IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISC. APPLICATION (C-482) No. 461 of 2011

1. Smt Laxmi RaiW/o Indra Bahadur Rai R/o Village Jaintwala, New BastiP.O Ghangora, Dehradun

2. Pushp Kala RaiD/o Indra Bahadur Rai R/o Village Jaintwala, New BastiP.O Ghangora, Dehradun

………………..Applicants

Versus

State of Uttarakhand & another

………….Opposite parties

Shri Neeraj Garg, Advocate, present for the petitionersShri P.S.Bohara, Breif Holder, present for the State.

Hon’ble Prafulla C. Pant, J.

Heard.

(2) By means of this petition, moved under section 482 of

Code of Criminal Procedure,1973, the petitioners have

sought quashing of the proceedings of Criminal Case No.

2912 of 2010, State vs. Yogendra Kumar Rai and others,

relating to offences punishable under section 498A, 506 I.P.C,

Police Station Cantt, Sadar, pending in the court of Chief

Judicial Magistrate, Dehradun.

2

(3) Learned counsel for the petitioners submitted that

petitioners are mother in law and sister in law of the

complainant (respondent no.3). It is pleaded that

respondent no.3 got married to the son of petitioner

no.1, after they developed friendship with each other in

Dehradun. It is also submitted that marriage between

the respondent no.3 and son of the petitioner no.1 was

love marriage which was solemnized in a Temple. It is

contended that there was no question of demand of

dowry in such case. The marriage was registered with

the Registrar Hindu Marriage. Copy of certificate is

annexed as Annexure 2 to the petition. Learned counsel

for the petitioners argued that it is abuse of process of

law on the part of the complainant to implicate the

petitioners in the above circumstances, in a criminal

case.

(4) Admit the petition.

(5) Learned counsel for the respondent no.1 and 2

prays for and is allowed six weeks time to file the

counter affidavit.

(6) Issue notices to respondent no.3 Mamta Thapa,

who may also file her counter affidavit within a period

3

of six weeks.

(7) Having considered submissions of learned counsel

for the petitioner, and learned counsel for the State, and

after going through the papers on record, as an interim

measure it is directed that further proceedings in

criminal complaint case no. . 2912 of 2010, State vs.

Yogendra Kumar Rai and others, relating to offences

punishable under section 498A, 506 I.P.C, Police

Station Cantt, Sadar, pending in the court of Chief

Judicial Magistrate, Dehradun, are stayed till the next

date of listing.

(8) List after six weeks.

(Prafulla C. Pant, J.)

Dt.26.05.2011N.P

Court No. - 46

Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial DisputesRespondent :- State Of U.P. & OthersPetitioner Counsel :- P.N. GangwarRespondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon'ble Amar Saran,J.Hon'ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms.

Leena Jauhari, Secretary (Home), Government of U.P. Lucknow,

Smt. Poonam Sikand, Additional L.R and Tanuja Srivastava, I.G.

( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal

Services Authority, Sri Ashok Mehta, Organising Secretary,

Allahabad High Court, Mediation and Conciliation Centre, Sri

Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the

intervenor 'Sahyog,' Sri D.R. Chaudhary, learned Government

Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and

were heard at length.

An affidavit has also been filed on behalf of the Director General

of Police on 10.8.2011. Another affidavit was also filed on behalf

of Special Secretary (Home), U.P. on 12.8.2011. An application

was also moved by the intervenor 'Sahyog.'

This Court appreciates the positive contributions and suggestions

of all the aforesaid advocates and other State officials and that this

pro bono litigation is being taken up in the right non-adversarial

spirit, with the aim to ensure that wherever allegations are not very

grave, in order to save families, and children and indeed the

institution of marriage, an effort be first made for reconciling

matrimonial disputes by mediation before steps can be taken for

prosecuting offenders, if they are called for. In Preeti Gupta v.

State of Jharkhand, AIR 2010 SC 3363 the learned members of the

bar have been reminded of their noble profession and their noble

tradition and of their responsibility to ensure that the social fibre of

family life is preserved by desisting from over-implicating all in-

laws and their relations as accused persons in 498-A IPC reports,

and from filing exaggerated reports. They are also to make an

endeavour to bring about amicable settlements to this essentially

human problem. It has also been rightly pointed out in Sushil

Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18)

whilst upholding the vires of section 498-A IPC, that it should be

ensured that complaints are not filed with oblique motives by

unscrupulous litigants so that a "new legal terrorism" is not

unleashed, and that the well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held

that there is a tendency in cases of 498-A IPC and 304 B IPC to

rope in a large number of in-laws of the victim wife, and not only

the husband. In para 5 of the law report it has been observed:

"....In their over enthusiasm and anxiety to seek conviction for

maximum people, the parents of the deceased have been found to

be making efforts for involving other relations which ultimately

weaken the case of the prosecution even against the real accused

as appears to have happened in the instant case."

Specifically as a result of the interaction and suggestions which

emerged after a dialogue with the Advocates and officials, this

Court requires to formulate its opinion on the following points:

1. Whether registration of an FIR is mandatory once an

aggrieved woman or the eligible family members as

specified under section 198A Cr.P.C approaches the police

station giving information that an offence under section

498A IPC or allied provisions such as under section ¾ D.P.

Act or under section 406 I.P.C have been committed by the

husband or other in-laws and their relations.

2. Should the concerned police officers immediately proceed to

arrest the husband and other family members of the husband

whenever such an FIR is lodged.

3. Can a distinction be made between the cases where arrest is

immediately necessary and other cases where arrest can be

deferred and an attempt be first made for bringing about

mediation between the parties.

4. What is the appropriate place where mediation should be

conducted.

5. Should a time frame be laid down for concluding the

mediation proceedings.

6. Who should be the members of the mediation cell in the

district.

7. What is the procedure to be followed by the police when a

report of a cognizable offence under section 498A IPC or

allied provisions is disclosed.

8. Is training of mediators desirable and who should conduct

the training?

9. Should the offence under Section 498A be made

compoundable and what steps the State Government may

take in this direction.

Discussions on the points requiring formulation by the Court.

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates

that when any information regarding information of a

cognizable offence is given orally to the officer in charge of

the Police Station, he is required to reduce it in writing and

to enter it into the general diary. The said provision gives no

option to the concerned Police Officer to refuse to lodge the

F.I.R. once information of a cognizable offence is given to

the police officer.

In paragraph No. 30 and 31 in State of Haryana and others

Vs. Bhajan Lal, 1992 Cri. L.J. 527, it has been laid down

that section 154 (1) of the Code provides that whenever an

information is given that a cognizable offence has been

committed, the Police Officer cannot embark upon an

inquiry to ascertain as to whether the information was

reliable or genuine or refuse to register the case on that

ground. The officer in charge of the Police Station is

statutorily obliged to register the case and then to proceed

with the investigation, if he even has reason to suspect the

commission of an offence.

(2) Whether arrest of husband and family members

mandatory once FIR is lodged

It is noteworthy that section 154 Cr.P.C. which deals with

the powers of investigation and the necessity of lodging an

FIR when a cognizable offence only speaks of "information

relating to the commission of a cognizable offence" given to

an officer. No pre-condition, as pointed out above, is placed

under this provision for first examining whether the

information is credible or genuine. In contrast section 41(1)

((b) Cr.P.C dealing with the powers of the police to arrest

without a warrant from a Magistrate requires the existence

of a "reasonable complaint," or "credible information" or

"reasonable suspicion" of the accused being involved in a

cognizable offence as pre-conditions for effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation (and

consequent arrest) may not be necessary. These two situations are:

(a) when information as to the commission of any such offence is given against any person

by name and the case is not of a serious nature, the officer in charge of a police station

need not proceed in person or depute a subordinate officer to make an investigation on the

spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground

for entering on an investigation, he shall not investigate the case. However in such

situations the police officer is to mention in his report the reasons for not investigating the

case. In the second case, where a police officer is of the opinion that there is no sufficient

ground for investigating a matter, he is to also inform the informant of his decision.

The proviso (b) to section 157 (1) Cr. P. C. has been discussed in

paragraphs No. 53 and 54 in Bhajan Lal (supra). The law report

clarifies that clause (b) of the proviso permits a police officer to

satisfy himself about the sufficiency of the grounds even before

entering on an investigation. However, at that stage, the

satisfaction that on the allegations, a cognizable offence

warranting investigation is disclosed, has only to be based on the

F.I.R. and other materials appended to it, which are placed before

the Police Officer. Therefore, if it appears to the Police Officer that

the matrimonial dispute between the spouses is either not of a

grave nature or is the result of a conflict of egos or contains an

exaggerated version, or where the complainant wife has not

received any injury or has not been medically examined, he may

even desist or defer the investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41

(1) (b), has been given effect to from 1.11.2010. This sub-section

provides that if some material or credible information exists of an

accused being involved in a cognizable offence punishable with 7

years imprisonment or less with or without fine, the Police Officer

has only to make an arrest, if he is satisfied that such arrest is

necessary (i) to prevent such person from committing any further

offence, (ii) for proper investigation of the offence; (iii) to prevent

such person from causing the evidence of the offence to disappear

or tampering with the evidence in any manner; (iv) for preventing

such person from making any inducement, threat or promise to a

witness to dissuade him from disclosing such facts to the Court or

the Police Officer (v) or unless such a person is arrested, he may

not appear in the Court when required. This new provision has

forestalled any routine arrests simply because a person is said to be

involved in a cognizable offence punishable with imprisonment up

to 7 years. The arrest is only to be effected if any or all of the five

conditions abovementioned are fulfilled. For making or for not

making such arrest, the Police Officer has to record his reasons. In

contrast to this provision, under section 41 (1) (ba) such a

limitation has not been provided for those cases, where credible

information has been received that a person has committed an

offence punishable with imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act

No. 5 of 2009 (with effect from 1.11.2010) which gives powers to

a Police Officer to issue a notice directing the person against

whom a reasonable complainant has been made or credible

information or reasonable suspicion exists to appear before him or

at any place that he may specify in the notice where the police

officer is of the opinion that the arrest is not required under the

provisions of section 41(1) Cr.P.C. but the accused is to comply

with the notice and he would not be arrested, if he continues to

comply with the terms of the notice. However, where the person

fails to comply with the notice, the police has all powers to arrest

him, unless there is some order of the Court granting him bail or

staying his arrest.

Now an offence under section 498A IPC is punishable with

imprisonment only up to three years and fine. If there are no

injuries on a victim, in our opinion, it constitutes a fit case for the

police officer to exercise powers conferred by the newly

introduced section 41(1)(b) read with section 41 (A), where

instead of straight away arresting the accused, it would be a better

option at the initial stage for the police officer to require the said

person to appear before him or before the Mediation Centre. As

pointed out above section 41 A Cr.P.C. permits calling the person

concerned before the police officer himself or to any specified

place. Hence a notice can be given to the accused to appear before

the mediation centre. This restraint on arrest, and placing of

conditions or terms for arrest would also apply a fortiori to the

accused family members of the husband of the aggrieved wife.

It may be pointed out that if the FIR is immediately registered that

will placate the concerns of the aggrieved wife to some extent that

action is being taken on her complaint, and it has not been put on

the back burner.

(3) Whether distinction possible between cases necessitating

immediate arrest, and cases where attempt for mediation should

first be made

Arrest may be necessitated, if the husband or other in-laws

have given a grave beating to the wife endangering her life

or where the wife has been subjected to repeated violence or

there are any other circumstances of exceptional cruelty

against the wife, where future recurrence of violence or

cruelty seems likely, or for preventing the husband and his

accused family members from trying to browbeat witnesses

or to tamper with the course of justice, or for ensuring the

presence of the husband or his accused family members at

the trial, or for effective investigation. In all other cases, we

are of the opinion that an attempt should be first made for

bringing about reconciliation between the parties by

directing the complainant wife and her natal family

members and the husband and other family members to

appear before the Mediation Centre when the wife or other

eligible relations under section 198-A Cr.P.C. approaches

the police station for lodging the report.

The advantage of not immediately arresting the

accused husband and his family members in a trivial

case where there appear to be no injuries on the

aggrieved wife, is that in sudden matrimonial

disputes, because of clash of egos between the wife

and her natal family members and the husband and in-

laws, the wife's side at the initial stage usually insists

on effecting the arrests of the husband and other in-

laws. Once the husband or his family members are

arrested, and subsequently bailed out, little motivation

remains for the parties to try and resolve their disputes

by mediation. This may prove disadvantageous for the

wife in the long run who may not have a source of

independent livelihood for running her life in the

future.

4. Appropriate place where mediation should be conducted.

The officials as well as the learned Government Advocate

and other lawyers present unanimously recommended that

the Mediation Cell should not be at the police station. The

I.G. (Public Grievances) pointed out that the police officer

before whom the report is lodged lack proper training for

conducting mediations sessions. Also if the police officer

refrains from arresting the accused persons pursuant to the

wife's FIR, by attempting to mediate in the dispute between

the parties, even if it is a case of no injury, and even where

he is only acting in accordance with the general directions of

the Court, questions about his integrity are unnecessarily

raised.

Moreover it is pointed out by the Secretary of the Legal

Services Authority that now Mediation or Conciliation

Centres have been established in all the District Courts. We,

therefore, think that the mediation proceedings should be

carried out in the said Mediation Centre.

5. Need for time frame for concluding the mediation

proceedings.

The I.G. (Public Grievances) and others present rightly

pointed out that a time frame must be laid down for

concluding the mediation proceedings as when an aggrieved

wife approaches the police for relief, because she has been

subjected to cruelty. If the matter is unduly prolonged in the

mediation process, the delay could act as a shield to protect

the accused from facing the penalty of law, causing

frustration and bitterness for the aggrieved wife. Notice

should as far as possible be served personally on the accused

and the parties should be directed to appear before the

Mediation Centre within a week or 10 days of the lodging of

the report by the aggrieved wife or family members.

Thereafter we think, that as far as possible, the mediation

proceedings should be concluded within two months of the

first appearance of both the parties before the Mediation

Centre.

6. Who should be the members of the mediation cell in the

district?

The Mediation Cell in the district should be headed by the

Secretary of the Legal Services Authority in the district, (at

present, the Civil Judge, Senior Division has been made the

Secretary), other panel or retainer lawyers appointed by the

District Legal Services Authority, other lawyers, who

volunteer for giving free services before the Mediation

centre, especially female lawyers should also be made

members of the Mediation Cell. It is also desirable to have

three or four social workers (especially female) in the Cell.

A female police officer of the rank of Dy. S.P. may also be

appointed an ex-officio member of the Mediation Cell.

7. Procedure to be followed by the police when a report of a

cognizable offence under section 498A IPC or allied

provisions is reported

The report regarding commission of cognizable offence

under section 498A IPC or other allied sections may be

lodged at the concerned police station where the incident

takes place or at the 'Mahila Thana' especially created in the

district for investigation of such cases. The police officer

concerned will get the aggrieved woman medically

examined for injuries if the same are present. If the report

has been lodged at some police station other than the Mahila

Thana, the injury report and relevant police papers shall be

forwarded to the Mahila Thana for investigation of the case,

and in appropriate cases the investigating police officer at

the Mahila Thana may refer the matter to the mediation

centre in the Civil Court, and direct the complainant to be

present at the mediation centre on a fixed date 7 to 10 days

thereafter. The accused should as far as possible also be

personally given notice to appear before the mediation

centre on the date fixed. We would also like the presence of

trained social workers (especially female) or legal aid panel

lawyers to be present at the Mahila Thana for counselling

the aggrieved woman and her family members for first

trying to solve their dispute by mediation, when the case is

registered at the mahila thana. The notice to the husband

and other family members should mention that in cases the

husband or the family members of the aggrieved wife fail to

appear on the date fixed or on future dates, as directed by

the Mediation Centre or fail to comply with any condition

that may be imposed by the police officer or Mediation

Centre, steps shall be taken for arresting the accused. The

accused husband or other in-laws should be directed to

report before the police officer on a date two months after

the date of first appearance before the Mediation Centre and

inform the Police Officer about the progress in the

mediation. The in-charge of the mediation proceeding may

also direct the husband or other family members to appear

before the Police Officer at an earlier date fixed in case

mediation has failed or it has been successfully concluded

and the parties concerned shall appear before the Police

Officer on the said date. It would also be open to the

complainant wife to inform the police officer about the

progress (or lack of it) of the mediation process. The notice

should also clarify that in case mediation is pronounced as

unsuccessful at an earlier date, and information is given by

either party or the Mediation centre to the Police Officer, he

may require the presence of the accused husband or his

relations at an earlier date. If mediation has been

successfully concluded, it will be open to the Police Officer

to submit a final report in the matter. In cases, where it has

not been successfully concluded and the Police Officer is of

the view that arrest may not be necessary in a particular

case, he may direct the accused persons to obtain bail from

the Competent Court. In case, he is of the opinion that the

arrest is necessitated at a subsequent stage, it will be open to

the Police Officer to take such accused persons in custody.

He should of course record his reason for making the said

arrest as provided under section 41 (1) (b) (ii).

8. Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the

learned Government Advocate, Sri Ashok Mehta,

Organizing Secretary of the Mediation Centre of the

Allahabad High Court and the Government officials present,

including the Secretary of the Legal Services Authority, that

training for mediators is a sine qua non for effective

mediation. The Organizing Secretary of the Allahabad High

Court Mediation Centre (AHMC) and Secretary of the U.P.

Legal Services Authority (UPLSA) stated that the centre and

authority are prepared to impart training to the mediators.

We welcome this offer and direct that there should be co-

ordianation between the AHMC and UPLSA for giving

effect to this offer. By and by as the State Government is

able to create a cadre of trainers for mediation, their services

may also be utilised for training mediators in the districts.

We think training is necessary because the responses to our

queries from the subordinate district courts reveal the poor

success rate in the cases referred by the High Court or where

the concerned subordinate court has itself initiated the

process of mediation. By contrast the success rate at the

Mediation Centre in the Allahabad High Court, which has

independent trained mediators (usually lawyers) is much

higher. The first requirement for successful mediation is the

patience on the part of the mediator, and his willingness to

give sufficient time to the contesting parties and especially

to the wife to express her bottled up grievances. Thereafter,

in a disinterested manner, the mediator should encourage the

parties to come up with solutions, giving useful suggestions

for bringing about reconciliation, as the mediator cannot

impose his solution on the parties.

The guidelines hereinabove have been spelt out by the Court

because of the specific request of the officials and lawyers

present to spell out the terms of the same, as guidance for

the State government (esp. the home department), the Legal

Services Authority and the police for issuing appropriate

circulars or government orders.

(9) Should offences under section 498-A IPC be made

compoundable?

We have received considerable feedback from subordinate

judicial authorities that unless the offence under section 498-

A IPC is made compoundable, much benefit cannot be

derived by trying to bring about mediation between the

parties. A dilemma then arises before the concerned Court,

(which cannot close the trial because the spouses have

compromised their dispute) or even before the aggrieved

wife, if she decides to settle her dispute with her spouse and

in-laws either by agreeing to stay with them or to part

amicably, usually after receiving some compensation. Even

if she is no more interested in repeatedly visiting the court

for prosecuting the accused, in the absence of provisions for

compounding the offence, she has willy nilly to perjure by

making a false statement that her initial report was untrue or

lodged under influence of X or Y. If on the basis of this

statement the trial Court acquits the husband and his family

members, and the aggrieved wife returns to her matrimonial

home, in the cases where she is again maltreated, if she

lodges a fresh report, its reliability will be open to question.

The Apex Court in Ramgopal v. State of M.P., 2010 SCALE

711 observed that an offence under section 498-A IPC is

essentially private in nature, and it should be made

compoundable if the parties are willing to amicably settle

their dispute. Directions were given to the Law Commission

of India to consider the matter and to make appropriate

recommendations to the Government to bring about suitable

amendments in the statute.

In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which

was a decision given by a bench in which one of us (Amar

Saran J) was a member, a similar suggestion was made to

the Law Commission of U.P. to recommend to the State

government to make the offence under section 498-A IPC

compoundable with the permission of the Court under

section 320 Cr.P.C. The reasons for the suggestion were that

such FIRs are often lodged in the heat of the moment,

without reflection after a sudden quarrel, and sometimes as a

result of wrong advice or influences. But the complaining

wife, who usually has no source of independent livelihood

(as a key problem in our society is the lack of economic and

social empowerment of women) and is unable to provide for

herself in the future, may have to suffer later if the

relationship with her husband is irrevocably ruptured due to

the hasty filing of the criminal case, particularly in view of

the fact that the offence is non-compoundable. To meet this

situation B.S. Joshi v State of Haryana, AIR 2003 SC 1386,

Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan

Mohan Abbot v State of Punjab, AIR 2008 SC 1969

recommended quashing of the complaint in proceedings

under section 482 Cr.P.C or in the writ jurisdiction where

the aggrieved wife compounded the offence. In the latter

case it was observed that where the dispute is purely

personal in nature, (i.e. the element of the offence being a

crime against society is secondary), and the wife decides to

compound the offence, as there would be little likelihood of

conviction, quashing of the offence should not be refused on

the hyper-technical view that the offence was non-

compoundable "as keeping the matter alive with no

possibility of a result in favour of the prosecution is a luxury

which the Courts, grossly overburdened as they are, cannot

afford and that the time so saved can be utilized in deciding

more effective and meaningful litigation"

The following passage in paragraph 12 in G.V. Rao v L.H.V.

Prasad, AIR 2000 SC 2474 has been cited with approval in

B.S. Joshi:

"There has been an outburst of matrimonial disputes in

recent times. The marriage is a sacred ceremony, the main

purpose of which is to enable the young couple to settle

down in life and live peacefully. But little matrimonial

skirmishes suddenly erupt which often assume serious

proportions resulting in commission of heinous crimes in

which elders of the family are also involved with the result

that those who could have counselled and brought about

rapprochement are rendered helpless on their being arrayed

as accused in the criminal case. There are many other

reasons which need not be mentioned here for not

encouraging matrimonial litigation so that the parties may

ponder over their defaults and terminate their disputes

amicably by mutual agreement instead of fighting it out in a

Court of law where it takes years and years to conclude and

in that process the parties lose their "young" days in

chasing their "cases" in different Courts."

In Rajeev Verma however relying on B.S. Joshi it was

mentioned that whilst the trial could be quashed in an

application under section 482 Cr.P.C or under Article 226,

being a fruitless prosecution where there was little

likelihood of conviction as the parties had settled their

dispute, but the proper forum for deciding the matter

whether the compromise application was voluntary and bona

fide or whether it was coerced was the lower court which

could decide whether it was a fit case for granting

permission to the wife to compound the offence under

section 320(2) Cr.P.C. This was only possible if the offence

under s. 498-A IPC was made compoundable with the

permission of the Court.

A good option for providing recompense to the maltreated

woman is "The Protection of Women from Domestic

Violence Act, 2005" which provides for a gamut of civil

rights for the aggrieved woman who has entered into a

domestic relationship with a man, with or without marriage.

Such civil rights include "Protection orders" (section 18)

prohibiting the respondent from committing any act of

violence, visiting the place of work, operating the common

bank locker, making telephonic contact etc. "Residence

orders" (section 19), which restrain the respondent from

dispossessing a woman from the shared household, or from

alienating or renouncing his rights to the property or by

directing him to remove himself, or by providing alternate

accommodation to the aggrieved woman at the existing

level. By providing "monetary reliefs" (sections 20 and 22)

by paying for loss of earnings or medical expenses, or loss

due to destruction of property by domestic violence, or for

maintenance of the woman and her dependent children, or

by payment of compensation for causing injuries (including

mental torture). "Custody orders" (section 21) for custody of

the child to the woman (including visiting rights) for the

respondent. Criminal proceedings under this Act have been

allowed only as a last resort, under section 31 when the

respondent commits a breach of a protection order, or where

at the stage of framing charges for breach of the protection

order he finds that an offence under section 498-A IPC has

also been committed by the respondent.

The Act also provides under section 14 for the Magistrate to

send a matter for "counselling" before a registered "service

provider," who is qualified to provide counselling in such

matters to the contesting parties or to provide shelter etc. to

the aggrieved woman.

In the counter-affidavit dated 12.8.11 filed on behalf of the

Home Secretary, U.P., it has specifically been mentioned

that the State government has given its consent to the Union

of India to make offences under section 498-A IPC

compoundable, and the letter of the Home (Police) Section-9

to the Union Home Ministry dated 4.2.10 has been annexed.

Whereas we appreciate this positive attitude of the State

government in not objecting to section 498-A IPC being

made a compoundable offence. However we find that

Andhra Pradesh, by Act 11 of 2003 (w.e.f 1.8.03) has added

section 498 A (wrongly described as 494 A) after section

494 in the table in section 320(2) Cr.P.C. and has permitted

the woman subjected to cruelty to compound the offence

with the permission of the Court, but added a proviso that a

minimum period of three months be allowed to elapse from

the date of application for compromise before a Court can

accept the request, provided any of the parties do not

withdraw in the intervening period. The U.P. government

may consider bringing out a similar amendment, as it has

already expressed its opinion that the offence under section

498-A IPC be made compoundable.

Before parting we must clarify that the Court is of the firm

view that acts of cruelty or violence against women have

neither ceased, nor have they been reduced, and the special

provision for meeting this problem must be retained in the

statute book. We quote with approval the view expressed in

paragraph 11 of the recent Law Commission of India,

Consultation Paper-cum-Questionaire regarding section 498-

A of Indian Penal Code:

"While the Commission is appreciative of the need to

discourage unjustified and frivolous complaints and the

scourge of over-implication, it is not inclined to take a view

that dilutes the efficacy of s. 498-A to the extent of defeating

its purpose especially having regard to the fact that

atrocities against women are on the increase. A balanced

and holistic view has to be taken on weighing the pros and

cons. There is no doubt a need to address the misuse

situations and arrive at a rational solution – legislative or

otherwise."

List this case on 8.11.2011 before the regular bench to be

headed by one of us (Hon'ble Amar Saran J)

The State government through the Chief Secretary, U.P., the

Principal Secretary, (Home), U.P., Secretary Law/ L.R.

U.P., Director General Police U.P., and Member-Secretary,

U.P. Legal Services Authority may issue appropriate

guidelines or circulars for laying down a system for

proceeding in matters where reports are lodged of

commission of offences under section 498 A IPC where

immediate arrests may not be necessary, for laying down the

appropriate criteria in this regard, and for sending the

matters for mediation before the mediation cells in the Civil

Courts, in accordance with the aforesaid directions of this

Court. The Principal Secretary, (Finance), U.P. may apprise

the Court as to the provision for finance for appointing

social workers/panel lawyers at the Mahila Thanas, for

ensuring that appropriate training is given to the social

workers, legal aid lawyers, and concerned police officers for

facilitating the mediation process, for making available

adequate infrastructure/ manpower at the mediation cells in

the Civil Courts, and for meeting expenses on other

contingencies. Let the aforesaid authorities submit their

compliance reports within 4 weeks. We would also like

reports from all the Secretaries of the District Legal Services

Authorities to submit their compliance reports (through the

District Judges) for getting the aforementioned minor

matters relating to offences under section 498 A IPC settled

through mediation and the difficulties they encounter or

forsee in complying with the directions of this Court by the

next listing. The State government is also directed to submit

its report on the next listing on the suggestion of the Court to

take steps for making the offence under section 498-A IPC

compoundable with the permission of Court by amending

section 320 Cr.P.C in U.P. as has been done in the case of

Andhra Pradesh. Registrar-General is directed to forward

copies of this order within a week to the Chief Secretary,

Principal Secretary, (Home), Law Secretary/LR, U.P.,

Principal Secretary (Finance), U.P., D.G.P., U.P., Member-

Secretary, U.P., Legal Services Authority, U.P., Secretaries/

Civil Judges (Senior Division) through District Judges in all

districts in U.P., Sri Ashok Mehta, Organizing Secretary,

Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi,

and Sister Sheeba Jose, Advocates for the intervenors,

Government Advocate, U.P. and other advocates and

officials present in the hearing on 8.8.11 for information and

compliance.

Order Date :- 30.9.2011

HSM

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar (Copying).

Equivalent Citation: 2011 (75) ACC 763

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 46

Case: Criminal Misc. Writ Petition No. 17410 of 2011

Petitioner: Shaukin

Respondent: State of UP and others

Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava

Respondent counsel: Government Advocate

Hon'ble Amar Saran, J.

Hon'ble Kalimullah Khan, J.

1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictly enforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State.

2.It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied.

3.The following observations in the order dated 15.9.11 have been quoted in the DGP's circular: "Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance report of this direction within three weeks."

4.Annexure 2 to the DGP's affidavit in compliance of our dated 15.9.11 also contains the following

endorsement from all 72 districts in U.P.: "जनपद / न प द न प न ज "

5.The directions were issued by the DGP's circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections.

6.By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C.

7.It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here :

41. When police may arrest without warrant. -- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person --

(a)------------------

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police office is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(C) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing.

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. -

41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.

170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

8.The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations.

9.Where however the accused has not been named in the FIR, or at the time when the co-accused have been picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such

an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be participating in some organized crimes, and there is probability of the accused repeating the offence, these would also be circumstances where it may be necessary to arrest such accused without delay.

10.However in a case under section 498 A IPC where the wife subject to violence has gone back to her "maika" following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her "sasural." In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit a charge sheet has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive.

11.It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases.

12.But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested.

13.Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested.

14.The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP's circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP's circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P.

15.Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the Magistrate before whom the accused is produced for remand.

16.Section 167(1) reads thus:

167. Procedure when investigation cannot be completed in twenty-four hours. ----(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter presecribed relating to the case, and shall at the same time forward the accused to such Magistrate.

17.As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to "rubber stamp" the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces

an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer's reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and influence witnesses, or without arrest the particular accused would not appear in Court. These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security.

18.There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected. Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C.

19.If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts.

DIRECTIONS:

20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases.

21.The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer.

22.The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide

manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials.

23.We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above.

24.The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not

satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: "जनपद / न

प द न प न ज ."

25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers.

26.We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such

as " ज प न ," informing the public that henceforth accused

wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010.

27.Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days.

28.Let a copy of this order be also furnished to the learned Government Advocate forthwith.

29.Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions.

List on 14.12.2011.

Dated: 11.10.2011

Ishrat

Criminal Misc.No.M-28371 of 2008 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.No.M-28371 of 2008

Date of Decision:21.05.2012

Sanjiv Kumar ......Petitioner

Versus

State of Haryana and another .....Respondents

CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.

Present: Mr.Pritam Saini, Advocate,for the petitioner.

Mr.Kartar Singh, Deputy Advocate General, Haryana,for respondent No.1-State.

Mr.Rakesh Nehra, Advocate,for respondent No.2.

****

M EHINDER S INGH S ULLAR , J.(oral)

Tersely, the facts and material, culminating in the commencement,

relevant for disposal of the instant petition and emanating from the record are that,

inter-caste love marriage of Manoj Kumar Saini, younger brother of petitioner

Sanjiv Kumar, was solemnized with complainant-Anju Saini, respondent No.2 (for

brevity “the complainant”) on 06.07.2002 in Arya Samaj Mandir at Hisar, without

the consent of family members. When the father of Manoj Kumar Saini came to

know that he is going to perform love marriage with the complainant, then he

disowned him(Manoj Kumar) and got published the following public notice on

11.06.2002:-

“I declare that my son, Manoj Saini, who is out of my control has no

relation with me. I have disowned him from my movable and immovable

property. Anyone having any type of dealing with him shall himself be

responsible.”

2. As soon as, he came to know about the inter-caste marriage, in the

Criminal Misc.No.M-28371 of 2008 2

meantime, he actually suffered serious ailments and ultimately, died due to the

attitude of his son Manoj Kumar Saini. On 20.04.2008, i.e. six years after

solemnization of marriage, the complainant lodged a complaint against petitioner-

Sanjiv Kumar, brother-in-law(Jeth), his wife Suman, sister-in-law(Jethani) and

Rani, mother-in-law, inter alia, with the allegations that they started pressurizing

her, to bring more money from her parents. They did not give any share out of

property and demanded Rs.2-3 lacs. According to the complainant that, she left

her matrimonial home due to fear and started residing with her younger sister. She

apprehended danger to her life, as she was unable to fulfill their demand of dowry.

In the background of these allegations, a criminal case was registered against the

petitioner and his other co-accused, by way of FIR No.258 dated 20.04.2008

(Annexure P-5), on accusation of having committed the offence punishable under

Sections 498-A, 406 and 506/34 IPC, by the police of Police Station City, Rohtak.

3. Although, during the course of investigation, Rani(mother-in-law)

and Suman, sister-in-law(Jethani) of the complainant, were found innocent,

however, the police submitted the challan/final police report in the court against

the petitioner in terms of Section 173 Cr.P.C., to face the trial for the commission

of pointed offences.

4. The petitioner-accused did not feel satisfied with the initiation of the

criminal prosecution against him and preferred the present petition, to quash the

impugned FIR(Annexure P-5), invoking the provisions of Section 482 Cr.P.C.

5. The case set-up by the petitioner, in brief, insofar as relevant, is that

the complainant performed inter-caste love marriage with Manoj Kumar Saini

against the wishes of his father, who had disowned him. They were residing

separately. Ultimately, his father died due to shock. After his death, the

complainant and her husband started misbehaving with his family members.

Manoj Kumar Saini tried to forcibly enter into the house with the help of

Criminal Misc.No.M-28371 of 2008 3

miscreants, then the mother of the petitioner submitted an application to the police

as well as to the higher authorities. It was alleged that the petitioner, who was a

practicing Lawyer, had shifted from Rohtak and practiced from September 2001 to

January 2004 at Chandigarh. After the death of his father, he has again shifted to

Rohtak. His younger brother Manoj Kumar Saini and his wife(complainant)

started harassing his family members. They wanted to forcibly occupy the house

and illegally demanded share in the property. When the mother of the petitioner

refused to give him the property, then Manoj Kumar Saini with the connivance of

his wife(complainant), managed to lodge the FIR(Annexure P-5) against the

petitioner, in order to take the revenge. It has been specifically pleaded in para 15

of the petition as under:-

“That from facts and circumstances narrated above, it is clear that

registration of FIR against the petitioner is clear cut misuse of the

provisions of Section 498-A/406 IPC. From the facts narrated above, it is

clear that the complainant and Manoj Kumar had solemnized the love

marriage without consent of the family of the petitioner. The petitioner

actually being an elder brother of Manoj Kumar has been involved in the

present case. Otherwise, question of harassment and raising a demand of

dowry does not arise. The fact of the matter is that not only the petitioner

but the entire family of the petitioner is being harassed by Manoj Kumar

and the complainant with active connivance. When both the husband and

wife failed to achieve the target to get share in the property, now they in

concert with each other i.e. husband and wife, got registered the FIR and

complaint under provisions of the Domestic Violence Act, 2005 so that the

petitioner, his mother and sister get involved in the litigation and,

ultimately, would agree to share the property with them. Thus, on this score

alone, the FIR registered against the petitioner is totally baseless and the

allegations levelled in the FIR cannot be taken against the petitioner at

all.”

6. Levelling a variety of allegations and narrating the sequence of

events in detail, in all, the petitioner claimed that he has been falsely implicated, in

Criminal Misc.No.M-28371 of 2008 4

order to take revenge and wreak vengeance by the complainant with the

connivance of his younger brother Manoj Kumar Saini, with the intention to

illegally get share in the property. On the strength of aforesaid grounds, the

petitioner sought to quash the impugned FIR(Annexure P-5), in the manner

depicted hereinabove.

7. The respondents refuted the prayer of the petitioner and filed their

respective replies, inter alia, pleading certain preliminary objections of,

maintainability of the petition, cause of action and locus standi of the petitioner.

Instead of reproducing the entire contents of the reply and in order to avoid the

repetition, suffice it to say that, that the respondents have reiterated the allegations

contained in the impugned FIR(Annexure P-5). However, it will not be out of

place to mention here that they have stoutly denied all other allegations contained

in the main petition and prayed for its dismissal. That is how, I am seized of the

matter.

8. After hearing the learned counsel for the parties, going through the

record with their valuable help and after considering the entire matter deeply, to

my mind, the instant petition deserves to be accepted in this context.

9. As is evident from the record that, the inter-caste love marriage of

the complainant was solemnized with Manoj Kumar Saini on 06.07.2002, whereas

the present FIR was lodged against the petitioner, his wife and mother on

20.04.2008(i.e., after a period of six years). During the course of investigation, the

story of the complainant was disbelieved qua wife and mother of the petitioner and

they were found innocent. Only petitioner, brother-in-law(Jeth) of the complainant

was charged for the commission of the indicated offences.

