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Vexatious Litigation (Prevention) Act dismissed and judges were called inefficent :))

Bench: B Marlapalle, A Thipsay

*1* appln.3397.03.sxw

kps

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.3397 OF 2003

Mr.Goolam E. Vahanvati, )

Advocate General for )

the State of Maharashtra, )

having his office at Annexe Bldg., )

High Court, Mumbai400032. ) ..Petitioner Versus

Mr.Anil Gulabrai Gidwani, )

Age about 43 years, )

Indian Inhabitant, )

R/a. Ganga Bhavan, )

24th Road, Plot 459, Flat No.10, )

T.P.S.III, Bandra (W), )

Mumbai400050. ) ..Respondent ………..

Mr.H.J.Dedhia, Additional Public Prosecutor, for the Petitioner. The Respondent appears in person.

……….

CORAM : B.H.MARLAPALLE &

A.M.THIPSAY, JJ.

Reserved on : 25th March, 2011.

Pronounced on : 06th May, 2011.

JUDGMENT (Per A.M.Thipsay, J):

1 This is a petition filed by the Advocate General for the State of Maharashtra under Section 2(1) of the Maharashtra Vexatious Litigation (Prevention) Act, 1971, praying that the Respondent be *2* appln.3397.03.sxw

declared as a vexatious litigant and that he be restrained by an order of this Court from initiating any fresh proceedings against one Smt.Shanta Mhatre (mentioned as “the victim lady” in the petition) and from initiating any further application in any pending matters, without seeking prior permission of this Court.

2 This petition is based on the information received by the Petitioner from the said Smt.Shanta Mhatre (hereinafter referred to as “the victim lady”) that the victim lady is being continuously harassed by the Respondent who is habitually and without any reasonable ground, instituting various vexatious proceedings, civil as well as criminal, against her. The petition in paragraph No.1 itself gives the details of the proceedings initiated by the Respondent against the victim lady. The petition states on the basis of the information received by the Petitioner from the victim lady that the Respondent has been in the habit of using filthy language, making false, baseless and serious allegations against the Judges of the Small Causes Court, Mumbai where an ejectment suit filed by the Respondent against the victim lady is pending. The Respondent is the landlord and the victim lady is his tenant. It is also stated in the petition that in the pending suit between the parties, the Respondent has been continuously filing the applications after applications and has, in the course of argument levelled false, baseless and frivolous allegations against the victim lady using most abusive language against her. The Respondent has not only threatened *3* appln.3397.03.sxw the Judges of the Small Causes Court, Mumbai but has also cast aspersions on the judiciary by making certain statements before the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra about “inefficiency of the judicial system” and “leniency shown by the Magistrate towards criminals”. It is also stated that inspite of specific warning given by the learned Magistrate, the Respondent continued to make unwarranted statements and therefore, the Magistrate was required to warn him in open Court and by passing an order on 16.01.2003. The petition also states that the victim lady, who is an Advocate, was constrained to give up her practice, having been required to attend the various civil as well as criminal matters filed by the Respondent and due to unnecessary litigations filed against her by the Respondent. The petition also states, that with object of causing undue harassment and humiliating the victim lady, the Respondent has been referring to the victim lady by her earlier name which the victim lady has got changed. The Respondent also filed a false complaint against the victim lady with the Bar Council, which was dismissed. The Respondent has been filing the proceedings against the victim lady with malicious intention and that the applications which he files are false and frivolous. The petition also gives certain details of the proceedings between the Respondent and the victim lady. The petition gives several instances of misbehaviour of the Respondent with the victim lady and consequent harassment caused by the Respondent to the victim lady. After giving these details, the petition states that the Respondent has habitually and *4* appln.3397.03.sxw

without any reasonable ground instituted the vexatious proceedings, civil and criminal, in the Small Causes Court, the City Civil Court and Criminal Courts.

3 The petition has been opposed by the Respondent by filing a written reply. The Respondent has denied that he is, habitually and without any reasonable ground, initiating various vexatious proceedings against the victim lady. While denying the averments in the petition to the effect that the Respondent has cast aspersions on the judiciary, the Respondent has stated that “judiciary is perceived as inefficient by most citizens in India” and that “pointing this out is not casting aspersion”; and the Respondent has claimed that the same would be fair and valid criticism which has been allowed under the Constitution of India. The Respondent has undertaken to stand by and prove his statement. The Respondent has denied the allegations levelled against him and has advanced his own version with respect to alleged incidents or happenings. Ultimately, the Respondent submits that none of the proceedings initiated against the victim lady are false. According to him, seeking a legal remedy to counter the continuous violations of the provisions of the Rent Act and the terms and conditions of the tenancy agreement on the part of the victim lady, is a valuable right vested in the Respondent by the Constitution of India and cannot be lightly taken away. The Respondent, thus, prays for dismissal of the petition. *5* appln.3397.03.sxw 4 We have heard Mr.H.J.Dedhia, the learned Additional Public Prosecutor appearing for the State in support of the petition. We also permitted the victim lady to make oral submissions before us. We have heard the Respondent who appears in person.

5 The Maharashtra Vexatious Litigation (Prevention) Act, 1971 (hereinafter referred to as the Act) has been enacted to prevent the institution or continuance of the vexatious proceedings in courts. Section 2(1) of the Act reads thus:

“2. (1) If, on an application made by the Advocate General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts, whether against the same person or against different persons, the High Court may, after hearing that person or giving him an opportunity of being heard, order that no proceedings, civil or criminal, shall be instituted by him in any Court (and that any legal proceedings instituted by him in any Court before the order shall not be continued by him), (a) In Greater Bombay, without the leave of the High Court; and

(b) elsewhere in the State, without the leave of the District and Sessions Judge.

At the hearing of any such application, the Advocate General may appear through a pleader.”

6 Section 3 of the Act provides that any proceeding instituted or continued in any Court by a person against whom an order under sub section (1) of Section 2 has been made without obtaining the leave referred to in that section, shall be dismissed by the Court. Section 4 *6* appln.3397.03.sxw thereof saves the applicability of the provisions of any other law for prevention of the vexatious proceedings or other abuse of legal process or necessity of consent, sanction or approval in any form of any other authority for institution or continuance of any proceeding, and makes it clear that the provisions of the Act shall be in addition to and not in derogation of the provisions of such other law.

7 It is clear that an order under subsection (1) of Section 2 of the Act can be passed by the High Court if it is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts. Thus, what must be established before an order under subsection (1) of Section 2 of the Act is passed is that (a) a person has instituted the vexatious proceedings in the Court or Courts and (b) that such person has instituted such proceedings (i) habitually and (ii) without any reasonable ground. The Act, however, does not define the term “vexatious” or “vexatious proceedings”.

8 In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the act or an instance of vexing or annoying or distressing thing. “Vexatious” means such as to cause vexation. (See The Oxford English Reference Dictionary, Edition1995). The term “vexatious”, when used in law, signifies an action not having sufficient ground therefor and seeking only to annoy *7* appln.3397.03.sxw the adversary.

9 The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under:

“The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.”

“Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under:

“An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under:

(a) Vex : to harass, disquiet, or annoy.

(b) Vexation : The damage that is suffered as a result of another’s trickery or malice.

(c) Vexatious : (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.

(d) Vexatious litigant : A litigant who repeatedly files frivolous lawsuits.

(e) Vexatious proceeding : A lawsuit instituted maliciously and without good cause.

11 We have carefully gone through the petition to ascertain the *8* appln.3397.03.sxw

number, details and other particulars of the proceedings which have been initiated by the Respondent. These details are found in PartA of the petition which speaks of “brief background” and also in PartB of the petition which has been classified as “facts of the case”. Now, in PartA, there is mention of criminal case No.608/S/2001 filed by the Respondent against the victim lady and her husband. It is also stated that prior to the filing of the said case, the Respondent had also filed several complaints against the victim lady, the details of which are as follows:

1) N.C. Complaint at the Nirmal Nagar Police Station, Bandra (East) being N.C. Complaint No.4831/2000, filed on 20.11.2000.

2) Complaint filed against the victim lady at the Khar Police Station, Mumbai dated 15.11.2000.

3) Complaint dated 21.09.2000 filed at Khar Police Station, Mumbai.

4) Complaint filed against the victim lady at Khar Police Station, Mumbai dated 24.04.2000.

5) Complaint filed against the victim lady at Khar Police Station, Mumbai dated 30.07.1999.

6) Complaint filed with the Commissioner of Police regarding criminal intimidation dated 08.01.2001.

7) Criminal Appeal No.300/2000 filed by the Respondent against the order passed by the Special Executive *9* appln.3397.03.sxw

Magistrate, Bandra, West Division, Mumbai.

8) Criminal Complaint No.610/S/2002 filed by the Respondent against the victim lady under Sections 506, 504, 352, 268, 447, 107, 427 r/w 34 of the Indian Penal Code.

12 Now, in our opinion, the complaints mentioned at Sr.No.1 to 6 above would not come within the purview of the Act. It is clear that the Act seeks to prevent the institution or continuance of the vexatious proceedings in Courts. Section 2 of the Act also refers to the institution of the vexatious proceedings in any Court or Courts. Thus, the complaints made to the various Police authorities cannot be termed as “vexatious proceedings” within the meaning of the Act. 13 The matter at Sr.No.7 above, namely, Criminal Appeal No. 300/2000, cannot be termed as “vexatious proceedings” inasmuch as the Respondent had filed the same for challenging the order passed by the Special Executive Magistrate requiring the Respondent to execute a bond for good behaviour. The Respondent had a right to challenge the said order by approaching the higher court. The proceedings instituted by the Respondent for challenging an adverse order passed against him, can, by no stretch of imagination, be considered as “vexatious proceedings”. It is also significant that the Respondent succeeded in the said appeal and the Court of Sessions set aside the order passed by the Special *10* appln.3397.03.sxw Executive Magistrate.

14 So far as the Criminal Complaint No.610/S/2002 appearing at Sr.No.8 above is concerned, the same indeed requires to be taken into consideration for deciding whether the Respondent has habitually and without any reasonable ground instituted the vexatious proceedings. The petition, however, instead of highlighting as to how the said complaint is either false, frivolous or vexatious, deals more with the conduct of the Respondent in the course of hearing of the complaint. It is stated that the Respondent is in the habit of using filthy language and making false, baseless and serious allegations against the Judges of the Small Causes Court. It is stated that the Respondent also levelled false, baseless and frivolous allegations against the victim lady and used most abusive language against her. It is stated that the Respondent has cast aspersions on the judiciary by making serious statements before the learned Additional Chief Metropolitan Magistrate, Bandra. It is also mentioned that the Respondent was warned by the learned Magistrate, thrice, orally, and thereafter, by passing an order; and that while the order was being dictated the Respondent submitted an apology. Indeed, it appears from the order dated 16.03.2003 passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra that the Respondent had behaved in an improper manner in the Court and had started arguing about inefficiency of the judicial system. It may be observed, at this stage, that the Respondent seems to be in the habit of speaking about the *11* appln.3397.03.sxw inefficiency of the judicial system, inasmuch as, not only he has made remarks about inefficiency of the judicial system in his reply to the petition, but the record shows that in the course of hearing of this petition itself, he has attempted to teach the Hon’ble Judges of this Court as to how they are supposed to do their job.

