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IN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELATE JURISDICTIONCRIMINAL APPELATE JURISDICTION

Criminal Bail Application No. __ Of 2014

[APPLICATION FILED UNDER SECTION 438 OF THE

CODE OF CRIMINAL PROCEDURE, 1973]

IN THE MATTER OF:

SIDDHARTH RAJENDRA RUNWAL …..APPLICANT

VERSUS

STATE OF MAHARASHTRA …..RESPONDENT

ON SUBMISSION TO THE HON’BLE HIGH COURT OF BOMBAY

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................3

INDEX OF AUTHORITIES......................................................................................................4

BOOKS:..................................................................................................................................4

CASES:...................................................................................................................................4

WEBSITES:.............................................................................................................................8

STATEMENT OF JURISDICTION..........................................................................................9

STATEMENT OF FACTS......................................................................................................10

STATEMENT OF ISSUES......................................................................................................12

SUMMARY OF ARGUMENTS.............................................................................................13

WRITTEN SUBMISSIONS....................................................................................................14

PRAYER..................................................................................................................................42

MEMORIAL ON BEHALF OF THE APPLICANT Page 2 of 43

LIST OF ABBREVATIONS

¶ – Paragraph

AIR – All India Reporter

ed. – Edition

p. – Page

pp. – Pages

No. - Number

SC – Supreme Court

SCC – Supreme Court Cases

SCR – Supreme Court Reporter

Supp. – Supplement

Vol. – Volume

UDHR - Universal Declaration of Human Rights

ICCPR - International Covenant on Civil and Political Rights

ICESCR - International Covenant on Economic, Social and Cultural Rights

PS – Police Station


INDEX OF AUTHORITIES

Books Referred

Commentary on the Code of Criminal Procedure Act, 1973 by Ratanlal & Dhirajlal

Commentary on the Indian Penal Code, 1860 by Ratanlal & Dhirajlal

The Indian Penal Code; With Commentary by W. R. Hamilton

Commentary on the Indian Evidence Act, 1872 by Ratanlal and Dhirajlal

Commentary on the Constitution of India – Volumes I and II by Durga Das Basu

Commentary on Protection of Women from Domestic Violence Act, 2005 & Rules: With Allied

Laws – V. R. Choudhari

Cases Referred

Oswal Danji v. State,(1960) 1 Guj LR 145: AIR 1960 Guj 16 (18): 1961 (1) CrLJ 251 (DB).

Bherusingh v. State, 1956 Madh BLJ 905: 1956 Madh BLJ (Cri) 209: AIR 1956 Madh Bha 269

(270): 1956 Cr.L.J. 1408 (DB).

Fac Zulla, AIR 1921 Cal 241: 61 Ind Cas522:25 CWN 24: 22 CrLJ 394 (DB).

Bijay Singh v. State of M.B., 1956 CrLJ 897: AIR 1956 MB 170.

Jaikrishnan Desai, (1960) 2 SCR 319:62 Bom LR 889: 1960 SC 889.

Chandrakant v. Murgyappa Umrani v. State of Madhya Pradesh AIR 1999 SC 1557: 1998 SSC

(Cri) 698.

Parichhat v. State of M.P., AIR 1972 SC 535: 1971 SCD 1158: (1977) 4 SSC 694: 1972 CrLJ

322.


Devilal v. State of Rajasthan, AIR 1971 SC 1444:1971 CrLJ 1132.

Jarnail Singh V. State of Punjab, 1982 CrLJ 386 (SC): (1982) 3 SCC 672: AIR 2001 SC 1344.

Sharif Ahmad Alias Achhan, (1956) 2 All 188

Ibra Akanda v. Emperor AIR 1994 Cal 339: 48 CWN 366:45 CrLJ 771.

Bhajan Das v. Emperor AIR 1924 Lah 218:24 CrLJ 421:72 IC 533.

State v. Babur Ali, AIR 1952 Ass 110:1952 CrLJ 997.

Karim Khan v. State of Rajasthan, 1971 CrLJ 1654 (Raj).