10. Not only that, copy of the Ration Card(Annexure P-1) would go to

show that complainant-Anju Saini was residing separately with her husband Manoj

Kumar Saini and daugher Manvi. Manoj Kumar Saini was disowned by his father.

Criminal Misc.No.M-28371 of 2008 5

Manoj Kumar and the complainant broke open the lock of the house and his

mother Rani reported the matter to the police, to take action against them, vide

complaint dated 15.07.2006(Annexure P-2). She moved another complaint dated

16.08.2007(Annexure P-3) to the SHO, Police Station City, Rohtak. The incident

of trespassing by the complainant and her husband was published by virtue of

publication(Annexure P-4).

11. This is not the end of the matter. Again, the complainant has also

filed another separate complaint(Annexure P-6) against the accused under Sections

12, 17 to 20 and 22 of the Protection of Women from Domestic Violence Act, 2005

and Section 498-A IPC, to which, the petitioner filed the reply(Annexure P-7).

The proceedings(Annexure P-8) were also initiated under Sections 107/151 Cr.P.C.

between the parties. Manoj Kumar Saini, husband of the complainant, lodged

another FIR No.680 dated 18.09.2009(Annexure P-9) under Sections 323, 324 and

34 IPC against the petitioner, his wife and two other unknown persons. In other

words, it stands proved on record that the complainant and her husband were

residing separately from the family of the petitioner, which falsifies the claim of

the complainant contained in the FIR(Annexure P-5), wherein she stated that her

mother-in-law started pressurizing her for bringing money. They tried to illegally

trespass the house of his mother Rani and she reported the matter to the police.

There is a long line of complaints between the parties.

12. The only allegations alleged against the petitioner, his wife and

mother, were that they started pressurizing her for bringing more money. The wife

and mother of the petitioner were found innocent by the police during the course of

investigation. That means, the story of the complainant relatable to them has

already been disbelieved even by the investigating agency. Once it is proved that

the complainant and her husband were residing separately, whereas the petitioner

was residing separately, in that eventuality, how, when, where, in what manner and

Criminal Misc.No.M-28371 of 2008 6

in whose presence, the dowry articles were entrusted to him at the time of inter-

caste love marriage or the petitioner has treated her(complainant) with cruelty and

in what manner, he is remotely connected with the commission of the indicated

offences, remains an unfolded mystery. The complainant with the connivance of

her husband appears to have maliciously and vexatiously involved the petitioner in

this case, in order to wreak vengeance and to take the revenge, after the expiry of

period of six years from solemnization of their marriage.

13. Moreover, as indicated here-in-above, very very vague allegations

are assigned to the petitioner in the FIR. The only allegations assigned to the

present petitioner are that, he asked that they cannot bear their expenses and will

not give anything out of their property, bring Rs.2-3 lacs from your mother,

otherwise they will burn her alive. Thereafter due to fear, she left her matrimonial

home. The allegations are as vague as anything and no specific role or overt-act is

attributed to the petitioner. Above all, it is highly impossible to believe that the

petitioner(who is brother-in-law(Jeth) of the complainant) would treat her with

cruelty in connection with and on account of demand of dowry.

14. It is now well settled principle of law that, in order to attract the

penal provisions of the offences punishable under Sections 406 and 498-A IPC,

there must be specific allegations/overt acts and prima facie material against the

petitioner to indicate that the dowry articles were actually entrusted to him and he

misappropriated the same. The in-laws and other relations cannot, in all cases, be

held to be involved in the demand of dowry. In cases, where such accusation is

made, the overt acts attributed to such persons, other than husband, are required to

be prima facie established. By mere conjectures and implications, such relations

cannot be held to be involved for the offences relating to the demand of dowry,

which are totally lacking in the present case. As the Bench mark, all the essential

ingredients to constitute the offences and element of the complicity of petitioner,

Criminal Misc.No.M-28371 of 2008 7

are totally missing, therefore, to me, no criminal prosecution can legally be

permitted to continue against him, in view of the law laid down by the Hon'ble

Supreme Court in cases Ramesh and others Versus State of Tamil Nadu, 2005

(2) R.C.R.(Criminal) 68, Sushil Kumar Sharma Versus Union of India and

others, 2005(3) R.C.R.(Criminal) 745 and Kans Raj Versus State of Punjab

and others, 2000(2) R.C.R.(Criminal) 695.

15. An identical question came to be decided by the Hon'ble Apex Court

in case Preeti Gupta & Another v. State of Jharkhand & Another 2010(7) SCC

667. Having interpreted the provisions of Section 498-A IPC, it was ruled as under

(paras 30 to 36) :-

“30. It is a matter of common experience that most of these complaints under section 498-A IPC are

filed in the heat of the moment over trivial issues without proper deliberations. We come across a large

number of such complaints which are not even bona fide and are filed with oblique motive. At the same

time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious

concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that

the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of

small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed

either on their advice or with their concurrence. The learned members of the Bar who belong to a noble

profession must maintain its noble traditions and should treat every complaint under section 498-A as a

basic human problem and must make serious endeavour to help the parties in arriving at an amicable

resolution of that human problem. They must discharge their duties to the best of their abilities to ensure

that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also

ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not

properly visualized by the complainant that such complaint can lead to insurmountable harassment,

agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent.

To find out the truth is a herculean task in majority of these complaints. The tendency of implicating

husband and all his immediate relations is also not uncommon. At times, even after the conclusion of

criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and

cautious in dealing with these complaints and must take pragmatic realities into consideration while

dealing with matrimonial cases. The allegations of harassment of husband's close relations who had

been living in different cities and never visited or rarely visited the place where the complainant resided

would have an entirely different complexion. The allegations of the complaint are required to be

scrutinized with great care and circumspection. Experience reveals that long and protracted criminal

trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a

matter of common knowledge that in cases filed by the complainant if the husband or the husband's

relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement

altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision

is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of

the incident are reflected in a large number of complaints. The tendency of over implication is also

Criminal Misc.No.M-28371 of 2008 8

reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the

trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large

number of these complaints have not only flooded the courts but also have led to enormous social unrest

affecting peace, harmony and happiness of the society. It is high time that the legislature must take into

consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for

the legislature to take into consideration the informed public opinion and the pragmatic realities in

consideration and make necessary changes in the

relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law

Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble

Minister for Law & Justice to take appropriate steps in the larger interest of the society.

36. When the facts and circumstances of the case are considered in the background of legal principles set

out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a

criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the

appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is

allowed.”

16. Again, this Court has also considered this aspect of the matter in

cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332;

Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh

Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565;

Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal)

597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the

judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal

Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations

against the relatives of the husband were vague and there is growing tendency to

come out with inflated and exaggerated allegations roping in each and every

relation of the husband, things have now taken a reverse trend and the women are

abusing beneficial provisions of Section 498-A IPC.”

17. In this manner, the argument of the learned counsel that the

petitioner has been falsely implicated by the complainant and her husband in this

case, has considerable force and the contrary contentions on behalf of learned

counsel for the complainant-respondent pale into insignificance, “stricto sensu”

deserve to be and are hereby repelled under the present set of circumstances. The

ratio of law laid down in the aforesaid judgments “mutatis mutandis” is fully

attracted to the facts of the present case and is the complete answer to the problem

Criminal Misc.No.M-28371 of 2008 9

in hand.

18. Therefore, if the crux of the allegations levelled against the

petitioner, as discussed hereinabove, is put together and is perused, then, to my

mind, no pointed offences are made out against the petitioner and the complainant

has vexatiously and maliciously filed the FIR(Annexure P-5) against him, in order

to wreak vengeance. In case, the complainant is permitted to prosecute her

brother-in-law(Jeth), who is residing separately, then it will inculcate and

perpetuate great injustice to him. In this manner, the complainant appears to have

falsely involved the petitioner in the present case. Therefore, to me, the impugned

FIR(Annexure P-5) and all other subsequent proceedings arising therefrom,

deserve to be quashed in the obtaining circumstances of the case.

19. No other legal point, worth consideration, has either been urged or

pressed by the counsel for the parties.

20. In the light of aforesaid reasons, the instant petition is accepted.

Consequently, the impugned FIR(Annexure P-5) and all other subsequent

proceedings arising therefrom, are hereby quashed. The petitioner is accordingly,

discharged from the indicated criminal case registered against him.

May 21, 2012 (MEHINDER SINGH SULLAR)seema JUDGE

Whether to be referred to reporter? Yes/No

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1674 OF 2012 (Arising out of SLP (Crl.) No. 10547/2010)

Geeta Mehrotra & Anr. ..Appellants

Versus

State of U.P. & Anr. . Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

1. This appeal by special leave in which we

granted leave has been filed by the appellants against

the order dated 6.9.2010 passed by the High Court of

Judicature at Allahabad in Crl. Miscellaneous

Application No.22714/2007 whereby the High Court

had been pleased to dispose of the application moved by

the appellants under Section 482 Cr.P.C. for quashing

the order of the Magistrate taking cognizance against

the appellants under Sections 498A/323/504/506 IPC

Page 2

read with Section 3/4 of the Dowry Prohibition Act with

an observation that the question of territorial

jurisdiction cannot be properly decided by the High

Court under Section 482 Cr.P.C. for want of adequate

facts. It was, therefore, left open to the appellants to

move the trial court for dropping the proceedings on

the ground of lack of territorial jurisdiction. The High

Court however granted interim protection to the

appellants by directing the authorities not to issue

coercive process against the appellants until disposal of

the application filed by the appellants with a further

direction to the trial court to dispose of the application

if moved by the appellants, within a period of two

months from the date of moving the application. The

application under Section 482 Cr.P.C. was thus

disposed of by the High Court.

2. The appellants in spite of the liberty granted

to them to move the trial court, have filed this appeal for

quashing the proceedings which had been initiated on

the basis of a case lodged by the respondent No.2 Smt.

Shipra Mehrotra (earlier known as Shipra Seth) against

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her husband, father-in-law, mother-in-law, brother-in-

law and sister-in-law. This appeal has been preferred

by the sister-in-law, who is appellant No.1 and brother-

in-law of the complainant, who is appellant No.2.

3. The case emerges out of the first information

report lodged by respondent No.2 Smt. Shipra

Mehrotra under Sections 498A/323/504/506 IPC

read with Section 3/4 of the Dowry Prohibition Act

bearing F.I.R.No. 52/2004. The F.I.R. was registered at

Mahila Thana Daraganj, Allahabad wherein the

complainant alleged that she was married to Shyamji

Mehrotra s/o Balbir Saran who was living at Eros

Garden, Charmswood Village, Faridabad, Suraj Kund

Road at Faridabad Haryana as per the Hindu marriage

rites and customs. Prior to marriage the complainant

and her family members were told by Shyamji Mehrotra

and his elder brother Ramji Mehrotra who is appellant

No.2 herein and their mother Smt. Kamla Mehrotra and

her sister Geeta Mehrotra who is appellant No.1 herein

that Shyamji is employed as a Team Leader in a top I.T.

Company in Chennai and is getting salary of

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Rs.45,000/- per month. After negotiation between the

parents of the complainant and the accused parties,

the marriage of the complainant Shipra Seth (later

Shipra Mehrotra) and Shyamji Mehrotra was performed

after which the respondent-complainant left for the

house of her in-laws.

4. It was stated that the atmosphere in the

house was peaceful for sometime but soon after the

wedding, when all the relatives left, the maid who

cooked meals was first of all paid-off by the aforesaid

four persons who then told the complainant that from

now onwards, the complainant will have to prepare food

for the family. In addition, the above mentioned people

started taunting and scolding her on trivial issues. The

complainant also came to know that Shyamji was not

employed anywhere and always stayed in the house.

Shyamji gradually took away all the money which the

complainant had with her and then told her that her

father had not given dowry properly, therefore, she

should get Rupees five lakhs from her father in order to

enable him to start business, because he was not

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getting any job. When the complainant clearly declined

and stated that she will not ask her parents for money,

Shyamji, on instigation of other accused-family

members, started beating her occasionally. To escape

every day torture and financial status of the family, the

complainant took up a job in a Call Centre at Convergys

on 17.2.2003 where the complainant had to do night

shifts due to which she used to come back home at

around 3 a.m. in the morning. Just on her return from

work, the household people started playing bhajan

cassettes after which she had to getup at 7’o clock in

the morning to prepare and serve food to all the

members in the family. Often on falling asleep in the

morning, Shyamji, Kamla Devi and Geeta Mehrotra

tortured the complainant every day mentally and

physically. Ramji Mehrotra often provoked the other

three family members to torture and often used to make

the complainant feel sad by making inappropriate

statements about the complainant and her parents. Her

husband Shyamji also took away the salary from the

complainant.

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Page 6

5. After persistent efforts, Shyamji finally got a

job in Chennai and he went to Chennai for the job in

May, 2003. But, it is alleged that there was no change

in his behaviour even after going to Chennai. The

complainant often called him on phone to talk to him

but he always did irrelevant conversation. He never

spoke properly with the complainant whenever he

visited home and often used to hurl filthy abuses. The

complainant states that she often wept and tolerated the

tortures of the accused persons for a long time but did

not complain to her family members, as that would have

made them feel sad. At last, when the complainant

realized that even her life was in danger, she was

compelled to tell everything to her father on phone who

was very upset on hearing her woes. On 15.7.2003

complainant heard some conversation of her mother-in-

law and sister-in-law from which it appeared to her that

they want to kill the complainant in the night only.

Thereupon the complainant apprised her father of the

situation on phone to which her father replied that he

will call back her father-in-law and she should go with

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him immediately and he will come in the morning. The

father-in-law Satish Dhawan and his wife who were

living in NOIDA thereafter came in the night and

somehow took the complainant to their home who also

came to know of everything. The complainant’s father

and brother later went to her matrimonial home on

16.7.2003. On seeing her father and brother, Kamla

Mehrotra and Geeta Mehrotra started speaking loudly

and started saying that Shyamji would be coming by the

evening and so he should come in the evening for

talking to them. Her father and brother then went away

from there. That very day, her husband Shyamji and

brother-in-law Ramji also reached home. On reaching

there, Shyamji abused her on phone and told her to

send her father.

6. When father and brother of the complainant

went home in the evening, they were also insulted by all

the four and video camera and tape were played and in

the end they were told that they should leave from here.

Insulted, they came back from there and then came

back to Allahabad with the complainant. For many

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days the complainant and her family members hoped

that the situation would improve if the matter was

resolved. Many times other people tried to persuade the

in – laws but to no avail. Her brother went to their

house to talk to her in – laws but it came to his

knowledge that the in – laws had changed their house.

After much effort, they came to know that the father-in-

law and mother-in-law started living at B-39, Brahma

cooperative group housing society, block 7, sector-7,

Dwarka, Delhi. On 19.09.04 evening, her father talked

to Kamla Mehrotra and Geeta Mehrotra regarding the

complainant using bad words and it was said that if her

daughter came there she will be kicked out. After some

time Shyamji rang up at complainant’s home but on

hearing the complainant’s voice, he told her abusively

that now she should not come his way and she should

tell her father not to phone him in future. At

approximately 10:30 pm in the night Ramji’s phone

came to the complainant’s home. He used bad words

while talking to her father and in the end said that he

had got papers prepared in his defence and he may do

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whatever he could but if he could afford to give Rs.10

lakhs then it should be conveyed after which he will

reconsider the matter. If the girl was sent to his place

without money, then even her dead body will not be

found.

7. On hearing these talks of the accused, the

complainant believed that her in-laws will not let the

complainant enter their home without taking ten lakhs

and if the complainant went there on her own, she will

not be safe. Hence, she lodged the report wherein she

prayed that the SHO Daraganj should be ordered to do

the needful after registering the case against the

accused Shyam Mehrotra, Ramji Mehrotra, Kamla

Mehrotra and Geeta Mehrotra. Thus, in substance, the

complainant related the bickering at her matrimonial

home which made her life miserable in several ways and

compelled her to leave her in-law’s place in order to live

with her father where she lodged a police case as stated

hereinbefore.

8. On the basis of the complaint, the

investigating authorities at P.S. Daraganj, Allahabad

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Page 10

started investigation of the case and thereafter the

police submitted chargesheet against the appellants and

other family members of the complainant’s husband.

9. Hence, the appellants who are sister and

brother of the complainant’s husband filed petition

under Section 482 Cr.P.C. for quashing of the

chargesheet and the entire proceedings pending in the

court of learned Judicial Magistrate, Court No.IV,

Allahabad, inter-alia, on the ground that FIR has been

lodged with mala fide intentions to harass the

appellants and that no case was made out against the

appellants as well as other family members. But the

principal ground of challenge to the FIR was that the

incident although was alleged to have taken place at

Faridabad and the investigation should have been done

there only, the complainant with mala fide intention in

connivance with the father of the complainant, got the

investigating officer to record the statements by visiting

Ghaziabad which was beyond his territorial jurisdiction

and cannot be construed as legal and proper

investigation. It was also alleged that the father of the

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Page 11

complainant got the arrest warrant issued through

George Town Police Station, Allahabad, in spite of the

cause of action having arisen at Allahabad.

10. This appeal has been preferred by Kumari

Geeta Mehrotra i.e. the sister of the complainant’s

husband and Ramji Mehrotra i.e. the elder brother of

the complainant’s husband assailing the order of the

High Court and it was submitted that the Hon’ble High

Court ought to have appreciated that the complainant

who had already obtained an ex-parte decree of divorce,

is pursuing the present case through her father with

the sole purpose to unnecessarily harass the appellants

to extract money from them as all efforts of mediation

had failed.

11. However, the grounds of challenge before

this Court to the order of the High Court, inter alia is

that the High Court had failed to appreciate that the

investigation had been done by the authority without

following due process of law which also lacked territorial

jurisdiction. The relevant documents/parcha diary for

deciding the territorial jurisdiction had been overlooked

1

Page 12

as the FIR has been lodged at Allahabad although the

cause of action of the entire incident is alleged to have

taken place at Faridabad (Haryana). It was, therefore,

submitted that the investigating authorities of the

Allahabad have traversed beyond the territorial limits

which is clearly an abuse of the process of law and the

High Court has failed to exercise its inherent powers

under Section 482 Cr.P.C. in the facts and

circumstances of this case and allowed the proceedings

to go on before the trial court although it had no

jurisdiction to adjudicate the same.

12. It was further averred that the High Court

had failed to examine the facts of the FIR to see

whether the facts stated in the FIR constitute any prima

facie case making out an offence against the sister-in-

law and brother-in-law of the complainant and whether

there was at all any material to constitute an offence

against the appellants and their family members.

Attention of this Court was further invited to the

contradictions in the statement of the complainant and

her father which indicate material contradictions

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indicating that the complainant and her father have

concocted the story to implicate the appellants as well

as all their family members in a criminal case merely

with a mala fide intention to settle her scores and

extract money from the family of her ex-husband

Shyamji Mehrotra and his family members.

13. On a perusal of the complaint and other

materials on record as also analysis of the arguments

advanced by the contesting parties in the light of the

settled principles of law reflected in a catena of

decisions, it is apparent that the High Court has not

applied its mind on the question as to whether the case

was fit to be quashed against the appellants and has

merely disposed of the petition granting liberty to the

appellants to move the trial court and raise

contentions on the ground as to whether it has

territorial jurisdiction to continue with the trial in the

light of the averment that no part of the cause of action

had arisen at Allahabad and the entire incident even as

per the FIR had taken place at Faridabad.

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14. The High Court further overlooked the fact

that during the pendency of this case, the complainant-

respondent No.2 has obtained an ex-parte decree of

divorce against her husband Shyamji Mehrotra and the

High Court failed to apply its mind whether any case

could be held to have been made out against Kumari

Geeta Mehrotra and Ramji Mehrotra, who are the

unmarried sister and elder brother of the complainant’s

ex-husband. Facts of the FIR even as it stands indicate

that although a prima facie case against the husband

Shyamji Mehrotra and some other accused persons may

or may not be constituted, it surely appears to be a

case where no ingredients making out a case against

the unmarried sister of the accused Shyamji Mehrotra

and his brother Ramji Mehrotra appear to be existing

for even when the complainant came to her in-law’s

house after her wedding, she has alleged physical and

mental torture by stating in general that she had been

ordered to do household activities of cooking meals for

the whole family. But there appears to be no specific

allegation against the sister and brother of the

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complainant’s husband as to how they could be

implicated into the mutual bickering between the

complainant and her husband Shyamji Mehrotra

including his parents.

15. Under the facts and circumstance of similar

nature in the case of Ramesh vs. State of Tamil

Nadu reported in (2005) SCC (Crl.) 735 at 738

allegations were made in a complaint against the

husband, the in-laws, husband’s brother and sister who

were all the petitioners before the High Court wherein

after registration of the F.I.R. and investigation, the

charge sheet was filed by the Inspector of Police in the

court of Judicial Magistrate III, Trichy. Thereupon, the

learned magistrate took cognizance of the offence and

issued warrants against the appellants on 13.2.2002.

Four of the accused-appellants were arrested and

released on bail by the magistrate at Mumbai. The

appellants had filed petition under Section 482, Cr.P.C.

before the Madras High Court for quashing the

proceedings in complaint case on the file of the Judicial

Magistrate III, Trichy. The High Court by the impugned

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order dismissed the petition observing that the grounds

raised by the petitioners were all subject matters to be

heard by the trial court for better appreciation after

conducting full trial as the High Court was of the view

that it was only desirable to dismiss the criminal

original petition and the same was also dismissed.

However, the High Court had directed the Magistrate to

dispense with the personal attendance of the

appellants.

16. Aggrieved by the order of the Madras High

Court dismissing the petition under Section 482

Cr.P.C., the special leave petition was filed in this Court

giving rise to the appeals therein where threefold

contentions were raised viz., (i) that the allegations are

frivolous and without any basis; (ii) even according to

the FIR, no incriminating acts were done within the

jurisdiction of Trichy Police Station and the court at

Trichy and, therefore, the learned magistrate lacked

territorial jurisdiction to take cognizance of the offence

and (iii) taking cognizance of the alleged offence at that

stage was barred under Section 468(1) Cr.P.C. as it was

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beyond the period of limitation prescribed under

Section 468(2) Cr.P.C. Apart from the subsequent two

contentions, it was urged that the allegations under the

FIR do not make out any offence of which cognizance

could be taken.

17. Their Lordships of the Supreme Court in

this matter had been pleased to hold that the bald

allegations made against the sister in law by the

complainant appeared to suggest the anxiety of the

informant to rope in as many of the husband’s relatives

as possible. It was held that neither the FIR nor the

charge sheet furnished the legal basis for the

magistrate to take cognizance of the offences alleged

against the appellants. The learned Judges were

pleased to hold that looking to the allegations in the

FIR and the contents of the charge sheet, none of the

alleged offences under Section 498 A, 406 and Section 4

of the Dowry Prohibition Act were made against the

married sister of the complainant’s husband who was

undisputedly not living with the family of the

complainant’s husband. Their Lordships of the

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Supreme Court were pleased to hold that the High

Court ought not to have relegated the sister in law to

the ordeal of trial. Accordingly, the proceedings against

the appellants were quashed and the appeal was

allowed.

18. In so far as the plea of territorial jurisdiction

is concerned, it is no doubt true that the High Court

was correct to the extent that the question of territorial

jurisdiction could be decided by the trial court itself.

But this ground was just one of the grounds to quash

the proceedings initiated against the appellants under

Section 482 Cr.P.C. wherein it was also alleged that no

prima facie case was made out against the appellants

for initiating the proceedings under the Dowry

Prohibition Act and other provisions of the IPC. The

High Court has failed to exercise its jurisdiction in so far

as the consideration of the case of the appellants are

concerned, who are only brother and sister of the

complainant’s husband and are not alleged even by the

complainant to have demanded dowry from her. The

High Court, therefore, ought to have considered that

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even if the trial court at Allahabad had the jurisdiction

to hold the trial, the question still remained as to

whether the trial against the brother and sister of the

husband was fit to be continued and whether that

would amount to abuse of the process of the court.

19. Coming to the facts of this case, when the

contents of the FIR is perused, it is apparent that there

are no allegations against Kumari Geeta Mehrotra and

Ramji Mehrotra except casual reference of their names

who have been included in the FIR but mere casual

reference of the names of the family members in a

matrimonial dispute without allegation of active

involvement in the matter would not justify taking

cognizance against them overlooking the fact borne out

of experience that there is a tendency to involve the

entire family members of the household in the domestic

quarrel taking place in a matrimonial dispute specially if

it happens soon after the wedding.

20. It would be relevant at this stage to take

note of an apt observation of this Court recorded in the

matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported

1

Page 20

in (2000) 3 SCC 693 wherein also in a matrimonial

dispute, this Court had held that the High Court should

have quashed the complaint arising out of a

matrimonial dispute wherein all family members had

been roped into the matrimonial litigation which was

quashed and set aside. Their Lordships observed

therein with which we entirely agree that:

“there has been an outburst of matrimonial

dispute in recent times. Marriage is a sacred

ceremony, main purpose of which is to

enable the young couple to settle down in

life and live peacefully. But little

matrimonial skirmishes suddenly erupt

which often assume serious proportions

resulting in heinous crimes in which elders

of the family are also involved with the result

that those who could have counselled and

brought about rapprochement are rendered

helpless on their being arrayed as accused

in the criminal case. There are many reasons

which need not be mentioned here for not

encouraging matrimonial litigation so that

the parties may ponder over their defaults

and terminate the disputes amicably by

mutual agreement instead of fighting it out

2

Page 21

in a court of law where it takes years and

years to conclude and in that process the

parties lose their “young” days in chasing

their cases in different courts.”

The view taken by the judges in this matter was that the

courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC

1386 in the matter of B.S. Joshi & Ors. vs. State of

Haryana & Anr. it was observed that there is no doubt

that the object of introducing Chapter XXA containing

Section 498A in the Indian Penal Code was to prevent

the torture to a woman by her husband or by relatives

of her husband. Section 498A was added with a view

to punish the husband and his relatives who harass or

torture the wife to coerce her relatives to satisfy

unlawful demands of dowry. But if the proceedings are

initiated by the wife under Section 498A against the

husband and his relatives and subsequently she has

settled her disputes with her husband and his relatives

and the wife and husband agreed for mutual divorce,

refusal to exercise inherent powers by the High Court

would not be proper as it would prevent woman from

2

Page 22

settling earlier. Thus for the purpose of securing the

ends of justice quashing of FIR becomes necessary,

Section 320 Cr.P.C. would not be a bar to the exercise

of power of quashing. It would however be a different

matter depending upon the facts and circumstances of

each case whether to exercise or not to exercise such a

power.

22. In the instant matter, when the complainant

and her husband are divorced as the complainant-wife

secured an ex-parte decree of divorce, the same could

have weighed with the High Court to consider whether

proceeding initiated prior to the divorce decree was fit

to be pursued in spite of absence of specific allegations

at least against the brother and sister of the

complainant’s husband and whether continuing with

this proceeding could not have amounted to abuse of

the process of the court. The High Court, however,

seems not to have examined these aspects carefully

and have thus side-tracked all these considerations

merely on the ground that the territorial jurisdiction

2

Page 23

could be raised only before the magistrate conducting

the trial.

23. In the instant case, the question of

territorial jurisdiction was just one of the grounds for

quashing the proceedings along with the other grounds

and, therefore, the High Court should have examined

whether the prosecution case was fit to be quashed on

other grounds or not. At this stage, the question also

crops up whether the matter is fit to be remanded to the

High Court to consider all these aspects. But in

matters arising out of a criminal case, fresh

consideration by remanding the same would further

result into a protracted and vexatious proceeding which

is unwarranted as was held by this Court in the case

of Ramesh vs. State of Tamil Nadu (supra) that such

a course of remand would be unnecessary and

inexpedient as there was no need to prolong the

controversy. The facts in this matter on this aspect

was although somewhat different since the complainant

had lodged the complaint after seven years of delay,

yet in the instant matter the factual position remains

2

Page 24

that the complaint as it stands lacks ingredients

constituting the offence under Section 498A and Section

3/4 Dowry Prohibition Act against the appellants who

are sister and brother of the complainant’s husband

and their involvement in the whole incident appears

only by way of a casual inclusion of their names.

Hence, it cannot be overlooked that it would be total

abuse of the process of law if we were to remand the

matter to the High Court to consider whether there

were still any material to hold that the trial should

proceed against them in spite of absence of prima facie

material constituting the offence alleged against them.

24. However, we deem it appropriate to add by

way of caution that we may not be misunderstood so as

to infer that even if there are allegation of overt act

indicating the complicity of the members of the family

named in the FIR in a given case, cognizance would be

unjustified but what we wish to emphasize by

highlighting is that, if the FIR as it stands does not

disclose specific allegation against accused more so

against the co-accused specially in a matter arising out

2

Page 25

of matrimonial bickering, it would be clear abuse of the

legal and judicial process to mechanically send the

named accused in the FIR to undergo the trial unless of

course the FIR discloses specific allegations which

would persuade the court to take cognisance of the

offence alleged against the relatives of the main accused

who are prima facie not found to have indulged in

physical and mental torture of the complainant-wife. It

is the well settled principle laid down in cases too

numerous to mention, that if the FIR did not disclose

the commission of an offence, the court would be

justified in quashing the proceedings preventing the

abuse of the process of law. Simultaneously, the courts

are expected to adopt a cautious approach in matters of

quashing specially in cases of matrimonial dispute

whether the FIR in fact discloses commission of an

offence by the relatives of the principal accused or the

FIR prima facie discloses a case of over-implication by

involving the entire family of the accused at the

instance of the complainant, who is out to settle her

scores arising out of the teething problem or skirmish of

2

Page 26

domestic bickering while settling down in her new

matrimonial surrounding.

25. In the case at hand, when the brother and

unmarried sister of the principal accused Shyamji

Mehrotra approached the High Court for quashing the

proceedings against them, inter-alia, on the ground of

lack of territorial jurisdiction as also on the ground

that no case was made out against them under

Sections 498A,/323/504/506 including Sections 3/4 of

the Dowry Prohibition Act, it was the legal duty of the

High Court to examine whether there were prima facie

material against the appellants so that they could be

directed to undergo the trial, besides the question of

territorial jurisdiction. The High Court seems to have

overlooked all the pleas that were raised and rejected

the petition on the solitary ground of territorial

jurisdiction giving liberty to the appellants to approach

the trial court.

26. The High Court in our considered opinion

appear to have missed that assuming the trial court

had territorial jurisdiction, it was still left to be decided

2

Page 27

whether it was a fit case to send the appellants for trial

when the FIR failed to make out a prima facie case

against them regarding the allegation of inflicting

physical and mental torture to the complainant

demanding dowry from the complainant. Since the High

Court has failed to consider all these aspects, this

Court as already stated hereinbefore, could have

remitted the matter to the High Court to consider

whether a case was made out against the appellants to

proceed against them. But as the contents of the FIR

does not disclose specific allegation against the brother

and sister of the complainant’s husband except casual

reference of their names, it would not be just to direct

them to go through protracted procedure by remanding

for consideration of the matter all over again by the

High Court and make the unmarried sister of the main

accused and his elder brother to suffer the ordeal of a

criminal case pending against them specially when the

FIR does not disclose ingredients of offence under

Sections 498A/323/504/506, IPC and Sections 3/4 of

the Dowry Prohibition Act.

2

Page 28

27. We, therefore, deem it just and legally

appropriate to quash the proceedings initiated against

the appellants Geeta Mehrotra and Ramji Mehrotra as

the FIR does not disclose any material which could be

held to be constituting any offence against these two

appellants. Merely by making a general allegation that

they were also involved in physical and mental torture

of the complainant-respondent No.2 without

mentioning even a single incident against them as also

the fact as to how they could be motivated to demand

dowry when they are only related as brother and sister

of the complainant’s husband, we are pleased to quash

and set aside the criminal proceedings in so far as

these appellants are concerned and consequently the

order passed by the High Court shall stand overruled.

The appeal accordingly is allowed.

……………………………J(T.S. Thakur)

……………………………J(Gyan Sudha Misra)

New Delhi,October 17, 2012

2

M.Cr.C. No. 11962/2012

11.2.2013

Shri Narendra Kumar, Advocate for the petitioners.

Shri V.K.Lakhera, PL for the State.

Shri Neeraj Vegad, Advocate for respondent No. 2.

Heard finally with the consent of the learned counsel for

the parties.

The petitioners have filed this petition invoking the

extraordinary jurisdiction of this Court under Section 482 of the

Cr.P.C. for quashing the proceedings of Criminal Case No.

6509/2012 pending in the Court of JMFC, Bhopal for the offence

punishable under Section 498-A/34 of the IPC and 3/4 of the

Dowry Prohibition Act.

Learned counsel for the petitioners has submitted that

marriage of respondent No. 2 and petitioner No. 1 was

performed on 21.11.2009. After about one year of their

marriage, they were living separately from the family of

petitioner No. 1. On 3.6.2011, respondent No. 2 was admitted in

the hospital for delivery of a child, where she delivered a baby

girl and according to discharge ticket, she remained admitted in

the hospital from 3.6.2011 to 8.6.2011. Before delivery of child,

respondent No. 2 left the house of petitioner No. 1 in his absence

and was living in her parental house. After delivery, petitioner

No. 1 made efforts to bring his wife back, but could not succeed,

therefore, he filed a petition under Section 9 of the Hindu

Marriage Act on 9.7.2012 in the Court of Principal Judge, Family

Court, Bhopal. Notice of the case was served on respondent No.

2 on 11.7.2012. Copy of acknowledgment has been filed by the

petitioners as Annexure A-4. On 16.7.2012, a written complaint

was filed by the complainant/respondent No. 2 against the

petitioners, on the basis of which FIR has been registered vide

Crime No. 70/2012 at Mahila Thana, Bhopal, thereafter challan

has been filed in the trial Court. Counsel has further submitted

that respondent No. 2 lodged the report at P.S. after receiving

the notice of petition filed by petitioner No. 1 under Section 9 of

the Hindu Marriage Act. Before more than one year of lodging

the FIR, petitioner No. 1 and respondent No. 2 were living

separately from other petitioners and other petitioners have no

concern with the alleged offence and they have been falsely

implicated being close relatives of petitioner No. 1. Learned

counsel for the petitioners has also questioned the genuineness

of complaint filed by respondent No. 2 as it bears the signatures

in Hindi while on other documents, the signatures are made in

English.

Learned counsel for respondent No. 2 has opposed the

petition and submitted that the allegation of false implication of

the petitioners is baseless, therefore, this petition is liable to be

dismissed.

Counsel has placed reliance on the judgment of this Court

in Dashrath P. Bundela and others Vs. State of M.P. and

another – I.L.R. [2011] MP 2923 , in which it was not disputed

that respondent No. 2 Gayatri was living separately since one

year as mentioned by herself in the FIR and she was having

three children. However, this Court observed that there is no

specific allegation that when demand was made, when she was

beaten, by whom, no specific year, month, date or time was

mentioned. The report was lodged on 11.3.2006, just after the

filing of the divorce petition against respondent No. 2 and date

of appearance on the aforesaid case i.e. 10.3.2006. It has been

held that no prima facie case is made out against the petitioners,

who are near relatives of husband of respondent No. 2 and

permitting to continue such criminal proceedings, would be

abuse of process of law and prosecution against the petitioners

was quashed. In the instant case also no specific allegation has

been made against petitioner Nos. 2 to 7. Before delivery,

respondent No. 2 left the house of petitioner No. 1 without

informing him. There is no specific allegation when she was

beaten by any of the petitioners. It is general experience now

that relatives of husband are falsely implicated by the wife just to

take revenge of ill treatment by the husband.

Resultantly, in the light of the decision of this Court in

Dashrath P. Bundela (supra), the petition is allowed in part. The

proceedings of Criminal Case No. 6509/2012 pending in the

Court of JMFC, Bhopal for the offence punishable under Section

498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act so far

as it relates to petitioner Nos. 2 to 7, are quashed. However, the

trial Court is directed to proceed with the prosecution with

respect to petitioner No. 1 Pradeep Sahu.

(A.K. Sharma) Judge

PB

Bombay

Hig

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1wp2999-13.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.2999 OF 2013

Abhishek Kumar Jain .. Petitioner Versus

Mrs.Swastika Abhishek Jain & Anr. .. Respondents

Mrs.Manjula Rao i/b. Manish Rai for petitioner Mrs.M.H.Mhatre, APP for State.

CORAM : S. C. DHARMADHIKARI & G.S. PATEL, JJ

Date : 5th September 2013.

