed. Amendment be carried out forthwith.

2. Heard learned Senior Advocate, Mr.P.M.Thakkar for M/s Thakkar Associates for the petitioners, learned APP, Mr.L.R.Pujari for the respondent No.1 and learned advocate, Mr.Rajesh Sahjani for the respondent No.2. The respondent No.2-complainant is also present in Court.

3. Rule. Learned APP, Mr.L.R.Pujari for the respondent No.1 and learned advocate, Mr.Rajesh Sahjani for the respondent No.2 waive service of notice of rule.

4. The learned advocates for the respective parties have jointly submitted that this matrimonial matter is settled between the parties and as per the settlement, the parties have decided to separate and for which, divorce application has been preferred before the competent court. Further, the petitioners have agreed to pay a sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) by pay order No.015974 dated 4-3-2011 drawn on Principal Judge, Family Court, Ahmedabad, in lieu of all claims present and future arising out of marriage in full and final settlement. The respondent No.2-complainant wife, who is present in Court, has stated that she is ready to accept the said amount. It is further stated by her that since the matter is settled, she has no objection if the complaint is quashed.

5. It is clear that the parties have settled the matter by arriving at a compromise and a consent terms on affidavit is submitted which is taken on record. Reliance is placed on a decision of the Apex Court reported in AIR 2005 SUPREME COURT 757 in the case of Mohd. Shamim v. Nahid Begum wherein it has been held by the Apex Court in paragraph Nos.12, 13, 14 and 15 as under:

“12. In view of the fact that the settlement was arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge, we are of the opinion, the contention of the First Respondent herein to the effect that she was not aware of the contents thereof and the said agreement as also the affidavit which were got signed by her by misrepresentation of facts must be rejected. In the facts and circumstances of this case, we have no doubt in our mind that the denial of execution of the said deed of settlement is an afterthought on the part of the Respondent No.1 herein.

13. Ex facie the settlement between the parties appears to be genuine. If the contention of the First Respondent herein is to be accepted, she would not have accepted the sum of Rs. 2,25,000/- and in any event, she could have filed an appropriate application in that behalf before the Court of S.N. Gupta, Additional Sessions Judge, Delhi. What was least expected of her was that she would return the said sum of Rupees 2,25,000/- to the Appellants herein.

14. Section 406 is a compoundable offence with the permission of the court. It is true that Section 498-A IPC is not compoundable.

15. This Court in Ruchi Agarwal v. Amit Kumar Agrawal and others (2004 (8) Supreme 525), in almost a similar situation has quashed a criminal proceeding against the husband, stating:

“… Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

8. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue.”

16. In view of the conduct of the First Respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the Appellants, in our opinion, in this case also, would be an abuse of the process of the court. The Appellant No.1, however, would be entitled to withdraw the sum of Rs. 50,000/- which has been deposited in the court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the impugned judgment be set aside. The First Information Report lodged against the Appellants is quashed. The Appeal is allowed. However, this order should not be treated as a precedent.”

6. Reliance is also placed on another decision of the Apex Court reported in AIR 2003 SUPREME COURT 1386 in the case of B. S. Joshi v. State of Haryana wherein complaint for the offence under Sec.498-A has been quashed by observing that High Court can exercise inherent power for quashing of criminal proceedings under Sec.482 of Cr.P.C. It has been held by the Apex Court in paras 14 and 15 of the said judgment as under:

“14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.

15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.”

7. Applying the above ratio to the facts of the present case, since the matter has been settled between the parties, I am of the opinion that no useful purpose would be served by permitting the criminal proceedings pending against the petitioners to continue. Hence, the complaint in question is required to be quashed.

8. In view of the above, FIR registered as C.R.No.I-35 of 2011 at Satellite Police Station is quashed. This Cri.Misc.Application is accordingly allowed. Rule is made absolute. Direct service is permitted.

(M.D.SHAH,J.)

radhan

Categories: 498A Judgements

Heavy misuse of 498A..Love marriage…Left house on own and then filed Rape, 498A, 324 etc

May 6, 2011 Fighting Legal Terror Leave a comment

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/531736/1/CRLP2184-11-28-04-2011.pdf

Categories: 498A Judgements, Bail Judgement

HC: 498A filed oblique motive and maliciously and not honestly…Quashed

May 2, 2011 Fighting Legal Terror Leave a comment

CRIMINAL MISCELLANEOUS No.11378 OF 2003 —-

In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. —-

1. SACHIDANAND SINGH, SON OF LATE PARMANAND SINGH

2. AGAM KUMAR SINGH, SON OF LATE PARMANAND SINGH

3. PANKAJ KUMAR, SON OF AGAM KUMAR SINGH

4. MADHUKAR KUMAR, SON OF AGAM KUMAR SINGH

5. SANYUKTA DEVI, WIFE OF AGAM KUMAR SINGH ALL ARE RESIDENT OF VILLAGE KAS TIKARI, POLICE STATION SULTANGANJ, DISTRICT BHAGALPUR. … … PETITIONERS.

Versus

1. THE STATE OF BIHAR

2. SHANTI DEVI, DAUGHTER OF LATE AYODHYAY MANDAL, RESIDENT OF VILLAGE SAUJUWA, POST OFFICE HATHIYOK, POLICE STATION ASARGANJ, DISTRICT MUNGER. … … OPPOSITE PARTIES. —-

For the Petitioners : M/S Krishna Prasad Singh, Sr. Adv. Mithilesh Kr. Singh, Adv.

For O.P. No.2 : M/S Bhola Prasad, Adv. Swapnil Kumar Singh, Adv.

For the State : Mrs.Indu Bala Pandey, A.P.P. —-

P R E S E N T

THE HON’BLE MR. JUSTICE RAKESH KUMAR —-

Rakesh Kumar,J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 17.4.2003 passed in Complaint Case No.1113 of 1999 by learned Chief Judicial Magistrate, Bhagalpur. By the said order, the learned Magistrate has taken cognizance of offence under Sections 498A, 323 and 341 of the Indian Penal code. 2

2. Short fact of the case is that opposite party no.2 filed a complaint, which was numbered as Complaint Case No.1113 of 1999 in the court of Chief Judicial Magistrate, Bhagalpur, alleging therein against all the petitioners for commission of offences under Sections 307, 376, 125, 147, 148, 325, 509, 498A, 323, 334, 352, 355, 358 and 34 of the Indian Penal Code. In the complaint petition, it was alleged that while the opposite party no.2 was returning from court after doing pairvi in her case and she arrived at a lonely place, all the aforesaid accused persons intercepted the complainant and forcibly took her to the house of accused persons where it was alleged that her husband petitioner Sachidanand Singh forcibly kept the complainant in a room and on force, she committed rape. It was alleged that accused persons were demanding huge amount as dowry from the complainant and she was pressurized to withdraw the case, which was instituted by her against the accused persons. On the aforesaid allegation, complaint petition was filed and after conducting enquiry, the learned Magistrate came to the conclusion 3

that since the petitioner no.1 was husband of complainant offence under Section 376 of the Indian Penal Code was not made out. However, the learned Magistrate took cognizance of offence under Sections 498A, 323 and 341 of the Indian Penal code and directed for summoning the petitioners.

3. Aggrieved with the order of cognizance, all the petitioners approached this Court by filing the present petition, which was admitted on 20.10.2005. While admitting, it was directed that during the pendency of this application, interim order passed on 27.9.2004 shall remain operative. The order of stay is still contining.

4. Shri Krishna Prasad Singh, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the present complaint petition was filed maliciously as well as by way of suppression of material fact. Learned Senior Counsel has referred to Annexure-2 to the petition, which is decree prepared in Marriage Case No.4 of 1993. It was submitted that on contest, marriage of petitioner no.1 with opposite party no.2 was 4

finally dissolved by the judgment and decree dated 4.5.1998. It was submitted that order was passed in presence of learned counsel for both the parties. It was submitted that since the marriage had already been dissolved, on contest, the opposite party no.2, by way of suppression of fact, filed the present complaint petition i.e. Complaint Case No.1113 of 1999 on 9.12.1999. It was submitted that in the complaint petition, the complainant had not even whispered that her marriage with petitioner no.1 was already dissolved by the court of competent jurisdiction and due to that reason, the learned Magistrate, while taking cognizance, had refused to take cognizance under Section 376 of the Indian Penal code. In some and substance, it was submitted that the prosecution in the present case was initiated maliciously and by way of suppression of fact and on those grounds, the entire prosecution as well as order of cognizance is liable to be set aside.

5. Shri Swapnil Kumar Singh, learned advocate appearing on behalf of opposite party no.2 has vehemently opposed the prayer 5

of the petitioners. It was argued by him that complaint petition itself constitutes commission of offences committed by all the accused persons and the learned Magistrate had conducted thorough enquiry and thereafter, he had passed the order of cognizance. According to learned counsel appearing on behalf of opposite party no.2, there is no defect in the impugned order of cognizance and as such, according to him, the petition is liable to be rejected.

6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has supported the stand taken by Shri Swapnil Kumar Singh, learned counsel appearing on behalf of opposite party no.2.

7. Besides hearing learned counsel for both the parties, I have also perused the materials available on record. On going through the allegation made in the complaint petition itself, this Court is satisfied that the allegation appears to be doubtful. Moreover, in view of annexure-2 i.e. judgment and decree of divorce passed by the competent court in Marriage Case No.4 of 1993, it is 6

evident that marriage of complainant with petitioner no.1 has come to an end on 4.5.1998. After the divorce decree, filing of the present complaint by the complainant makes it clear that the complaint was not filed fairly and honestly, rather it was filed with some oblique motive and maliciously. On the ground of malicious prosecution as well as suppression of fact, the court is satisfied that the order of cognizance is not tenable in the eye of law and it amounts to abuse of the process of the court.

8. Accordingly, the order of cognizance dated 17.4.2003 passed in Complaint Case No.1113 of 1999 by the Sub Divisional Judicial Magistrate, Bhagalpur is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.)

PATNA HIGH COURT

Dated 13.9.2010

N.A.F.R./N.H.

Categories: 498A Judgements

HC: Six month delay in complaint, Accused acquitted of 498A and 307

May 2, 2011 Fighting Legal Terror Leave a comment

Equivalent citations: II (2000) DMC 444

Bench: S Khare

Ramkumar @ Chhota vs State Of Madhya Pradesh on 12/5/2000

JUDGMENT

S.P. Khare, J.

1. Appellant Ramkumar has been convicted under Sections 498A and 307, I.P.C. and sentenced to rigorous imprisonment for two years and three years respectively. He has also been sentenced to pay a fine of Rs. 1,000/- for the first offence and Rs. 5,000/- for the second offence.

2. After hearing the learned Counsel for both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellant for the aforesaid offences is not sustainable. Bundabai (P.W. 2) is wife of the appellant. She has three children from him. The marriage took place about 14 years ago. She has deposed that she was sleeping and at about 1 a.m. the accused poured kerosene on her and set her on fire as he suspected her fidelity. She reported the matter to the police after six months of the incident. The accused was getting her burn injuries treated by a doctor. Ralli (P.W. 3) is her father. He has deposed that his daughter Bundabai (P.W. 2) did not tell him that her husband has caused burn injuries to her. Ganeshia (P.W. 4) is mother of Bundabai (P.W. 2). She has. deposed that Bundabai (P.W. 2) told her that her husband has caused these injuries to her, and this was revealed by her in the presence of her father Ralli (P.W. 3). It is not probable that the father of the victim would not support her testimony. The evidence of both the parents is contradictory. Hira Singh Yadav (P.W. 5) has deposed that a Panchayat was convened in which Bundabai (P.W. 2) disclosed that she herself set on fire out of anger. Though this witness has been declared hostile his version finds support from the testimony of the father of Bundabai. Therefore, a reasonable doubt is created whether the accused caused burn injuries to his wife or she herself poured kerosene of her body and ignited the match stick. The medical evidence of Dr. B.P. Mishra (P.W. 1) shows that this woman had sustained burn injuries as per his report Ex. P-2 but he could not throw light on the point whether the burns were self-inflicted or caused by someone else. Bundabai (P.W. 2) has submitted an application before this Court for permission to compound the offence. As both the offences are non-compoundable the application is rejected. But the charges against the appellant are not proved beyond reasonable doubt and, therefore, he must be acquitted of those charges.

3. The appeal is allowed. The conviction and sentence are set-aside and the appellant is acquitted of the charges under Sections 498A and 307, I.P.C. Fine amount if deposited, be refunded to him.

Categories: 498A Judgements

Permanent Lok Adalat has no jurisdiction to proceed with a criminal case

April 28, 2011 Fighting Legal Terror Leave a comment

DATED: 24.03.2011

CORAM

THE HONOURABLE Mr. JUSTICE T.RAJA

W.P.No.14956 of 2010 and

M.P.No.1 of 2010

Gulzar Begum … Petitioner

Vs.

1.Lok Adalat,

Tamil Nadu State Legal Services Authority,

Chennai 600 104.

2.Syed Akbar Ali … Respondents

PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records of the award dated 21.03.2009 passed by the Lok Adalat on the file of the I Additional Family Court, Chennai, quash the same and to remand back the M.C.No.478 of 2004 to the I Additional Family Court for further and expeditious proceedings.

For Petitioner :Mr.T.Mohan

For Respondent :Mr.A.R.Suresh for R2

ORDER

Aggrieved by the award dated 21.03.2009 passed by the Lok Adalat on the file of the I Additional Family Court, Chennai, the petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking to quash the same with a prayer to remand back the M.C.No.478 of 2004 to the I Additional Family Court for further and expeditious proceedings.

2. Mr.T.Mohan, the learned counsel appearing for the petitioner submitted that the petitioner-Gulzar Begum is the legally wedded wife of the 2nd respondent/Syed Akbar Ali and the marriage between them was solemnized on 18.06.1987. Though they had marital life only for about four years in their matrimonial home at No.18, Yasin Khan Street, Issa Pallavaram, Chennai 600 043, yet during that period, the petitioner/wife was subjected to various acts of violence, torture, abuse and harassment by the 2nd respondent/husband. Further, the learned counsel for the petitioner submitted that the petitioner/wife was deprived of even basic requirements, such as adequate food and on account of such deprivation and physical and mental abuse, her health was got badly deteriorated, which resulted further health complications due to mal-nourishment and abuse. Only after 17 years of marriage, that is, in the year 2004, the petitioner/wife came to light that the 2nd respondent/husband had married another woman by name, A.Mehrunissan and has been living with her at No.34, Thiruvalluvar street, Nehru Nagar, Velachery, chennai. In the year 2004, the 2nd respondent/husband completely deserted the petitioner and moved out of the matrimonial house by living with the said Mehrunissa. The said fact was neither informed nor he obtained the consent from the petitioner before or after marrying the said Mehrunissa and that apart, the 2nd respondent has not even taken any permission from his employer, namely, the Chennai Port Trust, for his second marriage, wherein he was drawing a salary of Rs.30,000/- per month approximately. In view of the hidden fact, the petitioner/wife has filed M.C.No.478 of 2004 before the I Additional Family Court, Chennai, seeking maintenance for a sum of Rs.3000/- per month in the year 2004, as then he was drawing a salary of Rs.15,212/- per month. Further, a criminal case was also filed in C.C.No.24130 of 2004 against the 2nd respondent before the Chief Metropolitan Magistrate, Egmore, Chennai, for commission of offences under Sections 498A, 406 and 494 of IPC and yet another criminal case before the Judicial Magistrate, Tambaram, Chennai, for commission of offences under Sections 147, 448 and 427 of IPC. Surprisingly, when these criminal cases, which are non compoundable in nature, are pending before the competent criminal Court, the I Additional Family Court referred the M.C.No.478 of 2004 for determination and settlement to the Lok Adalat. The Lok Adalat, on receipt of the said case in M.C.No.478 of 2004, after several hearings, passed an award on 21.03.2009 directing the 2nd respondent/husband to pay a sum of Rs.3,000/- per month towards maintenance from 01.04.2009 till the life time of the petitioner/wife without arrears for five years, with a further direction to the 2nd respondent that he will execute a settlement deed in favour of the petitioner/wife by granting her life interest in respect of the house in which the petitioner is residing at No.18, Yasin Khan Street, Issa Pallavaram, Chennai, from the time of their marriage. Besides, the Lok Adalat further held that either parties will withdraw the civil and criminal cases filed by them against each other.

3. At this juncture, the grievance brought forthwith by the learned counsel for the petitioner is that the award passed by the Lok Adalat was not preceded by any proper settlement talks and the terms of the settlements were not explained to the petitioner/wife. Secondly, her erstwhile counsel was also not present during the said proceedings, when the above said award was passed. Thirdly, the petitioner/wife was merely informed that she would get Rs.3,000/- per month immediately and she being in an extremely vulnerable financial position with debts and no means of any financial support, agreed to sign the settlement papers without knowing that this arrangement would continue for her life time and the said arrangement was not even informed to the petitioner. On the other hand, the petitioner under the impression that she could, depending upon her needs, 2nd respondent’s financial position and the impact of inflation, approach the Court for enhancement of maintenance. Though the petitioner’s erstwhile counsel arrived at the Lok Adalat, just prior to the passing of the award, her erstwhile counsel also did not advise the petitioner about the legal implication, as the then counsel was under the impression that the 2nd respondent counsel would have done so.

4. Further grievance of the petitioner, he added, that even this meagre amount of Rs.3,000/- was not even paid by the 2nd respondent/husband, which, ultimately, compelled the petitioner to file Crl.O.P.No.10076 of 2010 before this Court seeking a direction to dispose of the pending M.P.No.427 of 2009 in 478 of 2004 on the file of the I Additional Family Court expeditiously. Noting the indigenous circumstances of the petitioner/wife, this Court has also given a direction, by order dated 30.04.2010, to dispose of the M.P.No.427 of 2009 in 478 of 2004 within a period of three months from the date of receipt of the order.

5. By summing up his case, the learned counsel for the petitioner contended that the Lok Adalat has no jurisdiction to determine any dispute relating to the offences, that are not compoundable under any law, when the petitioner has filed criminal cases against the 2nd respondent under Sections 498A and 147 of IPC. Further, it was contended that the petitioner being an illiterate woman coming from economically a backward family, taking advantage of her illiteracy and without even taking consent to the proceedings, the 2nd respondent obtained an order from the Lok Adalat.

6. In support of his submission, he has also relied upon a judgment of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Ajay Sinha and another (2008 (7) SCC 454) for a proposition that the Permanent Lok Adalat shall not have any jurisdiction in respect of the matter relating to an offence not compoundable under any law.

7. He has relied upon yet another judgment in the case of the Branch Manager, United India Insurance Co. Ltd. Vs. State of Jharkhand and another (IV (2005) ACC 356) to say that if any party wants to challenge the award based on the settlement passed by the Lok Adalat ignoring the pendency of the criminal case of non compoundable offence, the same can be done by filing a petition under Articles 226 or 227 of the Constitution of India, therefore, he contended that the award passed by the Lok Adalat is liable to be set aside.

8. In reply, Mr.A.R.Suresh, the learned counsel appearing for the 2nd respondent, by filing detailed counter, prayed for dismissal of the writ petition, as the writ petition is not maintainable either on facts or in law. Further, he submitted that the petitioner and the 2nd respondent are the husband and wife and after their marriage in the year 1987, they have lived together happily till 2004. In view of the small misunderstanding in the family, the petitioner filed a complaint in the W1 All women Police Station, Thousand Light, Chennai, for the alleged offences under Sections 498(A), 494 of IPC r/w Section 4 of the D.P.Act in Crime No.16/2004. In view of the criminal complaint, the 2nd respondent was taken by the police and kept in illegal custody. Taking advantage of the said criminal case followed by the illegal custody, the petitioner has taken out the possession of the immovable properties situated at No.18, Yasin Khan Street, Pallavaram, chennai, where the petitioner is now residing in one portion and has let out the other portions for a monthly rent of Rs.22,000/-. Besides, the petitioner has taken the possession of the property at No.27, Kalavai Street, Chindadripet, Chennai, and has also leased out the 2nd floor of the building for Rs.2,00,000/- and also rented out the ground floor and first floor each for Rs.10,000/-, totalling Rs.20,000/- and that apart, she has sold the land at Vepampattu, for a valuable sale consideration of Rs.5,00,000/-. Hence, all put together, she is enjoying the rents of Rs.42,000/- per month, apart from the interest for Rs.7,00,000/-. In the meanwhile, the said criminal complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.24130 of 2004 and the same is also pending. That apart, the petitioner has also preferred a case in M.C.No.478 of 2004 before the I Additional Family Court, Chennai, claiming maintenance. Further, a suit in O.S.No.314 of 2005 filed before the learned District Munsiff, Alandur, and a criminal case preferred in Crime No.65 of 2005 before the Pallavaram Police Station are also pending. Apart from the above said cases, she has also preferred a suit through her brother before the learned XVIII Assistant City Civil Judge, Chennai, in O.S.No.5264 of 2004, alleging that the 2nd respondent has taken a loan of Rs.1,00,000/-.

9. Further, in his submission, it was contended that when the proceedings in M.C.No.478 of 2004 have begun, during the course of cross-examination, the petitioner herself agreed for the compromise before the learned Judge and only after obtaining her consent, the above said matter was referred to the Lok Adalat. Before the Lok Adalat, since the petitioner has given her consent to withdraw all the cases instituted against the 2nd respondent, and to deliver the vacant possession of the remaining portions at Pallavaram and also to deliver the vacant possession of the entire property at Chindatheripet, the 2nd respondent agreed to pay the maintenance at Rs.3,000/- per month and further agreed to settle a part of his property situated at Pallavaram, which is presently under her possession and enjoyment. On that basis, recording the said compromise, the Lok Adalat passed an award. Having agreed to withdraw all the cases, including O.S.No.5264 of 2004, obtained a sum of Rs.25,000/- from the 2nd respondent, hence, it was submitted that it is not open to the petitioner to go against the compromise. Further, it was submitted that as against the agreement to withdraw all the cases, the petitioner has failed to comply the Lok Adalat award by reopening the cases in M.C.No.478 of 2004 through M.P.No.427 of 2009 and O.S.No.5264 of 2004 and also C.C.No.24130 of 2004. As a result, the learned Chief Metropolitan Magistrate, Egmore, conducted the trial and finally, finding him innocent, acquitted the 2nd respondent and his mother and sister from the criminal case for the alleged offences under Section 498(A), 494, 406 of IPC and Section 4 of the Dowry Prohibition Act in C.C.No.24130 of 2004 in judgment dated 21.12.2010 and on that basis, he prayed for dismissal of the present writ petition.

10. Heard the learned counsel appearing on either side and perused the materials available on record.

11. First of all, the question needs answer is, whether the award passed by the Lok Adalat is challengable under Article 226 of the Constitution of India. A three Bench judgment of the Apex Court in the case of State of Punjab & Another Vs. Jalour Singh & Others (MANU/SC/7021/08) answers in the affirmative as follows:- It is true that where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise.

12. In the instant case, it is admittedly true that when maintenance proceedings were initiated by the petitioner/wife in M.C.No.478 of 2004 before the I Additional Family Court, Chennai, and considering the prospects of compromise, the matter was referred to the Lok Adalat, whereat, after the initiatives to compromise the dispute, ultimately, consent was given by the petitioner/wife to withdraw all the cases both criminal and civil cases filed against the 2nd respondent/husband and she being in an extremely vulnerable financial position with debts and no means of any financial support, agreed to sign the settlement papers for a monthly maintenance of Rs.3,000/- without knowing that this arrangement would continue till her life time. However, after the agreement to withdraw all the cases, the petitioner reopened all the cases both criminal and civil cases by filing a petition, as a result, the award passed by the Lok Adalat was neither complied with nor obeyed by both parties, that is, the petitioner/wife failed to adhere to the terms of the award by reopening the criminal cases, that are non-compoundable in nature and from the husband’s side, he failed to pay the agreed monthly maintenance to his wife. At this juncture, the grievance of the petitioner, as pleaded by her counsel, is that the Lok Adalat has committed a serious mistake in passing the award directing the petitioner to withdraw the criminal case relating to Penal offences under the IPC and the Dowry Prohibition Act, which are not compoundable under the Criminal Procedure Code. Further, the Lok Adalat has no jurisdiction whatsoever in the matter, when the value of the property exceeds ten lacs rupees.

13. In this context, it is useful to a refer to a judgment of the Apex Court in United India Insurance Co. Ltd.’s case (cited supra), wherein at paragraph 22, it was held thus:-

22. Section 89 of the Code of Civil Procedure inter alia was enacted to promote resolution of disputes through mutual settlement. Chapter VI-A of the Act seeks to achieve a different purpose. It not only speaks of conciliation qua conciliation but conciliation qua determination. Jurisdiction of Permanent Lok Adalat, although is limited but they are of wide amplitude. The two provisos appended to Section 22-C (1) of the Act curtail the jurisdiction of the Permanent Lok Adalat which are as under :- Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:

Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:

Section 22-C delineates the jurisdiction of Permanent Lok Adalat to take cognizance of cases filed before it and the said provision is extracted below:-

“22-C.- Cognizance of cases by Permanent Lok Adalat :-

1. Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute:

Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:

Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:

Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.

(2) After an application is made under sub- section (1) to the Permanent Lok Adalat, no party to that application shall invoke

jurisdiction of any court in the same dispute.

(3) … …. ….

(4) … …. ….

(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub- section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.

(6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.

(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. (8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute.”

From a bare reading of Section 22(C) of the Act, it is manifest that any party to a dispute may, before going to a Court of Law or other Forum, approach the Permanent Lok Adalat for settlement of the dispute. The proviso to this section very clearly provides that the Permanent Lok Adalat shall have no jurisdiction in respect of any matter relating to an offence non-compoundable in nature. It further provides that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lacs of rupees. Admittedly, in this case, a criminal case was filed in C.C.No.24130 of 2004 against the 2nd respondent/husband before the Chief Magistrate, Egmore, Chennai, for commission of offences under Sections 498A, 406 and 494 of IPC and yet another criminal case before the Judicial Magistrate, Tambaram, Chennai, for commission of offences under Sections 147, 448 and 427 of IPC. In spite of that, the Lok Adalat has wrongly determined the issue involving non compoundable offence and erroneously settled the dispute.

14. Further, a mere reading of the above said provisions goes to show that the Permanent Lok Adalat, in terms of Section 22-D of the Act, while conducting conciliation proceedings or deciding a dispute on merits is not bound by the provisions of the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872. Besides, the party approaching the Lok Adalat will enjoy several benefits like exemption from payment of Court fees. Even if court fee is already paid, the entire amount will be refunded if the dispute is settled at Lok Adalat. Secondly, the parties will have the speedy trial of the disputes, for, there is no strict compliance of procedural laws like Civil Procedure Code and Evidence Act, while addressing the claim by the Lok Adalat. Thirdly, the parties to the disputes can directly interact with the Judge through their counsel. Fourthly, the award of the Lok Adalat is binding on the parties and it has got the status of a decree of a Civil Court and it is non-appealable, which gives quietus to the issue. Fifthly, in deciding the disputes, the Lok Adalat is guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice. Sixthly, the jurisdiction of the Civil Court to call in question any award made by the Permanent Lok Adalat is explicitly barred. Seventhly, it has the jurisdiction to transfer any award to a civil court and such civil court is mandated to execute the order as if it were the decree by a civil court. But, if the Lok Adalat, over-stepping its jurisdiction, proceeds to decide any criminal case, which involves offences of non-compoundable nature, undoubtedly, the award passed would suffer from serious illegality. In other words, if any award is passed in an effort to close down any criminal case involving Penal offences, which are not compoundable in nature, such award will be a nullity. The present case being one such instance, the award passed by the Permanent Lok Adalat directing the petitioner/wife to withdraw criminal cases of non-compoundable in nature, the same cannot be considered to be an award in the eye of law.

15. Admittedly, in the instant case, when the parties appeared before the Lok Adalat, both the parties agreed to withdraw civil and criminal cases filed by them against each other and the husband has agreed to pay a maintenance amount of Rs.3,000/- per month from the first week of April’2009 till the life time of the wife, however, later on, both the parties to the award violated the terms by not fulfilling their commitment. Therefore, as the award passed by the Lok Adalat directing the petitioner to withdraw even the criminal cases filed for offences under Sections 498A and 147 of IPC, which are admittedly non-compoundable in nature, as per the judgment of the Apex court in United India Insurance Co. Ltd.’s case (cited supra), wherein it was held that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence of non-compoundable under any law and also the Permanent Lok Adalat shall not have jurisdiction in the matter where the value of the property in dispute exceeds rupees ten lacs, the same is not maintainable

16. Further, it is pertinent to mention that M.Y.Iqbal, C.J., as His Lordship was then sitting in the Bench of the Jharkhand High Court, had an occasion to decide a similar issue in the case of Branch Manager, United India Insurance Co. Ltd. Vs. State of Jharkhand and another (IV (2005) ACC 356) holding that the Permanent Lok Adalat has no jurisdiction to proceed with a criminal case, which involves offences of non-compoundable in nature registered under Section 379 of IPC.

17. After going through the various judgments of the Apex Court and the High Court of Jharkhan as mentioned above, I am of the opinion that the impugned order passed by the Lok Adalat is bad in law and, is liable to be set aside. This writ petition is, therefore, allowed as prayed for and the impugned order passed by the Lok Adalat is set aside. No Costs. M.P.No.1 of 2010 is closed.

rkm

1.Lok Adalat,

Tamil Nadu State Legal Services Authority,

Chennai 600 104

http://indiankanoon.org/doc/1383846/

Categories: 498A Judgements

SC: 498A cannot be compounded even with the permission of the Court

April 26, 2011 Fighting Legal Terror Leave a comment

Bench: A Kabir, M Katju

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1619 OF 2008

@ S.L.P. (Crl.) NO.5265 of 2007

Manoj Sharma ..Appellant Vs.

State & Ors …Respondents J U D G M E N T

ALTAMAS KABIR,J.

1. Leave granted.

2. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the 2

matter between themselves, is the question which arises for decision in this appeal.

3. The identical question fell for the consideration of this Court in the case of B.S. Joshi vs. State of Haryana,[2003 (4) SCC 675] wherein also the question arose as to whether criminal proceedings or a First Information Report or complaint filed under Section 498-A and 406 IPC by the wife could be quashed under Section 482 CrPC on account of the fact that the offences complained of were not compoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State.

4. In B.S. Joshi’s case, this Court drew a distinction between compounding an offence as permitted under Section 320 CrPC and quashing of the complaint or criminal proceedings under Section 482 CrPC as also Article 226 of the

Constitution. Pointing out that the appellant in the said case had not prayed for compounding the offence as the same was not compoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited vs. Special Judicial Magistrate, [1998 (5) SCC 749], that where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were 4

not circumscribed by Section 320 of the Code of Criminal Procedure.

5. While the appellant herein strongly relied on the decision in B.S. Joshi’s case. Mr. B.B. Singh, learned counsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding compounding of offences, and indicating what offences may be compromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshi’s case required a second look. Relying on the decision of this Court in Inspector of Police, CBI vs. Rajagopal, [2002 (9) SCC 533], K.G. Prem Shankar vs. Inspector of Police and Anr. [JT 2002 (7) SC 30] and also Textile Labour Association and Anr. Vs. Official Liquidator and Anr. [JT 2004 (suppl.1) SC 1], Mr. Singh submitted that in B.S. Joshi’s case there was a departure from the view taken in the first of the two aforesaid cases.

6. We have carefully considered the submissions made on behalf of the respective parties and the facts involved in this case, and we are not inclined to accept Mr. Singh’s contention that the decision in B.S. Joshi’s case requires reconsideration, at least not in the facts of this case. What was decided in B.S. Joshi’s case was the power and authority of the High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or complaint whether it be compoundable or not. The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way

limited by the provisions of Section 320 CrPC. 6

We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C. legally and correctly.

7. In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same.

8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but 7

the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the

case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case.

9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility.

10. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997 P.S. Vivek Vihar (East Delhi).

_________________J.

(ALTAMAS KABIR)

New Delhi

Dated:October 16, 2008

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.___________OF 2008

[@ Special Leave Petition(Criminal_ No. 5265 of 2007] Manoj Sharma .. Appellant -versus

State & Others .. Respondents

J U D G M EN T

Markandey Katju, J.

1. I have read the judgment of my learned brother Hon. Kabir, J. and I respectfully agree with his conclusion that the appeal should be allowed and 10

the judgment of the High Court as well as the criminal proceedings pending before the Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar (East Delhi) against the appellant should be quashed.

2. However, I wish to give a separate concurring judgment in view of the importance of the issue involved in this case.

3. The question involved in this case is whether an FIR under Section 420/468/471/34/120-B IPC can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution when the accused and the complainant have compromised and settled the matter between themselves.

4. The allegations in the FIR are as follows: “Statement of Sanjay Pal S/o Mahendra singh Pal R/o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma – Vijay Lakshmi Finance & Investment Company before two years back for a consideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R/o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has not been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the 11

new R.C.. I returned him the old R.C. He suggested me that now the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp nor used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has come to my notice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a notice stating that I will make the payments of the installments in the name of Real Auto Deals but you are not doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 O’clock he came to me in Jhilmil along with an unknown person, I can recognize him if he comes to me, took my said Maruti Van with his help without my consent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in connivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is correct. Sd/- English. Sanjay Pal 31.1.97 Attested Sd/- Snglish Satya Narayan ASI 31.1.97”.

5. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the complainant against financing of the vehicle in different accounts. It is also 12

alleged in the FIR that the appellant sold the vehicle of the complainant to some other party by making forged signature and by playing fraud with him.

6. On the basis of the above FIR charges were framed against the appellant and co-accused Man Mohan Sharma.

7. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been compromised between the complainant and the accused. In that writ petition an affidavit was filed by the complainant stating that in view of the settlement between the parties he is withdrawing the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and a further sum of Rs. 45,000/- would be paid to the co-accused Man Mohan Sharma.

8. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal.

9. It may be mentioned that under Section 320(1) Cr.P.C. certain offences in the IPC can be compounded by the persons mentioned in the 3rd column of the table in that provision. Also, in view of Section 320(2) 13

certain other offences can be compounded with the permission of the Court. However, Section 320 (9) specifically states: “No offence shall be compounded except as provided by this Section”.

10. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120-B IPC (with are mentioned in the FIR in question) cannot even be compounded with the permission of the Court. In fact, Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions mentioned in the FIR in question could not be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC.

11. There are other provisions in the IPC e.g. Section 498A which apparently cannot be compounded even with the permission of the Court in view of Section 320 (9) Cr.P.C.

12. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others vs. State of Haryana 2003(4) SCC 675 [= JT 2003(3) SC 277 = AIR 2003 SC 1386]. In that decision this Court referred to its own earlier decision in Madhu Limaye vs. State of Maharashtra 1977 (4) SCC 551 in which it was held (vide para 8) that the power under Section 482 should not be exercised when there is an express bar in some other provision of the Code. The Court in B.S. Joshi’s case (supra) also referred to the decision in Surendra Nath Mohanty vs. State of Orissa AIR 1999 SC 2181 which held that since the offence under Section 326 IPC is not compoundable the High Court cannot compound the offence.

13. Despite the above decisions this Court in B.S. Joshi’s case (supra) relying on its own decision in State of Karanataka vs. L. Muniswamy 1977 (2) SCC 699 observed that the High Court under Section 482 Cr.P.C. can quash the criminal proceedings if it comes to the conclusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a compromise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the criminal proceedings to continue. They should, therefore, be quashed by exercising power under 15

Section 482 Cr.P.C. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692, G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 for taking the same view.

14. In B.S. Joshi’s case (supra) this Court devised a creative solution to the problem and quashed the proceedings in exercise of its power under Section 482 Cr.P.C.. The said decision was followed by this Court in Nikhil Merchant vs. Central Bureau of Investigation & another JT 2008 (9) SC 192.

