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

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

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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.__174___ OF 2013

(Arising out of SLP (Criminal) No. 4883 of 2008)

Rajiv Thapar & Ors. …. Appellants

Versus

Madan Lal Kapoor …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on 30.11.1991. After her marriage, Dr. Monica Thapar got admission in a Post Graduate Diploma course in Gynaecology (DGO) at Medical College, Surat, in June 1992. Accordingly, she started working as a Resident at the aforesaid Medical College. At his own request, Rajiv Thapar, who was (and still is) a member of the Indian Revenue Services, was transferred from Ahmedabad to Surat. On 16.9.1992, while the husband and wife were living at Surat, Dr. Monica Thapar fell ill. For her treatment, she was admitted to Mahavir Hospital, Surat. She was diagnosed as suffering from Malaria. Having been treated for the same, she was discharged on 20.9.1992. Two days thereafter, Dr. Monica Thapar again fell ill on 22.9.1992. This time, she was taken to Medical College, Surat i.e., the hospital where she was herself working as a Resident. She was first examined by a radiologist, and thereafter, by Dr. Girish Kazi, a cardiologist. It was suspected, that she has a hole in her heart. Based on the aforesaid diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The said echo-cardiography confirmed the presence of a large hole in her heart. On the advice of doctors who attended on Dr. Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack on 26.9.1992. The same supposedly proved fatal.

3. The factum of death of Dr. Monica Thapar was conveyed to the immediate family of Rajiv Thapar, as well as to the family of the deceased. A decision was taken to cremate the dead body at Delhi. Accordingly, after embalming the body of Dr. Monica Thapar, it was transported by rail to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar including her father Madan Lal Kapoor (respondent-complainant herein) were present at the time of arrival of the body at Delhi.

4. Madan Lal Kapoor made a complaint to the Police Control Room alleging, that he suspected that his daughter had been poisoned. This suspicion was based on the fact, that the body had turned blue. On the aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of powers vested in him under Section 176 of the Code of Criminal Procedure (hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings. In the first instance, the body of the deceased was subjected to a post- mortem examination, for which the following Medical Board was constituted:-

(i) Dr. Bharat Singh, Medical Superintendent, Civil Hospital, Delhi.

(ii) Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi. (iii) Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital, New Delhi.

(iv) Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi.

The Medical Board came to the conclusion, that Dr. Monica Thapar had died of cardiac decomposition. The final opinion of the Medical Board, was recorded in a report dated 28.9.1992, in the following words:- “OPINION In view of the clinical reports submitted and post mortem findings observed, the Board of Direcors is of the opinion that, death is consequent to cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension. No definite opinion can be given about falciparm Malaria, histopathological assessment.

Viscera is preserved for chemical analysis as desired by SDM. Time since death is about 48 hours and is consistent with the history.”

(emphasis is ours)

During the post-mortem examination, samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken. These samples were sent for chemical examination to the Central Forensic Science Laboratory, New Delhi. The report of the Forensic Laboratory dated 9.2.1993, recorded the following conclusions:-

“SPECIFICATION OF THE ARTICLE CONTAINED IN THE PARCEL

1. Parcel contained:

(a) One wide-mouth bottle containing stomach, intestine with contents, Exhbt 1a.

(b) One wide mouth bottle containing liver, spleen & kidney, Exhbt 1b.

(c) One phial containing few drops blood, Exhbt 1c.

xxx xxx xxx

RESULTS OF ANALYSIS

The Exhibit nos. 1a, 1b and 1c gave negative tests for common poisons.”

It is therefore apparent, that the Central Forensic Science Laboratory, New Delhi, having analysed the samples from the stomach, intestine, liver, spleen, kidney and blood, concluded that the same did not contain any “common poison”.

5. Insofar as the inquest proceedings initiated by the Sub-Divisional Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are concerned, it would be relevant to mention, that Madan Lal Kapoor (the respondent-complainant herein) the father of the deceased, in the first instance, refused to record any statement before the SDM, Delhi, on the ground that he would record his statement only after the receipt of the post-mortem report. Even on the receipt of the post-mortem report, the said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record their statements before the SDM, Delhi, on the assertion, that the mother of the deceased knew the facts best of all, and as such, her statement needed to be recorded first of all. It was pointed out, that her statement could not be recorded immediately because she was in a state of shock. It may be noted, that neither the mother nor the brother of Dr. Monica Thapar appeared before the SDM, Delhi, to record their statements. Madan Lal Kapoor had sought time thrice, from the SDM, Delhi, to get the statement of his wife recorded. Madan Lal Kapoor, father of the deceased, however, eventually recorded his statement before the SDM, Delhi, even though the mother of the deceased had not appeared before the Magistrate to record her statement.