15 The Petition also refers to the order dated 07.01.2003 passed by the Court of Small Causes, Mumbai in Interim Notice No. 7/2003 in RAE Suit No.3000/838/1994. The Respondent is the Plaintiff No.2(d) in the said suit and the victim lady is the Defendant. Copy of the order, which has been annexed to the petition at ExhibitD, indicates that the Court of Small Causes ordered to strike out certain portion contained in the Respondent’s affidavit in reply dated 13.12.2002, under the provisions of OrderVI Rule16 of the Code of Civil Procedure. Thus, this prima facie indicates that the Respondent had resorted to scandalous and unnecessary averments in his affidavit in reply. 16 The petition then refers to a complaint filed by the Respondent against the victim lady with the Bar Council. In our opinion, the Bar Council cannot be termed as a “Court” and therefore, the proceedings filed by the Respondent against the victim lady with the Bar Council would be outside the purview of the Act and therefore, cannot be taken into consideration. Undoubtedly, the conduct of the Respondent insofar as it appears from the filing of the said proceedings may be taken *12* appln.3397.03.sxw into consideration while deciding the propriety of treating him as a vexatious litigant, but this complaint made by him to the Bar Council cannot be added to the list for showing the number of alleged vexatious proceedings initiated by him.

17 The petition then refers to the threatening language used by the Respondent to the Judge of the Court of Small Causes. An incident which has taken place in Revision Application No.16/2002 pending in the Court of Small Causes has been cited and a copy of the order passed by the Court of Small Causes has been annexed to the petition as ExhibitF. It is not clear, as to what is sought to be conveyed by referring to the said order except that the Respondent threatened or used improper language while addressing the learned Judge of the Small Causes Court.

18 Now, coming to the details given in partB of the petition classified as “facts of the case”, there is reference of the suit bearing RAE No.537/4434/63, but this suit has, admittedly, not been filed by the Respondent and apparently the same has been filed by the grandfather of the Respondent. Reference to an order dated 03.05.2003 passed by the Court of Small Causes has been made and a copy of the said order has been annexed to the petition as ExhibitH. A perusal of ExhibitH shows that it is an order passed in RAE Suit No.300/838/1994 in which the Respondent is one of the Plaintiffs and the victim lady is the *13* appln.3397.03.sxw

Defendant. By the said order, the suit filed by the Plaintiffs was dismissed. It is clear from the averments in the petition itself that the legal proceedings are pending between the parties since the year 1963. The petition itself states, that the victim lady had been suffering at the hands of the grandfather of the Respondent since 1961 and thereafter, at the hands of the father of the Respondent, who both were landlords of the victim lady. It is only subsequently that the Respondent has come on record as one of the landlord.

19 The petition then states that the Respondent has been initiating the legal proceedings by filing unnecessary, false and frivolous litigation and that he makes various applications in the legal proceedings and does not even spare the judicial officers etc.. In our opinion, if the Respondent has stepped in the shoes of his grandfather and father in his capacity as the landlord, and is continuing the suits filed by them, it cannot be said that the Respondent has initiated or instituted those suits. The petition then proposes to give history of the suit bearing RAE No. 537/4434/63 filed by the grandfather of the Respondent, and it is clear therefrom, that the Respondent came in picture in the year 1998 only. It seems that he was earlier in U.S.A. and after coming down from there, he started taking interest in the litigation which was already pending between the landlords and the victim lady.

20 The petition then narrates the instances of objectionable *14* appln.3397.03.sxw conduct of the Respondent such as filing the complaint with the Bar Council, sitting right under the window of the victim lady’s house from morning to evening and making her uncomfortable by peeping inside the house, etc.. It is alleged that the Respondent, on the pretext of reading books and doing meditation, continues to sit near the window of the victim lady reading law books and passing unwanted remarks stating that he will become a better lawyer by reading law books and will teach the victim lady a lesson. The Respondent is also alleged to have killed the kitten to whom the victim lady regularly used to feed. He is also alleged to have called three men to remove coconuts from the coconut tree and in the process broke number of flower pots belonging to the victim lady and destroyed the garden maintained by her. The victim lady also suspects that the attempt of robbery, that was committed on 04.01.2000 at the flat of the victim lady, was at the instance of the Respondent.

21 An incident dated 20.01.2000 is also quoted in the petition. The Respondent, when he attended the office of the Advocate for the victim lady, fought with the said Advocate and embarrassed him in front of his other clients, due to which, the Advocate refused to represent the victim lady who was, therefore, constrained to engage another Advocate, putting her to unnecessary harassment, financial burden and mental agony. In our opinion, the objectionable conduct of the Respondent, as alleged, and the harassment caused by him to the victim lady, by various *15* appln.3397.03.sxw methods as referred to above, is not relevant in the context of the provisions of the Act. The Act intends to prevent only the harassment as would be caused by instituting vexatious proceedings, and not other forms of harassment, for which appropriate legal action can be taken by the aggrieved person.

22 The petition then refers to a suit bearing L.C. Suit No. 157/2001 filed by the victim lady against the Municipal Corporation of Greater Bombay and others challenging the notice under Section 53(1) of the M.R.T.P. Act issued by the Municipal Corporation to the victim lady. Apparently, the Respondent who was the Defendant No.3 in the said suit had taken out the Notice of Motion No.3785/2001 praying for various reliefs including that certain copies of the affidavits filed in the same proceedings be made available to him, that the criminal complaint should be lodged against the Plaintiff i.e. victim lady, that the criminal complaints be also lodged against the persons named as Respondents in the said motion, etc.. The said Notice of Motion was dismissed as not tenable and it was observed by the learned Judge, City Civil Court, Mumbai that the Respondent had moved the Notice of Motion to pressurize the Plaintiff i.e. victim lady for ulterior motive. The learned Judge also observed that the Respondent wanted to harass the victim lady by hook or crook by filing such frivolous motion. The petition also states that the Respondent had filed a perjury application against the victim lady in L.C. Suit No.157/2001 in the City Civil Court and the *16* appln.3397.03.sxw learned Judge who dealt with the matter observed that the application had been filed with a view to harass the victim lady and other persons. 23 The petition then states, that on every date in the matter in the Small Causes Court, the Respondent misbehaved with the victim lady by instructing the Court clerk to call the victim lady by previous name i.e. Shanta Wadhva instead of calling her by changed name i.e. Shanta Mhatre, that he insists on keeping back the matter etc. with a view to cause harassment to the Court as well as the victim lady. There is a reference to the applications filed by the Respondent in the Court of Small Causes praying the action for contempt should be taken against the victim lady, which applications were dismissed by the Court. 24 The petition then refers to the Criminal Case No.608/2001 filed by the Respondent against the victim lady and her husband under the provisions of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 (wrongly referred as the Urban Land Development of Trees Act, 1975 in the petition) and Section 435 r/w 34 of the Indian Penal Code. The petition then refers to the Criminal Case No.610/2001 filed by the Respondent against the victim lady for the offences punishable under Sections 352, 268, 425 r/w 34 of the Indian Penal Code. 25 Lastly, the petition purports to give the list of all cases filed by the Respondent against the victim lady pending in various Court as *17* appln.3397.03.sxw Exhibit M to the petition. However, ExhibitM to the petition consists of some other documents, though a list of such cases is found annexed to the petition, perhaps, as a part of ExhibitM. Only four matters are mentioned in the said list which are as follows:

(1) Criminal Complaint No.608/S/2001 filed in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra under Section 8 r/w 21(1) of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 and Section 435 r/w 34 of the Indian Penal Code.

(2) Criminal Complaint No.610/S/2002 filed in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra under Sections 506, 504, 353, 268, 447, 107, 427 r/w 34 of the Indian Penal Code.

(3) R.A.E. Suit No.300/838/1994 filed in the Court of Small Causes Court, Bandra.

(4) Chamber Summons No.307/2003 for restoration of L.C. Suit No.2146/2001, in the City Civil Court.

26 It can be seen that R.A.E. Suit No.300/838/1994 mentioned at Sr.No.3 above, had not been filed by the Respondent alone and the same was dismissed on 03.05.2003. Apparently, the same has been restored. Who has taken out the Chamber Summons No.307/2003 mentioned at Sr.No.4 above, is not clear, as the same appears to be for *18* appln.3397.03.sxw

restoration of the victim lady’s suit being L.C. Suit No.2146/2001 in the City Civil Court.

27 Though a number of proceedings are pending between the Respondent and the victim lady, it, however, does not appear that all these proceedings have been filed by the Respondent. The relationship between the parties is that of the landlord and tenant and the original landlords had filed the proceedings under the Rent Act against the victim lady which proceedings have been continued by the Respondent as one of the heirs and legal representatives of the original landlords. On careful examination of the proceedings, there appears to be reference to only two suits one filed in the year 1963 and other filed in the year 19994 and admittedly, none of these suits have been filed by the Respondent. The details of the suits or the issues involved therein have not been mentioned in the petition. No arguments were advanced with respect to these suits to show that no relief is actually expected by the Plaintiffs, but the object of continuance of the said suits is only to harass or annoy the victim lady.

28 Reading of the petition, gives a clear impression to us that what has been highlighted is not the initiation of the proceedings without any reasonable ground, without any genuine grievance and without any intention or hope of ultimately succeeding or getting any relief. What has been highlighted, instead, is the conduct of the Respondent in prosecuting *19* appln.3397.03.sxw the proceedings. The emphasis in the petition is on the conduct of the Respondent in the course of the proceedings which are being conducted by him as a party in person. The emphasis is on how the Respondent makes allegation against the learned Judges, how he insults the victim lady in the course of those proceedings etc.. The emphasis is more on the conduct of the Respondent with the Judges, causing annoyance to the Judges.