P.C.:

1] Heard Mrs.Rao for petitioner. Perused the petition and

the annexures thereto. Mrs.Rao places reliance upon the

decision of the Supreme Court in the case of Navinchandra

Majithia Vs. State of Maharashtra, reported in A.I.R. 2000 S.C.

2966 to urge that the Supreme Court has held that this court

can exercise its jurisdiction under Article 226 of the Constitution

of India even if the complaint is filed in the State of Nagaland

on the footing that the cause of action has arisen within its

territorial jurisdiction.

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2] The cause of action in this case and which is arisen here

is that the petitioner husband and the respondent No.1

complainant settled down in Mumbai after their marriage. On

account of differences and disputes between them, the petition

No.A-149 of 2013 was presented on 11th January 2013 before

the Family Court, Bandra. The address of respondent No.1

was shown as residing at D-45 Shubham Enclave, Pachim

Vihar, New Delhi and working at Tata Consultancy Services

4000 Regent Blvd., Irving. Texas, U.S.A.. She, therefore, has

never resided as claimed by her and along with her father in

the State of Nagaland and particularly at Dimapur. Therefore,

the Chief Judicial Magistrate, Dimapur, Nagaland should not

have entertained any complaint and issued a summons to the

petitioner to appear, who is now based in Mumbai because of

job requirement.

3] Mrs.Rao submits that the intent was to cause undue

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harassment and immense inconvenience to the petitioner so as

to force him to come to Nagaland. She submits that when the

respondent No.1 wife was served with the proceedings in the

family court, Bandra, the learned Judge who passed an order

on the petition dtd. 30th May 2013 has noted that the wife has

received a packet containing the proceedings but has not

responded. She had engaged an Advocate and who did not

contest the matter. However, the vakalatnama was filed and in

such circumstances, prima facie, she has submitted herself to

the jurisdiction of the family court, Bandra.

4] Having noted all these facts and circumstances and the

law laid down by the Supreme Court in the case of Majithia

(supra), we are of the prima facie opinion that arguable

questions have been raised and, therefore, the petitioner

deserves ad-interim protection. Hence, following order.

5] Issue notice to respondents returnable after four weeks.

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Hamdust allowed. Liberty to serve privately granted. Learned

APP waives service for respondent No.3. For a period of four

weeks from today, there will be an ad-interim order in terms of

prayer clause (b) of the petition, which is as under:-

“(b) Pending the hearing and final disposal of this

petition, this Hon'ble Court be pleased to stay the

summons dated 8.2.2013 and the warrant dated

1.08.2013 in the Complaint Case No.1 of 2013

pending in the Court of Chief Judicial Magistrate,

Dimapur, Nagaland against the petitioner.”

(S. C. DHARMADHIKARI, J)

(G.S. PATEL, J)

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Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1022 OF 2008

Bhola Ram …..Appellant

Versus

State of Punjab …..Respondent

J U D G M E N T

Madan B. Lokur, J.

1. The question for consideration is whether the appellant

Bhola Ram was rightly convicted by both the Trial Court and

the High Court for having caused the dowry death of Janki

Devi, an offence punishable under Section 304-B and Section

498-A of the Indian Penal Code (IPC). In our opinion, Bhola

Ram deserves an acquittal since there is no evidence

inculpating him.

The facts:

Crl. Appeal No.1022 of 2008 Page 1 of 17

Page 2

2. Darshan Ram married Janki Devi on 30th June, 1986

after which they resided in Darshan Ram’s house in village

Mehma Sarja. The couple has a female child.

3. At the time of their marriage, Janki Devi’s family gave

dowry within their means to Darshan Ram and his family.

But according to the prosecution, his brothers Parshottam

Ram and Bhola Ram (the appellant) and his sister Krishna

Devi and mother Vidya Devi demanded more dowry from

time to time.

4. Janki Devi’s family was unable to fulfill the additional

demands for dowry and, according to the prosecution, she

was humiliated and cruelly treated by Darshan Ram’s family

for their incapacity. Being unable to face the harassment,

cruelty and humiliation meted out by Darshan Ram’s family,

Janki Devi consumed poison and thereby committed suicide

on 6th September, 1989.

5. About one and a half months before her death, a

demand for Rs. 10,000/- was made by Janki Devi’s in-laws for

the purchase of a car. Janki Devi’s father PW-2 Nath Ram

borrowed this amount from PW-1 Nirbhai Singh for meeting

Crl. Appeal No.1022 of 2008 Page 2 of 17

Page 3

the dowry demand. The amount was then handed over by

him to Darshan Ram in the presence of other members of his

family.

6. Unfortunately, Darshan Ram’s family was not fully

satisfied with this payment. According to the prosecution,

about a fortnight before her death, Janki Devi came to her

father and told him that there was a further demand for an

amount of Rs. 30,000/- for purchasing some articles for a

service station proposed to be run by Darshan Ram and

Bhola Ram. Thereupon, Nath Ram accompanied Janki Devi to

her matrimonial home and informed Darshan Ram and the

other accused that he would not be able to pay this amount.

On this, Darshan Ram’s family informed him that he should

pay the amount failing which he could take Janki Devi back

with him. Nath Ram requested the family not to insist on the

demand and left Janki Devi at her matrimonial home in

village Mehma Sarja.

7. On 3rd September, 1989 PW-3 Des Raj, the brother of

Nath Ram’s wife, informed Nath Ram about Janki Devi being

ill-treated on account of Nath Ram’s inability to meet the

Crl. Appeal No.1022 of 2008 Page 3 of 17

Page 4

additional demand for dowry. Again on 5th September, 1989

Des Raj informed Nath Ram that Janki Devi wanted to meet

Nath Ram and was weeping in his presence.

8. On receiving this information, Nath Ram went to village

Mehma Sarja along with his brother PW-4 Sukhdev Ram.

When they reached the bus stand in the village they were

informed that Janki Devi had consumed poison and had

taken her life, having suffered more than enough cruelty at

the hands of the family of Darshan Ram. Nath Ram and

Sukhdev Ram then proceeded to Janki Devi’s matrimonial

home and found her lying there but no one from Darshan

Ram’s family was present in the matrimonial home.

9. Nath Ram then lodged a First Information Report (FIR)

in Police Station Nehianwala. On the basis of the FIR PW-7

Manminder Singh prepared an inquest report in the presence

of Sukhdev Ram. On the next day, that is 7th September,

1989 PW-5 Dr. Tirath Goyal performed an autopsy on the

dead body of Janki Devi. He noted that froth was coming out

from her nose and mouth. Her viscera were sent to the

Chemical Examiner who reported that Janki Devi had died

Crl. Appeal No.1022 of 2008 Page 4 of 17

Page 5

due to having consumed an organo phosphorus insecticide

which was poisonous and sufficient to cause death in the

ordinary course of nature.

10. On the basis of the above details and further

investigations, a charge sheet was filed against Darshan

Ram and four members of his family (including Bhola Ram)

under Section 304-B and Section 498-A of the IPC for causing

the dowry death of Janki Devi.

11. The accused pleaded not guilty and were tried by the

Sessions Judge at Bathinda.

Decision of the Trial Judge

12. In his Judgment and Order dated 3rd December, 1991

the Sessions Judge at Bathinda in Sessions Case No. 35 of

15th May, 1990 held that Section 304-B of the IPC required

the prosecution to establish four ingredients, namely: (i) the

death of a woman is caused by any burns or bodily injury or

occurs otherwise than under normal circumstances, (ii) such

death should have occurred within seven years of her

marriage, (iii) soon before her death she was subjected to

cruelty or harassment by her husband or any relative of her

Crl. Appeal No.1022 of 2008 Page 5 of 17

Page 6

husband, and (iv) such cruelty or harassment should be for,

or in connection with, any demand for dowry. In the present

case, all four ingredients were established by the

prosecution.

13. It was further held that Darshan Ram, Bhola Ram and

their mother Vidya Devi were living together in the same

house at village Mehma Sarja and that they had demanded

additional dowry from Janki Devi’s family. However,

Parshottam Ram and Krishna Devi were living separately and

they could not be said to have caused the dowry death of

Janki Devi. Consequently, Parshottam Ram and Krishna Devi

were found not guilty of the charges framed against them

and they were acquitted. However, the Sessions Judge

found that Darshan Ram, Bhola Ram and Vidya Devi, by their

attitude and behaviour, caused Janki Devi to take the

extreme step of taking her own life. These three accused

were accordingly convicted for offences punishable under

Section 304-B and Section 498-A of the IPC and sentenced to

undergo rigorous imprisonment for a period of 7 years with

fine for the offence under Section 304-B of the IPC and 2

Crl. Appeal No.1022 of 2008 Page 6 of 17

Page 7

years rigorous imprisonment for the offence under Section

498-A of the IPC.

14. The accused preferred two appeals (one by Vidya Devi

and the other by Darshan Ram and Bhola Ram) against their

conviction and sentence in the High Court of Punjab and

Haryana.

Decision of the High Court

15. In so far as Vidya Devi is concerned, her conviction was

upheld by the High Court and she preferred a Special Leave

Petition in this Court. She was granted special leave to

appeal but during the pendency of her appeal she passed

away and accordingly her appeal was disposed of.

16. Darshan Ram and Bhola Ram preferred a joint appeal in

the High Court being Criminal Appeal No. 25 SB of 1992.

This appeal was heard by a learned Single Judge who by his

Judgment and Order dated 5th July, 2004 upheld their

conviction and sentence.

17. The High Court held that Vidya Devi, Darshan Ram and

Bhola Ram were all residing together in the same house at

village Mehma Sarja. It was held that the amount of Rs.

Crl. Appeal No.1022 of 2008 Page 7 of 17

Page 8

10,000/- initially taken from Nath Ram was used to purchase

a car for Darshan Ram and that car was being plied as a taxi

by him. It was also held that a service station was at the

initial stages of being established by Darshan Ram and Bhola

Ram and that they needed Rs. 30,000/- for expenses in

connection with that venture. Since all three convicts were

residing together at village Mehma Sarja, they were equally

responsible for demanding additional dowry from Janki Devi

and her father and thereby compelling her to take her life.

18. It appears that Darshan Ram has not challenged the

Judgment and Order of the learned Single Judge and his

conviction and sentence have attained finality.

19. We are, therefore, only concerned with the appeal filed

by Bhola Ram who challenged his conviction and sentence in

this Court and was granted special leave to appeal on 8th

July, 2008. He was also granted bail by this Court on the

same day and we are told that even today, he is on bail.

Discussion

20. Learned counsel for Bhola Ram submitted that in fact

there is no specific allegation against him. The statements of

Crl. Appeal No.1022 of 2008 Page 8 of 17

Page 9

all the witnesses are omnibus or generic in nature and

Darshan Ram and other members of his family have been

generally accused of having demanded additional dowry

from Janki Devi’s family. It is submitted that in the absence

of any particular allegation, demands for dowry made by

Darshan Ram cannot be attributed to Bhola Ram and under

these circumstances, there is really no evidence to uphold

his conviction.

21. On the other hand, it was submitted by learned counsel

for the State that the three convicts were jointly and directly

concerned with the demands of additional dowry made on

Janki Devi and her family. Consequently, it is not possible to

segregate the case of Bhola Ram from that of the other two

convicts.

22. We are unable to accept the contention of learned

counsel for the State. The Sessions Judge found that there

was no evidence that Parshottam Ram and Krishna Devi

made demands for additional dowry from Nath Ram.

Accordingly, they were acquitted at the trial stage itself.

Therefore, the segregation process, based on the evidence

Crl. Appeal No.1022 of 2008 Page 9 of 17

Page 10

on record, had begun at the trial stage. This is clearly

because in a dowry death, some actors play an active role

while others play a passive role. Consequntly, to sustain the

conviction of Bhola Ram, there must be some suggestive

evidence and not generic evidence implicating him in the

demand for additional dowry from Nath Ram.

23. As observed by the Law Commission of India (LCI) in its

91st Report of 10th August, 1983 (in paragraph 1.8) the truth

may not come in a dowry death case due to the sequestered

nature of the offence. This is what the LCI said:

“Those who have studied crime and its incidence know that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family.”

24. This passage also clearly brings out that in a case of a

dowry death, every member of the family may not be fully

Crl. Appeal No.1022 of 2008 Page 10 of 17

Page 11

and equally guilty. The degree of involvement may differ – as

an associate, as a silent witness, as a conniving witness and

so on.

25. So far as this case is concerned, we have gone through

the evidence of all the witnesses on record and while there is

no doubt that Janki Devi died an unnatural death within a

few years of her marriage to Darshan Ram, no definite

allegation has been made by any of the witnesses including

Nath Ram or anybody from his family that Bhola Ram had

demanded any additional dowry from him or anybody in his

family or had treated Janki Devi with cruelty or in a

humiliating manner so as to make him complicit in the dowry

death.

26. In Kans Raj v. State of Punjab, (2000) 5 SCC 2007

the ingredients of an offence under Section 304-B of the IPC

were held to be as follows:

“In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

Crl. Appeal No.1022 of 2008 Page 11 of 17

Page 12

(b) such death should have occurred within 7 years of her marriage;(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;(d) such cruelty or harassment should be for or in connection with the demand of dowry; and(e) to such cruelty or harassment the deceased should have been subjected soon before her death.”

27. It is true that there was a demand of dowry of Rs.

10,000/- which was paid by Nath Ram by borrowing this

amount from Nirbhai Singh, but that demand was for the

purchase of a car for use by Darshan Ram. Under the

circumstances, it can safely be presumed that Darshan Ram

made the demand for additional dowry for his benefit. Bhola

Ram may have been a silent or a passively conniving

participant, but there is nothing on record to suggest that he

had either actively made such a demand or that the

demanded amount was sought to be utilized for his benefit

either directly or indirectly.

28. Similarly, the evidence on record does not show that

the demand of another amount of Rs.30,000/- from Nath

Ram just a fortnight before Janki Devi took her life was made

Crl. Appeal No.1022 of 2008 Page 12 of 17

Page 13

by Bhola Ram to purchase articles for the service station

being set up by him and Darshan Ram at village Nehianwala.

At best, it could be said that this amount was intended for

use for the joint business venture of Bhola Ram and Darshan

Ram. Given that the earlier demand for additional dowry was

made for the benefit of Darshan Ram, it is more than likely

that this demand was also made by him. In any event, there

is again nothing to suggest that Bhola Ram was in any

manner actively concerned in making the demand directly or

indirectly from Nath Ram.

29. Consequently, we do not find any evidence to suggest

any active complicity of Bhola Ram in demanding any

additional dowry from Nath Ram either for himself or for

Darshan Ram or his proposed business venture.

30. Merely making a demand for dowry is not enough to

bring about a conviction under Section 304-B of the IPC. As

held in Kans Raj a dowry death victim should also have

been treated with cruelty or harassed for dowry either by her

husband or a relative. In this case, even assuming the silent

or conniving participation of Bhola Ram in the demands for

Crl. Appeal No.1022 of 2008 Page 13 of 17

Page 14

dowry, there is absolutely no evidence on record to suggest

that he actively or passively treated Janki Devi with cruelty

or harassed her in connection with, or for, dowry. The High

Court has, unfortunately, not adverted to this ingredient of

an offence punishable under Section 304-B of the IPC or

even considered it.

31. The High Court has relied on the presumption available

under Section 113-B of the Evidence Act, 1872 to conclude

that Janki Devi’s death was a dowry death. However, this

presumption cannot be stretched to implicate all and sundry

in Darshan Ram’s family in demanding additional dowry from

Janki Devi’s family and harassing her and treating her with

such cruelty that she had to resort to taking her life. As

mentioned above, there is a possibility of members of the

family having varying roles, active and passive. Depending

on the nature and extent of involvement, a person may be

punished for an offence under Section 498-A or Section 304-

B or Section 306 of the IPC or Section 4 of the Dowry

Prohibition Act, 1961. A dowry death will not ipso facto suck

Crl. Appeal No.1022 of 2008 Page 14 of 17

Page 15

the husband with all his relatives into the net of Section 304-

B of the IPC.

32. It was contended by learned counsel for the State that

Darshan Ram, Bhola Ram and Vidya Devi were living

together at village Mehma Sarja and so their active

involvement in the dowry death cannot be ruled out. While

these persons may be staying together, it does not lead to

any positive conclusion that each one of them was actively

involved in demanding additional dowry from Janki Devi and

also behaving in a cruel or humiliating manner towards her

resulting in her consuming poison to end her life. In cases of

this nature which attract a reverse onus of proof, the least

that is expected of the prosecution to bring home a charge

under Section 304-B of the IPC is to adduce some evidence

to suggestively implicate a relative, in this case, to

suggestively implicate Bhola Ram both in the demands for

additional dowry and harassment or cruelty. Such evidence

is not available on record and so the mere fact that all the

members of Darshan Ram’s family were living together at

village Mehma Sarja, would not alter the factual situation.

Crl. Appeal No.1022 of 2008 Page 15 of 17

Page 16

33. Consequently, in the absence of the prosecution

proving the ingredients of Section 304-B of the IPC, the initial

burden cast on it has not been discharged. Therefore, the

presumption under Section 113-B of the Evidence Act cannot

be attracted.

Conclusion

34. Based on the evidence available on record (or the lack

of it) we have no doubt that the appeal filed by Bhola Ram

ought to be allowed. It is accordingly allowed and he is

acquitted of the charges against him under Section 304-B

and Section 498-A of the IPC in relation to the death of Janki

Devi.

35. The appeal is allowed and the conviction and sentence

of Bhola Ram is set aside.

Post script

36. What is a little disturbing about this case is that it is

illustrative of the slow movement of the wheels of criminal

justice delivery. The dowry death took place on 6 th

September, 1989. The Trial Court pronounced its decision on

3rd December, 1991 within two years of Janki Devi’s death.

Crl. Appeal No.1022 of 2008 Page 16 of 17

Page 17

The first appeal was decided by the High Court on 5th July,

2004 which is more than twelve years later. A petition for

special leave to appeal was filed in this Court in 2004 and

leave was granted only after a gap of four years in 2008.

Thereafter this appeal was listed for hearing as if it is an

appeal of 2008 rather than a petition of 2004 thereby wiping

away four years of its age in this Court. And even then, it has

taken another five years for its disposal, making a total of

nine years spent in this Court. It is high time those of us who

are judges of this Court and decision makers also become

policy makers.

….…….……………………..J. (Ranjana Prakash Desai)

….…….……………………..J. (Madan B. Lokur)

New Delhi;November 11, 2013

Crl. Appeal No.1022 of 2008 Page 17 of 17

Crl. A. No.360 of 2010 Page 1 of 16

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: 03.03.2014

+ CRL.A. 360 of 2010

VINEET VATS ..... Appellant

Through: Mr. Raman Sahney, Adv.

versus

STATE OF NCT OF DELHI ..... Respondent

Through: Mr. Feroz Khan Ghazi, APP.

CORAM:

HON'BLE MR. JUSTICE V.K.JAIN

JUDGMENT

V.K.JAIN, J. (Oral)

In the night intervening 6/7.2.2000, deceased Vimmi was brought

by the appellant, who is her husband, to Sodhi Nursing Home, she

having consumed insecticide. Vimmi died in the aforesaid nursing

home. Since, Vimmi died within seven (7) years of marriage, the

concerned SDM was informed, who reached the spot and recorded the

statement of Shri Ram Kumar Sharma, father of the deceased. In the

aforesaid statement, Shri Ram Kumar Sharma inter alia stated that his

daughter Vimmi @ Vimla was married to the appellant Vineeet Vats on

9.11.1995. He further stated that on being informed by his son-in-law at

about 5:00 a.m., he reached Sodhi Nursing Home where his daughter

Crl. A. No.360 of 2010 Page 2 of 16

was found dead. He alleged that Vimmi had been murdered by her

father-in-law, Gyan Chand; mother-in-law, Kamla; and brother-in-law,

Sunit @ Kalu. He also alleged that earlier the aforesaid three persons

used to beat his daughter and harass her in connection with dowry. He

desired legal action against the aforesaid three persons as well as against

the appellant Vineet though there was no allegation of cruelty or

maltreatment against him.

2. On 8.2.2000, the SDM recorded the statement of Smt. Santosh

Sharma, mother of the deceased. In the aforesaid statement she inter

alia stated that after April, 1997, her daughter and son-in-law were

turned out of the matrimonial home of her daughter, by her in-laws, who

asked them to bring Rs.3.00 lakh from the parents of Vimmi.

Thereafter, both of them came to her and she got them a house on rent in

Ashok Vihar. The pagri (premium) for taking the aforesaid house on

rent was paid by her. She alleged that even thereafter the brother, etc. of

her son-in-law used to beat her daughter. She claimed that they kept on

paying money to her son-in-law who thereafter said that he needed a car

for his business, whereupon they spent Rs.2.00 lakh for purchase of a

car for him. She further stated that her son-in-law then sold the car and

deposited the sale proceeds in FDR. She thereafter got them another

Crl. A. No.360 of 2010 Page 3 of 16

premises on rent in Guru Harkishan Nagar, Pashchim Vihar. She also

alleged that they used to meet the expenditure of her daughter and son-

in-law.

3. Smt. Santosh Sharma alleged that her younger daughter Usha got

married on 9.12.1999, seeing which the appellant complained that lesser

expenditure had been incurred on his marriage and wanted a similar

amount to be given to him. She further alleged that Vimmi came to

meet her on 13.12.1999, and she gave Rs.20,000/- to her, promising to

pay the rest of the amount at a later date. She further alleged that on

6.2.2000, she received a telephone call from Vimmi, informing her that

they were going to change the house. On 07.02.2000 at 5:00 a.m. they

received a telephone call from the appellant who started weeping on the

telephone and called them. When they reached the nursing home they

came to know that Vimmi had already expired. She also alleged that

when they reached the hospital, the appellant confessed that he had

poisoned Vimmi and expressed willingness to be punished for his act.

She also alleged that the appellant had apologized to the dead body of

Vimmi. She specifically alleged that Vimmi had been poisoned by her

son-in-law and his friends.

Crl. A. No.360 of 2010 Page 4 of 16

4. On 9.2.2000, the learned SDM recorded the statement of Shri

Radhey Shyam, brother of deceased Vimmi. In his statement to the

SDM, he inter alia stated that while agreeing to live separately from his

parents, the appellant had put forward a condition that his entire

expenditure would be incurred by his in-laws and for the future of his

sister they had accepted the said condition, till the time the appellant

was able to earn of his own. He also alleged that Kalu @ Sunit, brother-

in-law of Vimmi had one day, poured petrol in their house and set it on

fire and the matter was reported to the police and thereafter also he

continued to threaten them. He claimed that on 13.12.1999, Vimmi

came alone to their house and informed her mother that Vineet wanted

that much money as was spent on the wedding of Usha. His mother

gave Rs.20,000/- to Vimmi. Even thereafter Vimmi came to them a

number of times and complained that the appellant was asking for

money to be arranged and was not willing to give more time for this

purpose. He also claimed that when they reached hospital on 7.2.2000,

the appellant Vineet confession to having poisoned Vimmi.

5. On completion of investigation charge sheet under Section 498A

and 304B of IPC was filed against as many as seven (7) persons

including the appellant Vineet. However, other accused were

Crl. A. No.360 of 2010 Page 5 of 16

discharged by the learned trial court vide order dated 2.12.2000. The

learned counsel for the appellant submits that the order discharging the

other accused persons was challenged before this Court but the

challenge did not succeed.

6. Smt. Santosh Sharma, mother of the deceased came in the witness

box as PW2 and inter alia stated that mother-in-law and father-in-law of

Vimmi had asked the appellant to bring Rs.3.00 lakh from his in-laws

and had turned her daughter and son-in-law out of the house. She then

arranged a rented accommodation in Ashok Vihar and paid Rs.25,000/-

as pagri. She further alleged that the brother-in-law of Vimmi and other

relatives continued to harass her even at the rented house in Ashok

Vihar by beating her and insisting that she should bring more money.

She also alleged that they used to receive telephone calls from the

father-in-law and mother-in-law of the deceased who alleged that

Vimmi and her husband had taken away Rs.25.00 lakh from their house.

The witness claimed that the appellant told them that he cannot

pull without a car and thereupon they gave Rs.2.00 lakh to him for

purchasing a car, which he actually purchased. However, after 2-3

months the car was sold by him and they were informed that the sale

proceeds had been invested in an FDR.

Crl. A. No.360 of 2010 Page 6 of 16

She further stated that on 9.12.1999, her younger daughter Usha

got married and they spent more money in that marriage compared to

the money that was spent in the marriage of Vimmi. Thereafter the

appellant Vineet started harassing her daughter and asked her to bring

equal amount from her parents. Vimmi came weeping and told them of

this demand whereupon she gave Rs.20,000/- to her, promising to give

the rest of the money later on.

7. It would, thus, be seen that according to this witness, the appellant

did not harass the deceased in any manner and did not subject her to

cruelty prior to the wedding of her younger daughter. Though, it has

come in her deposition that the appellant had demanded a car and the

demand was satisfied by giving Rs.2.00 lakh to him, she does not claim

that her daughter Vimmi was subjected to any kind of cruelty or

harassment by the appellant in connection with the demand of a car.

Mere demand of a car, without subjecting the deceased to any cruelty or

without harassing her in any manner in connection with the said demand

does not constitute cruelty within the meaning of Section 498A of IPC

particularly when it was not linked to the marriage and was sought for

the purpose of convenience alone though it may possibly constitute an

offence under the Dowry Prohibition Act, 1961.

Crl. A. No.360 of 2010 Page 7 of 16

8. The main allegation against the appellant is that noticing the

expenditure on the wedding of the younger sister of Vimmi, he wanted

an equal amount to be given to him. The aforesaid demand, according

to the witness, was conveyed through her daughter. However, there is

no allegation of the appellant having subjected the deceased Vimmi to

any kind of cruelty or harassment in connection with the aforesaid

demand of money. As noted earlier mere demand of money unless it is

coupled by some kind of cruelty or harassment of the deceased would

not constitute the cruelty as defined in Section 498A of the Indian Penal

Code. The complainant when she came in the witness box alleged that

Vineet started harassing Vimmi and asked her to bring money

equivalent to the money spent on the marriage of Usha, but she did not

specify in what manner Vimmi was harassed by the appellant. In her

statement to the SDM this witness did not claim any kind of harassment

by the appellant in connection with the demand of cash equivalent to the

expenditure incurred by them in the wedding of Usha, though she did

allege the aforesaid demand. Therefore, the vague allegation of

harassment during her deposition in the court, without indicating in what

manner Vimmi was harassed, coupled with her having not made any

such allegation in the statement to the SDM, would indicate that the

Crl. A. No.360 of 2010 Page 8 of 16

aforesaid allegation of general nature is only an afterthought. In fact,

the entire focus of the allegaionts made before the SDM was that the

deceased had been murdered by the appellant by administering poison to

her and when they reached the hospital, the appellant confessed to the

aforesaid crime. However, neither the appellant was charged under

Section 302 of IPC nor is there any evidence which would show that it

was he who had administered insecticide to the deceased.

9. The father of the deceased Vimmi came in the witness box as

PW3. During his deposition in the court he only alleged that her

daughter used to tell him that her in-laws used to harass her, raise

demand of dowry and beat her. He specifically named the father-in-law,

mother-in-law, husband and younger brother of the appellant alleging

demand of dowry and harassment of the deceased by them. However,

he did not specify when and in what manner, deceased Vimmi was

harassed by the appellant. It would be appropriate to note here that in

his statement before the SDM Ex.PW3/A this witness had not made any

allegation whatsoever of any demand of dowry or harassment of the

deceased at the hand of the appellant Vineet. In the aforesaid statement

he had blamed only the father-in-law, mother-in-law and brother-in-law

of the deceased and had alleged that the aforesaid persons used to harass

Crl. A. No.360 of 2010 Page 9 of 16

her and had killed her pursuant to a pre-planning. Though he wanted

legal action against the appellant as well not a single allegation

constituting cruelty with or without harassment of Vimmi was made by

him against the appellant.

10. The brother of the deceased, Shri Radhey Shyam came in the

witness box as PW5. He inter alia stated that on 13.12.1999, Vimmi

came to their house alone and informed her mother that the appellant

Vineet wanted money equal to the expenditure incurred by them on the

wedding of Usha and that a sum of Rs.20,000/- was paid by his mother

to the appellant with an assurance to pay more. He further alleged that

after the aforesaid incident Vimmi visited them several times and

wanted money as desired by the appellant Vineet. Thus, according to

this witness, there was repeated demand of cash by the appellant, after

5.12.1999.

11. The sister-in-law of the deceased, namely Meenu Sharma, came

in the witness box as PW4. She inter alia stated that Vineet and coaxed

her (deceased) for a Maruti Car from his in-laws, which they purchased

and gave to Vineet. She further stated that after shifting to Guru

Harkishan Nagar house, Vimmi used to come to them and tell them that

her in-laws, and her husband used to assemble at the said house and

Crl. A. No.360 of 2010 Page 10 of 16

threat/harass her and pressurize her to bring Rs.3.00 lakh and withdraw

the criminal cases which Vimmi had lodged against them. She further

stated that in the last week of November, 1999, Vimmi came to their

house and told her that the previous night her parents-in-law, brother-in-

law, maternal uncle of Vineet, his aunt, Satyawati and Purender had

come to their house in Guru Harkishan Nagar tortured her, and given her

beatings so that she would bring Rs.3.00 lakh and withdraw the criminal

cases. However, the aforesaid allegations do not find any mention in the

depositions of the parents or the brother of the deceased. The aforesaid

part of the deposition of this witness, to my mind, cannot be believed for

the reason that it finds no corroboration from the parents and brother of

the deceased. Had Vimmi made such a complaint to this witness, she

would have immediately brought it to the notice of her mother-in-law

and her husband. It would be difficult to accept that the aforesaid

witness would not bring such a serious incident involving her sister-in-

law to the notice of the parents and brother of the aggrieved person. The

aforesaid witness was examined by the Investigating Officer on

13.2.2000, i.e., six (6) days after her death, and there is no explanation

from the prosecution for not examining her soon after she had died. In

any case, I am not inclined to accept that the witness would not have

Crl. A. No.360 of 2010 Page 11 of 16

brought the incident to the notice of her parents and brother even after

the death of Vimmi. Had she done that her parents and brother would

have stated so in their statement to the SDM as well as during their

deposition in the court.

12. The following allegations against the appellant primarily emerge

from a careful analysis of the testimony of the witnesses as discussed

hereinbefore:

a. The appellant demanded a car from his in-laws and they either

gave Rs.2.00 lakh in cash to him for the purpose or they purchased a car

and gave it to him.

b. Seeing the expenditure incurred in the wedding of his sister-in-

law, Usha, the appellant demanded an amount equal to the expenditure

incurred in the wedding of Usha and the said demand was conveyed to

the in-laws through deceased Vimmi.

c. According to PW5 Radhey Shyam, the aforesaid demand of cash

equivalent to the expenditure incurred in the wedding of Usha was not

only made once but repeatedly.

13. As regards purchase of car, the case of the appellant is that it was

an old car which he had purchased through a car dealer. The said car

dealer has been examined as DW7. In his deposition DW7 Satish

Crl. A. No.360 of 2010 Page 12 of 16

Chander inter alia stated that in the year 1997, the appellant Vineet

purchased a Maruti car from him through delivery receipt Ex.DW7/A

for a consideration of Rs.1.25 lakh. He also stated that Vineet had paid

Rs.45,000/- to Rs.50,000/- by way of a cheque and rest of the amount

was financed through V.K. Mohan Leasing & Finance, Karol Bagh, a

finance company which has since closed. He also stated that most

probably the cheque was paid by the appellant from his own account.

On the other hand, the prosecution has not given any documentary proof

of either the car having been purchased by the parents of the deceased or

a sum of Rs.2.00 lakh having been paid to the appellant for the purpose.

The father of the deceased Shri Ram Kumar stated in his deposition that

his salary in the year 2000 was Rs.15,500/- per month. He also claimed

that he was earning about Rs.1.00 lakh to Rs.1.25 lakh per annum from

the agricultural land he had in the village. Thus, the total income of this

witness at the relevant time would not be more than about Rs.25,000/-

per month even if his statement in this regard is taken as wholly correct.

It is difficult to accept that a sum of Rs.2.00 lakh would be available in

cash with a person of such limited means in the year 2000. This was not

the case of the witness that the aforesaid amount of Rs.2.00 lakh was

withdrawn by him from some bank account nor has the prosecution

Crl. A. No.360 of 2010 Page 13 of 16

produced any documentary evidence of the father of the deceased

having that much money with him in cash. A salaried person having

limited means such as PW3 Ram Kumar Sharma would not like to keep

a huge amount of Rs.2.00 lakh in the year 2000 in his house. He would

rather prefer to invest the said amount either by keeping it in a bank or

some other financial instrument so that money does not remain idle and

he is able to get some return on it by depositing it in a bank or investing

in some other financial instrument. Considering the deposition of DW7,

coupled with the above-referred facts & circumstances, it would be

difficult to say that the prosecution has been able to prove beyond

reasonable doubt that a sum of Rs.2.00 lakh was paid to the appellant for

purchasing a vehicle. As noted earlier according to one of the witnesses

Smt. Meenu Sharma the car was purchased by them and given to the

appellant. However, the name of the seller of the car has not been given

by any of the witnesses nor has the seller been examined. In these

circumstances, it would be difficult to accept that the in-laws of the

appellant purchased the car and handed it over to the appellant.

14. Coming to the alleged demand of cash, equivalent to the

expenditure incurred by the parents of the deceased on the wedding of

her younger sister, Usha, it would be seen from Ex.PW3/A the statement

Crl. A. No.360 of 2010 Page 14 of 16

made by Shri Ram Kumar Sharma, father of the deceased to the SDM

on 7.2.2000, that no such demand was alleged in the aforesaid

statement. The aforesaid demand surfaced only in the statement of Smt.

Santosh Sharma recorded by the SDM on the next day. However, none

of the witnesses told the court as to how much was the expenditure

incurred in the wedding of Usha or how much precisely was the money

demanded by the appellant. This is not the case of the prosecution that

the aforesaid demand was not in the knowledge of the father of the

deceased. Therefore, had there been any such demand, Shri Ram

Kumar Sharma would certainly have stated in his statement to the SDM

recorded on 7.2.2000. Even in his deposition in the Court, Shri Ram

Kumar Sharma, father of the deceased did not refer to the alleged

demand of money equivalent to the expenditure incurred by him on the

wedding of his younger daughter. Considering that no such allegation

was made by Shri Ram Kumar Sharma to the SDM, it would not be safe

to rely upon the deposition of other witnesses in this regard because

primarily it is the father of the deceased who could have arranged the

money alleged to have been demanded by the appellant and, therefore,

he could not have been unaware of any such demand.

Crl. A. No.360 of 2010 Page 15 of 16

15. It is an admitted case of the prosecution that the appellant

attempted to commit suicide on 9.2.2000 and a case under Section 309

of IPC was registered against him. PW8 Constable Sunder Lal has

admitted this in his deposition when he stated that the appellant was in

hospital because of case under Section 309 of IPC. The aforesaid

conduct of the appellant is also an indicator of his being innocent, the

inference being that finding false accusations against him in the

statement of his mother-in-law and brother-in-law, he attempted to take

his own life by committing suicide.

16. A perusal of the seizure memo Ex.PW6/B would show that when

the Investigating Officer went to the spot he found amongst other

articles a piece of newspaper which was burnt from corners and a saree

which had been partially burnt. The case of the appellant, as spelt out in

his statement under Section 313 of Cr.P.C. is that in the night

intervening 6/7.2.2000, deceased Vimmi was pressurizing him to change

the house by the very next day and when he expressed his inability to do

so she, in a fit of anger put fire on the articles lying in the room,

whereupon he left the house saying that he would prefer to live on

footpath and when he returned, he found Vimmi lying on the bed and

having consumed insecticide. It has also come in evidence that Vimmi

Crl. A. No.360 of 2010 Page 16 of 16

had told her parents in the night of 6.2.2000, that they would be shifting

to a new house. The explanation given by the appellant, therefore, finds

some support from the recovery of the burnt piece of newspaper and

burnt saree from the spot and the information which the deceased had

given to her parents in the night of 6.2.2000.

17. Admittedly, the criminal case, which the deceased had got

registered was against her in-laws, and the present appellant, was in fact

a witness of prosecution in that case.

18. For the reasons stated hereinabove, the appellant, who otherwise

has spent about six years in custody is given benefit of doubt and is

acquitted.

The appeal stands disposed of accordingly.