6. The SDM, Delhi, during the course of inquest proceedings, recorded the statements of the following accused persons:-

(i) Rajiv Thapar (husband of the deceased; appellant no. 1 herein).

(ii) Kusum Thapar (mother-in-law of the deceased; appellant no. 5 herein).

(iii) Sangeeta Thapar (wife of the brother-in-law of the deceased; appellant no. 4 herein).

In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria (a colleague of the deceased at Medical College, Surat). Insofar as the accusations and counter allegations are concerned, it is not essential to refer to the statements of any of the rival parties. It is however, appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the same is not available on the record of the case, reference thereto in the inquest report, is being extracted hereunder:-

“Statement of Mr. Pritu Dhalaria

Sh. Pritu Dhalaria stated that Monika Thapar was known to him from the date she got admission in the Medical College in June,

92. And he regards her as his elder sister. He further stated that both Monika and Rajeev were happy and living a happy married life. On 17th September, 1992, he came to know that Monika was ill and admitted in the Mahavir Hospital. In the evening of 17.9.1992, when he met Monika he came to know that she was suffering from Malaria. And on 24.9.1992, he came to know that she was admitted in the Urmil Heart Hospital. He further stated after Echo-Cardiography doctor declared that Monika was suffering from A.S.D. (Larger Hole in Heart) and pulmonary Hypertension. He stated that on 26.9.1992, at about 2.00-2.15 p.m., Monika’s situation became serious. And inspite of all attempts of doctors, she got heart attack and died on 3.30 p.m. He also stated that the MS of Civil Hospital, Surat, Dr. Khanna was present alongwith the other doctors at that time.”

(emphasis is ours)

7. The statement of Dr. Pritu Dhalaria fully coincides with the version expressed by the appellants-accused. That Dr. Monica Thapar had two bouts of illness. In the first episode, she was diagnosed as suffering from Malaria. She was treated for the same and discharged. Thereafter, she was diagnosed with a large hole in her heart, on the basis of an echo- cardiography. She died of a massive heart attack on 26.9.1992. At the time of her death, Dr. Khanna and other doctors of the Civil Hospital, Surat, were present.

8. The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the following conclusions:-

“Conclusion

Allegation levelled by Shri Madan Lal Kapoor, father of the deceased regarding harassment and dowry death, it appears that allegation are not correct in the light of the fact of Natural death in the statements the husband and in laws of the deceased produced photocopies of letters written by Sh. Madan Lal Kapoor and Rajiv Kapoor. Perusal of the letter shows that both the families enjoyed a normal happy relationship and not an abnormal and strained relation till the death of Monika.

Sh. Rajeev Thapar has produced copy of telephone Bill of residential phone shows the Telephone Cells are made to Madan lal phone No.574390 at Mohali Chandigarh on 17.09.92, 21.09.92, 24.09.92 and 25.09.92 during the course of illness of Monika

Sh. Rajeev Kapoor, the brother of the deceased well aware of the situation of Monika as per his letter dated 22nd September, 92 and at that time the families are enjoying a very good relationship. So it is not possible in these circumstances that Monkka was harassed by her in-laws. The few lines as under:-

“How are you Now? I hope by now you will have recovered from Malaria. We should have faith in God. Please give top priority to your health.

Off and on I go to Janakpuri, all are very nice there, very affectionate and very caring. You must be knowing that Sanjay Bhai Saheb have been promoted to the rank of Squadron Leader..

The brother is no likely to praise the family of his sister’s in-laws in case his sister is being harassed for dowry.

Statement of Sh. Pritu, Colleague of Mrs. Monika, also shows that Monika and Rajiv enjoyed a very happy and cordial relationship, which also shows that allegations of harassment does not appear to be correct. According to the statements given before me Monika stayed with her in-laws in Delhi only for 4-5 days. Hence the charged of harassment levelled does not appear to be correct. From the statement and evidence produced before me, it does not appear that she was being harassed. Report of Sh. S.K. Pathi M.d. Radiologist during the treatment of Monika.

“Mild Cardiac enlargement with dilated pulmonary vessels and evidence of Pulmonary Dedema. Advise: Echocardiography.”

Report of Dr. J.C. Damaswala M.D. during the treatment of Monika.

“Large osteum secundum ASD Measuring 3.0 cm with Ltd. To Rt. Shunt on colour flow and conventional Doppler.”

Death certificate issued by Urmil Heart and Lung Centre:-

Cause of Death: Cardio-Respiratory arrest due to Malaria ASD C Pulmonary Hypertension.

The post-mortem of the dead body revels that death is due to Cardiac de-compensation due to enlarged atrial Septal Defect and pulmonary Hypertension (As per board of doctors)

The CFSL report of the viscera reveals negative tests for common poison.