29 Indeed, we find the conduct of the Respondent as reflected from the record is quite objectionable. It may be recalled that even while defending the present petition, the Respondent, in his affidavitinreply, stated that “the judiciary is perceived as inefficient by most citizens of India” as a justification for what he had stated against the judiciary and to claim that making such remarks does not amount to casting aspersions on the judiciary. The Respondent may be free to express his views about the judiciary, but obviously had no right to project his views as of “most citizens in India”. What survey or research has been made by the Respondent to ascertain the views of “most citizens in India”, has not been disclosed, and considering the number of the citizens in India it is impossible to believe that the Respondent has made any survey or research on these aspects, so as to be able to make an authoritative statement of what “most citizens” feel. The impropriety is so obvious that we do not wish to comment upon the same any further, except observing that this shows the tendency of the Respondent to make certain baseless *20* appln.3397.03.sxw statements, projecting them to be well studied, scholarly and authoritative. The Respondent had no business to throw the weight of the alleged perception of most citizens of India about inefficiency of the judiciary, so as to support his own perception if he really and truly has one in that regard. We also find that the Respondent, on one occasion, attempted to teach the senior Judges of this Court as to how they should do their job of judging and the occasion to do so, apparently arose because this matter was not being taken up by the learned Judges, being busy with the hearing of some other matters. It is also seen from the record, that the Respondent had filed an untenable and senseless application for initiation of “perjury proceedings” against Justice Bilal Nazki on the ground that certain statements in the order passed by Justice Bilal Nazki on 13.03.2009 in the present proceedings contained false statement. Obviously, the Respondent does not understand what is “evidence” and what constitutes offence of perjury i.e. giving false evidence.

30 The question, however, is whether the Respondent should be prevented from instituting any legal proceedings without the leave of this Court as contemplated under Section 2 of the Act. Merely because a party conducts himself in an improper manner during the course of any legal proceedings, it would not be proper to declare such a party as a “vexatious litigant” and to pass an order as contemplated under Section 2(1) of the Act against him. Passing an order under Section 2(1) of the *21* appln.3397.03.sxw

Act would put restriction on the rights of the party to initiate and/or institute the legal proceedings at his peril.

31 A party should ordinarily be allowed to initiate or institute any legal proceedings, at his peril. If a party conducts himself improperly during such proceedings, then there are various provisions in various statutes, which aim to control such improper and objectionable conduct of the party. The Contempt of Courts Act, 1971 provides, interalia, that any act which prejudices or obstructs or interferes, or tends to interfere, with the due course of any judicial proceedings, or administration of justice, would amount to criminal contempt which can be punished under the provisions of the Contempt of Courts Act, 1971. The cases of contempt contemplated by Section 228 of the Indian Penal Code can be dealt with summarily under the provisions of Section 345 of the Code of Criminal Procedure, apart from the normal procedure, which may consume some time.

32 OrderVI Rule16 of the Code of Civil Procedure empowers the Court to order striking out any matter in any pleading which the Court may think unnecessary, scandalous, frivolous or vexatious, or which may tend to prejudice, embarrass or delay the fair trial of the suit. Sections 151 and 512 of the Indian Evidence Act, empower the Court to forbid questions, which it regards as scandalous or indecent or which appear to the Court to be intended to insult or annoy or which appear to *22* appln.3397.03.sxw be needlessly offensive in form to be put to the witnesses or parties. Thus, the objectionable conduct with respect to the Presiding Officers/ Judges of the Courts and also with respect to any other person if the same would be intended to or have effect or tendency of obstructing the due course of judicial proceedings, can be properly dealt with by the Courts which undoubtedly have all powers to set things right. 33 The suit filed by a party which does not disclose any cause of action can be thrown out by the Court by rejecting the plaint. The complaint filed by a party before a Magistrate needs to be verified by the Magistrate by examining the Complainant on oath, and it is only on the satisfaction of the Magistrate about sufficiency of grounds for proceeding further, that the accused can be summoned to face the trial. Again, the Courts are empowered to award the costs and even compensation to the persons who are got groundlessly arrested or unnecessarily dragged to the Courts. All these provisions are designed to ensure a fair trial and proper determination of the disputes brought before the Courts of law. 34 In our opinion, simply because the conduct of the party to the litigation is objectionable and because the party has been causing annoyance to the Judges, by his incapacity to understand the Law and by his approach in the litigation, it would not be proper to invoke the powers under Section 2 of the Act, which according to us, should be exercised only in exceptional cases, where the various provisions *23* appln.3397.03.sxw discussed above, designed to ensure a fair trial and a fair adjudication of dispute in proper atmosphere, would prove to be ineffective. In this context, we hold the word “habitually” appearing in Section 2 of the Act to be significant. In our opinion, a number of proceedings which a party institutes must be unreasonable and sufficiently high so as to attract the provisions of the Act. In our opinion, even if other conditions mentioned in Section 2 of the Act are satisfied, the powers under the said section can be invoked only if a number of proceedings filed by the party is unreasonably high and if such conduct is persisted for sufficient span of time which is signified by the word “habitually”.

35 If we examine the present case from that angle, we find that there is mention of only four proceedings and the prayer clause (e) of the petition also speaks of the cases mentioned in ExhibitM. It may be recalled that the list of cases which forms a part of ExhibitM, is consisting only four cases, out of which, only two have been filed by the Respondent. The petition mentions about various complaints filed by the Respondent with the Police and Municipal authorities and one with the Bar Council. As already discussed above, these complaints to the authorities would not come within the purview of the proceedings contemplated by the Act. It may also be noted that a public servant to whom such complaints are filed, can take action against the Respondent in the event of coming to the conclusion that false complaints or false report have been made. In fact, the Respondent in such cases can also be *24* appln.3397.03.sxw prosecuted by the concerned public servants, apart from any other action, such as for defamation etc., which the aggrieved party may successfully bring.

36 We would like to sum up as follows:

(a) The Respondent, who appears as a party in person in various legal proceedings, has on several occasions caused annoyance to the Judges by his objectionable conduct.

(b) The Respondent probably because of his incapacity to understand the Law, has made certain unreasonable and contemptuous demands such as proceedings for perjury should be initiated against the learned Judge, claiming that a statement in the order passed by the Judge is false. Similarly, without understanding the concept of “verification” of the petition or pleading, the Respondent has tried to equate it with the finding or decision to be given about the correctness of the assertions made in such petition or pleading, without realizing that such a decision would be given by the Court and that concept of “verification” does not contemplate such decision or findings to be given by the party to the proceedings.

(c) The Respondent has claimed that the judiciary is *25* appln.3397.03.sxw inefficient, and the Respondent has tried to support his opinion by claiming that “most citizens of India” hold such an opinion about the judiciary, without giving any basis for such claim and without explaining whether, and in what manner any survey or research on this point was done by the Respondent. Thus, apparently the Respondent has attempted to throw the weight of opinion of “most citizens of India” in order to pressurize or cause embarrassment to the Judges dealing with the petition and this attempt does not appear to be bonafide.

(d) The Respondent has even attempted to teach the senior Judges of this Court as to how they should do their job of judging.

(e) The Respondent has also behaved in an objectionable and threatening manner with the Judges of Courts of Small Causes, City Civil and Metropolitan Magistrate. (Which is not surprising in view of the opinion which he holds about the judiciary and which he falsely claims to be the opinion of “most citizens of India”.)

(f) Though the Respondent has filed a number of complaints against the victim lady with the Police and Municipal authorities, these complaints cannot be considered as legal proceedings as contemplated *26* appln.3397.03.sxw under Section 2 of the Act which speaks of the proceedings in Court or Courts. Similarly, the complaint filed with the Bar Council would be outside the purview of the provisions of Section 2 of the Act. (g) The petition does not concentrate on giving the details of the nature of the proceedings initiated by the Respondent, to show that they are vexatious, but attempts to highlight his improper and objectionable conduct with the victim lady and more particularly with the Judges hearing such cases. The Act intends to protect the parties against whom bogus and vexatious proceedings are or would be instituted and to prevent their harassment. For the conduct causing annoyance to the Judges, and attempts to browbeat the Judges, the powers conferred on this Court by Section 2 of the Act should not be invoked. The Judges and Courts have sufficient powers to tackle such conduct of a litigant and do not require the support of the Act, which is aimed at preventing the harassment of the parties to the litigation and for protecting them from vexatious proceedings.

(h) Once the complaints lodged with the Police, Municipal authorities and the Bar Council are excluded from consideration, the number of proceedings instituted *27* appln.3397.03.sxw by the Respondent cannot be considered as sufficiently high so as to hold that the Respondent has habitually instituted the proceedings as contemplated by Section 2 of the Act.

37 In our considered opinion, this is not a fit case where an order under Section 2(1) of the Act should be passed. As discussed above, there are sufficient, proper and effective provisions in law to control and regulate the objectionable conduct of the party to a legal proceedings and in view of such provisions, there would be no apprehension that there would not be a fair trial or adjudication of the disputes which are pending between the parties. At any rate, since the number of proceedings instituted in different Courts by the Respondent is not so high, we are unable to hold that the requirement conveyed by the word “habitually” used in Section 2(1) of the Act has been satisfied. We are, therefore, inclined to dismiss the petition. 38 The petition is dismissed.

(A.M.THIPSAY, J.) (B.H.MARLAPALLE, J.)

Categories: Judgement

HC dismisses DIL petition under 482 CrPC for registering FIR

Crl. Misc. No.M-12191 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

Crl. Misc. No.M-12191 of 2011

Date of Decision: 04.05.2011

Kiranjit Kaur

….Petitioner

Versus

State of Punjab and others

…Respondents

CORAM : Hon’ble Ms. Justice Nirmaljit Kaur

Present:- Ms. Harpreet Kaur, Advocate

for the petitioner.

*****

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

**

NIRMALJIT KAUR, J. (ORAL)

This is a petition under Section 482 Cr.P.C for issuance of directions to respondent No.2 to get the investigation conducted from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint filed by the petitioner regarding the unnatural death of the father-in-law, namely Charan Singh r/o Village Bodal Keeri, Tehsil Khadoor Sahib, District Tarn Taran and regarding the harassment to the petitioner on account of dowry by the private respondents. The petitioner is the daughter-in-law of the deceased. The story put forward by the petitioner is that the deceased has been murdered by his own family i.e his wife, daughters and the son as he used to help the petitioner i.e his daughter-in-law.