15. Shri B.B. Singh, learned counsel for the respondent submitted that the High Court or even this Court would not be justified in giving directions to quash a criminal proceeding in view of the compromise between the parties when the offence has been expressly made non-compoundable by Section 320 Cr.P.C. He urged that the Court cannot ignore any substantive statutory provision dealing with the subject and cannot issue a writ or a direction in violation of the statute.

16. Ordinarily we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasized repeatedly by this Court e.g. in Divisional Manager, Aravali Golf Club & another vs. Chander Hass & 16

another JT 2008(3) SC 221, Government of Andhra Pradesh & others vs. Smt. P. Laxmi Devi JT 2008 (2) SC 639 restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.

17. Since Section 320 Cr.P.C. has clearly stated which offences are compoundable and which are not, the High Court or even this Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has expressly prohibited. Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence. 17

18. However, it has to be pointed out that Section 320 Cr.P.C. cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads: ” 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 under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

19. The words “Nothing in this Code” used in Section 482 is a non obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. The words “or otherwise to secure the ends of justice” in Section 482 implies that to secure the interest of justice sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.P.C.

20. It is true that in certain decisions of this Court it has been observed that the power under Section 482 Cr.P.C. cannot be exercised to do something which is expressly barred under the Code vide Mosst. Simrikhia vs. Dolley Mukherjee AIR 1990 SC 1605 (vide paras 2 & 4), R.P. Kapur vs. State of Punjab AIR 1960 SC 866 (vide para 6), Sooraj Devi vs. Pyare Lal & another AIR 1981 SC 736 (vide para 5) etc. 18

21. However, in my opinion these judgments cannot be read as a Euclid’s formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclid’s theorem vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University 2008(8) JT 621, Bharat Petroleum Corporation Ltd. & another vs. N.R. Vairamani and another AIR 2004 SC 4778. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in B.S. Joshi’s case (supra), which has also been followed in other decisions e.g. Nikhil Merchant’s case (supra). Even in the judgment of this Court in Divisional Manager Aravalli Golf Club (supra) where emphasis has been laid on judicial restraint it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the country or society (vide para 39 of the said judgment). Judicial activism was rightly resorted to by the U.S. Supreme Court in Brown vs. Board of Education 347 U.S. 483, Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord Denning in England in several of his decisions.

22. While in the present case I respectfully agree with my learned brother Hon’ble Kabir J. that the criminal proceedings deserve to be quashed, the 19

question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the basis that the parties have entered into a compromise.

23. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor’s foot. 20

24. I am expressing this opinion because Shri B.B. Singh, learned counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi’s case (supra) should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private individual.

25. With these observations, I respectfully agree with my learned brother Hon’ble Kabir J. that this appeal is to be allowed and the criminal proceedings in question are to be quashed. Appeal allowed. No costs. …………………………..J.

(Markandey Katju)

New Delhi;

16th October, 2008

Categories: 498A Judgements

HC: Sentence of fine less than Rupees fifteen thousand can not be imposed for the offence under section 3 of Dowry Prohibition Act.

April 26, 2011 Fighting Legal Terror Leave a comment

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 44
Crl. Appeal No. 6808of 2008
Omwati & others……………………..Appellants
vs.
State of U.P………………………………………………Respondent
Hon. Shiv Charan,J.
Hon. Vijay Kumar Verma,J.

Learned AGA has filed objection, which be taken on record.
Heard Sri P.N. Mishra, Senior Advocate, and Sri V.M. Zaidi, learned counsel appearing for the appellants and learned AGA for the State on the prayer of bail of the appellants Omwati, Manoj Kumar, Rekha and Haridesh, who have been convicted and sentenced vide judgment and order dated 22.09.2008 passed by Sri Kishore Kumar-1st, the then Additional Sessions Judge Court No. 1 Bijnor in S.T. No. 574 of 2007 (State vs. Vinod Verma & others), under section 498A, 304B IPC and ¾ Dowry Prohibition Act (in short D.P. Act), P.S. Haldaur, District Bijnor. We have also perused the entire material on record.
Learned counsel for the appellants argued that these appellants were convicted by the learned trial court under sections 498A, 304B IPC and section ¾ D.P. Act and they have been sentenced to maximum imprisonment for 7 years, whereas the husband, Vinod Verma has been sentenced to life imprisonment for the offence under section 304B IPC.
Learned counsel further argued that Omwati is the mother-in-law, Manoj is the brother-in-law (jeth), Rekha and Hridesh @ Indresh are sisters-in-law (Nanad) of the deceased. It is also submitted that according to the statements of investigating officers P.W. 5 Shiv Ram Yadav and P.W. 6 Rahul Kumar, accused Vinod Verma, husband of the deceased, was living in separate house, whereas Manoj and mother-in-law of the deceased were living in different houses situated in mohallah Raisan Haldaur and they had nothing to do with the demand of dowry. Learned counsel further argued that other two appellants are the sisters-in-law of the deceased and they were not going to be benefitted from the demand of dowry. It is also argued that there are general allegations for demand of dowry against the appellants. The deceased and her husband were living in a separate house and there might be an altercation in between them, due to which the incident might have taken place. Otherwise, these appellants had nothing to do with the incident. Learned counsel for the appellants further argued that considering the role of these appellants, the learned Sessions Judge convicted them for seven years’ imprisonment only. It is further submitted that these appellants were on bail during trial and they did not misuse the bail.
Learned AGA opposed the prayer of bail of the appellants and argued that marriage of the deceased with Vinod Verma was solemnised on 23rd November 2004, whereas the incident took place on 11th June 2007 after about 2 ½ years of the marriage. The death was unnatural and there was evidence of demand of dowry.
We have considered all the facts and circumstances of the case as well as submissions made by the learned counsel for the parties. These appellants were living separately from the husband and the deceased. Hence they may be admitted to bail.
Let the appellants Omwati, Manoj Kumar, Rekha and Hridesh @ Indresh be released on bail in the above case during pendency of appeal on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of trial court concerned.
Before parting with this order, we would like to point out that surprisingly the learned trial Judge has not imposed proper sentence for the offence punishable under section 3 D. P. Act. All the appellants-accused have been convicted under section 3 D.P. Act also, but sentence of imprisonment of two years only has been awarded on this count, whereas after amendment of D.P. Act vide Amending Act 43 of 1986, minimum sentence under section 3 D.P. Act is imprisonment for the period not less than five years with fine, which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. Although, in view of the Proviso to Section 3 of the Act, the Court may, for adequate and special reasons to be recorded in the judgement, impose sentence of imprisonment for a term of less than five years, but no discretion has been given to the Court to impose fine less than fifteen thousand rupees. The learned Trial Judge has not imposed any fine under section 3 D.P. Act also and without recording any adequate or special reasons sentence of imprisonment less than five years has been awarded. Thus, the sentence imposed by the learned Trial Judge under Section 3 D.P. Act is wholly illegal. No discretion is left to the courts by Legislature in the matter of imposing fine in case of conviction under section 3 D.P. Act and it is mandatory under this section to impose fine also, which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. The Hon’ble Supreme Court in the case of Kripal Singh vs. State of Haryana 2000 (40) ACC 136 has held that where minimum sentence is prescribed in the statute, then neither the Trial Court nor the High Court can bypass the minimum limit prescribed by law. It is most unfortunate that such glaring mistake has been committed by the judicial officer of the rank of Additional District & Sessions Judge.
The Registrar General is directed to send a copy of this order to Sri Kishore Kumar-1st , the then Additional Sessions Judge, Court No. 1 Bijnor for his future guidance.
Dt. 04.02.2009.
v.k. updh

Categories: 498A Judgements

HC: 498A misuse judgement

April 22, 2011 Fighting Legal Terror Leave a comment

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 27th January, 2011

Date of Order: February 14, 2011

+ Crl. MC No. 2462/2010

% 14.02.2011 Nitika Gauba …Petitioner Versus

State & Ors. …Respondents Counsels:

Mr. M.S. Yadav for petitioner.

Mr. Sunil Sharma, APP for State/respondent.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

ORDER

1. This application has been preferred by the petitioner for cancellation of anticipatory bail granted to the Asha Gauba (mother-in-law), Kanika Gauba (nanad) and Shiv Kumar Gauba (Taya) on the ground that the learned ASJ while granting anticipatory bail had not appreciated the facts correctly. The respondent no.2 is the widowed mother in law of complainant, respondent no.3 is unmarried sister in law(husband’s sister) of the complainant and respondent no.4 is the elder brother of deceased husband of respondent no.2 (Taya Sasur).

2. In the complaint, the applicant had made allegations against the husband and these three respondents for harassing her for dowry. The learned ASJ while granting bail to them had considered that mother in law of complainant was a government servant in Ministry of Railways and was aged around 50 years. The respondent no.4 Taya Sasur was aged around 70 years and respondent no.3 was an unmarried sister of respondent Crl.MC 2462/2010 Page 1 Of 3 no.2. The learned ASJ observed that he had perused the police file and without commenting upon the merits or otherwise of the allegations, considered that no useful purpose was likely to be served by directing the investigating officer to arrest these three persons for the purpose of investigation and he therefore granted anticipatory bail to them.

3. In the grounds for cancellation of anticipatory bail, it is stated that the husband of the petitioner played fraud upon the petitioner. While petitioner and husband were living under the same roof, he filed a divorce petition against the petitioner without information of the petitioner and even after filing divorce petition, he continued to maintain physical and sexual relations with her. The respondents no.2, 3 and 4 were having knowledge of this act of the husband of the petitioner. The husband in order to blackmail her and to disrepute her took vulgar snaps of her to force her to withdraw the petition. She also alleged that she was badly beaten up by mother in law, nanad. Even servant of respondent no.2 gave her merciless beatings. Her husband hatched up a criminal conspiracy of criminal assault on her on 25th April 2010 and she had to be taken to DDU Hospital by the police where her MLC was prepared.

4. For cancellation of bail, the court must have strong reasons. In the present case, the bail was granted by the trial court looking into the nature of allegations. In cases of matrimonial discord Section 498A/406 IPC are invariably invoked against every family member of husband, it becomes very difficult for the trial court to assess the truth of the allegations made by the complainant. Normally every complainant ropes in all relatives including the remote relatives living far away from the matrimonial home making stereotyped and similar allegations against everybody. This tendency of roping in every known relative including the minors in offences under Section 498A/406 IPC etc has in fact made these provisions introduced in Indian Penal Code, to prevent cruelty upon women, blunt. The gross misuse of these provisions for roping in every known relatives Crl.MC 2462/2010 Page 2 Of 3 of the husband poses a grave problem for the courts during trial and while deciding bail applications. Only oral statement of complainant and her parents is there in respect of cruelty and dowry demand, and normally there is no agreed list of articles given at the time of marriage Dowry Prohibition Act proved futile to bring to an end to the evil of dowry for this reason. Mere oral allegations of giving huge dowry without substantiating these allegations by bills of purchase of the articles or list prepared at the time of marriage and signed by both the parties cannot be given credence. Even those people, who have meager salaries or are hand to mouth, claim of giving huge amounts at the time of marriage. It is in the interest of both the parties that a list of dowry articles should be prepared by the parties at the time of marriage duly signed by both the parties. Though in this way, the evil of dowry cannot be curbed but it would curb the tendency of making astronomical claims later on just to rope in every member of the family of in laws as a criminal.

5. In the present case, there is no corroboration of the oral allegations of the applicant. I find no reason to cancel the anticipatory bail granted to the respondents no.2 to 4 when there are no allegations of misuse of the bail on their part. The application for cancellation of bail is hereby dismissed.

February 14, 2011 SHIV NARAYAN DHINGRA, J rd

Crl.MC 2462/2010 Page 3 Of 3

Categories: IPC 498A Misuse Judgements

Gujrat HC PIL final order of DASHRATH M DEVDA

April 14, 2011 Fighting Legal Terror Leave a comment

MCA/596/2011 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

MISC.CIVIL APPLICATION – FOR REVIEW No. 596 of 2011

SPECIAL CIVIL APPLICATION No. 14922 of 2010

=========================================

DASHRATH M DEVDA – Applicant(s)

Versus

HON’BLE CHIEF MINISTER

SHRI (GUJARAT) & 2 – Opponent(s)

========================================= Appearance :

PARTY-IN-PERSON for Applicant(s) : 1, None for Opponent(s) : 1 – 3.

=========================================

CORAM :

HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA

and

HONOURABLE MR.JUSTICE K.M.THAKER

Date : 30/03/2011

ORAL ORDER

(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)

The petitioner Dashrath M. Devda has filed an affidavit and sought for unconditional apology for making certain observations before the Court on 25.11.2010 in SCA No. 14922/10. By the said order, the Court having found no case made out in public interest, and having found the case frivolous, imposed a cost of Rs. 1 lakh on the petitioner. Today in the affidavit, he had made the following statement:-

“I respect the whole women fraternity. I adore women’s role as mother, sister, daughter and wife too for the well being of family and society. I only oppose those women who misuse the laws like IPC 498A, Cr.P.C 125, 24 HMA, and Domestic Violence Act, 2005 etc. and take revenge on their husbands and others and just destruct the family structure which in the long run harmful to society.”

In view of such apology sought for, and in absence of any opposition made by the learned Government Pleader, we recall last portion of our order dated 25.11.2010 passed in SCA No. 14922 of 2010, whereby we imposed costs of Rs. 1 lakhs on the petitioner. The petition being frivolous, costs is assessed to Rs. 5,000/- to be paid within three months in favour of Self Employed Women’s Association (SEWA), Ahmedabad in place of Rs. 1 lakh. The said order stands modified to the above extent. MCA stands disposed of.

(S.J. Mukhopadhaya, C.J.)

(K.M.Thaker, J.)

*/Mohandas

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Categories: 498A Judgements, DV Judgements

HC: 498A Quashed against A2 to A5

March 30, 2011 Fighting Legal Terror Leave a comment

IN THE HIGH COURT OF JHARKHAND, RANCHI.

Cr.M.P. No. 1155 of 2010

1.Ajit Kumar Rai

2. Laxmi Prasad Rai

3. Chanchala Devi

4.Mamta Devi

5.Anju Kumari

6.Dhrup Singh @ Dhrup Deo Singh .. Petitioners.

Versus

1. The State of Jharkhand

2.Rekha Devi Opp. Parties.

Coram :- Hon’ble Mr. Justice D.K.Sinha

For the Petitioners :- M/s.Ramesh Kumar Singh Kunal Kishore

Rakesh Kumar Advocates.

For the State :- Mr. Md. Hatim A.P.P. For the O.P.No.2 :- Mr. Kalyan Banerjee Advocate.

3/25.3.2011 The petitioners have invoked the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for quashment of their entire criminal proceeding including the order dated 3.10.2008 by which Sri. A.K. Dubey, the Judicial Magistrate,Ist Class, Dhanbad after enquiry, found a prima facie case under sections 498A and Section 494 of the Indian Penal Code against the petitioner No.1 Ajit Kumar Rai and under section 498A IPC against the remaining petitioners in C.P. Case No. 1477 of 2007, accordingly, summons were directed to be issued against all of them who were later on admitted to anticipatory bail.

2. The prosecution story in short, as per the complaint lodged by the O.P. No.2 Rekha Devi in the court of CJM, Dhanbad on 11.9.2007 was that she was married to the petitioner No.1 Ajit Kumar Rai in the year 2002 in the premises of Deoghar Temple and after marriage she went to her matrimonial home at Maniadhi P.S. Tundi within the district of Dhanbad . She narrated in the complaint that on the eve of marriage, Rs one lakh in cash, gold, furniture and utensils were given to them. She remained peacefully at her matrimonial home for one year but thereafter all the accused persons started perpetrating torture alleging that she could not be able to bear any child in the meantime. She further alleged that her mother-in-law, father-in-law, sister-in-law and husband used to administer two tablets in the morning and evening as a result of which her health deteriorated day by day. She was then taken away by her brother to parental home for her treatment and in the meantime, taking the benefit of her absence, the husband-petitioner No.1 solemnized second marriage with another girl on the instigation of other accused persons to which a panchayati was held and according to the resolution, she was allowed to stay at her matrimonial home but again her misery started and accused persons tried to create such a situation and to put such impression that she would be killed it continued to stay there. She was kept confined in a room without food and inhuman behaviour was extended to her and finally she was driven out by the accused persons by assaulting her. She any how reached her paternal home and narrated the occurrence to her brother. She then went to the Tundi police Station where she was advised to institute complaint case.

3. The learned counsel appearing for the petitioners submitted that taking of cognizance of the offence is barred by jurisdiction. The cause of action arose within the jurisdiction of the Deoghar court but her complaint case was filed before the CJM Dhanbad. Admittedly, petitioner No.1 Ajit Kumar Rai is the husband, whereas the petitioners No.2,3,4 and 5 are the father-in-law, mother-in-law, second wife and sister of the husband of the complainant respectively. It would be relevant to mention from perusal of the complaint petition that the entire allegation was levelled either of perpetrating torture or solemnizing second marriage against the husband but all the members of his family, who were unconcerned with the affairs of the complainant and her husband, have been maliciously impleaded. It would be evident from the statement of the complainant recorded on solemn affirmation by the CJM wherein she narrated that when she visited her parental home to attend the marriage of her brother, her husband solemnized second marriage with another girl Mamta Devi and thereafter she was driven out from her matrimonial home by her husband and she had no where alleged that she was assaulted by any other member/ in-laws of her matrimonial home.

4. Mr.Kalyan Banerjee, the learned counsel appearing on behalf of the O.P. No.2 submitted that the complainant was driven out from her matrimonial home after her husband solemnized second marriage with another girl without seeking decree of divorce and that such second marriage could be possible only with the consent of the other members of his family and therefore they cannot be exonerated from their criminal liability who abetted which led to the complainant to suffer miserable and deserted life. The entire occurrence took place within the jurisdiction of the Dhanbad court except the marriage of the complainant with the petitioner No.1 Ajil Kumar Rai which was solemnized at Deoghar Temple.

5. Heard Mr. Hatim the learned A.P.P. appearing on behalf of the State.

6. Having regard to the facts and circumstances of the case, composite reading of the complaint petition as well as the statement of the complainant recorded on solemn affirmation, I find that the husband-petitioner No.1 was the principal accused who perpetrated torture mentally and physically to her and that he solemnized second marriage with another girl in the life time of the complainant. I further find that though some overtact alleged to have been attributed against the father-in-law, mother-in-law and sister-in-law of the complainant who were the petitioners No. 2,3 and 5 herein but such allegation could not be substantiated in the statement of the complainant on her solemn affirmation and therefore, I find that the facts alleging against all the petitioners in the complaint case could not be substantiated in her statement recorded on solemn affirmation. No overt act has been attributed against the in-laws except the husband and false implication of the in- laws, in the circumstances has been deprecated by various decisions .

7. In the result I find prima facie case against the petitioner No.1 Ajit Kumar Rai to proceed against him for the offence under sections 498A/494 of the Indian Penal Code but for the reasons discussed above I find that it is a fit case for quashment of the criminal proceeding of the other petitioners viz Laxmi Prasad Rai,Chanchala Devi, Mamta Devi,Anju Kumari and Dhrup Singh @ Dhrup Deo Singh in C.P.Case No. 1477 of 2007 pending in the court of Sri.A.K.Dubey, Judicial Magistrate, Ist Class Dhanbad. Accordingly, they are exonerated from their criminal liability. This petition is allowed in part in the manner indicated above. The trial court is directed to proceed against the husband- petitioner No.1 Ajit Kumar Rai in accordance with law.

(D.K.Sinha,J)

Categories: 498A Judgements

498A Misuse judgement : Gujrat HC

February 5, 2011 Fighting Legal Terror Leave a comment

CR.MA/1005/2011 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1005 of 2011

=================================================

SHARDABEN BHIMJIBHAI KALANI & 6 – Applicant(s)

Versus

KUNTAL KALPESHKUMAR KALANI & 1 – Respondent(s)

================================================= Appearance :

MR SP KOTIA for Applicant(s) : 1 – 7. None for Respondent(s) : 1,

PUBLIC PROSECUTOR for Respondent(s) : 2, =================================================

CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE

Date : 04/02/2011

ORAL ORDER

Heard learned advocate for the petitioners.

It is submitted that earlier Criminal Complaint No.936 of 2009 filed under Protection of Women against Domestic Violence Act, 2005 against the husband and father-in-law and mother-in-law came to be withdrawn as per the order dated 03.05.2010. So far as offence registered under Section 498A, 504, 506(2), 497, 114, 323 of the IPC and Sections 3, 7 and 10 of the Dowry Prohibition Act. The said FIR came to be quashed and set aside Nos. 3 to 5 of the said application in Criminal Misc. Application No.13244 of 2010 vide earlier judgment dated 20.12.2010. However, they are again joined as respondent Nos.4, 5 & 6 in the impugned complaint. It is further submitted that the respondent Nos.2, 3, 7 and 8 being elder brother-in-law and sister-in-law and uncle and aunt-in-laws. The above attempt of initiating proceedings by the complainant is nothing but an abuse of process of law and is being undertaken with ulterior motive to see that all in-laws are being harassed. It is, therefore, submitted that keeping in view the decision of the State of Haryana v. Bhajan Lal [1992 SC 604], this compliant deserves to be quashed and set aside.

Having heard learned advocate for the petitioners and on perusal of complaint No.936 of 2009, order passed therein on 03.05.2010, oral judgment dated 20.12.2008 in Criminal Misc. Application No.13244 of 2007 and impugned complaint No.878/2010, prima facie, I am of the opinion that action of respondent No2 deserves closer look at the stage of final hearing.

Hence, Rule.

Ad-interim relief in terms of para 25-B till final disposal of this petition.

Notice as to interim relief returnable on 7^th March, 2011.

Direct service is permitted.

[Anant S. Dave, J.]

Categories: IPC 498A Misuse Judgements

498A Uttar Pradesh(UP) circular

January 5, 2011 Fighting Legal Terror 1 comment

DGP_UP_CIRCULAR_NO_36-2010_498A

RTI_REPLY_DGP_UP_CIRCULAR

Categories: Advisary,Circular,Directions from Court

In matrimonial offence the courts should be liberal, cannot be accepted in generality:498A judgement

January 3, 2011 Fighting Legal Terror 2 comments

Bench: A B Chaudhari

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : N A G P U R.

CRIMINAL WRIT PETITION No. 431 OF 2009

1. Satish @ Rajendra s/o Harbans Tiwari,

aged 42 years.

2. Harbans Tiwari Shivsahay,

aged 72 years, Occ.: Retired.

3. Smt. Shakuntala w/o Harbans Tiwari,

aged 64 years, Occupation : Household.

4. Surendra s/o Harbhans Tiwari,

aged 38 years.

5. Manoj s/o Harbans Tiwari,

aged 36 years.

6. Smt. Gayatri w/o Santosh Tiwari,

Occupation : Household

r/o Near Mental Hospital, Sadar, Nagpur.

Nos. 1 to 5 r/o Dr. Mazumdar Ward,

Hinganghat, District Wardha. … PETITIONERS. VERSUS

1. State of Maharashtra,

Through P .S.O. P.S. Kanhan,

District Nagpur.

2. Smt. Chhaya w/o Satish @ Rajendra Tiwari,

aged 40 years, Occupation : Service,

r/o Hanuman Nagar, Kanhan,

District Nagpur. … RESPONDENTS. ….

Mr. R.M. Patwardhan Advocate for the Petitioners. Mr. D.B. Patel, A.P ., for Respondent no.1.

Mr. J.M. Gandhi Advocate for Respondent no.2.

….

CORAM : A.B. CHAUDHARI, J.

RESERVED ON : 27.04.2010.

PRONOUNCED ON : 7 JUNE, 2010.

J U D G M E N T :

Rule. Heard forthwith finally by consent of learned counsel for rival parties.

2. Being aggrieved by the order dated 14.8.2008 passed by J.M.F.C. Kamptee in Criminal Complaint Case No. 660 of 2007 issuing process in a complaint made under Section 498A of Indian Penal Code against the applicants, the present writ petition has been filed.

3. In support of writ petition, Mr.Patwardhan learned counsel for the petitioner, vehemently argued that the complainant/respondent no.2wife had lodged first information report with the police station against her husband and other petitioners who are the father, mother, brother and brother’s wife and petitioner no.1. Police carried out investigation in Crime No. 196 of 2004 registered for the offence punishable under Section 498A 3

of Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act and after thorough investigation police found that case was made out only against petitioner no.1 and not other family members of the petitioner no.1, i.e. petitioners 2 to 4. and therefore chargesheet was filed only against petitioner no.1. Thereafter the complainant/respondent no.2wife filed private criminal complaint case No. 660 of 2007 under Section 498A read with Section 406 and 506 of Indian Penal Code read with Sections 4 and 6 of Dowry Prohibition Act in the Court of J.M.F.C. Kamptee who issued process under Section 498A of Indian Penal Code against the petitioners. According to Mr.Patwardhan, respondent no.2wife has decided to put the entire family to harassment and that is why she has filed false criminal complaint against all the family members and that is clearly mala fide and abuse of process of law. Inviting my attention to the amended provisions of Section 202 of Code of Criminal Procedure he argued that the said amendment came into force with effect from 23.6.2006 and the complaint case was filed by respondent no.2 on 15.12.2007. He argued that the petitioners reside at Hinganghat, i.e. beyond the territorial jurisdiction of J.M.F.C. Kamptee and therefore the said Court could not have issued process without holding enquiry contemplated by the said amended provision of Code of Criminal Procedure. According to him, the impugned order clearly shows that the 4

trial court did not know about this amended provision and hence the order issuing process is bad in law.

4. He then argued inviting my attention to the dates that the last incident of illtreatment even according to the complainant is alleged to have taken place on 19.7.2004 and it is not in dispute that thereafter there is no single allegation about the illtreatment or the facts constituted any offence. In view of the fact that the trial Court took cognizance of offence under Section 498A of Indian Penal Code only, the limitation of three years provided by law expired on 19.7.2007 as the complaint came to be filed on 15.12.2007 and there was no occasion for the trial Court to exercise power under Section 473 of Code of Criminal Procedure as in the private complaint case filed by respondent no.2 she did not file any application for condonation of delay. The complaint was thus clearly barred by limitation and looking to the intention of respondent no.2, who is working as a teacher in a school as against her husband being unemployed, and in the light of the above facts, the complaint case filed by her is clearly malafide and the order issuing process deserves to be quashed and set aside. He relied on the following decisions (i) 2007 ALL MR (Cri) 213 Sunil s/o Bhaskarrao Kulkarni v. State of Maharashtra

(ii) 2007 ALL MR (Cri) 623 Captain Lance Irwin 5

Lobo v. Ismail D’Souza @ Angelo Ismail D’Souza (iii) AIR 1963 SC 1430 Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose

(iv) AIR 2007 SC 2774 Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan.

5. Per contra, Mr.Gandhi learned counsel for respondent no.2 vehemently opposed the writ petition and argued that police having failed to file the chargesheet against all the petitioners except petitioner no.1, the respondent no.2 was required to approach this Court by filing writ petition and in the said writ petition this Hon’ble Court dismissed her petition giving her liberty to adopt alternate remedy vide order dated 12.4.2006 . According to him, counting the limitation even from 12.4.2006 the complaint would be within limitation. These facts therefore clearly show that respondent no.2 was at no fault and, on the contrary, it was police machinery who did not take action in time against the accused persons. Time was therefore lost in the above process, for which respondent no.2 could not be blamed. According to him, in the matter of offence under Section 498A of Indian Penal Code the Hon’ble Supreme Court has taken a view that the courts should not be too technical in the matter of limitation for taking cognizance of the offences. According to him there was nothing wrong with the trial Court in taking cognizance of 6

the offence even after the period of limitation. He argued that even otherwise offence under Section 498A of Indian Penal Code is a continuing offence and therefore the plea of limitation is not available. The counsel then went on to argue that the averments made in the complaint and the verification statement of the complainant that was recorded on oath is nothing but an enquiry made by the Magistrate and that is reflected in the impugned order and therefore it cannot be said that there was no enquiry made by the trial Court. He relied on the following decisions (i) 1999 Cri.L.J. 3479 Arun Vyas & anr. v. Anita Vyas (ii) 2007(2) Crimes 69 (Bom.) Floyd D. Aguiar v. Bornwyn D. Aguiar

(iii) 1999 Cri.L.J. 5012 Vijaya v. Laxmanrao & anr. (iv) 1994 SCC (Cri.) 1480 Sukhdev Raj v. State of Punjab

6. I have gone through the copy of the complaint as well as impugned order and the provisions of law cited before me so also the various decisions. It would be appropriate to quote Section 202 of Code of Criminal Procedure as amended.

“Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made 7

over to him under section 192, may, if he thinks fit,[and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:”

7. Perusal of the above provision shows that it was brought by amendment looking to the fact that private criminal cases were filed and accused persons residing far away from the territorial jurisdiction of the court were being put to harassment and that is why in order to curb the abuse of process of Court, particularly in relation to accused persons residing outside territorial jurisdiction of the Magistrate, sufficient enquiry to be made by the Magistrate has been provided. In the instant case, respondent no.2 had already set the criminal law in motion by filing F.I.R. in the police station and her F.I.R. was thoroughly investigated. The police found offence committed by petitioner no.1 husband only and not by petitioners 2 to 6 and that is why no chargesheet was filed against petitioners 2 to 6. Nothing prevented respondent no.2 from putting her challenge in the Court of Magistrate to the said final report submitted by 8

police after investigation. When she filed criminal writ petition in this Court she did not pray for any such relief that she should be allowed to object to the final report submitted by police and, on the contrary, she remained absent before this Court when the writ petition was called out for hearing as is clear from the order made by this Court on 12.4.2006 in C.W.P. No. 157 of 2006 which reads thus:

“1. On 5.4.2006 we have given last chance to the counsel for the petitioner. Today also Mr.Prashant Rawate, the learned counsel, submits that the counsel for the petitioner are not available. There are four counsel appearing for the petitioner.

2. We have gone through the petition and find that it would be proper if the petitioner takes recourse to alternative remedy available to her considering the facts and circumstances stated in the petitioner and the delay in approaching this Court.

3. Petition is, therefore, dismissed with liberty to seek alternative remedy.”

8. Respondent no.2 thereafter filed private complaint case on 15.12.2007, cognizance in respect of which was taken on 14.8.2008 only in respect of offence under Section 498A of Indian Penal Code against petitioner no.1. Perusal of the complaint and the verification statement impressed the Magistrate to issue process and the impugned order clearly shows that the Magistrate did not make any application of mind regarding 9

the amended provision in respect of accused persons who reside beyond his territorial jurisdiction. No enquiry was held by him and in a mechanical manner upon perusal of the complaint and verification statement he issued process. I, therefore, hold that the learned Magistrate acted in violation of provision of Section 202 of Code of Criminal Procedure. The submission made by Mr.Gandhi that perusal of the complaint and recording of verification statement on oath is enough to hold that the Magistrate held enquiry. I do not agree. The decisions cited by him relating to unamended provisions of Section 202 of Code of Criminal Procedure and when those decisions were rendered, the question about amended provisions of Section 202 which is under consideration before me now did not fall for consideration.

9. Looking to the object of bringing amendment to the Code, in my opinion, the enquiry contemplated by Section 202 in relation to the accused persons residing outside the territorial jurisdiction has to be a good, satisfactory and sufficient enquiry. By merely going through the averments in the complaint and verification statement it cannot be said that the Magistrate had held enquiry as contemplated by amended provision of Section 202 of the Code. To say so would result into giving no effect to the amendment to Section 202. It is the duty of the Court to give full effect to the provisions of law and respect the wisdom of the 10

Legislature which thought it fit to amend the provisions of Section 202. In the instant case, as found by me, the learned Magistrate did not see the amended provisions of Section 202 but proceeded to issue process in ignorance of the said amended provisions of law. In the light of the above discussion, it would be appropriate to quote relevant portion from para 16 from the decision in 2007 ALL MR (Cri) 623, supra, since the said discussion is made on various supreme court decisions. The relevant portion reads thus :

“… A conjoint reading of Sections 203/204, Cr.P.C. shows that process is to be issued after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202. The recording of the statement on oath of the complainant under Section 200 Cr.P is not an empty .C.

formality. Commonly it is nicknamed as verification. To verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also 11

stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the offence was committed and how the accused persons are responsible therefor. After the statement on oath is recorded, a Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto and find out what offence/s is made out, notwithstanding that the other party at that stage is unrepresented. As observed by the Apex Court time and again, summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. A Magistrate is required to examine the nature of the allegations made in the complaint and the evidence both oral and documentary to see if it is sufficient for the complainant to succeed in bringing charge home to the accused. In other words, the examination of the complainant on oath is for the purpose of ascertaining 12

whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. As observed by the Apex Court in Punjab National Bank & ors. v. Surendra Prasad Sinha (1993 Supp.(1) SCC 499), it is salutary to note that judicial process should not be an instrument of oppression or needless harassment. A Magistrate is required to find out whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued and at that stage the Court has got to be circumspect in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. Vindication of Majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.”

10. For the above reasons, I hold that the learned Magistrate had clearly committed error of law in issuing process to the accused persons beyond his territorial jurisdiction.

11. Examining the second question raised before me regarding limitation, there is no dispute that limitation for taking cognizance of offence under Section 498A of Indian Penal Code is three years. Perusal of the complaint and the verification statement clearly show that the last incident regarding cruelty or demand of dowry as described in para 6 is dated 20.7.2004 and thereafter there is no allegation about any incident of cruelty taking place. The complaint was filed on 15.12.2007. In the case of Japani Sahoo v. Chandra Sekhar Mohantry AIR 2007 SC 2762 the apex court held the relevant date for computing limitation is the date of filing complaint and not the date of taking cognizance of the complaint and therefore the date 15.12.2007 is relevant looking to the date of complaint and the last incident is dated 20.7.2007 and thus it was clearly barred by limitation. The submission made by Mr.Gandhi that police having failed to file chargesheet against all the petitioners, except petitioner no.1husband, it was not the fault of respondent no.2wife and therefore the wife could not be blamed does not appeal to me for reasons more than one. In the first place nothing prevented respondent no.2 from making application for taking cognizance beyond the period of limitation 14

by applying for condonation of delay in filing private complaint. That apart, when the wife filed writ petition she never proosecuted the writ petition seriously which eventually came to be dismissed by this Court. She did not claim the relief to allow her to raise the objection to the final report filed by the police against only petitioner no.1 her husband and not against others. She never challenged the action of police in filing the chargesheet against the petitioner no.1 alone. On the contrary, after the period of limitation she chose to file private complaint as aforesaid and obtained the order of issuance of process against all the petitioners. When petitioner no.1/husband is already being prosecuted, her attempt to prosecute others obviously after the period of limitation does not appear to be bona fide and is nothing but abuse of process of court. Perusal of verification statement shows, particularly para 2 that the word “all” accused persons has been inserted subsequently in different ink and hand writing in Marathi and that appears to have been done with a view to involve all other petitioners 2 to 6. The proposition canvassed by Mr.Gandhi that in case of matrimonial offence the courts should be liberal, cannot be accepted in generality and it is the duty of this Court to interfere and quash the process when there is abuse of process of law. In the facts and circumstances of the present case, I clearly find that respondent no.2 is not bona fidely prosecuting petitioners 2 to 6 in private complaint case. I, 15

therefore, hold that the complaint was clearly barred by limitation and cold not have been entertained by the Magistrate. In the result, I make the following order.