Inquest proceedings started on 27.09.1992 and till now mother of the deceased has not come forward to give her statement. Father of the deceased visited SDM office three times but never brought his wife for recording statement. Now there is no point in waiting for her statement when death is proved natural and beyond any doubt.

The case of the death is clearly determined to be natural inquest proceedings under Section 176 Cr.PC may be closed as foul play in the death of Smt. Monika Thapar is completely ruled out and the allegation made in the PCR called on 29.09.1992 have not been turned out by the evidence on record. Sd/-

Sub-Divisional Magistrate, Kotwali, Delhi.

6.7.1993”

A perusal of the inquest report reveals that the SDM, Delhi, concluded that “… foul play in the death of Smt. Monika Thapar is completely ruled out…” The SDM, Delhi, also held “…death is proved natural and beyond any doubt…”

9. On 29.9.1992, Madan Lal Kapoor (the respondent-complainant), father of the deceased Dr. Monica Thapar, filed a complaint before the Commissioner of Police, Delhi. Prior thereto, on the same issue, he had filed similar complaints before the Police Commissioner, Surat, Police Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy. Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura, New Delhi. The aforesaid complaints had been filed by the father of the deceased praying for registration of a First Information Report, interalia, under Sections 304B and 498A of the Indian Penal Code. Since the complaints filed by Madan Lal Kapoor did not bear any fruitful result, he filed a criminal complaint before the Metropolitan Magistrate, Delhi on 6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning. Relevant portion of the complaint made by Madan Lal Kapoor (the respondent- complainant) is being extracted hereunder:-

“10. That in the second week of September, 1992, accused no.1 Rajiv Thapar called his mother from Delhi, on the false pretext that Monika was pregnant and needed care. As a matter of fact, it was in the pursuance of the conspiracy hatched by the accused themselves to do away with the life of Monika in some mysterious manner and on the pretext the mother of Rajiv Thapar accused no.1 was called from Delhi, and sometimes thereafter on that pretext she was admitted in some hospital of their choice, where the conspiracy could be implemented.

11. That on 26.9.1992 the complainant enquired on telephone from accused no.2 about the welfare of his daughter but now she was quite alright and there was nothing worry about her. The complainant enquired from him about the details of her illness and hospital where she was admitted, but accused no.2 did not disclose as the voice of Mr. Thapar accused no.2 was some what in co-herent on the phone, the complainant suspected something wrong, when the complainant told him that he along with his wife was going to Surat, accused no.2 told him that there was no need of going and everything was alright, but when the complainant told him in clear term that he apprehended something wrong regarding the illness of his daughter, on which accused no.2 told the complainant on phone that Monika had expired.

12. That accused no.2 in conspiracy with his co-accused did not disclosed the kind of illness, of the treatment she was given with a criminal intention that the complainant and his wife may not able to see their daughter and give her proper treatment. Mrs. Monika was not suffering from any disease. Of course, due to constant harassment, torture, physical and violent and mental torture, her health had broken down and she fell ill. Her death was due to constant torture for not meeting the illegal demand of a Maruti Car.

13. That the dead body of Monika was brought to Delhi under mysterious circumstances, no permission was obtained for taking dead body from Surat to Delhi in the train.

14. That the complainant and his wife reached Delhi and saw some poisonous substance had been administered to her, on this report of the complainant, the post-mortem was conducted at Delhi.

15. That the complainant was moved hell and earth in the matter. He has given complaint to police Commissioner, Surat. Deputy Commissioner, Athwa Crime Women Cell, South, Moti Bagh, Nanakpura, New Delhi, Police Officer Incharge, Umra , Police Station, Athwa Lines, Surat and another authority; but no action has been taken, even the copy of the Post Mortem Report has not been supplied to the complainant.

16. That the death of Mrs. Monika took place within a year of her marriage under mysterious circumstances on account of demand of dowry which demand was not met and thereafter she was tortured mentally and physically and leading to her illness and in that condition she was administered some poisonous matter. The accused have committed serious offences under Sections 304B/120B/498A/109 I.P.C. They be tried according to law and convicted.