It is admitted that the petitioner filed applications/complaint to the said effect and the enquiry was duly conducted by the Deputy Crl. Misc. No.M-12191 of 2011 2 Superintendent of Police, Bhikhiwind in the said complaint. As per the said enquiry, the present petitioner was found to be submitting applications one after the other levelling allegations against her husband Gurdev Singh, mother-in-law Joginder Kaur and sister-in-laws for implicating them in one or the other case. While the demand of the maruti zen car in dowry and giving beatings were not proved, the allegations against the in-laws for the death of her father-in-law too were held to be false. As per the said enquiry, Charan Singh died when he stepped down in the well through the wooden ladder for putting belt on the motor of the tubewell. However, the steps of the ladder broke and he fell down in the well. He died on the spot. Since, Kiranjit Kaur was not getting on well with her in-laws, she used the opportunity to file a complaint against her in-laws, alleging therein, that her father-in-law was murdered by his own wife, daughters and son. While filing the said complaint, she did not disclose that she had earlier also filed applications regarding the demand of dowry and harassment against her husband Gurdev Singh, mother-in-law-Joginder Kaur and sister-in-laws. After enquiry, her complaint was found to be false. The said application/complaint was recommended to be consigned in the office. The petitioner insisted on her complaint and accordingly, the second enquiry was held by the Superintendent of Police (HQ) Tarn Taran. The Superintendent of Police (HQ) Tarn Taran, too, found the allegations to be incorrect.

Thus, the petitioner, in spite of the said finding of the enquiry has moved the present petition under Section 482 of the Cr.P.C for issuance of directions to respondent No.2 to get the investigation from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint (Annexure P-5) filed by her regarding the unnatural death of the father-in-law, namely Charan Singh. The allegations made Crl. Misc. No.M-12191 of 2011 3 by the present petitioner are highly improbable. The petitioner is the daughter-in-law who is not having good relations with the family of her in-laws, which is evident from the various applications/complaints filed by her. Thus, the reason for making bald and vague allegation that her father- in-law was killed by his wife and daughters and son is obvious. As per the enquiry conducted, the father-in-law died on account of having fallen into the Well while working on the spot. The post mortem was conducted. No poison was found. He died on account of fall in the well while he was putting belt on the motor of the tubewell installed in the well. The enquiry was conducted by the Senior Officers. Learned counsel for the petitioner is not able to point out as to how the enquiry was not fair and proper and as to why the same should be handed over to Crime Branch.

In view of the above, the same is dismissed being devoid of merit with liberty to file a criminal complaint qua the allegation of harassment and demand of dowry, if so advised. (NIRMALJIT KAUR)

04.05.2011 JUDGE gurpreet

Crl. Misc. No.M-12191 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

Crl. Misc. No.M-12191 of 2011

Date of Decision: 04.05.2011

Kiranjit Kaur

….Petitioner

Versus

State of Punjab and others

…Respondents

CORAM : Hon’ble Ms. Justice Nirmaljit Kaur

Present:- Ms. Harpreet Kaur, Advocate

for the petitioner.

*****

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

**

NIRMALJIT KAUR, J. (ORAL)

This is a petition under Section 482 Cr.P.C for issuance of directions to respondent No.2 to get the investigation conducted from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint filed by the petitioner regarding the unnatural death of the father-in-law, namely Charan Singh r/o Village Bodal Keeri, Tehsil Khadoor Sahib, District Tarn Taran and regarding the harassment to the petitioner on account of dowry by the private respondents. The petitioner is the daughter-in-law of the deceased. The story put forward by the petitioner is that the deceased has been murdered by his own family i.e his wife, daughters and the son as he used to help the petitioner i.e his daughter-in-law.

It is admitted that the petitioner filed applications/complaint to the said effect and the enquiry was duly conducted by the Deputy Crl. Misc. No.M-12191 of 2011 2 Superintendent of Police, Bhikhiwind in the said complaint. As per the said enquiry, the present petitioner was found to be submitting applications one after the other levelling allegations against her husband Gurdev Singh, mother-in-law Joginder Kaur and sister-in-laws for implicating them in one or the other case. While the demand of the maruti zen car in dowry and giving beatings were not proved, the allegations against the in-laws for the death of her father-in-law too were held to be false. As per the said enquiry, Charan Singh died when he stepped down in the well through the wooden ladder for putting belt on the motor of the tubewell. However, the steps of the ladder broke and he fell down in the well. He died on the spot. Since, Kiranjit Kaur was not getting on well with her in-laws, she used the opportunity to file a complaint against her in-laws, alleging therein, that her father-in-law was murdered by his own wife, daughters and son. While filing the said complaint, she did not disclose that she had earlier also filed applications regarding the demand of dowry and harassment against her husband Gurdev Singh, mother-in-law-Joginder Kaur and sister-in-laws. After enquiry, her complaint was found to be false. The said application/complaint was recommended to be consigned in the office. The petitioner insisted on her complaint and accordingly, the second enquiry was held by the Superintendent of Police (HQ) Tarn Taran. The Superintendent of Police (HQ) Tarn Taran, too, found the allegations to be incorrect.

Thus, the petitioner, in spite of the said finding of the enquiry has moved the present petition under Section 482 of the Cr.P.C for issuance of directions to respondent No.2 to get the investigation from the crime branch or a higher rank officer of another district against respondents No.4 to 10 after registering the FIR against the accused on the complaint (Annexure P-5) filed by her regarding the unnatural death of the father-in-law, namely Charan Singh. The allegations made Crl. Misc. No.M-12191 of 2011 3 by the present petitioner are highly improbable. The petitioner is the daughter-in-law who is not having good relations with the family of her in-laws, which is evident from the various applications/complaints filed by her. Thus, the reason for making bald and vague allegation that her father- in-law was killed by his wife and daughters and son is obvious. As per the enquiry conducted, the father-in-law died on account of having fallen into the Well while working on the spot. The post mortem was conducted. No poison was found. He died on account of fall in the well while he was putting belt on the motor of the tubewell installed in the well. The enquiry was conducted by the Senior Officers. Learned counsel for the petitioner is not able to point out as to how the enquiry was not fair and proper and as to why the same should be handed over to Crime Branch.

In view of the above, the same is dismissed being devoid of merit with liberty to file a criminal complaint qua the allegation of harassment and demand of dowry, if so advised. (NIRMALJIT KAUR)

04.05.2011 JUDGE gurpreet

Categories: Judgement

SC: Honor killing deserves death penalty

Bench: M Katju, G S Misra

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1117 OF 2011

@ SPECIAL LEAVE PETITION (CRL.) NO.1208 OF 2011 Bhagwan Dass .. Appellant -versus-

State (NCT) of Delhi .. Respondent(s) J U D G M E N T

Markandey Katju, J.

“Hai maujazan ek kulzum-e-khoon kaash yahi ho Aataa hai abhi dekhiye kya kya mere aage” — Mirza Ghalib

2

1. This is yet another case of gruesome honour killing, this time by the accused-appellant of his own daughter.

2. Leave granted.

3. Heard learned counsels for the parties and perused the record.

4. The prosecution case is that the appellant was very annoyed with his daughter, who had left her husband Raju and was living in an incestuous relationship with her uncle, Sriniwas. This infuriated the appellant as he thought this conduct of his daughter Seema had dishonoured his family, and hence he strangulated her with an electric wire. The trial court convicted the appellant and this judgment was upheld by the High Court. Hence this appeal.

5. This is a case of circumstantial evidence, but it is settled law that a person can be convicted on circumstantial evidence 3

provided the links in the chain of circumstances connects the accused with the crime beyond reasonable doubt vide Vijay Kumar Arora vs. State (NCT of Delhi), (2010) 2 SCC 353 (para 16.5), Aftab Ahmad Ansari vs. State of Uttaranchal, (2010) 2 SCC 583 (vide paragraphs 13 and 14), etc. In this case, we are satisfied that the prosecution has been able to prove its case beyond reasonable doubt by establishing all the links in the chain of circumstances.

6. In cases of circumstantial evidence motive is very important, unlike cases of direct evidence where it is not so important vide Wakkar and Anr. vs. State of Uttar Pradesh (2011) 3 SCC 306 (para 14). In the present case, the prosecution case was that the motive of the appellant in murdering his daughter was that she was living in adultery with one Sriniwas, who was the son of the maternal aunt of the appellant. The appellant felt humiliated by this, and to avenge the family honour he murdered his own daughter.

4

7. We have carefully gone through the judgment of the trial court as well as the High Court and we are of the opinion that the said judgments are correct.

8. The circumstances which connect the accused to the crime are:

i) The motive of the crime which has already been mentioned above. In our country unfortunately `honour killing’ has become common place, as has been referred to in our judgment in Arumugam Servai vs. State of Tamil Nadu Criminal Appeal No.958 of 2011 (@SLP(Crl) No.8084 of 2009) pronounced on 19.4.2011.

Many people feel that they are dishonoured by the behaviour of the young man/woman, who is related to them or belonging to their caste because he/she is marrying against their wish or having an affair with someone, and hence they take the law into their own hands and kill or physically assault such person or commit some other atrocities on them. We have held in Lata 5

Singh vs. State of U.P. & Anr. (2006) 5 SCC 475, that this is wholly illegal. If someone is not happy with the behaviour of his daughter or other person, who is his relation or of his caste, the maximum he can do is to cut off social relations with her/him, but he cannot take the law into his own hands by committing violence or giving threats of violence.

ii) As per the post mortem report which was conducted at 11.45 am on 16.5.2006 the likely time of death of Seema was 32 hours prior to the post mortem. Giving a margin of two hours, plus or minus, it would be safe to conclude that Seema died sometime between 2.00 am to 6.00 am on 15.5.2006. However, the appellant, in whose house Seema was staying, did not inform the police or anybody else for a long time. It was only some unknown person who telephonically informed the police at 2.00 pm on 15.5.2006 that the appellant had murdered his own daughter. This omission by the appellant in not informing the police about the death of his daughter for about 10 hours was a 6

totally unnatural conduct on his part.

iii) The appellant had admitted that the deceased Seema had stayed in his house on the night of 14.5.2006/15.5.2006. The appellant’s mother was too old to commit the crime, and there is not even a suggestion by the defence that his brother may have committed it. Hence we can safely rule out the possibility that someone else, other than the appellant, committed the crime. Seema had left her husband sometime back and was said to be living in an adulterous and incestuous relationship with her uncle (her father’s cousin), and this obviously made the appellant very hostile to her.

On receiving the telephonic information at about 2.00 pm from some unknown person, the police reached the house of the accused and found the dead body of Seema on the floor in the back side room of the house. The accused and his family members and some neighbours were there at that time. The accused admitted that although Seema had been married about 7

three years ago, she had left her husband and was living in her father’s house for about one month. Thus there was both motive and opportunity for the appellant to commit the murder. iv) It has come in evidence that the accused appellant with his family members were making preparation for her last rites when the police arrived. Had the police not arrived they would probably have gone ahead and cremated Seema even without a post mortem so as to destroy the evidence of strangulation. v) The mother of the accused, Smt. Dhillo Devi stated before the police that her son (the accused) had told her that he had killed Seema. No doubt a statement to the police is ordinarily not admissible in evidence in view of Section 162(1) Cr.PC, but as mentioned in the proviso to Section 162(1) Cr.PC it can be used to contradict the testimony of a witness. Smt. Dhillo Devi also appeared as a witness before the trial court, and in her cross examination, she was confronted with her statement to the police to whom she had stated that her son (the accused) had told her 8

that he had killed Seema. On being so confronted with her statement to the police she denied that she had made such statement.