One copy of the order be sent to the concerned Jail

Superintendent for information and necessary action.

The LCR be sent back forthwith with a copy of this order.

MARCH 03, 2014 V.K. JAIN, J.

b’nesh

Page 1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1144 OF 2014[Arising out of S.L.P. (Criminal) No. 8965/2013]

Swapnil and Others … Appellant (s)

Versus

State of Madhya Pradesh … Respondent (s)

J U D G M E N T

KURIAN, J.:

Leave granted.

2. The appellant is aggrieved by the order dated 02.09.2013

passed by the High Court of Madhya Pradesh Bench at

Indore. As per the impugned order, the High Court

declined to exercise its jurisdiction under Section 482 of

the Code of Criminal Procedure, 1973 (hereinafter referred

to as ‘Cr.PC’) for quashing the proceedings and charges

framed against the appellants under Section 498A, 506

Part II of the Indian Penal Code (45 of 1860) (hereinafter

1

REPORTABLE

Page 2

referred to as ‘IPC’) and Section 4 of the Dowry Prohibition

Act, 1961. The appellants 2 and 3 are his father and

mother respectively. The Respondent No. 2 is the wife of

the first appellant. She lodged a complaint with Mahila

Thana, Indore Police Station on which FIR No. 50 dated

02.05.2012 under Section 498A, 506 and 34 of IPC was

registered. It was alleged in the complaint that the

marriage between the first appellant and second

respondent was performed on 24.06.2009 and after two

months of the marriage, the appellants and the sister of

the first appellant started demanding dowry. It is seen

from Annexure-P3-application filed by the first appellant on

14.07.2011 under Section 9 of the Hindu Marriage Act,

1955 seeking restitution of conjugal rights that the second

respondent had left the matrimonial house on 23.04.2011

and thereafter she had not gone back. On 23.05.2011, a

lawyer notice had also been served on the second

respondent which was replied on 02.06.2011. During the

pendency of the proceedings for restitution of conjugal

rights, the second respondent, on 07.09.2011, lodged a

complaint before Mahila Thana, Indore Police Station

2

Page 3

raising allegations against the appellants, the maternal

uncle, maternal aunt and the sister of the first appellant.

Paragraph 4 of the complaint –Annexure-P4 reads as

follows:

“4. The accused persons yesterday on 06.09.2011 having common intent collectively came to my parental house and while hurling abuses as Madarchod, Bahanchod etc. said that if you want life of your mother, father, brother and sister then you come within one month with Rs.1 lac cash balance 5 tola gold, Wagner Car which is purchased after your marriage and money for Maruti car otherwise your mother-father, sister and brother will be kidnapped and they will be killed. They gave threat to take over possession on my house and said that what wrong you have caused to us by sending copies in police in reply of our notice, you do not know us yet. When your mother, father, brother and sisters would be sent behind jail in false allegations then see govt. job of your father will be loosed and you would start begging on road and gave threat that do not dare to go in police, nobody would give evidence against us in colony because we have approach with big leaders and officers and gundas elements. If you go in police then proceeding will be done against you not against us.”

3. Annexure-P5 is the Record of Proceedings dated

12.12.2011 when parties were called before Mahila Police

Station. The same is extracted below:

“Sir,In connection with enquiry of reference application both the parties appeared in women police station and statement of both were recorded which are enclosed with enquiry. Applicant told that her

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husband Swapnil does not do any work/business and other members of in-laws house by putting demand of dowry cause physical and mental harassment. Let family counseling be done with husband so that domestic life may remain peaceful.

Non applicant told in his statement that my domestic life could not run peacefully due to intervention of members of parental house of Kirti.

Family counseling of both parties was done. There are certain family differences between both the parties hence both the parties were suggested to rehabilitate their domestic life by court proceeding.

Report is submitted in your goodself.”

4. The first appellant on 16.04.2012 withdrew the application

filed under Section 9 of the Hindu Marriage Act, 1955,

since according to the first appellant the second

respondent was not inclined to resume cohabitation. It was

thereafter, the complaint dated 02.05.2012 leading to the

impugned prosecution was filed by the second respondent.

She also filed a complaint under Section 12 of the

Protection of Women from Domestic Violence Act, 2005 on

17.05.2012. It seems another application under Section

125 of Cr.PC was also filed by her.

5. The gist of the complaint dated 02.05.2012 reads as

follows:

“… On 30.04.2012 they said if you do not fulfill our demand then we would kill you, thus my husband,

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father in law, mother in law and sister in law gave threat for life on the issue of demand of 10 tola gold, maruti car and 1 lac rupees cash in dowry and have subjected me on physical and mental harassment now I have been harassed from cruelty of members of in laws house and I do not want to enter into any compromise rather I want legal proceeding. …”

6. The learned Judicial Magistrate First Class Magistrate,

Indore framed the following charges:

“I, Sarmesh Singh Judicial Magistrate First Class Indore hereby frame following charge against you Anil S/o Ramdas R/o 73 Laxmipuri Colony, Indore:

1. You being husband of complainant Kirti subjected her to mental and physical torture and harassment from 24.06.2009 to 30.04.2012 in 73 Laxmipuri Colony Indore, making illegal demand of Rs.1,00,000/-, car and 10 tola gold as dowry and by beating her caused cruelty?

2. You on 30.04.2012 with intention to intimidate complainant Kirti gave threat to cause her death, as such by intimidating her caused criminal intimidation?

3. You being husband of complainant Kirit put illegal demand of Rs.1,00,000/-, car and 10 tola gold as dowry on various intervals from 24.06.2009 to 30.04.2012 from complainant Kirti and her relatives?

By doing such you have committed offence which is punishable under section 498A, 506 Part-2, IPC and section 4 of Dowry Prohibition Act, which is in my cognizance. I by this report order that you be tried in above mentioned crimes.”

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7. The appellants filed Criminal Revision No. 85 of 2013

before the Sessions Court which was dismissed by Order

dated 14.03.2013 by the Additional Sessions Judge, Indore.

It is significant to note that even according to the learned

Additional Sessions Judge “it is possible that accused

Swapnil was taking care of his wife…”.

8. If the intervening developments referred to above and the

two complaints are analysed carefully, it can be seen that

except for the improvement with regard to the alleged

intimidation on 30.04.2012, the allegations in the earlier

complaint dated 07.09.2011 are exactly the same. As a

matter of fact, there was an allegation with regard to

criminal intimidation in the complaint dated 07.09.2011 as

well, as can be seen from the extracted portion of the

complaint. However, in the complaint dated 02.05.2012,

there is a grave allegation on intimidation to kill, made on

30.04.2012.

9. The first appellant and second respondent had in fact

solemnized their marriage at Arya Samaj Mandir on

16.06.2007 privately, as they were stated to be in love

with each other for sometime. Thereafter only, in the

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presence of the family members, marriage was solemnized

on 24.06.2009.

10. It has to be seen that admittedly the second respondent

has been living separately since April, 2011. Thereafter,

she had lodged a complaint on 07.09.2011 before the very

same police station. The same was duly enquired into and

it was closed stating that the dispute is actually between

the families which are to be otherwise settled in legal

proceedings. If there are such differences between families

which are to be settled in legal proceedings, how such

differences would constitute and give rise to a successful

prosecution under Sections 498A or 506 IPC or under

Section 4 of the Dowry Prohibition Act, 1961, is the crucial

question.

11. The second respondent has been living separately since

April, 2011and hence, there is no question of any beating

by the appellants as alleged by her. The relationship

having got strained ever since April, 2011, even

application for restitution of conjugal rights having been

withdrawn on 16.04.2012 as the second respondent was

not interested to live together, it is difficult to believe that

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there is still a demand for dowry on 30.04.2012 coupled

with criminal intimidation. The allegations are vague and

bereft of the details as to the place and the time of the

incident. We had called for the records and have gone

through the same. The materials before the learned

Judicial Magistrate First Class, Indore are not sufficient to

form an opinion that there is ground for presuming that

the accused appellants have committed the offence under

the charged Sections. The Additional Sessions Court and

the High Court missed these crucial points while

considering the petition filed by the appellants under

Section 397 and Section 482 of the Cr.PC respectively. The

veiled object behind the lame prosecution is apparently to

harass the appellants. We are, hence, of the view that the

impugned prosecution is wholly unfounded. Therefore, to

secure the ends of justice and for preventing abuse of the

process of the criminal court, the charges framed by the

Judicial Magistrate First Class, Indore in Criminal Case No.

10245 of 2012 against the accused appellants are

quashed. The accused appellants are discharged.

However, we make it clear that nothing contained in this

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judgment shall have a bearing on any proceedings

between the parties regarding their matrimonial disputes

before the Family Court, since our observations are only

for the purpose of this judgment.

12. The appeal is allowed as above.

………..…………………….…..…………J.

(SUDHANSU JYOTI MUKHOPADHAYA)

…………………..…………………………J.

(KURIAN JOSEPH)New Delhi;May 9, 2014.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT

VERSUS

STATE OF BIHAR & ANR. .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case

under Section 498-A of the Indian Penal Code, 1860

(hereinafter called as IPC) and Section 4 of the

Dowry Prohibition Act, 1961. The maximum sentence

provided under Section 498-A IPC is imprisonment

for a term which may extend to three years and

fine whereas the maximum sentence provided under

Page 2

Section 4 of the Dowry Prohibition Act is two

years and with fine.

Petitioner happens to be the husband of

respondent no.2 Sweta Kiran. The marriage between

them was solemnized on 1st July, 2007. His attempt

to secure anticipatory bail has failed and hence

he has knocked the door of this Court by way of

this Special Leave Petition.

Leave granted.

In sum and substance, allegation levelled by

the wife against the appellant is that demand of

Rupees eight lacs, a maruti car, an air-

conditioner, television set etc. was made by her

mother-in-law and father-in-law and when this fact

was brought to the appellant’s notice, he

supported his mother and threatened to marry

another woman. It has been alleged that she was

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driven out of the matrimonial home due to non-

fulfilment of the demand of dowry.

Denying these allegations, the appellant

preferred an application for anticipatory bail

which was earlier rejected by the learned Sessions

Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial

disputes in recent years. The institution of

marriage is greatly revered in this country.

Section 498-A of the IPC was introduced with

avowed object to combat the menace of harassment

to a woman at the hands of her husband and his

relatives. The fact that Section 498-A is a

cognizable and non-bailable offence has lent it a

dubious place of pride amongst the provisions that

are used as weapons rather than shield by

disgruntled wives. The simplest way to harass is

to get the husband and his relatives arrested

under this provision. In a quite number of cases,

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bed-ridden grand-fathers and grand-mothers of the

husbands, their sisters living abroad for decades

are arrested. “Crime in India 2012 Statistics”

published by National Crime Records Bureau,

Ministry of Home Affairs shows arrest of 1,97,762

persons all over India during the year 2012 for

offence under Section 498-A of the IPC, 9.4% more

than the year 2011. Nearly a quarter of those

arrested under this provision in 2012 were women

i.e. 47,951 which depicts that mothers and sisters

of the husbands were liberally included in their

arrest net. Its share is 6% out of the total

persons arrested under the crimes committed under

Indian Penal Code. It accounts for 4.5% of total

crimes committed under different sections of penal

code, more than any other crimes excepting theft

and hurt. The rate of charge-sheeting in cases

under Section 498A, IPC is as high as 93.6%, while

the conviction rate is only 15%, which is lowest

across all heads. As many as 3,72,706 cases are

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pending trial of which on current estimate, nearly

3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom

and cast scars forever. Law makers know it so

also the police. There is a battle between the

law makers and the police and it seems that police

has not learnt its lesson; the lesson implicit and

embodied in the Cr.PC. It has not come out of its

colonial image despite six decades of

independence, it is largely considered as a tool

of harassment, oppression and surely not

considered a friend of public. The need for

caution in exercising the drastic power of arrest

has been emphasized time and again by Courts but

has not yielded desired result. Power to arrest

greatly contributes to its arrogance so also the

failure of the Magistracy to check it. Not only

this, the power of arrest is one of the lucrative

sources of police corruption. The attitude to

arrest first and then proceed with the rest is

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despicable. It has become a handy tool to the

police officers who lack sensitivity or act with

oblique motive.

Law Commissions, Police Commissions and this

Court in a large number of judgments emphasized

the need to maintain a balance between individual

liberty and societal order while exercising the

power of arrest. Police officers make arrest as

they believe that they possess the power to do so.

As the arrest curtails freedom, brings humiliation

and casts scars forever, we feel differently. We

believe that no arrest should be made only

because the offence is non-bailable and cognizable

and therefore, lawful for the police officers to

do so. The existence of the power to arrest is

one thing, the justification for the exercise of

it is quite another. Apart from power to arrest,

the police officers must be able to justify the

reasons thereof. No arrest can be made in a

routine manner on a mere allegation of commission

of an offence made against a person. It would be

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prudent and wise for a police officer that no

arrest is made without a reasonable satisfaction

reached after some investigation as to the

genuineness of the allegation. Despite this legal

position, the Legislature did not find any

improvement. Numbers of arrest have not

decreased. Ultimately, the Parliament had to

intervene and on the recommendation of the 177th

Report of the Law Commission submitted in the year

2001, Section 41 of the Code of Criminal Procedure

(for short ‘Cr.PC), in the present form came to be

enacted. It is interesting to note that such a

recommendation was made by the Law Commission in

its 152nd and 154th Report submitted as back in the

year 1994. The value of the proportionality

permeates the amendment relating to arrest. As

the offence with which we are concerned in the

present appeal, provides for a maximum punishment

of imprisonment which may extend to seven years

and fine, Section 41(1)(b), Cr.PC which is

relevant for the purpose reads as follows:

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“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

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and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

X x x x x x

From a plain reading of the aforesaid provision,

it is evident that a person accused of offence

punishable with imprisonment for a term which

may be less than seven years or which may extend

to seven years with or without fine, cannot be

arrested by the police officer only on its

satisfaction that such person had committed the

offence punishable as aforesaid. Police officer

before arrest, in such cases has to be further

satisfied that such arrest is necessary to

prevent such person from committing any further

offence; or for proper investigation of the

case; or to prevent the accused from causing the

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evidence of the offence to disappear; or

tampering with such evidence in any manner; or

to prevent such person from making any

inducement, threat or promise to a witness so as

to dissuade him from disclosing such facts to

the Court or the police officer; or unless such

accused person is arrested, his presence in the

court whenever required cannot be ensured.

These are the conclusions, which one may reach

based on facts. Law mandates the police officer

to state the facts and record the reasons in

writing which led him to come to a conclusion

covered by any of the provisions aforesaid,

while making such arrest. Law further requires

the police officers to record the reasons in

writing for not making the arrest. In pith and

core, the police office before arrest must put a

question to himself, why arrest? Is it really

required? What purpose it will serve? What

object it will achieve? It is only after these

questions are addressed and one or the other

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conditions as enumerated above is satisfied, the

power of arrest needs to be exercised. In fine,

before arrest first the police officers should

have reason to believe on the basis of

information and material that the accused has

committed the offence. Apart from this, the

police officer has to be satisfied further that

the arrest is necessary for one or the more

purposes envisaged by sub-clauses (a) to (e) of

clause (1) of Section 41 of Cr.PC.

An accused arrested without warrant by

the police has the constitutional right under

Article 22(2) of the Constitution of India and

Section 57, Cr.PC to be produced before the

Magistrate without unnecessary delay and in no

circumstances beyond 24 hours excluding the time

necessary for the journey. During the course of

investigation of a case, an accused can be kept

in detention beyond a period of 24 hours only

when it is authorised by the Magistrate in

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exercise of power under Section 167 Cr.PC. The

power to authorise detention is a very solemn

function. It affects the liberty and freedom of

citizens and needs to be exercised with great

care and caution. Our experience tells us that

it is not exercised with the seriousness it

deserves. In many of the cases, detention is

authorised in a routine, casual and cavalier

manner. Before a Magistrate authorises

detention under Section 167, Cr.PC, he has to be

first satisfied that the arrest made is legal

and in accordance with law and all the

constitutional rights of the person arrested is

satisfied. If the arrest effected by the police

officer does not satisfy the requirements of

Section 41 of the Code, Magistrate is duty bound

not to authorise his further detention and

release the accused. In other words, when an

accused is produced before the Magistrate, the

police officer effecting the arrest is required

to furnish to the Magistrate, the facts, reasons

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and its conclusions for arrest and the

Magistrate in turn is to be satisfied that

condition precedent for arrest under Section 41

Cr.PC has been satisfied and it is only

thereafter that he will authorise the detention

of an accused. The Magistrate before

authorising detention will record its own

satisfaction, may be in brief but the said

satisfaction must reflect from its order. It

shall never be based upon the ipse dixit of the

police officer, for example, in case the police

officer considers the arrest necessary to

prevent such person from committing any further

offence or for proper investigation of the case

or for preventing an accused from tampering with

evidence or making inducement etc., the police

officer shall furnish to the Magistrate the

facts, the reasons and materials on the basis of

which the police officer had reached its

conclusion. Those shall be perused by the

Magistrate while authorising the detention and

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only after recording its satisfaction in writing

that the Magistrate will authorise the detention

of the accused. In fine, when a suspect is

arrested and produced before a Magistrate for

authorising detention, the Magistrate has to

address the question whether specific reasons

have been recorded for arrest and if so, prima

facie those reasons are relevant and secondly a

reasonable conclusion could at all be reached by

the police officer that one or the other

conditions stated above are attracted. To this

limited extent the Magistrate will make judicial

scrutiny.

Another provision i.e. Section 41A Cr.PC

aimed to avoid unnecessary arrest or threat of

arrest looming large on accused requires to be

vitalised. Section 41A as inserted by Section

6 of the Code of Criminal Procedure (Amendment)

Act, 2008(Act 5 of 2009), which is relevant in

the context reads as follows:

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“41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

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Aforesaid provision makes it clear that

in all cases where the arrest of a person is not

required under Section 41(1), Cr.PC, the police

officer is required to issue notice directing

the accused to appear before him at a specified

place and time. Law obliges such an accused to

appear before the police officer and it further

mandates that if such an accused complies with

the terms of notice he shall not be arrested,

unless for reasons to be recorded, the police

office is of the opinion that the arrest is

necessary. At this stage also, the condition

precedent for arrest as envisaged under Section

41 Cr.PC has to be complied and shall be subject

to the same scrutiny by the Magistrate as

aforesaid.

We are of the opinion that if the

provisions of Section 41, Cr.PC which authorises

the police officer to arrest an accused without

an order from a Magistrate and without a warrant

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are scrupulously enforced, the wrong committed

by the police officers intentionally or

unwittingly would be reversed and the number of

cases which come to the Court for grant of

anticipatory bail will substantially reduce. We

would like to emphasise that the practice of

mechanically reproducing in the case diary all

or most of the reasons contained in Section 41

Cr.PC for effecting arrest be discouraged and

discontinued.

Our endeavour in this judgment is to ensure

that police officers do not arrest accused

unnecessarily and Magistrate do not authorise

detention casually and mechanically. In order

to ensure what we have observed above, we give

the following direction:

(1) All the State Governments to instruct its

police officers not to automatically arrest

when a case under Section 498-A of the IPC

is registered but to satisfy themselves

about the necessity for arrest under the

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parameters laid down above flowing from

Section 41, Cr.PC;

(2) All police officers be provided with a

check list containing specified sub-clauses

under Section 41(1)(b)(ii);

(3) The police officer shall forward the check

list duly filed and furnish the reasons and

materials which necessitated the arrest,

while forwarding/producing the accused

before the Magistrate for further

detention;

(4) The Magistrate while authorising detention

of the accused shall peruse the report

furnished by the police officer in terms

aforesaid and only after recording its

satisfaction, the Magistrate will authorise

detention;

(5) The decision not to arrest an accused, be

forwarded to the Magistrate within two

weeks from the date of the institution of

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the case with a copy to the Magistrate

which may be extended by the Superintendent

of police of the district for the reasons

to be recorded in writing;

(6) Notice of appearance in terms of Section

41A of Cr.PC be served on the accused

within two weeks from the date of

institution of the case, which may be

extended by the Superintendent of Police of

the District for the reasons to be recorded

in writing;

(7) Failure to comply with the directions

aforesaid shall apart from rendering the

police officers concerned liable for

departmental action, they shall also be

liable to be punished for contempt of court

to be instituted before High Court having

territorial jurisdiction.

(8) Authorising detention without recording

reasons as aforesaid by the judicial

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Magistrate concerned shall be liable for

departmental action by the appropriate High

Court.

We hasten to add that the directions

aforesaid shall not only apply to the cases

under Section 498-A of the I.P.C. or Section 4

of the Dowry Prohibition Act, the case in

hand, but also such cases where offence is

punishable with imprisonment for a term which

may be less than seven years or which may

extend to seven years; whether with or without

fine.

We direct that a copy of this judgment be

forwarded to the Chief Secretaries as also the

Director Generals of Police of all the State

Governments and the Union Territories and the

Registrar General of all the High Courts for

onward transmission and ensuring its

compliance.

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By order dated 31st of October, 2013, this

Court had granted provisional bail to the

appellant on certain conditions. We make this

order absolute.

In the result, we allow this appeal,

making our aforesaid order dated 31st October,

2013 absolute; with the directions aforesaid.

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

NEW DELHI,July 2, 2014.

21

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.UBAID

THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936

Crl.Rev.Pet.No. 1515 of 2013 () --------------------------------

AGAINST THE ORDER IN Crl.Rev.Pet 2371/2012 of HIGH COURT OF KERALA

REVISION PETITIONER(S)/ACCUSED 2-6:----------------------------------------------

1. SUDHEESH, AGED 23 YEARS, S/O.J.RAMACHANDRAN, 'POURNAMI', PAZHAKUTTY P.O. NEDUMANGADU, THIRUVANANTHAPURAM.

2. SUDHA KUMARI AGED 45 YEARS W/O.RAMACHANDRA, 'POURNAMI', PAZHAKUTTY P.O. NEDUMANGADU, THIRUVANANTHAPURAM.

3. RAMACHANDRAN J. AGED 53 YEARS 'POURNAMI', PAZHAKUTTY P.O., NEDUMANGADU THIRUVANANTHAPURAM.

4. SANTHAMMA AGED 79 YEARS 'POURNAMI', PAZHAKUTTY P.O., NEDUMANGADU THIRUVANANTHAPURAM.

5. ANISH AGED 21 YEARS S/O.RAMACHANDRA, 'POURNAMI', PAZHAKUTTY P.O. NEDUMANGADU, THIRUVANANTHAPURAM.

BY ADV. SMT.MARY BENJEMIN

RESPONDENTS/COMPLAINANTS:-------------------------------------

1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

2. SARITHA SARITHA MANDIRAM, MUTTAPPALAM P.O. CHEMMARUTHY VILLAGE, VARKALA THIRUVANANTHAPURAM-695145.

R2 BY ADV. SRI.C.R.SIVAKUMAR R1 BY PUBLIC PROSECUTOR SMT.REMA.R.

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON03-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.Rev.Pet.No. 1515 of 2013

APPENDIX

PETITIONERS EXHIBITS:

ANNEXURE-I: TRUE COPY OF THE PETITION DATED 28.6.2009 SUBMITTEDBEFORE THE SUB INSPECTOR OF POLICE, VARKARA POLICE STATION

ANNEXURE – II: TRUE COPY OF THE PETITION IN CMP 4381 OF 2009 OF THECOURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKALA

ANNEXURE – II: TRUE COPY OF THE COMPLAINT DATED 29.07.2009 INC.C.656 OF 2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,VARKALA.

ANNEXURE – IV: TRUE COPY OF THE DISCHARGE PETITION FILED BY THEPETITIONERS 2 TGO 5 IN C.C. 656/2009 OF THE COURT OF JUDICIALMAGISTRATE OF FIRST CLAS-I, VARKALA

ANNEXURE V: TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THEPETITIONERS 2 TO 5 IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATEOF FIRST CLASS-I, VARKALA

ANNEXURE VI: TRUE COPY OF THE ORDER DATED 2ND DAY OF NOVEMBER2012 DISMISSING DISCHARGE PETITION FILED UNDER SECTION 245 (1) CR.P.C.IN C.M.P. 6037 (A)/2012 IN C.C 656/2009 OF THE COURT OF JUDICIALMAGISTRATE OF FIRST CLASS-I, VARKALA.

ANNEXURE VII: TRUE COPY OF CRIMINAL M.C NO.1154 OF 2009 FILEDBEFORE THE SESSIONS COURT, THIRUVANANTHAPURAM.

ANNEXURE – VIII: TRUE COPY OF THE ORDER IN CRIMINAL M.C NO.1154 OF2009

ANNEXURE – IX: TRUE COPY OF THE DISCHARGE PETITION FILED BY THE 1STPETITIONER IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OFFIRST CLASS-I, VARKALA.

ANNEXURE X: TRUE COPY OF THE ORDER DATED 27.11.2012 DISMISSINGDISCHARGE PETITION FILED UNDER SECTION 245 CR.P.C. IN C.M.P. NO.6457(A)/2012 IN C.C 656/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRSTCLASS, VARKALA

ANNEXURE XI: TRUE COPY OF THE MEDICAL RECORD ISSUED BY THEMENTYAL HEALTH CENTRE, THIRUVANANTHAPURAM

ANNEXURE XII: TRUE COPY OF THE REQUISITION FOR RADIOISOTOPEINVESTIGATIONS ISSUED BY THE REGIONAL CANCER CENTRE,THIRUVANANTHAPURAM.

ANNEXURE XIII: TRUE COPY OF THE DISCHARGE CARD ISSUED IN THE NAMEOF THE 4TH PETITIONER

Crl.Rev.Pet.No. 1515 of 2013

ANNEXURE XIV: TRUE COPY OF THE VOTER'S IDENTITY CARD ISSUED IN THENAME OF THE 4TH PETITIONER

ANNEXURE XV: TRUE COPY OF THE COMMON JUDGMENT OF HIGH COURTDATED 18.3.2013 IN CRIMINAL REVISION PETITION NO.2371 OF 2012, ANDCRIMINAL REVISION PETITION NO.2435 OF 2012

ANNEXURE XVI: CERTIFIED COPY OF ORDER DATED 31.5.2013 IN C.M.P.NOS.6037(a) & 6457/2013 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRSTCLASS-I, VARKALA

/TRUE COPY/

P.S TO JUDGE

P.UBAID, J.~~~~~~~~~~

Crl.R.P. No.1515 of 2013~~~~~~~~~~~

Dated this the 3rd July, 2014

O R D E R

The revision petitioners herein are the five accused in

C.C No.656 of 2009 of the Judicial First Class Magistrate-I,

Varkala, wherein, they are being prosecuted under Section

498(A) of the Indian Penal Code. The complainant in the

case was married by the 1st revision petitioner herein on

18.1.2009, but the matrimony did not last long. On

29.7.2009, the wife filed a complaint before the learned

Magistrate, alleging that she had been mentally and

physically ill-treated by her husband and the in-laws. The

1st petitioner herein is the husband, and the petitioners 2

and 3 are the parents-in-law. The 4th petitioner is the

grand-mother of the 1st petitioner, and the 5th petitioner is

the brother of the 1st petitioner. All the inmates of the

matrimonial home were arraigned as accused in the

complaint. Anyway, cognizance was taken after necessary

enquiry, and summons was ordered to the accused. Before

commencement of pre-charge evidence under Section 244

Crl.R.P. No.1515 of 20132

of Cr.P.C, the petitioners filed application before the trial

court for discharge under Section 245 of Cr.P.C. C.M.P.6037

(A) of 2012 was filed by the accused Nos.2 to 5 and C.M.P.

No.6457 of 2013 was filed by all the five accused.

2. On hearing both sides, the learned Magistrate

found that order of discharge cannot be passed. The learned

Magistrate found some materials in the complaint, prima

facie justifying the allegations, and so decided that an order

of discharge before recording pre-charge evidence cannot

be made. Accordingly, the two applications were

dismissed by order dated 31.5.22013. The said order is

under challenge in this revision petition.

3. On hearing both sides and on a perusal of the

case records including the complaint filed by the 1st

petitioner's wife in the court below, I find that the question

of discharge can be decided by the court below under

Section 245 (1) of Cr.P.C, after pre-charge evidence is

recorded under Section 244 of Cr.P.C, Of course, the de

facto complainant has some grievance, and she has some

genuine complaint against her husband, but whether her act

Crl.R.P. No.1515 of 20133

in arraigning all the in-mates of the matrimonial home as

accused in the complaint is improper and illegal, or whether

she has genuine complaint against the in-laws, is a matter

to be looked into by the Court after recording pre-charge

evidence, and while proceeding to take decision in the

matter of discharge under Section 245 (1) of Cr.P.C.

4. On a perusal of the complaint, I could see some

allegations against the in-laws also but, the Court will have

to examine the whole materials including the evidence

adduced under Section 244 of Cr.P.C to find whether the

complainant's complaint in fact contains definite allegations

of mental and physical harassment by a course of cruel

conduct. The learned Magistrate will have to find whether

the in-laws were unnecessarily dragged to Court and

arraigned as accused for some sort of satisfaction. If definite

and satisfactory materials are not there against the in-laws,

the question of discharge under Section 245 (1) can be

thought of by the trial court. However, allegations are there

against the husband, and it is submitted that other

proceedings are also pending, in connection with the

Crl.R.P. No.1515 of 20134

matrimonial dispute. The trial court will have to bear-in-

mind the unhealthy practice these days to arraign all the in-

laws or all the inmates of the matrimonial home when the

aggrieved wife proceeds to file complaint against her

husband. Of course, let proper and judicious decision be

taken by the trial court when moved for discharge under

Section 245 (1) of Cr.P.C. As rightly held by the trial court,

discharge under Section 245 (2) of Cr.P.C, before recording

pre-charge evidence under Section 244 of Cr.P.C cannot be

considered, when some materials are there. Whether those

materials are sufficient to frame charge, can be decided

while proceeding under Section 245 (1) of Cr.P.C. Thus, I

find that this revision petition can be closed without

prejudice to the right of the revision petitioners to make

application under Section 245 (1) of Cr.P.C, after pre-charge

evidence is recorded by the trial court under Section 244 of

Cr.P.C.

In the result, this revision petition is closed without

prejudice to the right of the revision petitioners to make

proper application under Section 245 (1) of Cr.P.C, after pre-

Crl.R.P. No.1515 of 20135

charge evidence is recorded by the trial court under Section

244 of Cr.P.C.

Sd/- P.UBAID

JUDGEma

/True copy/

P.S to Judge

Supreme Court of IndiaSupreme Court of IndiaYogendra Yadav & Ors vs State Of Jharkhand & Anr on 21 July, 2014Bench: Ranjana Prakash Desai, N.V. RamanaNON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1205 OF 2014

Yogendra Yadav & Ors. � Appellants

Vs.

The State of Jharkhand & Anr. � Respondents

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants are original Accused Nos.1 to 3 respectively in P.S. Meharma Case No.155 of 2004registered under Sections 341, 323, 324, 504 and 307 read with Section 34 of the Indian Penal Code (for short,�the IPC�). The FIR was lodged on 23/09/1994 by complainant Anil Mandal alleging thatthe appellants assaulted him and his men on 22/09/2004. On the same day the appellants also filed FIR inrespect of the same incident dated 22/09/2004 alleging that complainant Anil Mandal, Baldev Mandal andothers assaulted them. This FIR was registered at P.S. Meharma being Case No.156 of 2004 under Sections147, 148, 149, 448, 341, 323 and 380 of the IPC.

2. In both the cases, after investigation, charge-sheet was submitted. While the cases were going on before the2nd Additional Sessions Judge, Godda, both the parties agreed to compromise the cases. A Panchayat washeld where with the intervention of the well-wishers a compromise was arrived at. A compromise petitiondated 16/11/2011 was signed by both the parties and it was filed in the Court of 2nd Additional SessionsJudge, Godda. An application was filed under Section 231(2) read with Section 311 of the Code of CriminalProcedure, 1973 (for short, �the Code�) being S.C. No. 9/05 for recalling PWs 1 to 6 forfurther cross-examination on the point of compromise.

3. Learned Additional Sessions Judge by his order dated 16/11/2011 disposed of the said application. LearnedAdditional Sessions Judge observed that compromise petition was signed by the informant and the injured,their signatures were identified by the lawyers and, therefore, the compromise was genuine. He, however,observed that offences under Sections 324, 341, 323 of the IPC are compoundable with the permission of thecourt and offences under Sections 326, 307 read with Section 34 of the IPC are non-compoundable. He,therefore, accepted the application in respect of offences under Sections 323, 324 and 341 of the IPC. The saidoffences were compounded and the accused were acquitted of the same. Prayer for compounding of offencesunder Sections 326, 307 read with Section 34 of the IPC was rejected. Learned Additional Sessions Judgerejected the application for recalling of witnesses. He directed that the case should proceed against theaccused for offences under Sections 326, 307 read with Section 34 of the IPC. This order was challenged bythe appellants in the High Court of Jharkhand. By the impugned order the High Court dismissed the challenge,hence, this appeal.

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4. Now, the question before this Court is whether this Court can compound the offences under Sections 326and 307 of the IPC which are non- compoundable. Needless to say that offences which are non-compoundablecannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of theCode. The said provision has to be strictly followed (Gian Singh v. State of Punjab[1]). However, in a givencase, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Codehaving regard to the fact that the parties have amicably settled their disputes and the victim has no objection,even though the offences are non-compoundable. In which cases the High Court can exercise its discretion toquash the proceedings will depend on facts and circumstances of each case. Offences which involve moralturpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because thatwill have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or twogroups. If such offences are quashed, it may send wrong signal to the society. However, when the High Courtis convinced that the offences are entirely personal in nature and, therefore, do not affect public peace ortranquility and where it feels that quashing of such proceedings on account of compromise would bring aboutpeace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecutionbecomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That willalso unsettle the compromise and obstruct restoration of peace.

5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding havingregard to the fact that the dispute between the offender and the victim has been settled although the offencesare not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise infutility and justice in the case demands that the dispute between the parties is put to an end and peace isrestored; securing the ends of justice being the ultimate guiding factor. Needless to say that the aboveobservations are applicable to this Court also.

6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the HighCourt has not noticed the correct position in law in regard to quashing of criminal proceedings when there is acompromise. Affidavit has been filed in this Court by complainant-Anil Mandal, who is respondent No. 2herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is furtherstated that he and the appellants are neighbours, that there is harmonious relationship between the two sidesand that they are living peacefully. He has further stated that he does not want to contest the present appealand he has no grievance against the appellants. Learned counsel for the parties have confirmed that thedisputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully.They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand has furtherfiled an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made bythe appellant and the second respondent for quashing of the proceedings.

7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we setaside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2ndAdditional Sessions Judge, Godda. The appeal is disposed of.

�������������..J

(Ranjana Prakash Desai)

�������������..J

(N.V. Ramana)

New Delhi;

July 21, 2014.

Yogendra Yadav & Ors vs State Of Jharkhand & Anr on 21 July, 2014

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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1498 OF 2014

[Arising out of Special Leave Petition (Crl.) No.8795 of 2012]

Manohar Singh � Appellant

Vs.

State of Madhya Pradesh & Anr. � Respondents

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. The appellant is original Accused No. 3. He was tried along with his father Hukum Singh �original Accused No. 1 and his mother Prem Bai � original Accused No. 2 by the JudicialMagistrate, Dewas (Madhya Pradesh) in Crime Case No. 1680/2009 for offences punishable under Section498A of the Indian Penal Code (for short, �the IPC�) and Section 4 of the DowryProhibition Act, 1961 (for short, �the Dowry Act�). By judgment and order dated29/9/2010 learned Magistrate acquitted the appellant and the other two accused. Being aggrieved by this orderthe State of Madhya Pradesh preferred appeal in the Sessions Court, Dewas being Criminal AppealNo.12/2011. The Sessions Court set aside the order of acquittal and convicted the appellant and two othersunder Section 498-A of the IPC and sentenced them to undergo two years rigorous imprisonment each and topay a fine of Rs.500/- each. For offence under Section 4 of the Dowry Act each of them was sentenced torigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default, to undergo simpleimprisonment for two months each.

3. Being aggrieved by the said judgment and order, the accused carried criminal revision to the High Court ofMadhya Pradesh. The High Court by the impugned order set aside the conviction and sentence of originalAccused Nos. 1 and 2 i.e. the father and mother of the appellant. The conviction of the appellant was,however, confirmed. His sentence was reduced to six months and fine of Rs.500/- on each count. Both thesubstantive sentences were to run concurrently. Being aggrieved by this judgment the appellant filed thepresent appeal.