Sd/-

Dated 6.7.93 Madan Lal Kapoor Complainant”

(emphasis is ours)

10. The complaint extracted above, reveals mere aspersions, based on suspicion. The complaint did not express any concrete fact disclosing how the appellants-accused were responsible for having taken his daughter’s life. In fact, the narration of facts hereafter reveal, the shifting stance of the father of the deceased, about the cause of his daughter’s death. On 24.5.1995, Madan Lal Kapoor (the respondent-complainant) examined himself and his son Rajiv Kapoor before the Metropolitan Magistrate, Delhi in order to substantiate the allegations levelled by him in respect of the unnatural death of his daughter Dr. Monica Thapar. Based on the statements made by Madan Lal Kapoor (the respondent-complainant) and his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated 24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi, while summoning the accused, recorded the following observations:- “It is further alleged that at the time of her death she was doing Diploma in Gynaecology in territories at Surat where his son in law was employed. The complainant did not receive any telephone call either from his daughter or son in law and he therefore rang up to Ramesh Thapar at Delhi to enquire about the welfare of his daughter and Ramesh Thapar told him on telephone that his wife Kusum Thapar had been called to Surat to look after his daughter as she was said to be pregnant but subsequently she was aborted. The complainant enquired from him as to the particulars of the hospital where she was admitted and what was the ailment she was suffering from, she replied that her daughter was quite all right and he should not worry about her welfare again insisted to given particulars of the hospital and the complainant suspected that her in-laws were not behaving with her properly and were harassing, therefore, he insisted that he himself and his wife shall go to Surat and he told him that he suspected some foul play in the matter on which Ramesh Thapar told him from Delhi that his daughter Monika has already expired, and he enquired as to where she will be cremated. The accused brought the dead body of his daughter from Surat to Delhi but they did not allow him and his family members to see the dead body but on their insistence, they saw the dead body of his daughter and he saw that the face and mouth of his daughter was blue. He suspected that her daughter has been given some poisonous matter, as a result of which she had died. He informed the police and the police came and got the post mortem of the dead body conducted, but thereafter nothing was done by police in this matter. He sent a registered letter to the Police Commissioner, Delhi and he went to Surat and filed a complaint before the Police Commissioner but nothing was done. The complainant suspect that his daughter has been admitted because his daughter had not brought sufficient dowry according to the status and had also failed to fulfill the demands of above named accused persons of bringing dowry and Maruti Car and cash.

I have carefully considered the argument put forward by Ld. Counsel for complainant. I have also carefully gone through the complaint and have carefully considered the preliminary evidence adduced by the complainant in support of his case, and from the material on record in my considered opinion, there are sufficient grounds for proceedings against all the accused persons for committing offence punishable u/s. 304B/498A/406/120B IPC.

Accordingly, I order that accused Rajiv Thapar, Ramesh Thapar, Sangeet Thapar and Mrs. Kusum Thapar be summoned for 19.12.1995 on filing of PF.”

11. The appellants assailed the aforesaid summoning order dated 24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the High Court of Delhi (hereinafter referred to as, the High Court). The challenge raised was primarily on the ground, that Madan Lal Kapoor (the respondent- complainant) had suppressed vital material, in his complaint. It was alleged, that the complainant did not disclose the particulars of the post-mortem examination, the report of the Central Forensic Science Laboratory, as also, the inquest report. The High Court dismissed the aforesaid petition summarily on the premise, that the same had been prematurely filed. Accordingly, liberty was granted to the appellants to move the trial Court, if they were so advised, for seeking a recall of the summoning order (dated 24.8.1995). Immediately, on the disposal of the petition by the High Court, the appellants moved an application before the Metropolitan Magistrate, Delhi, praying for a recall of the summoning order dated 24.8.1995. The aforesaid application was dismissed by the Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of the opinion that at this stage, there is no ground to review or recall the order dated 24.8.1995 passed by my L.D. Predecessor, whereby he summoned the accused for the above stated offences after taking cognizance…”

12. Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary evidence. Based thereon, and having formed an opinion, that there was sufficient material to proceed against the accused under Sections 498, 496, 304B read with Sections 120-B of the Indian Penal Code, the Metropolitan Magistrate, Delhi, committed the case to the Court of Sessions, as the offence under Section 304B is exclusively triable by a Court of Sessions.

13. While examining the matter further, with the pointed object of either discharging the accused (under Section 227 of the Cr.P.C.) or framing charges against them (under Section 228 of the Cr.P.C.), the Additional Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the respondent-complainant) had not brought the following record/material/documents to the notice of the Metropolitan Magistrate, Delhi:-

(i) The post-mortem report dated 28.9.1992.

(ii) The inquest report dated 6.4.1993.

(iii) The correspondence made by the respondent and his son. The Additional Sessions Judge, Delhi also felt, that the Metropolitan Magistrate, Delhi, had not fully complied with the provisions of Section 202 of the Cr.P.C. (requiring him to enquire into the case himself). Therefore, the Additional Sessions Judge, Delhi examined the allegations made in the complaint in conjunction with all of the aforesaid material.

14. Since the learned counsel representing Madan Lal Kapoor (the respondent-complainant) had raised an additional plea (before the Additional Sessions Judge, Delhi), that the deceased was also suspected of having been strangulated to death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of the Medical Board, which had conducted the post-mortem examination). The Additional Sessions Judge, Delhi, sought clarifications on the allegations of strangulation, from the two doctors. The Court also recorded the statement of Dr. Amit Banerjee.