We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to Section 162(1) Cr.PC, and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in the court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of Section 162(1) Cr.PC.

In our opinion the statement of the accused to his mother Smt. Dhillo Devi is an extra judicial confession. In a very recent 9

case this Court in Kulvinder Singh & Anr. vs. State of Haryana Criminal Appeal No.916 of 2005 decided on 11.4.2011 referred to the earlier decision of this Court in State of Rajasthan vs. Raja Ram (2003) 8 SCC 180, where it was held (vide para 10) :

“An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the relia- bility of the witness who gives the evidence. It is not open to any court to start with a presumption that ex- tra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of at- tributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpe- trator of the crime and nothing is omitted by the wit- ness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch- stone of credibility, the extra-judicial confession can be 10

accepted and can be the basis of a conviction if it pass- es the test of credibility.”

In the above decision it was also held that a conviction can be based on circumstantial evidence.

Similarly, in B.A. Umesh vs. Registrar General, High Court of Karnataka, (2011) 3 SCC 85 the Court relied on the extra judicial confession of the accused.

No doubt Smt. Dhillo Devi was declared hostile by the prosecution as she resiled from her earlier statement to the police. However, as observed in State vs. Ram Prasad Mishra & Anr. :

“The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.” Similarly in Sheikh Zakir vs. State of Bihar AIR 1983 SC 911 this Court held :

“It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction.” 11

In Himanshu alias Chintu vs. State (NCT of Delhi), (2011) 2 SCC 36 this Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff, and the maxim “falsus in uno falsus in omnibus” has no application in India vide Nisar Alli vs. The State of Uttar Pradesh AIR 1957 SC 366. In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence we accept her statement to the police and reject her statement in court. The defence has not shown that the police had any enmity with the accused, or had some other reason to falsely implicate him. We are of the opinion that this was a clear case of murder and the entire circumstances point to the guilt of the accused. vi) The cause of death was opined by Dr. Pravindra Singh-PW1 12

in his post mortem report as death “due to asphyxia as a result of ante-mortem strangulation by ligature.” It is evident that this is a case of murder, and not suicide. The body was not found hanging but lying on the ground.

vii) The accused made a statement to the SDM, Shri S.S. Parihar-PW8, immediately after the incident and has signed the same. No doubt he claimed in his statement under Section 313 Cr.PC that nothing was asked by the SDM but he did not clarify how his signature appeared on the statement, nor did he say that he was forced to sign his statement nor was the statement challenged in the cross examination of the SDM. The SDM appeared as a witness before the trial court and he has proved the statement in his evidence. There was no cross examination by the accused although opportunity was given. In his statement under Section 313 Cr.PC the accused was asked :

“Q.8 It is in evidence against you that you were interrogated and arrested vide memo Ex PW11/C and your personal search was conducted vide memo Ex 13

PW11/D and you made disclosure statement EXPW7/A and in pursuance thereto you pointed out the site plan of incident and got recovered an electric wire Ex P1 which was seized by IO after sealing the same vide memo ExPW7/B. What do you have to say?

The reply he gave was as follows :

“Ans. I was wrongly arrested and falsely implicated in this case. I never made any disclosure statement. I did not get any wire recovered nor I was ever taken again to my house.”

We see no reason to disbelieve the SDM as there is nothing to show that he had any enmity against the accused or had any other reason for making a false statement in Court. viii) The accused had given a statement (Ex. PW7/A) to the SDM in the presence of PW11 Inspector Nand Kumar which led to discovery of the electric wire by which the crime was committed. We are of the opinion that this disclosure was admissible as evidence under Section 27 of the Evidence Act vide Aftab Ahmad Ansari vs. State, (2010) 2 SCC 583 (para 40), Manu Sharma vs. State, (2010) 6 SCC 1 (paragraphs 234 to 238). In his evidence the police Inspector Nand Kumar stated that at the 14

pointing out of the accused the electric wire with which the accused is alleged to have strangulated his daughter ws recovered from under a bed in a room.

It has been contended by the learned counsel for the appellant that there was no independent witness in the case. However, as held by this Court in State of Rajasthan vs. Teja Ram and Ors. AIR 1999 SC 1776 :

“The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non-examination of such a person as a prosecution wit- ness. Otherwise, merely on surmises the court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.”

Similarly, in Trimukh Maroti Kirkan vs. State of 15

Maharashtra (2006)1 SCC 681 this Court observed: “These crimes are generally committed in complete se- crecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assis- tance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harass- ment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.”

(emphasis supplied)

In our opinion both the trial court and High Court have given very cogent reasons for convicting the appellant, and we see no reason to disagree with their verdicts. There is overwhelming circumstantial evidence to show that the accused committed the crime as he felt that he was dishonoured by his daughter. For the reason given above we find no force in this appeal and it is dismissed.

Before parting with this case we would like to state that 16

`honour’ killings have become commonplace in many parts of the country, particularly in Haryana, western U.P., and Rajasthan. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. We have held in Lata Singh’s case (supra) that there is nothing `honourable’ in `honour’ killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal minds.

In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate `honour’ killings should know that the gallows await them.

Let a copy of this judgment be sent to the Registrar Generals/Registrars of all the High Courts who shall circulate the same to all Judges of the Courts. The Registrar 17

General/Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/Additional Sessions Judges in the State/Union Territories. Copies of the judgment shall also be sent to all the Chief Secretaries/Home Secretaries/Director Generals of Police of all States/Union Territories in the country. The Home Secretaries and Director Generals of Police will circulate the same to all S.S.Ps/S.Ps in the States/Union Territories for information.

……………………………..J.

(Markandey Katju)`

…………………………….J.

(Gyan Sudha Misra)

New Delhi;

May 09 , 2011

Categories: Judgement

SC: Allegation of 80000/- bribe against session judge for granting bail but SC did not beleive this

Bench: K Balakrishnan, L S Panta, D Jain

CASE NO.:

Appeal (civil) 2015 of 2006

PETITIONER:

Ramesh Chander Singh

RESPONDENT:

High Court of Allahabad & Anr

DATE OF JUDGMENT: 26/02/2007

BENCH:

CJI K.G. BALAKRISHNAN,LOKESHWAR SINGH PANTA & D.K. JAIN

JUDGMENT:

J U D G M E N T

K.G. BALARISHNAN, CJI

The appellant is a judicial officer in the State of Uttar Pradesh. He joined the Provincial Civil Service (Judicial) in the year 1976 and in May 1994 he was promoted to the Higher Judicial Service and posted as Addl. District & Sessions Judge at Jhansi. A crime No. 180 of 1995 registered by the Police Station at Nawabad was committed to the Sessions Court at Jhansi and allotted to the appellant’s court for trial and disposal. There were three accused in that case, namely, Ram Pal, Raghunath and Rajendra. The crime related to an incident which happened on 22.5.1995. The allegation in the First Information Report was that accused Ram Pal and Raghunath used fire-arms and shot dead Pratap Yadubir Singh and Devendra Pipraiya within the compound of District Panchayat Bhawan at Jhansi. The Police registered the case for the offences punishable under Sections 302, 307 read with Section 34 IPC. Accused Rajendra was granted bail on 19.8.1995. The second accused, Raghunath, who allegedly used the fire-arm and killed one of the victims, was also granted bail on 20.9.1995 by the High Court. Accused Ram Pal continued to be in custody and moved his first bail application on 17.11.1995 which was dismissed by the Sessions Judge, Jhansi. On 11.4.1996, accused Ram Pal moved another bail application and the same was dismissed for default. In the third application, which came up for consideration before the second Addl. Sessions Judge, Jhansi, accused Ram Pal contended that he had no criminal history and that the Executive Magistrate (Tehsildar) who recorded the dying declaration used to reside in the house of the deceased Pratap Yadubir and because of his acquaintance with the deceased, the dying declaration recorded by him was not to be given much credence. Accused Ram Pal further contended that he was a local resident and there was no likelihood of he being absconding. The Sessions Judge dismissed the bail application on 15.5.1996. In the fourth bail application, moved by accused Ram Pal on 19.6.1996, he contended that he was a student; he had surrendered before the Chief Judicial Magistrate, Jhansi, on 8.6.1995; had been in custody for more than one year and that his co-accused had been released on bail. He pleaded that his father was seriously ill and in support of this contention, he produced a medical certificate from a Professor of Medical College at Jhansi to show that his father had suffered a heart-attack on 16.5.1996. By an order passed on 22.6.1996, the appellant herein granted bail to accused Ram Pal. The main reasons attributed by the appellant for granting bail to accused Ram Pal were that the charge sheet had been filed by the police; the accused had stated that his father was dangerously ill; the accused was a student; and that the accused had no previous conviction or involvement in any criminal case. The appellant also observed in the bail order that the Tehsildar who recorded the dying declaration was a close acquaintance of the deceased. Considering the totality of the circumstances and as there was no likelihood of the accused absconding or interfering with the trial of the case influencing the witnesses or committing any fresh offence, the bail application was allowed by the appellant.

It may also be noticed that when the bail application of the accused came up on 22.6.1996, the appellant noticed that the brother of the defacto complainant had filed an application before the Sessions Judge for the transfer of the bail application to some other court. It appears that the hearing of bail petition was adjourned in the morning of 22.6.1996 for want of a specific report from the Addl. District Govt. Counsel (ADGC) and later, on the same day, it was taken up when the ADGC stated that he had full faith in the court and the counsel, who was engaged by the complainant, did not raise any objection and was prepared to argue the bail application. No stay order was produced before the appellant and therefore, the appellant proceeded with the hearing of the case and passed the order on the very same day granting bail to accused Ram Pal on his furnishing a bond for Rs.20,000/- with two sureties.

On 10.7.1996, complainant Jagdeo Singh sent a complaint to the High Court alleging that the appellant had accepted illegal gratification for granting bail to accused Ram Pal. This complaint was placed before the Inspecting Judge and after going through the material on record the learned Inspecting Judge was of the view that there was a prima facie case against the officer concerned, for dereliction of duty and judicial dishonesty while granting bail. The Administrative Committee initiated departmental enquiry against the appellant. It may further be noticed that in the complaint filed by Jagdeo Singh, he alleged that it was being said in the village that a sum of Rs.80,000/- had been paid to the appellant and bail would be granted by him and that nobody could stop it. He had also mentioned about the transfer application filed by him before the Distt. Judge and alleged that despite the filing of the said transfer application, the bail application was heard and allowed. He prayed for the transfer of the case to some other court.