4. On 21/1/2013 the appellant sought permission to implead the complainant i.e. his wife Reena as respondentNo. 2. A statement was made that the appellant was willing to pay monetary compensation to his wife in lieuof substantive sentence of imprisonment. Permission to implead the complainant-wife Reena was granted. Theappellant was directed to deposit Rs.25,000/- as litigation expenses. Respondent No. 2 was permitted towithdraw the said amount unconditionally. Subject to deposit, notice was issued to respondent No. 2 toconsider whether the appellant can be asked to pay some suitable monetary compensation to respondent No. 2in lieu of substantive sentence of imprisonment. On 24/3/2014 counsel for the appellant made a statement thatthe matter is likely to be settled. We directed respondent No. 2 � wife to remain present in the Courton 28/3/2014. Accordingly on 28/03/2014 she remained present in the Court. She stated that if the appellantpays her Rs.2,50,000/- (Rupees two lacs fifty thousand only) as compensation, she is ready to settle the

Yogendra Yadav & Ors vs State Of Jharkhand & Anr on 21 July, 2014

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matter. This Court, therefore, directed the appellant to bring a demand draft of Rs.2,50,000/- in the name ofReena (respondent No. 2). This Court noted that the said demand draft can be given to her in case afterhearing the parties and considering the legal position, this Court permits settlement at this stage.

5. We have heard learned counsel for the appellant, learned counsel for the State of Madhya Pradesh andlearned counsel for respondent No. 2. Learned counsel for the appellant and learned counsel for respondentNo. 2 have requested the Court to show leniency in view of the settlement. Counsel for the State of MadhyaPradesh has opposed this prayer.

6. Section 498-A of the IPC is non-compoundable. Section 4 of the Dowry Act is also non-compoundable. Itis not necessary to state that non- compoundable offences cannot be compounded by a Court. Whileconsidering the request for compounding of offences the Court has to strictly follow the mandate of Section320 of the Code. It is, therefore, not possible to permit compounding of offences under Section 498-A of theIPC and Section 4 of the Dowry Act. However, if there is a genuine compromise between husband and wife,criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein arenon-compoundable, because such offences are personal in nature and do not have repercussions on the societyunlike heinous offences like murder, rape etc. (See Gian Singh v. State of Punjab[2]). If the High Court formsan opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or tosecure ends of justice, the High Court can do so. The inherent power of the High Court under Section 482 ofthe Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such acourse.

7. In Narinder Singh v. State of Punjab[3], this Court was dealing with a situation where the accused wascharged for offence punishable under Section 307 of the IPC, which is a non-compoundable offence. Theparties arrived at a compromise at the stage of recording of evidence. A petition was filed under Section 482of the Code for quashing of the proceedings in view of the compromise. The High Court refused to quash theproceedings. This Court set aside the High Court�s order and quashed the proceedings in view of thecompromise. While doing so, this Court laid down certain guidelines. In Guideline No.(VII), this Courtconsidered a situation where a conviction is recorded by the trial court for offence punishable under Section307 of the IPC and the matter is at appellate stage. This Court observed that in such cases, a mere compromisebetween the parties would not be a ground to accept the same resulting in acquittal of the offender who hasalready been convicted by the trial court. This Court observed that in such cases where charge is proved underSection 307 of the IPC and conviction is already recorded of a heinous crime, there was no question of sparinga convict found guilty of such a crime. The observation of this Court must be read obviously in the context ofa non-compoundable offence under Section 307 of the IPC. It is trite that a non-compoundable offence cannotbe compounded at any stage (See Gyan Singh v. State of Punjab[4]). However, a compoundable offence canbe compounded in view of a compromise, if the Court finds it proper to do so even after conviction if theappeal is pending.

8. In this case, the appellant is convicted under Section 498-A of the IPC and sentenced to undergo six monthsimprisonment. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six monthsimprisonment. Substantive sentences are to run concurrently. Even though the appellant and respondent No.2-wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because theoffences involved are non-compoundable. However, in such a situation if the court feels that the parties have areal desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentencealready undergone. Section 498-A of the IPC does not prescribe any minimum punishment. Section 4 of theDowry Act prescribes minimum punishment of six months but proviso thereto states that the Court may, foradequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a termwhich may be less than six months. Therefore, sentence of the appellant can be reduced to sentence alreadyundergone by him.

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9. Now the question is whether a case for reduction of sentence is made out particularly when the appellanthas undergone only seven days sentence out of six months sentence imposed on him. We see no reason why inthis case we should not reduce the appellant�s sentence to sentence already undergone by him.There can be no doubt about the genuine nature of compromise between the appellant and respondentNo.2-wife. The appellant has offered to pay a sum of Rs.2,50,000/- to respondent No.2-wife as compensation.A demand draft drawn in the name of respondent No.2 is brought to the Court. As directed by us evenlitigation costs of Rs.25,000/- has been deposited by the appellant in the Court. Respondent No.2-wife hasappeared in this Court on more than one occasion and requested this Court to take compromise intoconsideration and pass appropriate orders. Learned counsel for the parties have requested us to take a kindlyview of the matter. The affidavit filed by the State of Madhya Pradesh opposing the prayer of the parties doesnot impress us.

10. We must also note that the trial court had acquitted the appellant. Though the Sessions Court reversed theorder and convicted the appellant for two years, the High Court reduced the sentence to six months. Theappellant and respondent No.2 were married in 2007. About seven years have gone by. Considering all thesecircumstances, in the interest of peace and amity, we are of the opinion that the appellant�s sentencemust be reduced to sentence already undergone by him.

11. In the circumstances, the appeal is partly allowed. The conviction of the appellant under Section 498-A ofthe IPC and under Section 4 of the Dowry Act is maintained but the sentence awarded to the appellant isreduced to sentence already undergone by him, subject to the condition that the appellant pays a sum ofRs.2,50,000/- (Rupees two lacs fifty thousand only) to respondent No.2-wife as compensation. Impugnedorder stands modified to the above extent.

12. We must note that a Demand Draft in the sum of Rs.2,50,000/- drawn in the name of respondent No.2Reena has been handed over to her counsel by learned counsel for the appellant on 18/7/2014.

13. In view of this, bail bond of the appellant, if any, stands discharged.

�����������..J.

(Ranjana Prakash Desai)

������������J.

(N.V. Ramana)

New Delhi;

July 21, 2014.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1169 OF 2014

SATHIYAMOORTHY AND ORS. �Appellants

Versus

Yogendra Yadav & Ors vs State Of Jharkhand & Anr on 21 July, 2014

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STATE REPRESENTED BY THE

INSPECTOR OF POLICE, MADURAI �Respondent

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants who are original Accused Nos. 1 to 6 respectively were tried in the court of AdditionalDistrict and Sessions Judge, Madurai in Sessions Case No.444 of 2005 for various offences under the IndianPenal Code (for short, �the IPC�) on the allegation that on 11/11/2004 at about 8.00 p.m.when complainant Ayyanar and his son Murugesan were standing at a common place all the accused camethere and formed an unlawful assembly with deadly weapons. Accused No. 2 unlawfully restrainedMurugesan. Accused No. 1 attacked complainant-Ayyanar with an iron rod. He also attacked Murugesan withan aruval. Complainant Ayyanar lodged the FIR.

2. After completion of investigation, the accused were sent up for trial. At the trial the prosecution examined16 witnesses. The accused denied the prosecution case. Learned Additional District and Sessions Judge foundAccused Nos. 1 to 6 guilty under Section 148 of the IPC. He sentenced each of them to undergo rigorousimprisonment for one year and to pay a fine of Rs.500/- each, in default, to undergo two months rigorousimprisonment. Accused No. 1 was found guilty under Section 325 of the IPC and was sentenced to undergorigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorousimprisonment for three months. Accused No. 2 was found guilty under Section 341 of the IPC and wassentenced to undergo three months rigorous imprisonment and to pay a fine of Rs.200/-, in default, to undergofour weeks rigorous imprisonment. Accused No. 2 was also found guilty under Section 325 read with Section149 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine ofRs.1,000/-, in default, to undergo rigorous imprisonment for six months. Accused Nos. 3 to 6 were foundguilty under Section 325 read with Section 149 of the IPC. Each of them was sentenced to rigorousimprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to undergo rigorousimprisonment for six months. Substantive sentences were to run concurrently.

3. Being aggrieved by the said conviction and sentence the appellants- accused preferred an appeal to the HighCourt. By the impugned order the High Court partly allowed the appeal. The order of conviction passed by thetrial court was confirmed. However, the sentence imposed under Section 325 of the IPC on Accused No. 1,sentence imposed under Section 325 read with Section 149 of the IPC on Accused No. 2 and sentenceimposed under Section 325 read with Section 149 of the IPC on Accused Nos. 3 to 6 was reduced to two yearsrigorous imprisonment instead of three years rigorous imprisonment. Rest of the order of the trial court wasconfirmed. Being aggrieved by the judgment and order, the appellants-accused have filed the present appeal.

4. During the pendency of the appeal on 25/04/2014 victim-Murugesan remained present in this Court. He hadfiled an application for impleadment which was granted. He stated that he would like to compound theoffences. That statement was recorded and the matter was adjourned to consider the prayer. An applicationhas been filed by the appellants praying that offences may be permitted to be compounded. It is stated in theapplication that victim Murugesan and the accused are cousins and they have decided to settle the disputesamicably. It is further stated that pursuant to this decision the accused have paid a reasonable amount tovictim Murugesan as per the decision of family elders and they have entered into an amicable settlement intheir village much before the accused surrendered as per the orders of this Court. A copy of the statement ofvictim Murugesan dated 30/9/2012 stating that he has entered into a compromise with the accused is annexedto the application.

5. We have heard learned counsel for the appellants-accused, Mr. Luthra, learned Additional Solicitor General(AC) and learned counsel for the State of Tamil Nadu. They confirmed that parties have entered into a

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compromise. They submitted that in view of the settlement, this Court may compound the offences as that willaccord a quietus to all disputes between the parties. Counsel submitted that the accused and the complainantare cousins. After the compromise they have been staying peacefully in the village. It is in the interest of bothsides to bury the hatchet and lead a peaceful life.

6. Offences under Sections 341 and 325 are compoundable. In view of the settlement they can be permitted tobe compounded. However, offences under Sections 148 and 149 of the IPC are not compoundable. Hence,permission to compound them cannot be granted. However, since the accused and the victim have entered intoa compromise, we feel that it would be in the interest of both sides to reduce the sentence awarded to theaccused under Sections 325 and 341 of the IPC to the sentence already undergone.

7. In Ram Lal and anr. v. State of J & K[5] the accused were convicted for offence under Section 326 of theIPC, which is non- compoundable. Looking to the fact that the parties had arrived at a settlement and victimhad no grievance, this Court reduced the sentence for the offence under Section 326 to sentence alreadyundergone by the appellants-accused. We are inclined to follow similar course.

8. In the result, the appeal is partly allowed. The offences under Sections 341 and 325 of the IPC, for whichthe appellants are convicted, are permitted to be compounded because they are compoundable. The appellantsare acquitted of the said offences. The appellants are stated to have undergone more than six monthsimprisonment. So far as offences under Sections 148 and 149 of the IPC are concerned, the conviction of theappellants for the said offences is reduced to the sentence already undergone by them subject to the appellantspaying Rs.30,000/- as compensation to victim-Murugesan. Compensation be paid within three months fromthe date of this judgment.

9. This Court has already released the appellants on bail. In view of this order the bail bonds of the appellantsare discharged subject to payment of compensation of Rs.30,000/- as directed by us. If compensation is notpaid consequences will follow.

������������J.

(Ranjana Prakash Desai)

������������J.

(N.V. Ramana)

New Delhi;

July 21, 2014.

-----------------------

[1] (2012) 10 SCC 303

[2] (2012) 10 SCC 303

[3] JT 2014 (4) SC 573

[4] (2012) 10 SCC 303

[5] (1999) 2 SCC 213

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24

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Bombay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE  JURISDICTION

CRIMINAL WRIT PETITION NO.   312  OF 2014

Vinod Rajkrishan Kaushik & ors. ...   Petitioners. 

Versus

The State of Maharashtra. ...   Respondents.­­­

Mr.  A.K. Padhy i/b. A.K. Padhy & Co. advocate for petitioners.

Mr. S.R. Shinde, APP for State.­­­

CORAM :  SMT.SADHANA S. JADHAV,J

DATE     :  JULY   25, 2014

P.C.:

1 Heard the learned Counsel for the Petitioners and the learned 

APP for State.

2 Rule.   Rule made returnable forthwith with the consent of the 

parties.

3 The Petitioner herein challenges correctness and validity of the 

Order dated 16/11/2011 passed by the 19th Joint Judicial Magistrate 

First Class, Pune thereby rejecting the application below Exh. 26 filed 

Talwalkar 1/16 ::: Downloaded on - 09/08/2014 16:10:45 :::

Bombay

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by the present petitioners seeking discharge as well as the order dated 

30th November, 2013 passed in Criminal Revision Application No. 169 

of 2012 passed by the Additional Sessions Judge, Pune.  

4 Such of the facts necessary for the decision of this Writ Petition 

are as follows :

The  Petitioner    No.  3  herein  who happens   to  be   the   son  of 

Petitioner Nos. 1 and 2 got married to the complainant Madhvika  on 

26/1/2008.  The Petitioner No. 3 as well as his wife were working as 

Software Engineers at Pune.  

5 On   17th  June,   2008     an   occurrence   report   was   filed   at 

Chaturshrungi Police Station, Pune  by the wife of the petitioner No. 3 

alleging   therein   that   there   was   an   altercation   between   her   and 

Petitioner   No.   3.     The   Petitioner   No.   3   has   assaulted   the   first 

informant due to which she sustained injuries on her face, back and 

hands.   The informant had telephonically informed her father about 

the assault.  At the request of her father, her friend Monika Agnihotri 

had visited her  house.    The Petitioner  No.  3 had not  allowed her 

friend Monika Agnihotri to enter inside their flat and therefore, she 

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was constrained to leave from door step itself.   On 17/6/2008 uncle 

and brother of the informant came to Pune and tried to pacify the 

couple.  They had also contacted with the Petitioner Nos. 1 and 2.  It 

is  alleged   that   at   that   time,   the  petitioners  had  insisted  upon   the 

relatives to convince the  informant to avail   loan and give the said 

amount to them.     The efforts to convince the informant had failed 

and  thereafter,   she  had   lodged   the   report  at  Chaturshrungi  Police 

Station.   Since the offence alleged appeared to be in the nature of 

non­cognizable offence, the police had recorded occurrence report. 

6 After reaching Ujjain the first informant lodged a detailed first 

information report as contemplated under Section 154 of the Code of 

Criminal   Procedure,   1973   on   18th  June,   2008   wherein   she   had 

narrated   the   same   incident.     Offence   was   registered   against   the 

accused persons and the informant was sent for medical examination. 

The injury certificate indicates that there were bruises on her left eye, 

right arm, left scapular area and contusion over left thigh.  Since the 

offence had taken place within the jurisdiction of Pune, Ujjain Police 

have transferred the case for further investigation   to Chaturshrungi 

Police Station.   On receipt of the first information report, Crime No. 

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297 of 2008 is registered against the present petitioners for offence 

punishable under Section 498A, 506,  406 and 323 read with Section 

34   of   the   Indian   Penal   Code   and   under   Section   3   and   4   Dowry 

Prohibition Act on 4/7/2008.  

7 The investigation was set in motion.  Charge­sheet was filed for 

the   alleged   offence.     It   had   transpired   in   the   course   of   the 

investigation that the valuables and other articles belonging to   the 

first informant were in the custody of the accused persons and hence, 

Section 406 of the Indian Penal Code was added.

8 The   Petitioners   then   filed   application   before   the   Judicial 

Magistrate   First   Class,   Pune   under   Section   239   of   the   Code   of 

Criminal  Procedure,  1973.   The learned Magistrate  had considered 

the papers of investigation and the submissions advanced across the 

bar and had rejected the said application.   According to the learned 

Magistrate,   the   prosecution   ought   to   be   given   an   opportunity   to 

adduce evidence  as  prima  facie  case  was  made out.    The  learned 

Magistrate had also rightly considered that in the eventuality that the 

accused persons are discharged at prima face stage, it would amount 

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to deciding the matter without allowing the prosecution to adduce 

evidence.

9 Being aggrieved by the said order   the Petitioners  herein had 

filed Criminal Revision   Application No. 169 of 2012.   The learned 

Sessions Court had perused the compilation of the charge­sheet which 

included the  injury certificate  of   the  first   informant.    The Sessions 

Court  had also   taken into consideration mandate engrafted under 

Section 239 of the Code which contemplated that only upon arriving 

at   a   conclusion   that   the   charge­sheet   against   the   accused   is 

groundless,     only   then   the   accused  are   entitled   to  be  discharged. 

Upon perusal of the charge­sheet, the Sessions Court had formed an 

opinion that although the occurrence   report dated 17th  June, 2008 

does not depict the entire facts and allegations, it definitely reflects 

that the Petitioner No. 3 had assaulted the informant by hands in the 

intervening night of 15th June, 2008 and 16th June, 2008.  It had also 

arrived   at   a   conclusion   that   the   statements   of   the   witnesses 

corroborated   the   contents   of   the   FIR.     The   statement   of   Monika 

Agnihotri  revealed that she had visited the house of the  informant 

and   was   restrained   by   the   Petitioner   No.   3   from   meeting   the 

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informant.  The Sessions Court had therefore upheld the order passed 

by the Magistrate and had refused to interfere with the order passed 

by the Magistrate and the Revision Application was dismissed.  Hence, 

this Writ Petition.  

10 The   learned   Counsel   appearing   for   the   Petitioners   has 

vehemently argued that in fact, it was mandatory upon the   learned 

Magistrate to discharge the Petitioners on the ground that framing of 

the charge would be futile.  It was apparent that the prosecution was 

initiated only to harass the Petitioners.   Learned Counsel has argued 

that omnibus allegations are levelled against the Petitioners and from 

bare perusal of the FIR, it would be apparent that the first informant 

would not  be  able   to  substantiate   the  charges   levelled  against   the 

petitioner.  It is argued that the  marriage of the Petitioner No. 3 and 

the informant was performed without accepting any dowry.   It was 

further argued that in the application for bail it was admitted that the 

parents  of   the   informant  had  not   given  any  dowry.     It   is   further 

argued   that   while   considering   the   application   seeking     bail,     the 

Petitioner   No.   3   has   filed   an   application   seeking   restitution   of 

conjugal rights in the court of Delhi.   It is further argued that Pune 

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police had not denied to register  offence and yet it was not registered 

since no cognisable   offence was made out at that stage.   That the 

complainant had denied medical examination at Pune, but preferred 

to subject  herself   for  medical  examination after   two days.    Hence, 

such evidence in the form of injury certificate is manipulated.  At the 

time of deciding the application seeking discharge, according to the 

learned Counsel   it  was   incumbent  upon  the  Court   to  consider   the 

defence of the accused also.     It is mentioned in the synopsis to the 

Petition that on 15th December, 2010, Principal Judge, Family Court, 

Ujjain has granted a decree of divorce in favour of the complainant. 

Much stress is laid upon the injury certificate which according to the 

learned Counsel is a concocted document.  

11 It is pertinent to note that in paragraph­19  of the Petition it is 

contended that a mere suggestion to the highly paid newly couple to 

plan to buy a house in Delhi by taking home loan jointly, can never be 

treated as a demand of dowry or torture for taking a loan of Rs. 30 

Lakhs for buying a house, as is evident from the contents of the email 

Subject : House in Omaxe Housing.  It is specifically contended that in 

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the first occurrence report there is no averment in respect of dowry, 

harassment or breach of trust and the same was concocted at Indore.  

12 It is a matter of record that the Petitioner Nos. 1 and 2 were not 

residing under the same roof alongwith the Petitioner No. 3 and the 

first informant.  They were residing at Noida.  It is the allegation that 

they used to visit Pune and at that time, there was  harassment.  It is 

pertinent to note that in the report dated 17/6/2008 there was no 

allegation against the Petitioner Nos. 1 and 2.  Hence, the contention 

that   the   learned   Magistrate   has   not   considered   the   discharge 

application   in   its   proper   perspective   needs   to   be   upheld.     The 

Petitioner Nos. 1 and 2 deserves to be discharged on the ground that 

they were living separately.  There   are no allegations against them in 

the   first   report.     When   the   complainant   returned   to   Ujjain,   the 

Petitioner Nos. 1 and 2 were not at Pune.   The Petitioner No. 3 had 

restrained  Monika  Agnihotri   from  meeting   the   complainant.     It   is 

admitted by the Petitioners that the Petitioner Nos. 1 and 2 had only 

suggested the couple to purchase a house at Delhi and they had not 

demanded dowry for their own benefit.    However,   the case of  the 

Petitioner No. 3 would have to be considered on all together different 

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ground.  It is pertinent to note that  the Family Court at Ujjain passed 

decree of divorce in favour of  the complainant in a Divorce Petition 

filed by her.  

13 The   learned   Counsel   for   the   Petitioner   has   rightly   placed 

reliance on the Judgment of the Apex Court in the case of Priti Gupta 

& anr. v/s. State of Jharkhand & anr. reported in AIR 2010 SC 3363

wherein the Hon'ble the Hon'ble Apex Court has observed that 

“a  serious   relook  of   the entire  provision   is  warranted by  the 

legislation.   It   is   also   a   matter   of   common   knowledge   that 

exaggerated  versions  of   the   incident  are   reflected   in  a   large 

number of complaints. The tendency of over implication is also 

reflected in a very large number of cases. 

The   criminal   trials   lead   to   immense   sufferings   for   all 

concerned. Even ultimate acquittal in the trial may also not   be 

able   to   wipe   out   the   deep   scars   of   suffering   of   ignominy. 

Unfortunately a large number of these complaints have not only 

flooded the courts but also have led to enormous social unrest 

affecting peace, harmony and happiness of the society. It is high 

time   that   the   legislature   must   take   into   consideration   the 

pragmatic  realities  and make suitable changes  in the existing 

law. It is imperative for the legislature to take into consideration 

the   informed   public   opinion   and   the   pragmatic   realities   in 

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consideration   and   make   necessary   changes   in   the   relevant 

provisions of law.”

Hence,   the   Hon'ble   Apex   Court   had   circulated   the   copy   of   the 

Judgment to  the Law Commission and  to the Union Law Secretary, 

Government of India.

14 It   is   an  admitted  position   that   the  Petitioner  No.  3  had  got 

married   to   the   informant  only   in   January,  2008.    They  had   lived 

together   for   hardly   five   months   before   the   complainant   had 

withdrawn herself from the matrimonial house.  

15 Section 498A of the Indian Penal Code   reads thus :

“498A. Husband or relative of husband of a woman subjecting 

her to cruelty.—Whoever, being the husband or the relative of 

the husband of a woman, subjects such woman to cruelty shall 

be punished with imprisonment for a term which may extend to 

three years and shall also be liable to fine. Explanation.—For 

the purpose of this section, “cruelty” means— 

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on 

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account of failure by her or any person related to her to meet such demand.” 

Section 498A of the Indian Penal Code contemplates   harassment of 

such a nature which would coerce   the wife or her relatives to meet 

any unlawful demand for any property or valuable security or to drive 

the woman to commit suicide or to cause gave injury or danger to life, 

limb or health of the woman.  Recitals of the first information report 

in this case only disclose a stray incident which had occurred  due to a 

verbal altercation between the husband and wife which would be a 

natural affair between most of the couples.   Difference of opinion or 

verbal altercation on a particular issue or a solitary incident which 

may   temporarily  hamper       the  harmony   in  a  marriage   cannot  be 

termed as harassment or cruelty.  

16 Black's     Law   Dictionary     defines   “harassment”   as   “Words, 

conduct, or action (usually repeated or persistent) that being directed 

at a specific person, annoys, alarms or causes substantial emotional 

distress in that person and serves no legitimate purpose.”  Emphasis is 

being laid upon “usually, repeated or persistent”.  In the present case, 

it   cannot   be   said   that   the   Petitioner   No.   3   was   persistent   in   his 

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conduct   so   much   so     that   it   can   cause   harassment   to   the   first 

informant.   The very fact that she had denied to subject  herself to 

medical examination at Pune would show that she had no apparent 

injuries.    The police  officer  at  Chaturshrungi  Police  Station  would 

have definitely noticed the bruises if  it  appeared on   her eyes and 

other features.  Therefore, there creeps doubt as to whether the said 

injury  certificate  could  be  concocted  at  a  place  where  her  parents 

lived.  

17 Cruelty   could   be   defined   as   a   bodily   harm   or   a   reasonable 

apprehension of bodily harm which endangers life, limb or health.  In 

the present case, the Court is doubtful as to whether the injuries were 

really   caused  at   the  place  where   the   first   information   report  was 

lodged.     In   a   marriage   of   long   duration   it   becomes   necessary   to 

determine as to whether the cruelty is for such a period  which would 

warrant   initiation  of   proceedings   for   an  offence  punishable  under 

Section   498A   of   the   Indian   Penal   Code.     The   Court   cannot   be 

oblivious of the fact that in a marriage which lasted for hardly five 

months, the wife was  subjected to a cruelty of such an extent that she 

would file a petition for divorce.   There has been no effort from her 

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relatives to pacify the relations between the young couple.  As against 

this,   the Petitioner No. 3 has filed a petition seeking restitution of 

conjugal rights which reflects his attitude and inclination to forgive 

the complainant.   It is surprising that the Family Court at Ujjain has 

passed a decree of divorce in the present case in the year 2010 itself. 

It   is   doubtful   as   to  whether   a   ground  was  made  out   for   judicial 

separation for a period of 2 years so that the informant could get a 

divorce.  

18 The Hon'ble Apex Court in the recent Judgment in the case of 

Arnesh Kumar v/s. State of Bihar & anr.  has observed that­ 

“There is phenomenal increase in matrimonial disputes in recent 

years.   The   institution   of   marriage   is   greatly   revered   in   this 

country. Section 498­A of the IPC was introduced with avowed 

object to combat the menace of harassment to a woman at the 

hands of her husband and his relatives. The fact that Section 

498­A  is  a   cognizable  and non­bailable  offence  has   lent   it  a 

dubious place of pride amongst the provisions that are used as 

weapons rather than shield by disgruntled wives. The simplest 

way to harass is to get the husband and his relatives arrested 

under this provision.” 

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19 In the present case,   it is a matter of record that the Petitioner 

No. 3 had to undergo incarceration for a week because of the fact that 

he was arrested unaware.  The Petitioner No. 3  was arrested on 26 th 

September,   2008   and   was   released   on   bail   on   1/10/2008.     The 

Petitioner No. 3 was exposed to social obloquy at the place of service 

since he was arrested    in the office  i.e.  in the TCS office and was 

handcuffed.   All  this would clearly show that the complainant was 

seeking personal vendetta without there being any sufficient grounds.

20 The contention of the learned Counsel for the petitioners that 

the Petitioners had filed an application under the Right to Information 

Act which showed that the uncle of the complainant was present in 

their office at Ujjain on the day when it was shown that he had taken 

the complainant from Pune to Ujjain needs to be considered.  He had 

not obtained any leave to visit Pune.  

21   As   the Hon'ble Apex Court has observed, it is seen that in the 

present case the disgruntled wife filed the proceedings under Section 

498A, 406, 323 of the Indian Penal Code. Soon thereafter, a petition 

is   filed   under   the   provisions   of   the   Protection   of   Women   from 

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Domestic Violence Act, 2005.  Thereafter the proceedings are initiated 

in the Family Court.  Hence, the husband and his relatives have to go 

through the ordeal of legal proceedings in the same case in 3 different 

courts.  Hence, the time has come  to keep in mind the observations of 

the Hon'ble Apex Court and pass an appropriate orders to prevent an 

abuse of process of law.

22 In fact, the Government of Maharashtra had issued a circular to 

all Police Station   that whenever there is a complaint under Section 

498A, the concerned police officer should call upon both the parties 

and   make   an   effort   to   bring   about   reconciliation   and   give   them 

sufficient time to come to terms.  In the present case, it appears that 

no   serious   allegations   were   made   at   Chaturshrungi   Police   Station 

which   would   even   warrant   prosecution   under   Section   498A   and 

therefore, in all probabilities the police officers had not called upon 

the Petitioner No. 3.  At the same time, it cannot be ignored that the 

Petitioner No. 3 was in fact, arrested by the police in his office and 

was paraded as if he was a hardened   criminal.  The police machinery 

had not only stopped at that, but had sought police custody on the 

ground  of   recovery  of   the  passport   of   the   complainant   and  other 

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articles.    The  highhandedness       and   influence  of   the   complainant 

party was writ large on the face of the record and the police   had 

detained the Petitioner No. 3 in custody without verification of the 

facts.

23 On  perusal  of   the   facts   of   the   case   and  observations  of   the 

Hon'ble   Apex   Court   cited   supra,     and   for   the   reasons   mentioned 

hereinabove, the Petition seeking discharge deserves to be allowed.

24 The Writ Petition is allowed in terms of prayer clause (b).  Rule 

is made absolute.  Writ Petition is disposed of accordingly.

(SMT. SADHANA S. JADHAV,J)   

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Bombay High CourtBombay High CourtRt vs Golmahamad Noormahamad Shaikh on 28 July, 2014Bench: V.K. TahilramaniPNP 1/9 ALS75 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATEJURISDICTION

CRIMINAL APPLICATION NO.75 OF 2014 rt

The State of Maharashtra ..Applicant. ou

versus

Golmahamad Noormahamad Shaikh

and others ..Respondents. C

.....

Smt. V.R. Bhonsale, Addl. P.P. for the Applicant - State. None for the Respondents.

.....

h

CORAM : SMT. V.K.TAHILRAMANI &

ig A.S. GADKARI, JJ.

Judgment reserved on : 18 th July 2014. H

Judgment pronounced on : 28 th July 2014 ORAL ORDER (PER A.S. GADKARI, J.) : y

This is an Application for leave to file an Appeal as contemplated ba

under Section 378(3) of the Criminal Procedure Code, against the impugned judgment and order dated 26 thSeptember 2013 passed by the Learned District Judge -6 and Additional Sessions Judge, Thane in om

Sessions Case No.158 of 2009 thereby acquitting the Respondents for the offence charged against them. TheRespondent Nos.1 to 6 were charged for the offence under Section 498(A) read with Section 34 of B

the Indian Penal Code and the Respondent No.7 was charged for committing an offence under Sections 376and 506 of the Indian Penal Code.

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2. The record discloses that the complainant Smt. Tarrannum was rt

married to the Respondent No.2 - Noormahamad Gulmahamad ou

Shaikh in the year 2004. The Respondent Nos.1 and 3 are the in-laws of the complainant. The RespondentNos.4, 5 and 6 are the sisters-in- law of the complainant and the Respondent No.7 is the husband of C

Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

Indian Kanoon - http://indiankanoon.org/doc/161342542/ 1

the Respondent No.4. After marriage the complainant Tarrannum started residing with her husband andin-laws. The husband of the h

complainant Tarrannum owned an Indica car. That after one month ig

of the marriage, the in-laws of the complainant started taunting her on one or the other counts. After somedays as the vehicle of her H

husband required repairs, her in-laws asked her to bring Rs.5,000/- from her parents. Therefore her brothergave an amount of Rs.5,000/-. The record further discloses that as per the complaint, the y

in-laws again demanded a sum of Rs.10,000/- and the said demand ba

was also fulfilled with. The Respondent Nos.1 to 6 used to ill treat and abuse the complainant. Thecomplainant has further stated that on om

6th November 2007 the Respondent No.7 i.e. the husband of her sister-in-law (Respondent No.4) left his wifeand her mother-in-law on the railway station as they were to go to Gujarat and came to the B

house and while the complainant was alone in the house, he had forcible sexual intercourse with her. Thecomplainant thereafter lodged a complaint dated 8th December 2007 at Thane Nagar Police ::: Downloadedon - 28/07/2014 23:50:06 ::: PNP 3/9 ALS75 Station for the offence under Sections 498(A) read with 34 ofthe Indian Penal Code against the Respondent Nos.1 to 6 and for the rt

offence under Sections 376 and 506 against the Respondent No.7. ou

The said complaint was registered as Crime No.I-385/2007.

3. The record further discloses that the investigating agency C

investigated the matter and after completion of the investigation submitted a charge-sheet against theRespondents in the Court of h

Judicial Magistrate, First Class, Thane. The Learned Magistrate ig

committed the said case to the Court of Sessions. After committal of the said case the Trial Court framedcharge below Exhibit 8. The said H

charge was read over to the Respondents in vernacular language to which they denied and claimed to be tried.The prosecution examined in all eight witnesses in support of its case. The Learned Trial Court y

after recording the evidence and after hearing the parties to the ba

Sessions Case No.158 of 2009 has acquitted all the Respondents from the charges framed against them.

om

4. Heard Smt. V.R. Bhonsale, the learned APP appearing for and on behalf of the State and scrutinized therecord produced by her B

along with the notes of evidence.

Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

Indian Kanoon - http://indiankanoon.org/doc/161342542/ 2

5. As far as charge under Section 498(A) is concerned, the same ::: Downloaded on - 28/07/2014 23:50:06 :::PNP 4/9 ALS75 has been founded on the basis of the allegations made by the complainant Tarrannum againstthe Respondent Nos.1 to 6. In her rt

substantive evidence she had stated that after two to three months of ou

her marriage, her husband and his parents started beating and assaulting her. She has further stated that herhusband owned an Indica car and whenever there was any defect in the said car, her C

husband and his parents forced her to bring money from her brother for repairs of the car. That her brotherSajid on two occasions in the h

year 2005-06 gave an amount of Rs.5,000/- and Rs.10,000/- to them. ig

As the complainant could not give birth to a child, her sister-in-laws used to taunt her has barren. In theevidence of P.W.3 - Mohd. Rafiq H

Abdul Karim who is the father of the complainant he has stated that he paid Rs.5,000/- once and Rs.10,000/-twice to the Respondent No.2 - Noormahamad Gulmahamad Shaikh and despite the fact the y

demand of the Respondents continued. He has further stated that ba

the Respondents used to torture the complainant. The evidence of P.W.4 and P.W.5 who are the brothers ofthe complainant also om

discloses that the Respondents used to demand from the complainant to which they have fulfilled and despitethe fact the demand from the Respondents used to continue. After scrutinizing the evidence of B

P.W. 1 - complainant Tarrannum, P.W.3 - Mohd. Rafiq Abdul Karim the father of the complainant and P.W.4and P.W.5 - the brothers of the complainant, it is clear that they are unable to state when the ::: Downloadedon - 28/07/2014 23:50:06 ::: PNP 5/9 ALS75 demand was exactly made and when they fulfilled the same. Itappears that their evidence is absolutely vague as far as demand of rt

amount and its fulfillment is concerned. It appears to us that there is ou

material inconsistency in the versions of these witnesses about the demand made by the Respondents and itsalleged fulfillment by them. Thus, according to us the prosecution has utterly failed to prove the C

charge under Section 498(A) of the Indian Penal Code beyond reasonable doubt.

h

6.

ig

The complainant has further alleged that the Respondent Nos.4, 5 and 6 i.e. her sister-in-laws used to taunt heras the complainant H

could not give birth to a child. They used to address her as "Khali Khoka Hai" and "Banz Hai" and therebycaused mental cruelty to the complainant. In the testimony the complainant has stated that her y

Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

Indian Kanoon - http://indiankanoon.org/doc/161342542/ 3

sister-in-laws always used to call her as Barren. The evidence of P.W.1 ba

complainant discloses that as far as these utterances are concerned, the same are silent about its specificationthat means the complainant om

has not specifically mentioned which of the Respondents taunted her and at which point of time. It is difficultto accept the version of the complainant that all Respondent Nos.4, 5 and 6 i.e. her sister-in-laws B

at one and the same point of time had uttered the said utterance thereby causing mental cruelty to thecomplainant. We are of the opinion that the evidence of P.W.1 complainant on this aspect is ::: Downloadedon - 28/07/2014 23:50:06 ::: PNP 6/9 ALS75 absolutely vague and on the basis of the same the RespondentNos.4, 5 and 6 cannot be convicted under Section 498(A). Thus, after rt

evaluating the evidence on record, we are of the firm opinion that the ou

prosecution has failed to prove the charge under Section 498(A) of the Indian Penal Code.