15. The Additional Sessions Judge, Delhi then heard detailed arguments on charge. Upon consideration, the Additional Sessions Judge, Delhi, recorded detailed findings, which are being summarized hereunder:- (i) The inquest proceedings conducted by the SDM, Delhi, which interalia contained the broad facts of the married life of the deceased, were inconsistent with the theory of harassment extracted in the complaint.

(ii) The accused Rajiv Thapar, husband of Dr. Monica Thapar (deceased) had been seeking medical advice, and had been getting the deceased’s medical treatment at Surat, whereupon it came to be discovered, that she had a large hole in her heart.

(iii) The Medical Board which conducted the post-mortem examination on the body of the deceased, confirmed the conclusion certified by Urmil Heart and Lung Centre, Surat, that her death occurred because of cardiac de-compensation, and that Dr. Monica Thapar had died a natural death.

(iv) The plea of strangulation raised on behalf of the complainant was held to be unsubstantiated consequent upon the clarification rendered by Dr. L.T. Ramani and Dr. Amit Banerjee.

(v) The post-mortem report and the Central Forensic Science Laboratory’s report, which recorded a negative opinion on poisoning, were taken into consideration to conclude, that the death of Dr. Monica Thapar was not due to poisoning.

(vi) The statement made by Dr. Pritu Dhalaria, a colleague of the deceased at the Medical College, Surat, referred to in the inquest proceedings (relevant portion extracted above), was relied upon to disbelieve the theory of foul play, in the death of Dr. Monica Thapar.

(vii) Based on the facts recorded in the inquest report, as also in the statement of Dr. Pritu Dhalaria, that Dr. Monica Thapar had died after her admission and treatment in the Urmil Heart and Lung Centre, Surat, it was deduced, that Rajiv Thapar, the husband of the deceased could have neither strangulated nor poisoned the deceased, while she was admitted for treatment at the Urmil Heart and Lung Centre, Surat.

Based, interalia, on the aforesaid evaluation of the complaint filed by Madan Lal Kapoor (the respondent-complainant), the Additional Sessions Judge, Delhi concluded, that no prima facie case was made out against the appellants/accused either under Section 304B of the Indian Penal Code or under Section 498 of the Indian Penal Code. The Additional Sessions Judge, Delhi, accordingly discharged the appellants/accused by an order dated 7.8.1999.

16. Dissatisfied with the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant) filed a Criminal Revision Petition (bearing no. 42 of 2000) in the High Court. The aforesaid Criminal Revision Petition was dismissed in default on 11.8.2005. The order dated 11.8.2005 was assailed through a Special Leave Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court. The aforesaid Special Leave Petition was allowed by this Court on 31.8.2007. The matter was remanded back to the High Court for adjudication on merits. It is thereupon, that the High Court passed the impugned order dated 8.5.2008, setting aside the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi. The instant order dated 8.5.2008 is the subject matter of challenge in the present appeal.

17. A perusal of the order of the High Court would reveal that the Additional Sessions Judge, Delhi, had primarily relied on certain observations made in the judgment rendered by this Court in Satish Mehra Vs. Delhi Administration, (1996) 9 SCC 766:-

“15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself”

Madan Lal Kapoor (the respondent-complainant), before the High Court, had relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, to contend that the judgment relied upon by the Additional Sessions Judge, Delhi, having been overruled, had resulted in an erroneous conclusion. For the same proposition, reliance was placed on the judgment of this Court in Suresh Kumar Tekriwal Vs. State of Jharkhand, (2005) 12 SCC 278. On behalf of the complainant, reliance was also placed on the decision in State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, to contend, that only the material placed on record by the prosecution, could be gone into at the time of framing charges. And if, on the basis of the said material, the commission of the alleged offence was prima facie made out, the charge(s) was/were to be framed. At the stage of framing of charges, it was submitted, that the requirement was not to determine the sufficiency (or otherwise) of evidence to record a conviction. For this, reliance was placed on State of M.P. Vs. Mohanlal Soni (2000) 6 SCC 338, wherein this Court had concluded, that the requirement was a satisfaction, that a prima facie case was made out. On behalf of Madan Lal Kapoor, reliance was also placed on State of A.P. Vs. Golconda Linga Swamy (2004) 6 SCC 522, to contend that at this stage, meticulous examination of the evidence was not called for.