12. Criminal Writ Petition No. 431 of 2009 is allowed. Rule is made absolute in terms of prayer clause (1).

JUDGE

/TA/

Categories: 498A Judgements

Taunting wife for not having child is cruelty under 498A: Convicted: Mumbai HC

January 3, 2011 Fighting Legal Terror Leave a comment

Bench: A Bhangale

1 apeal-524-96.doc

Ladda

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 524 OF 1996

(1) Ramchandra Kundalika Jadhav,

age 33 years, resident of Pusegaon,

Taluka Khatav, District Satara.

(2) Sau. Lata Ramchandra Jadhav,

age about 28 years, resident

of Pusegaon, Tal. Khatav,

District Satara.

(3) Sau.Subhadra Kundalika Jadhav,

age about 55 years, resident of

Pusegaon, tal.Khatav, District Satara.

(4) Shivaji Kundalika Jadhav,

age about 28 years, resident of

Pusegaon, Taluka Khatav,

District Satara. .. .. Appellants. versus

The State of Maharashtra .. .. Respondent. None for the Appellants.

Advocate Mr B.B.Rajput for the Appellants absent. Mr K.V. Saste, Additional Public Prosecutor for the RespondentState. 2 apeal-524-96.doc

CORAM: A. P. BHANGALE, J.

DATE : 29th NOVEMBER , 2010.

ORAL JUDGMENT.:

1. The challenge in this appeal is limited to conviction of the appellants under sections 498A read with section 34 of the Indian Penal Code recorded by learned Additional Sessions Judge, Satara on 17.8.1996 in Sessions Case No. 213/1992 whereby the appellants were acquitted for offence punishable under section 306 read with section 34 of I.P However, they were found guilty for an offence punishable .C.

under section 498A of I.P.C. and they were sentenced to suffer R.I. for six months and to pay fine in the sum of Rs.500/, payable by each of them, and in default to suffer R.I.for one month each, by each of them.

2. Advocate Mr B.B.Rajput who appears on record remained absent at final hearing of this appeal. It is the duty of Advocate accepting criminal brief to attend the case at final hearing. Negligence in this regard may amount to professional misconduct. Relavant 3 apeal-524-96.doc

observation of the Supreme Court in S. J. Chaudhary vs. State (Delhi Administration) AIR 1984 SC 618 wherein it has been observed thus :

“The trial before the Sessions Court must proceed and be dealt with continuously from it’s inception to it’s finish. It will be in the interest of both prosecution and the defence that the trial proceed from day today. Sessions cases must not be tried piecemeal. Once the trial commences, be must except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded”. A criminal appeal is further continuation of trial proceedings and has same urgency to be concluded as early as possible by same analogy. An Advocate accepting criminal appeal must attend it at final hearing. His failure without any pressing or inevitable reason will amount to professional misconduct or breach of his professional duty. It is now well settled that criminal appeal cannot be dismissed on the ground of default in appearance, the court has to go through the record of the case even in the absence of the appellant or their counsel 4 apeal-524-96.doc

and decide the matter on merits [ See Parshuram and Anr Vs State of Orissa, (1994) 4 SCC 664].

3. I have heard the learned A.P . for the RespondentState. I have .P

also perused the appeal memo and the paper book. Learned A.P . took .P

me through the evidence on record. It appears that in all nine witnesses were examined by the prosecution. In order to prove its case pursuant to the charge framed against the appellants under section 306 as also under section 498A read with section 34 of I.P.C.

4. It is the case of the prosecution that on 10.6.1992 at about 9:30 p.m. at village Pusegaon Sau. Madhuri Jadhav committed suicide by consuming poison, instigated by her husband and relative of her husband, as a result of cruelty meted out to her after her marriage on the ground that she is unable to beget any issue calling her often as “Wanzoti” (woman who did not beget any child) and inflicting mental cruelty upon her.

5. An offence was registered at Pusegaon Police Station vide Crime No.39 of 1992. P.S.I. Shri Waykar (PW 9), took over the investigation. After completion of usual investigation, charge sheet came to be submitted in the court of learned Judicial Magistrate, First Class, Vaduj 5 apeal-524-96.doc

who committed the case to the Court of Session at Satara. Learned trial Court framed charge against the accused/appellants for the offences punishable under Sections 498A, 306 read with section 34 of I.P.C. to which the accused/appellants pleaded not guilty and claimed to be tried.

6. I have gone through the evidence of nine witnesses, particularly, evidence of PW 3 Maya, (sister of the deceased), PW 4 Hanumant, (fa ther of the deceased) and PW 5 Amrut (uncle of the deceased). It ap pears that learned trial Judge appreciated their evidence cumulatively and found that through out their evidence there were no contradictions or improvements or material variations. They were close relatives of de ceased Madhuri. During visit of Madhuri at her maternal home for about three weeks, she had complained about mental cruelty inflicted upon her by her husband and relatives of her husband on account the fact that she had no issue from her marriage.It is necessary to consider the relevant penal provision at this stage. Section 498A. Husband or relative of husband of a woman subjecting her to cruelty:

Whoever, being the husband or the relative of the hus band of a woman, subjects such woman cruelty shall 6 apeal-524-96.doc

be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation, For the purposes of this section, “cruelty” means

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. It is relevant to note that it was by the Criminal Law (Second Amendment) Act No. 46 of 1983, which re ceived the President’s assent on 25th December 1983, that Section 498A was inserted in the Penal Code. The Statement of Objects and Reasons of the said amending Act referred to the increasing number of dowry deaths, which was a matter of serious concern. The extent of the evil was commented upon by the Joint Committee of both the Houses to examine the working of the Dowry Prohibition Act, 1961. It was found that cases of cruelty by the husband and relatives of the husband 7 apeal-524-96.doc

which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of cases involving such cruelty. An offence in the nature of abetment to commit suicide may also attract the provi sions of Section 306, l.P which was already on the .C.

statute book. It was, therefore, proposed’ to suitably amend the Indian Penal Code, Code of Criminal Proce dure, 1973 and the Indian Evidence Act, 1872 to effec tively deal with not only the cases of dowry deaths, but also the cases of cruelty to married women by their in laws. It was with a view to achieving this object that, in ter alia, Section 498A was inserted in the Penal Code. The other amendments effected by Criminal Law (Amendment) Act, 1983 were to Sections 174 and 176 of the said Criminal Procedure Code and the insertion of Section 198A in the Cr. P. C. The necessary amend ment in the First Schedule to the Code of Criminal Pro cedure, inserting Section 498A, was also made. As far as the Indian Evidence Act, 1872 is concerned, after Section 113, Section 113A was inserted raising a pre sumption against the husband that he or his relative had abetted the suicide by the married woman. If husband and other close relatives of married woman fequently call her as “Wanzoti” to blame her for her inability to beget any child 8 apeal-524-96.doc

out of marriage it does constitute illtreatment,blame or insult amounting to mental cruelty. It appears that learned trial Judge also examined documentary evidence such as post card (Exh.30) in the light of oral evidence of PW 3 to 5. The trial Court observed thus : “20. To my mind, when Sau. Madhuri, who was an educated, recently married girl, had absolutely no cause to make false allegations against her husband and inlaws and the evidence of all the prosecution witnesses is absolutely uniform on the point of the complaint of ill treatment narrated by the deceased Sau.Madhuri to them, I hold that the prosecution has proved the charge of cruelty beyond reasonable doubt. The accused persons could not bring on record as to what was the enmity between the accused persons and Narayan Appa of Pusegaon that taking advantage of the unnatural death of Sau, Madhuri, Narayan Appa insisted the complainant to lodge a false report against the accused persons.”

7. Learned trial Judge found testimonies of prosecution witnesses worthy of credence to find appellants accused guilty of offence punishable under section 498A of I.P.C. In the course of statement of the appellant recorded under section 313 of Cr.P.C. when questioned about the sentence to be imposed, the appellants prayed for mercy and 9 apeal-524-96.doc

expressed their readiness to pay fine instead of sentence of imprisonment.

8. Having scrutinized the evidence led, it does appear that the learned trial Judge found the appellants guilty of inflicting mental cruelty upon the the deceased, in furtherance of their common intention, on the pretext that the deceased was unable to beget the child, which amounts to an offence punishable under section 498A read with section 34 of I.P.C. After cumulative evaluation of evidence of witnesses examined no fault can be found with the findings recorded by the trial Court regarding guilt of the appellants under section 498A read with section 34 of I.P.C. I do not find any infirmity to set aside the conviction recorded by the trial court.

9. In the result, the appeal being sans merits, it is dismissed. The bail bonds of the appellants stand cancelled. The appellants shall surrender before the trial Court within a period of four weeks in order to undergo remaining sentence imposed against the appellants by the trial Court.

(A. P. BHANGALE, J.)

10 apeal-524-96.doc

Categories: 498A Judgements

2nd wife’s marriage is void if first marriage of husband is valid. Such 2nd wife cannot file 498A

January 3, 2011 Fighting Legal Terror Leave a comment

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

Criminal Petition No.2426 of 2005

26-02-2010

A. Subsh Babu

State of A.P., rep. by Public Prosecutor and another

Counsel for the Petitioner : Sri A. Hanumantha Reddy

Counsel for the 1st Respondent: Public Prosecutor

Counsel for the 2nd respondent: Sri K. Surender

:ORDER:

This petition is filed by the sole accused under Section 482 Cr.P.C., for quashing proceedings in C.C.No.820 of 1996 on the file of Judicial Magistrate of the First Class, (West and South), Ranga Reddy District relating to offences punishable under Sections 494, 495, 420, 417, 498A I.P.C.

Previously, the petitioner filed Criminal PetitionNo.812 of 2001 in this Court for the self same relief and it was withdrawn by the petitioner and the petition was accordingly dismissed by order dated 09.04.2005 by which the petitioner was given liberty to file a fresh petition if he is so advised. After few days thereof, the petitioner came up with the present petition on 09.05.2005 for quashing proceedings in the Criminal case. It is not known for what purpose it was previously withdrawn and on what new grounds the present petition is filed.

It is alleged that the accused cheated the victim woman and her parents by stating that his first wife died after delivering two of his children who are studying by staying in a hostel, even though his first wife by name Sarada is very much alive and living with him at Avanthinagar near Erragadda, and that by making the said false and fraudulent representation, the accused married the victim woman at Yadagirigutta on 09.10.1994, and that the accused collected total amount of Rs.28,000/- from father of the victim woman towards hand loan on the false plea that he was constructing his own house at Borabanda; and that the accused further demanded Rs.20,000/- from him and threatened the victim and her father with dire consequences by showing his licensed revolver and that several times the accused tried to snatch away gold ornaments from the victim’s person by threatening her with dire consequences and that the accused demanded to part with her gold ornaments together with cash of Rs.15,000/- from her parents and that when his additional demand was not fulfilled, the accused threatened the victim and her father by saying that he would wipe out evidence of his marriage with the victim at Yadagirigutta in a Choultry by destroying all photographs and negatives and would walk out of their house. The petitioner/ accused was then working as Sub Inspector of Police in Intelligence Wing of the Police Department at Hyderabad. Truth or otherwise of all allegations in the charge sheet as well as in First Information Report have to be adjudged by the trial Court after both the parties leading their oral and documentary evidence during trial before the lower court.

It is contended by the petitioner’s counsel that Section 198(1) proviso (c ) of Cr.P.C bars taking cognizance of the case relating to offences punishable under Sections 494 and 495 I.P.C. Proviso (c ) to Section 198(1) of Cr.P.C as it is relevant for the purpose of this case reads as follows:-

“Provided that ………. (c ) where the person aggrieved by an offence punishable under (Section 494 or Section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister (or with the leave of the Court, by any other person related to her by blood, marriage or adoption)”.

But, Division Bench of this Court in Mavuri Rani Veerabhadramma v. State of A.P,1 took note of the fact that though offence punishable under Section 494 I.P.C as amended in the state of Andhra Pradesh is made cognizable, there is no corresponding amendment to Section 198 Cr.P.C., and that though investigating agency is entitled to investigate, the Magistrate is precluded from taking cognizance of the said offence on report filed by the police. The Division Bench answered the reference with the following conclusions:-

1. If a complaint is filed under Section 200 of Cr.P.C., for the offence under Section 494 of I.P.C. before a Magistrate, he may take cognizance of the offence or postpone the issue of process either by making enquiry into the case by himself or direct an investigation to be made by the Police Officer or other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground to proceed. If the complaint is referred to the police for investigation and if the police files either the charge-sheet showing that there is prima facie material to proceed against the accused or that there is no case to take cognizance of the offence, the Magistrate is empowered to take cognizance of the offence irrespective of the result of the investigation and it amounts to sufficient compliance of Section 198 of Cr.P.C.

2. The police may also receive a complaint for the offence under Section 494 of I.P.C and register a crime. As per the amendment of the schedule, Section 494 of IPC is made cognizable and the police are empowered to investigate the case. But the Magistrate is precluded from taking cognizance of the offence under Section 198 of Cr.P.C on the charge-sheet filed by the police, when a complaint is not presented before the Magistrate for taking cognizance of the offence.

3. If a complaint for the offence under Section 494 of IPC is lodged along with other cognizable offences before the police and if the police files a charge- sheet, the Court can take cognizance of the offence under Section 494 of IPC also along with other cognizable offences by virtue of Section 155(4) of Cr.P.C.

It is contended that having regard to conclusion No.3 arrived at by the Division Bench, filing of charge sheet by the police and taking cognizance thereof for offence punishable under Sections 494 and 495 I.P.C is in accordance with law. On the other hand, it is contended by the petitioner’s counsel that Mavuri Rani Veerabhadramma (supra) is in conflict with earlier Bench Decision of this Court in S. Radhika Sameena v. Station House Officer,2 and that this decision was not referred in Mavuri Rani Veerabhadramma (1 supra). The question decided by the Division Bench in S. Radhika Sameena (2 supra) is whether a person who married his first wife under the Special Marriage Act, can marry a second wife under Muslim, Law after taking conversion as Muslim attracting liability for offences under Sections 494 and 495 I.P.C. It was answered positively by the Division Bench. There is no contention raised much less decided therein as to whether those offences can be taken cognizance by the Magistrate on report filed by the Police Officer having regard to Andhra Pradesh state amendment making offence punishable under Section 494 I.P.C cognizable and having regard to provision contained under Section 155(2) Cr.P.C. The only discussion in S. Radhika Sameena (2 supra) on Section 198 Cr.P.C is as follows:-

“We have considered the aspect whether straightway we should direct the Mahila Court (XXII Metropolitan Magistrate’s Court, Hyderabad), whose jurisdiction covers matrimonial offences, to take cognizance of the offence under Section 494 IPC on the basis of the reply affidavit filed by the petitioner. But the law, as we comprehend it to be, does not seem to permit such a course of action in view of the specific language of Section 198(1) of the Code of Criminal Procedure under which, the complaint to the Court, competent to take cognizance of offences punishable under Chapter XX of the Indian Penal Code of which Section 494 constitutes a part – should only be by ” some person aggrieved by the offence” and the exceptions to this incorporated in proviso (c) to sub- section (1) exclude the complaint by anyone else including a court, even a higher Court. At any rte, there appears to be no judicial precedent in this regard. We, therefore, hold that it is open to the petitioner to file a complaint before the Mahila Court (XXII Metropolitan Magistrate, Hyderabad.”

In that view of the matter, decision of the Division Bench in Mavuri Rani Veerabhadramma (1 supra) is holding the field with regard to competency of the police to file charge sheet and competency of the Magistrate to take cognizance of offences punishable under Sections 494 and 495 I.P.C on report filed by the police. Therefore, I find that taking cognizance of the present case by the court below for offences punishable under Sections 494 and 495 I.P.C, is in accordance with law. In view of decision of the Division Bench in Mavuri Rani Veerabhadramma (1 supra), previous decision rendered by Single Judge of this Court in D. Vijayalakshmi v. D. Sanjeeva Reddy, 3 is no longer good law.

In V. Revathi v. Union of India,4 the Supreme Court while holding that Section 198(2) Cr.P.C is not discriminatory simply because husband alone was given right to prosecute the adulterer and not wife of the adulterer, the Supreme Court further held that philosophy underlying the scheme of Section 198(2) Cr.P.C and Section 497 I.P.C appears to be promotion of social good will between the husband and the wife by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than dragging each other to criminal court.

Decision rendered by the Supreme Court in G. Narasimhan v. T.V. Chokkappa,5 on Section 198 Cr.P.C in a defamation case, may not be relevant herein. In any event, it was a decision rendered by the Supreme Court prior to the state amendment on Section 494 I.P.C. in the year 1992 making the same as cognizable.

In Manisha Das (DR) v. State of U.P,6 the Supreme Court quashed the complaint filed by father of second wife allegedly on her behalf but against her express desire stated in her sworn statement in view of the proviso (c ) to Section 198 (1) Cr.P.C on the ground that she was a major and that she married on her own free will and she was living happily and peacefully thereafter and that initiation of prosecution by her father in such circumstances was improper. This decision was rendered having regard to special facts prevailing in that case. There was no reference to the A.P. state amendment of the year 1992 in that decision.

Secondly, it is contended by the petitioner’s counsel that aggrieved party i.e., for offences punishable under Sections 494 and 495 I.P.C ie., Bigamy is the first wife and not the second wife/defacto-complainant who is the second wife. Reliance was placed on Smt Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav,7 of the Supreme Court and In re P. Kondiah,8 of the Madras High Court on this aspect. In the former decision, the Supreme Court was considering right of the second wife for maintenance under Section 125 Cr.P.C when the first wife of the husband was living. It has absolutely no relevance herein. In the latter decision of the Madras High Court, it was held that marriage of the accused with the second wife when first wife is living and when marriage with the first wife is subsisting, is ab initio void and that if there is no legal and valid marriage, she cannot be said to be the wife of the accused and that if there is no legal and valid marriage, she cannot be said to be the wife of the accused and hence cannot have any grievance and cannot be a person within the scope of Section 198 Cr.P.C for the purpose of filing complaint under Section 494 I.P.C. If it is a case of offence punishable under Section 494 I.P.C alone, then there is every possibility of applying ratio of the Madras decision. But, in the present case not only Section 494 IPC but also Section 495 IPC is invoked by the prosecution. Section 495 I.P.C deals with a case where offence of Bigamy is committed having concealed from the person and whom the subsequent marriage is contracted, the fact of former marriage. Therefore, Section 495 IPC forbids contracting second marriage by suppression of the first marriage. In such a case, the 2nd wife alone is the aggrieved party. Therefore, it cannot be said that the second wife cannot be termed as aggrieved party for the purpose of Section 198(1) Cr.P.C for maintaining a report/complaint for offences punishable under Sections 494 and 495 I.P.C. In any event, In re P. Kondaiah (8 supra) has no relevance now in the state of Andhra Pradesh, having regard to Mavuri Rani Veerabhadramma (1 supra)

It is thirdly contended by the petitioner’s counsel that marriage of the accused with the victim in this case who is stated to be second wife of the accused, is void ab initio, she cannot claim herself to be a legally wedded wife who can invoke offence punishable under Section 498A IPC. In Shivcharan Lal Verma v. State of M.P,9 it was held by the Supreme Court that when marriage of the accused with the deceased was during subsistence of valid marriage between the accused and his first wife, was null and void, conviction of the accused for offence punishable under Section 498A IPC for harassing the deceased who committed suicide is not sustainable in law.

In Reema Aggarwal v. Anupam,10 the Supreme Court observed:-

“The question as to who would be covered by the expression ‘husband’ for attracting Section 498A does present problems. Etymologically, in terms of the definition of “husband” and “marriage” as given in the various Law Lexicons and dictionaries – the existence of a valid marriage may appear to be a sine quo non for applying a penal provision.”

Admittedly, the victim in this case is second wife of the petitioner who is said to have married her by suppressing the fact of his first wife living. Therefore, prima facie marriage between the petitioner and the second respondent is void and therefore, it cannot be said that the alleged harassment or cruelty meted out by the petitioner towards her attracts penal provision under Section 498A I.P.C.

It is lastly contended by the petitioner’s counsel that there is no property involved in this case and that therefore, penal provisions under Sections 417 and 420 IPC have no application herein. The said contention does not stand to scrutiny because definition of cheating contained under Section 415 IPC is attracted in case of damage or harm to the person in body, mind, reputation or property.

Thus, the petitioner can get limited relief in this petition to the extent of offence punishable under Section 498A IPC only.

In the result, the petition is partly allowed quashing proceedings in C.C.No.820 of 1996 on the file of Judicial Magistrate of the First Class (West and South), Ranga Reddy District in so far as offence punishable under Section 498A IPC alone. The petition is partly dismissed in respect of other offences punishable under Sections 494, 495, 417 and 420 IPC.

?1 2007(1) A.L.D 13 (AP)

2 1997 Criminal Law Journal 1655

3 2000(2) A.L.D (Cri) 200 A.P

4 AIR 1988 Supreme Court 835

5 AIR 1972 Supreme Court 2609

6 2006(3) Supreme Court Cases (Cri) 113

7 AIR 1988 Supreme Court 644

8 A.I.R 1954 Madras 947

9 2002(3) Supreme 168

10 2004(1) Supreme 355

Categories: 498A Judgements

498A quashed against A5 as ingredients of 498A are not attracted:AP HC

January 3, 2011 Fighting Legal Terror Leave a comment

THE HONOURABLE SRI JUSTICE P.S.NARAYANA

Criminal Petition No.5184 of 2007

10-03-2010

Kumari Sri Uma

D/o. A.Venkateswara Rao

Aged about 24 years, Occ:Student

R/o.Flat No.19, Sri Ranga Sai Towers,

Seetharampuram, Vijayawada

The State of A.P. rep by

Public Prosecutor, High Court of A.P.

and another

Counsel for the petitioner: Sri V.Hari Haran, Advocate

Counsel for the Respondents: Addl. Public Prosecutor

Sri Y.Krishna Mohan Rao, Advocate

:ORDER:

1. Heard Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned counsel for the petitioner, learned Additional Public Prosecutor representing the first respondent and Sri Y.Krishna Mohan Rao, learned counsel representing the second respondent.

2. This Criminal Petition is filed under Section 482 of Cr.P.C. (herein referred as ‘the Code’, for the purpose of convenience) praying for quashing of the proceedings in C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections 498-A, 420 read with 109 I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961. Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned counsel for the petitioner would maintain that even if the allegations made out in the charge sheet are to be taken as true and correct, none of the alleged offences would be attracted as it relates to petitioner / Accused No.5 since she is an outsider and not a relative within the meaning of Section 498-A IPC; that when the ingredients of Section 498-A IPC are not attracted as it relates to the petitioner / Accused No.5, the question of trying the petitioner / Accused No.5 under Sections 4 and 6 of the Dowry Prohibition Act, 1961 would not arise; that even the alleged offence under Section 420 IPC is not applicable to the petitioner / Accused No.5 as there is no specific allegation on her to the effect that she had cheated the defacto complainant; that as far as the alleged offence under Section 109 IPC is concerned, the stand taken that the petitioner / Accused No.5 threatened the defacto complainant being false, this alleged offence also is not applicable. Thus, learned counsel would ultimately pray this Court to quash the proceedings as against the petitioner / Accused No.5 and to allow the Criminal Petition. To substantiate his submissions, learned counsel also relied on certain decisions.

3. Learned Additional Public Prosecutor representing the first respondent had taken this Court through the allegations made in the charge sheet and would maintain that it is not that the petitioner / Accused No.5 approached this Court for the first time, but the petitioner, infact, filed Crl.P.No.1371 of 2005 in this Court praying to quash proceedings in FIR No.253 of 2004 of Musheerabad Police Station, Hyderabad, and in the light of the specific observation made that the threats may, prima facie, amount to criminal intimidation, this is not a fit matter to quash the proceedings against the petitioner / Accused No.5.

4. Sri Y.Krishna Mohan Rao, learned counsel representing the second respondent / defacto complainant would maintain that the whole episode of the prosecution revolves around the petitioner / Accused No.5. It may be that the petitioner / Accused No.5 cannot be charged with Section 498 I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961, but, however, as far as other alleged offences are concerned, may be at appropriate stage, she may also be tried along with the other accused. Learned counsel pointed out to the order made in Crl.P.No.1371 of 2005 of this Court in this regard.

5. Heard the learned counsel on record.

6. At the earlier instance, the petitioner herein / Accused No.5 filed Criminal Petition No.1371 of 2005 before this Court and this Court, by order dated 29.08.2006, dismissed the Criminal Petition observing as hereunder. “The present petitioner is A.5 in the crime. The case is registered for the offences punishable under Sections 498A, 420 and 109 I.P.C. and 4 and 6 of the Dowry Prohibition Act. Even if the entire allegations in the complaint are taken as true and correct at this stage, they do not make out a prima facie case for the offence alleged against the petitioner/A.5. Insofar as the offence punishable under Section 109 I.P.C. is concerned, the allegation is that this petitioner threatened the defacto complainant to take divorce from her husband failing which she would kill her. No act has been committed in consequence of that abetment. Therefore, even if the allegations in the complaint are taken as true, no prima facie case for the offence punishable under Section 109 I.P.C. is made against the present petitioner. However, there was a threat given by the present petitioner to the defacto complainant, which prima facie amounts to criminal intimidation. Under Section 503 I.P.C., whoever threatens another with injury to his person, reputation or property is said to have committed criminal intimidation. Therefore, there are no grounds to quash the proceedings. It is for the police to take appropriate decision at the time of filing of the charge sheet after completion of investigation, on the prima facie offence alleged to have been committed by the petitioner.

With the above observations, the Criminal Petition is dismissed.”

7. The brief facts of the case are as follows:-

The respondent No.2 – defacto complainant married A-1 on 28.11.2003 by paying Rs.12,00,000/- as dowry, as demanded by A-1 and his brother A-2; that 3 days after the marriage, her husband – A-1 informed that he is not interested in the defacto complainant and he had a pre-marital affair with petitioner whom he wanted to marry but his brother and sister-in-law did not permit the same as petitioner belongs to a different caste; that subsequently, when she informed the same to A-2 to A-4, they took it lightly, demanded and harassed her for additional dowry; that the petitioner herein threatened the defacto complainant over phone to leave A-1 or else she will be killed. Finally, that A-1 to A-4, by concealing the pre-marital affair of A-1 with A-5, cheated the defacto complainant by performing his marriage with the defacto complainant.

8. It is also stated that the petitioner went to Chennai to pursue her studies in MCA and was staying at her elder sister’s house. A-1 pursued his MBA at Chennai, from Anna University and being neighbours, the petitioner was friendly with A-1. In reply to the allegations, the petitioner denies that the same is false and invented for the purpose of the complaint and to harass her. The petitioner is a third party to all the transactions that took place between the defacto complainant and her husband and his other relatives. The petitioner, during that time, was in Chennai and is no way concerned with the said state of affairs between the defacto complainant and her husband. The petitioner humbly submits that the said allegations against her in the charge sheet are false and do not constitute any offence. The defacto complainant and her family members malafidely filed the criminal case against petitioner / A-5 to harass her.

9. It is also stated that after lodging complaint in crime No.253 dated 16.07.2004 by the defacto complainant, the petitioner filed Crl.P.No.1371 of 2005 before this Hon’ble Court seeking to quash of FIR and this Hon’ble Court rightly pointed out that even if the entire allegations in the complaint are taken to be true and correct do not make out a prima facie case and while disposing the said criminal petition, it was left open to the police to investigate the matter further and file charge sheet in the case. It is humbly submitted that even as per the allegations in the charge sheet, no offence is made out against the petitioner nor the petitioner was charged with any offence and the continuation of the criminal proceedings against this petitioner is unwarranted, abuse of the process of law and hence, the same needs to be quashed. It is further submitted that now marriage of the petitioner is fixed and continuation of the above criminal proceedings, without making out any offence against the petitioner, will cause severe loss and hardship to the petitioner.

10. In such a situation, the petitioner / Accused No.5 approached this Court by filing the present Criminal Petition, under Section 482 of the Code.

11. Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned counsel for the petitioner, placed strong reliance on para 6 of the decision reported in Sia Ram and another Vs. State of U.P.1, wherein, it was observed as follows.

The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention, is whether the only interference which arises from the fact that Violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar singh, Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing whom “Intentionally aids, by any act or illegal omission, the doing of that thing”. Explanation 2 to the section says that:

“Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

Thus, in order to constitute abetment, the abettor must be shown to have “intentionally” aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with the intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentionally aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.

12. Learned counsel also placed reliance on para 7 of the decision reported in Suram Kiran Kumar Reddy and others Vs. State of A.P. and another2, wherein, it was observed as follows.

The other offences alleged against the petitioners are under Section 417 and 420 read with section 109 IPC. Under Sec.109 IPC, abettor is liable to the same punishment as that which may be inflicted on the principal offender if (a) the act of the offender is committed in consequence of the abetment and (b) no express provision is made in the IPC for punishment of such abetment. Obviously, prosecution is taking the aid of Section 109 IPC to rope in petitioners 2 and 4 for the offences alleged against the 1st petitioner by the 2nd respondent. As stated earlier, no offence can be said to have been committed by 1st petitioner under Section 493 and 376 IPC. So petitioners 2 to 4 also cannot be said to have abetted under Sections 493 and 376 IPC.

13. Learned counsel further relied on Male Ramnadham and another Vs. State of A.P.3, wherein, it was observed as under.

The FIR does not disclose the necessary ingredients of abetment like ‘instigation’ or ‘conspiracy’, or ‘active support’ by the petitioners in B.Saroja (A-1) preparing illicit arrack, because mere sale of goods across the counter cannot be said to be ‘instigation’, or ‘conspiracy’ or ‘active support’. So, even if all the allegations in the FIR are taken to be true, petitioners cannot be said to have committed an offence under Section 34 of the Excise Act or abetment of such offence.

14. The petitioner is an outsider to the family of the defacto complainant. No doubt, as there was an allegation that illicit intimacy existed between the petitioner / A-1 and Accused No.5, offences relating to cheating and abetment also had been attributed. It appears that certain threats also had been made. The truth or otherwise of all these allegations cannot be gone into at this stage. There cannot be any doubt or controversy that the ingredients of Section 498A IPC are not attracted so far it relates to the petitioner / Accused No.5. It is needless to say that when the ingredients of Section 498-A IPC are not attracted, Sections 4 and 6 of the Dowry Prohibition Act, 1961, also are not applicable. Likewise, the alleged offence of cheating under Section 420 IPC and abetment under Section 109 IPC are also not applicable.

15. Hence, it is made clear that the petitioner / Accused No.5 cannot be charged with any of the alleged offences specified supra and all such offences are are liable to be quashed.

16. Accordingly, the proceedings against the petitioner / Accused No.5 in C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad alone are quashed relating to offences under Sections 498A, 420 read with 109 IPC and Sections 4 and 6 of the Dowry Prohibition Act, 1961.

17. However, keeping in view the prima facie evidence relating to the offence of criminal intimidation against the petitioner and also keeping in view the observations made by this Court in criminal petition No.1371 of 2005, this Court is not inclined to quash the whole proceedings in C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, in toto, leaving it open to the learned Magistrate to consider framing of charge relating to criminal intimidation in the light of the material available on record.

18. In the result, the Criminal Petition is partly allowed to the extent indicated above.

?1 AIR 1975 Supreme Court 175

2 2002 (6) ALT 565

3 2003 (1) ALT (Crl.) 95 (A.P.)

Categories: 498A Judgements

Significant omission of witness statement recorded under Section 161 of the Cr.P.C amount to a contradiction : SC sets free accused in 498A

December 19, 2010 Fighting Legal Terror Leave a comment

Bench: H S Bedi, C K Prasad

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.184 of 2006

Subhash …………..Appellant Vs.

State of Haryana ……..Respondent JUDGMENT

HARJIT SINGH BEDI,J.

This appeal arises out of the following facts :

1. The deceased Anuradha, and the appellant Subhash, a resident of Mahendargarh in the State of Haryana, were married at Ganga Nagar in the State of Rajasthan on the 1st February 1984. At the time of the marriage, Kishori Lal PW-2 the father of the bride, a retired Sub-Inspector of the Rajasthan Police, spent a large amount of money and also provided appropriate dowry articles to her. It appears, however, that the accused i.e. the husband Subhash, his father Siri Ram, his brothers Sudesh and Sukesh, and Kusum, his sister were dissatisfied with the dowry articles, 2

and Subhash made an independent demand for a scooter. Anuradha upset with her husband and in-laws, returned to her parents home but returned to Mahendargarh after staying at Ganga Nagar for a day. Rajinder Gaur PW-10 her brother, and his wife also visited Mahendargarh after about 5 or 7 days and the accused at this stage raised a demand for a refrigerator, a cooler and a colour TV. About a month thereafter, Kishori Lal PW also visited Anuradha’s home at Mahendargarh and the demand for the aforesaid articles was reiterated. Anuradha also complained to her father that she was being mal-treated on account of the non-satisfaction of the demands. Kishori Lal, accordingly, brought Anuradha back to Ganga Nagar but a month thereafter Subhash came to Ganga Nagar and this time asked Kishori Lal to arrange for a sum of Rs.50,000/- as he needed the money to invest in a business. In November 1984, Kishori Lal and his wife Saraswati Devi PW-9 visited Mahendargarh on which the demand for Rs.50,000/- was repeated. Kishori Lal, however, expressed his inability to meet the demand. Anuradha again complained to her parents that she was being 3

repeatedly harassed by the accused. On the 8th of August 1985 a daughter was born to Subhash and Anuradha on which Siri Ram appellant addressed a letter to Kishori Lal wherein he made a demand for several articles including 21 sarees, some articles of jewellery and other garments to be presented as per custom on the birth of a child. Owing to his illness Kishori Lal could not go to Mahendargarh but Saraswati Devi PW went to that place and presented several articles such as sarees and ornaments worth Rs.10,000/-. The accused, however, were completely dissatisfied with the gifts and expressed their unhappiness in no uncertain terms. As per the prosecution story, a letter Ex.PF dated 26th of August 1985 was addressed by Siri Ram to Kishori Lal in which the former complained that the gifts sent at the time of birth of the child were not in accordance with the status of the family. It appears that at 2.10 a.m. on the night intervening 26th and 27th October 1985 Anuradha was removed to the Civil Hospital, Mahendargarh with severe burn injuries. Prior to this, however, Subhash had approached Udai Singh PW-8, a car driver of Mahendargarh at about 1 a.m. seeking his 4

assistance in shifting Anuradha to Delhi on account of her burn injuries. Udai Singh, accompanied by Subhash, accordingly reached the latter’s house, just as Anuradha was being shifted to the Civil Hospital, Mahendargarh in a cycle rickshaw by the other accused on which Udai Singh asked Subhash as to what had happened. Anuradha was thereupon taken to the Civil Hospital, Mahendargarh in the car of Udai Singh. A bed-head ticket Ex.PA was accordingly prepared by Dr. Janak Raj Singal PW-10, Medical Officer Incharge of the Civil Hospital, who found 70% burns on her face, arms, neck, chest, abdomen and thighs. He also addressed a communication to the police on which ASI Amir Singh PW-16 of Police Station Mahendargarh reached the hospital but the Doctor opined that Anuradha was unfit to make a statement. The ASI then recorded the statement Ex.PGG of Subhash, who too was admitted in the hospital with burn injuries, in which he attributed the injuries to an accident and sustained while she was heating milk for the baby girl on a kerosene stove. Dr. Janak Raj PW also advised Anuradha’s attendants that she be shifted to Safdarjung Hospital, New Delhi on account of 5

her serious condition. She was, accordingly, moved to Safdarjung Hospital and medically examined by Dr. M.Y. Sharif. On getting information that Anuradha was in the Safdarjung Hospital, her brother Rajinder Gaur PW, who was a resident of Delhi, also rushed to the hospital at about 10.30 a.m. on 27th October 1985 and questioned Siri Ram, Sukesh and Sudesh as to what had transpired but they failed to give a satisfactory reply. He then went inside the hospital to meet his sister who informed him that she had been treated with cruelty by all the accused and also starved for 7 days. She further told him that her thumb impression had been obtained on some papers by some police officials who had been brought to the hospital by the accused. Rajinder Gaur thereupon requested the doctor on duty to make arrangements for the recording of Anuradha’s statement by a Magistrate. A Magistrate came to the hospital at about 4.00 p.m. on the 27th October 1985 but could not record her statement as she was found to be unconscious. It is at this stage that Rajinder Gaur lodged a report at Police Station Vinay Nagar, New Delhi on the evening of 27th October 1985 and also informed the SHO, 6

Mahendargarh about the admission of his sister in the Safderjung hospital. ASI Chander Bhan also reached the Safderjung hospital and recorded her statement on the 27th October 1985, which was attested by the doctor, to the effect that the burn injuries had been sustained by her in an accident. On the 28th October 1985, Rajinder Gaur allegedly approached the Vinay Nagar Police Station for recording of Anuradha’s statement but no action was taken on the request. He thereafter approached Ravi Malik, PW-13 Sub Divisional Magistrate at his residence in Panchsheel Enclave and moved an application before him requesting him to record Anuradha’s statement in the hospital. PW-13 then went to the hospital and recorded her statement Ex. PCC at 9.00 a.m. on the 28th October 1985 after Anuradha had been certified by the doctor to be in a fit condition to make a statement. In this statement, she blamed the accused of having harassed her which had driven her to make an attempt at suicide. Kishori Lal accompanied his wife Saraswati Devi also went to the hospital at 10.30 a.m. on the 28th October 1985 and she again told him about the torment she had undergone at the hands of the 7

accused. On the same day, ASI Amir Singh of Police Station Mahendargarh also came to the Safdarjung Hospital on which a complaint Ex.PV was presented to him by Rajinder Gaur and on its basis, an FIR was registered. The investigation was, thereafter, set in motion. Anuradha subsequently died in the Safdarjung Hospital. Her dead body was subjected to a post- mortem examination at the All India Institute of Medical Sciences, New Delhi on the 1st November 1985 at 10.30 a.m. and several burn injuries were detected thereon, though there was no smell of kerosene oil and the cause of death was opined as shock and septicemia as a result of burn injuries. During the course of the investigation, the police also moved an application before Shri Balbir Singh, Judicial Magistrate, 1st Class, Mahendargarh on 23rd October 1985 (after the arrest of Siri Ram) for obtaining his specimen signatures for comparison with the letters Ex.PE and Ex.PF but he declined to furnish the same.