C

7. As far as the charge as against Respondent No.7 under Sections 376 and 506 of the Indian Penal Code isconcerned, the complainant h

has made allegation in the complaint that on 6 th November 2007 her ig

husband left the house in the morning at 5.00 a.m. Other family members also left for their respective duties.That her mother-in-law H

i.e. the Respondent No.3 and sister-in-law i.e. the Respondent No.4 were to go to Gujarat and therefore theRespondent No.7 i.e. the husband of the Respondent No.4 accompanied the Respondent Nos.3 y

and 4 for leaving them at the railway station. The complainant was ba

alone at home. At around 1.30 p.m. the Respondent No.7 came back at home. The complainant and theRespondent No.7 had talks. The om

Respondent No.7 asked the complainant to fetch water for him and therefore she went in the kitchen. Whenshe returned back to the hall, the complainant found that the Respondent No.7 had closed the B

door and windows of the house. When she questioned him about the said act, he caught her hand. When thecomplainant was about to raise shouts, the Respondent No.7 gaged her with Odhani and ::: Downloaded on -28/07/2014 23:50:06 ::: PNP 7/9 ALS75 overpowered the complainant and had forcible sexual intercoursewith her and thereafter administered threat to her for not disclosing rt

the said act to anybody and left the house. It appears from the ou

evidence of the complainant that when she informed the said fact to her husband i.e. the Respondent No.2, heassaulted her and said that the Respondent No.7 cannot do any such thing and he also told the C

complainant not to disclose about the said incident with anyone. That on 18th November 2007 when theRespondent Nos.3 and 4 returned h

to the house, the Respondent No.2 informed the said fact to them. ig

Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

Indian Kanoon - http://indiankanoon.org/doc/161342542/ 4

The Respondent Nos.3 and 4 said that the Respondent No.7 cannot do such an act and thereafter theRespondent No.2 i.e. the husband of H

the complainant beat her. Thereafter the in-laws of the complainant called the father of the complainant i.e.P.W.3 and asked him to take his daughter back. It appears from the record that on 8 th December y

2007 a complaint came to be registered with the police, while the ba

complainant left the house of the Respondents on 18 th November 2007. After registration of the complaintP.W.8 - Dr. Bhavna Telang om

examined the complainant on 11th December 2007 and after conducting the various examinations P.W.8 - Dr.Bhavna opined that the patient is habituated to sexual intercourse. B

8. It is to be noted here that the evidence of P.W.3 i.e. the father of the complainant is absolutely vague withrespect to the offence as ::: Downloaded on - 28/07/2014 23:50:06 ::: PNP 8/9 ALS75 contemplated underSection 376 of the Indian Penal Code. It is surprising to note that the complainant did not inform her father rt

immediately after the alleged incident of rape. P.W.3 in his testimony ou

did not specify when the incident occurred or when his daughter told him about the said incident. It furtherappears that the evidence of P.W.4 and P.W.5 i.e. the brothers of the complainant is not consistent C

with each other and both of them have given different versions. The record discloses that the alleged incidentof rape is dated 6 th h

November 2007. As per the version of the complainant herself she ig

remained silent upto 18th November 2007. It further appears that the complainant did not make any attempt toinform the said fact even to H

her parents or brothers. It is further important to note that after disclosure of the incident to the parents andbrothers on 18 th November 2007 by the complainant, the complaint came to be lodged y

on 8th December 2007 i.e. after a period of twenty days from 18 th ba

November 2007 and after approximately one month and two days from the alleged occurrence of incident.The evidence of prosecution om

is absolutely silent about the delay which has caused in lodging of the First Information Report. Theprosecution has not explained the delay caused in lodging the F.I.R. The prosecution has totally failed to B

prove the offence under Section 376 of the Indian Penal Code against the Respondent No.7.

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9. After scrutinizing the entire evidence on record, we are of the opinion that the Trial Court has notcommitted any error while rt

acquitting the Respondents by its judgment and order dated 26 th ou

Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

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September 2013 passed in Sessions Case No.158 of 2009. Hence, the present Criminal Application for leaveto file an Appeal is dismissed. Leave rejected.

C

(Smt. V.K.Tahilramani, J.)

h

ig (A.S. Gadkari, J.) H

y

ba

om

B

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Rt vs Golmahamad Noormahamad Shaikh on 28 July, 2014

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Delhi High CourtDelhi High CourtDinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014Author: Pradeep Nandrajog* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on : August 07, 2014 Judgment Pronounced on : August 14, 2014

+ CRL.A. 210/2013

DINESH KUMAR & ORS. ..... Appellants Represented by: Mr.Sanjay Jain, Advocate with Mr.SubhashC.Ahlawat, Advocate

versus

STATE NCT OF DELHI ..... Respondent Represented by: Ms.Aashaa Tiwari, APP

Insp.Jitender Kumar and SI Ajay

Kumar, PS Dabri

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. Ms.Gayatri was married to Mukesh on December 10, 2005. Mukesh is the son of Dinesh Kumar andKrishna Devi. On March 16, 2011 Gayatri was brought by Mukesh to Mata Chanan Devi Hospital at 3.25P.M. Dr.Iftekharul Haque PW-7 working as the Chief Medical Officer of Mata Chanan Devi Hospitalexamined Gayatri and prepared her MLC Ex.PW- 7/A in which he recorded that Mukesh had brought Gayatrito the casualty and told him that Gayatri became unconscious because she fell at the home followinggiddiness. He noted that Gayatri was not responding to stimuli and the pulse was not palpable. He furtherrecorded that there were ligature marks on both sides of the neck.

Crl.Appeal No. 210/2013 Page 1 of 16

2. Criminal law was set into motion when the hospital authorities informed P.S. Dabri that a lady namedGayatri wife of Mukesh had been brought to the hospital where she was declared dead. SI Birender PW-10was handed over copy of the DD for investigation and accompanied by Ct.Navin Kumar PW-6, he went to thehospital and collected Gayatri�s MLC. He seized the dead body and sent it to the mortuary of DDUHospital for post mortem. Thereafter he went to the house which was the matrimonial home and found a ropetied to the ceiling fan of the room which he seized vide seizure memo Ex.PW-10/A.

3. Since the lady had died within seven years of the marriage and the death was not natural the Sub-DivisionalMagistrate Sh.Ashish Mohan PW- 8 was conveyed the information at 10.00 P.M. He was told that no relativeof the deceased was present in the hospital. Therefore he went to the hospital on March 17, 2011 where he metHari Singh PW-5 and Bhanmati PW-1 the parents of Gayatri and recorded Hari Singh�s statement Ex.PW-5/A.

Dinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014

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4. Surprisingly, in spite of Hari Singh complaining about dowry harassment and notwithstanding the MLC ofGayatri evidencing either a suicidal or a homicidal death, neither Ashish Mohan PW-8 nor SI Birender PW-10thought it prudent to get registered an FIR, if not for the offence punishable under Section 302 IPC at least forthe offence punishable under Section 498A/304B IPC.

5. Gayatri�s post-mortem was conducted on March 17, 2011 by Dr.Santosh Kumar PW-9 who prepared thepost mortem report Ex.PW-9/A on March 17, 2011 recording therein as under:-

EXTERNAL EXAMINATION

Crl.Appeal No. 210/2013 Page 2 of 16 "No any fresh external injuries were present over the body except theligature mark. Ligature mark present on the upper border of thyroid cartilage in the form of groove, base isdry, hard, leathery, parchment like reddish brown in colour, placed obliquely going towards the posterioraspect of neck. Total circumference of neck is 32.0 cms. Ligature mark size is 26.0 cms x 1.0 cms. The upperborder of ligature mark is 6.0 cms below form the base of chin and lower border of ligature mark is 10.0 cmsabove from the M.sternii. Ligature mark is 3.0 cms below from the right mastoid and 7.0 cms below from theleft mastoid. Ligature mark is incomplete and does not encircle the whole neck and absent at the posterioraspect of neck on posterior hair line"

XXXXXX

INTERNAL EXAMINATION

"Neck

Hyoid Bone/Thyroid cartilage/Cricoid cartilage/Tracheal Rings & Mucosa/Any Foreign Body in Trachea: Onincision and dissection of neck, no extravasations of blood and clots seen underneath the ligature mark,underlying tissue of neck, muscles and upto the back of trachea. Skin lying under the ligature mark is dry, palead glistering. Hyoid bone and all cartilages of neck are intact. Mucosa of tracheal lumen is congested andtracheal lumen contains froth."

6. In his opinion as regards the cause of death he positively opined that death was due to asphyxia from antemortem ligature hanging.

7. Regretfully, SI Birender PW-10 did not bother to go and collect the post mortem report of Gayatri onMarch 17, 2011 or a day thereafter. He collected the post mortem report only on May 20, 2011 and thenprepared the rukka Ex.PW-10/B at 6.15 P.M. on May 20, 2011 and got registered the FIR Ex.PW-13/A onMay 20, 2011 for offences punishable under Section 498A/304B IPC.

Crl.Appeal No. 210/2013 Page 3 of 16

8. Two lack of concern, the first by the learned Sub-Divisional Magistrate and the second by SI Birender arenot the only blemish. Another blemish was by SI Birender PW-10 not investigating the case properly to tryand ascertain whether apart from Mukesh, his parents Dinesh and Krishna Devi were present in the housewhen Gayatri was removed to the hospital. It was not known whether it was a case of homicide or suicide. If itwas a case of homicide, who all were present in the house would assume relevance.

9. Insp.Praveen Kumar PW-12 took over the investigation on June 07, 2011 and unfortunately even he did nottry to ascertain whether Gayatri�s in-laws were present in the house.

10. Mukesh, his parents Dinesh and Krishna Devi were charged for an offence punishable under Section498A/34 IPC as also for an offence punishable under Section 304B/34 IPC and alternatively for the offence

Dinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014

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punishable under Section 302/34 IPC.

11. Smt.Bhanmati PW-1, Gyan Singh PW-4 and Hari Singh PW-5, the mother, brother and father respectivelyof Gayatri deposed of Gayatri being subjected to dowry harassment after her marriage on December 10, 2005and that on the day of the incident Gayatri rang up informing that her in- laws were demanding a necklacefrom her and were beating her. At 4.00 P.M. Mukesh informed that Gayatri had died.

12. The police officers to whom we have referred to above deposed facts as recorded by us while narrating theinvestigation. The Sub-Divisional Magistrate deposed likewise as above.

13. In spite of the fact that no witness deposed to Dinesh and Krishna Devi being present in the house whenGayatri was either strangulated to

Crl.Appeal No. 210/2013 Page 4 of 16 death or committed suicide, the learned Trial Judge has vide impugneddecision dated December 10, 2012 convicted Mukesh and his parents for the offence of murder. Twoincriminating circumstances have been found established. The first that the parents and brother of Gayatrideposed that in the afternoon Gayatri had informed them over the telephone that her in- laws were beating herdemanding a gold necklace. The second is the conduct of Mukesh who told Dr.Iftekharul Haque when hebrought Gayatri to the hospital that his wife fell down as she was feeling giddy and then became unconscious,a blatant lie to use the language of the learned Trial Judge. There were ligature marks around the neck ofGayatri.

14. The learned Trial Judge has ignored the fact that neither Dr. Iftekharul Haque noted any other injury markon Gayatri body when she was brought to the casualty of the hospital except ligature mark around the neck.The post mortem report Ex.PW-9/A also does not record any other injury except the ligature mark on the neckof Gayatri. Thus, the claim of the parents and brother of Gayatri that she rang up her parents and informed thatshe was being beaten by her in-laws is incorrect. Besides, in his statement Ex.PW-5/A made to theSub-Divisional Magistrate, what has been said by Hari Singh is that he had received a call at 12.00 Noondemanding a necklace and the threat was that his daughter would be harmed. He never said that his daughterspoke to him. Since the statement is in vernacular, we extract the relevant part in vernacular : �Kal Din16.03.2011 ko lag bhag 12.00 baje phone aya ki aap apni ladki ko keh do ki haar de do nahi bura hojayega�.

15. There is just no evidence of the presence of Dinesh and Krishna Devi in the house and thus from theconduct of their son who tried to conceal the

Crl.Appeal No. 210/2013 Page 5 of 16 truth from Dr. Itekharul Haque no adverse inference can be drawnagainst them. Since their presence in the house has been inferred by the learned Judge from the testimony ofthe parents and brother of Gayatri that at 12.00 Noon Gayatri had rung up complaining that these peoplewould cause harm to her if a gold necklace was not given, a piece of evidence which is highly tainted keepingin view what Hari Singh said at the first instance, the verdict of guilt against Dinesh and Krishna Devi forhaving committed the murder of Gayatri has to be set aside, and more so for a more weightier reason whichwe note hereinafter concerning Mukesh, whose conviction for the offence of murder is highly tainted.

16. The reason obviously is the categoric finding in the post mortem report of the deceased that the death wasthe result of asphyxia caused by ligature hanging. The learned Trial Judge has totally overlooked the postmortem report. Death was not homicidal.

17. Independent of the opinion in the report, we have noted, in paragraph 5 above, the external and theinternal injuries on the neck in the form of ligature mark externally seen and internally detected.

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18. A ligature mark is the result of abrasion or compression of the skin by a strangulation device, whichusually has a rough surface. The mark is usually visible as a pale furrow soon after death and after a lapse oftime it turns into a brownish hue as the furrow dries. In cases where the surface of the ligature is very smooth,the abrasive effect is minimal and the mark is visible as a pale strip of skin or furrow for sometime after death.If a large amount of material is used, the ligature mark may be the impression of the folds of the cloth, or insome circumstances there may be no mark at all.

Crl.Appeal No. 210/2013 Page 6 of 16

19. In cases where the cause of death is compression of the neck, ligature mark may be found in twocircumstances: (a) death by hanging, and (b) death by ligature strangulation.

20. It is a well-accepted fact that the ligature mark of hanging and strangulation are not found at same level.

21. Thus, it would be apposite to understand and differentiate between the ligature patterns along with otherexternal and internal injuries which result from each of the above two situations. A reading of Modi�sMedical Jurisprudence and Toxicology, 23rd ed. 2005 and Burkhard Made, (ed.), Wiley Blackwell, Handbookof Forensic Medicine, 1st ed.rep.2014 would bring out that hanging entails the suspension of the body by aligature around the neck, wherein the constricting force on the neck which causes death happens to be theweight of the body. The loop of a running knot tightens during suspension and produces a ligature mark whichis horizontal but moving upward towards the chin and in almost every case, above the thyroid cartilage.

22. In cases of complete hanging i.e. suspension of the body with no contact with the ground petechiae(red/purple spots on the skin) is not present. However in cases of cases of incomplete hanging i.e. where thebody is suspended but has some form of contact to the ground petechiae may found on the eye, face, behindthe ears and in the oral mucosa.

23. In suicidal hanging, the ligature mark usually runs above the thyroid cartilage. In most cases, it liesbetween the chin and the larynx. If the noose slips upwards during the hanging, there may be several parallelmarks and broad abrasions, which run upwards. The blood draining from the head and

Crl.Appeal No. 210/2013 Page 7 of 16 pooling around the ligature might lead to a band of red skin above theligature furrow.

24. Where a ligature is bound twice or more around the neck, overlapping folds of skin may be caughtbetween the individual loops, known as skin ridges. Skin blisters filled with fluid in the interior and theperiphery of the ligature, and dried saliva tracks in the mouth may also be found. When the ligature passesabove the larynx, the hyoid bone is pushed obliquely backwards together with the base of the tongue restingagainst the posterior wall of the pharynx, which leads to obstruction of air. The tongue is thereby protrudedforward.

25. In addition to the aforementioned external injuries, hanging also entails certain internal injuries.Haemorrhages are mostly to be found on the clavicles, more rarely on the manubrium sterni. However,haemorrhages around the laryngeal and hyoid fractures are scarce and almost non- existent.Only in extremeincidences of trauma, as in falls from a height with the noose around the neck, ruptures of the fasciae and theneck muscles may be observed.

26. In deaths because of ligature strangulation, petechiae are usually present. It is generally more intense thanin other forms of strangulations because of the strength applied by the arms in tightening the ligature. Just likethe ligature mark produced in death by hanging, the ligature mark is caused by the abrasion of the ligature onthe skin. In the majority of cases, the ligature furrow runs horizontally round the neck on its front and sides. Ifthe ligature is a wide band of cloth with a smooth surface, the lesion of the stratum corneum may be so

Dinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014

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minimal that no mark is discernible. Non- intense ligature strangulations may simply leave a reddishhyperaemia on

Crl.Appeal No. 210/2013 Page 8 of 16 the skin of the neck. However, in cases of intense strangulation thelarynx and hyoid bone might suffer a fracture. Occasionally, a fine white foam may adhere to the laryngeal,tracheal and bronchial walls, which may be streaked with blood The foam accumulates from bronchialsecretion and tidal air during dyspnoea.

27. We reproduce an extract from a research paper by Dr.Dean Hawley, Director of Autopsy Services, IndianaUniversity of Medicine wherein he discusses the injuries, which result from ligature strangulation:- "Theinjuries that may occur include patterned contusions and abrasions caused by fingernails, finger touch pads,ligatures, or clothing. These injuries are then prone to change over time, with the healing process. Injuries notat all apparent on the day of death may actually become visible by the next day, as the skin begins to dry andbecome more transparent.

In addition to the blunt force injuries of the neck, strangulation produces evidence of asphyxiation, recognizedas pinpoint hemorrhages in the skin, conjunctiva of the eyes, and deep internal organs."

28. The comparison between the ligature marks resulting from hanging and strangulation has been lucidlydiscussed in Sadikhusen G.Momin, et. al, Pattern of Ligature Mark in Cases of Compressed Neck in RajkotRegion: A Prospective Study, J. Indian Acad Forensic Med. Jan-Mar 2012, Vol.34, No.1 as under:

"A running noose can tighten at the time of suspension and may then produce a mark which takes a horizontalturn but it is likely to be above the thyroid cartilage. Ligature mark depends on the nature and position of theligature used, and the time of suspension of body after death. If the ligature is soft, and the ligature removedimmediately after death, there may be no mark. Again, the intervention of a thick and long beard or clothes onthe neck leads to the formation of a slight mark.

Crl.Appeal No. 210/2013 Page 9 of 16 Sometimes, the pattern of the ligature material is impressed on the skinand a characteristic diagonal mark of the strands found when the rope is used. The wide band of cloth whenused as a ligature on the bare skin may cause a narrow ligature mark, due to tension lines in the stretchedcloth. The mark is a groove or furrow the base is pale, hard leathery and parchment like and margins are redand congested. Ecchymoses and slight abrasions in the groove are rare, but may be found in some cases forinstance in judicial hanging.

Usually only one mark is found. Multiple marks may be present due to multiple turns around the neck orupward displacement after application due to fall. The mark is usually situated above thyroid cartilagebetween larynx and the chin and is directed obliquely, upwards following the line of mandible and interruptedat the back or may show an irregular impression of a knot, reaching the mastoid processes behind the earstowards the point of suspension.

The mark may be found on or below the thyroid cartilage, especially in case of partial hanging. It may becircular if a ligature is first placed at the nape of neck and then its two ends are brought horizontally forwardsand crossed, and carried upwards to the point of suspension from behind the angle of the lower jaw on eachside. The mark will be circular and oblique if a ligature is passed round the neck more than once. Near theposition of the knot, it is like an inverted "V".In strangulation, ligature may be applied as one turn around theneck or even less, as homicide have been perpetrated by assailant pulling U shaped ligature against the frontand sides of neck, while standing at the back."

29. The aforementioned research paper referred to a study conducted by the Department of ForensicMedicine, P.D.U. Medical College and Hospital, Rajkot where a number of cases of death by hanging andligature strangulation were examined. It was observed as under: "In all cases of hanging underlying soft

Dinesh Kumar & Ors. vs State Nct Of Delhi on 14 August, 2014

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tissues of neck were pale, white and glistening, ligature mark was incompletely

Crl.Appeal No. 210/2013 Page 10 of 16 encircling the neck in 72 cases (80%) and obliquely present aroundthe neck all 90 cases (100%) of hanging. In all cases of ligature strangulation underlying soft tissues showedextravasation of blood."

30. At this stage, a word also needs to be spoken about death by smothering. Smothering is a form of asphyxiaby blockage of external respiratory orifices, or blockage of cavities of nose or mouth. Homicidal smothering isextremely difficult to detect. Autopsy may reveal asphyxia, but there may not be any corroborative medicalevidence to establish foul play.

31. Having noted as above, keeping in view the external and the internal injuries noted in the post mortemreport, it is apparent that the ligature mark is the only external injury present on the body. There is no otherinjury anywhere on the body to evidence any sort of struggle or possible resistance by the deceased. Theligature mark is present on the upper border of thyroid cartilage as it is in almost all cases of hanging. Themark is 3 and 7 centimetres below the right and left mastoid i.e. the projections behind each ear respectively.The position of the above indicates that the ligature mark is horizontal but makes a �V�. The saidpattern of ligature mark bears considerable similarity to the ligature marks present in bodies where the causeof death was hanging. In almost all cases of hanging, the ligature mark was present right above the thyroidcartilage. Thus, the ligature pattern resembles the ligature marks found in cases of death by hanging. Relevantwould it be to note that no extravasation of blood was found under the ligature mark. As earlier noted, allcases of ligature strangulation showed extravasation of blood in the underlying tissues.

32. Thus, even otherwise there enough material to conclude that the

Crl.Appeal No. 210/2013 Page 11 of 16 deceased was not strangulated to death. The death is by hanging.There is no possibility of the deceased being forcefully hanged because if it was so she would have resistedand there would be other injuries on the body.

33. The death being suicidal, the trial court committed a serious error in convicting the appellants for offenceunder Section 302 IPC. This brings us to the question whether the appellants can be convicted for offencespunishable under Sections 304B and 498A IPC. A perusal of the record shows that the appellants werecharged for offences punishable under Sections 302/304B/498A/34 IPC. They have been acquitted foroffences punishable under Section 304B and 498A IPC and no leave to appeal petition has been filed by theState against the impugned judgment nor has any appeal been filed by the complainant against acquittal of theappellants for the aforesaid offences.

34. In the decision reported as (2001) 2 SCC 577 Shamnsaheb M. Multtani Vs. State of Karnataka a threejudge bench noted that where main ingredients of two cognate offences are common the one punishable withlesser sentence can be said to be minor offence. Noting that the ingredients of Section 304B IPC weredifferent from those of Section 302 IPC, the former could not be regarded as minor offence of the latter, it washeld -

"25. We have now to examine whether, on the evidence now on record the appellant can be convicted underSection 304-B IPC without the same being included as a count in the charge framed. Section 304-B has beenbrought on the statute book on 9-11-1986 as a package along with Section 113-B of the Evidence Act. Section304-B(1) IPC reads thus:

�304-B. Dowry death.- (1) Where the death of a

woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances withinseven years of her marriage and it is shown

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Crl.Appeal No. 210/2013 Page 12 of 16 that soon before her death she was subjected to

cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demandfor dowry, such death shall be called dowry death, and such husband or relative shall be deemed to havecaused her death.�

26. In the Explanation to the Section it is said that the word dowry shall be understood as defined in theDowry Prohibition Act, 1961.

27. The postulates needed to establish the said offence are: (1) Death of a wife should have occurredotherwise than under normal circumstances within seven years of her marriage; (2) soon before her death sheshould have been subjected to cruelty or harassment by the accused in connection with any demand for dowry.Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If theprosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassmentfor or in connection with any demand for dowry and that her death had occurred (within seven years of hermarriage) otherwise than under normal circumstances "the court shall presume that such person had causeddowry death".

28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the Court shall presume thefact it shall regard such fact as proved, unless and until it is disproved". So the court has no option but topresume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsionon the court. However it is open to the accused to adduce such evidence for disproving the said compulsorypresumption, as the burden is unmistakably on him to do so. He can discharge such burden either by elicitinganswers through cross- examination of the witnesses of the prosecution or by adducing evidence on thedefence side or by both.

29. At this stage, we may note the difference in the legal position between the said offence and section 306IPC which was merely an offence of abetment of suicide earlier. The

Crl.Appeal No. 210/2013 Page 13 of 16 section remained in the statute book without any practical use till1983. But by the introduction of Section 113A in the Evidence Act the said offence under Section 306 IPChas acquired wider dimensions and has become a serious marriage- related offence. Section 113A of theEvidence Act says that under certain conditions, almost similar to the conditions for dowry death the courtmay presume having regard to the circumstances of the case, that such suicide has been abetted by herhusband etc. When the law says that the court may presume the fact, it is discretionary on the part of the courteither to regard such fact as proved or not to do so, which depends upon all the other circumstances of thecase. As there is no compulsion on the court to act on the presumption the accused can persuade the courtagainst drawing a presumption adverse to him.

30. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from thedistinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former thecourt has a statutory compulsion, merely on the establishment of two factual positions enumerated above, topresume that the accused has committed dowry death. If any accused wants to escape from the said catch theburden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. Theburden of proof never shifts on to him. It ever remains on the prosecution which has to prove the chargebeyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a casethe accused can wait till the prosecution evidence is over and then to show that the prosecution has failed tomake out the said offence against him. No compulsory presumption would go to the assistance of theprosecution in such a situation. If that be so, when an accused has no notice of the offence under Section304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave

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miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to theserious

Crl.Appeal No. 210/2013 Page 14 of 16 punishment prescribed thereunder, which mandates a minimumsentence of imprisonment for seven years.

32. The serious consequence which may ensue to the accused in such a situation can be limned through anillustration: If a bride was murdered within seven years of her marriage and there was evidence to show thateither on the previous day or a couple of days earlier she was subjected to harassment by her husband withdemand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC readwith Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by adacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her deathat all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-BIPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife wasmurdered like that as he can have his traditional defence that the prosecution has failed to prove the charge ofmurder against him and claim an order of acquittal.

33. The above illustration would amplify the gravity of the consequence befalling an accused if he was onlyasked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304-B IPCwithout any notice to him, because he is deprived of the opportunity to disprove the burden cast on him bylaw.

34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section302 IPC, but the offence under Section 304-B IPC has been made out, the court has to call upon the accusedto enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, aconviction under Section 304- B IPC would lead to real and serious miscarriage of justice. Even if no suchcount was included in the charge, when the court affords him an opportunity to discharge his burden byputting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section304-B IPC, unless he succeeds in disproving the presumption, it is possible

Crl.Appeal No. 210/2013 Page 15 of 16 for the court to enter upon a conviction of the said offence in theevent of his failure to disprove the presumption."

35. Thus Sections 304B or 498A IPC not being minor offences of Section 302 IPC, in the absence of anappeal by the complainant or the State, it is beyond the jurisdiction of this Court to convert the conviction foroffence punishable under Section 302 IPC to one under Section 304B or 498A IPC.

36. As the conviction the appellants for offence punishable under Sections 302/34 IPC is illegal, they areacquitted of the said charge.

37. The appeal is disposed of.

38. The appellants, who are in custody, be released forthwith, if not required in any other case. Copy of thejudgment be sent to Superintendent, Tihar Jail for necessary action.

39. TCR be returned.

(PRADEEP NANDRAJOG)

JUDGE

(MUKTA GUPTA)

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JUDGE

AUGUST 14, 2014

skb

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1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.12.2014

CORAM

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Crl.R.C.No.684 of 2014

E.Kalivarathan

... Petitioner

-Versus-

The State Rep. byThe Sub-Inspector of Police,Pudupet Police Station,Cuddalore District.

... Respondent

Prayer:- Criminal Revision Petition filed under Section 401 of

the Code of Criminal Procedure to convert the acquittal in

C.C.No.12 of 2010 on the file off the learned Judicial Magistrate

No.II, Panruti dated 31.12.2012 as an honourable acquittal as

far as the petitioner is concerned.

For Petitioner : Mr.V.Raghavachari for

Mr.Ma.P.Thangavel

For Respondent : Mr.M.Maharaja,

Additional Public Prosecutor

2

ORDER

The petitioner was the fifth accused in C.C.No.12 of

2010 on the file of the learned Judicial Magistrate No.II, Panruti.

He stood prosecuted along with eight others for alleged offences

under Sections 147, 148 and 323 of IPC. During trial as many

as 12 witnesses were examined and 16 documents were

exhibited on the side of the prosecution. But, no witness had

implicated the petitioner in any manner with the alleged crime.

The learned Magistrate by order dated 31.12.2012, acquitted all

the accused including the petitioner. The said order of the

learned Magistrate has become final.

2. Subsequently, the petitioner made an application for

the post of Grade II Police Constable governed by the "Tamil

Nadu Subordinate Police Service Rules". After the written

examination and the physical test, he was selected for the said

post. Then police verification of his antecedence was ordered

and on such verification, it was found that the petitioner was an

accused in the above case and he was acquitted by the learned

Magistrate. However, the Recruitment Board rejected his

candidature on the ground that the acquittal of the petitioner in

3

the above case is not an "honourable acquittal".

3. Now the petitioner is before this Court with this

criminal revision with the following prayer:

“It is therefore most humbly prayed

that this Hon'ble Court may be pleased

to convert the acquittal in C.C.No.12 of

2010 on the file of the Judicial Magistrate

Court No.II, Panruti dated 31.12.2012 as

an honourable acquittal as far as the

petitioner is concerned by allowing the

present criminal revision petition and

thereby render justice.”

4. I have heard the learned counsel for the petitioner

and the learned Additional Public Prosecutor for the respondent.

I have also perused the records.

5. At the outset, the learned Additional Public

Prosecutor raised objections regarding the maintainability of this

revision petition. According to him, a revision petition under

Section 397 and 401 of Cr.P.C would not lie at the instance of an

acquitted accused. The learned Additional Public Prosecutor

4

would point out that the lower Court had acquitted him by giving

benefit of doubt. As against the same, neither a revision would

lie nor in such a situation the inherent powers of this Court

under Section 482 of Cr.P.C. could be invoked to convert the

said acquittal into one of a honourable acquittal, he contended.

6. His further contention is that the concept of

honourable acquittal is unknown to criminal jurisprudence and

therefore the request of the petitioner to convert the acquittal

into one of honourable acquittal is not at all maintainable. In

support of his contention, the learned Additional Public

Prosecutor relies on a Division Bench Judgment of this Court in

M.Krishnan Vs. The State of Tamil Nadu reported in 2014

(3) MWN (Cr.) 203 (DB).

7. Mr.V.Raghavachari, the learned counsel appearing

for the petitioner would submit that when a finding recorded in

an order is adverse to his interest and contrary to law, the

aggrieved should not be left in lurch without a remedy. He would

further submit that the judgment of the Division Bench in

M.Krishnan's case [cited supra] is contrary to the specific

5

statutory provisions contained in the Cr.P.C. as well as various

judgments of the Hon'ble Supreme Court. According to him, not

only an order of acquittal or conviction or any other order could

be challenged, but the correctness, legality or propriety of any

finding could also be challenged by way of revision.

8. It is his further contention that, in the instant case,

though there was no evidence on record, the learned Magistrate

has acquitted him by giving him the benefit of doubt which

amounts to a finding contrary to the facts. Thus, according to

him, this finding can be challenged in a revision.

9. Since much reliance has been placed on the Division

Bench judgment of this Court in M.Krishnan's case (cited supra)

by the learned Additional Public Prosecutor, let us begin our

discussions from that judgment.

10. Prior to the said judgment, in many cases, a

number of learned Single Judges of this Court had taken the

consistent view that a revision is maintainable to convert a

finding of the Trial Court acquitting an accused by giving benefit

6

of doubt into one of honourable acquittal. When a similar

request came up before yet another learned Single Judge, sitting

in Madurai Bench [Hon'ble Justice P.N.Prakash], the learned

Judge had doubt about the correctness of such course adopted

by various other Hon'ble Judges. Therefore, the learned Judge

referred the matter to a Division Bench for an authoritative

pronouncement. In paragraph 4 of his order the learned Judge

had observed as follows:

“4. I gave my anxious consideration to

the arguments advanced by the learned

counsel appearing for the revision

petitioners. No judgment of the Hon'ble

Apex Court has been placed before me in

support of the contention of the revision

petitioners that a criminal court can employ

the expression "Honourable Acquittal" while

acquitting the accused. Therefore, I am of

the opinion that for an authoritative

pronouncement on this aspect, it would be

in the fitness of things to place the matter

before a Division Bench.”

[Emphasis supplied]

11. On such reference, the Hon'ble Chief Justice placed

the matter before the Division Bench. The Division Bench framed

7

the following two questions:-

“(i) When Sections 232, 235, 248 and 255

of the Code of Criminal Procedure use only a

simple expression namely "acquittal", without

any adjectives, is it open to the Criminal Courts

to use the expression such as "benefit of

doubt" and " beyond reasonable doubt" etc. ?

and

(ii) Whether this Court has power in

terms of Section 401(1) read with Section

386(d) and (e) of the Code, to alter or

amend the order of "acquittal" of the Trial

Court into one of "honourable acquittal”.

12. The Division Bench, after having had elaborate

discussion on the said questions and after having referred to

various judgments of the Supreme Court of U.S.A., the Supreme

Court of Canada as well as the Hon'ble Supreme Court of India,

answered the first question as follows:

“40. Therefore, our answer to the first

question is that there is no prohibition in

law for the criminal Courts to use the

expressions such as 'benefit of doubt' and

'beyond reasonable doubt', despite the

fact that Sections 232, 235, 248 and 255

of the Code of Criminal Procedure use only

8

a simple expression namely 'acquittal'

without any adjectives. But, these

adjectives or expressions such as 'benefit

of doubt' and 'beyond reasonable doubt'

will have no meaning or significance

insofar as criminal jurisprudence is

concerned. In civil law and service

jurisprudence, there is a world of

difference between 'not proved' and

'disproved'. In criminal jurisprudence,

there is no distinction between these

expressions namely 'not proved' and

'disproved', as both would result only in

one consequence, namely acquittal.

Consequently, an acquittal is an acquittal

and there are not different forms nor

different degrees of acquittal in so far as

criminal jurisprudence is concerned. The

different adjectives used by various

courts, to the acquittals granted by them,

actually indicate the process of reasoning

through which they arrive at the decision

to acquit a person. 'Proof beyond

reasonable doubt' and 'Benefit of doubt'

are actually tools that guide the subjective

mind of the Judge to arrive at a finding

whether the accused is guilty or not.”

9

13. Referring to the above answer given by the Division

Bench, the learned Additional Public Prosecutor would submit

that since the adjectives or expressions “benefit of doubt” or

“beyond reasonable doubt” will have no meaning or significance

in so far as criminal jurisprudence is concerned, the accused

who has got the benefit of acquittal will have no grievance and

therefore he cannot challenge the same.

14. Mr.V.Raghavachari, the learned counsel appearing

for the petitioner would vehemently challenge the said

contention of the learned Additional Public Prosecutor.

According to him, it is true that in the Code of Criminal

Procedure the language used is only "acquittal" and the said

term has not been qualified by any adjectives or expressions

such as “benefit of doubt” or “beyond reasonable doubt”. But

when the accused is entitled for a simple acquittal, adding the

adjective that he is acquitted by giving him “benefit of doubt”,

carries a stigma to his dignity and the same has got other

consequences also. Thus in an appropriate case, when the

accused is entitled for simple acquittal, if the Trial Court acquits

him by "giving benefit of doubt", the party aggrieved has a

10

legal right to get it rectified by approaching the Higher Criminal

Court by way of Revision or by way of a petition under Section

482 of the Code, he contended.

15. I have considered the above submissions.

16. Before embarking upon the legal issues, at the

outset, I wish to state that, sitting single, I cannot either

disagree or raise any doubt about the correctness of the views

expressed by the Division Bench on various issues in

M.Krishnan's case, provided such contrary views have not been

expressed either by a larger Bench or by the Hon'ble Supreme

Court. I respect this judicial discipline as an essential feature of

administration of justice. Therefore, I make it clear that the

views expressed by me in this order by making reference to the

Division Bench judgment would undoubtedly fall within the

frame of judicial discipline.

17. With great respect to the Division Bench, which has

decided M.Krishnan's case [cited supra], I wish to, at the first,

articulate on the legal position in respect of the powers of a

11

larger Bench to which reference has been made by a smaller

Bench. At the first blush, this articulation may appear to be

unnecessary for the facts of the present case, but, in due

course of articulation, I am sure that the said cloud would

disappear and it would certainly emerge that this articulation is

not unwarranted. As I have already extracted, the learned single

Judge [P.N.PRAKASH.J.,] who made the reference had a singular

doubt in his Lordship's mind, requiring an authoritative

pronouncement by a larger Bench. The doubt, as it could be

found from the referral order of the learned single Judge, is as

to whether a criminal court can employ the expression

"honourable acquittal" while acquitting the accused. The

Hon'ble The Chief Justice, while constituting the Division Bench,

apparently did not refer any more question to the Division

Bench. But, the Division Bench, on its own, had framed two

questions to answer, that, with great respect to the Division

Bench, I apprehend, that the Division Bench lacked jurisdiction

to do so. The first question framed by the Division Bench was

as to whether a criminal court can employ the expressions such

as “benefit of doubt” or “beyond reasonable doubt” etc., while

acquitting the accused. In my understanding, with respect, I

12

have to state that the referral judge, as it is reflected from the

referral order itself, had no such doubt as to whether the

criminal courts while acquitting the accused could employ the

adjectives “benefit of doubt” or “beyond reasonable doubt” etc.