18. As against the submission advanced on behalf of Madan Lal Kapoor (the respondent-complainant), the appellants/accused contended, that the Court was justified in considering the material on the record of the case, and on the basis thereof, to arrive at a just and reasonable conclusion. In this behalf, it was averred that the post-mortem report, the report of the Central Forensic Science Laboratory, the inquest proceedings recorded by the SDM, Delhi, and the letters addressed by the family members of the complainant (duly noticed in the inquest proceedings), were a part of the record of the case, and as such, were to be taken into consideration while passing the orders contemplated under Sections 227 and 228 of the Cr.P.C. The submission advanced on behalf of Madan Lal Kapoor (the respondent- complainant) before the High Court, was accepted. The High Court arrived at the conclusion, that the Additional Sessions Judge, Delhi had erroneously placed reliance on the decision rendered by this Court in Satish Mehra Vs. Delhi Administration (supra), which had already been overruled by the judgment rendered by a larger Bench in State of Orissa Vs. Debendra Nath Padhi (supra).

19. While considering the contention advanced on behalf of the appellants/accused, the High Court concluded, that the material/documents/record which the complainant was placing reliance on, did not fall within the ambit and scope of the term “record of the case” contained in Section 227 of the Cr.P.C. According to the High Court, the record of the case referred to in Section 227 of the Cr.P.C. was only such record, documents and articles which, on consideration by the Magistrate, are sent to the Court of Sessions, consequent upon passing an order of commitment. The material and documents relied upon by the appellants/accused in the present controversy would, therefore, not fall within the zone of consideration at the hands of the Court of Session under Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the behest of the appellants/accused were declined. For the aforesaid reasons, the High Court accepted the Criminal Revision Petition filed by Madan Lal Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly quashed. The parties were accordingly directed to participate in the further proceedings before the Court of Sessions.

20. We have considered the submissions advanced at the behest of the rival parties. We are of the view, that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 of the Cr.P.C. specially because the Additional Sessions Judge in his order dated 7.8.1999, had concluded, on the basis of the material relied upon by the accused, that no case was made out against the accused. This according to learned counsel, was permissible in view of the inherent jurisdiction vested in the High Court under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being extracted hereunder:-

“482. Saving of inherent power of High Court

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”

The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice. This Court had an occasion to examine the matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent-complainant), wherein it was held thus:-

“29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.”

(emphasis is ours)

Recently, this Court again had an occasion to examine the ambit and scope of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & Ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 of the Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed, that under Section 482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 of the Cr.P.C. in the facts and circumstances of this case.

21. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.

24. The complaint made by Madan Lal Kapoor (the respondent-complainant) proceeds on the assumption, that his daughter Dr. Monica Thapar was administered poison. The said assumption was based on the fact, that the respondent-complainant, (as also the members of his family), found the body of their daughter had turned blue when they laid their eyes on it for the first time after her death. The motive disclosed in the complaint is non- cordiality of relations between the deceased Dr. Monica Thapar, and the family members of her husband (the appellants herein), on account of non- fulfillment of dowry demands. Insofar as the allegation, that the appellants had poisoned Dr. Monica Thapar to death is concerned, the appellants have placed reliance on the post-mortem report dated 28.9.1992, chemical analysis findings recorded in the Central Forensic Science Laboratory’s report dated 9.2.1993, the inquest report dated 6.7.1993, and the order passed by the Additional Sessions Judge, Delhi, dated 7.8.1999. It is clear, that Madan Lal Kapoor (the respondent-complainant), was associated with the investigative process from the very moment the body of Dr. Monica Thapar arrived at Delhi. It was at his instance, that the post- mortem examination was conducted. The body of the deceased, after the same was subjected to the post-mortem examination, was handed over jointly to Madan Lal Kapoor (the father of the deceased) and to Rajiv Thapar (the husband of the deceased). The cremation of the body of Dr. Monica Thapar was carried out jointly by the two families. A high level Medical Board, constituted for conducting the post-mortem examination, in unequivocal terms returned a finding, that “cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension” was the cause of Dr. Monica Thapar’s death. It would be pertinent to notice, that samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken for forensic examination in order to verify the allegation of poisoning levelled by Madan Lal Kapoor. The Central Forensic Science Laboratory, New Delhi, in its report dated 9.2.1993 negatived the aforesaid allegation by concluding, that the samples did not indicate the presence of any common poisoning substance. Relying on the inquest report dated 6.7.1993, rendered by the SDM, Delhi, it was sought to be asserted, that echo-cardiography conducted at the Urmil Heart and Lung Centre, Surat, disclosed the presence of a large hole in Dr. Monica Thapar’s heart. Even according to the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had suffered a massive heart attack, and had died at the said hospital on 26.9.1992. It was the submission of the learned counsel for the appellants, that the aforesaid material is evidence of sterling quality which was sufficient to demonstrate, that there was not the remotest possibility, that the trial against the appellants would lead to their conviction.