2. The trial court relying on the evidence of Kishori Lal PW- 2, Udai Singh PW-8, Saraswati Devi PW-9, Rajinder Gaur PW- 10, Dr. Devansh Sharma PW-11, Dr. R.P.Narayan PW-12, Ravi 8

Malik PW-13, Dr. Chander Kant PW-14 and ASI Amrik Singh PW-16 and the oral dying declarations made to Rajinder Gaur, Kishori Lal, Saraswati Devi and the dying declaration Ex.PCC made to Ravi Malik, SDM held that the case against Siri Ram and Subhash was proved beyond doubt, but as the dying declaration Ex.PCC did not inculpate the other accused, no case was made out against there. It is also held that the Letters DH, DH/1, DH/2, DH/3 allegedly written by Anuradha, even if proved, which showed the relationship between the couple and her in laws as being cordial, would not absolve Siri Ram and Subhash of their misconduct. The trial court, accordingly, in its judgment dated 28th November 1986, convicted Siri Ram and Subhash for offences punishable under Sections 306 and 498A of the IPC and by order dated 29th November 1986 sentenced them to undergo RI for 5 years and a fine of Rs.4,000/- and in default to undergo further RI for 6 months each under Section 306 of the IPC, and RI for one year and a fine of Rs.1000/- in default to undergo further RI for 2 months each under Section 498A; both the substantive sentences to run concurrently. An appeal was, 9

thereafter, taken to the Punjab and Haryana High Court by Subhash and Siri Ram. The High Court in its judgment dated 2nd August 2005, has placed almost complete reliance on Ex. PCC and has held that this statement was sufficient to prove the case against the accused. Reliance has also been placed to a very limited extent on the statements of Kishori Lal, Saraswati Devi and Rajinder Gaur, PWs. The Court has also observed that as the accused had been charged under Sections 306 and 498A of the IPC, a presumption under Section 113A of the Evidence Act was available to the prosecution. The High Court, accordingly, upheld the conviction but reduced the sentence of Siri Ram to that already undergone as he was about 75 years of age as on the date of the judgment and with this modification in the sentence, dismissed the appeal. This matter is before us after the grant of special leave.

3. As already indicated above, the primary evidence against the appellant is the dying declaration Ex.PCC recorded by PW13 Ravi Malik, SDM. The trial court and the High Court have held that this was the pivot of the prosecution story. It 10

appears that information about Anuradha’s admission in the Safdarjung Hospital was received in the Vinay Nagar Police Station at about 3.05 p.m. on 27th October 1985 but her statement could not be recorded as she was unconscious at that time. Further efforts had been made by the Sub- Inspector to record her statement at 8.30 p.m. which again could not be recorded for the same reason. It appears that thereafter Anuradha’s statement had been recorded by the Doctor and attested by ASI Chander Bhan on the 27th October 1985 in which she stated that she had been burnt in an accident. It is evident, therefore, that repeated efforts had been made by the investigating agency to record her dying declaration, but there was some delay because of the incapacity of the victim. The dying declaration Ex.PCC was recorded by Ravi Malik PW on the 28th October 1985 after an application Ex.PBB had been moved before him by Rajinder Gaur, PW. Ravi Malik, when cross-examined in Court, stated that on the 28th October 1985 he had been present at his residence in Panchsheel Enclave, New Delhi when the application Ex.PBB had been presented to him on which he 11

had gone to the Safdarjung Hospital and recorded the dying declaration after the doctor had certified Anuradha’s fitness to make a statement. He also stated that a copy of the statement had been handed over to the police on the 30th of October 1985. When cross-examined, however, he admitted that Ex.PBB had not been produced by him before the investigating agency and he was tendering this document for the first time during his evidence in Court and that there was no noting on Ex.PCC that he had gone to the hospital on the application Ex.PBB or that a copy of the dying declaration had been handed over the police on the 30th October 1985. He also admitted that he had not obtained any opinion in writing from the doctor about Anuradha’s fitness to make a statement. He further admitted that the area of Safdarjung Hospital did not fall within his jurisdiction but clarified that it was the practice that a dying declaration could be recorded by any Magistrate when the Magistrate of the area concerned was not available but clarified that he had made no efforts to find out as to whether the Magistrate of the area in which Safdarjung Hospital lay was available or not. He also admitted that he 12

had not been approached by the police or the medical authorities for recording the dying declaration, If any doubt is left with regard to the sanctity of this dying declaration, it stands dispelled by the testimony of Dr. Devansh Sharma (who had made the endorsement Ex.PZ. that Anuradha was fit to make a statement) when he deposed that the endorsement had been taken from him after the statement of Anuradha had been recorded. This statement has to be read with the admission made by PW Ravi Malik that he had not taken any endorsement before actually recording the statement. We are, therefore, of the opinion that the so-called “pivot” that both the courts below have found in the dying declaration Ex.PCC is, in fact, non-existent. The very conduct of this witness and the manner in which he had recorded the dying declaration, as already indicated above, raises a deep suspicion about its veracity.

4. We have also very carefully gone through the statements of the two primary witnesses PW-2 Kishori Lal, the father of the victim and PW-10 Rajinder Gaur, her brother. A bare reading of their statements shows that the entire story with 13

regard to the factum of the cruelty, the manner in which the deceased was dealt with, and the behaviour of the accused towards her had been built up during the evidence recorded in Court. We may refer to one significant fact which has been omitted in the statements under Section 161, Cr.P.C. This is with regard to the oral dying declarations made to them by the deceased and when confronted could give no explanation for the omission. In addition, it is clear that the dying declaration recorded Ex.PCC had been maneuvered at the instance of Rajinder Gaur PW. As already indicated above, the trial court as well as the High Court have not placed much reliance on the statements of these two witnesses. We are of the opinion that their statements, in fact, inspire no confidence. We may also refer to the Explanation to Section 162 of the Cr.P.C. The same is reproduced hereinbelow:

Explanation. – An omission to state a fact

or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and

otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the

particular context shall be a question of fact.” 14

5. A bare reading of this Explanation would reveal that if a significant omission is made in the statement of a witness recorded under Section 161 of the Cr.P.C., the same may amount to a contradiction and that whether it so amounts is a question of fact in each case. It is clear to us that the ocular evidence with regard to the events preceding the actual incident rested exclusively on the statements of PWs.2 and 10. The glaring omissions made by them are writ large in the cross-examination. We are, therefore, of the opinion that the present case is one of no evidence and the possibility that the deceased had been burnt in an accident cannot be ruled out. We, accordingly, allow the appeal, set aside the conviction of the appellant and order his acquittal.

……………………………………J. (Harjit Singh Bedi)

………………………………………J. (Chandramauli Kr. Prasad)

New Delhi,

Dated: December 16, 2010

http://indiankanoon.org/doc/1087680/

Categories: 498A Judgements

IPC 498A Judgements

December 17, 2010 Fighting Legal Terror 2 comments

Courtesy http://www.advocatesc.com/2010/08/ipc-498a-judgments/

IPC 498a JUDGMENTS

(Case/Appeal No: Criminal Appeal No. 1386 of 1999)
Pawan Kumar Appellant Vs. State of Haryana Respondent, decided on 3/13/2001.
Name of the Judge: Hon’ble Mr. Justice Umesh C. Banerjee and Hon’ble Mr. Justice K.G. Balakrishnan.
Subject Index: Indian Penal Code — Sections 306 and 498a – conviction and sentence under — Evidence Act — Section 113(A) — dowry death — circumstances pointedly point out the accused as a guilty person as abettors — order of conviction cannot be interfered with — appeal dismissed.

(Case/Appeal No: Criminal Appeal No.319 of 2001)
Mohan Baitha and Ors. Appellants Vs. Mohan Baitha and Ors. Appellants, decided on 3/21/2001.
Name of the Judge: Hon’ble Mr. Justice G.B. Pattanaik and Hon’ble Mr. Justice B.N. Agrawal..
Subject Index: Indian Penal Code — Sections 304B, 498a, 120B and 406 — offences under — Code of Criminal Procedure — Section 220 — accused contended that since the incident constituting the offence punishable under Section 304B IPC had taken place at Jahanaganj in the State of U.P., the Court at Bhagalpur lacks territorial jurisdiction to try the same — High Court relying on Section 220, Cr.P.C. came to the conclusion that there appears to exist a continuity of action to attract sub-section (1) of section 220, therefore, it cannot be said that the jurisdiction of the Magistrate at Bhagalpur is ousted to try the offence under Section 304B — held no infirmity in the conclusion of the High Court — appeal dismissed.

(Case/Appeal No: Criminal Appeal No.749 of 2000)
Uka Ram Appellant Vs. State of Rajasthan Respondent, decided on 4/10/2001.
Name of the Judge: Hon’ble Mr. Justice K.T. Thomas, Hon’ble Mr. Justice R.P. Sethi and Hon’ble Mr. Justice S.N. Phukan.
Subject Index: Dying declaration — Code of Criminal Procedure — Section 161 — Indian Evidence Act — Section 32 — Indian Penal Code — Sections 302, 326 and 498a – conviction and sentence under — dying declaration — sole evidence upon which conviction is based — held despite knowing the fact that the deceased was a mental patient, the investigating agency did not take any precaution to ensure that the incident was suicidal or homicidal — the probability of the deceased committing suicide has not been eliminated; there also exist a doubt about the mental condition of the deceased at the time she made dying declaration — fit case in which the appellant is entitled to the benefit of doubt.

(Case/Appeal No: Criminal Appeal No. 887 of 1998)
Arvind Singh Appellant Vs. State of Bihar Respondent, decided on 4/26/2001.
Name of the Judge: Hon’ble Mr. Justice Umesh C. Banerjee and Hon’ble Mr. Justice K.G. Balakrishnan.
Subject Index: Dying Declaration — Indian Penal Code — Sections 302, 304B, 498a/34 r/w 120B — conviction and sentence under — High Court converted husband’s charge of 304B to 302 — challenged — conviction based on uncorroborated testimony of the mother to whom the deceased was supposed to have made the declaration — held not worth acceptance — High Court fell in error in such acceptance — evidence is not sufficient enough to reach an irresistible conclusion of the involvement of the husband as the murderer or even being charged with an offence under Section 304B — conviction and sentence set aside — appeal allowed — appellant acquitted.

(Case/Appeal No: Criminal Appeal No. 1319 of 1998 (with Criminal Appeal No. 123 of 1999))
Satvir Singh and others Appellants with Tejinder Pal Kaur Appellant Vs. State of Punjab and another Respondents, decided on 9/27/2001.
Name of the Judge: Hon’ble Mr. Justice K.T. Thomas and Hon’ble Mr. Justice S.N. Variava.
Subject Index: Indian Penal Code — Sections 306 r/w Sections 116, 498a and 511 r/w Section 304B — Dowry Prohibition Act, 1961 — section 2 — dowry — definition of — dearth of evidence to show that the victim was subjected to cruelty or harassment connected with the demand for dowry, soon before the attempt to commit suicide by running in front of a running train — conviction under section 498a upheld.

(Case/Appeal No: Criminal Appeal No. 1 of 1995)
Gananath Pattnaik Appellant Vs. State of Orissa Respondent, decided on 2/6/2002.
Name of the Judge: Hon’ble Mr. Justice R.P. Sethi and Hon’ble Mr. Justice Bisheshwar Prasad Singh.
Subject Index: Indian Penal Code — Section 498a – conviction and sentence under — even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case — held the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498a of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt — appeal allowed.

(Case/Appeal No: Criminal Appeal No. 463 of 1996)
Girdhar Shankar Tawade Appellant Vs. State of Maharashtra Respondent, decided on 4/24/2002.
Name of the Judge: Hon’ble Mr. Justice Umesh C. Banerjee and Hon’ble Mr. Justice Y.K. Sabharwal.
Subject Index: Indian Penal Code — Sections 498a and 306 — maintainability of a charge under Section 498 (A) of the Code by reason of an order of acquittal under Section 306 of the Code — held acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home the charge of Section 498-A as well, without which the charge cannot be said to be maintained. Presently, we have no such evidence available on record — appeal allowed.

(Case/Appeal No: Criminal Appeal No. 1457 of 1995 (With Crl.A. Nos. 1458-1459 of 1995))
K. Prema S. Rao and another Appellants with State of Andhra Pradesh Appellant Vs. Yadla Srinivasa Rao and others Respondents with Yadla Ranga Rao and another Respondents, decided on 10/25/2002.
Name of the Judge: Hon’ble Mr. Justice M.B. Shah, Hon’ble Mr. Justice K.G. Balakrishnan and Hon’ble Mr. Justice D.M. Dharmadhikari.
Subject Index: Indian Penal Code — sections 304B, 306 and 498a — dowry death — cruelty — conviction and sentence under section 498a — appeal preferred by parents of deceased seeking conviction of accused u/s. 304B, IPC — omission to frame charge u/s. 306 — although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under section 494A and Section 304B of IPC — held same facts and evidence on which accused No.1 was charged under Section 498a and Section 304B, the accused can be convicted and sentenced under Section 306 IPC.

(Case/Appeal No: Criminal Appeal No. 146 of 2002)
Sadhu Ram and another Appellants Vs. The State of Rajasthan Respondent, decided on 4/10/2003.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Indian Penal Code — Sections 498a, 302 and 201 — conviction and sentence under — it is no doubt true that the conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case the court must be satisfied that implicit reliance can be placed on the testimony of such a witness and that his testimony is so free of blemish that it can be acted upon without insisting upon corroboration — held no evidence to corroborate testimony of Mala Ram, therefore, it is not safe to base a conviction on the testimony of such a witness — appellants acquitted — appeal allowed.

(Case/Appeal No: Criminal Appeal No. 825 of 2002)
Hira Lal and others Appellants Vs. State (Govt. of NCT) Delhi Respondent, decided on 7/25/2003.
Name of the Judge: Hon’ble Mr. Justice Doraiswamy Raju and Hon’ble Mr. Justice Arijit Pasayat.
Subject Index: Indian Penal Code — Sections 304B, 306 and 498a – dowry death — a conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’ — sufficient materials to convict the accused-appellants in terms of Section 306 IPC along with Section 498a IPC — unfortunate that the High Court failed to notice that the minimum sentence for offence punishable under Section 304B is seven years in terms of sub-section (2) thereof.

(Case/Appeal No: Criminal Appeal No. 1358 of 2002)
Kaliyaperumal and Anr. Appellants Vs. State of Tamil Nadu Respondent, decided on 8/27/2003.
Name of the Judge: Hon’ble Mr. Justice Doraiswamy Raju and Hon’ble Mr. Justice Arijit Pasayat.
Subject Index: Indian Penal Code, 1860 — Sections 304B and 498a – conviction challenged before the High Court — High Court only reduced the sentence from nine years to seven years for the offence punishable under Section 304B IPC but confirmed the sentence five years as imposed in respect of offences punishable under Section 498a – the conviction was maintained but the sentence was reduced in respect of offence under Section 304B — the appellant-Kaliyaperumal has been rightly convicted for offence punishable under Section 304B and 498a. As the High Court has awarded the minimum punishment prescribed no interference with the sentences is called for. So far as appellant no. 2 Muthulakshmi is concerned, there is inadequacy of material to attract culpability under Section 304B. But Section 498a IPC is clearly attracted to her case — the appeal is allowed so far as her conviction under Section 304B IPC is concerned, but stands dismissed so far as it relates to offence punishable under Section 498aIPC.

(Case/Appeal No: Criminal Appeal No. 1250 of 2003)
Bharat Chaudhary and another Appellants Vs. State of Bihar and another Respondents, decided on10/8/2003.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Criminal Procedure Code — Section 438 — Indian Penal Code, 1860 — Sections 504, 498a and 406 — Dowry Prohibition Act — Sections 3/4 — accused of — application for grant of anticipatory bail — rejected by the High Court — order under challenge — anticipatory bail granted — no restriction on the power of the courts empowered to grant anticipatory bail under Section 438 of the Crl.P.C. — the duration of anticipation bail should be normally limited till the trial court has the necessary material before it to pass such orders and it thinks fit on the material available before it. That is only a restriction in regard to blanket anticipatory bail for an unspecified period — judgment in Salauddin Abdulsamad Shaikh does not support the extreme argument addressed on behalf of the learned counsel for the respondent- State that the courts specified in Section 438 of the Crl.P.C. are denuded of their power under the said Section where either the cognizance is taken by the concerned court or charge sheet is filed before the appropriate Court.

(Case/Appeal No: Transfer Petition (Crl.) No. 240 of 2003 etc. (Crl. Misc. Petition No. 9841 of 2003))
Smt. Swati Verma Petitioner Vs. Rajan Verma and others Respondents, decided on 11/11/2003.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Hindu Marriage Act — Section 13(B) — decree of divorce — granting of — report for offences under Section 498a and 406 IPC lodged — marriage broken irretrievably — with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India — application for divorce granted.

(Case/Appeal No: Criminal Appeal No. 95 of 2003)
Kamalkar Nandram Bhavsar and others Appellants Vs. State of Maharshtra Respondent, decided on11/21/2003.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B. P. Singh.
Subject Index: Indian Penal Code, 1860 — Sections 306 and 498a read with Section 34 — charged under — acquittal — High Court set aside the acquittal and convicted the appellants for offences punishable under Section 306 IPC and directed them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- — since there is an illegality which vitiates the sentence an opportunity should be given to the accused persons of being heard before awarding the sentence, hence, on that ground, viz. on the ground of hearing the appellants on the question of sentence alone remanded the matter back to the trial court for giving an opportunity to the accused to make a representation regarding the sentence proposed — sentence reduced to 3 years RI and fine of Rs. 5,000/- — 80% of the fine amount, if realised, should be paid to the parents of the victim girl as compensation.

(Case/Appeal No: Criminal Appeal No.431 of 1997)
Yasosha and Anr. Appellant Vs. State of Madhya Pradesh Respondent, decided on 2/4/2004.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Indian Penal Code, 1860 Sections 498a, 304B and 201 — conviction confirmed — the prosecution has successfully proved its case against the appellants — conviction and sentence affirmed.

(Case/Appeal No: Criminal Appeal No. 193 of 2004)
Biman Chatterjee Appellant Vs. Sanchita Chatterjee and another Respondents, decided on 2/10/2004.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Indian Penal Code, 1860 — section 498a – complaint under — grant of bail on the assurance of compromise — cancellation of bail — the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise –no compromise — non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail — what the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code — having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law.

(Case/Appeal No: Criminal Appeal No. 564 of 1997)
Ashok Vishnu Davare Appellant Vs. State of Maharashtra Respondent, decided on 2/10/2004.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Indian Penal Code, 1860 — sections 498a and 306 — conviction under — confirmed by High Court — the courts below have not properly appreciated the evidence and failed to notice the glaring improvements made by the witnesses in their evidence given before the court. These improvements in our opinion materially affect the creditworthiness of the prosecution case hence it is not safe to base a conviction.

(Case/Appeal No: Criminal Appeal No. 384 of 1998)
The State of Andhra Pradesh Appellant Vs. Raj Gopal Asawa and Another Respondents, decided on3/17/2004.
Name of the Judge: Hon’ble Mr. Justice Doraiswamy Raju and Hon’ble Mr. Justice Arijit Pasayat.
Subject Index: Indian Penal Code, 1860 — Sections 304B and 498a – conviction by trial court — legality of the judgment of DB of Andhra Pradesh High Court holding respondents not guilty questioned by State of Andhra Pradesh — in view of the fact that the death occurred within the very few months of the marriage, and the evidence of PWs 2, 3, 4 and 6 that shortly before the deceased committed suicide, demand of dowry was made, the plea in untenable. The accusations clearly stand established so far as A-1, respondent no.1 is concerned. So far as accused A-3 is concerned, there is no evidence that he ever made any demand of dowry — custodial sentence of 7 years would meet the end of justice for respondent no.1- A-1.

(Case/Appeal No: Criminal Appeal No. 479 of 1999 (with Crl. A. No. 480 of 1999))
Dalbir Singh Appellant Vs. State of U.P. Respondent, decided on 4/8/2004.
Name of the Judge: Hon’ble Mr. Justice S. Rajendra Babu and Hon’ble Dr. Justice AR Lakshmanan and Hon’ble Mr. Justice G.P. Mathur.
Subject Index: Indian Penal Code, 1860 — Sections 302, 304-B and 498a – trial under — in view of conflict of opinion in two decisions of this Court rendered in Lakhjit Singh and Anr. vs. State of Punjab (1994 Supp. (1) SCC 173 and Sangarabonia Sreenu vs. State of A.P. 1997(5) SCC 348 these appeals have been directed to be placed for hearing before a three-Judge Bench — whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him — in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion — he is convicted under Section 306 IPC and is sentenced to the period already undergone.

(Case/Appeal No: Criminal Appeal No. 81 of 1998)
Sakatar Singh and Ors. Appellants Vs. State of Haryana Respondent, decided on 4/13/2004.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice B.P. Singh.
Subject Index: Indian Penal Code, 1860 — Sections 306 and 498a read with Section 34 — conviction under — the trial court committed serious error in coming to the conclusion that the prosecution had established its case against the appellants — there has been no application of mind by the High Court which is evident from a perusal of the judgment of the said court.

(Case/Appeal No: Criminal Appeal No. 1301 of 2004)
Muthu Kutty and another Appellants Vs. State by Inspector of Police, Tamil Nadu Respondent, decided on11/19/2004.
Name of the Judge: Hon’ble Mr. Justice Arijit Pasayat and Hon’ble Mr. Justice S.H. Kapadia.
Subject Index: Indian Penal Code, 1860 — sections 498a and 304B — conviction under — the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it — there is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility — the Courts below have rightly relied upon the dying declaration — something unusual in the conclusion of the trial Court. After having accepted that the accused persons were responsible for setting the deceased ablaze, applied Section 304 Part B IPC and not Section 302 IPC. The Trial Court observed that the accused without knowing what they were doing at the relevant time poured kerosene and set fire on the deceased and in view of this situation Section 302 IPC was not applied and Section 304 B IPC was applied. The reasoning is clearly wrong — no prejudice is caused to the accused appellants as they were originally charged for offence punishable under Section 302 IPC along with Section 304-B IPC — the conviction as recorded and affirmed and the sentences imposed do not warrant any interference.

(Case/Appeal No: Criminal Appeal No. 1274 of 2004)
Ruchi Agarwal Appellant Vs. Amit Kumar Agrawal and others Respondents, decided on 11/5/2004.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice S.B. Sinha.
Subject Index: Indian Penal Code, 1860 — Section 498a, 323 and 506 and Dowry Prohibition Act — sections 3 and 4 — complaint under — appeal — the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents — it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue — proceedings quashed and appeals dismissed.

(Case/Appeal No: Criminal Appeal No. 1331 of 2004)
Satyajit Banerjee and others Appellants Vs. State of West Bengal and others Respondents, decided on11/23/2004.
Name of the Judge: Hon’ble Mr. Justice Y.K. Sabharwal and Hon’ble Mr. Justice D.M. Dharmadhikari.
Subject Index: Indian Penal Code, 1860 — sections 498a and 306 — trial under — acquittal — de novo trial ordered by High Court — direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case, the first trial was found to be a farce and is described as ‘mock trial’. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in the Best Bakery Case — even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial — the trial Judge, after retrial, shall take a decision on the basis of the entire evidence on record and strictly in accordance with law, without in any manner, being influenced or inhibited by anything said on the evidence in the judgment of the High Court or this Court.

(Case/Appeal No: Criminal Appeal No. 1204 of 1999)
State of Karnataka Appellant Vs. K. Gopalakrishna Respondent, decided on 1/18/2005.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice Arun Kumar.
Subject Index: Indian Penal Code, 1860 — Sections 302, 201 and 498a and alternatively under section 304 B — charge under found guilty — even if the evidence in this regard is ignored, the remaining evidence on record clearly proves the complicity of the respondent in the murder of his wife Veena — Court dealing with an appeal against an order of acquittal — no rational justification for the conclusion reached by the High Court. The High Court has misread the evidence on record and has completely ignored the relevant evidence on record which was accepted by the Trial Court — judgment of the trial court restored.

(Case/Appeal No: Criminal Appeal Nos.938-939 of 1999)
State of Orissa Appellant Vs. Niranjan Mohapatra and Others Respondents, decided on 2/3/2005.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice B.N. Srikrishna.
Subject Index: Acquittal — appeal against — the appellants had been convicted by the trial court under Sections498a and 304B IPC and sentenced to undergo rigorous imprisonment for two years under Section 498a and 7 years under Section 304B IPC — the High Court by its impugned judgment and order has acquitted all of them of the charges levelled against them — so far as the allegations relating to the offence under Section 498a is concerned, the prosecution has not been able to establish its case against the respondents. The High Court has considered the evidence on record — so far as the offence under Section 304B is concerned, there is no evidence to suggest that soon before the occurrence the deceased was subjected to torture and harassment. In the absence of any such evidence, conviction under Section 304B cannot be sustained — the High Court has recorded the order of acquittal based on the evidence on record and on proper appreciation of such evidence.

(Case/Appeal No: Criminal Appeal No. 1285 of 1999)
K.R. Soorachari Appellant Vs. State of Karnataka Respondent, decided on 4/13/2005.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice S.B. Sinha.
Subject Index: Indian Penal Code, 1860 — Section 498a – Dowry Prohibition Act — Sections 3, 4 and 6 — appellant found guilty — the appellant is entitled to acquittal so far the charge under Section 498a IPC is concerned — the Trial Court concluded that except the oral testimony of PW-1 and PW-2 there was no other evidence on record to show that three days after the marriage negotiations PW-1 had sent Rs.10,000/- through his wife and PW-7 to be paid to the appellant. In view of these circumstances, the Trial Court came to the conclusion that neither there was any demand for dowry nor was any amount paid to the appellant by way of dowry — the High Court found that the reasoning of the Trial Court was unsustainable — The finding recorded by the Trial Court in our view completely ignores the cogent and reliable evidence on record which proves the case of the prosecution that dowry was demanded and paid. Such a finding ignoring relevant evidence can not be sustained even in an appeal against acquittal — the conviction of the appellant under the Dowry Prohibition Act is fully justified.

(Case/Appeal No: Writ Petition (C) No.141 of 2005)
Sushil Kumar Sharma Petitioner Vs. Union of India & Others Respondents, decided on 7/19/2005.
Name of the Judge: Hon’ble Mr. Justice Arijit Pasayat and Hon’ble Mr. Justice H.K. Sema.
Subject Index: Indian Penal Code, 1860 — Section 498a – cruelty — petition to declare Section 498a pertaining to cruelty on woman by husband and relatives as unconstitutional to stop victimization of innocent persons by unscrupulous persons making false accusations — held object of the provision is prevention of dowry menace — mere possibility of abuse of a provision of law does not per se invalidated a Legislation — investigating agencies should make efforts so that an innocent persons is not made to suffer on account of baseless and malicious allegations.

(Case/Appeal No: Civil Appeal No. 812 of 2004)
Naveen Kohli Appellant Vs. Neelu Kohli Respondent, decided on 3/21/2006.
Name of the Judge: Hon’ble Mr. Justice B.N. Agrawal, Hon’ble Mr. Justice A.K. Mathur and Hon’ble Mr. Justice Dalveer Bhandari.
Subject Index: Hindu, Marriage Act, 1955 — petition under for divorce — marriage totally dead — total disappearance of substratum in the marriage — the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955 — Court would like to recommended the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

(Case/Appeal No: Criminal Appeal No. 1619 of 2005)
Rajendra & Ors. Appellants Vs. State of Maharashtra Respondent, decided on 7/27/2006.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Indian Penal Code, 1860 — Sections 498a and 302 read with Section 34 — conviction and sentence affirmed by the High Court — the two written dying declarations and the one oral dying declaration are consistent — no reason to discard the dying declarations which have been relied upon by the Trial Court as well as the High Court — Court does not attach much weight to the fact that the second dying declaration is not recorded by a Magistrate, and that it has been recorded by a person nominated by the Tehsildar to record dying declarations which in normal course is the duty of an Executive Magistrate — record consistent and all the evidence points to the guilt of the accused.

(Case/Appeal No: Criminal Appeal No. 1051 of 2006)
Ishwarchand Amichand Govadia and others Appellants Vs. State of Maharashtra and Anr. Respondents,decided on 10/13/2006.
Name of the Judge: Hon’ble Mr. Justice Arijit Pasayat and Hon’ble Mr. Justice Lokeshwar Singh Panta.
Subject Index: Indian Penal Code, 1860 — Sections 306, 498a and 34 — commission of the offence under — addition of the charge under Section 304B — it would be proper for the Trial Court to defer the question of framing charge under Section 304B after examination of doctor.

(Case/Appeal No: Criminal Appeal No. 1262 of 2005)
Surender Appellant Vs. State of Haryana Respondent, decided on 11/22/2006.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Markandey Katju.
Subject Index: Indian Penal Code, 1860 — Sections 498a and 306/34 — charge under — it has come in evidence that Surender gave beating to Pushpa to such an extent that she became unable even to walk — a young pregnant woman having a child in the womb would not ordinarily commit suicide unless she was compelled to do so — she would not have felt depressed if she had not been harassed on account of demand for dowry — both the courts below have held against the accused and this Court fully agrees with the reasoning given in the judgment by the courts below.

(Case/Appeal No: Criminal Appeal No.223 of 2007)
Manjunath Chennabasapa Madalli Petitioner Vs. State of Karnataka Respondent, decided on 2/19/2007.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice S.H. Kapadia.
Subject Index: Indian Penal Code, 1860 — sections 498a and 302 — challenge in this appeal is to the judgement rendered by DB of Karnataka High Court dismissing the appeal piled by the appellant — appellant found guilty under sections 498-A and 302 by the trial court — High Court set a side the conviction under sections 498a, but maintained the conviction under section 302IPC — the only circumstance which was highlighted by the trial Court and the High Court was that there was unnatural death and additionally the so called dying declaration — mere fact that the deceased had died an unnatural death cannot by itself be a circumstance against the accused particularly when Section 498-A has been held to be inapplicable conviction set aside.

(Case/Appeal No: Criminal Appeal No. 502 of 2006)
Bandu Appellant Vs. State of Maharashtra Respondent, decided on 3/9/2007.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Markandey Katju.
Subject Index: Indian Penal Code, 1860 — Sections 498a — conviction under — on appeal, High Court set aside the conviction under section 498a, held him guilty under Section 302 — appeal — no reason to disbelieve the prosecution case as it is consistent with the medical evidence.

(Case/Appeal No: Civil Appeal No. 371 of 2007)
Biswajit Halder @ Babu Halder and Ors. Appellants Vs. State of West Bengal Respondent, decided on3/19/2007.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice S.H. Kapadia.
Subject Index: Indian Penal Code 1860 — Section 304B read with Section 498a/34 and Sections 3 and 4 of the Dowry Prohibition, Act, 1961 — appellants faced trial and convicted under — DB of Calcutta High Court modified the sentence but dismissed the appeal — legality of the judgment questioned — if a married woman dies in an unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under “dowry death” and there shall be a presumption against the husband and the relatives — there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry — mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B IPC.

(Case/Appeal No: Criminal Appeal No. 481 of 2007)
Laxman Anaji Dhundale & another Appellants Vs. State of Maharashtra Respondent, decided on 4/4/2007.
Name of the Judge: Hon’ble Mr. Justice S. B. Sinha and Hon’ble Mr. Justice Markandey Katju.
Subject Index: Indian Penal Code, 1860 — sections 302/34 and 498 A — the appellants who are the parents of accused No. 1 Rajendra, are accused Nos. 2 & 3 in this case. The trial court convicted them along with accused No. 1 under Section 302/34 IPC and sentenced them to life imprisonment. They were also found guilty under Sections 498a/34 IPC and were sentenced to three years’ R.I. and also a fine — whether the guilt of the appellants, who are the parents of Rajendra, is proved beyond reasonable doubt — direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case. However, in order to bring home the charge of common intention the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34. In the present case there is no credible evidence, direct or circumstantial, that there was such a plan or meeting of minds of all the accused persons to commit the offence in question. Hence, in our opinion, the charge under Section 34 IPC has not been established — the benefit of doubt has to be given to the appellants and hence this appeal has to be allowed.

(Case/Appeal No: Civil Appeal No. 653 of 2006)
Dnyaneshwar Appellant Vs. State of Maharashtra Respondent, decided on 3/20/2007.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Markendey Katju.
Subject Index: Indian Penal code, 1860 — section 302 and 498a – the learned trial Judge held the appellant as also accused Nos. 2 and 3 guilty of commission of offences under Section 302 as well as under Section 498-A of the Indian Penal Code — on appeal to the High Court, High Court found the appellant guilty — the ante-mortem injuries clearly go to show that she had been done to death. Only because P.W.9- Dr. Ravindra failed to notice some injuries on her neck so as to arrive at a definite conclusion that the death was caused by asphyxia, court is of the opinion that the appellant in a case of this nature cannot take benefit thereof.