Yusuf Sardar v. State of Maharashtra, 1979 Bom Cr 125 (132).

Govind Lal v. State of Rajasthan, 1978 Cr LJ (Raj) 729 (731).

Mittar Sen v. State of U.P., AIR 1976 SC 1156

Jinappa Kallappa v. State of Maharashtra, 1979 Cr LR (Mah) 481.

Hakam Khan v. Emperor, 169 IC 453 : 38 CrLJ 797 (1)

Ashok Somalal Thakkar v. State, 2007 CrLJ 3579 (Guj)

C.N. Narayan AIR 1953 SC 478

Daityari, Tripatti v. Subodh Chandra Choudhury, (1942) 2 Cal 507

Sheo Narayayan Jaiswal v. State of Bihar, AIR 1953 PAT 225

Thakarsi Damjee v. Crown AIR 1952 NAG 253

State of Gujarat v. Jaswant Lal, AIR 1968 SC 700

Hazi Badal v. Abid Hussain, 1984 All Cr R 51

Vinod Kumal Goyal v. Union Territory, 1991 CrLJ 2333 (Punj)

Hardeep Singh v. State, 1996 Cr LJ 2733 (P&H).


Ganjanan Singh Fulsingh Rajput v. State, 1996 CrLJ 2921 (Bom)

Rajbabu v. State, 2008 CrLJ 4301 (SC)

Gurnam Singh v. State, 1998 Cr LJ 3694 (P&H)

Sarala Prabhakar v. State of Maharashtra, 1990 Cr LJ 407

Jawahar Maghi Sindhi Bhansale v. State, 2006 Cr LJ 1717 (Guj)

Ramesh Chand v. State of U.P., 1992 CrLJ 1444 (All)

Shunkara Suri Babu v. State, 1996 CrLJ 1480 (AP)

Bansiya v. State of Rajasthan, 1996 Cr LJ 1393 ( Raj)

State of Haryana v. Rajinder Singh. 1996 Cr LJ 1875 (SC)

Pukh Raj, (1953) 3 Raj 983

Abraham, AIR 1960 Ker 236

Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274

Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1942 Mad 672

Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.

Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)

Baby Kumar Janardana v. State, 2003 CrLJ 1425 (Kant).

Gourishankar v. Bachha Singh, AIR 1939 Pat27: 177 IC 896 (2): 39 CrLJ 980.

Jodh Singh v. State of U.P., 1991 CrLJ 3226 (All).

Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).

Karumanchi Veerangiah v. Katta Mark, 1976 CrLJ 1690: 1976 Andh L T 295: (1976) 1 Andhra

Pradesh LJ (HC) 344.


Hukumchand v. Chandmal, AIR 1950 MB 25:51 CrLJ 764.

Bina v. V. Vanspall, 160 IC 420 (1) : 37 CrLJ 296.

Venkataranam, AIR 1948 Mad 9: 48 CrLJ 970:60 Mad LW 271: (1947) 1 Mad LJ 359.

K.P.Sinha v. Aftabuddin, AIR 1955 Pat 454:1955 CrLJ 1382.

Shamlal Bania v. King, 1952 CrLJ 721.

Guranditta v. Emperor, AIR 1930 Lah 344 (2): 127 IC 860 :32 CrLJ 62.

Abdul Aziz v. Md. Arab Saheb, AIR 1935 Cal 736 :61 Cal LJ 205 :37 CrLJ 133.

Mahammad Sabed Ali v. Thuleswar, AIR 1995 Ass 211: 1955 CrLJ 1318.

Nicol v. DPP, The Times, Nov. 22, 1995 DC.