25. The evidence, relied upon by the appellant has not been contested or refuted by Madan Lal Kapoor (the respondent-complainant), even though he was aware of the same when he filed the complaint. During the course of the proceeding before the committing Magistrate, and even before Sessions Court and the High Court, the appellants had placed emphatic reliance on the material referred to above. The same remained unrefuted in the pleadings filed on behalf of Madan Lal Kapoor. During the course of hearing at the stages referred to above, the veracity of the documents/material referred to above was not contested. The aforesaid position has subsisted even before this Court. It was accordingly submitted on behalf of the appellants, that even if trial is allowed to proceed against the appellants, at the culmination thereof, it would be impossible to return a finding of guilt against any of the accused.

26. According to the learned counsel for the appellants, the material in the nature of the post-mortem report, the Central Forensic Science Laboratory’s report, as also the inquest report, would be sufficient to exculpate the appellants from the allegations and accusations levelled in the complaint.

27. We are one with the aforesaid submission. From the documents/material relied upon by the appellants, for exactly the same reasons as have been projected on behalf of the appellants, we are satisfied to conclude, that the death of Dr. Monica Thapar was not caused by poisoning. Merely because her body had turned blue, when it arrived at Delhi, in our view, is not a sufficient basis to infer that she had been poisoned to death. In fact material relied upon by the appellants is sufficient to condemn the factual basis of the accusation as false.

28. It also needs to be noticed, that Madan Lal Kapoor (the respondent- complainant) took a summersault before the Additional Sessions Judge, Delhi by alleging, that Dr. Monica Thapar had been strangulated by the appellants, (even though the assertion in the complaint was, that she had been poisoned to death). To determine the veracity of the allegation of strangulation, as the cause of her death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, New Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi (members of the Medical Board which had conducted the post-mortem examination) to clarify the altered accusation levelled by Madan Lal Kapoor. The aforesaid doctors, as is apparent from the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, opined in the negative. They affirmed, that the death of Dr. Monica Thapar had not been caused by strangulation. We are therefore satisfied to affirm, that the death of Dr. Monica Thapar has not been shown to have been caused by strangulation. On an overall examination of the matter, we have no other option, specially in the absence of any submission to the contrary, but to conclude, that the material relied upon by the appellants would lead to the indubitable conclusion, that Dr. Monica Thapar had not died on account of having been strangulated.

29. We shall now advert to the allegation made in the complaint by Madan Lal Kapoor, that there was non-cordiality of relations between the deceased Dr. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in consistent and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as “very affectionate and very caring”. The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint.

30. Even though the statement of Dr. Pritu Dhalaria has been relied upon by the SDM, Delhi in the inquest report, which completely knocks out all the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are of the view, that it would be improper to make any reference thereto in deciding the present controversy. Reliance on the statement of Dr. Pritu Dhalaria would be permissible only after the same is recorded by a court on oath, whereupon, he has to be subjected to cross-examination. Only then, his statement would acquire credibility for reliance. Any fact situation based on the oral testimony, by one or the other party, cannot be the basis of a determination, akin to the one in hand.

31. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory’s report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.

32. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.

33. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.

…………………………….J.

(D.K. Jain)

…………………………….J.

(Jagdish Singh Khehar)

New Delhi;

January 23, 2013.

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.

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

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

2.

3. In the special leave petition, Rajeev Bhandari was arraigned as petitioner 1. However, on 9/12/2011, this court dismissed the special leave petition insofar as Rajeev Bhandari is concerned. Therefore, today, the challenge to the impugned order can be said to be raised only by appellants 1, 2 and 3.

4. It is necessary to give a gist of the facts. On 1/4/2009, respondent 2 lodged the FIR in question at Thana Mahila, District Jodhpur against Rajeev Bhandari, his father Meghraj Bhandari and appellants 1, 2 and 3 alleging offences under Sections 498A and 406 of the IPC. In the FIR, she stated that she got married to Rajeev Bhandari on 9/7/2002 at Jodhpur; her father gave cash of Rs.1,25,000/- and gold and silver ornaments, other articles, clothes, household utensils, etc. to her husband’s family; she resided at Ahmedabad with her husband after her marriage; her husband behaved well for about two and half months; after that, the behaviour of Rajeev Bhandari, his father and the appellants 1, 2 and 3 changed; they started harassing her because she had brought less dowry; they did not give her sufficient food to eat; in her absence, appellants 1, 2 and 3 used to scatter her clothes and belongings and they demanded cash of Rs.6 lakhs. It is further stated in the complaint that on 26/1/2003, all of them harassed her and asked her to bring Rs.6 lakhs and gold and silver items from her father and threatened her that if she does not bring them, she will suffer. According to her, she suffered mental shock because of this behaviour and, hence, she left the matrimonial home in the morning of 27/1/2003. Then, her husband Rajeev Bhandari came searching for her and assured that there will be no demand of dowry. Due to this assurance, she again went to the matrimonial home. However, there was no difference in the behaviour of Rajeev Bhandari and appellants 1, 2 and 3. The dowry demand persisted. She, therefore, phoned her father and told him to come to Ahmedabad. On 14/2/2003, her father came to Ahmedabad and took her to Jodhpur on 15/2/2003. Since then, she has been staying with her parents. According to her, her husband Rajeev Bhandari and appellants 1, 2 and 3 have not contacted her thereafter. She contacted them and asked them to return her original degree certificate, silver and gold ornaments and other articles. But, they ignored her request. She, therefore, requested the police to take legal action against her husband Rajeev Bhandari, her father- in-law Meghraj Bhandari and appellants 1, 2 and 3. It must be stated here that during the pendency of the proceedings, Meghraj Bhandari died.