(Case/Appeal No: Criminal Appeal No. 543 of 2007)
Gajanand Agarwal Petitioner Vs. State of Orissa and Ors. With Criminal Appeal No. 544 of 2007 Respondents, decided on 4/12/2007.
Name of the Judge: Hon’ble Mr. Justice Dr. Arijit Pasayat and Hon’ble Mr. Justice Lokeshwar Singh Panta.
Subject Index: Bail — granting of — the offences indicated were punishable under Sections 498a, 304B, 302, 406 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961 — the reasoning given by the High Court that only the family members earlier did not lodge reports and, therefore, prima facie throws doubt about alleged torture, is another conclusion which was not required to be given while dealing with the bail application — the High Court has virtually written an order of acquittal by commenting on the evidentiary value of evidence on record. This is impermissible. Only broad features of the case are to be noted. Elaborate analysis of the evidence is to be avoided — the impugned orders of the High Court are indefensible and are set aside.

(Case/Appeal No: Criminal Appeal No. 244 of 2006)
Dayal Singh Appellant Vs. State of Maharashtra Respondent, decided on 5/3/2007.
Name of the Judge: Hon’ble Mr. Justice G.P. Mathur and Hon’ble Mr. Justice A.K. Mathur.
Subject Index: Indian Penal Code, 1860 Sections 498a and 302 — Conviction Under — appeal to High Court dismissed — appeal by special leave — dying declaration — value — the charge against the appellant is fully established from the evidence on record and there is absolutely no ground to take a different view from what has been taken by the learned Sessions Judge and also by the High Court.

(Case/Appeal No: Civil Appeal No. 743 of 2007)
Ananda Mohan Sen and Anr. Appellants Vs. Civil Appeal No. 743 of 2007, decided on 5/16/2007.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Markandey Katju.
Subject Index: Indian Penal Code, 1860 — Sections 498a and 306 — Conviction and Sentence by DB affirming the judgment of conviction and sentence by learned Assistant Sessions Judge, Burdwan — Sentence under Section 306 modified by High Court in case of appellant No.1 reducing the sentence from 5 yrs. to 3 yrs. — whether a case for conviction under Section 306 IP has been made out. It is no doubt true that for arriving at such a conclusion, the prosecution must , inter alia, establish that the deceased committed suicide and she had been subject to cruelty within the meaning of Section 498a IPC — it is not a case where interference with the impugned judgment is called for.

(Case/Appeal No: Civil Appeal No. 1203 of 2006)
Sukhram Appellant Vs. State of Maharashtra Respondents, decided on 8/17/2007.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice D.K. Jain.
Subject Index: Indian Penal Code, 1860 — Sections 302, 201, 304 B, 498a and 34 — Criminal Procedure Code, 1973 — Sections 222, 464(2)(a) — High Court convicted the appellants under Sections 302, 201 read with Section 34 — Appeal by appellant A-2 — Supreme Court held that no charge for offence punishable under Section 302 was framed against appellant A-2 — Section 222, Criminal Procedure Code had no application in facts as offences under the said Sections are vastly different — High Court did not follow the procedure laid down in Section 462(2)(a), Criminal Procedure Code — High Court not justified in convicting Appellant A-2 under S.302, IPC — prosecution failed to establish the existence of a motive — no established circumstance to complete the chain to bring the offence under section 201 IPC — prosecution also failed to establish that conduct of appellant — both at time of occurrence and immediately thereafter — is consistent with hypothesis of his guilt — Order of High Court set aside — Appeal of appellant A-2 allowed.

(Case/Appeal No: Criminal Appeal No. 11 of 2002)
M. Srinivasulu Appellant Vs. State of A.P. Respondent, decided on 9/10/2007.
Name of the Judge: Hon’ble Mr. Justice Arijit Pasayat and Hon’ble Mr. D.K. Jain .
Subject Index: Indian Penal Code, 1860 — section 304 B and 498 A — conviction under — upheld by High Court — challenged — by the impugned judgment conviction recorded in respect of co-accused Laxmi was set aside and she was directed to be acquitted — in fact there is no allegation of any harassment due to dowry. What the trial court and the High Court appears to have done is to pick up one line from one place and another from another place and conclude that there was demand of dowry. Reading of the letters in the entirety show that there was, in fact, no mention of any demand for dowry. Therefore the conviction in terms of Section 498a and Section 304B cannot be maintained. The judgment of the High Court is accordingly set aside and the appellant is acquitted of the charges.

(Case/Appeal No: Criminal Appeal No. 1612 of 2005)
Kishan Singh & Another Petitioner Vs. State of Punjab Respondent, decided on 10/12/2007.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice P. Sathasivam.
Subject Index: Indian Penal Code, 1860 — sections 304B and 315 — conviction under — the High Court again examined the evidence on record, heard the arguments of the parties and considered the reasons recorded and conclusions arrived at by the trial Court. It held that as far as accused Nos. 3 and 4, parents-in-law of deceased Reeta Kumari were concerned, the trial Court was fully justified in convicting both of them for offences punishable under Sections 304B and 315, IPC. Accordingly, their conviction as well as order of sentence was maintained — as to accused No.1-Manmohan Singh-husband, however, the High Court held that from the evidence, it was not proved that he was responsible for committing an offence punishable under Section 498a, IPC. The Court observed that he was serving in Indian Army and was occasionally attending matrimonial home after taking leave. There was no sufficient evidence of demand of dowry by accused No. 1. The trial Court, hence, was not right in convicting him under Section 498a, IPC. He was, therefore, ordered to be acquitted — the order convicting accused Nos. 3 and 4, father-in-law and mother-in-law of deceased Reeta Kumari under Sections 304B and 315, IPC recorded by the trial Court and confirmed by the High Court is challenged in the present appeal — both the Courts were wholly right and fully justified in recording an order of conviction and in imposing sentence on appellants-accused Nos. 3 and 4 — there was no occasion for the trial Court to go to the extent of describing the evidence of PW4-Gopal Singh to be false. Even if it is conceded that in the light of other evidence on record, the Court was not convinced as to the demand of dowry by accused No. 1 Manmohan Singh, 10/12 days prior to the incident , the Court could have acquitted accused No.1 on that ground — it was certainly not a case of making scathing remarks against the witness.

(Case/Appeal No: Criminal Appeal No. 1088 of 2001)
Devi Lal Appellant Vs. State of Rajasthan Respondent, decided on 10/12/2007.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Harjit Singh Bedi.
Subject Index: Indian Penal Code, 1860 — section 304B read with section 498a — charge under — section 113A of the Act relates to offences under Sections 498-A and 306 of the Code, whereas Section 113B relates to Section 304-B thereof. Whereas in terms of Section 113A of the Act, the prosecution is required to prove that the deceased was subjected to cruelty, in terms of Section 113B, the prosecution must prove that the deceased was subject by such person to cruelty or harassment for, or in connection with, any demand for dowry — the question, as to what are the ingredients of the provisions of Section 304B of the Indian Penal Code is no longer res integra. They are : (1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death — evidence brought on record by the prosecution clearly suggest that Pushpa had all along been subjected to harassment or cruelty only on the ground that her father had not given enough dowry at the time of marriage. For proving the said fact, it was not necessary that demand of any particular item should have been made — no case has been made out for interference with the impugned judgment.

(Case/Appeal No: Criminal Appeal No. 1708 of 2007)
Sanapareddy Maheedhar and another Appellants Vs. State of Andhra Pradesh and another Respondents,decided on 12/13/2007.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice G.S. Singhvi.
Subject Index: Indian Penal Code, 1868 — sections 498a and 406 read with section 4 and 6 of the Dowry Prohibition Act — proceedings under — petition under section 482 for quashment of proceedings pending in appeal against the order under — marriage disolved remarried — as on today a period of almost nine years has elapsed of the marriage of appellant No.1 and Shireesha Bhavani and seven years from her second marriage. Therefore, at this belated stage, there does not appear to be any justification for continuation of the proceedings.

(Case/Appeal No: Criminal Appeal No. 1716 of 2007)
Onkar Nath Mishra & others Appellants Vs. State (NCT of Delhi) & others Respondents, decided on12/14/2007.
Name of the Judge: Hon’ble Mr. Justice Ashok Bhan and Hon’ble Mr. Justice D.K. Jain.
Subject Index: Indian Penal Code, 1868 — section 498a and 406/34 — trial under — the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 I.P.C. was made out — section 498a I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, charge under Section 498a I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned — the trial court shall now proceed with the trial untrammeled by any observation made by the Additional Sessions Judge and upheld by the High Court in the impugned order.

(Case/Appeal No: Criminal Appeal No. 321 of 2006)
Vikas & others Appellants Vs. State of Maharashtra Respondent, decided on 1/21/2008.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice Markandey Katju.
Subject Index: Indian Penal Code, 1860 — sections 302, 342 read with section 34 — conviction under — all the three accused were convicted for offences punishable under Sections 498a, 302 and 342 read with Section 34, IPC. For an offence punishable under Section 302 read with Section 34, the accused were ordered to suffer imprisonment for life and pay a fine of Rs.5,000/- each — the High Court held that since it was not the case of the prosecution that Rekha was driven to death by committing suicide due to demand of dowry, it could not be said that the offence was established. All the accused persons were, therefore, acquitted of offence punishable under Section 498a read with Section 34, IPC — both the courts were wholly right and fully justified in relying upon two dying declarations recorded by (i) PW 5 Ramchandra, Special Judicial Magistrate on May 17, 2001 — and in discarding evidence of PW 1 Laxman, father of victim Rekha and PW2 Manohar, Panch — no ground to interfere with the order of conviction and sentence recorded by the trial Court and confirmed by the High Court.

(Case/Appeal No: Criminal Appeal No. 174 of 2008)
Sunita Jain Appellant Vs. Pawan Kumar Jain & others Respondents, decided on 1/25/2008.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice D.K. Jain.
Subject Index: Criminal Proceedings — quashing — appeal is against the judgment and order allowing the application under section 482 of Cr.P.C. — the High Court was wrong in quashing the proceedings — it is clear that a complaint was lodged by the petitioner against respondent Nos. 1 to 3 as also against other accused for offences punishable under Sections 498a, 342 and 406, IPC and Sections 3 and 4 of Dowry Prohibition Act. The trial Court satisfied that prima facie case was made out and accordingly charges were framed against respondent Nos. 1 to 3 as well as against other accused. In a petition challenging that action, the High Court partly allowed the petition vide its order dated October 22, 1997 and quashed charges against brother-in-law and sister-in-law of the appellant herein but upheld the order of framing of charge against the remaining respondents i.e. respondent Nos. 1 to 3 — all the Courts including this Court were of the view that there was prima facie case for framing of charge against the respondents herein. It appears that thereafter the parties tried for amicable settlement of the matter again — the order impugned in the present appeal is thus clearly illegal, improper, contrary to law and deserves to be set aside.

(Case/Appeal No: Civil Appeal No.2003 of 2008 with Criminal Appeal No.502 of 2008)
Vimalben Ajitbhai Patel with Ajitbhai Revandas Patel and another Appellants Vs. Vatslabeen Ashokbhai Patel and others with State of Gujarat and another Respondents, decided on 3/14/2008.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice V.S. Sirpurkar.
Subject Index: Indian Penal Code, 1860 — sections 406 and 114 — complaint petition filed — appellants granted bail subject to the condition that they would not leave India without permission of the Court — application for cancellation a bail filed — on an application filed by the 3rd respondent on 24th April, 1998 the husband of the appellant was declared an absconder and a public proclamation was issued in terms of Section 82(2) of the Code of Criminal Procedure attaching her properties if she did not present before the Learned Magistrate within 30 days from the issuance of the said publication — on their failure to remain present within a period of 30 days their properties were subjected to order of attachment under Section 85 of the Code of Criminal Procedure. By an order dated 5th January, 2004 the District Magistrate was asked by the Leaned Metropolitan Magistrate to take further action in terms of Section 85 of the Code of Criminal Procedure by holding a public auction of the said properties. In the said order it was wrongly sated that the properties belonged to the appellants and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was the owner thereof — appellant and her husband returned to India. They filed an application for cancellation of the said Standing Warrants — Sonalben Rameshchandra Desai is an Advocate. She filed a large number of cases against her husband and in-laws. She initially filed a Complaint Petition before the Metropolitan Magistrate, Ahmedabad, under Section 498a of the Indian Penal Code which was registered as Case No.1662 of 1996. It was transferred to the Court of Chief Judicial Magistrate, Baroda. It has since been dismissed for default. She initiated another criminal proceeding against the appellants and their family members under Sections 323, 452, 427, 504, 506 and 114 of the Indian Penal Code, the same proceeding has also been dismissed as withdrawn. Another criminal case was initiated by her against appellant No.2, his son and another, being Case No.47 of 1996 under Section 406, 420, 468 and 114 of the Indian Penal Code, which is still pending. Another case, being No.2338 of 2006 was filed by her under Section 500 of the Indian Penal Code. Another case under Section 406 of the Indian Penal Code being Case No.2145 of 1993 was filed against the appellants — gross injustice has been caused to the appellant. She did not deserve such harsh treatments at the hands of the High Court. Respondent No.3 speaks of her own human rights, forgetting the human rights of the appellant, far less the funadamental right of life and liberty conferred on an accused in terms of Article 21 of the Constitution of India — the right of property is no longer a fundamental right. But still it is a constitutional right. Apart from constitutional right it is also a human right. The procedures laid down for deprivation thereof must be scrupulously complied with — the interest of justice shall be subserved if the impugned judgments are set aside.

(Case/Appeal No: Criminal Appeal No. 428 of 2008)
Rekha Patel Appellant Vs. Pankaj Verma and others Respondents, decided on 3/3/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat, and Hon’ble Mr. Justice J.M. Panchal.
Subject Index: Constitution of India — Article 226 — petition under — challenge in this appeal is to the order passed by the Division Bench of the Allahabad High Court passed on a petition under Article 226 of the Constitution — complaint filed by Appellant under — sections 498a, 323, 504 and 506 of the Indian penal Code, 1860 and Sections 3/4 of the Dowry Prohibition Act, 1961. Respondent Nos.1 to 6 filed a writ petition for quashing the F.I.R. and for stay of arrest pending the disposal of the writ petition. The writ petition was filed on 1.11.2006. By the impugned order dated 7.11.2006 the High Court declined to accept the prayer for stay of arrest of the respondents — presently Section 438 Cr.P.C. has no application to the State of U.P. Even otherwise, as noted in Adri Dharan Das’s case (supra), after surrender of accused and rejection of his bail application, the protection of the nature granted by the High Court cannot be given — the respondents had moved for bail and have been granted bail by the learned Sessions Judge concerned — this Court declines to interfere in the appeal; but have considered it necessary to indicate the correct parameters so that the mistake committed by the High Court is not repeated.

(Case/Appeal No: Criminal Appeal No. 587 of 2008)
Bhura Ram and others Appellants Vs. State of Rajasthan & another Respondents, decided on 4/2/2008.
Name of the Judge: Hon’ble Mr. Justice P.P. Naolekar and Hon’ble Mr. Justice V.S. Sirpurkar.
Subject Index: Criminal Procedure Code, 1973 — section 156(3) — complaint under for offences under sections498a, 406 and 147 of IPC — jurisdiction — cause of action having arisen within the jurisdiction of the court where the offence was committed, could not be tried by the court where no part of offence was committed — the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter.

(Case/Appeal No: Criminal Appeal No. 4247 of 2007)
Sayeeda Farhana Shamim Appellant Vs. State of Bihar & another Respondents, decided on 5/16/2008.
Name of the Judge: Hon’ble Mr. Justice A.K. Mathur and Hon’ble Mr. Justice Aftab Alam.
Subject Index: Indian Penal Code, 1860 — sections 32, 406 and 498a and Prevention of Dowry Act — section 3 and 4 — complaint under — the power of the Magistrate should not be fettered either under Section 244 or under sub-section (6) of Section 246 of the Cr.P.C. and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list — the view taken by learned Single Judge of the Patna High Court cannot be sustained and consequently, the appeal is allowed and the order passed by the learned Single Judge dated 13.12.2006 is set aside and it is for the Sub-Divisional Judicial Magistrate, Bhagalpur to examine the remaining witnesses from the supplementary list given by the complainant and then to proceed according to law.

(Case/Appeal No: Criminal Appeal No. 967 of 2008)
M.Saravana Porselvi Appellant Vs. A.R. Chandrashekar @ Parthiban & others Respondents, decided on5/27/2008.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Lokeshwar Singh Panta.
Subject Index: Hindu Marriage Act, 1955 — section 13(1)(e) — petition under — customary divorce — registered — permanent alimony received by the wife — there does not exist any period of limitation in respect of an offence under Section 494, as the maximum period of punishment which can be imposed therefor is seven years — the customary divorce may be legal or illegal. The fact that such an agreement had been entered into or the appellant had received a sum of Rs.25,000/- by way of permanent alimony, however, stands admitted. The document is a registered one. Appellant being in the legal profession must be held to be aware of the legal implication thereof. If the contents of the said agreement are taken to be correct, indisputably the parties had been living separately for more than ten years. How then a case under Section 498a of the Indian Penal Code can be said to have made out and that too at such a distant point of time is the question, particularly in view of the bar of limitation as contained in Section 468 of the Code of Criminal Procedure. Even otherwise it is unbelievable that the appellant was really harassed by her husband or her in-laws — a criminal prosecution shall not lie. It was initiated mala fide. Thus, if it is allowed to continue, the same shall be an abuse of the process of court.

(Case/Appeal No: Criminal Appeal No. 876 of 2008)
Narayanamurthy Appellant Vs. State of Karnataka & another Respondents, decided on 5/13/2008.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Mr. Justice Lokeshwar Singh Panta.
Subject Index: Indian Penal Code, 1860 — sections 498a and 304B and Dowry Prohibition Act, 1961 — sections 3, 4 and 6 — trial under — the learned trial Judge found the evidence of prosecution witnesses insufficient and lacking for holding A-1 and A-3 guilty of the offences alleged against them and, accordingly, they were acquitted of the charges — on appeal by the State, the Division Bench of the High Court convicted A-1 for offences under Sections498a and 304B of IPC and sentenced him to suffer rigorous imprisonment for a period of seven years under Section 304B, IPC, and rigorous imprisonment for two years under Section 498a, IPC, and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo imprisonment for three months — the evaluation of the findings recorded by the High Court suffer from manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the High Court setting aside the order of acquittal of A-1 cannot be sustained — the considered opinion that the evidence led by the prosecution in regard to the involvement of A-1 in the death of Jagadeshwari is not proved beyond reasonable doubts by the prosecution, hence, the High Court was in error in basing conviction of A-1 on weak and slender evidence appearing against him.

(Case/Appeal No: Criminal Appeal No. 895 of 2003)
Rajbabu and another Appellants Vs. State of M.P. Respondent, decided on 7/24/2008.
Name of the Judge: Hon’ble Mr. Justice R.V. Raveendran and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code 1860 — sections 306 and 498a — conviction under — appeal — dismissal by High Court — the deceased was of the view point that her life has been spoiled by marrying Appellant No. 1. The letter reflects the attitude of the in-laws of the deceased towards the deceased. In the said letter there was no reference of any act or incident whereby the appellants were alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit suicide — on such slender evidence, therefore, court is not persuaded to invoke the presumption under Section 113-A of the Evidence Act to find the appellant guilty of the offence under Section 306 IPC — whether an offence is made out under section 498a of IPC. Though the letter allegedly written by the deceased mentions the fact that the attitude of the family was not good towards the deceased and she was not treated well but there is no mentioned about any of such incident — conviction under Sections 306 and 498a of the IPC passed against the appellant No. 2 set aside and this court acquits her granting her benefit of doubt. The appeal is allowed in so far as appellant No. 2 is concerned.

(Case/Appeal No: Criminal Appeal No. 1239 of 2003)
Dinesh Seth Appellant Vs. State of N.C.T. of Delhi Respondent, decided on 8/18/2008.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice G.S. Singhvi.
Subject Index: Indian Penal Code, 1860 — section 304B and 498a — appeal directed against the judgment of Delhi High Court whereby the appellant was acquitted of the charge under Section 304B Indian Penal Code — but was convicted under Section 498a IPC and sentenced to three years’ rigorous imprisonment — an offence under Section498a IPC is made out if the woman is subjected to physical assault, humiliation, harassment and mental torture — even though the prosecution evidence was not sufficient to establish charge under Section 304 or 306 IPC, conviction under Section 498a IPC can be upheld because the deceased was treated with cruelty by the appellant.

(Case/Appeal No: Criminal Appeal No. 209 of 2001)
B. Venkat Swamy Appellant Vs. Vijaya Nehru and another Respondents, decided on 8/25/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice P. Sathasivam and Hon’ble Mr. Justice Aftab Alam.
Subject Index: Indian Penal Code, 1860 — sections 498a and 302 — acquittal under — challenged — challenge in this appeal is to the judgment of the Division Bench of the Andhra Pradesh High Court directing acquittal of respondent no.1 who was convicted for alleged commission of offences punishable under Section 498a and 302 of the Indian Penal Code, 1860 — respondent and his mother faced trial for alleged commission of offence punishable under Section 498a IPC. In addition, respondent-accused was found guilty of offence punishable under Section 302 IPC and Section 4 of the Dowry Prohibition Act. The learned Sessions Judge, Kurnool, found that the accusations against A2 i.e. mother of the respondent – accused were not established and she was acquitted of the charges. However, respondent-accused was found guilty of the offence punishable under Sections 498a, 302 IPC and Section 4 of the DP Act — the examination in terms of Section 313 Cr.P.C. appears to have been done as an empty formality. The incriminating materials were not put to him. Though the High Court has not dealt with question of applicability of Section 498 IPC and Section 4 of the DP Act, but the evidence adduced does not establish the accusations — there is no merit in this appeal which is dismissed.

(Case/Appeal No: Criminal Appeal No. 180 of 2001)
Chattar Singh and another Appellants Vs. State of Haryana Respondent, decided on 8/26/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal code, 1860 — section 302, 498a and 201— conviction under — appellant-Mange Ram was convicted for offence punishable under Section 498a IPC and was sentenced to undergo RI for two years and to pay a fine of Rs.2,000/-. The conviction recorded by learned Additional Sessions Judge, Rohtak, was confirmed by Division Bench of the High Court as also the sentences for both the appellants — after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility — the extra judicial confession before PW-10 which has been relied upon by both the trial Court and the High Court cannot be lost sight of — the conviction recorded by the trial Court and upheld by the High Court does not suffer from any infirmity to warrant interference. However, considering the age of A-2 the sentence is reduced to the period already undergone which is nearly one year so far as A-2 is concerned. Except the modification of sentence so far as A-2 is concerned the appeal is dismissed.

(Case/Appeal No: Criminal Appeal No. 1453 of 2003)
State of A.P. Appellant Vs. Guvva Satyanarayana Respondent, decided on 9/24/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — sections 302 and 498a — conviction under — sentenced to file and two years — the High Court found that the charge in respect of Section 302 IPC rests on dying declaration purportedly to have been made by the deceased at 5.40 a.m. on 12.4.1994. Offence had taken place on 11.4.1994 at 9 p.m. The High Court found that the accusations so far as Section 302 IPC cannot be established and the dying declaration was not free from suspicion. However, the charge relatable to Section 498a was held to have been proved. For the same, sentence of two years RI imprisonment enhanced to three years RI — the order of the High Court does not suffer from any infirmity to warrant interference.

(Case/Appeal No: Criminal Appeal No. 831 of 2001)
Balwant Singh and others Appellants Vs. State of H.P. Respondent, decided on 9/29/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — sections 498a and 306 — judgment of a learned Single Judge of the Himachal Pradesh High Court holding each of the appellants guilty of offence punishable under Section 498a of the Indian Penal Code, 1860 while setting aside the conviction and the sentence imposed in respect of Section 306 IPC — challenged in this appeal — there is no material to establish the guilt of A-3 i.e. brother-in-law of the deceased. Consequently he stands acquitted of the charge. So far as other three accused persons are concerned, the accusations have been established by the evidence of PWs 3, 4 and 5, the documentary evidence and the exhibited letters and the convictions recorded so far as they are concerned cannot be faulted — the High Court has imposed sentence of one year. Considering the age of the father-in-law and mother-in-law (A-1 and A-4) and the period of sentence already undergone by them while upholding the conviction the sentence is reduced to the period already undergone. The appeal stands dismissed so far as A-2 is concerned.

(Case/Appeal No: Criminal Appeal No. 53 of 2002 with Criminal Appeal No. 1139 of 2003)
Rajendran and another Appellants Vs. State Asstt. Commnr. of Police Law & Order Respondent, decided on12/2/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — sections 304B and 498a — originally, the accused persons were charge sheeted and tried for offence punishable under Section 498a and 304 B IPC. The Trial Court after considering the material on record acquitted the appellants in respect of offence referred to Section 304 B and convicted them for offence under Section 498a IPC — the High Court upheld the conviction of the accused persons for offence punishable under Section 498(A) — appeals — sections 304B and 498a, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498a gives the meaning of `cruelty’. In Section 304B there is no such explanation about the meaning of `cruelty’ — section 498a IPC has two limbs. The first limb of Section498a provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. `Cruelty’ has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide — no merit in these appeals, which are accordingly dismissed.

(Case/Appeal No: Criminal Appeal No. 242 of 2008)
Vijay Appellant Vs. State of Maharashtra Respondent, decided on 12/1/2008.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — section 498a 306 and 304B — trial under — Dowry death — daughter-in-law dies due to burns in matrimonial residence — trial court convicted mother-in-law and acquitted husband on a letter by the deceased daughter-in-law to her father, a prosecution witness — on appeal, High Court convicted the husband also based on the contents of the same letter — appeal — Supreme Court upheld trial court’s judgment.

(Case/Appeal No: Criminal Original Jurisdiction Transfer Petition (Crl.) No. 71 of 2007)
Rajesh Petitioner Vs. State of Rajasthan and another Respondents, decided on 1/23/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Ashok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 406, 498a read with section 34 — transfer of Criminal case filed under — this transfer petition was posted before Supreme Court Lok Adalat on 6.12.2008. The parties and their lawyers appeared and filed a joint petition stating that their disputes have been settled under the guidelines of the mediators who acted as Amicus Curiae — it is heartening to note that the parties have settled their disputes amicably and have agreed to the terms. The transfer petition is disposed of in terms of the settlement.

(Case/Appeal No: Criminal Appeal No. 168 of 2009)
Varikuppal Srinivas Appellant Vs. State of A.P. Respondent, decided on 1/28/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — section 498a and 304B — conviction under — challenge in this appeal is to the judgment of the Andhra Pradesh High Court upholding the conviction of the appellant for offences punishable under Sections 498a and 304B of the Indian Penal Code, 1860 — the inevitable conclusion is that the trial court and the High Court have rightly convicted the appellant for offence punishable under Sections 498a and 304B IPC.

(Case/Appeal No: Criminal Appeal No. 891 of 2001)
Milind Bhagwanrao Godse Appellant Vs. State of Maharashtra and another Respondents, decided on2/12/2009.
Name of the Judge: Hon’ble Mr. Justice Dalveer Bhandari and Hon’ble Mr. Justice Harjit Singh Bedi.
Subject Index: Indian Penal Code, 1860 — sections 498a, 306 and 109 — conviction under — the learned IInd Additional Sessions Judge, Beed convicted the appellant under section 498a IPC to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,500/- — original accused nos. 2 and 3 were, however, acquitted by the learned IInd Additional Sessions Judge, Beed — the learned Judge of the High Court correctly evaluated the entire evidence on record and arrived at correct conclusion. No interference is called for. The appeal being devoid of any merit is accordingly dismissed — the bail bond of the appellant are cancelled. The appellant is directed to surrender forthwith to serve out the remaining sentence.

(Case/Appeal No: Criminal Appeal No. 344 of 2009)
Munish Bhasin and others Appellants Vs. State (Govt. of N.C.T. of Delhi) and another Respondents, decided on 2/20/2009.
Name of the Judge: Hon’ble Mr. Justice R.V. Raveendran and Hon’ble Mr. Justice J.M. Panchal.
Subject Index: Indian Penal Code, 1860 — section 498a and 406 read with section 34 — complaint filed by wife for alleged commission of offences under against him and against his parents — High Court imposed the condition of payment of Rs. 12,500/- as maintenance for release on bail — assailed — the direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs. 12,500/- per month by way of maintenance (both past and future) to his wife and child is hereby deleted. Rest of the directions contained in the said order are maintained.

(Case/Appeal No: Criminal Appeal No. 516 of 2006)
Pradeep Kumar Appellant/Petitioner Vs. State of Haryana Respondent, decided on 3/31/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 302 and 304B — conviction under — upheld by the DB of Punjab & Haryana High Court — appellant was sentenced to undergo rigorous imprisonment for life for the first offence but no separate sentence was imposed for the second offence — appellant alongwith two others faced trial. Each was charged for having committed offences punishable under Section 304(B) IPC and Section 498a IPC. Appellant alone was separately charged for offence punishable under Section 302 IPC — challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court upholding the conviction of the appellant for offence punishable under Sections 302 and 304(B) of the Indian Penal Code, 1860 — the only evidence adduced by the prosecution to substantiate the allegation of commission of offence punishable under Section 302 IPC is that the accused and the deceased stayed in the same house. That is not sufficient to hold the appellant guilty for offence punishable under Section 302 IPC on the facts of the present case. However, the accusations related to Section 304 B IPC are satisfied — while setting aside the conviction for offence punishable under Section 302 IPC, this Court upholds the conviction, so far as it relates to Section 304 B IPC.

(Case/Appeal No: Criminal Appeal No. 773 of 2003)
Sundar Babu and others Appellant(s) Vs. State of Tamil Nadu Respondent(s), decided on 2/19/2009.
Name of the Judge: Hon’ble Mr. Justice Arijit Pasayat, Mr. Justice Lokeshwar Singh Panta and Hon’ble Mr. Justice P. Sathasivam.
Subject Index: Criminal Procedure Code, 1973 — section 482 — petition under — dismissal by single Judge — challenged in this appeal — the complaint was filed on 6/2/2000 alleging commission of offence punishable under Sec.498a of the Indian Penal Code, 1860 and Sec.4 of the Dowry Prohibition Act, 1961 — the powers possessed by the High Court under Sec.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution — the appeal deserves to be allowed. The proceedings in Criminal Petition No. C.C.No. 385/2000 pending before the Judicial Magistrate, Palladam, are quashed.

(Case/Appeal No: Criminal Appeal No. 976 of 2001)
Satish Kumar Batra and others Appellants/Petitioners Vs. State of Haryana Respondent, decided on4/1/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — section 498a — conviction under — confirmed by additional sessions Judge — revision petition — dismissed by High Court — challenged in this appeal — six persons were arrayed as accused persons on the basis of information lodged by Santosh Kumari — nothing infirm in the judgment of the High Court in upholding the conviction of accused appellant Satish Kumar. The sentence imposed was two years. It is on record that he has undergone sentence of more than 13 months. He has been released on bail pursuant to order dated 9.7.2001. Therefore, while upholding the conviction, sentence is reduced to the period already undergone. So far as the appellant nos.2 & 3 i.e. Sunil Kumar and Satya Devi are concerned, the prosecution has not been able to establish the accusations so far as they are concerned.

(Case/Appeal No: Criminal Appeal No. 1080 of 2007)
Sohel Mehaboob Shaikh Appellant(s) Vs. State of Maharashtra Respondent(s), decided on 4/17/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 302 read with section 34, 498a and 323 read with section 34 — conviction under upheld by DB — the case of the prosecution is based on certain circumstances and the Trial Court and High Court found those circumstances to be sufficient to warrant the conviction of the appellant. The High Court found that the accusations for dowry torture were not established and therefor, it acquitted the appellant of the charge relating to Section 498a of the I.P.C. — the judgment of the High Court is assailed on the ground that the circumstances highlighted by the Trial Court and the High Court do not form a complete chain in order to rule out the innocence of the accused and to unerringly point at the accused to be author of the crime.

(Case/Appeal No: Criminal Appeal No. 828 of 2009)
Raman Kumar Appellant Vs. State of Punjab Respondent, decided on 4/24/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 304B and 498a — trial under — the learned Sessions Judge, Gurdaspur had directed acquittal of the appellant and two co-accused persons who faced trial for alleged commission of offences punishable under Sections 304B and 498-A of the Indian Penal Code, 1860 — Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court, dismissing the appeal filed by the State of Punjab in respect of co-accused Satish Kumar, Madan Lal and Asha while upholding the conviction of the present appellant — the High Court’s judgment is not only sketchy but also devoid of reasons. Various factors highlighted would go to show that the prosecution has squarely failed to establish the accusations so far as the appellant is concerned. Therefore, the appeal deserves to be allowed.

(Case/Appeal No: Criminal Appeal No. 1133 of 2001 with Criminal Appeal No. 1134 of 2001)
Kanti Lal with Arvind Kumar Appellant Vs. State of Rajasthan Respondent, decided on 4/17/2009.
Name of the Judge: Hon’ble Mr. Justice Lokeshwar Singh Panta and Hon’ble Mr. Justice B. Sudershan Reddy.
Subject Index: Indian Penal Code, 1860 — sections 304B and 498a — conviction under — by the impugned order, the High Court while dismissing the appeal of Arvind Kumar and Kanti Lal and confirming their conviction and sentence under Sections 304B and 498a of the Indian Penal Code, 1860 recorded by the learned Sessions Judge, Jalore, in Sessions Case No. 25 of 1993, has set aside the conviction of Sanwal Chand, Bhanwar Lal, Chetan Lal, Popat Lal and Smt. Bagtu and acquitted them of the charged offences — having regard to the entire evidence discussed above and having carefully and closely considered the judgments of the trial court and the High Court, it appears that the view taken by both the courts was reasonable and plausible — no infirmity or perversity in the findings recorded by the learned Judges of the High Court to interfere with the well-reasoned judgment.

(Case/Appeal No: Criminal Appeal No. 543 of 2004)
State of West Bengal Appellant Vs. Dipak Halder and another Respondents, decided on 5/8/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat, Mr. Justice D.K. Jain and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — sections 498a read with section 34 and section 302 read with section 109 — challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court directing acquittal of the three appellants before it who are described hereinafter as accused no. 1, 2 and 3 respectively. Respondent No.1-Dipak Halder was married to one Rimu. Alleging that deceased Rimu was killed by respondent No.1 and that she was tortured, for non-fulfillment of dowry on demand, prosecution was launched. Charge under Section 498a read with Section 34 of the Indian Penal Code, 1860 was framed against all the three accused persons. Charge under Section 302, IPC was framed against respondent No.1, Dipak Halder while charge under Section 302 read with Section 109, IPC was framed against other two accused persons — the circumstances point to only one conclusion, i.e. guilt of the accused-respondent no.1. The judgment of the High Court impugned in this appeal is set aside and that of the trial Court is restored.

(Case/Appeal No: Criminal Appeal No. 898 of 2009)
Shaikh Maqsood Appellant Vs. State of Maharashtra Respondent, decided on 5/4/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 498a , 304B and 302 — trial under — trial court acquitted the appellant of the charges relatable to Sections 498a and 304B while recording conviction under Section 302 IPC — challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court at Aurangabad Bench upholding the conviction of the appellant for offences punishable under Section 302 of the Indian Penal Code, 1860.

(Case/Appeal No: Criminal Appeal No. 79 of 2003)
D. Jayanna Appellant(s) Vs. State of Karnataka Respondent(s), decided on 5/6/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 304 B and 498 A — conviction under — upheld by the DB of Karnataka High Court — challenged in this appeal — though the evidence appears to be sufficient to bring in application of Section 498a, there is definite inadequacy to attrach Section 304B IPC — there is sufficient evidence relating to demand of dowry though for the purpose of Section304B, the evidence is not sufficient.