The doubt raised by the learned Judge was whether the

expression “honourable acquittal” could be employed by the

criminal courts.

18. Similarly, the second question framed by the

Division Bench was whether the High Court has power under

Section 401(1) and Section 386 (d) and (e) of the Code to alter

or amend the order of "acquittal" of the trial court into one of

"honourable acquittal" ?. With respect, I have to state that this

question was also not referred to the Division Bench for answer

by the referral Judge.

19. In this regard, let us now survey as to how the

Hon'ble Supreme Court has dealt with such situations. In

Kesho Nath Khurana vs Union Of India [AIR 1982 SC

1177] the question which was referred to a Division Bench of

the High Court by a learned single Judge was whether the

13

order dated January 21, 1963 made by the Chief Settlement

Commissioner was final and binding in the present appeal, and if

so, what is its effect upon the point in controversy in the present

appeal? But, the Division Bench of High Court, on such

reference, having answered the above question, proceeded

further and disposed of the second appeal itself. When the

matter came up before the Hon'ble Supreme Court, the Hon'ble

Supreme Court reversed the order of the High Court on the

ground that the Division Bench ought to have sent the appeal

back to the single Judge with the answer rendered by them to

the question referred by the single Judge and left it to the single

Judge to dispose of the second appeal according to law.

20. The above said judgment came to be again

considered by the Hon'ble Supreme Court in Kerala State

Science & Technology Museum Vs. Rambal Co. and

Others, reported in (2006) 6 SCC 258 wherein in para 9

the Hon'ble Supreme Court has held as follows:-

“It is fairly well settled that when

reference is made on a specific issue either

by a learned Single Judge or Division Bench

to a larger Bench i.e. Division Bench or Full

14

Bench or Constitution Bench, as the case

may be, the Larger Bench cannot adjudicate

upon an issue which is not the question

referred. [See: Kesho Nath Khurana v.

Union of India and Others [1981 (Supp.)

SCC 38], Samaresh Chandra Bose v. The

District Magistrate, Burdwan and Others

[1972 (2) SCC 476] and K.C.P. Ltd. v. State

Trading Corporation of India and Another

[1995 Supp. (3) SCC 466].”

[Emphasis supplied]

21. In yet another judgment in T.A. Hameed vs. M.

Viswanathan reported in (2008) 3 SCC 243 the Hon'ble

Supreme Court, after having referred Kesho Nath Khurana and

Kerala State Science & Technology Museum cases [cited supra]

reiterated the law in the following words:-

“11. In the case at hand also, almost

an identical situation had taken place that

a reference was made by the learned

Division Bench of the Kerala High Court

to the Full Bench and the Full Bench after

answering the reference went on to

decide the revision petition itself on

merits, which the Full Bench had no

jurisdiction to do as the revision petition

15

was not referred to the Full Bench for

decision. Since, only reference was made

to the Full Bench, the Full Bench should

have answered the question referred to it

and remitted the matter to the Division

Bench for deciding the revision petition

on merits. Consequently, we set aside

that part of the impugned order dated

31.1.2003 whereby the Full Bench has

dismissed the revision petition filed by

the appellant herein...........”

22. Very recently, in State Of Punjab vs Salil

Sabhlok and others, Manu/SC0166/2013 the Hon'ble

Supreme Court had to deal with the similar situation. In the

said case, the Hon'ble Supreme Court was to deal with the

contention that the Full Bench had exceeded its jurisdiction by

enlarging the scope of reference and deciding matters which

were not referred to it by the order dated 13.07.2011 of the

Division Bench. While deciding the said question, the Supreme

Court has taken note of the Rule 4 of the Punjab High Court

Rules which states that Save as provided by law or by these

rules or by special order of the Chief Justice, all cases shall be

heard and disposed of by a Bench of two Judges. The Hon'ble

16

Supreme Court further observed that there was no order of the

Chief Justice making a reference but there was only the order of

the Division Bench of the High Court making a reference to the

Full Bench of three Judges of the High Court. Therefore, the

Hon'ble Supreme Court had to look at the order dated

13.07.2011 of the Division Bench to find whether the Division

Bench of the High Court had referred only specific questions to

the Full Bench or the entire case to the Full Bench. Ultimately, in

para 28, the Hon'ble Supreme Court has held in the following

terms:-

“28. ... ... ... I, therefore, do not

agree with Mr. Lalit that the Division Bench

referred the entire case to the Full Bench

by the order dated 13.07.2011. I further

find that although the aforesaid specific

questions relating to the procedure for

identifying persons of competence and

integrity for appointment as the Chairman

of the Public Service Commission only

were referred by the Division Bench of the

High Court, the Full Bench, instead of

deciding these specific questions referred

to it, has given directions to the State of

Punjab and the State of Haryana to follow

a particular procedure for appointment of

17

Members and Chairman of the Public

Service Commission till such time a fair,

rational, objective and transparent policy

to meet the mandate of Article 14 of the

Constitution is made. I, therefore, agree

with Mr. Rao that the Full Bench of the

High Court has decided issues which were

not referred to it by the Division Bench of

the High Court and the judgment dated

17.08.2011 of the Full Bench of the High

Court was without jurisdiction.”

[Emphasis supplied]

23. In view of the above settled position of law

declared by the Hon'ble Supreme Court that a larger Bench to

which certain specified questions are referred for answer draws

jurisdiction only from out of reference or on the order of the

Hon'ble Chief Justice and therefore, the larger Bench cannot

travel too long so as to answer any question or issue which was

not referred to it at all. If this law, which is a binding precedent,

is applied to the judgment of the Division Bench, with respect, I

apprehend that the answers given by the Division Bench to the

two questions which were not at all referred to by the learned

single Judge will have no binding force on this court. However,

18

I do not wish to travel more on this matter since I do not have a

much of different view than the view taken by the Division

Bench in many respects.

24. Now, let us go to the issues. So far as the adjective

phrases “beyond reasonable doubt” or “benefit of doubt” to be

added to the expression "acquittal" are concerned, the Division

Bench has rightly referred to the principle laid down in

Woolmington vs. Director of Public Prosecutions (1935

ALL E.R.Page 1). At this juncture, it is worth referring to

certain Articles of "The Universal Declaration of Human Rights.

Article 11 (1) provides that everyone charged with penal

offences has a right to be presumed innocent until proved guilty

according to law in a public trial at which he has had all the

guarantees necessary for his defence. Article 14(2) states that

everyone charged with a criminal offence shall have the right to

be presumed innocent until proved guilty according to law.

Article 6(1) of "Convention on Civil and Political Rights" states

that every human being has the inherent right to life. This right

shall be protected by law; No one shall be arbitrarily deprived

of his life. Article 9(1) says that everyone has the right to liberty

19

and security of person. No one shall be subjected to arbitrary

arrest or detention. No one shall be deprived of his liberty

except on such grounds and in accordance with such procedure

as is established by law. Article 14(2) envisages that everyone

charged with a criminal offence shall have the right to be

presumed innocent until proved guilty according to law and shall

be entitled to minimum guarantees detailed therein.

25. The Hon'ble Supreme Court in Bachan Singh vs

State Of Punjab, 1980 (2) SCC 684 has held that “the above

requirements of these clauses are substantially the same as the

guarantees or prohibitions contained in Articles 19 and 21 of our

Constitution. India's commitment, therefore, does not go

beyond what is provided in the Constitution and the Indian

Penal Code and the Criminal Procedure Code.”

26. In P.N.Krishna Lal v. Government of Kerala,

1994 Suppl. (5) SCR 526 after having referred to the above

position, the Hon'ble Supreme Court has held as follows:-

“It is true and indisputable, as contended

by Sri A.Raghuvir, the learned senior counsel

that the golden rule that runs through the web

20

of all the civilised criminal jurisprudence is

that the accused is presumed to be innocent

unless he is found guilty of the charged

offence. The burden to prove all the facts

constituting the ingredients of the offence

against the accused beyond reasonable doubt

rests on the prosecution. If there is any

reasonable doubt the accused gets the benefit

of acquittal. But the rule gets modulated with

the march of time. .....”

27. Thus, the Hon'ble Supreme Court has recognized

the Woolmington principle to Indian Criminal Law

Jurisprudence as well. The Hon'ble Supreme Court in

P.N.Krishna Lal's case has made a thorough survey of the

legal position into the contours of comparable jurisdiction in

U.K., Hong Kong, Malaysia, U.S.A., Australia and Canada to find

the permissive limits of the burden of proof on the accused. In

that judgment, the Hon'ble Supreme Court, referring to

Woolmington's case, wherein Lord Sankey held: "throughout

the web of the English criminal law the golden thread is always

to be seen that it is the duty of the prosecution to prove the

prisoner's guilt subject to what I have already said as to the

defence of insanity and subject also to any statutory

21

exception.....No matter what the charge or where the trial, the

principle that the prosecution must prove the guilt of the

prisoner is part of the common law of England and no attempt

to whittle it down can be entertained. This ratio was further

explained in the speech of Viscount Simon L.C. in Mancini v.

Director of Public Prosecutions, (1942) A.C. 1 at 11,

Woolmington's case was explained and reinforced that the

prosecution must prove the charge beyond reasonable doubt,

and, consequently, that if, on the material before the jury, there

is a reasonable doubt, the prisoner Should have the benefit of

it."

28. Then, the Hon'ble Supreme Court referred to

Jayesena v. The Queen, (1970) A.C. 618, wherein Lord

Devlin speaking for the Privy Council, commenting upon

Woolmington's case at p. 623 stated that the House laid it down

that, save in the case of insanity or of a statutory defence, there

was no burden laid on die prisoner to prove his innocence and

that it was sufficient for him to raise a doubt as to his guilt.

29. The Hon'ble Supreme Court also took note of the

22

position in Singapore Court and referred to Ong Ah Chuan v.

Public Prosecutor, (1981) A.C. 648 and then Regina v.

Hunt (Richard), (1987) A.C. 352 wherein while explaining

the declared burden of proof to prove his innocence, the

Singapore Court has held as follows:-

“whenever burden of proof is placed upon

a defendant by statute the burden should, be

an evidential burden and not a persuasive

burden. ”

30. The Hon'ble Supreme Court in P.N.Krishna Lal's

case took note of the judgments from Canadian Supreme

Court, Supreme Court of Unites States and various other courts

and discussed the legal position in terms of Ss.5, 6 and 101 of

The Indian Evidence Act. After having referred to various

previous judgments, the Hon'ble Supreme Court has held as

follows:-

“The definition of the word 'proved' says

that a fact is said to be proved when, after

considering matters before it the Court either

believes it to exist, or considers its existence

so probable that a prudent man ought, under

the circumstances of the particular case, to

23

act upon the supposition that it exists. A fact

is said to be not proved when it is neither

proved nor disproved. A fact is said to be

disproved when, after considering the matters

before it, the Court either believes that it does

not exist, or considers its non-existence so

probable that a prudent man ought, under the

circumstances of the particular case, to act

upon the supposition that it does not exist. It

is the cardinal rule of our criminal

jurisprudence that the burden in the web of

proof of an offence would always lie upon the

prosecution to prove all the facts constituting

the ingredients beyond reasonable doubt. If

there is any reasonable doubt, the accused is

entitled to the benefit of the reasonable

doubt. At no stage of the prosecution case,

the burden to disprove the fact would rest on

the defence. However, exceptions have been

provided in sections 105 and 106 of the

Evidence Act, as stated herein before.”

[Emphasis supplied]

31. In Harbhajan Singh v. State of Punjab, [1965]

3 SCR 235, the Hon'ble Supreme Court has further clarified

that the test of proof beyond reasonable doubt does not apply

to the accused and if he proves his defence by preponderance of

24

probabilities, the burden shifts to the prosecution which has still

to discharge its original burden. Considering the Woolmington's

ratio this Court held that the principle of common law criminal

law jurisprudence would be a part of the criminal law in our

country.

32. From the above judgments, it is crystal clear that

Woolmington principle has become a part of the criminal

jurisprudence of India. Though in Indian Evidence Act the

adjectives “proof beyond reasonable doubt” and “benefit of

doubt” have not been statutorily provided for, the Hon'ble

Supreme Court has imported the Woolmington principle into

the Indian Criminal Law Jurisprudence, and thus has recognized

the said principle for its application while dealing with any

criminal case. Therefore, there can be no doubt that the criminal

courts while acquitting the accused, can add the adjectives like

“beyond reasonable doubt” and “benefit of doubt” Thus, I am in

full agreement with the answer given by the Division Bench to

the first question.

33. But, in the instant case, the question involved is

25

slightly different. It is not the contention of the petitioners that

these adjectives cannot be added to the expression “acquittal”

when the criminal court acquits the person who was facing the

prosecution. All that is contended before this court is that the

trial court has inappropriately used the term “benefit of doubt”

while acquitting the accused giving the impression that there

was some evidence against the accused. In other words,

according to the petitioner,the trial court should have acquitted

the accused without adding the adjectives “by giving benefit of

doubt”. Undoubtedly, there is a vast difference between "an

acquittal" in simple terms and an acquittal by extending the

"benefit of doubt". The judgment of the Division Bench has not

dealt with this difference. Therefore, it is open for this court

now to deal with the said difference. This difference could be

perceived by simply referring to Sections 232 and 235 of the

Code which read as follows:-

"232. Acquittal – If after taking the

evidence for the prosecution, examining the

accused and hearing the prosecution and the

defence on the point, the Judge considers

that there is no evidence that the accused

committed the offence, the judge shall

26

record an order of acquittal.

235. Judgment of acquittal or

conviction - (1) After hearing arguments

and points of law (if any), the Judge shall

give a judgment in the case.

(2) If the accused is convicted, the

Judge shall, unless he proceeds in

accordance with the provisions of section

360 hear the accused on the question of

sentence, and then pass sentence on him

according to law."

34. A simple comparative reading of these two

provisions would make it very clear that in a trial before the

court of session, after the evidence on the side of the

prosecution is completed, the court has to find whether there is

any evidence at all against the accused that he has committed

the offence for which he stands charged. If the court finds that

there is no evidence at all against the accused in support of the

charge, it is mandatory for the court to record an "order of

acquittal".

35. On considering the evidence let in by the

27

prosecution, if the court finds that it is not a case of no evidence

against the accused and if the court does not acquit the accused

under section 232 of the Code then, the court shall call upon the

accused to enter upon his defence and adduce evidence, if any,

he may have in support there of. Under Section 234 of the

Code, thereafter, the prosecution as well as the accused or his

pleader shall make their arguments. Then comes Section 235 of

the Code. Under this provision, after hearing the arguments

and points of law, if any, the Judge shall give a "judgment" in

the case. The said judgment may be a "judgment of acquittal"

or "judgment of conviction". An accused against whom there is

some evidence in support of the charges, but, the evidence is

not either sufficient to hold him guilty or there is any reasonable

doubt in the evidence let in by the prosecution in support of the

charges, then, the court may acquit the accused either by

saying that the charges have not been proved beyond

reasonable doubt or by saying that by giving benefit of doubt he

is acquitted. If the accused is acquitted under Section 235 of

the Code, the inference is that there was evidence against him,

but he was acquitted either because the charges were not

proved beyond reasonable doubt or that he was extended the

28

benefit of certain doubts in the case of the prosecution.

36. In a case where there is no evidence at all against

the accused, if the court, instead of acquitting him under

Section 232 of the Code acquits him under Section 235 of the

Code, then, though there is acquittal favourable to him, the

accused is still aggrieved, because the acquittal under Section

235 of the Code will have a different civil consequences upon

him. Similarly, while acquitting the accused rightly under

Section 232 of the Code because there is no evidence, if the

court inappropriately uses the expression that the acquittal is

because charges have not been proved beyond reasonable

doubt or that the acquittal is by extending the benefit of doubt

even then, the accused is aggrieved. Similarly, in the trial of

warrant-cases by the Magistrates or trial of summons-cases by

the Magistrates or in a summary trials, though the criminal

court can use the expressions "beyond reasonable doubt" or

"giving benefit of doubt" they are not free to use these terms

inappropriately when the accused is acquitted on the ground

that there is no evidence at all against him.

29

37. "Proof beyond reasonable doubt" or "giving benefit

of doubt" relate to evidential burden and not a persuasive

burden. Thus, the finding is on the evidence let in by the

prosecution and not on the character or innocence of the

accused. If there is no evidence against the accused, there is

no occasion for the court to raise any doubt at all because, as

we have already pointed out, the doubts relate to the evidence

and not to the innocence or guilt of the accused. Thus, it is

crystal clear, that though the criminal court has got freedom to

use the expressions “benefit of doubt” or “not proved beyond

reasonable doubt” these expressions cannot be used

inappropriately by the criminal court when the accused is

entitled for an acquittal simpliciter.

38. The next question which arises for consideration is,

a criminal court, instead of acquitting an accused simpliciter

when there is no evidence at all against him, if inappropriately

employs the term “acquittal by giving benefit of doubt” or

“acquittal as there is no proof beyond reasonable doubt”, "What

is the remedy available for the accused?"

30

39. In this regard, I have to agree with the Division

Bench in M.Krishnan's case cited supra that there is no right of

appeal available to an accused, who has been acquitted,

inasmuch as the right of appeal for the accused is only against

conviction and sentence. As against acquittal or for

enhancement of punishment, the right of appeal is vested only

with the State and the victim. Therefore, to rectify the above

inappropriate expressions such as “benefit of doubt”or “not

proved beyond reasonable doubt” employed by the court the

aggrieved cannot make any appeal at all.

40. Now, in such a situation, let us examine, as to

whether the revisional remedy is available to the accused.

Section 401 (4) of the Code prohibits a revision at the instance

of the party who has got right of appeal. The converse is that

when there is no right of appeal, the remedy for the aggrieved

is to file a revision provided it falls within the parameters

enshrined in Section 397 of the Code. Now, let us have a look

into S.397 of the Code which reads as follows:-

"397. Calling for records to

exercise powers of revision.— (1) The

High Court or any Sessions Judge may call

31

for and examine the record of any

proceeding before any inferior Criminal

Court situate within its or his local

jurisdiction for the purpose of satisfying

itself or himself as to the correctness,

legality or propriety of any finding.

Sentence or order, recorded or passed,

and as to the regularity of any proceedings

of such inferior Court, and may, when

calling for such record, direct that the

execution of any sentence or order be

suspended, and if the accused is in

confinement, that he be released on bail or

on his own bond pending the examination

of the record.

Explanation.— All Magistrates,

whether Executive or Judicial, and whether

exercising original or appellate

jurisdiction, shall be deemed to be inferior

to the Sessions Judge for the purposes of

this sub-section and of section 398.

(2) The powers of revision conferred

by sub-section (1) shall not be exercised in

relation to any interlocutory order passed

in any appeal, inquiry, trial or other

proceeding.

(3) If an application under this section

has been made by any person either to the

32

High Court or to the Sessions Judge, no

further application by the same person

shall be entertained by the other of them.

41. A plain reading of S.397 of the Code would make it

very clear that revision would like only in the following

circumstances:-

"(i) To test the correctness, legality or propriety of any

finding;

(ii) to test the correctness, legality or propriety of

sentence or order, recorded or passed; and

(iii) as to the regularity of any proceedings of such

inferior Court"

42. Thus, the correctness or legality or propriety of any

finding is also revisable. The Division Bench, while answering

the question No.2, has held in para 49 as follows:-

"49. .... .... .... If a revision filed by

an accused, who is acquitted by the Trial

Court, is not maintainable either as an

appeal under any of the provisions of

Sections 373 to 380 or as revision under

33

Section 397, the power under Section

401(1) read with Section 386(d) cannot

be invoked."

43. In para 52, again the Division Bench, after having

referred to Pranab Kumar Mithra v. State of West Bengal [AIR

1959 SC 144], has held as follows:-

“Moreover, in any case, an order of

acquittal will not come within the definition of

the expression 'any other order' appearing in

Clause (d) of Section 386. Judgments are

given under Chapter XXVII of the Code and a

judgment of acquittal will not come within the

definition of the expression 'any other order' in

Section 386(d). Therefore, the revisions filed

by acquitted persons, are not maintainable."

44. The Division Bench, with great respect, I should

say, was not apprised of the difference between an order of

acquittal and judgment of acquittal. Under Section 232 of the

Code when there is no evidence against the accused, the court

shall record an order of acquittal . If an accused is acquitted

under s.235 of the Code, the court shall give a judgement of

acquittal. So far as the trial of a warrant-case by the Magistrate

34

is concerned, under s.248 of the Code, the Magistrate shall

record an order of acquittal. Here the language used is not

judgment of acquittal. In respect of trial of summons-cases by

the Magistrate under S.255 of the Code, the Magistrate shall

record an order of acquittal. In summary trial under s.264 of

the Code, the Magistrate shall record a judgment of acquittal.

45. As has been held by the Division Bench in

M.Krishnan's case cited supra, there can be no doubt that an

order of acquittal or judgment of acquittal will not fall within the

definition of expression "any other order" for the purpose

Section 386 (d) of the Code. Therefore, an acquitted person

cannot file revision challenging the acquittal.

46. But, if there are findings in the order or judgment

of acquittal, which are adverse to the interest of the accused, as

an aggrieved person, he should have the remedy to get the

adverse findings set aside. For illustration, though in a criminal

trial, the bad character of an accused is not relevant [vide

S.132 of the Evidence Act], in a given case under Section 304-A

of IPC relating to motor vehicle accident, suppose, despite the

35

objection raised by the accused, evidence relating to bad

character of the accused that he is a fraud is let in by the

prosecution and the same is also recorded by the trial court,

then at the time of argument, quite naturally, the accused

would request the court to eschew the said evidence relating to

his bad character from consideration. But, the court either

inadvertently or illegally goes into the said evidence and gives

finding about the bad character of the accused holding him as a

fraud, though the accused is acquitted as there is no evidence

against him, it cannot be said that the accused has no remedy

and that he should carry the stigma for ever. If the accused

does not get this finding expunged, he may have to carry the

stigma about his character throughout his life. This would

certainly result in civil consequence as it relates to his moral

character. Similarly, let us assume that in a case of rape, the

accused pleads that he never had sexual intercourse with the

victim, who is pregnant. The trial court, however, gives a finding

that he had sexual intercourse with the victim and he is the

cause for her pregnancy. The trial court, eventually, acquits

him on the ground that the said sexual intercourse was with the

free consent of the victim and thus, it is not an offence of rape.

36

True, that he can not challenge the acquittal either by way of

appeal or revision. But, if he does not challenge the finding that

he is the father of the child in the womb, it will be a stigma in

his life resulting in civil, moral and social consequences.

Therefore, it is incumbent for him to get such adverse findings

expunged.

47. In my considered view, in such a situation, the

remedy available for the accused is in the form of revision

under Ss.397 and 401 of the Code, for S.397 of the Code,

states that any finding could also be challenged by the

aggrieved. The Division Bench has not adverted to this aspect

of Ss.397 and 401 of the Code. The Division Bench simply has

held that like "any other order", an acquittal cannot be

challenged by an acquitted person. But, the grounds upon which

he was acquitted; the adverse remarks made against him; and

the adverse findings made against him; are all matters, which

fall under the term "findings" as employed in Section 397 of the

Code and therefore they are all revisable.

48. Nextly, assuming for a moment without conceding,

37

that the finding of the trial court that the acquittal on giving

benefit of doubt is not a finding in terms of S.397 of the Code,

even then, the accused cannot be shown the door to go without

remedy. Such power, in my considered opinion, lies at least

under section 482 of the Code inasmuch as the opening words

of S.482 of the Code "nothing in this Code shall be deemed to

limit or affect the inherent powers of the High Court" would go

to show that the non availability of Appeal or Revision is not a

bar for the High Court to exercise the inherent power.

49. Now comes the question as to whether the criminal

court can use the expression “honourable acquittal”while

acquitting an accused. This question is no more res integra in

view of the judgment of the Hon'ble Supreme Court in

Management of Reserve Bank of India, New Delhi v.

Bhopal Singh Panchal, (1994) 1 SCC 541 wherein, the

Supreme Court has held as follows:-

“The expressions "honourable

acquittal" "acquitted of blame" "fully

exonerated" are unknown to the Code of

Criminal Procedure or the Penal Code,

which are coined by judicial

38

pronouncements. It is difficult to define

precisely what is meant by the expression

"honourably acquitted". When the

accused is acquitted after full

consideration of prosecution evidence and

that the prosecution had miserably failed

to prove the charges levelled against the

accused, it can possibly be said that the

accused was honourably acquitted."

50. Thus, the expression “honourable acquittal” is

relevant to service law jurisprudence or other jurisprudence

and not for criminal law jurisprudence. Therefore, the criminal

court while acquitting the accused, undoubtedly, cannot employ

the term "that the accused is/are honourably acquitted". But at

the same time, in all cases where there is no evidence at all

against the accused as I have already concluded, the criminal

court should simply say "acquitted". The criminal court may say

that there is no evidence against the accused. But, the criminal

court in such kind of cases, where there is no evidence at all

against the accused, shall not employ the expressions "not

proved beyond reasonable doubt" or "accused is acquitted by

giving benefit of doubt".

39

51. The Division Bench has held under Question No.2

that a revision would not lie to convert an order of acquittal as

an order of honourable acquittal as the term “honourable

acquittal”is unknown to criminal law. Regarding this proposition

also there can be no second opinion, for the criminal court,

while acquitting an accused, cannot use the expression

“honourable acquittal”.

52. Now, turning to the facts of the present case, a

perusal of the judgment of the trial court would go to show that

no one has spoken to anything incriminating him. Therefore, the

trial court should have acquitted him by recording an order of

acquittal without adding any adjectives such as "not proved

beyond reasonable doubt" or "by giving the benefit of doubt".

However, a perusal of the judgment of the trial court would go

to show that the trial court has acquitted the accused on the

ground that the charges have not been proved beyond

reasonable doubt. This finding, in my considered opinion, needs

to be set aside by this court. The trial court should have

acquitted the accused simpliciter without adding any

qualification to the word "acquittal". Of course, the term

40

"honourable acquittal" is foreign to the criminal law

jurisprudence and so this court cannot covert the order of

acquittal into one of honourable acquittal. Therefore, this court

only converts the order of acquittal on benefit of doubt into one

of acquittal simpliciter. In the context of service law

jurisprudence, if the petitioner seeks employment, it is for the

appointing authority to consider the judgment of the trial court

in its entirety and to find whether the acquittal is honourable or

not for the purpose of employment in the light of the judgment

of the Hon'ble Supreme Court in Management of Reserve

Bank of India v. Bhopal Singh Panchal [1994 (1) SCC

541].

41

53. At this juncture, I wish to mention that in

W.P.No.9954 of 2010 dated 02.09.2014 [Lakshmanaperumal

v. State rep. by The Chairman, Tamil Nadu Uniformed

Service Recruitment Board, Chennai - 600 002 and

another], I found that an youth, who was punished for an

offence under Section 75 of the Madras City Police Act was

denied employment as a police constable. Having taken note of

the plight of him and following the recommendation made by

the Larger Bench of this court in J.Alex Ponseelan v. State

2014 (2) CTC 337, I suggested to the Government to

consider to amend Rule 14 of the Tamil Nadu Police Subordinate

Service Rules. But, the Division Bench in M.Krishnan's case

[cited supra] has observed that the State as well as the Director

General of Police should discard all suggestions for an

amendment to the Rules in the larger interest of the society. I

wish to further mention here that the Division Bench, I

apprehend, was not apprised of the recommendation made by

the Larger Bench in J.Alex Ponseelan's case cited supra,

wherein, in paragraph 19, the Larger Bench has made the

following recommendation:-

42

"19. In so far as the present case is

concerned, the explanation to Rule

14(b)(iv) indicates that it is not

exhaustive but it specifies certain

instances, which would explain the term

"involvement in a criminal case". In any

event, assuming without admitting that

there is some confusion in the

understanding of the language by which

the Explanation has been stated, that

issue can however be appropriately

addressed by the Government by suitably

amending the Tamil Nadu Special Police

Subordinate Service Rule, on the lines of

the Delhi Police Rules and its Standing

Order No.398/2010, which is reproduced

in Paragraph 20 of the judgment in Mehar

Singh's case (Supra). Such a

recommendation is made taking cue from

the decision of the Hon'ble Apex Court in

Pawan Kumar vs. State of Haryana and

another - AIR 1996 SC 3300."

[Emphasis supplied]

Therefore, the recommendations made by the larger Bench in

J.Alex Ponseelan's case cited supra holds good.

43

54. Before parting with this order, I wish to mention

that the incidence of false criminal cases is on the increase. The

National Crime Records Bureau, in its Report on Crime in India

for the year 2000, has stated that 7.55% of the total cases

registered in the Country are false cases. The latest report on

Crime in India for the year 2012 has been released by National

Crime Record Bureau, which shows roughly 48% of complaints

were frivolous as the accused were either acquitted by the court

or the complaints were found to be false at the investigation

stage itself. For example, so far as the crimes against the

women are concerned, the statistics shows that in rapes, dowry

deaths, harassment to married women, and outraging of

modesty of women, the percentage of false cases are 7.4%,

6.6%, 9.6% and 5.8% respectively.

55. The above statistics, if compared to the statistics of

the year 2000, would go to show that the registration of false

cases is phenomenally on the increase. Those who are

implicated in these false cases suffer in terms of humiliation,

loss of money, loss of working hours, loss of mental peace and

at last, loss of employment as well. Most of the accused

44

implicated in these false cases hail from poor strata of the

society for whom some hearts bleed.

56. In the result, the criminal revision petition is

allowed, the finding recorded by the learned Judicial Magistrate

No.II, Panruti in his order dated 31.12.2012 made in

C.C.No.12 of 2010 to the effect that the acquittal is because

charges have not been proved beyond reasonable doubt is set

aside and instead, it is ordered that the acquittal shall be a

simple order of acquittal.

Index : yes. 23..12..2014Internet : yes. kk / kmk

To

1.The Principal Secretary to Government, Home Department, Fort St. George, Cennai 600 009.2.The Sub-Inspector of Police, Pudupet Police Station, Cuddalore District.3. The Public Prosecutor, Madras High Court.

45

S.NAGAMUTHU,J.

kmk

Crl.R.C.No.684 of 2014

23..12..2014

Page 1

REPORTABLEIN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.456 OF 2015(ARISING OUT OF SLP (CRL.) NO.6437 OF 2013

TARAMANI PARAKH …APPELLANT

VERSUS

STATE OF M.P. & ORS. …RESPONDENTS

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave granted.

2. This appeal has been preferred against judgment and order

dated 20th February, 2013 passed by the High Court of Judicature

of Madhya Pradesh at Gwalior in Misc. Criminal Case No.9759 of

2012.

3. The appellant was married to Respondent No.2 on 18th

November, 2009. She lodged complaint dated 19th May, 2011

alleging that Respondent No.2 and his parents harassed her with

demand of dowry amounting to cruelty. This led to registration of

FIR being Crime No.15811 under Sections 498-A/34 of IPC at

Police Station Hujrat Kotwali, Gwalior. After investigation, charge

sheet was filed against Respondent No.2 and his parents which

has been registered as Criminal Case No.163/12 before the

Judicial Magistrate First Class, Gwalior.

Page 2

Criminal Appeal No…. of 2015 @ SLP (Crl.) No.6437 of 2013

4. The respondents accused moved the High Court under

Section 482 of the Code of Criminal Procedure for quashing the

proceedings by submitting that the behaviour of the appellant

was not cordial and in spite of efforts of the accused, she failed to

improve her behaviour and her father took her with him on 22nd

May, 2010. The husband filed a petition under Section 9 of the

Hindu Marriage Act. In mediation proceedings, the appellant

stated that she did not want to live with her husband.

Thereupon, the respondent filed a divorce petition on 26th April,

2011 which was pending. It was thereafter that the appellant

filed the impugned complaint dated 19th May, 2011 which

contained false allegations.

5. The petition was contested by the appellant.

6. The High Court relying upon judgments of this Court in

Neelu Chopra and another vs. Bharti 1 , Manoj Mahavir

Prasad Khaitan vs. Ram Gopal Moddar and another 2 and

Geeta Mehrotra and another vs. State of Uttar Pradesh

and another 3 held that since there were no specific allegations,

the criminal proceedings against the accused amounted to abuse

of the court’s process. Accordingly, the High Court quashed the

criminal proceedings.

1 (2009) 10 SCC 1842 (2010) 10 SCC 6733 (2012) 10 SCC 741

2Page 2 of 11

Page 3

Criminal Appeal No…. of 2015 @ SLP (Crl.) No.6437 of 2013

7. Aggrieved by the above, the appellant has approached this

Court.

8. We have heard learned counsel for the parties and

perused the record.

9. Learned counsel for the appellant submitted that it was

the conduct of the accused on account of their not being

satisfied with the dowry given and the inability of the

appellant’s family to meet such demands that the appellant

was forced to leave the matrimonial home. The appellant

was keen to continue in the matrimonial home and to return

home even after being forced to leave but the accused

refused to take her back. The husband has filed a divorce

petition which is without any legal basis. The appellant

lodged the complaint after filing of the divorce petition for

the reason that the appellant had earlier remained hopeful

that the matter may be amicably settled. It was only after

she lost all hopes that she had to initiate criminal

proceedings in respect of cruelty meted out to her. The High

Court in proceedings under Section 482 could not quash the

proceedings merely with the observation that the allegations

were omnibus. The power of quashing could be exercised

sparingly and only if no case was made out from the

3Page 3 of 11

Page 4

Criminal Appeal No…. of 2015 @ SLP (Crl.) No.6437 of 2013

allegations taken as correct or where the complaint was

absurd or legally not maintainable. In the FIR, the appellant

has specifically mentioned that the accused harassed her for

dowry by taunting her and beating her. It was already

mentioned that she was deprived of her belongings by the

accused.

10. Learned counsel for the accused respondents supported

the impugned order passed by the High Court.

11. Law relating to quashing is well settled. If the

allegations are absurd or do not made out any case or if it

can be held that there is abuse of process of law, the

proceedings can be quashed but if there is a triable case the

Court does not go into reliability or otherwise of the version

or the counter version. In matrimonial cases, the Courts

have to be cautious when omnibus allegations are made

particularly against relatives who are not generally

concerned with the affairs of the couple. We may refer to

the decisions of this Court dealing with the issue. Referring

to earlier decisions, in Amit Kapoor vs. Ramesh Chander

and Anr. 4 , it was observed:

4 (2012) 8 SCC 460

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“27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even

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in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and

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substantial justice for administration of which alone, the courts exist.

(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the

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proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

12. In Kailash Chandra Agrawal & Anr. vs. State of U.P. &

Ors. (Criminal Appeal No.2055 of 2014 decided on

6.9.2014), it was observed:

“9. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj vs. State of Punjab & Ors. [(2000) 5 SCC 207], it was observed:-

“5………A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”

The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.

10. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court’s process,

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quashing jurisdiction can be exercised. Reference may be made to K. Ramakrsihna and Ors. vs. State of Bihar and Anr. [(2000) 8 SCC 547], Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors. [(1998) 5 SCC 749], State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. [(1992) Suppl 1 SCC 335] and Asmathunnisa vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Anr. [(2011) 11 SCC 259].”

13. In the present case, the complaint is as follows:

“Sir, it is submitted that I was married on 18.11.09 with Sidharath Parakh s/o Manak Chand Parak, r/o Sarafa Bazar in front of Radha Krishna Market, Gwalior according to the Hindu rites and customs. In the marriage my father had given gold and silver ornaments, cash amount and household goods according to his capacity. After the marriage when I went to my matrimonial home, I was treated nicely by the members of the family. When on the second occasion I went to my matrimonial, my husband, father-in-law and mother-in-law started harassing me for brining the dowry and started saying that I should bring from my father 25-30 tolas of gold and Rs.2,00,000/- in cash and only then they would keep me in the house otherwise not. On account of this my husband also used to beat me and my father-in-law and my mother-in-law used to torture me by giving the taunts. In this connection I used to tell my father Kundanmal Oswal, my mother Smt. Prem Lata Oswal, uncle Ashok Rai Sharma and uncle Ved Prakash Mishra from time to time. On 2.4.2010 the members of the family of my matrimonial home forcibly sent me to the house of my parents in Ganj Basoda along with my brother Deepak. They snatched my clothes and ornaments and kept with them. Since then till today my husband has been harassing me on the telephone and has not come to take me back. Being compelled, I have been moving this application before you. Sir, it is prayed that action be taken against husband Sidharath Parakh, my father-in-law Manak Chand Parakh and my mother-in-law Smt. Indira Parakh for torturing me on account of demanding the dowry.”