In the transfer application filed by the brother of the complainant, there was an allegation that a sum of Rs. 80,000/- was paid and that it was settled through a library clerk with the involvement of two other clerks. In the transfer application, he also alleged that the brother and father of accused Ram Pal were found going in and coming out of the residence of the appellant. Despite all these allegations, no charge was framed against the appellant that he had received illegal gratification for granting bail. The charge sheet contained the only allegation that the bail order was passed by the appellant for extraneous consideration with oblique motives on insufficient grounds and that the appellant was guilty of misconduct and failed to maintain absolute integrity and devotion to duty within the meaning of Rule 3 of U.P. Government Servants Conduct Rules, 1956. The charge sheet as well as the statement of facts are clubbed together and the gist of allegations is contained in paragraphs 6 and 7 of the charge sheet.

A sitting Judge of the High Court conducted the enquiry and gave his report. Though there was no charge specifically brought against the appellant that he had received a sum of Rs.80,000/- as illegal gratification, this aspect also was considered by the learned Judge. On behalf of the complainant, PW-1 Jagdeo Singh was examined and he made a specific allegation that the father of the accused had withdrawn Rs.80,000/- from the bank and that the bail application was allowed on the next day. He did not, however, claim to have any direct knowledge. He deposed that he had gathered this information from a labourer. He did not take any steps to summon the bank record. PW-1 was completely disbelieved by the learned Judge who conducted the inquiry. The case set up by the complainant was not supported by other witnesses. The counsel who appeared for the brother of the deceased and moved the application for transfer, stated that the brother of the deceased did not tell him that there was a rumour in the village about payment of Rs.80,000/-. The Judge who conducted the inquiry elaborately considered the various aspects of the matter and concluded that there was no element of truth in the allegation that the appellant had received illegal gratification. The evidence of PW-1 on this aspect was disbelieved. However, the learned Judge inquiring the matter eventually came to the conclusion that the bail had been granted by the appellant in utter disregard of judicial norms and on insufficient grounds and based on extraneous consideration with oblique motive and the charges had been proved. It is important to note that the Judge who conducted the enquiry has not stated in his report as to what was the oblique motive or the extraneous consideration involved in the matter.

Based on the enquiry report, the appellant was served with a notice to show cause as to why his two increments should not be withheld with cumulative effect. The matter was placed before the Full Court on 20.11.1999 and the Full Court by its resolution imposed a major punishment of withholding two annual increments of the appellant with cumulative effect. The appellant filed a review application against the said punishment and the same was rejected. Thereupon, he filed a writ petition under Article 226 of the Constitution challenging the punishment imposed on him. By judgment dated 3.10.2005, the writ petition was dismissed and in the very same judgment the appellant was directed to show cause within three weeks from the date of the judgment as to why the High Court should not consider substitution of the punishment imposed, by removing him from service. Pursuant to the notice, the appellant appeared and presented his case before the Division Bench. By judgment dated 25.11.2005, the appellant was reduced to the rank next below, that is, Civil Judge (Senior Division). Both the judgments of the Division Bench are challenged before us.

The learned Counsel for the appellant contended before us that the appellant was not charged for receiving any illegal gratification for granting bail to the accused in Crime No. 180 of 1995 registered by the Police Station at Nawabad. The charge, if at all, was vague and it only stated that the bail order had been passed by the delinquent officer [appellant] for extraneous consideration with oblique motive on insufficient grounds, without cogent and tangible reasons, and that he attempted to justify his order by superfluous reasoning by making adverse comments on the conduct of the Executive Magistrate, who recorded the dying declaration, fully knowing that it was a broad daylight double-murder case and that the grounds were not fit for granting bail and these factors revealed that the order had been passed for extraneous consideration. It was argued that there was no specific charge that the appellant received any monetary consideration from any of the accused or his relatives. The appellant’s counsel also pointed out that though the complainant specifically alleged that a sum of Rs. 80,000/- was given to the appellant- officer and that this money had been obtained from the bank on the previous day by the father of accused Ram Pal, these allegations were not proved and that the complainant, at the time of enquiry, stated that he had heard of this story from some servants and from the very nature of the allegation, they were disbelieved and that was why a specific charge was not framed against the appellant. It was further argued by appellant’s counsel that though there was no charge against the appellant, the Judge who conducted the enquiry allowed the complainant to adduce evidence, and eventually he came to the conclusion that there was absolutely no evidence to show that the delinquent officer had received any illegal gratification from any party.

The question for consideration is whether the appellant had granted bail on insufficient grounds or was justified in passing such an order. Granting of bail to accused pending trial is one of the significant judicial functions to be performed by a Judicial Officer. In the instant case, neither the State nor the complainant had filed any appeal against the order passed by the appellant. The State did not allege that the accused who had been granted bail was likely to abuse his bail or likely to abscond. It is also pertinent to note that the accused to whom the appellant had granted bail was one of the three accused against whom charge sheet had been filed by the police. The other two accused were Rejendra and Raghu Nath. As per the First Information Report, Ram Pal, to whom the appellant had granted bail, and Raghu Nath, who obtained bail from the High Court, had used fire-arms as a result of which two persons died. As per the prosecution case, the accused Ram Pal is alleged to have caused the death of one of the victims while accused Raghu Nath was alleged to have caused the death of the other victim. Accused Raghu Nath was granted bail by the High Court on 20.9.1995. Accused Rajendra was granted bail as early as 19.8.1995. Accused Ram Pal had been in custody for more than one year. The police had already filed the charge-sheet against him and the court was yet to frame the charge against all the accused. Accused Ram Pal was a student and he alleged that had he suffered a loss of one year’s study. He also alleged that his father was seriously ill due to a heart ailment and he produced a medical certificate from one of the professors working in the local medical college. It was under these circumstances that the bail application filed by Ram Pal came to be heard by the appellant and he granted bail to him by an order passed on 22.6.1996. It is also important that the complainant made an attempt to have the bail application transferred from the court of the appellant to the court of the Principal Sessions Court. Though he filed the application for transfer, he did not press for stay of the proceedings. The appellant-officer came to know about the filing of the transfer application and brought this fact to the notice of the counsel who appeared for the complainant and also the State prosecutor. Both the counsel had no objection to the hearing of the bail application by the appellant and accordingly the appellant heard the bail application and passed the order granting bail to Ram Pal. It is clear that by filing a frivolous transfer application the complainant only intended to create a sense of threat so as to influence the appellant not to grant bail to the accused. The filing of the transfer application by the complainant could not be viewed from any other angle. Despite this, the complainant did not file any application for cancellation of bail granted to the accused.

The learned Judge who conducted the enquiry held that in the facts of the case where a heinous and daring offence had been committed in broad daylight and two persons had been shot dead in a crowded area next to the Collectorate at Jhansi and the accused were named in the FIR as well as in the dying declarations and their bail applications having been considered and rejected twice on merits by the respective courts, the third bail application granted by the charged officer in utter disregard of the judicial norms and on insufficient grounds appears to be based on extraneous consideration. The learned enquiry Judge did not care to take notice of the fact that the co-accused who were similarly situate had been granted bail by the High Court and that accused Ram Pal, who was a student and had been in jail for more than one year was granted bail for cogent reasons, set out in the order passed by the appellant. In the bail order, the appellant stated that there was an allegation that the Magistrate who recorded the dying declaration was once upon a time a tenant in one of the houses owned by the complainant. Taking cognizance of this fact by the appellant in the order could not be said to be a totally unwarranted and a superfluous reasoning. The counsel for the respondent pointed out that on three previous occasions the bail had been declined to the very same accused and as there was no change in the circumstances, the appellant-officer should not have considered the fourth bail application as well. Of course, in the previous bail applications, many of the contentions raised by the accused were considered, but an accused has the right to file bail application at any stage when undergoing imprisonment as an under-trial prisoner. The fact that the two other accused had already been enlarged on bail was a valid reason for granting bail to accused Ram Pal. Moreover, accused Ram Pal had been in jail for one year as an under-trial prisoner and the charge-sheet had already been filed. In our opinion, if accused Ram Pal were to be denied bail in these circumstances, it would have been a travesty of justice especially when all factors relevant to be gone into for considering the bail application were heavily loaded in favour of grant of bail to accused Ram Pal.

We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer’s bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant-officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail in TADA Act or NDPS Act, there was no statutory bar in granting bail to the accused in this case. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently.

This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.

In Iswar Chandra Jain v. High Court of Punjab and Haryana, AIR 1988 SC 1395, this Court observed that while exercising control over subordinate judiciary under Art. 235 of the Constitution, the High Court is under a Constitutional obligation to guide and protect subordinate judicial officers. An honest and strict judicial officer is likely to have adversaries. If complaints are entertained in trifling matters and if the High Court encourages anonymous complaints, no judicial officer would feel secure and it would be difficult for him to discharge his duties in an honest and independent manner. It is imperative that the High Court should take steps to protect honest judicial officers by ignoring ill- conceived or motivated complaints made by unscrupulous lawyers and litigants.

In K.P. Tiwari v. State of Madhya Pradesh, AIR 1994 SC 1031, where the High Court reversed the order passed by the lower court making remarks about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure — contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher court. Every error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or other. That amounts to destruction of judiciary from within.

In Kashi Nath Roy v. The State of Bihar, AIR 1996 SC 3240, this Court observed under a similar circumstance that in our system appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision making in law and in fact. The higher courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct the error in an appropriate case and in a manner befitting maintaining dignity of the court and independence of the judiciary. The higher court should convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellowed but clear and result oriented and rarely a rebuke.

In series of other cases also, this court disfavoured the practice of passing strictures or orders against the subordinate officers. (See : Braj Kishore Thakur v. Union of India, AIR 1997 SC 1157; Alok Kumar Roy v. Dr. S.N. Sarma, AIR 1968 SC 453)

In Lunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881, this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the Judicial Officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Art. 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level.