(Case/Appeal No: Criminal Appeal No. 774 of 2006)
Subramaniam Appellant Vs. State of Tamil Nadu and another Respondents, decided on 5/13/2009.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: Indian Penal Code, 1860 — section 498a and 302 — FIR under — the learned Sessions Judge by a judgment and order dated 14.11.2000 recorded a judgment of acquittal in favour of appellant. The State preferred an appeal thereagainst. By reason of the impugned judgment dated 15.12.2005, the High Court while affirming the view of the trial court with regard to the order of acquittal of appellant of the charges under Section 498a of the IPC and Section 4 of the Dowry Prohibition Act, however, recorded a judgment of conviction and sentence against him under Section 302 of the IPC opining that its findings were unreasonable — in view of the admission made by the prosecution witnesses, the High Court, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever — the High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution — the impugned judgment of the High Court cannot be sustained, which is set aside accordingly.

(Case/Appeal No: Criminal Appeal No. 1418 of 2003)
State of Maharashtra Appellant(s) Vs. Guntabai @ Bhagirathaibai and others Respondent(s), decided on4/21/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — sections 302 and 498a — three persons including the present respondent No. 1 faced trial for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 so far as present respondent No. 1 is concerned, and Sections 498a read with Section 34 IPC so far as all the three accused persons are concerned — judgment of acquittal passed by the learned Addl. Sessions Judge, Nasik — challenge in this appeal is to the judgment of the Division Bench of the Bombay High Court dismissing the appeal filed by the State of Maharashtra questioning the correctness of the judgment of acquittal passed by the learned Addl. Sessions Judge, Nasik.

(Case/Appeal No: Criminal Appeal No. 966 of 2009)
Sasikumar Appellant Vs. The State of Tamil Nadu Respondent, decided on 5/8/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Indian Penal Code, 1860 — section 302 — conviction upheld by DB of Madras High Court while setting aside the conviction in terms of section 307 — appellant faced trial in the Court of Sessions, Vellore and was convicted in terms of Sections 302 and 307 IPC. He was acquitted of the charges relating to Section 498a IPC — judgment of DB challenged in this appeal — though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant — the conclusions of the Trial Court and the High Court placing reliance on the dying declaration cannot be faulted.

(Case/Appeal No: Criminal Appeal No. 299 of 2003)
Manju Ram Kalita Appellant(s) Vs. State of Assam Respondent(s), decided on 5/29/2009.
Name of the Judge: Hon’ble Dr. Justice Mukundakam Sharma and Hon’ble Dr. Justice B.S. Chauhan.
Subject Index: Indian Penal Code, 1860 — sections 494 and 498a — conviction under— the High Court concurred with the finding of facts, recorded by the Trial Court dated 22.12.1999 passed by the Addl. Chief Judicial Magistrate, Kamrup — it is settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse — all the three courts below erred in not considering the case in correct perspective — in view of the aforesaid, conviction of the appellant under Section 498-A IPC and punishment for the said offence awarded by the courts below are set aside. However, conviction and sentence under Section 494 IPC are maintained.

(Case/Appeal No: Criminal Appeal No. 249 of 2004)
Shakson Belthissor Appellant Vs. State of Kerala and another Respondents, decided on 7/6/2009.
Name of the Judge: Hon’ble Dr. Justice Mukundakam Sharma and Hon’ble Dr. Justice B.S. Chauhan (Vacation Bench).
Subject Index: FIR and the charge under — petition for quashing the same — rejected by the Kerala High Court — appeal against the judgment — the High Court, however, without issuing any notice on the said petition rejected the petition holding that by no stretch of imagination it can be said that the FIR and the charge sheet do not disclose the commission of the offence alleged against the appellant — the scope and power of quashing a first information report and charge sheet under Section 482 of the CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive — on a reading of the FIR as also the charge sheet filed against the appellant no case under Section 498a is made out on the face of the record, and therefore, both the FIR as also the charge sheet are liable to be quashed in exercise of the powers under Section 482 of the CrPC — the High Court failed to appreciate the facts in proper perspective, and therefore, committed an error on the face of the record.

(Case/Appeal No: Criminal Appeal No. 1233 of 2009)
Raj Kumar Appellant Vs. State of Maharashtra Respondent, decided on 7/15/2009.
Name of the Judge: Hon’ble Mr. Justice R.V. Raveendran and Hon’ble Mr. Justice J.M. Panchal.
Subject Index: Indian Penal Code, 1860 — section 302 and 498a — conviction under — sentenced to imprisonment for life — the evidence on record shows that the deceased was totally unarmed. The appellant had inflicted blow with Polpat on the vital part of the body of the deceased, namely, head and inflicted the blow with such a great force that it resulted into her death. It is not the case of the appellant that the injury on the head of the deceased was accidental nor it is the case of the appellant that the blow was aimed on some other part of the body and because of supervening cause like sudden intervention or movement of the deceased the blow struck on the head. On the facts and in the circumstances of the case, it will have to be held that it was the intention of the appellant to cause that very injury which ultimately proved fatal — the offence committed by the appellant would be punishable as murder under Section 302 IPC and his case would not fall under the first part or the second part of Section 304 IPC.

(Case/Appeal No: Criminal Appeal No. 1234 of 2009)
Subodh Kumar Yadav Appellant Vs. State of Bihar and another Respondents, decided on 7/15/2009.
Name of the Judge: Hon’ble Mr. Justice R.V. Raveendran and Hon’ble Mr. Justice J.M. Panchal.
Subject Index: Indian Penal Code, 1860 — section 498a — bail granted to the appellant — cancelled — appeal — while considering the factors relevant for consideration of bail already granted vis-à-vis the factors relevant for rejection of bail, this Court pointed out that for cancellation of bail, conduct subsequent to release on bail and supervening circumstances will be relevant. The said observations were not intended to restrict the power of a superior court to cancel bail in appropriate cases on other grounds. In fact it is now well settled that if a superior court finds that the court granting bail had acted on irrelevant material or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the public prosecutor/complainant where required, an order for cancellation of bail can in fact be made — while cancelling bail, the superior Court would be justified in considering the question whether irrelevant material were taken into consideration by the court granting bail — this Court is of the opinion that the High Court did not commit any error in confirming the order of the Sessions Judge cancelling the bail which was arbitrarily granted to the appellant by the learned Judicial Magistrate First Class and, therefore, the instant appeal is liable to be dismissed.

(Case/Appeal No: Criminal Appeal No. 594 of 2004)
Undavali Narayana Rao Appellant Vs. State of A.P. Respondent, decided on 7/24/2009.
Name of the Judge: Hon’ble Dr. Justice Mukundakam Sharma and Hon’ble Dr. Justice B.S. Chauhan.
Subject Index: Indian Penal Code, 1860 — section 498a — conviction under by sessions Judge — affirmed by High Court of Andhra Pradesh — appeal — the High Court after appreciating the entire evidence concurred with the findings recorded by the Trial Court — no cogent reason to take a view contrary to the one taken by the courts below.

(Case/Appeal No: Criminal Appeal No. 938 of 2009)
U. Suvetha Appellant Vs. State by Inspector of Police and another Respondents, decided on 5/6/2009.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice R.M. Lodha.
Subject Index: Indian Penal Code, 1860 — section 498a — whether the term “relative of husband of a woman” within the meaning of Section 498a of the Indian Penal Code should be given an extended meaning is the question involved herein.

(Case/Appeal No: Criminal Appeal No. 1349 of 2009)
Sukanti Moharana Appellant Vs. State of Orissa Respondent, decided on 7/29/2009.
Name of the Judge: Hon’ble Mr. Justice Dalveer Bhandari and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Penal Code, 1860 — 304B and 498a — conviction under — setting aside — but conviction — under Section 302 — the High Court while upholding the conviction and sentence of the appellant under Section 302 of the Indian Penal Code also held that the dying declaration (Ext. gets independent corroboration from the oral dying declaration made by the deceased before her parents i.e. PW-1 and PW-3 as well as PW-4, PW-5 and PW-6 — taking an overall view of all the facts and circumstances of the case and the evidence on record, there is no ground to interfere with the order of conviction and sentence recorded by the trial court and confirmed by the High Court holding the appellant guilty of the offence under Section 302 IPC.

(Case/Appeal No: Criminal Appeal No. 67 of 2003)
Arun Kumar Sharma Appellant Vs. State of Bihar Respondent, decided on 10/5/2009.
Name of the Judge: Hon’ble Mr. Justice V.S. Sirpurkar and Hon’ble Mr. Justice Deepak Verma.
Subject Index: Indian Penal Code, 1860 — Section 302 read with 34, 498a & 304-B read with Section 34 — murder for dowry and cruelty on account of demand of dowry — accused convicted by Trial Court for committing murder of his wife — witnesses not inspired any confidence — found in the post-mortem report that the deceased had multiple bruises over front of neck varying in sizes and there was extra blood in the soft tissues of neck with fracture of hyoid bone of trachea — FIR sent to Magistrate after delay of 5 days — Investigation Officer not examined neighbours — apathy on the part of the I.O. to examining the house created suspicion — not appeared any serious effort made on the part of the appellate Court to delve deep into the record of the case and the evidence of the witnesses — due to the slip-shod investigation the death of deceased to go unpunished — benefit of doubt given to the accused — conviction order of trial Court and the appellate Court set aside — appeal allowed.

(Case/Appeal No: Criminal Appeal No. 949 of 2003)
Neelu Chopra and another Appellant(s) Vs. Bharti Respondent(s), decided on 10/7/2009.
Name of the Judge: Hon’ble Mr. Justice V.S. Sirpurkar and Hon’ble Mr. Justice Deepak Verma.
Subject Index: Indian Penal Code, 1860 — Section 406, 498a read with Section 114 — misbehaviour and cruelty on the part of the husband and his relatives — complaint filed by the complainant/respondent against her husband and parents-in-law on account of unreasonable demand of dowry — all the allegations made against the husband who had expired — no particulars given as to date on which the ornaments were handed over, as to the exact number of ornaments or their description — held that it did not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence — the order of High Court set aside and the order of the learned Magistrate taking cognizance quashed — complaint quashed — appeal allowed.

(Case/Appeal No: Criminal Appeal No. 2120 of 2009)
Suman Appellant Vs. State of Rajasthan and another Respondents, decided on 11/13/2009.
Name of the Judge: Hon’ble Mr. Justice R.V. Raveendran and Hon’ble Mr. Justice G.S. Singhvi.
Subject Index: Criminal Procedure Code, 1973 — Section 319 — power to proceed against other persons appearing to be guilty of offence — Indian Penal Code, 1860 — Section 498a — on the basis of complaint filed by the respondent No. 2 and statements recorded, the Investigating Officer filed chargesheet only against her in-laws but not against the appellant — application filed by the respondent No. 2 for issuing process against the appellant — Judicial Magistrate & Session Judge directed the appellant be summoned through bailable warrant — appellant challenged the revisional order as police not filed chargesheet against her — held that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C. if from the evidence collected the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused — whether the learned Judicial Magistrate was justified in taking cognizance against the appellant under Section 498-A IPC — Yes — statements of complainant’s parents in corroboration with that of the complainant, clearly spelt out the role played by the appellant in demand of dowry, physical and mental harassment — no interference in the orders of the Courts below — appeal dismissed.

(Case/Appeal No: Criminal Appeal No. 1469 of 2008)
Govindappa and others Appellant(s) Vs. State of Karnataka Respondent(s), decided on 5/11/2010.
Name of the Judge: Hon’ble Mr. Justice P. Sathasivam and Hon’ble Mr. Justice H.L. Dattu.
Subject Index: Indian Penal Code, 1860 — Sections 498-A/34 and 302/34 — cruelty by the husband and his relatives and punishment of murder — conviction and sentence under — as per the prosecution, the appellants poured kerosene on the deceased and appellant No.2 set fire in the presence of the neighbours and ran away from the house — due to 100% burn injuries, the victim died — the High Court confirmed the conviction/sentence orders of the A-1, A-2 and A-4 while acquitted A-3 and A-5 of the charges levelled against them — appeal — whether the Trial Court was justified in convicting the appellants-accused A-1, A-2, and A-4 for offences punishable under Section 498a, read with Section 34 IPC and Section 302 read with Section 34 IPC? — Yes — whether the sentence imposed upon the appellants-accused is justifiable? — Yes — whether the High Court is right in confirming the conviction and sentence imposed on the appellants? — Yes — prosecution witnesses narrated how the deceased Renuka was humiliated and harassed at the instance of the appellants — though A-3 and A-5 were implicated in the commission of offence but in the absence of further corroboration were rightly acquitted — evidence of PW-9 were found in full corroboration with the dying declaration — PW-12 recorded the dying declaration of Renuka and the same was recorded after ascertaining her condition from PW-7/Doctor — post-mortem report indicated the death due to shock as a result of 100% burn and also found smell of kerosene on deceased body — held no interference in the impugned orders of the High Court — appeal dismissed.

(Case/Appeal No: Criminal Appeal No. 1733 of 2008)
Uday Chakraborty and others Appellant(s) Vs. State of West Bengal Respondent(s), decided on 7/8/2010.
Name of the Judge: Hon’ble Dr. Justice B.S. Chauhan and Hon’ble Mr. Justice Swatanter Kumar (Vacation Bench).
Subject Index: Indian Penal Code, 1860 — Sections 498a/304B — cruelty against the married woman by her husband and his relatives/dowry death — conviction and sentence under — the couple has not even completed a period of two years of their marriage when it was alleged that because of dowry, the accused and other family members tortured the deceased/wife physically and mentally and forcibly burnt her — the learned Sessions Court found all the five accused persons guilty under Sections 498a/304B of IPC and sentenced them accordingly. However, the High Court acquitted two persons and convicted three persons/appellants for the offence — appeal — the prosecution examined 31 witnesses and the cumulative effect of the documentary and oral evidence on record clearly showed that the appellants have been rightly found guilty of the offence by the High Court as the subsequent statements of different witnesses have fairly established on record that she was tortured and harassed for satisfying the demand of dowry — held that the offence under Sections 304B read with 498a of IPC has been proved by the prosecution beyond any reasonable doubt — appeal dismissed.

(Case/Appeal No: Criminal Appeal Nos. 1182-1184 of 2010)
Vijeta Gajra Appellant Vs. State of NCT of Delhi Respondent, decided on 7/8/2010.
Name of the Judge: Hon’ble Mr. Justice V.S. Sirpurkar and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: Indian Penal Code, 1860 — Sections 498a and 406 — FIR registered under — for troubling the complainant on account of the dowry demands and for the offence of criminal breach of trust as alleged in respect of the diamond encrusted pendant and gold chain and earring set which the appellant had taken (practically stolen) in Sierra Leone — this Court examined the ingredients of Section 498a and found that reference to the word ‘relative’ in Section 498a, IPC would be limited only to the blood relations or the relations by marriage, therefore, held that the appellant/foster sister of the complainant’s husband not to be tried for the offence under Section498a, IPC. However, this Court desist from quashing the FIR altogether in view of the allegations made under Section 406 but protected the interest of the appellant by directing that she would not be required to attend the proceedings unless specifically directed by the Court to do so and that too in the case of extreme necessity — appeal disposed.

(Case/Appeal No: Criminal Appeal No. 854 of 2004 with Criminal Appeal No. 1411 of 2010)
Amar Singh Appellant(s) Vs. State of Rajasthan Respondent(s), decided on 8/3/2010.
Name of the Judge: Hon’ble Mr. Justice R.M. Lodha and Hon’ble Mr. Justice A.K. Patniak(Vacation Bench).
Subject Index: Cr. A – 1 — Indian Penal Code, 1860 — sections 498a and 304B — dowry death — conviction and sentence under — within 10 months of marriage, deceased was found dead in her in-laws house — deceased’s father lodged a written report that the deceased used to be harassed and humiliated in connection with demand of dowry — the trial court imposed the sentence of imprisonment for life to the accused persons with concurrent sentence and fine. The High Court acquitted other accused and confirmed the conviction of the appellant under Section 498a and 304B IPC — appeal — the appellant chose not to examine any defence witness to rebut the presumption of dowry death against him — the post-mortem report indicated that the deceased suffered 100% burns. PW-9/Doctor who performed the autopsy opined that the burns on the deceased were after strangulation and throttling — this court concluded that the statements made by the deceased before PW-4 and PW-5 that the appellant used to taunt the deceased in connection with demand of a Scooter or Rs.25,000/- within a couple of months before the death of the deceased are statements as to “the circumstances of the transaction which resulted in her death” — since there is no evidence as to the actual role played by the appellant in the death of the deceased, the impugned judgement of the High Court modified to the extent that sentence of life imprisonment imposed on the appellant reduced to RI for 10 years — appeal partly allowed. Cr.A – 2 — acquittal — appeal against — the High Court viewed that the prosecution failed to establish the charges against the mother and brother-in-law of the deceased beyond reasonable doubt — this court held that a prosecution witness who merely uses the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498a and 304B IPC — appeal dismissed.

(Case/Appeal No: Criminal Appeal No(s). 1419-1420 of 2010)
Ravindra Tukaram Hiwale Appellant(s) Vs. State of Maharashtra Respondent(s), decided on 8/2/2010.
Name of the Judge: Hon’ble Mr. Justice Harjit Singh Bedi and Hon’ble Mr. Justice C.K. Prasad.
Subject Index: Indian Penal Code, 1860 — sections 498a and 306 — cruelty against women by her husband and/or his relatives and abetment of suicide — the deceased suffered serious burn injuries in the kitchen of the house and ultimately died of those injuries. She made a dying declaration that she had a quarrel with her husband over the house-hold chores and over the feeding of the children and she had thereafter poured kerosene on herself and then burnt herself — the trial court convicted & sentenced the appellant to 1 year imprisonment u/sec. 498-A and to a sentence of 4 years u/sec. 306. The High Court enhanced the sentence awarded by the Trial Court under Section 306 IPC from four to six years — appeal — the trial court gave a positive finding that the incident was a spontaneous one arising out of a family quarrel in the morning — the sentence awarded by the High Court quashed and the judgement of the trial court confirmed — appeal allowed.

IPC 498a JUDGMENTS

gets independent corroboration from the oral dying declaration made by the deceased before her parents i.e. PW-1 and PW-3 as well as PW-4, PW-5 and PW-6 — taking an overall view of all the facts and circumstances of the case and the evidence on record, there is no ground to interfere with the order of conviction and sentence recorded by the trial court and confirmed by the High Court holding the appellant guilty of the offence under Section 302 IPC.

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IPC 498a JUDGMENTS

Categories: 498A Judgements

A 498A conviction judgement from Mumbai HC

December 9, 2010 Fighting Legal Terror Leave a comment

Bench: A Bhangale

1 apeal-524-96.doc

Ladda

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 524 OF 1996

(1) Ramchandra Kundalika Jadhav,

age 33 years, resident of Pusegaon,

Taluka Khatav, District Satara.

(2) Sau. Lata Ramchandra Jadhav,

age about 28 years, resident

of Pusegaon, Tal. Khatav,

District Satara.

(3) Sau.Subhadra Kundalika Jadhav,

age about 55 years, resident of

Pusegaon, tal.Khatav, District Satara.

(4) Shivaji Kundalika Jadhav,

age about 28 years, resident of

Pusegaon, Taluka Khatav,

District Satara. .. .. Appellants. versus

The State of Maharashtra .. .. Respondent. None for the Appellants.

Advocate Mr B.B.Rajput for the Appellants absent. Mr K.V. Saste, Additional Public Prosecutor for the RespondentState. 2 apeal-524-96.doc

CORAM: A. P. BHANGALE, J.

DATE : 29th NOVEMBER , 2010.

ORAL JUDGMENT.:

observation of the Supreme Court in S. J. Chaudhary vs. State (Delhi Administration) AIR 1984 SC 618 wherein it has been observed thus :

and decide the matter on merits [ See Parshuram and Anr Vs State of Orissa, (1994) 4 SCC 664].

3. I have heard the learned A.P . for the RespondentState. I have .P

also perused the appeal memo and the paper book. Learned A.P . took .P

Whoever, being the husband or the relative of the hus band of a woman, subjects such woman cruelty shall 6 apeal-524-96.doc

be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation, For the purposes of this section, “cruelty” means

expressed their readiness to pay fine instead of sentence of imprisonment.

(A. P. BHANGALE, J.)

10 apeal-524-96.doc

http://indiankanoon.org/doc/931072/

Categories: 498A Judgements

Karnataka DGP Circular – 498A arrest guidelines

November 3, 2010 Fighting Legal Terror 3 comments

Karnataka DGP Circular – 498A arrest guidelines

English Translation:

No: 10/ /2010 Director general and Inspector General of Police

Station, Nrupatunga road, Bangalore

Date: 01-10-2010

Sub: Under 498, 498a I.P.C and Dowry prohibition act, the Procedure to arrest the Accused.

Based on the study of complaints of 498, 498a IPC and Dowry prohibition act, some of the cases registered against the husband and his near and dear innocent relatives found making false allegation. It is common that in these kinds of complaints the petitioner happens to involve the accused relatives. And after investigation it is seen that the in this type of complaints the accused remains/found as innocent. The Police officers make mistake without making the decision whether they have to arrest accused or not after collecting the correct witness and proof of evidence.

According to Orders of Honorable Supreme court of India in Jogindar Kumar vs Uttar Pradesh state direction. Police officers have got power to arrest as per C.R.P.C 41. BUT before arresting they have to do the investigation and collect the enough witness and proof of evidence. Then they have the confirm whether he/she (accused) can be arrested. Then the accused is arrested. Otherwise Arresting the accused based on the complaint of anybody or because of the names are there in FIR is not correct.

Taking the consideration as per above guideline of Honorable Supreme court of India, It is necessary to take Action to Protect the Human rights of any innocent human being.

Because of this before arresting any person (Female, Male and Children’s) under these acts, the investigation report should be reviewed by the corresponding superintendent of police/Deputy commissioner of police and upon getting the permission only the accused should be arrested. In this regard the corrsponding police officers should submit the collected evidence to corresponding superintendent of police/Deputy commissioner of police for review. The higher offices after analyzing the merits and each of the accused, they have to take decision to whether to arrest or not. It is proper to arrest once after getting the permission.

In all there kinds of complaints or Acts .The procedure should be followed or noticed by all higher officials.

Director general and inspecter general of police

To,

1) To all police offices (Names)

2.) To all police officers K.G.F and Railways.(Names)

Copy

To all jurisidiction Police officers

DGP_Circular_kanada_1

DGP_Circular_kanada_2

Categories: Advisary,Circular,Directions from Court

498A IPC

October 29, 2010 Fighting Legal Terror 1 comment

498A 498A 498A 498A 498A 498A 498A 498A 498A 498A 498A 498A

Categories: IPC 498A

Cannot go back on settlement: FIR Quashed

September 22, 2010 Fighting Legal Terror Leave a comment

Equivalent citations: I (2008) DMC 442

Bench: S N Dhingra

Rajesh And Ors. vs State And Anr. on 17/1/2008

JUDGMENT

Shiv Narayan Dhingra, J.

1. By the instant petition under Article 226/227 of the Constitution of India read with Section 482 Cr.P.C., the petitioners sought quashing of the FIR No. 30 of 2007 under Section 498A/406/34 IPC read with Section 3/4 of Dowry Prohibition Act registered with Police Station Bhajanpura, Delhi and quashing of another FIR bearing No. 659 of 2006 under Sections 323/506/34 IPC registered with Police Station Anand Vihar, Delhi.

2. The above two FIRs were a result of matrimonial discord. After registration of these FIRs, a compromise was arrived at between parties before the Court of Ms. Reena Singh Nag, ASJ, Karkardooma Courts, Delhi and this compromise was signed by both parties. It reads as under:

COMPROMISE DEED

THIS COMPROMISE DEED is executed on 19th day of January, 2007 at Delhi between:

Sh. Rajesh s/o Sh. Mukut Lal r/o V.P.O. Jawli, P.S. Loni, Distt.

Ghaziabad, U.P. (hereinafter referred to as FIRST PARTY/HUSBAND).

AND

Smt. Neelam w/o Sh. Rajesh D/o Sh. Yudhvir Singh r/o A-42, Village North

Ghonda, Delhi (hereinafter referred to as SECOND PARTY/WIFE).

That both the parties had got married on 02.03.2006 at Delhi according to Hindu Rites and Customs.

IN WITNESSES WHEREOF both the parties have entered into the compromise on the following terms and conditions:

1. That with the intervention of the relatives and friends both the parties have amicably resolved their matrimonial differences and it has been amicably settled that both the parties shall get their marriage dissolved from a competent court of law as it is not possible for both the parties to reunite and live together.

2. That the First Party will pay a sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) to the Second party against her entire claims as full and final settlement and the said sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) includes past, present and future maintenance, divorce by mutual consent, permanent alimony, dowry/Istridhan articles including jewellery, quashing of FIR No. 30/2007 under Section 498A/406/34 IPC r/w Section 3/4 of Dowry Prohibition Act of P.S. Bhajanpura, Delhi, quashing of FIR No. 659/2006 under Section 323/506/34 IPC of P.S. Anand Vihar, Delhi, withdrawal of complaint case titled as Neelam v. Rajesh and Ors. pending adjudication in the Court of Shri S.K. Malhotra, MM, Karkardooma, Delhi fixed for 26.2.2007 and both the parties further agrees to withdraw every complaint/cases filed by them against each other in any court of law and hereinafter there shall be no civil or criminal litigation between the parties relating to the marriage.

3. That it has been mutually agreed that a sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) shall be disbursed to the Second Party as under:

(a) Rs. 5,00,000 (Rupees Five Lacs Only) before the Ld. Sessions Judge, Karkardooma at the time of grant of bail to the First Party and his family members in case FIR No. 30/2007 of P.S. Bhajanpura, Delhi under Section 498A/406/34 IPC read with Section 3/4 of Dowry Prohibition Act.

(b) Rs. 4,00,000/- (Rupees Four Lacs Only) before the Hon’ble Court at the time of recording of the Joint statement of Second Motion of Divorce by mutual consent and the said joint petitions of divorce by mutual consent shall be filed by both the parties in the month of March, 2007 or earliest possible.

(c) Rs. 4,50,000/- (Rupees Four Lacs Fifty Thousand only) before the Hon’ble High Court of Delhi at the time of quashing of FIR No. 30/2007, P.S. Bhajanpura, Delhi under Section 498A/406/34 IPC r/w Section 3/4 of Dowry Prohibition Act and FIR No. 659 of 2006 of P.S. Anand Vihar, Delhi under Section 323/506/34 IPC which have been registered on the complaint of the brother of the Second party.

4. That it is mutually settled between the parties that the entire dowry/Istridhan articles shall be retained by the First party and the said sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) includes the value of the said articles also which is being paid by the First party to the Second party.

5. That it is further agreed that the Second party shall cooperate, sign and hand over the relevant documents for transfer of the Indigo TDI SX Car bearing Registration No. DL-4C-U-7037 in favor of the First party at the time of final payment but before one month the signatures of the owner of the aforesaid vehicle shall be got verified from the Transport Authority for the purpose of verification of signature. However, relevant sale documents will be given finally at the time of final payment and in case any other relevant document is required by the Transport Authority the Second party undertakes to cooperate and to do the needful at the time of final payment.

6. That it is further agreed between the parties that the said compromise arrived between the parties is binding and enforceable.

7. That in case of non-fulfillment of the above mentioned compromise the Second party shall be at liberty to initiate legal proceedings against First party and his family members and the present compromise deed shall stand null and void and in case the Second party do not cooperate and perform the above mentioned acts, the First Party shall be entitled for refund of the amount received by the Second party as mentioned above.

8. That the present compromise have been arrived and signed by both the parties without any threat, force, fraud, coercion, pressure or undue influence from any side and at their free will without any collusion.

IN WITNESSES WHEREOF both the parties have signed on this Compromise Deed on the day, month and year mentioned above.

Witnesses:

SD/-

1. (FIRST PARTY/HUSBAND)

SD/-

2. (SECOND PARTY/WIFE)?

3. It is submitted by the petitioners that in terms of the compromise a sum of Rs. 5 lac was paid to the respondent No. 2 at the time of grant of bail and another sum of Rs. 4 lac was paid to respondent No. 2 before the Court of Shri Deepak Jagotra, Additional District Judge at the time of making joint statement for grant of divorce by mutual consent in petition No. 127 of 2007 and remaining amount of Rs. 4.5 lac was to be paid by the petitioner to respondent No. 2 before this Court at the time of quashing of the aforesaid two FIRs. The respondent No. 2 in terms of the compromise was to sign the transfer documents of car bearing registration number DL4CU7037 in favor of petitioner No. 2 before this Court. Respondent No. 2, give her specimen signatures on the documents/letters regarding transfer of vehicle before the Court of Shri Deepak Jagrotia, for verification but deliberately put her signatures in Hindi while her signatures before Transport Authorities were in English. When the petitioner No. 1 went for verification of signatures, he found that the signatures were not tallying because respondent No. 2 signed the documents in Hindi while her signatures were actually in English. Respondent No. 2 was also to withdraw her complaint filed against petitioner No. 1 titled as Neelam v. Rajesh pending adjudication before the Court of Shri S.K. Malhotra, Metropolitan Magistrate. The respondent No. 2 neither withdrew her complaint nor put her correct signature on sale/transfer documents qua vehicle. When she was approached by the petitioner to sign the quashing petition and receive balance amount before this Court and cooperate in quashing of the above noted two FIRs, she refused to do so. The petitioners, therefore, approached this Court for quashing of the above-mentioned FIRs.

4. Notice of the instant petition was served upon the respondent No. 2. It is contended by respondent No. 2 in the written submissions filed before this Court that she has no objection insofar as quashing of FIR bearing No. 30 of 2007, Police Station Bhajanpura is concerned, however, on account of the acts of the petitioners, she considered that the petitioners were not entitled for any relief. She alleged that in fact the petitioners failed to honour the compromise and the spirit behind the compromise. The FIRs were to be quashed subject to the condition that petitioners will pay a sum of Rs. 13,50,000/- , out of which, Rs. 9 lac has been received by respondent No. 2, the remaining amount of Rs. 4.5 lac has not been paid by the petitioners to respondent No. 2. The respondent No. 2 served a legal notice dated 13th April, 2007, reminding the petitioners about failure on their part to pay the balance amount. However, the petitioners failed to respond to this notice, instead the petitioners approached the Court of Shri S.C. Malik, Additional Sessions Judge for appropriate directions to respondent No. 2 to give her signatures on the transfer form. The respondent No. 2 told the Court of Shri S.C. Malik that she had already given her signatures on the transfer form.

5. It is not disputed by respondent No. 2 that she signed the transfer documents in Hindi and her signatures before the Transport Authorities for the registration of vehicle were in English. However, she took the stand that had the petitioners any grievance in this regard, they would have responded to the legal notice of by respondent No. 2 to the petitioners and would have paid the remaining amount of Rs. 4.5 lac in terms of the compromise to respondent No. 2. It is stated that the petitioners No. 1, 2 and 3 are the police officials and they were misusing their position and they know all tricks of the game. She reiterated that it were the petitioners who were not cooperating for quashing of the above FIRs.

6. In this Court, an offer was made to respondent No. 2 that she should receive the balance amount of Rs. 4.5 lac in the Court, she should cooperate in quashing of above FIRs, on which respondent No. 2 contended that since the amount had not been paid for long time and the vehicle has also been used by the petitioners, she was entitled to an additional amount by way of interest over this amount. She also took the stand that there was no compromise regarding quashing of other FIR and she shall not cooperate in quashing of FIR No. 659 of 2006.

7. Undisputedly a statement of petitioner No. 1 and respondent No. 2 was recorded before the Court of ADJ on 3.2.2007 at the time of granting divorce by mutual consent. The statement made by the petitioner No. 1 and respondent No. 2 reads as under:

We have already settled all our claims and disputes against each other, qua this marriage, with regard to maintenance, past, present and future, permanent alimony, dowry, stridhan, in full and final.

We have settled the matter for an amount of Rs. 13,50,000/- (Rs. Thirteen lacs and fifty thousand only) towards full and final settlement, out of which an amount of Rs. 5,00,000/- (Rupees Five Lacs Only) has already been received by petitioner No. 2 and out of the remaining amount an amount of Rs. 4,00,000/- (Rs. Four Lacs Only) is handed over to petitioner No. 2 today, by way of Demand Draft, bearing No. 242055, dated 03.02.2007, drawn on Indina Overseas Bank, and the balance amount of Rs. 4,50,000/- (Rupees Four Lacs and Fifty Thousand Only) shall be handed over to petitioner No. 2 at the time of quashing of FIR No. 30/07, Under Section 498A/406/34 IPC and 3/4 Dowry Prohibition Act, PS Bhajanpura and FIR No. 659/06, Under Section 323, 506, 34 IPC PS Anand Vihar, before Hon’ble High Court.

It has been further agreed between us that petitioner No. 2 shall cooperate in the proceedings of getting the above mentioned two FIRs quashed. It has been further agreed between us that petitioner No. 2 shall withdraw her complaint case, pending in the Court of Shri S.K. Malhotra, Ld. MM, Delhi. It has been further agreed between us that petitioner No. 2 shall execute all the necessary documents for the transfer of vehicle No. DL 4CU 7037. Petitioner No. 2 has handed over all the documents relating to the transfer of the above said vehicle to petitioner No. 1, however, it is made clear that petitioner No. 2 has executed all the documents for the purposes of verification, her signatures, etc. in the concerned authority.

It has been further agreed between us that the above said vehicle shall be completely transferred in the name of petitioner No. 1 only after the full and final payment of Rs. 13,50,000/- (Rs. Thirteen Lacs and Fifty Thousand only) shall be made by the petitioner No. 1 and till the complete transfer, all right, title or interest shall remain with petitioner No. 2.

It has been further agreed between us that as the vehicle is in the possession of petitioner No. 1, since 02.03.2006, he shall remain bound by all the consequences, relating to the vehicle, including insurance, court cases. Etc.

We have also agreed that we shall not file any sort of litigation in future relating to this marriage.

8. A perusal of above statement coupled with the compromise mentioned above would show that it was categorically agreed between petitioners No. 1 and respondent No. 2 that on receipt of total amount of Rs. 13.5 lac, the above two FIRs, lodged at the behest of respondent No. 2 and her relatives shall be got quashed and the respondent No. 2 shall cooperate in quashing of these two FIRs. The amount of Rs. 4.5 lac was to be handed over to the respondent No. 2 at the time of quashing of the above two FIRs. It was also agreed between parties that respondent No. 2 shall execute all requisite documents for transfer of the vehicle (car) and she will withdraw her complaint pending adjudication in the Court of Shri S.K. Malhotra, Metropolitan Magistrate and that she will not initiate any sort of litigations in future qua this marriage and that the vehicle shall remain in possession of petitioner No. 1 and he would be responsible for all consequences pertaining to the vehicle like insurance, court proceedings etc. The petitioner No. 1 has denied having received any notice from respondent No. 2 and stated that this writ petition for quashing was filed by the petitioner in July, 2007 after the statement of parties before the Court of learned ASJ was recorded in February, 2007.? The petitioner was to arrange the balance amount of Rs. 4.5 lac and after arranging the same, had approached respondent No. 2 for cooperating in quashing the above referred two FIRs but respondent No. 2 declined to cooperate. It is submitted that respondent No. 3 who is father of R-2 and an advocate had all along been instrumental for all the troubles and that is the reason why respondent No. 2 did not cooperate.

9. Respondent No. 2 made a statement before the court on 3.2.2007, after entering into compromise, with the petitioners, that she would honour the compromise. She has to adhere to the statement made by her before the Court. She had already received a substantial amount of Rs. 9 lac, out of the total amount of Rs. 13.5 lac, as agreed between the parties. ?She had only to receive the balance amount of Rs. 4.5 lac. On receipt of the same, she had to agree for quashing of the above two FIRs and for withdrawal of the complaint filed by her before the Court of Shri S.K. Malhotra, MM, Delhi. The balance amount of Rs. 4.5 lac was to be paid to her by the petitioners in the Court at the time of quashing of FIRs. Respondent No. 2 cannot be allowed to make mockery of the Court proceedings, nor the statement made by her in the Court can be considered a trash. Respondent No. 2 now cannot be allowed to back out from the compromise or to wriggle out of the statement made before the court. If it is allowed, there shall be no sanctity to the Court proceedings and the statements made by the witness and the parties before the Court.