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14. From reading of the complaint, it cannot be held that

even if the allegations are taken as proved no case is made

out.

15. There are allegations against Respondent No.2 and his

parents for harassing the complainant which forced her to

leave the matrimonial home. Even now she continues to be

separated from the matrimonial home as she apprehends

lack of security and safety and proper environment in the

matrimonial home. The question whether the appellant has

infact been harassed and treated with cruelty is a matter of

trial but at this stage, it cannot be said that no case is made

out. Thus, quashing of proceedings before the trial is not

permissible.

16. The decisions referred to in the judgment of the High

Court are distinguishable. In Neelu Chopra, parents of the

husband were too old. The husband Rajesh had died and

main allegations were only against him. This Court found no

cogent material against other accused. In Manoj Mahavir,

the appellant before this Court was the brother of the

daughter-in-law of the accused who lodged the case against

the accused for theft of jewellery during pendency of earlier

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498A case. This Court found the said case to be absurd. In

Geeta Mehrotra, case was against brother and sister of the

husband. Divorce had taken place between the parties. The

said cases neither purport to nor can be read as laying down

any inflexible rule beyond the principles of quashing which

have been mentioned above and applied to the facts of the

cases therein which are distinguishable. In the present case

the factual matrix is different from the said cases. Applying

the settled principles, it cannot be held that there is no

triable case against the accused.

17. Accordingly, we allow this appeal and set aside the

impugned order passed by the High Court.

……..…………………………….J. [T.S. THAKUR]

.….………………………………..J. [ ADARSH KUMAR GOEL ]

NEW DELHIMARCH 16, 2015

11Page 11 of 11

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.781 OF 2012

Mrs. Priyanka Srivastava and Another Appellants

Versus

State of U.P. and Others Respondents

J U D G M E N T

Dipak Misra, J.

The present appeal projects and frescoes a scenario

which is not only disturbing but also has the potentiality

to create a stir compelling one to ponder in a perturbed

state how some unscrupulous, unprincipled and deviant

litigants can ingeniously and innovatively design in a

nonchalant manner to knock at the doors of the Court, as

if, it is a laboratory where multifarious experiments can

take place and such skillful persons can adroitly abuse

the process of the Court at their own will and desire by

CRL.A.781/12

painting a canvas of agony by assiduous assertions made

in the application though the real intention is to harass

the statutory authorities, without any remote remorse,

with the inventive design primarily to create a mental

pressure on the said officials as individuals, for they

would not like to be dragged to a court of law to face in

criminal cases, and further pressurize in such a fashion

so that financial institution which they represent would

ultimately be constrained to accept the request for

“one-time settlement” with the fond hope that the

obstinate defaulters who had borrowed money from it

would withdraw the cases instituted against them. The

facts, as we proceed to adumbrate, would graphically

reveal how such persons, pretentiously aggrieved but

potentially dangerous, adopt the self-convincing mastery

methods to achieve so. That is the sad and unfortunate

factual score forming the fulcrum of the case at hand,

and, we painfully recount.

2. The facts which need to be stated are that the

respondent No.3, namely, Prakash Kumar Bajaj, son of

Pradeep Kumar Bajaj, had availed a housing loan from

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the financial institution, namely, Punjab National Bank

Housing Finance Limited (PNBHFL) on 21st January,

2001, vide housing loan account No.IHL-583. The loan

was taken in the name of the respondent No.3 and his

wife, namely, Jyotsana Bajaj. As there was default in

consecutive payment of the installments, the loan account

was treated as a Non-Performing Asset (NPA) in

accordance with the guidelines framed by the Reserve

Bank of India. The authorities of the financial institution

issued notice to the borrowers under Section 13(2) of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002, (for short, 'the

SARFAESI Act') and in pursuance of the proceedings

undertaken in the said Act, the PNBHFL, on 5th June,

2007, submitted an application before the District

Magistrate, Varanasi, U.P. for taking appropriate action

under Section 13(4) of the SARFAESI Act.

3. At this juncture, the respondent No.3 preferred W.P.

No.44482 of 2007, which was dismissed by the High

Court on 14th September, 2007, with the observation that

it was open to the petitioner therein to file requisite

3

CRL.A.781/12

objection and, thereafter, to take appropriate action as

envisaged under Section 17 of the SARFAESI Act. After

the dismissal of the writ petition with the aforesaid

observation, the respondent No.3, possibly nurturing the

idea of self-centric Solomon’s wisdom, filed a Criminal

Complaint Case No.1058 of 2008, under Section 200

Cr.P.C. against V.N. Sahay, Sandesh Tiwari and V.K.

Khanna, the then Vice-President, Assistant President and

the Managing Director respectively for offences punishable

under Sections 163, 193 and 506 of the Indian Penal

Code (IPC). It was alleged in the application that the said

accused persons had intentionally taken steps to cause

injury to him. The learned Magistrate vide order dated 4th

October, 2008, dismissed the criminal complaint and

declined to take cognizance after recording the statement

of the complainant under Section 200 Cr.P.C. and

examining the witnesses under Section 202 Cr.P.C.

4. Being grieved by the aforesaid order, the respondent

No.3 preferred a Revision Petition No.460 of 2008, which

was eventually heard by the learned Additional Sessions

Judge, Varanasi, U.P. The learned Additional Sessions

4

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Judge after adumbrating the facts and taking note of the

submissions of the revisionist, set aside the order dated

4th October, 2008 and remanded the matter to the trial

Court with the direction that he shall hear the complaint

again and pass a cognizance order according to law on the

basis of merits according to the directions given in the

said order. Be it noted, the learned Additional Sessions

Judge heard the counsel for the respondent No.3 and the

learned counsel for the State but no notice was issued to

the accused persons therein. Ordinarily, we would not

have adverted to the same because that lis is the subject

matter in the appeal, but it has become imperative to do

only to highlight how these kind of litigations are being

dealt with and also to show the respondents had the

unwarranted enthusiasm to move the courts. The order

passed against the said accused persons at that time was

an adverse order inasmuch as the matter was remitted. It

was incumbent to hear the respondents though they had

not become accused persons. A three-Judge Bench in

Manharibhai Muljibhai Kakadia and Anr. v.

5

CRL.A.781/12

Shaileshbhai Mohanbhai Patel and others1 has opined

that in a case arising out of a complaint petition, when

travels to the superior Court and an adverse order is

passed, an opportunity of hearing has to be given. The

relevant passages are reproduced hereunder:

46. .......If the Magistrate finds that there is nosufficient ground for proceeding with thecomplaint and dismisses the complaint underSection 203 of the Code, the question iswhether a person accused of crime in thecomplaint can claim right of hearing in arevision application preferred by thecomplainant against the order of the dismissalof the complaint. Parliament being alive to thelegal position that the accused/suspects arenot entitled to be heard at any stage of theproceedings until issuance of process underSection 204, yet in Section 401(2) of the Codeprovided that no order in exercise of the powerof the revision shall be made by the SessionsJudge or the High Court, as the case may be,to the prejudice of the accused or the otherperson unless he had an opportunity of beingheard either personally or by pleader in hisown defence.

xxxxx xxxxx xxxxx

48. In a case where the complaint has beendismissed by the Magistrate under Section 203of the Code either at the stage of Section 200itself or on completion of inquiry by theMagistrate under Section 202 or on receipt ofthe report from the police or from any person

1

(2012) 10 SCC 517

6

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to whom the direction was issued by theMagistrate to investigate into the allegations inthe complaint, the effect of such dismissal istermination of complaint proceedings. On aplain reading of sub-section (2) of Section 401,it cannot be said that the person against whomthe allegations of having committed the offencehave been made in the complaint and thecomplaint has been dismissed by theMagistrate under Section 203, has no right tobe heard because no process has been issued.The dismissal of complaint by the Magistrateunder Section 203—although it is atpreliminary stage—nevertheless results intermination of proceedings in a complaintagainst the persons who are alleged to havecommitted the crime. Once a challenge is laidto such order at the instance of thecomplainant in a revision petition before theHigh Court or the Sessions Judge, by virtue ofSection 401(2) of the Code, the suspects getthe right of hearing before the Revisional Courtalthough such order was passed without theirparticipation. The right given to “accused” or“the other person” under Section 401(2) ofbeing heard before the Revisional Court todefend an order which operates in his favourshould not be confused with the proceedingsbefore a Magistrate under Sections 200, 202,203 and 204. In the revision petition before theHigh Court or the Sessions Judge at theinstance of the complainant challenging theorder of dismissal of complaint, one of thethings that could happen is reversal of theorder of the Magistrate and revival of thecomplaint. It is in this view of the matter thatthe accused or other person cannot bedeprived of hearing on the face of the expressprovision contained in Section 401(2) of theCode. The stage is not important whether it ispre-process stage or post process stage.

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xxxxx xxxxx xxxxx

53. We are in complete agreement with theview expressed by this Court in P.Sundarrajan2, Raghu Raj Singh Rousha3 andA.N. Santhanam4. We hold, as it must be, thatin a revision petition preferred by thecomplainant before the High Court or theSessions Judge challenging an order of theMagistrate dismissing the complaint underSection 203 of the Code at the stage underSection 200 or after following the processcontemplated under Section 202 of the Code,the accused or a person who is suspected tohave committed the crime is entitled to hearingby the Revisional Court. In other words, wherethe complaint has been dismissed by theMagistrate under Section 203 of the Code,upon challenge to the legality of the said orderbeing laid by the complainant in a revisionpetition before the High Court or the SessionsJudge, the persons who are arraigned asaccused in the complaint have a right to beheard in such revision petition. This is a plainrequirement of Section 401(2) of the Code. Ifthe Revisional Court overturns the order of theMagistrate dismissing the complaint and thecomplaint is restored to the file of theMagistrate and it is sent back for freshconsideration, the persons who are alleged inthe complaint to have committed the crimehave, however, no right to participate in theproceedings nor are they entitled to anyhearing of any sort whatsoever by theMagistrate until the consideration of thematter by the Magistrate for issuance ofprocess.”

Though the present controversy is different, we have

8

CRL.A.781/12

dealt with the said facet as we intend to emphasize how

the Courts have dealt with and addressed to such a

matter so that a borrower with vengeance could ultimately

exhibit his high-handedness.

5. As the narration further proceeds, after the remand,

the learned Magistrate vide order dated 13th July, 2009,

took cognizance and issued summons to V.N. Sahay,

Sandesh Tripathi and V.K. Khanna. The said accused

persons knocked at the doors of the High Court under

Section 482 Cr.P.C. and the High Court in Crl. Misc.

No.13628 of 2010, by order dated 27th May, 2013, ruled

thus:

“A perusal of the complaint filed by therespondent no.2 also indicates that the issueswere with regard to the action of the bankofficers against respondent no.2 on the groundof alleged malafide and as such an offenceunder sections 166/500 I.P.C. was made out.Both the sections are non cognizable andbailable and triable by Magistrate of FirstClass. For the foregoing reasons the 482Petition deserves to be allowed and thecriminal complaint filed by the respondentno.2 being Complaint Case No.1058 of 2009 isliable to be quashed.

Accordingly the application under section 482Cr.P.C. is allowed and the Criminal ComplaintCase No.1058 of 2009, Prakash Kumar Bajaj

9

CRL.A.781/12

versus P.N.B. Housing Finance Ltd. Andothers, pending in the Court of AdditionalChief Judicial Magistrate, Court No.2 Varanasiis quashed.”

6. Presently, we are required to sit in the time machine

for a while. In the interregnum period the borrowers filed

an objection under Section 13(3A) of the SARFAESI Act.

Be it noted, as the objection was not dealt with, the

respondent No.3 preferred W.P. No.22254 of 2009, which

was disposed of on 5th May, 2009 by the High Court,

directing disposal of the same. Eventually, the objection

was rejected by the competent authority vide order dated

June 1, 2009. Being grieved by the aforesaid order of

rejection, the respondent No.3 filed Securitisation Appeal

No.5 of 2010, before the Debt Recovery Tribunal (DRT),

Allahabad, U.P., which was rejected vide order dated 23rd

November, 2012. The non-success before the DRT

impelled the borrowers to prefer an appeal before the

Debts Recovery Appellate Tribunal (DRAT), Allahabad,

U.P.

7. At this stage, it is apposite to state that the third

respondent, if we allow ourselves to say so, have possibly

10

CRL.A.781/12

mastered how to create a sense of fear in the mind of the

officials who are compelled to face criminal cases. After

the High Court had quashed the earlier proceeding, the

third respondent, in October, 2011, filed another

application under Section 156(3) CrPC against V.N.

Sahay, Sandesh Tripathi and V.K. Khanna alleging

criminal conspiracy and forging of documents referring to

three post-dated cheques and eventually it was numbered

as Complaint Case No. 344/2011, which gave rise to FIR

No. 262 of 2011 under Sections 465, 467, 468, 471, 386,

506, 34 and 120B IPC. Being not satisfied with the same,

on 30.10.2011, he filed another application under Section

156(3) against the present appellants alleging that there

has been under-valuation of the property. It was

numbered as Complaint Case No. 396/2011 wherein the

Trial Magistrate directed the SHO to register FIR against

the present appellants. Pursuant to the said order, FIR

No. 298/2011 was registered.

8. At this juncture, it is imperative to state that the

third respondent made the officials agree to enter into one

time settlement. The said agreement was arrived at with

11

CRL.A.781/12

the stipulation that he shall withdraw various cases filed

by him on acceptance of the one time settlement. As the

factual matrix would reveal, the third respondent did not

disclose about the initiation of the complaint cases no.

344/2011 and 396/2011. On 28.11.2011, the one time

settlement was acted upon and the third respondent

deposited Rs.15 lakhs.

9. At this stage, it is apt to mention that V.N. Sahay

and two others approached the High Court of Allahabad

in Writ (C) No. 17611/2013 wherein the learned Single

Judge heard the matter along with application under

Section 482 CrPC in Crl. Misc. No. 13628/2010. We have

already reproduced the relevant part of the order passed

therein. Be it noted, the writ petition has also been

disposed of by the High Court by stating thus:

“Heard Mr. Manish Trivedi, learned counsel forthe petitioner, Mr. Vivek Kumar Srivastava,learned counsel appearing on behalf ofrespondent no.3 and learned AGA.

It is submitted by learned AGA that in thepresent case investigation has been completedand final report has been submitted,considering the same, this petition has becomeinfructuous.

12

CRL.A.781/12

The interim order dated 2.12.2011 is herebyvacated.

Accordingly, this petition is disposed of.”

10. At this juncture, we are impelled to look at the past

again. The respondent had preferred, as has been stated

before, an appeal before the DRAT. The said appeal was

numbered as Appeal No. 5 of 2013. In the said appeal,

the following order came to be passed:

“During the pendency of the said application, aproposal was submitted by the borrower tosettle the claim for an amount of Rs.15.00lacs. The said proposal was accepted by theBank by its letter dated 15.11.2011 and theappellant also deposited the full amount, forwhich the settlement was arrived at i.e.Rs.15.00 lacs. Thereafter, the grievance of theappellant was that since the full amount of thesettlement has been paid by the appellant,therefore, the bank should be directed toreturn the title deed, as the title deed was notreturned.

The Tribunal was of the view that since thematter has been settled, therefore, thesecuritization application was dismissed asinfructuous and the Tribunal did not pass anyorder for return of the title deed. Therefore,the appellant being aggrieved of the judgmentdated 23.11.2011 passed by the Tribunal hasfiled the present appeal.

Learned counsel for the appellant submittedthat after when the full amount under thesettlement has been paid, the

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respondent-Bank was duty bound to returnthe title deed, which has not been returned tothe appellant.

It is contended on behalf of therespondent-Bank that the settlement wasaccepted by letter dated 14.11.2011, whereinthe condition was mentioned that theappellant shall withdraw the complaint casewhich he has filed before the Criminal Court.

Learned counsel for the appellant submittedthat he has no objection to withdraw thecomplaint case but the title deed must bereturned to the appellant.

The title deed shall be returned by therespondent-Bank to the appellant within sevendays from today and thereafter, the appellantshall move an application to withdraw theCriminal Case No.1058/09 which is pendingbefore the Chief Judicial Magistrate, Varanasi.”

11. The labyrinth maladroitly created by the respondent

No.3 does not end here. It appears that he had the

indefatigable spirit to indulge himself in the abuse of the

process of the Court. The respondent No.3 had filed an

application under Section 156(3) Cr.P.C. before the

learned Additional Chief Judicial Magistrate on 30th

October, 2011, against the present appellants, who are

the Vice-President and the valuer respectively. In the

body of the petition, as we find in the paragraphs 19 and

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20, it has been stated thus:

“That the aforesaid case was referred to theDeputy Inspector General of Police, Varanasithrough speed post but no proceeding hadbeen initiated till today in that regard.

That the aforesaid act done by the aforesaidaccused prima-facie comes in the ambit ofsection 465, 467, 471, 386, 504, 34 & 120BIPC and in this way cognizable offence is madeout and proved well.”

12. On the basis of the aforesaid application the learned

Additional Chief Judicial Magistrate, Varanasi, U.P.,

called for a report from the concerned police station and

received the information that no FIR had been lodged and

hence, no case was registered at the local police station.

Thereafter, the learned Additional Chief Judicial

Magistrate observed as follows:

“It has been stated clearly in the application bythe applicant that it is the statement ofapplicant that he had already given 3postdated cheques to the financial bank forpayment and despite the availability of thepostdated cheques in the financial society,even a single share in the loan account has notbeen got paid. The opposite partiesdeliberately due to conspiracy and prejudiceagainst applicant have not depositedpreviously mentioned postdated cheques forpayment and these people are doing aconspiracy to grab the valuable property of theapplicant. Under a criminal conspiracy,

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illegally and on false and fabricated grounds apetition has been filed before District Collector(Finance & Revenue) Varanasi, which comesunder the ambit of cognizable offence. Keepingin view the facts of the case, commission ofcognizable offence appears to be made out andit shall be justifiable to get done theinvestigation of the same by the police.”

After so stating it directed as follows:

“In the light of the application, SHO Bhelpur,Varanasi is hereby directed to register the caseand investigate the same.”

13. On the basis of the aforesaid order, F.I.R. No.298 of

2011 was registered, which gave rise to case Crime

No.415 of 2011 for the offences punishable under

Sections 465, 467, and 471 I.P.C. Being dissatisfied with

the aforesaid order, the appellants moved the High Court

in Crl. Misc. No.24561 of 2011. The High Court in a

cryptic order opined that on a perusal of the F.I.R. it

cannot be said that no cognizable offence is made out.

Being of this view, it has declined to interfere with the

order. Hence, this appeal by special leave.

14. In course of hearing, learned counsel for the State of

U.P. has submitted that the investigating agency has

already submitted the final report on 21st November,

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2012. The said report reads as follows:

“Complainant in the present case has notappeared before any of the investigators, evenafter repeated summoning. And that theaction of Smt. Priyanka Srivastava has beendone as per her legal rights in 'good faith',which is protected under Section 32 of theSARFAESI Act, 2002. With the abovestatedinvestigations, the present report isconcluded.”

15. On a query being made, learned counsel for the State

would contend that the learned Magistrate has not passed

any order on the final report. Mr. Ajay Kumar, learned

counsel appearing for the appellants would submit that

the learned Magistrate has the option to accept the report

by rejecting the final form/final report under Section 190

Cr.P.C. and may proceed against the appellants or may

issue notice to the complainant, who is entitled to file a

protest petition and, thereafter, may proceed with the

matter and, therefore, this Court should address the

controversy on merits and quash the proceedings.

16. We have narrated the facts in detail as the present

case, as we find, exemplifies in enormous magnitude to

take recourse to Section 156(3) Cr.P.C., as if, it is a

routine procedure. That apart, the proceedings initiated

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and the action taken by the authorities under the

SARFAESI Act are assailable under the said Act before the

higher forum and if, a borrower is allowed to take

recourse to criminal law in the manner it has been taken

it, needs no special emphasis to state, has the inherent

potentiality to affect the marrows of economic health of

the nation. It is clearly noticeable that the statutory

remedies have cleverly been bypassed and prosecution

route has been undertaken for instilling fear amongst the

individual authorities compelling them to concede to the

request for one time settlement which the financial

institution possibly might not have acceded. That apart,

despite agreeing for withdrawal of the complaint, no steps

were taken in that regard at least to show the bonafide.

On the contrary, there is a contest with a perverse sadistic

attitude. Whether the complainant could have withdrawn

the prosecution or not, is another matter. Fact remains,

no efforts were made.

17. The learned Magistrate, as we find, while exercising

the power under Section 156(3) Cr.P.C. has narrated the

allegations and, thereafter, without any application of

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mind, has passed an order to register an FIR for the

offences mentioned in the application. The duty cast on

the learned Magistrate, while exercising power under

Section 156(3) Cr.P.C., cannot be marginalized. To

understand the real purport of the same, we think it apt

to reproduce the said provision:

“156. Police officer’s power to investigatecongnizable case. –(1) Any officer in charge of apolice station may, without the order of aMagistrate, investigate any cognizable casewhich a Court having jurisdiction over thelocal area within the limits of such stationwould have power to inquire into or try underthe provisions of Chapter XIII.

(2) No proceeding of a police officer in any suchcase shall at any stage be called in question onthe ground that the case was one which suchofficer was no empowered under this section toinvestigate.

(3) Any Magistrate empowered under section190 may order such an investigation asabove-mentioned.”

18. Dealing with the nature of power exercised by the

Magistrate under Section 156(3) of the CrPC, a

three-Judge Bench in Devarapalli Lakshminarayana

Reddy and others v. V. Narayana Reddy and others2,

had to express thus:

2 (1976) 3 SCC 252

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“It may be noted further that an order madeunder sub-section (3) of Section 156, is in thenature of a peremptory reminder or intimationto the police to exercise their plenary powers ofinvestigation under Section 156(1). Such aninvestigation embraces the entire continuousprocess which begins with the collection ofevidence under Section 156 and ends with areport or chargesheet under Section 173.”

19. In Anil Kumar v. M.K. Aiyappa3, the two-Judge

Bench had to say this:

“The scope of Section 156(3) CrPC came up forconsideration before this Court in severalcases. This Court in Maksud Saiyed [(2008) 5SCC 668] examined the requirement of theapplication of mind by the Magistrate beforeexercising jurisdiction under Section 156(3)and held that where jurisdiction is exercisedon a complaint filed in terms of Section 156(3)or Section 200 CrPC, the Magistrate isrequired to apply his mind, in such a case, theSpecial Judge/Magistrate cannot refer thematter under Section 156(3) against a publicservant without a valid sanction order. Theapplication of mind by the Magistrate shouldbe reflected in the order. The mere statementthat he has gone through the complaint,documents and heard the complainant, assuch, as reflected in the order, will not besufficient. After going through the complaint,documents and hearing the complainant, whatweighed with the Magistrate to orderinvestigation under Section 156(3) CrPC,should be reflected in the order, though adetailed expression of his views is neitherrequired nor warranted. We have alreadyextracted the order passed by the learned

3 (2013) 10 SCC 705

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Special Judge which, in our view, has statedno reasons for ordering investigation.”

20. In Dilawar Singh v. State of Delhi4, this Court

ruled thus:

“18. ...11. The clear position therefore is thatany Judicial Magistrate, before takingcognizance of the offence, can orderinvestigation under Section 156(3) of the Code.If he does so, he is not to examine thecomplainant on oath because he was nottaking cognizance of any offence therein. Forthe purpose of enabling the police to startinvestigation it is open to the Magistrate todirect the police to register an FIR. There isnothing illegal in doing so. After all registrationof an FIR involves only the process of enteringthe substance of the information relating tothe commission of the cognizable offence in abook kept by the officer in charge of the policestation as indicated in Section 154 of theCode. Even if a Magistrate does not say in somany words while directing investigationunder Section 156(3) of the Code that an FIRshould be registered, it is the duty of theofficer in charge of the police station to registerthe FIR regarding the cognizable offencedisclosed by the complainant because thatpolice officer could take further stepscontemplated in Chapter XII of the Code onlythereafter.”

21. In CREF Finance Ltd. v. Shree Shanthi Homes

(P) Ltd.5, the Court while dealing with the power of

Magistrate taking cognizance of the offences, has

4 (2007) 12 SCC 4965 (2005) 7 SCC 467

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opined that having considered the complaint, the

Magistrate may consider it appropriate to send the

complaint to the police for investigation under Section

156(3) of the Code of Criminal Procedure.

And again:

“When a Magistrate receives a complaint he isnot bound to take cognizance if the factsalleged in the complaint disclose thecommission of an offence. The Magistrate hasdiscretion in the matter. If on a reading of thecomplaint, he finds that the allegations thereindisclose a cognizable offence and theforwarding of the complaint to the police forinvestigation under Section 156(3) will beconducive to justice and save the valuable timeof the Magistrate from being wasted inenquiring into a matter which was primarilythe duty of the police to investigate, he will bejustified in adopting that course as analternative to taking cognizance of the offenceitself. As said earlier, in the case of acomplaint regarding the commission ofcognizable offence, the power under Section156(3) can be invoked by the Magistrate beforehe takes cognizance of the offence underSection 190(1)(a). However, if he once takessuch cognizance and embarks upon theprocedure embodied in Chapter XV, he is notcompetent to revert back to the pre-cognizancestage and avail of Section 156(3).”

22. Recently, in Ramdev Food Products Private

Limited v. State of Gujarat6, while dealing with the

6 Criminal Appeal No. 600 of 2007 decided on 16.03.2015

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exercise of power under Section 156(3) CrPC by the

learned Magistrate, a three-Judge Bench has held that:

“.... the direction under Section 156(3) is to beissued, only after application of mind by theMagistrate. When the Magistrate does not takecognizance and does not find it necessary topostpone instance of process and finds a casemade out to proceed forthwith, direction underthe said provision is issued. In other words,where on account of credibility of informationavailable, or weighing the interest of justice itis considered appropriate to straightawaydirect investigation, such a direction is issued.Cases where Magistrate takes cognizance andpostpones issuance of process are cases wherethe Magistrate has yet to determine “existenceof sufficient ground to proceed.”

23. At this stage, we may usefully refer to what the

Constitution Bench has to say in Lalita Kumari v. Govt.

of U.P.7 in this regard. The larger Bench had posed the

following two questions:-

“(i) Whether the immediate non-registration ofFIR leads to scope for manipulation by thepolice which affects the right of thevictim/complainant to have a complaintimmediately investigated upon allegationsbeing made; and(ii) Whether in cases where thecomplaint/information does not clearlydisclose the commission of a cognizableoffence but the FIR is compulsorily registeredthen does it infringe the rights of an accused.”

7 (2014) 2 SCC 1

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Answering the questions posed, the larger Bench

opined thus:

“49. Consequently, the condition that is sinequa non for recording an FIR under Section154 of the Code is that there must beinformation and that information mustdisclose a cognizable offence. If anyinformation disclosing a cognizable offence isled before an officer in charge of the policestation satisfying the requirement of Section154(1), the said police officer has no otheroption except to enter the substance thereofin the prescribed form, that is to say, toregister a case on the basis of suchinformation. The provision of Section 154 ofthe Code is mandatory and the officerconcerned is duty-bound to register the caseon the basis of information disclosing acognizable offence. Thus, the plain words ofSection 154(1) of the Code have to be giventheir literal meaning.“Shall”

xxx xxx xxx xxx

72. It is thus unequivocally clear thatregistration of FIR is mandatory and alsothat it is to be recorded in the FIR book bygiving a unique annual number to each FIRto enable strict tracking of each and everyregistered FIR by the superior police officersas well as by the competent court to whichcopies of each FIR are required to be sent.“Information”

xxx xxx xxx xxx

111. The Code gives power to the police toclose a matter both before and after

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investigation. A police officer can foreclosean FIR before an investigation under Section157 of the Code, if it appears to him thatthere is no sufficient ground to investigatethe same. The section itself states that apolice officer can start investigation when hehas “reason to suspect the commission of anoffence”. Therefore, the requirements oflaunching an investigation under Section157 of the Code are higher than therequirement under Section 154 of the Code.The police officer can also, in a given case,investigate the matter and then file a finalreport under Section 173 of the Code seekingclosure of the matter. Therefore, the police isnot liable to launch an investigation in everyFIR which is mandatorily registered onreceiving information relating to commissionof a cognizable offence.

xxx xxx xxx xxx

115. Although, we, in unequivocal terms,hold that Section 154 of the Code postulatesthe mandatory registration of FIRs on receiptof all cognizable offences, yet, there may beinstances where preliminary inquiry may berequired owing to the change in genesis andnovelty of crimes with the passage of time.One such instance is in the case ofallegations relating to medical negligence onthe part of doctors. It will be unfair andinequitable to prosecute a medicalprofessional only on the basis of theallegations in the complaint.”

After so stating the constitution Bench proceeded to state

that where a preliminary enquiry is necessary, it is not for

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the purpose for verification or otherwise of the information

received but only to ascertain whether the information

reveals any cognizable offence. After laying down so, the

larger Bench proceeded to state:-

“120.6. As to what type and in which casespreliminary inquiry is to be conducted will dependon the facts and circumstances of each case. Thecategory of cases in which preliminary inquiry maybe made are as under:

(a) Matrimonial disputes/family disputes(b) Commercial offences(c) Medical negligence cases(d) Corruption cases(e) Cases where there is abnormal delay/laches in

initiating criminal prosecution, for example, over 3months’ delay in reporting the matter withoutsatisfactorily explaining the reasons for delay.The aforesaid are only illustrations and notexhaustive of all conditions which may warrantpreliminary inquiry.

120.7. While ensuring and protecting the rightsof the accused and the complainant, a preliminaryinquiry should be made time-bound and in any caseit should not exceed 7 days. The fact of such delayand the causes of it must be reflected in the GeneralDiary entry.”

We have referred to the aforesaid pronouncement for the

purpose that on certain circumstances the police is also

required to hold a preliminary enquiry whether any

cognizable offence is made out or not.

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24. Regard being had to the aforesaid enunciation of law,

it needs to be reiterated that the learned Magistrate has to

remain vigilant with regard to the allegations made and

the nature of allegations and not to issue directions

without proper application of mind. He has also to bear

in mind that sending the matter would be conducive to

justice and then he may pass the requisite order. The

present is a case where the accused persons are serving

in high positions in the bank. We are absolutely

conscious that the position does not matter, for nobody is

above law. But, the learned Magistrate should take note

of the allegations in entirety, the date of incident and

whether any cognizable case is remotely made out. It is

also to be noted that when a borrower of the financial

institution covered under the SARFAESI Act, invokes the

jurisdiction under Section 156(3) Cr.P.C. and also there is

a separate procedure under the Recovery of Debts due to

Banks and Financial Institutions Act, 1993, an attitude of

more care, caution and circumspection has to be adhered

to.

25. Issuing a direction stating “as per the application” to

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lodge an FIR creates a very unhealthy situation in the

society and also reflects the erroneous approach of the

learned Magistrate. It also encourages the unscrupulous

and unprincipled litigants, like the respondent no.3,

namely, Prakash Kumar Bajaj, to take adventurous steps

with courts to bring the financial institutions on their

knees. As the factual exposition would reveal, he had

prosecuted the earlier authorities and after the matter is

dealt with by the High Court in a writ petition recording a

settlement, he does not withdraw the criminal case and

waits for some kind of situation where he can take

vengeance as if he is the emperor of all he surveys. It is

interesting to note that during the tenure of the appellant

No.1, who is presently occupying the position of

Vice-President, neither the loan was taken, nor the default

was made, nor any action under the SARFAESI Act was

taken. However, the action under the SARFAESI Act was

taken on the second time at the instance of the present

appellant No.1. We are only stating about the devilish

design of the respondent No.3 to harass the appellants

with the sole intent to avoid the payment of loan. When a

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citizen avails a loan from a financial institution, it is his

obligation to pay back and not play truant or for that

matter play possum. As we have noticed, he has been

able to do such adventurous acts as he has the embedded

conviction that he will not be taken to task because an

application under Section 156(3) Cr.P.C. is a simple

application to the court for issue of a direction to the

investigating agency. We have been apprised that a

carbon copy of a document is filed to show the compliance

of Section 154(3), indicating it has been sent to the

Superintendent of police concerned.

26. At this stage it is seemly to state that power under

Section 156(3) warrants application of judicial mind. A

court of law is involved. It is not the police taking steps

at the stage of Section 154 of the code. A litigant at his

own whim cannot invoke the authority of the Magistrate.

A principled and really grieved citizen with clean hands

must have free access to invoke the said power. It

protects the citizens but when pervert litigations takes

this route to harass their fellows citizens, efforts are to be

made to scuttle and curb the same.

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27. In our considered opinion, a stage has come in this

country where Section 156(3) Cr.P.C. applications are to

be supported by an affidavit duly sworn by the applicant

who seeks the invocation of the jurisdiction of the

Magistrate. That apart, in an appropriate case, the

learned Magistrate would be well advised to verify the

truth and also can verify the veracity of the allegations.

This affidavit can make the applicant more responsible.

We are compelled to say so as such kind of applications

are being filed in a routine manner without taking any

responsibility whatsoever only to harass certain persons.

That apart, it becomes more disturbing and alarming

when one tries to pick up people who are passing orders

under a statutory provision which can be challenged

under the framework of said Act or under Article 226 of

the Constitution of India. But it cannot be done to take

undue advantage in a criminal court as if somebody is

determined to settle the scores. We have already

indicated that there has to be prior applications under

Section 154(1) and 154(3) while filing a petition under

Section 156(3). Both the aspects should be clearly spelt

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out in the application and necessary documents to that

effect shall be filed. The warrant for giving a direction

that an the application under Section 156(3) be supported

by an affidavit so that the person making the application

should be conscious and also endeavour to see that no

false affidavit is made. It is because once an affidavit is

found to be false, he will be liable for prosecution in

accordance with law. This will deter him to casually

invoke the authority of the Magistrate under Section

156(3). That apart, we have already stated that the

veracity of the same can also be verified by the learned

Magistrate, regard being had to the nature of allegations

of the case. We are compelled to say so as a number of

cases pertaining to fiscal sphere, matrimonial

dispute/family disputes, commercial offences, medical

negligence cases, corruption cases and the cases where

there is abnormal delay/laches in initiating criminal

prosecution, as are illustrated in Lalita Kumari are being

filed. That apart, the learned Magistrate would also be

aware of the delay in lodging of the FIR.

28. The present lis can be perceived from another angle.

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We are slightly surprised that the financial institution has

been compelled to settle the dispute and we are also

disposed to think that it has so happened because the

complaint cases were filed. Such a situation should not

happen.

29. At this juncture, we may fruitfully refer to Section 32

of the SARFAESI Act, which reads as follows :

“32. Protection of action taken in good faith.-

No suit, prosecution or other legal proceedingsshall lie against any secured creditor or any ofhis officers or manager exercising any of therights of the secured creditor or borrower foranything done or omitted to be done in goodfaith under this Act.”

30. In the present case, we are obligated to say that

learned Magistrate should have kept himself alive to the

aforesaid provision before venturing into directing

registration of the FIR under Section 156(3) Cr.P.C. It is

because the Parliament in its wisdom has made such a

provision to protect the secured creditors or any of its

officers, and needles to emphasize, the legislative

mandate, has to be kept in mind.

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31. In view of the aforesaid analysis, we allow the appeal,

set aside the order passed by the High Court and quash

the registration of the FIR in case Crime No.298 of 2011,

registered with Police Station, Bhelupur, District

Varanasi, U.P.

32. A copy of the order passed by us be sent to the

learned Chief Justices of all the High Courts by the

Registry of this Court so that the High Courts would

circulate the same amongst the learned Sessions Judges

who, in turn, shall circulate it among the learned

Magistrates so that they can remain more vigilant and

diligent while exercising the power under Section 156(3)

Cr.P.C.

.......................J.[Dipak Misra]

.......................J.[Prafulla C. Pant]

New DelhiMarch 19, 2015.

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