Apart from the merits of the case before us, we have also gone into the Confidential Reports of the appellant officer. His integrity and honesty had never been doubted at any point of time. In some of the confidential reports except stating that the appellant-officer was not having smooth relationship with the advocates, no other adverse remarks had been entered. Two Senior Judges of the High Court have entered in his confidential register that the appellant is an officer of honesty and integrity. The fact that it was a case of daylight murder wherein two persons died, is not adequate to hold that the accused were not entitled to bail at all. Passing order on a bail application is a matter of discretion which is exercised by a Judicial Officer with utmost responsibility. When a co- accused had been granted bail by the High Court, the appellant cannot be said to have passed an unjustified order granting bail, that too, to an accused who was a student and had been in jail for more than one year. If at all, the Inspecting Judge had found anything wrong with the Order, he should have sent for the officer and advised him to be careful in future. The punishment of reverting the appellant to the post of Civil Judge (Sr. Division), in the facts and circumstances of this case could only be termed as draconian and unjust. The appellant had been in the cadre of District Judge for eight years at the time this grave punishment of reversion to a lower rank was imposed on him. In our opinion, the punishment was clearly disproportionate to the lapse alleged to have been committed by him. The imposition of the punishment of withholding two increments with cumulative effect also appears to be disproportionate to the alleged lapse. Consequently, we set aside the Judgment of the High Court dated 3.10.2005 and also the Judgment rendered by the very same court on 25.11.2005. The appellant shall be immediately posted to the cadre of District Judge and paid all monetary benefits due to him as a consequence thereof. We also set aside the initial order passed by the Full court of the High Court imposing the penalty of withholding two increments to the appellant with cumulative effect. As the Full Court alone is the ultimate competent authority to consider all disciplinary matters and has indeed taken the decision impugned before us, we remit the matter to the Full Court to consider afresh the question of imposition of appropriate punishment on the appellant.

The appeal is disposed of accordingly.

Categories: Judgement

HC: Party-In-Person in High Court – 307 IPC

Categories: Judgement

Repeated 482 Cr.P.C. Applications for the same relief without change of circumstances and facts not maintainable-482Cr.P.C. Applications dismissed.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Criminal Miscellaneous Application No.30030 of 2009
C.P. Singh …………………… Applicant
Versus
State of U.P. & another ………………. Opposite Party.

Connected with

Criminal Miscellaneous Application No.33719 of 2009
Raj Kumar Sachan & another …………………. Applicants
Versus
State of U.P. & another …………………. Opposite Party.

Hon’ble Vinod Prasad, J.

The above two Criminal Miscellaneous Applications arises out of the same Criminal Case No.6437 of 2008, State Versus Raj Kumar Sachan and others,(relating to Crime No. 467 of 2007),under Sections 363, 392, 342, 323, 504, 506 IPC, Police Station Kalyanpur, District Kanpur Nagar pending before VI M.M. Kanpur Nagar and hence it both were clubbed together and are being disposed off by this common order. Challenge in these two Applications by the three Applicants- C.P.Singh, Raj Kumar Sachan and Ramanuj Katiyar,are to their summoning order dated 14.10.2008 and continuance of aforesaid criminal case against them. Criminal Miscellaneous Application No.33719 of 2009 was ordered to be connected with other Applications and were nominated to this Bench by the order of the Acting Chief Justice dated 18.2.2010 and hence both the aforesaid Applications along with other two Applications are listed before this bench.
Background facts relating to aforesaid two surviving Applications have got chequered facts and consequently, in seriatum, they are registered thus.
Jagmohan Singh son of Late Jaipal Singh, informant victim, moved an application under Section 156(3) Cr.P.C. before VIII Kanpur Nagar against Raj Kumar Sachan, Ramanuj Katiyar,(both Applicants) Subodh Kumar, C.P. Singh(Applicant) and four or five unknown persons dressed as IIT Security Personnels for committing offences under Sections 147, 363, 392, 342, 323, 504, 506 IPC. Allegations by informant victim were that he had instituted a complaint case No.1065 of 2007 against Raj Kumar Sachan (Administrator) and Subodh Kumar Sachan (erstwhile Secretary) of Technology Consumer Cooperative Society Limited, IIT, Kanpur,U/S 138 N.I. Act, which was pending. Complainant informant victim was the Store Keeper of the said Co-operative Society. Annoyed and motivated by the proceeding under Section 138 N.I. Act, aforesaid accused persons armed with country made pistol and accompanied by two or three unknown persons dressed as security personnels of IIT Kanpur cordoned of informant on 9.6.2007 at 6.00 p.m., when he was returning to his house, near the main road crossing of IIT Kanpur and at gun point robbed the keys of the godown and Rs.1900/- from the complainant victim. During the incident Ramanuj Katiyar had also assaulted the victims by fists. Complainant victim was dragged to the store where he was forced to sign on same blank papers. Victim was then pushed out of godown informing him that his services had been terminated. Resistance by victim and his threat that he will seek police help resulted in dragging him by Subodh Kumar Sachan, and then he was pushed into a white Maruti Van and was driven to and a house were he was kept in illegal confinement. He was also tied in chair with a rope and there accused persons conspired to falsely implicate him in a cooked up theft case of gas cylinders. With the help of some unknown persons victim , however, got himself freed on 11.6.2007 and then he came to know that place of his wrongful confinement was the house of applicant Raj Kumar Sachan. He vainly endeavoured to lodge a report with PS Kalyanpur, district Kanpur Nagar and left with no option, victim Jagmohan Singh wielded Magistrate’s powers U/S 156(3) Cr.P.C. On 14.6.2007 seeking his direction for registration of his FIR and investigation into the crime vide Miscellaneous Application No.254 of 2007, Jagmohan Singh Vs. Raj Kumar Sachan. VIII Metropolitan Magistrate, Kanpur Nagar, after obtaining a report from the police, directed for registration of FIR and investigation into the offences on 29.6.2007. It transpires that under the orders of the Magistrate police registered crime no.467 of 2007,U/Ss 147, 363, 392, 342, 323, 504, 506 IPC on 6.7.2007 at 8.15 p.m. against malefactors Raj Kumar Sachan, Subodh Kumar Sachan, C.P. Singh, Ramanuj Katiyar and unknown persons.
Investigation into the crime concluded in filing of FR No. 128 of 2007 on 1.8.2007. Victim informant protested acceptance of FR by filing a protest petition on 30.10.2007. Vide order dated 30.11.2007 M.M. VI, Kanpur Nagar accepted the protest petition, rejected acceptance of FR and directed further investigation into the offences. Further investigation again concluded in submission of FR for the second time on 26.6.2008. Informant repeated his exercise of filing a protest petition again on 29.8.2008 and this time VI Metropolitan Magistrate registered Criminal Case No. 6437 of 2008, State versus Raj Kumar Sachan And others, summoned the applicant accused to stand trial for aforesaid offence on 14.10.2008 while rejecting FR submitted by the investigating officer.
After being summoned all the named accused persons- Ramanuj Katiyar, Subodh Kumar Sachan, Raj Kumar Sachan and C.P. Singh moved to this court by filing 482 Cr.P.C application No.2762 of 2009 on 3.2.2009 praying thereunder that their summoning order dated 14.10.2008, Annexure No.9 and proceeding of aforesaid Criminal Case No.6437 of 2008, State Vs. Raj Kumar Sachan and others be quashed. In the aforesaid 482 Cr.P.C. application, applicant no.2 Subodh Kumar Sachan was the deponent in the affidavit appended therewith mentioning in paragraph 1 thereof that he himself was applicant no.2 and was doing parvi on behalf of applicant nos. 1, 3 and 4. Aforesaid 482 Cr.P.C Application came up for admission on 5.2.2009 and after hearing counsel for the Applicants at a great length the same was dismissed being bereft of merit and not maintainable.
Another fact which requires to be taken note of at this juncture is that 138 N.I. Act proceeding was also challenged by the accused Subodh Kumar Sachan and Raj Kumar Sachan by filing 482 Cr.P.C. application No.2865 of 2008, which was dismissed by this Court on 11.3.2008. Concealing first rejection, those accused, through Sri Sujeet Kumar Rai advocate, filed second 482 Application No. 2966 of 2009 on 4.2.2009. At the time of admission of later 482 Application, Sri D.P. Singh, Advocate appeared for the complainant victim and produced the earlier order and consequently the second exercise by those two accused for getting proceeding under Section 138 N.I. Act quashed recoiled back and their second exercise in 482 Application No. 2966 of 2009 was dismissed by imposing a cost of Rs.25,000/- by this Court.
It was after the aforesaid two failure exercises, that accused applicant C.P. Singh preferred second 482 Cr.P.C. Application being Crl. Misc. Application No. 30030 of 2009 for the same relief which was already rejected by this court on the earlier occasion of getting the prosecution of Case No.6437 of 2008, State Vs. Raj Kumar Sachan and others quashed including summoning order dated 14.10.2008.In original Application applicant had not divulged fact of filing of earlier 482 Cr.P.C Application No.2762 of 2009 and applicant succeeded in obtaining a stay of proceeding order from this Court on 7.12.2009. Following suit two other accused Ramanuj Katiyar and Raj Kumar Sachan filed another 482 Cr.P.C. Application No.33719 of 2009 with identical prayer. Noticeable here is another fact that interregnum one of the accused Ramanuj Katiyar had also approached this Court under Section 482 Cr.P.C. and had obtained an order for expeditious disposal of his bail on 7.12.2009 in Application 30266 of 2009.
At the time of admission of 482 Application no. 33719 of 2009 this court on 10.2.2010 noted that the first 482 Cr.P.C Application filed by the two accused Raj Kumar Sachan and Ramanuj Katiyar was dismissed by this Bench in earlier 482 Cr.P.C. Application No.2762 of 2009 that His Lordship was pleased to send the matter before Acting Chief Justice for nomination along with other 482 Cr.P.C. Applications No.2762 of 2009 and 30030 of 2009 vide order dated 10.2.2010. All the Applications were placed before Hon’ble The Acting Chief Justice, who was pleased to nominate this Bench on 18.2.2010 and that is how all the Applications came up before this Bench.
When the two undisposed off 482 Cr.P.C. Applications 30030 of 2009, C.P. Singh Vs. State and Crl. Misc. Application No. 33719 of 2009, Raj Kumar Sachan and another Vs. State of U.P. came up for admission before this Court then Sri D.P. Singh, counsel for the informant, objected to filing of second 482 Cr.P.C. petition on behalf of C.P. Singh as his the earlier Application was dismissed on merits as well as for the reason that the same was not maintainable. Sri Samit Gopal, learned counsel for C.P. Singh accused filed a Misc. Application on 19.1.2011 with the prayer “to declare the Criminal Misc. Application No. 2762 of 2009, Ramanuj Katiyar and others Vs. State of U.P. and another as not been filed either by the applicant or on his instructions otherwise applicant may suffer irreparable loss and injury”. On such an application, this Court directed for giving notice in writing to the counsel who had filed earlier 482 Cr.P.C. Application and after his appearance has questioned him as to whether he had filed earlier 482 Cr.P.C. application or not, on which, the aforesaid counsel Sri Sujeet Kumar Rai informed the Court that he had filed earlier 482 Cr.P.C. Application No. 2762 of 2009 on behalf of all the accused. To make the pleadings complete and bring entire facts on the record, Sri Sujeet Kumar Rai, Advocate was directed to file an affidavit disclosing his stand. Sri Rai has filed an affidavit of his clerk Sri Gyanendra Kumar Yadav, a copy of which has been duly served on Sri Samit Gopal, counsel for accused-applicant C.P. Singh and also on Sri D.P. Singh, counsel for the informant-victim. On personal knowledge, clerk Gyanendra Kumar Yadav has sweared that the three applicants namely Ramanuj Katiyar, Subodh Kumar and Raj Kumar Sachan had approached Sri Sujeet Kumar Rai, Advocate and had requested him to file 482 Cr.P.C. Application on their behalf as well as on behalf of C.P. Singh. They had also informed the aforesaid counsel that they will disclose the parentage of applicant C.P. Singh later on. By mistake, the parentage of C.P. Singh could not be entered in that 482 Cr.P.C. Application No. 2762 of 2009 but it was under the instructions of C.P. Singh that the aforesaid 482 Cr.P.C. application was filed by him.
On the above facts, I have heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Samit Gopal advocate for the applicant C.P. Singh, Sri D.P. Singh advocate for the informant and learned AGA for the State in opposition.
As a preliminary argument, Sri Chaturvedi submits that earlier 482 Application was not filed by C.P.Singh and he had not instructed other three accused to file Application on his behalf as well. C.P. Singh had not engaged Sri Rai as his counsel and therefore instant 482 Application be treated to be first exercise and therefore be considered on merits. It was next submitted that applicant C.P. Singh had no connection with rest of the accused and he has been roped in maliciously and therefore his prosecution be quashed.
Per contra, counsels for the informant and learned AGA refuted those submissions and contended otherwise. In their submission second exercise for the same relief is not maintainable or this court can review it’s earlier order in exrcise of it’s inherent power U/S 482 of the Code. On merits also it was submitted that since prima facie offence are disclosed therefore prosecution should not be scuttled at it’s inception and applicants be relegated to face the trial.
I have considered rival contentions and have perused all connected 482 Applications. What is unerringly culled out from the facts disclosed above is that the three applicants C.P. Singh, Raj Kumar Sachan and Ramanuj Katiyar had approached this Court earlier also by filing 482 Cr.P.C. Application No. 2762 of 2009 and the aforesaid application was dismissed on merits as well as on the ground of being not maintainable as the offences for which applicants were summoned were prima facie disclosed as was perceptibly clear from their impugned summoning order dated 14.10.2008, which was annexed as annexure no.9 to that Application. Further for supporting payer of quashing no material collected during investigation was filed and hence that 482 Application was based on suppression of material and relevant uneshewable facts which were relevant and germane for considering prayer for quashing and hence that Application was also dismissed as not maintainable. Neither any collected material during investigation was filed nor any recorded statement under 161 Cr.P.C. was annexed. Forming such an opinion this court had no option but to negative prayer for quashing on 5.2.2009, which order has attained finality as the same was not challenged in any higher forum. At that stage no detailed examination was required as there was no material before this court to undertake such an exercise. Otherwise also from the impugned summoning order sufficient evidences were disclosed for prosecuting applicant and hence detailed order was not required at all. In this respect regard can be had from the apex court decision in Madhumilan Syntex Ltd. Vs Union Of India: AIR 2007 SC 1481 wherein it has been observed by the apex court as follows:-
“18. Similarly, we do not see force in the contention that the petition could not have been dismissed in limine without recording reasons. It was not a substantive appeal which was heard by a Court. An application for discharge of accused was rejected by the trial Court. Revision petition was also dismissed by the Sessions Court and the said order was challenged before the High Court under Section 482 of the Code (Inherent power of High Court). If the High Court did not think it fit to exercise inherent powers in the light of the controversy raised, question involved and the stage at which the applicants had approached the Court, it cannot be said that the Court must pass detailed speaking order or record reasons in support of such order. That contention also, therefore, has no force.”
Turning towards preliminary contention that said 482 Application 2762 of 2009 was not filed by C.P. Singh or on his instructions, it is to be noted that deponent of affidavit filed in support of that Application was one of the co accused and an applicant himself. Paragraph 1 of the affidavit clearly averred that the deponent in the aforesaid affidavit was doing pairvi on behalf of rest of the applicants 1, 3 and 4. Through supplementary affidavit filed in the present 482 Cr.P.C. Application No. 30030 of 2009, C.P. Singh has no where averred that the averments of Subodh Kumar in the earlier 482 Cr.P.C. Application No. 2762 of 2009 that he was pairokar of the applicant was a false statement. C.P. Singh has not initiated any proceeding against Subodh Kumar for filing a false affidavit before this Court. He has not moved any application under Section 340 Cr.P.C. Unbelievable is the fact that it was unbeknown to C.P. Singh that said 482 Application No. 2762 of 2009 was also filed on his behalf for complete a year and he did not gain knowledge about it albeit he was a co accused in that very case where prayer for quashing was negatived by this court. Contention of C.P. Singh that he had not instructed anybody to approach this Court on an earlier occasion to get the proceeding quashed is not acceptable as mere ipse dixit of C.P. Singh applicant is unacceptable and unconvincing. Subodh Kumar deponent in earlier 482 Cr.P.C. application will never accept that he was not instructed by C.P. Singh and contrary C.P. Singh had no defence except to plead that he had never instructed Subodh Kumar. This court has no reason to disbelieve statement by Sri Rai and affidavit by his clerk that earlier Application was also required to be filed on behalf of C.P.Singh as well. Be that as it may, the conduct of all the applicants in approaching this Court repeatedly without disclosing complete material and correct facts are that of unscrupulous litigants indulging into insalubrious and unholy practice.
For above view support can be drawn from past conduct of applicants who are in the habit of filing successive Applications for the same relief U/S 482 Cr.P.C. in this Court without change of fact situations and without disclosing factum of filing of earlier 482 Cr.P.C. Applications. Exemplar situation are that for quashing of proceedings under Section 138 N.I. Act, two of the accused Subodh Kumar and Raj Kumar Sachan had approached this Court twice for the same relief without change of circumstances in 482 Cr.P.C. Applications No. 2865 of 2008 and Application No. 2966 of 2009. Two of the accused Raj Kumar Sachan and Ramanuj Katiyar, for the same relief without any alteration of facts, for getting their prosecution for offences of robbery, illegal confinement, abduction and other offences quashed, approached this court twice, firstly in 482 Cr.P.C. Application No. 2762 of 2009 and secondly in 482 Cr.P.C. Application No. 33719 of 2009. C.P. Singh also filed instant 482 Application without disclosing about earlier Application and it was only when the case was nominated to this bench that he filed supplementary affidavit disowning earlier Application. By change of Advocate, they wanted to cheat the Court by suppression of material facts of dismissal of their identical prayers on the earlier occasions. Their summoning order dated 14.10.2008, which was considered on the earlier occasion in 482 Cr.P.C. Application No. 2762 of 2009 on merits also dis-entitled them for any relief whatsoever.
Another reason for taking opinion against the applicants is that earlier order dated 5.2.2009 dismissing identical prayers, without change of circumstances and materials, on the subsequent occasion, can not and should not be reviewed by this court. Section 362 Cr.P.C. comes in way of this court to entertain second exercise for the said relief without change of fact situations. This aspect of the matter had already been concluded by a catena of decisions of this court as well as by the apex court. Power U/S 482 Cr.P.C. can not be utilized to alter concluded final decisions by the same bench or bench of co-ordinate jurisdiction and reliance in this respect can be placed on an apex court decisions in : AIR 1979 SC 87 wherein it had been held by the apex court as follows:-
” 20……….Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W. B. v. Mohan Singh, AIR 1975 SC 1002 by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra’s case (AIR 1955 SC 633) (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review on revision can be entertained against that judgments as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.”
(underline emphasis supplied)
In Hari Singh Mann V.Harbahjan Singh Bajwa : (2001)1 SCC 169apex court has taken the same view as follows:-