10. In view of above discussion, I allow this writ petition. The above two FIRs and the criminal complaint pending before the Court of Shri S.K. Malhotra, MM, Delhi are hereby quashed. The petitioners are directed to deposit the balance amount of Rs. 4.5 lac by way of a pay order/Bank Draft in this Court within three days in the name of respondent No. 2. Respondent No. 2 will be at liberty to withdraw this amount from this Court immediately thereafter.

11. With above directions, this writ petition stands allowed.

Categories: 498A Judgements

Provisions of Section 498A are being used to convert failed marriages into a crime

September 22, 2010 Fighting Legal Terror Leave a comment

Equivalent citations: I (2008) DLT 337 Bench: S N Dhingra Narender Kumar And Anr. vs State (Govt. Of Nct Of Delhi) [Along With Crl. Appeal Nos. 748, 749 And 787/2004] on 1/11/2007 JUDGMENT Shiv Narayan Dhingra, J. 1. These appeals have been preferred against the judgment of learned Additional Sessions Judge dated 10th September, 2004 whereby he convicted the appellants under Section 498A read with Section 34 IPC and Section 307 read with Section 34 IPC and against the order of sentence dated 14th September, 2004 whereby he sentenced each of the appellants to undergo RI for 02 years and a fine of Rs. 3,000/- under Section 498A and RI for 07 years and a fine of Rs. 5,000/- under Section 307/34 IPC. 2. The brief facts necessary for deciding these appeals are that complainant Veena Rani was married to accused Gyan Prakash on 24th November, 1997. She was admitted to Safdarjung Hospital on 9th May, 2002 by her husband at about 10.00 p.m. with 25 % burns. She told the doctor that she received burn injuries accidentally while she was cooking food on LPG stove and her dupatta caught fire accidentally resulting into burn injuries. Her MLC Ex. PW 3/1 shows that her pulse rate, Blood Pressure were normal her chest was clean she was oriented to time, place and persons. The injuries present on her body showed that she was having thermal burns on upper parts of the body i.e. upper exteme face, lower abdomen and some patches over the back. Police was informed of the admission by the duty constable in hospital vide DD No. 4A (Ex. PW 1/1) on the night of 9th and 10th May, 2002. The investigation was given to ASI Ramesh Chand, who requested SDM to come to hospital and record statement of Smt. Veena. Statement of Smt. Veena was recorded by SDM on 10th May, 2002. Doctor’s endorsement of her being fit for giving statement is Ex. PW 12/1. In her statement given to SDM (Ex. PW 2/2) she stated that on previous night around 7.00 p.m. she was at home, her jethani and mother-in-law were also at home, LPG Stove was lying on floor. She was standing near the stove and food was being cooked. Her dupatta caught fire from the LPG stove and she cried of catching fire, her mother-in-law and jethani extinguished the fire. Her husband was on duty at the time of incident. Thereafter, she was brought to hospital by her husband. She had been living happily with her family and was not being harassed for dowry, everybody in the family loved her. The incident was an accident and she had no doubt on anyone. She was in full senses and gave the statement without any pressure. 3. Father of complainant Roshan Lal came to see her on 10th May, 2002 itself. On 11th May, 2002, her father made an application Ex. PW5/1 to SDM wherein he stated that her daughter Veena was being mistreated by her inlaws. His son-in-law Gyan Prakash was having no business or work and due to this reason his family members used to throw him out of the house and on this attitude of family of his son-in-law, he had to bring his daughter to his own house sometime for four months and sometime for six months. His daughter was having one son, who was also living with him for about last three years. Due to unemployment of his son-in-law he got his daughter employed in a private firm as a labour, so that she could maintain herself. During this period he had also been sending his daughter to in-laws house with the help of inter-mediators. Mother-in-law of his daughter told him that he should get his son-in-law Gyan Prakash settled by opening a clothier shop for him. Since he (father-in-law) was not a rich person this was not possible for him. On 9th May, 2002 around 7.00 p.m. girl’s two jeths (brothers-in-law) viz. Narender and Vijay, two jethanis (sisters-in-law) viz. Om Prabha and Nirmal and mother-in-law viz. Jeevani Devi @ Jamuna Devi and her husband Gyan Prakash poured kerosene oil on his daughter and set her on fire. He was not informed of the incident. However, he got information on 10th May, 2002 at 10.00 a.m. from some acquaintance that Veena had met with an accident. So, when he went to know well being of his daughter at her in-laws’ house there her father-in-law Pandit Prabhati Lal told him that Veena was in burns ward of the Safdarjung Hospital. When he reached Safdarjung Hospital he learnt that SDM had already recorded his daughter’s statement. His daughter told him that she made statement to SDM as per the wishes of her in-laws since her in-laws had threatened her that they would kill her and her son and that she would be divorced. By his application Ex. PW5/1 he requested SDM that another statement of his daughter Veena should be recorded. 4. After the application made by father of complainant, SDM again recorded a statement of the complainant Venna (Ex. PW 2/1). In this statement complainant stated that her husband Gyan Prakash used to do a private job and she herself was doing a private job. She was having a child around 3? years old. For about a month after her marriage she was kept by her in-laws properly thereafter her in-laws started harassing her on small things. She remained at her parents house for 8-9 months thereafter. She was again called by her in laws after a compromise and she remained at her in-laws for about two months thereafter. After two months she was against harassed for dowry. She used to be told that she had no brother and she had brought so less dowry. She again went to her parents’ house and lived there for about 8-9 months and again came back to her in-laws house after a compromise and she was living at her in-laws house since 8th December, 2001. About 15 days before the incident she had a quarrel with her Jeth and mother-in-law. Her in-laws had purchased a Maruti Car on the day of Holi Festival and they told her that in case she wanted to remain alive she should bring 2? lac rupees or a clothier shop be opened for her husband in Chandni Chowk. She refused to accede to these demands telling her that her father had no money. On this she was told to pack up and go from the house. This quarrel continued till the days of the incident. On the night of Wednesday again a similar quarrel took place and her in-laws gave her beatings and all went for sleeping. On Thursday morning she got up and cooked meals and got ready for going to office. She was told by her in-laws that in case she wanted her safety, she should bring 2? lac from her parents or she should call her father. She however, went to her office/job and after doing her job came back home. When she came back from office, all members of the family viz. both her jeths, jethanis and mother-in-law were sitting in the house. Her in-laws asked her why she had not brought her parents. When she went to her room, she found that her goods were lying packed. Her mother-in-law and jethani abused her and told her that she should pick up her goods and go away. When she refused they bolted the main gate from inside and her jeth said that she should be beaten. Jethani said that she should be burnt and cremated. In the meantime her mother-in-law brought kerosene oil in a tin and poured kerosene oil on her. When she cried then her elder jethani lit fire and set her ablaze. She cried for being saved then all of them went away from there. A bucket full of water was lying there, she picked up the bucket, poured water on herself the fire got extinguished. She asked them to take her to hospital, on this they started beating her. She kept lying in the house for about two hours and they told her that they would take her to hospital only if she would not testify against them otherwise her son and father would be killed. When she agreed to this, she was removed to hospital. She was also threatened on the way to hospital and even beaten. She made her earlier statement under pressure. Her earlier statement was not correct. Since her parents had met her in the hospital now she was under no fear and had made the statement without pressure. Her mother-in-law her jeths viz. Narender and Vijay, her husband Gyan Prakash her jethanis Om Prabha and Nirmal had burnt her. 5. The accused persons were put to trial under Section 406/498/307/34 IPC. Smt. Veena appeared as PW 2 and testified against the accused persons more vehemently, making improvements even over her second statement given to the SDM. Her father and mother also testified against the accused persons and based on the statements, the appellants were convicted. 6. The learned Trial Court observed that the two contradictory statements made by Veena before SDM have been explained and the testimony of the complainant given in the Court was trustworthy and cannot be looked upon with suspicion. The Trial Court also observed that had the complainant been having nice time with her in-laws and been loved and respected as stated in the first statement, she would not have turned a somersault and implicated everyone of her family merely because her father had come to the hospital and met her. The Trial Court observed that earlier statement made to the SDM was under a threat and therefore could not be used to erase the credibility of complainant’s testimony in the Court. The Trial Court also observed that had the incident been an accident only, the appellant would have not concealed the incident from the father of the complainant and would have immediately informed the father of the complainant. The fact that father of the complainant was not informed about the incident by the in-laws/appellants proves guilty mind of the appellants. The Trial Court brushed aside the contradictions in the ocular testimony of complainant and the medical evidence observing the same being inconsequential holding that the doctor who examined her had not taken the case of the complainant seriously and considered it as a case of accident and not a case of burning. Trial Court also brushed aside the contradiction in the stand taken by the complainant about the incident in her maintenance petition and in the Court on the ground that there must have been communication gap. There were other contradictions in the statement of complainant made in the Court and the earlier statement but all these were considered as immaterial by the Trial Court. 7. It is argued by the counsel for the appellants that the Trial Court had grossly ignored the entire sequence of the evidence and the circumstances which proved that the complainant had made false statement in the Court out of vengeance, only to see that her husband, who was not earning well and was not able to maintain her properly and the in-laws should be taught a lesson. 8. As per testimony of PW 2 complainant, made in the Court after marriage, the accused started asking her to bring 2? lac from her father or to get a shop opened for her husband. This part of the testimony is contrary to Ex. PW 5/1, a written application made by her father to SDM wherein her father had clearly stated that her son-in-law Gyan Prakash was unemployed and for this reason he was turned out by his family and he (PW 5) was forced to keep his daughter with him sometime for 04 months and sometime for 06 months and he also had to get his daughter employed as a labour in a private company. She in her statement to SDM and in court tried to make out a case as if she lived at her parents’ house for 8-9 months together due to dowry demands. Her statement in Court is also contrary to her second statement made to SDM implicating her inlaws. In Ex. PW 2/1 she talked of demand of Rs. 2? lac after purchase of a car by in-laws on Holi festival of 2002 while deposing in Court she alleged of this demand from day one of her marriage. It is clear that it was not a case where the in-laws were demanding 2? lac after marriage of the girl but it was a case where the girl was married with a boy who was practically unemployed and had no source of earning. The boy must have been unable to earn livelihood and for this reason he was being turned out from the house by his own family members. Had the in-laws been trying to extract money and been asking Rs. 2? lac from the parents of the girl, they would not have turned out their own son. Once a person grows up and attains age of majority, gets married, he has to earn for himself and his wife. His elder brothers or parents cannot be expected to sustain him and his family even after his marriage. Because of joint family system prevalent in India sometimes the parents go out of way to help such of their sons, who are not able to earn properly and do establish them in business or help them to earn livelihood but that is possible only if the parents are having enough money for this. Where the parents belong to poor or middle class and do not have enough money to extend this help, they have no alternative but to turn out such non-earning persons hoping that this would compel him to sustain himself by striving and struggling. Ex. PW 5/1 is the first admitted written account from complainant’s father that Gyan Prakash was being turned out from house time and again, so that he was able to sustain himself and struggle for himself and it seems ultimately Gyan Prakash got some private job and started going on work. Complainant in order to sustain herself also got a private job with the help of her father and the couple left their son with maternal grand parents out of poverty. The initial period of their married life went like that. It has come in evidence that father of the girl was running a clothier shop in Gurgaon. It is possible that the parents of Gyan Prakash had asked father of the complainant to help Gyan Prakash in opening a clothier shop when he was unemployed however, there was no dowry demand alleged by PW 5 in his application Ex. PW 5/1. Had there been any persistent dowry demand as testified by PW 2, nobody stopped PW 5 from writing the same in his application made to SDM. 9. Let me consider the different statements made by the complainant in this case. In her first statement, she told SDM that she met with an accident. Presuming that this statement and the story of accident told by the complainant to the SDM was made under pressure but there was no pressure on the complainant as far as other facts are concerned. In her first statement, made to SDM she stated that her husband was on duty at the time of incident and at that time her mother-in-law and jethani were at home. One may consider that there may be pressure on her to say that she had caught fire by accident but there could be no pressure on her to mis-state about the presence of persons in the house at the time of the incident. As per her first statement, except her mother-in-law and one jethani, no one was present at home at the time of incident. However, in the second statement Ex. PW 2/1 she stated that her mother-in-law, two jeths and two jethanis were present at the time of incident and her husband was not there when incident of burning took place. Her jethani and mother-in-law bolted the outer door from inside. In her statement before the Court she went further and made her husband also present at the time of incident and stated that it was her husband who bolted the door from inside at the time of incident. It is obvious that her testimony in respect of presence of persons at the time of incident is changing from one statement to other and the effort was gradually to implicate every member of the family. This reflects the mental process of the complainant who seems to wrack vengeance against the family by implicating one after statements of the family members in successive. 10. In her testimony, she alleged that a number of times she used to be confined in a room under lock and sometimes she used to be kept hungry for two days at stretch and sometimes she used to be turned out of the house. She has not stated any such thing in Ex. PW 2/1 her second statement to SDM. Moreover, she was a working girl. She was attending her office at Gurgaon and used to commute by the conveyance provided by the company, as is admitted by her in her cross examination. She was working as a labour. If she had been confined in the room for a number of days she would not have been able to attend office and would have been terminated from service for regular absence from the office. This aspect of her testimony whether she was attending office regularly or not could not be verified by the IO because she in her statement to the SDM had not stated that she was confined by her in-laws in the room. Keeping her hungry is also not believable since she was living with her husband in a separate room, as is admitted by her in cross-examination and she was going to office daily. She herself stated that on the day of incident she had cooked meal in the morning and went to office. A lady who used to cook food herself cannot be kept hungry by others. Moreover, she had every opportunity of taking meals at her work place. Her purse recovered from the room contained Rs. 1,500/- showing she used to carry sufficient money to enable her to meet her requirements. In her statement before the SDM she stated that her husband was doing a private job, while in her testimony before Court she stated that her husband was not working anywhere. In her statement before the SDM she stated that she was being taunted by in-laws that she had no brother while in her testimony she admitted that she had a brother. In such a case nobody could have taunted her that she had no brother. In her testimony she stated that there was no telephone at her parents’ house and telephone was installed only after the incident. However, her father PW 5 in his testimony stated that there was a telephone in house even before the incident and demand of Rs. 2? lac was made by mother-in-law on telephone and accused Narender and Vijay also talked on telephone. He also asserted that he was informed about the incident by some acquaintance on telephone. 11. Her testimony seen in the light of previous admitted statement shows that in order to implicate each member of the family she changed the version of incident. In her testimony in the Court she described the incident of burning her differently. She stated that her mother-in-law Jeevani Devi @ Jamuna brought Kerosene Oil and when she tried to save herself running here and there, she was held by her both jeths (brothers-in-law) and her sisters-in-law Nirmal pressed her hand against her mouth to prevent her from raising alarm and then mother-in-law poured kerosene oil and her elder sister-in-law Om Prabha set her ablaze. Her husband had bolted the main door from inside and did not try to save her. After she was set ablaze, she rushed to tap and poured water kept in a bucket on her. She also tore her clothes and extinguished the fire, of her own efforts. Her testimony in the Court was recorded on 1st May, 2003. She was in a better position to remember the details on 11th May, 2002 i.e. soon after the incident when she described the incident to SDM in Ex. PW 2/1. The description of incident given by her in her statement to SDM on 14th May, 2002 is altogether different from the description given by her in the statement given in the Court. She has nowhere stated in her earlier statement that she had torn her clothes. She did not state that she was held by her two jeths or her mouth was gagged by her jethani Nirmal or her husband bolted the door from inside and kept watching but did not try to save. In a case of maintenance her allegations changed. Her unemployed husband suddenly started earning Rs. 8,000/- p.m. and she was set ablaze by her jethani Nimal and not Om Prabha. All these improvements and changing versions have been made by her just to see that entire family is implicated. 12. It is her own case that a container of 05 litres of kerosene oil was poured on her. 05 litres of kerosene oil is an enormous quantity of oil and if this quantity is poured on a person and fire is lit, he/she will immediately turn into a fire ball. Presuming that the complainant had extinguished the fire immediately by pouring a bucket full of water on herself and by tearing her clothes, in that case the unburnt kerosene oil would remain on clothes and she would have been profusely smelling of kerosene oil. Not only her clothes but her entire body would have been drenched with kerosene oil and her clothes would have been drenched with kerosene oil and water. It is not her case that when she was removed to hospital her clothes were changed or she was washed off and bathed, rather her allegations are that she was continuously beaten for two hours before having been removed to the hospital and she kept lying there for two hours in kerosene oil and water. It cannot be believed that on seeing a patient in such a condition, doctor would have closed his eyes and would not record the condition in the MLC. There is no mention of smell of kerosene oil coming from her body in MLC, there is no mention of traces of kerosene oil on her clothes, there is no mention of her clothes being torn, there is no injury on any part of her body except the burn injuries in the MLC. A woman, who had been continuously beaten for about two hours definitely would receive some injury on some part of the body but no injury of the nature was found on her body as per MLC. The oral testimony of Smt. Veena/complainant is totally in contradiction with the medical testimony. 13. It is rightly said that men may lie but circumstances do not. Her lies have been nailed down by the circumstances. There is no seizure of torn clothes soaked with kerosene oil or water, there is no seizure of kerosene oil container by the IO moreover, there is no mention of kerosene oil smell either from body or from clothes and there is no mention of torn clothes by the doctor in the MLC. All these circumstances show that the entire story put forward by the complainant was a cooked up story and no kerosene oil was poured on her. 14. If two of her jeths had caught her so that she could be doused with kerosene oil and one jethani had gagged her mouth as alleged by her, nothing would have stopped them from burning her completely so that she did not survive. It only seems that none of the persons except mother-in-law and one jethani were even present when incident of burning took place and the incident seems to be an accidental burning and that is why she received only 25% burns at upper part of her body near neck. The nature of injuries confirms to her first version that her dupatta caught fire, fire travelled through dupatta to her upper portion. Since dupatta is normally worn by ladies around neck and keeps hanging the burns in this case seen to be due to presence of dupatta on the upper portion i.e. on neck and back that fire had travelled through dupatta on the upper parts of clothes worn by her. 15. Trial Court has heavily relied upon a presumption against the accused persons that parents of the girl were not informed. This is also belied by the witnesses. PW 13 (Raghbir Prashad) is brother-in-law of the complainant (sister’s husband). He learnt about the incident on 9th May, 2002 i.e. on the day when the incident happened from his father-in-law who informed him on telephone about the incident. However, he did not visit Veena at the hospital and met Veena at her residence only after 5-7 days of the incident. This witness has not been cross examined by the APP on any point. He is a prosecution witness. This testimony cannot be brushed aside. This shows that father of girl was informed on 9th May, 2002 itself, that is why he could inform PW 13 on telephone on 9th May, 2002 but since the incident was not so serious and the burns were received accidentally and complainant was not in any danger of life, it was not taken seriously by this witness and he did not even visit his sister-in-law at the hospital and met her only when she came back home after 5 days. The non-serious nature of the incident is also reflected from the testimony of Smt. Kanta PW 6, who is mother of the complainant. She stated that she was informed about the incident by her husband, who made her a telephone call in the morning of Saturday i.e. 11th May, 2002 and thereafter she went to hospital. Had the incident been serious her husband would have informed her at least on 10th May, 2002 when she claimed that he learnt about the incident and she also would have visited her on the same day along with her husband. 16. PW 2 testified in the Court that after getting her bandaged, none of her in-laws looked after her and all left the hospital. Her testimony is belied by the testimony of her own father. Her father stated that when he reached hospital on 10th May, 2002 her mother-in-law, brother-in-laws etc. all met him in the hospital. Similar is the testimony of her mother, who visited her on 11th May, 2002. It shows that PW 2 was out to speak patent lies in the Court. 17. There is another important factor in this case which shows that the case of dowry demand and breach of trust under Section 406 IPC was falsely foisted on the accused persons. PW 11 Sushma Rawat, SI CAW Cell, who investigated the case testified that she had visited the house along with the complainant and all her jewellery, dowry articles etc. were found in the room in which she was residing when she was living with her in-laws. It was her room and there was an almirah in the room and the key of the almirah was in the purse of the complainant. The purse was also lying in the same room and her entire jewellery and Rs. 1500 were found in the almirah. That shows that complainant and her husband were living separate in one room and her entire dowry articles and istridhan was in her own custody and none of the other in-laws had any kind of greed to take away her jewellery or her articles neither her goods were lying packed. The story of demand of Rs. 2? lac seems to be an invention made by the complainant and her father just to make a false case against the accused persons. Her father in his testimony stated that mother-in-law and brothers-inlaw demanded Rs. 2? lac from her on telephone much prior to the incident. Had it been so PW 5 in his written application Ex. PW 5/1 would have mentioned about this demand because in this application he has mentioned everything possible against the accused persons. A demand of Rs. 2? lac seem to be invented in consultation before making statement to the SDM and that is why when subsequent statement was recorded by the SDM of complainant, her father and mother this demand was included in the statement while prior to that in Ex. PW 5/1 there is no mention of demand of Rs. 2.5 lac neither it is mentioned that boy wanted a shop for him to be established in Chandni Chowk, what mentioned is the abject poverty of the boy and his inability to earn. 18. I consider that the story of the complainant that she was threatened by her husband and in-laws for making statement to doctor and SDM about her accidental burning is palpably false. Her husband was not even at home when the incident took place. Her husband used to go for his job and perhaps come back home after the arrival of his wife. He was working as a labour. The son of parties was living at Gurgaon with father of the girl. Her husband was not a criminal neither it is alleged that he had any criminal background. A poor man who was starving for his survival and had to work as a labour from morning till evening for livelihood, could not have given threats to kill his own son and father-in-law. This story of threat seems to have been developed later on by the complainant in consultation with father. The question would arise why the complainant would falsely implicate her in-laws. It is undisputed that complainant was not happy with her matrimonial life. Her husband was an idle man, who earlier was not doing any job. Complainant had to live at her parents’ house for 8-9 months together because of poverty of her husband. Complainant’s son was also being brought up by her father because of the poor financial condition of her husband. Complainant herself had to take a job as a labour. She was living with her husband while her son was living with her father in Gurgaon, miles away. It seems that after the incident her father advised her to call it a day and break this relationship once for all. But simultaneously it seems that it was decided that the in-laws must be taught a lesson for ruining the life of the complainant as she was got married to a worthless boy. May be some false representations were made at the time of the marriage about the worth of the boy. It is not uncommon that someone may decide to end the unhappy married life. It looks that the complainant made allegations of threat etc. only to turn a ‘U’ turn, as she and her parents had decided to call it a day for the unhappy married life of the complainant. 19. It must be understood that god had not made any two persons same with the same ideas, qualities and it must be acknowledged that marriages do fail and there is a mismatch not only in arranged marriages but even in love marriages. The mismatch is discovered during the continuation of married life. No doubt poverty is a curse and a poor man has to suffer in the society at different fronts but I consider that despite poverty being a curse, poverty cannot be made a crime. Neither the failed marriage can be made a crime. In this case, the poverty was not only a curse for the boy but it made to be a crime since due to his poor condition he could not provide all that which he should have provided to the wife and the wife ultimately saw to it that not only he but everyone of his other family members land in jail. Every marriage that fails does not fail due to dowry demand or cruelties. The marriages do fail for several other reaons including the reason of incompatibility of the persons. A failed marriage is not a crime however, the provisions of Section 498A are being used to convert failed marriages into a crime and the people are using this as tool to extract as much monetary benefit as possible. In many cases, where FIRs are filed under Section 498A IPC, petitions are being filed under Section 482 Cr.P.C. for quashing of FIRs after settlements between the parties and the allegations made of cruelties etc. are withdrawn the moment a lump sum payment is received. Involving each of the family members of the husband is another arm in the armory of the complainants of failed marriages. Not only close relatives but distant relatives and even neighbours are being implicated under Section 498A and other provisions of IPC in cases of failed marriages. The Courts must be very cautious during trials of such offences. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. No evidence about giving of dowry or resources of the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law. The investigating agency in all such cases must collect all circumstantial and other evidence in respect of claims made by the complainant and similarly Courts should always be careful in considering the credibility and truthfulness of the statement of the complainant and relatives. 20. From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement implicated the entire family in offences of under Section 307 and 498A IPC. The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence. Poverty should not be allowed to become a crime. Neither failed marriage be permitted to be a crime. 21 I allow these four appeals. All the persons/appellants are acquitted of Section 498A and Section 307 IPC. 22. The appellants, namely, Gyan Prakash in Crl. Appeal No. 787/2004 and Smt. Jeevani Devi @ Jamuna Devi in Crl. Appeal No. 749/2004 are directed to be released forthwith. A copy of the judgment be sent to the Superintendent, Central Jail, Tihar.

Categories: IPC 498A Misuse Judgements

FIR was a gross misuse of criminal justice system: Quashed by Delhi HC

September 22, 2010 Fighting Legal Terror 1 comment

Harvinder Singh Khurana And Ors. vs The State (Nct Of Delhi) And Anr. on 9/10/2007

JUDGMENT

Shiv Narayan Dhingra, J.

Page 2906

1. This petition under Article 226 read with Section 482 Cr.P.C. for quashing of FIR No. 1198/06 under Section 498A/406/34 IPC registered at PS Lajpat Nagar filed by respondent No. 2 against the three petitioners. Petitioner No. 1 is husband of the respondent No. 2 and while petitioners No. 2 and 3 are jeth and jethani (brother-in-law and his wife) of respondent No. 2.

2. The petitioner No. 1 was married to respondent No. 2 on 19th July, 1992. They have two children. A perusal of FIR shows that the complainant/respondent No. 2 made allegations in FIR that at the time of marriage her parents had given dowry but the petitioners were not satisfied with the dowry given and she was taunted that the dowry articles were not up to the mark. The elder brother of her husband Parvinder Singh Khurana and his wife played a leading role in causing harassment, humiliation to the respondent No. 2 by describing the dowry articles as sub-standard and insufficient as a result that the relations between her and her husband were strained and never cordial. She was also asked to bring Rs. 2 Lac from her parents for enhancement of their business, which demand could not be fulfillled. She continued to live with the petitioner hoping that happy days may come and good sense may prevail upon but it did not happen. She made specific allegations against her husband in the FIR in the following terms:

That the husband of the applicant Sh. Harvinder Singh has been indulging in bad habits like drinking, womanizing etc. The applicant also made her best efforts that he should leave his bad habits but all in vain. He is daily drinker and some time, he come to house at objectionable hours in the dead night and dead drink on being objected by the applicant, he always created rowdy scenes even annoy the neighborers and to the applicant. He is in habit of hurling filthy abuses and he is also in the habit of beating physically to the applicant and thereby caused physical and mental tortures. It has been learnt by Page 2907 the applicant that the husband of the applicant also keeps a concubine and reside with her at Panipat. The applicant has been subjected to cruelties to the extent that he has created serious horror in her mind and she has a serious apprehension to her life.

She further made allegations in the FIR in the following terms: He stopped the Taxi and brought out can of petrol etc. and he wanted to throw the petrol etc. over the applicant but fortunately, the parents of the applicant helped her in getting her inside the door and bolted. He tried to throw the petrol and some petrol poured on her clothes. When he failed in his attempt, then out of frustration, he poured the petrol himself and lit himself. As a result of that he sustained burn injuries and he was removed by the police who had come immediately at the spot and he was admitted to Civil Hospital, Anandpur Sahib but later on he was shifted to P.G.I. Chandigarh. The entire expenses were borne by the father of the applicant. Later on, his family members came at the Chandigarh Hospital and he tried to blame the parents of the applicant. However, the police registered a case Under Section 309 IPC at PS Anandpur Sahib vide FIR No. 75/01 dated 22.8.2001.

3. It is undisputed that the respondent No. 2 had also filed a petition under Section 10 of Hindu Marriage Act for judicial separation from her husband. Copy of this petition being HMA No. 2/2003 is placed on record. In this petition, respondent No. 2 stated that relations between her and her husband became strained after about two years of marriage, however, the dispute between respondent No. 2 and her husband was amicably settled by mother-in-law. After the death of mother-in-law her husband again started teasing and maltreating her on flimsy matter specially after consuming liquor and started beating her and threw her out of matrimonial home along with her daughter. There was intervention of relatives and she was sent to her matrimonial home on the assurance of her husband that he would behave properly. Even after that, behavior of her husband did not improve and he gave threats to burn her forcibly by pouring kerosene oil. She went to her parents’ house and narrated about these threats to her parents. Again the matter was got resolved and petitioner No. 1 again promised not to drink liquor in future, not to misbehave and give threats and respondent No. 2 joined his company. However, the maltreatment of respondent No. 2 at the hands of petitioner No. 1 continued and his threats also continued with the result that she had to leave the company of petitioner No. 1 along with children on 24th May, 2001. She got a job of teacher in Anandpur Sahib and got admitted her children there and she started living there since May, 2001.

4. Nothing is stated by respondent No. 2 in her petition under Section 10 about any dowry demand made by any of the petitioners or any cruelty perpetuated on her by petitioners No. 2 and 3 or any role played by them. A perusal of petition would show that since 1994 respondent No. 2 and petitioner have been living separately; first they lived at G-1 Railway Colony Shahdara, then they lived at Sector 13, Rohini and then they lived at Karol Page 2908 Bagh. Petitioner No. 2 and 3 had not been living with them since 1994 when they shifted to Rohini. Respondent No. 2 had also filed an FIR at District Ropar on 22.8.2001 in respect of incident of pouring petrol on petitioner No. 1 on himself and in that FIR she gave following account:

I was married to Harvinder Singh Khurana @ Goldi son of Sh. Kulwant Singh Khurana respondent of 14/1076, Naiwalan Karol Bagh, New Delhi on 19th July, 1992. My husband is running a shop of spare parts of Maruti. My husband daily use to haras me after taking liquor after my marriage. I inform the same to my parents, my parents tried to convince to him, but he did not understood. Resulting which I along with my children came to Anandpur Sahib to my parents from Delhi in the month of May, 2001. I am working as private teacher in Mata Sahib kaur academy school, Anandpur Sahib. My two children are studying here. My husband so many time told me on phone I shall brought back my children, in case you did not give the children to me, I shall make suicide before you. On 21.8.2001, I along with my children went to Mata Sahib Kaur Academy Anandpur Sahib for teaching, then my husband came to academy in my class where I was teaching to the children, I told him it is not permitted to come in the school, you can talk me outside the school gate after school time. After holiday I return back to my house along with children through school bus. It was 4, ‘O’ clock from leaving bus near my house gate my husband was coming towards behind me who was having can in his hand who told me that children be handed over to him failing which I shall throw kerosene oil upon myself and set fire, I told him that I shall not permit the children to go with you in this condition, then in my presence he poured kerosene oil upon him and set fire through match stick in front of me.

5. After the incident of burning of petitioner No. 1 petitioner No. 1 moved Punjab and Haryana High Court making allegations that he was set on fire by his in-laws and he had not made attempt to commit suicide. Punjab and Haryana High Court vide order dated 24.1.2002 gave directions to the SHO of PS Anandpur Sahib to investigate/inquire into the version given by petitioner No. 1, as contained in his statement made to judicial magistrate and take further action according to law.

6. It is obvious that the present FIR is contrary to the earlier complainants by the respondent No. 2 to the Courts. The allegations made in the present FIR in respect of her harassment by petitioners No. 2 and 3 for dowry or taunting for dowry do not stand anywhere. She has been living separate with her husband since 1994. In her complaint she stated that her husband was a drunkard and womanizer and maltreating her because of his drinking habits. Her husband attempted to commit suicide in her presence when she refused to hand over the children to him. It was not her case that her husband tried to pour kerosene oil on her as alleged in the present FIR.

7. Although this Court must be loath in quashing FIR and FIR should be quashed in rarest of rare cases. FIRs can be quashed only in those cases where either the criminal justice system is being put to gross misuse and is used as a tool to settle the scores by making such allegations which can Page 2909 stand even the initial scrutiny by the Court and are made malafidely or in those circumstances where, if all facts are considered as true, still no commission of a offence is revealed. In the present case, the respondent No. 2/complainant was living separate from her husband since May, 2001. She was living at Anandpur Sahib and alleged incident of attempt to commit suicide took place in August, 2001 and is being investigated there. Her husband lodged a complaint that it was not an attempt to suicide but it was an attempt to killing. During pendency of these complaints she filed a petitioner under Section 10 of Hindu Marriage Act for judicial separation from her husband, her husband filed a petition under Section 9 of Hindu Marriage Act. In none of these complaints or petitions there was even a talk of harassment for dowry or involvement of any other family member in the dispute between husband and wife. Suddenly in 2006 when she filed this FIR she implicated elder brother and his wife in this FIR making allegations of dowry demands, despite the fact that they were living separate from them since 1994.

8. It is apparent that this FIR was a gross misuse of criminal justice system. Respondent No. 2 in order to settle the score with her husband implicated other family members for dowry harassment while there was no complaint prior to that and she was married to petitioner No. 1 for about 14 years before lodging of this complaint and had two children. Her main allegation even in FIR are against her husband, who has been stated to be a drunkard and womanizer. I consider that FIR lodged by the respondent No. 2 against petitioners No. 2 and 3 regarding her harassment for dowry or taunting is a malafide and needs to be quashed. I, therefore allow this petition and criminal proceedings arising out of FIR No. 1198/2006 PS Lajpat Nagar in respect of petitioners No. 2 and 3 are hereby quashed. As far as petitioner No. 1 is concerned, serious allegations of cruelties being perpetuated by him from the very beginning of his marriage are stated in the FIR against him and the police shall investigate the crime vis-a-vis petitioner No. 1.

The writ petition stands disposed of with above directions.

Categories: 498A Judgements

498A cannot be used to settle her personal scores : Quashed by Delhi HC

September 22, 2010 Fighting Legal Terror 2 comments

Equivalent citations: II (2007) DMC 644

Bench: S N Dhingra

Kanchan Gulati And Anr. vs The State And Ors. on 12/9/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant).

2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs. 2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs. 1,46,000/- and an amount of Rs. 4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.

3. On 06.5.1997 her husband filed a divorce petition in the Circuit Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.

4. Quashing of this FIR has been prayed for by the petitioners. It is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.

5. The complainant has not disputed about her contesting divorce petition and filing an appeal before the US Court. The orders of the US Court have been placed on record. The decree passed by the USA Court has not been challenged. The order of the US Court shows that the complainant had taken up all grounds like withholding her property, dowry etc. by her husband. The US Court directed the parties to exchange articles and passed following order:

A. That the bonds of matrimony now existing between the petitioner, ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.

B. That the marital home located at 1258 S. Pleasant Hill Gate, Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.

C. That each party shall receive his or her own vehicles and each shall execute any documents necessary to transfer the title of the vehicle to the other.

D. That each party shall receive his or her own personal property currently in his or her possession. That the Husband shall receive the following personal property as his sole property which shall be delivered to him by the Wife on March 21, 1999:

Sharp TV

Bed (with frame, and box spring)

Sharp Microwave

Small fridge

Cooking Utensils and accessories

Spices

Square side table (brown, wood)

3 Chairs ( wood frame and brown leather seat) Dining Table and Chairs

2 Chairs (steel frame, leather seat)

Glass top tables

Comforter from aunt

Utensils, spices and other stuff from my relatives.

E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.

F. That the Husband shall receive his stock options as his sole property.

G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.