5. Before the Rajasthan High Court, it was submitted that a perusal of the FIR shows that respondent 2 had left her matrimonial home in the year 2003 and was residing in Jodhpur. No offence can be said to have been committed by the appellants in the territorial jurisdiction of Jodhpur. Hence, registration of FIR at Mahila Thana, Jodhpur is illegal. It was also urged that there is delay in lodging the FIR. On these grounds, it was prayed that the FIR be quashed. The Rajasthan High Court was of the view that part of cause of action had accrued at Jodhpur. It was held that since the offence is a continuous offence, FIR cannot be quashed on the ground of jurisdiction. The High Court also refused to quash the FIR on the ground of delay.

6. Before we refer to the submissions of learned counsel for the appellants, we must note that office report dated 16/8/2012 indicates that respondent 2 has been served. However, she has not engaged any counsel. We, therefore, requested Ms. Asha Nair to assist us on her behalf as amicus curiae. Ms. Nair has accordingly assisted us.

7. Learned counsel for the appellants submitted that respondent 2 left the matrimonial home on 15/2/2003 and the FIR was filed on 1/4/2009 after six years. Counsel submitted that the allegations made in the FIR are of general nature and extremely vague. The FIR, therefore, deserves to be quashed. Ms. Nair, on the other hand, has supported the order of the High Court.

8. We must, at the outset, state that the High Court’s view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3.

9. Hence, impugned judgment and order dated 14/9/2011 passed by the Rajasthan High Court in S.B. Criminal Misc. Petition No.1935 of 2009 is quashed and set aside insofar as it refuses to quash the FIR in question against appellants 1, 2 and 3. FIR No.66 of 2009 lodged at Mahila Thana, District Jodhpur, Rajasthan is quashed insofar as it relates to appellants 1, 2 and 3 viz. Smt. Chandralekha, Vandana and Vinita respectively. We make it clear that so far as Rajeev Bhandari s/o. Meghraj Bhandari is concerned, the proceedings shall go on in accordance with law. We have not quashed FIR No.66 of 2009 insofar as it relates to Rajeev Bhandari. Needless to say that the court seized of the complaint shall deal with Rajeev Bhandari’s case independently, without being influenced by anything said by us on the merits of the case and in accordance with law.

10. The appeal is disposed of in the aforestated terms.

……………………………………………..J.

(AFTAB ALAM)

……………………………………………..J.

(RANJANA PRAKASH DESAI)

NEW DELHI,

DECEMBER 14, 2012.

———————–

8

Categories: 498A Judgements, Judgement

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

September 13, 2012 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

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

Bombay High Court
Criminal Appeal No. 275 Of 1996 vs Unknown on 17 February, 2012
Bench: A.P. Bhangale
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 275 of 1996

Applicant : State of Maharashtra

versus

Respondent : Vasant Kumar s/o Dindayal Chudiwale, aged about 35 years, resident of Hospital

Road, Wardha

Mr S. S. Doifode. Additional Public Prosecutor for appellant-State Mr Ashish Chawre, Advocate for respondent

———

Criminal Revision Application No. 114 of 1996

Applicant : Madanchand s/o Saheblal Kashyap, aged about 70 years, resident of Central

Avenue, Bhawsar Chowk, Nagpur

versus

Respondents : 1) The State of Maharashtra 2) Vasant Kumar s/o Dindayal Chudiwale,

aged about 35 years, resident of Hospital

Road, Wardha

2

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

Coram : A. P. Bhangale, J

Dated : 17th February 2012

Oral Judgment

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

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

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

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

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

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

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

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

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

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

offence of suicide should be found guilty.”

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

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

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

A. P. BHANGALE, J

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

Categories: 498A Judgements

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

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 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