” 9. There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 : (1979 Cri LJ 462) held (para 20 of AIR Cri LJ) :
“Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides, 1958 SCR 1226 : AIR 1958 SC 376 : (1958 Cri LJ 701) relates to the power of the High Court to cancel bail. The High Court took the view that under S. 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in 72 Ind App 120 : AIR 1945 PC 94 : (1945 (46) Cri LJ 662) (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under S. 561A. In Sankatha Singh v State of U. P. (1962) Supp (2) SCR 871 : AIR 1962 SC 1208 : (1962 Cri LJ 288) this Court held that S. 369 read with S. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for a re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of S. 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside itself and re-hear the appeal observing that “Section 369 read with S. 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed except for the purpose of correcting a clerical error. Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh, AIR 1975 SC 1002 : (1975 Cri LJ 812) by Mr. Patel, learned Counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra’ s case AIR 1955 SC 633 : (1955 Cri LJ 1410) (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.”
10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain’s case (AIR 1958 SC 376 : 1958 Cri LJ 701) (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.”
Same view has been affirmed by the apex court in Mohd. Yasin Vs State of U.P.: (2007) 7 SCC 49 and hence this court is bound by the above view.
Prosecution of the applicants is pending for more than two years. By indulging into unfair practices, applicants have successfully installed their criminal trial till this date. Dockets of Courts are being saddled because of such unholy practices for which there is so much of criticism in spite of all the best efforts being put in by this Court to clear the racks of backlog cases. Our heuristic experience inform us of filing of successive 482 Cr.P.C. Applications by unscrupulous litigants for the same reliefs without disclosing complete facts, which are burdening this Court with unprecedented load of work.
Concluding this order, for the above reasons I find no ground to entertain either of the 482 Cr.P.C. Applications being Criminal Misc. Application No. 30030 of 2009,C.P. Singh Vs. State of U.P. and Criminal Misc. Application No. 33719 of 2009, Raj Kumar Sachan and another Vs.State of U.P., and hence both the aforesaid 482 Cr.P.C. Applications are dismissed.
Interim order granted by this Court in 482 Cr.P.C. Application No. 30030 of 2009,C.P. Singh Vs. State,dated 7.12.2009 as is extended from time to time stands vacated. Trial court will do well to take up the case without delay and endeavour to complete it expeditiously.
Dt.3.3.2011
RK/AKG/-

Categories: Judgement