H. That each party is barred from any maintenance from the other.

I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife’s interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.

J. That the parties shall exchange their dowry items within 60 days of the entry of this Judgment for Dissolution of marriage. The Wife shall give to the Husband all the items on the attached list:

One gold chain with pendant

One gold “krishna murti” pendant with diamonds. One diamond ring

one pair of big earrings (mina wale)

2 pair of earrings

one gold ring ( given on Kwar-dhoti)

one pair of silver paizeb

one long mangal-sutra (mina wala)

Bangles

One (1) Golden Challa (sister-in-law)

The Husband shall give to the Wife all items on the attached list:

One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings) One Sitarami Necklace (Necklace only)

One Gold Chain given to me

One Gold and Diamond engagement ring

One Gold wedding band

One Gold coin (guenea)

One Double gold chain given to my mother

One Gold chain given to my sister-in-law

Two gold rings (1 for my father, 1 for my brother) Two silver trays (rectangular)

One silver tray (circular)

One silver small bowl (katori)

One wedding saree

One luggage carrier (foldable cart)

Check book for bank account in Anuja’s name

6. The appellate order passed by the appeal court would show that appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfillling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.

7. Quashing of FIR in exercise of writ jurisdiction is a discretion of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.

8. I consider that it is a rarest of rare case, where the Court should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.

Categories: IPC 498A Misuse Judgements

Justice Shiv Narayan Dhingra sets aside conviction under 498A/308/34

September 22, 2010 Fighting Legal Terror Leave a comment

Equivalent citations: I (2007) DMC 723

Bench: S N Dhingra

Surender Kumar And Anr. vs The State (Nct Of Delhi) on 7/3/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this appeal the appellants have assailed the judgment dated 18.3.1999 passed by learned Addl. Sessions Judge whereby the appellants Surender Kumar and Ashwani Kumar were convicted under Section 308 read with Section 34 of Indian Penal Code and Surender Kumar was convicted under Section 498A IPC as well and against the order on sentence dated 23.3.1999 whereby the appellant Surender Kumar was sentenced to undergo RI for two years and fine of Rs. 1000/- under Section 498A IPC and the two appellants were sentenced to RI for five years and fine of Rs. 1000 under Section 308 read with Section 34 of IPC.

2. The case was registered against four persons on the statement of complainant Mamta who, in her complaint dated 9.3.1992, stated that she was living with her family at House No. 86/14, Sector-I, Pushp Vihar, New Delhi. She was married to appellant Surender Kumar on 2.2.1992. Her parents used to live at Sarojini Nagar. A day before the incident, her husband had taken her to her parents house and then brought her back to her matrimonial home at 4 pm. On the night intervening 8th and 9th March, 1992, she was beaten up by her husband and to suppress her cries from outsiders, a tape recorder was played. Daily she used to be told that she had brought less dowry and she should bring more dowry. On the morning of 9.3.1992, she telephoned her father and called him. Her father and brother came to her matrimonial home to take her to her parents’ house. When they (she, her father and brother) had come downstairs for going to parental house, her husband called her upstairs to open the lock of Almirah. On her going upstairs, her husband and her Dewar Ashwani Kumar, bolted the door from inside and thereafter both of them picked her up and threw her down from balcony, due to which she received injuries on her body. She further stated that her mother-in-law, brother-in-law Braham Prakash (elder brother of husband), her husband, her other brother-in-law Ashwani Kumar should be prosecuted as per law. A case under Section 498A/308/34 IPC was registered against all the four persons namely Surender Kumar, Braham Prakash, Ashwani Kumar and Parmeshwari Devi. All the four were charged under Section 498A read with Section 34 of IPC while appellant Surender Kumar and Ashwani Kumar were also charged with Section 308 read with Section 34 of the IPC.

3. Mrs. Mamta appeared as PW-1 before the Trial Court and in her testimony before the Court she did not restrict herself to the statement given by her initially to the police and made a lot of improvements in that. Before the Court, she stated that all the accused persons harassed her and tortured her for not bringing sufficient dowry. Accused Surinder used to tell her that she would meet the same fate as wife of Narender. Accused Braham Prakash also used to say same thing and they used to say that her parents were supposed to pay huge amount of dowry. Regarding 8.3.1992, she deposed that on that day she had gone to her parents house as she was told by her husband that she should bring Rs. 25,000/- from her parents as he was to purchase a scooter. Her husband Surender left her at her parents’ house. She told her parents to give her Rs. 25,000/- but her parents had no money to give her. She brought certain certificates along with her from her parents’ house since she was to clear SSC Examination. Accused Surender had also told her and threatened her to return from her house within 15 minutes otherwise he would kill her. She was then taken to her matrimonial house at Preet Vihar and there her mother-in-law asked her if she had brought Rs. 25,000/- from her parents house. She told her mother-in-law that she had not brought money as her parents were not in a position to pay the amount. On this, her husband Surender switched on a tape recorder on high pitch and gave her beatings and told that she would be given more beatings when Ashwani would come. On 9.3.1992, on her making a telephone call, her father and brother came to her in-laws’ house at about 8 am and she told them that she was beaten and should be taken away from the house. The accused persons told her father and brother that she would be sent in the evening or on the next day. However, she was not prepared to remain in the house of her husband as she feared for her life as earlier her husband Surender had told her that acid would be thrown on her person and he had brought acid for that purpose. When she tried to pack her clothes, accused persons did not allow her to do so. However, she came downstairs despite resistance of accused persons. They used to live at 3rd Floor. Accused Ashwani and Surender (appellants in this case) came downstairs and told that their mother was calling her and wanted to know where the keys of almirah were kept. She, therefore, went upstairs. On her reaching upstairs in the room, Surender bolted the door from inside. Accused Ashwani, Surender and Parmeshwari Devi were in the room. Her mother-in-law Permeshwari Devi did not allow her to go to her parents’ house but she requested her to allow her to go to her parents’ house. On this, she was given beatings with fists and slaps. She was not allowed to escape from there and then accused persons told her that she would be allowed to go from different passage. She was then dragged to the balcony and accused Surender, Ashwani and her mother-in-law physically lifted her and thrown her on the ground floor from 3rd floor. She sustained injuries on her legs, her back bone and other parts of body. She lost consciousness but regained it in the hospital. She was removed to Modi Hospital. From there she was removed to Safdarjung Hospital on 10.3.1992 where she remained admitted up to 1.5.1992.

4. During cross examination, she admitted that after 3 days of her marriage her husband had taken her to her parents’ house and both of them came back on the same day. She admitted that thereafter she and her husband had gone to Nainital for honeymoon. They stayed in hotel ‘Madhuban’ at Nainital for five days. She admitted that both of them enjoyed their honeymoon and they had prepared photographs of the tour. After they came from honeymoon, her brother came to her in-laws’ house to take her but her husband and mother-in-law did not send her with her brother. She admitted that there were four flats at each storey but stated that none of the family came to her rescue. The reasons for not coming to her rescue by neighbours as given by her is that the appellant Surender had beaten up all the neighbours and all the neighbours were afraid of him. There was no telephone connection either at the house of her parents or at the house of her in-laws. She further admitted that she was going out for shopping from her matrimonial home right from the day one of her marriage. She used to be sent for purchasing vegetables daily. She did not give any telephone message to her parents regarding beatings by accused prior to 9.3.1992. She went to her parents house after 5/7 days of coming from Nainital and she told her father about the beatings but her father neither told this fact to any other relative nor reported the matter to the police. Next day at around 12 am, her husband Surender came to her parents’ house with her and talked to her parents. He threw bedsheet on them saying that same was of sub-standard quality. Her parents told her not to go back with her husband but since she wanted to settle herself in husband’s family, she went along with her husband against the advise of her parents. However, on the same night she was beaten up by accused Surender and Ashwani and she became unconscious. Again she improved herself and stated that she had not become unconscious. She used to be beaten till the accused persons got tired. During these beating sessions, she sustained injuries on her head and blood came out. However, she did not go to hospital or doctor or did not undergo any dressing. She admitted that she had been going to learn typing and shorthand from her matrimonial home and in her class there were 50 students in the batch. She did not tell any of her colleagues about the ill-treatment meted out to her. She stated that police had not recorded her statement ever, so she had not told about demand of Rs. 25,000/-. She had not told her father about the demand of Rs. 25,000/- or that her husband would kill her. She told that she was afraid of telling these things to her father as her husband always used to keep revolver with him. She telephoned her father in the morning of 9.3.1992 at about 6.45 am when she went to take milk from the milk booth. She had telephoned at the house of a neighbour of her parents house. Though she was apprehending danger to her life but she made no effort to go to her parents house despite having opportunity to go to her parents house from the milk booth directly. She further stated that her mother and father had reached her ‘in -laws’ house at 8 am and they sat in the drawing room. Ashwani and Surender were in the drawing room and they all talked in her presence. In the presence of her father, the accused persons talked nicely as if they were having lovely relations with her. The talks continued till 12.30 pm and it was only at 12.30 pm when she told that she was going with her father and mother, accused persons told her that they were not willing to send her with her parents but if she wanted to go, she may go. She denied that suggestion that her husband had made a complaint to her parents that she was having illicit relations with somebody who used to come to meet her in his absence when he was in the office. She denied that when her husband made this complaint, she ran speedily and fell down from stairs and received injuries on her person. She admitted that she had decided not to live at her in-laws’ house after sustaining injuries. She admitted that accused persons used to visit her in the hospital but stated that they used to visit to torture her.

5. Her father appeared as PW-5 and in his testimony he admitted that before marriage the accused persons had told him that he should not spent a single paisa on marriage. He admitted that after marriage Surender and Mamta had gone for honeymoon to Nainital and they had come back happily. He admitted that his statement was recorded by the police at the hospital and he did not state to police that on 9.3.1992 her daughter told him on phone that she was beaten up on previous night by her in laws. He admitted that in his statement to the police, he had got recorded that the accused persons had agreed to sent Mamta with him after exchange of hot words. In cross examination, he further admitted that Mamta and Surender were living in a separate house and rest of the accused persons were living in a separate house with their family. He, however, stated that mother-in-law of Mamta was living with Mamta and Surender. Accused Ashwani was a constable in Delhi Police. He denied that Ashwani was not present on the place of occurrence on 9.3.1992. He admitted that the accused Surender was in the hospital when he reached there after admission of Mamta. Other accused persons had also come to the hospital. He stated that after seeing her daughter in injured condition, he decided not to send her to her in-laws house. He denied the suggestion that appellant Surender had told him that one boy used to come to visit his daughter in his absence.

6. Brother of Mamta who was allegedly present at the time of this occurrence has not been examined on the ground that he was not in India. Prosecutrix Mamta stated that she became unconscious after she fell and she regained consciousness only in the hospital. Same is the statement of father of the prosecutrix that he became unconscious on hearing his daughter fell from the 3rd floor and he regained consciousness after sometime. Thus, neither PW1 nor PW5 are the witnesses as to who took Mamta to hospital. Their testimony that Ashok, brother of Mamta, took her to hospital is baseless. On the contrary, DD No. 8 was recorded on 9.3.1992 at about 1.30 pm by the Duty Officer wherein it is stated that doctor of Modi Hospital through telephone gave information at about 1.30 pm that Mamta wife of Surender r/o 86/14, Sector-I, Pushp Vihar was admitted to the hospital by her husband Surender since she had injured herself by falling from the stairs and somebody should be sent. From this DD, it is obvious that it was husband of Mamta who got her admitted in the hospital. It has come in the testimony of PW-5 that Surender was present in the hospital when he reached the hospital. I consider that there was no reason that doctor at the hospital had any motive to give false information to police that Mamta was brought to hospital by Surender, her husband.

7. It is admitted by PW-5 that before marriage of Mamta, Surender, appellant, and his relatives had told him that he need not spend even a single paise on the marriage. If the appellants, or any of their relations were dowry seekers, they would not have told this to the father of the complainant. They would have rather welcomed if dowry was given. Appellants specifically telling the father of the complainant that he need not spent a single paise on the marriage, proves that they were not dowry-seekers. A list of articles of dowry received back by the complainant show the articles as kitchen utensils, one sewing machine, one double bed, one steel almirah, one wrist watch, ladies personal articles, one sofa and a central table. This would show that the parties to the marriage belonged to middle class family. Both of them were not having telephone at their houses and they were living a lower middle class standard.

8. The marriage took place on 2.2.1992. It is obvious that she would have reached her matrimonial home on 3.2.1992. She went to her parents house after 3 days of marriage. Surender accompanied her and in the evening they come back. After a day or so they proceeded for honeymoon to Nainital. They stayed at Nainital in a hotel for five days. There was no problem between them and they come back happily. She went to her parents’ house after 5-7 days of honeymoon and stayed there over night. She makes no complaint to her parents either of beatings or dowry demand. Her allegations that she used to be beaten after every three days, black and blue till the accused persons got tired of beating her, does not find support from circumstances and her own conduct. She used to go every morning for bringing milk and vegetables from the milk booth. She also used to go for shopping. She daily used to go for learning typing and shorthand. Obviously her traveling had to be by bus. She went to her parents house after 5/7 days of coming from honeymoon and then on 8.3.1992. Her husband accompanied her on both occasions. If she had been beaten black and blue as told by her , there was no reason for her to come back to her matrimonial home. She could have refused to accompany her husband from her parents house and reported the matter to police. Her testimony that her husband was keeping revolver with him and had brought acid and in order to suppress her cries he played the tape recorder, are not supported by any of the recoveries made from the house. She did not tell all these facts to the police in her complaint. No recovery of tape recorder, acid or revolver is made from the house of appellant. There was no tape recorder in her own dowry articles.

9. The total stay of the prosecutrix at her matrimonial home is hardly 35 days. Out of these 35 days, first 10 days, she stated, she lived very happily, rest 25 days she was going to learn typing and shorthand almost daily. She was going to market to bring vegetables, milk etc. She visited her parents’ house minimum twice and stayed there overnight once. Her husband accompanied her to her parents’ house both the times. In her complaint to the police, no specific instance of dowry demand is stated by her and the only allegation made by her is that she used to be told that she had been given less dowry. She did not state anything about throwing of bed sheet complaining that the bed sheet was of poor quality or of demand of Rs. 25,000/- for scooter. In her statement to the police, she made allegations only against her husband about taunts. She made no allegation against any other person about dowry demand but asked for action against her Dewar, Jeth and mother in law as well, apart from her husband. In her statement before Court she even implicated Braham Prakash who was living separately with his family. Even her mother-in-law Parmeshwari Devi was not living with them. She was also living separately. Her father, in her testimony, admitted that Parmeshwari Devi and Braham Prakash were living in separate houses. In her complaint to the police, she did not mention that Parmeshwari Devi was present on 9.3.92 at the house. She only stated that her husband and Ashwani had lifted her up and thrown her from balcony. Her entire testimony shows that she had not deposed truthfully.

10. The real cause of dispute between husband and wife was something else. If her husband had been demanding more dowry, he would have readily agreed to send her back to her parents house and told her that she would not come back till she brings dowry. But her statement is that her husband was resisting her going to her parents house. Her father does not say a word as to what transpired between him and her husband from 8 am till 12.30 pm when both talked. He remained in the house of appellants from 8 am to 12.30 pm. He had come there with his wife or son and kept on discussing something in the presence of her daughter. What was the topic of discussion is not disclosed to the Court. It is not his case that during these four hours any demand of dowry was made or he was counseling to her daughter to adjust or to her in laws not to be greedy or he had made any proposal. It is admitted by prosecutrix that during this period her husband has been talking nicely as if he was having lovely relations with her. His statement that his daughter was beaten earlier also due to dowry demand and despite that he did not make any complaint to any one and allowed his daughter to go to her matrimonial home does not inspire confidence being contradictory to his statement to police. The statement of prosecutrix that she was beaten after every 2/3 days black and blue to the extent that she got injuries on her body and to the extent that she became unconscious or accused persons got tired of beating her is unbelievable in view of the fact that she used to go to learn typing and shorthand everyday and used to go for purchasing vegetables and milk in the morning and had an opportunity to go to her parents house at any time or to the police station at any time. Her this statement is also contradictory to her earlier version. It is apparent that something else was going on between the couple which culminated into some altercation on the night of 8th and 9th March,1992 with the result that she called her parents either to settle it down or to take her back. Since truth is not disclosed to the Court, something is amiss and Court cannot imagine what was the real cause but certainly dowry was not the cause. Neither the testimony of prosecutrix about beatings is trustworthy.

11. Now I come to incident of 9.3.1992. She stated in the complaint to the police that when she was going with her brother and father, her husband called her to open the Almirah and she went up stairs. This itself shows that even when she was going with her parents, she was not going after a quarrel. If she had come down after a quarrel, she would not have gone upstairs at 3rd Floor simply to open an alimrah. After she goes up, she submits in her complaint and that her husband and Dewar picked her up and threw her down the balcony. There is no talk of her Dewar being in the house prior to this. In the complaint she does not say that her Dewar had done anything prior to that. Or he had talked with her parents. While in her statement before the police, she named husband and Devar, in the Court she added one more name and stated that her husband, Dewar and mother-in-law; all three picked her up and threw down from balcony. The presence of mother-in-law, for the first time, is shown in the house only during the testimony in the Court. In the complaint, there is no talk of mother-in-law being present there. Even in the statement under Section 161 Cr.P.C. made by father of Mamta, he does not say that Parmeshwari Devi was in the house. He simply submits that he and his son Ashok Kumar came downstairs and thereafter her son-in-law called her daughter for giving keys of almirah. So her son and daughter both went upstairs and after some time, he heard a sound of ‘Thud’ and her son raised a cry that Mamta had been thrown down. In his testimony before the court, he states that he and his son remained standing on the ground floor and only Mamta had gone up and thereafter he sent her son to find out what was the matter and then his son heard some shouts from inside the house. When attention of witness to contradictions between statement made to the police and made in the Court was drawn, he simply stated that he had not made any statement to the police. Testimony of Mamta giving account of what happened when she again went upstairs is full of falsehood. She stated her mother-in-law told her not to go to her parents’ house. Once she was told that she could go to her parents’ house if she wanted, why would she be again told not to go there by her mother-in-law who was not even present in the house as per her earlier complaint to police. No reason has been given why her going to her parents’ house was being resisted by the appellants. If her story of dowry is to be believed, the appellants would have readily told her to go to her parents’ house and bring dowry. Non examination of Ashok Kumar as a witness in the court, raises serious doubts about her story. It is to be noted that despite the fact that Ashok Kumar was with Mamta when she went upstairs, and when she fell on ground from 3rd floor, he did not get her sister admitted to hospital and then he did not appear before the court to support the story of her sister. It seems he was privy to facts different from what was being sought to be projected and he kept himself away deliberately.

12. Investigating Officer in this case reached the hospital after DD No. 8 was marked to him. He found Mamta conscious in the hospital and made an application Ex.PW9/A to the CMO for recording statement of Mamta. The application reads as under:

It is requested that Smt. Mamta wife of Surender Singh resident of H. No. 86/14, Sector-I, Pushp Vihar has been admitted in hospital in injured condition after she jumped from Balcony of the house. Permission be granted to record her statement.

Sd/-

13. The Investigating Officer testified that after reaching hospital he found Mamta conscious and after talking to her made application for recording her statement. It is obvious that initially he was told by her that she jumped from balcony. Her husband’s stand constantly had been that she fell from stairs.

14. After recording statement of Mamta, he visited the spot and made enquiries from neighbours about the truth but he did not place on record statements of any of the neighbours. He did not find brother of Mamta in hospital. Mother of complainant is not produced in Court as a witness although she is also stated to have accompanied her husband to appellants’ house. It has come in appellants’ testimony that from 8 am till 12.30 pm her parents were at her in-laws’ house and talks were normal and husband and in-laws talked as if they had lovely relations with her. There seemed to be no acrimony even thereafter since on the calling of her husband, she went three stories upstairs just to open an Almirah. Considering entire sequence and facts, a grave doubt arises on her version that suddenly she was picked up and thrown down the balcony. The version of the incident given by complainant seems to be an afterthought and incredible. The version given by accused persons and by one defense witness that complainant rushed out of the door and she entangled in the railing also does not seem to be true.

15. From the entire evidence and circumstances, two views are possible (i) that despite the cordial atmosphere which was there from 8 am to 12.30 pm and the complainant was told that though appellants were not in favor of her going to her parents’ house but she if wanted could go to her parents house, the appellants suddenly lost balance of mind and became mad and picked her up and threw her from the balcony. The other view which is possible is that the complainant had called her parents because of some allegations regarding her character by the appellants and when allegations were made, even before her parents, she decided to go to her parents house along with her parents. She then went upstairs to open the almirah and there again some exchange of allegations took place and she in a huff jumped from the balcony.

16. The efforts of the criminal courts had to be to find out the truth, but this is not always easy, especially when parties develop vindictive attitude. Where there is a reasonable doubt and when two incredible versions confront the Court, the Court should give benefit of the doubt to the accused and it is not safe to sustain conviction ( State of Maharashtra v. Sanjay). The proof which the Court of criminal justice has to require must be proof which affirms moral certainty to the judge. The Courts must give advantage to the accused if, after considering the entire evidence and the entire circumstances, a Judge conscientiously and reasonably entertains a grave doubt regarding guilt of the accused. In the instant case, although the complainant received injuries but the entire story put forward by the complainant leading to the entire episode does not inspire confidence and does not seem credible. I have serious doubts about the prosecution version that the appellants picked up the complainant and threw her down from the 3rd floor from balcony. I, therefore, consider that appellants are entitled to benefit of doubt under Section 308 of the IPC.

17. In view of my foregoing discussion, the appeal is allowed. The conviction under Section 498A/308/34 is hereby set aside. The appellants are set free. Their bail bonds are cancelled and sureties discharged.

Categories: 498A Judgements

Courts are being used as a tool in 498A-Justice Shiv Narayan Dhingra

September 22, 2010 Fighting Legal Terror Leave a comment

Equivalent citations: 138 (2007) DLT 535

Bench: S N Dhingra

Smt. Sangeeta Kalra vs State on 2/3/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. This is a petition under Section 482 Cr. P.C. for quashing of FIR No. 518/2000, under Sections 498A/406/34 IPC.

2. Complainant in this case married petitioner’s brother on 11.3.99. She lived in matrimonial home for two weeks and left the matrimonial home. She wrote a letter to her husband giving reasons of her leaving matrimonial home, which reads as under:

Dear Raju,

There are several other things which I wanted to tell but I could not tell you, so I have gathered courage to write the same. I have now learnt that you are a good human being and you have condoned my several draw backs. Thus, I shall always be grateful to you. Raju, like any other girl, I also had dreams, which I could not tell you but I would like to tell you the same today, so that we can understand each other better and can give happiness and love to each other. My dreams were there should be light music in my room and my partner should shower love on me and should accept me from core of his heart fully. I should be attractive and we should be able to possess each other. Raju, I know there were some mistakes on my part that I could not seduce you completely. While preparing you mentally I forgot to prepare you physically. I am sorry. Henceforth I shall make full efforts that you get satisfaction from me and not from yourself. You must be understanding what I am trying to say. Raju, the relationship of husband and wife is not only of body but it is of heart and soul as well. I understand your all problems and I shall give company to you in all times. So far as babies are concerned, we will not have babies till you do not want them and I will not make any demand from you howsoever long it may take. Raju, I am going today, you should come to my parental house to take me back if you consider that I am not a useless thing. Raju, please destroy this letter after reading it so that it does not fall into the hands of others and we become laughing matter. And lastly thank you very much for all your affection, concern, care and love ( I hope so) ” I love you very much dear and will always do so even if you accept me or not it doesn’t matter”. Always your and only yours. Summi.

Post Script. – Raju I have disturbed you for several nights and now you should sleep properly. I know if you wanted you could have forcibly established relationship with me but you left me thinking as if I was a child. I would not get better husband than you in this world. I am very lucky that I got a husband like you and I thank god for giving such a wonderful husband.

3. This letter is undisputedly in the hands of complainant. After this letter, she never lived at the matrimonial home. This letter was written about two weeks after the marriage when she left the matrimonial home. First complaint thereafter was made to the police by her father on 24.6.1999 and in that complaint he specifically wrote that his daughter was at his home for more than three months which also shows that complainant had not lived with her husband for more than 10 days or so, since marriage had taken place on 11.3.99. In the complaint written by the father of the girl, he did not give the date of leaving of matrimonial home by his daughter and made all vague allegations without specifying any demand of dowry and any incident of cruelty. He wrote that few days after marriage of the girl, the boy, mother, father sometime accompanied by sister troubled the girl. The sister mentioned herein is the sister who was married much before the marriage of the complainant and was living in her house at New Friends Colony, which is almost 20 kilometer away from the matrimonial home of the complainant, with her husband and children. It is not alleged in this complaint or in the statement made by the girl that the sister of the boy left her matrimonial home and started living at her parental home. The sister who is married and having children, obviously has to look after her home. Thus, there was no occasion for her to live at the matrimonial home of the complainant.

4. It seems that the complainant, who left the matrimonial home due to failure of physical relationship and resultant dissatisfaction, later on thought of implicating every member of the family in an anti-dowry and cruelty case. Initially, she made vague allegations against everybody and thereafter made a supplementary statement under Section 161 Cr. P.C. supplementing her earlier statement. In the supplementary statement it is stated that her father spent more than Rs. 22,00,000/- on her marriage while there was no such claim made by her father even in his own complaint made to the police on 24.6.1999.

5. It is true that while considering the quashing of criminal proceedings under Section 482 Cr. P.C, the Court should not embark upon an enquiry into the truthfulness of the allegations made by complainant but where the charges are framed by the lower court without considering the material, with closed mind and charges amount to gross misuse of criminal justice system and trial is an abuse, it becomes the duty of the High Court to intervene in such cases, under Section 482 Cr. P.C so that there is no miscarriage of justice and faith of people remains intact in the judicial system. In this case, charges have been framed against the petitioner, sister of the husband, without their being an iota of evidence of any cruelty or entrustment of any property by the complainant in the intial complaint or in the later complaint. Even in subsequent complaint made by the complainant herself there are no specific allegations and only vague allegations are there involving every family member.

5. In G. Sagar Suri v. State of UP , Supreme Court observed that criminal proceedings should not be allowed to be resorted to as a short cut to settle the score. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under Section 482 Cr. P.C has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 Cr.P.C or Article 227 of the Constitution of India. In Indian Oil Corporation v. NEPC Indian Limited Supreme Court deprecated the tendency of using criminal justice system as a tool for arms twisting and to settle the score and laid down that High court can intervene where the criminal justice system is used as a tool.

6. In Ramesh and Ors. v. State of Tamil Nadu 2005 CRI.L.J 1732 in a similar case the married sister of husband living at her matrimonial home was roped in under Section 498A/406 IPC. In that case she had stayed at her parents house, for some days. In the present case, there are no allegations that petitioner stayed at her parents house even for one day after the marriage. Allegations against the petitioner in that case were that she directed complainant to wash W.C and sometimes made some imputations against her. Supreme Court observed that all these do not amount to harassment with a view to coercising informant or her relations to meet an unlawful demand. In the present case the complainant left house after leaving a letter to her husband giving reasons of leaving the matrimonial home. However, she turned colour after she started living at her parental house. She who showered praises on her husband for his understanding, love and affection, without living with him a day further, suddenly made allegations of dowry demand and cruelty and used language which is not used by the civilized persons. In her complaint she used abusive language for her father-in-law like ‘kameena’ and ‘zaleel’ etc. Simultaneously she claimed that she belonged to a well educated family.

7. I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed. I, therefore, hereby quash criminal proceedings against the petitioner under Sections 498A/406/34 IPC, in FIR No. 518/2000 Police Station Shalimar Bagh, Delhi. dusty.

Petition stands disposed of.

Categories: IPC 498A Misuse Judgements

Rigorous imprisonment for a period of four months under 498A/406 IPC-Chennai HC

September 21, 2010 Fighting Legal Terror 1 comment

Dated : 07.09.2010

Coram

THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM

CRIMINAL REVISION CASE NO. 1468 of 2004

Karthikeyan … Petitioner

-Vs.-

The State represented by

Inspector of Police,

W-2, All Women Police Station,

Adayar, Chennai. … Respondent

Revision against the judgment dated 17.11.2003 made in C.C.No.3378 of 1996 on the file of the XVIII Metropolitan Magistrate, Saidapet, Chennai, and confirmed in Crl.A.No.411 of 2003 dated 19.08.2004 on the file of the Additional Sessions Judge, Fast Track Court No.V, Chennai. For Petitioner : M/s. E.Kannadasan

For Respondent: Mr. A.Saravanan

Government Advocate (Crl.Side)

——-

J U D G M E N T

The Revision Petitioner herein, who is the accused in C.C.No.3378 of 1996 on the file of the XVIII Metropolitan Magistrate, Saidapet, Chennai, was convicted for offences under sections 498-A, 406 of IPC and Section 4 of Dowry Prohibition Act and he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/-, in default to undergo three months rigorous imprisonment for the offence under Section 498-A IPC; sentenced to undergo rigorous imprisonment for one year the offence under Section 406 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo six months rigorous imprisonment for the offence under Section 4 of Dowry Prohibition Act and the said sentence of imprisonment were ordered to run concurrently. The said conviction and sentence were also confirmed by the Additional Sessions Judge, Fast Tract Court No.V, Chennai, in Criminal Appeal No.411 of 2003. Aggrieved by the said conviction and sentence, the petitioner has preferred this Revision Case.

2. The case of the prosecution in brief is that the Revision Petitioner, who is the first accused, is the husband of PW.1. The second accused is the mother-in-law, who died pending trial. The third and fourth accused are sisters of the first accused, who were acquitted by the trial court. The marriage of the first accused and PW.1 was performed on 11.06.1993. At the time of marriage, she was given 30 sovereigns gold jewels and other silver articles and one pair of diamond stud. The house hold articles were also given as Sridhana properties. The first accused and PW.1 were living along with mother-in-law, father-in-law and sister-in-laws as joint family. PW.1 became pregnant. Her husband demanded a sum of Rs.10,000/-. The first accused brought PW.1 from Bangalore to Chennai. The first accused demanded a sum of Rs.25,000/-, but the brother of PW.1 had informed that he had no money. The first accused left PW.1 in her brother’s house informing that she could come to matrimonial home only on bringing jewels. On 10.01.1994, the first accused again came to Chennai and insisted for cash and jewels. On 19.05.1994 PW.1 delivered a female child. At that time, the first accused along with his sisters came to see the child. He again demanded a sum of Rs.25,000/-. As the amount was not given by the brother of PW.1, quarrel arose among the accused and the brother of PW.1. PW.2, who is the brother of PW.1, made attempts for PW.1 to join her husband. But the mother-in-law of PW.1 and others refused to take her back to the matrimonial home. After some time, PW.1 gave complaint Ex.P1 to the police. PW.7 Inspector of Police on receiving the complaint registered a case in Crime No.3 of 1996 and prepared First Information Report Ex.P5. He recorded the statement of witnesses. He arrested the accused and sent them for remand. She recovered the jewels from the accused. M.O.1 to M.O.12 are the articles recovered by the police. As PW.7 was transferred, PW.8, Inspector of Police took up further investigation and after completion of investigation laid final report against the accused.

3. The accused were questioned under section 313 Cr.P.C regarding incriminating materials and they denied their complexity.

4. The first accused examined himself as DW.1 and he deposed that he and PW.1 lived together for only 71 days and he also received notices Exs.D1 and D2 from PW.1. He also sent the reply Ex.D6. He had further stated that he filed a petition for divorce before the Family Court and divorce was granted to him and he also filed a copy of the judgment Ex.D9.

5. After analysing the evidence, both the Courts below have convicted and sentenced the 1st accused alone as already stated above. The courts below acquitted 3rd and 4th accused. The 2nd accused already died.

6. The learned counsel for the petitioner submitted that the Revision Petitioner did not make any demand of dowry and even after the marriage, he did not make any demand of money and PW.1 given a false statement about the demand of money by the accused and PW.1 wanted to have a separate house, as it was denied, she refused to live in the matrimonial home. All the jewels had also been taken by PW.1 and all the articles were returned to PW.1. The learned counsel further submitted that both the courts below have failed to take into consideration the grounds on which the divorce was granted to the petitioner.

7. The learned Government Advocate (Crl. Side) submitted that PW.1 had specifically stated about the demand of the amount made by the first accused / Revision Petitioner and her evidence was also corroborated by the evidence of PWs. 2, 3 and 4. The learned Government Advocate (Crl. Side) further submitted that the accused did not return the articles and it was only the police, after registration of the case, during investigation seized the articles and they are marked as M.O.1 to M.O.12 before the trial Court.

8. This Court considered the submissions and perused the records.

9. According to the evidence of PW.1, after the marriage, the Revision Petitioner and PW.1. and other family members of the Revision Petitioner were all living together in Bangalore. The first accused often made demand for a sum of Rs.10,000/- and Rs.25,000/-. The brother of PW.1 did not make any payment as demanded by the accused. PW.1 was left in her brother’s house as the amount was not paid as demanded by the accused. Even after PW.1 delivering a female child on 19.05.1994, the accused were not prepared to take her to matrimonial home. Even as per Ex.D1 marked through DW.1, a notice sent by PW.1 through her lawyer, a request was made to arrange for a peaceful living and an offer was also made that PW.1 with her child would join her husband. Inspite of Ex.D1, the accused did not take any steps to take her back. Therefore, subsequently another notice was sent by PW.1 on 14.08.1995, which is marked as Ex.D2. The accused also sent his reply Ex.D6. Thereafter, the accused had filed divorce petition against PW.1 before the Family Court. The attitude of the Revision Petitioner was very adamant. He had caused harassment to his wife. Though divorce had been granted by the Family Court, it is not a ground for acquittal of the Revision Petitioner. Though it is contended by the Revision Petitioner that PW.1 insisted for a separate house, the accused while examined himself as DW.1 had not specifically stated that PW.1 insisted for separate house. Even if she insisted for separate house, there was nothing wrong in it. PW.1 was ill-treated by her in-laws. It is the duty of the husband to see his wife being not ill-treated by any one of his family members. This Court concludes that the ingredients of the offence under Section 498-A of IPC against the Revision Petitioner are made out.

10. Even after notice, the first accused had not returned the articles of PW.1 to her and it was only the police, who seized those articles. Therefore, the ingredients of offence under Section 406 of IPC are also made out against the Revision Petitioner.

11. As per the evidence, it is not the case of the prosecution that the first accused demanded any dowry for performing the marriage. The jewels and articles were given as Sridhana properties. Therefore, the ingredients of the offence under Section 4 of the Dowry Prohibition Act are not made out. The conviction and sentence imposed on the petitioner for the offence under Section 4 of the Dowry Prohibition Act are set aside.

12. The learned counsel for the petitioner prays for leniency regarding punishment imposed on the petitioner for the offences under Sections 498-A and 406 IPC.

13. Considering the facts and circumstances of the case, the sentence of imprisonment imposed on the Revision Petitioner for offences under sections 498-A and 406 IPC is reduced to rigorous imprisonment for a period of four months, instead an additional fine of Rs.5,000/- is imposed on the petitioner for the offence under Section 498-A of IPC. The fine amount already paid by the petitioner for the offence under Section 4 of Dowry Prohibition Act which is to be returned to him shall be adjusted towards the additional fine amount now imposed by this Court.

14. The Revision Petition is partly allowed. The trial Court shall take steps to remand the petitioner to undergo the remaining period of imprisonment.

mra

1. The Additional Sessions Judge,

Fast Track Court No.V, Chennai.

2. The XVIII Metropolitan Magistrate,

Saidapet, Chennai.

3. Inspector of Police,

W-2, All Women Police Station,

Adayar,

Chennai

Categories: 498A Judgements

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