Inacio Manuel Miranda v. State of Goa, 1999 Cr LJ 422 (Bom)

Amitabh Adhar v. NCT of Delhi, 2000 Cr LJ 4772 (Del)

Hajee Abdul Rehman v. Gulam Nabi, (1964) 1 Cr LJ 40 ( j&k)

B.T. Sharma v. State, AIR 1967 Mani 30

Jangiah v. State, 2007 CrLJ 4598 (AP)

Phipson on Evidence, 2 (15th Edn., 2000)

Uday singh v. State of Maharashtra, AIR 2007 NOC 1640 (Bom)

Chhotka v. state of W.B., AIR 1958 Cal 482

Emperor v. Shiv Kali Goswami (1944) All 758 (FB)

Taylor, 12th Edn., s.364, p.252

Drigpal Singh v. Wife of Laldhari Ojha, AIR 1985 pat 110

Niranjan Singh and Anr. v. Prabhakar Rajram Kharote and Ors. AIR 1980 SC 785


State of Maharashtra v. Anand Chaintaman Dighe AIR 1990 SC 625

State v. Surendranath Mohanty 1990 (3) OCR 462).

Natturasu v. State, 1998 CrLJ 1762 (Mad)

State of Andhra Pradesh v. Bimal Krishna Kundu, AIR 1997 SC 3589

Suresh Vasudeva v. state, 1978 Cr LJ 677(Del)

Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)

Adri Dharan Das v. State of West Bengal, 2005 CrLJ 1706 (SC): (2005) 2 SCC 303.

Om Prakash v. State of Punjab, 2002 (1) Crimes 124 (P&H).

Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)

PG Gupta v. State, (2002) 101 DLT 193.

RL Jalappav. Delhi Police establishment, 1989 (3) Crimes 113, 120 (Kant).

Gaffarsah v. State of Karnataka, 1991 CrLJ 2136, 2138 (Kant).

Kamaljit Singh v. State of Punjab, 2006 CrLJ 4617 (4618):2005 SCC (Cri) 1668.

Kamireddy Mangamma Reddy v. State of A.P., 2008 CrLJ 1083 (1084) (AP).

Website Referred

www.manupatra.com

www.indiankanoon.com

www.westlaw.com

www.supremecourtofindia.nic.in


STATEMENT OF JURISDICTION

The applicant has approached the Hon’ble High Court of Bombay under Section 438 of the Code

of Criminal Procedure, 1973 which reads as under:

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having

committed a non- bailable offence, he may apply to the High Court or the Court of Session for a

direction under this section; and that Court may, if it thinks fit, direct that in the event of such

arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may

include such conditions in such directions in the light of the facts of the particular case, as it may

think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as

and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or

promise to any person acquainted with the facts of the case so as to dissuade him from disclosing

such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the

Court;

(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail

were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station

on such accusation, and is prepared either at the time of arrest or at any time while in the custody

of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of


such offence decides that a warrant should issue in the first instance against that person, he shall

issue a bailable warrant in conformity with the direction of the Court under sub-section (1).


STATEMENT OF FACTS

Mrs. Revati Siddharth Runwal (hereafter referred to as the Complainant), aged – 24 yrs,

married to Mr. Siddhart Rajendra Runwal on 23rd May 2011 as per Hindu Rites and Rituals,

has proceeded with a legal complaint against her husband and her In-laws.

In pursuance of the same, an FIR was lodged by the Complainant (No. 94/13) at Deccan

Police Station (PS) against her husband (hereafter referred to as Accused No. 1), her Father-

in-law, namely Rajendra Runwal (hereafter referred to as Accused No.2), her Mother-in-law,

namely Sunanda Rajendra Runwal (hereafter referred to as Accused No.3), and one Mrs.

Suman Lahoti, the Aunt-in-law (hereafter referred to as Accused No. 4).

The Complainant alleged to be repeatedly harassed mentally and physically by Accused No.

1, 2, 3 & 4 and the said harassment has been taking place since the day of the Complainant’s

wedding ceremony as the food provided in the ceremony was deemed insufficient for

Accused No.2 & 4 and their guests.

It is alleged that the Complainant’s father besides having incurred an expenditure of

Rs.12,00,000/- (Twelve Lakhs) and providing an Alto Car, a Bajaj Pleasure Scooter along

with 10 tolas of gold as ‘ STRIDHAN’ on the abovementioned wedding ceremony was

compelled and tortured to bring in more money.

The complainant further alleged that since the parents of the complainant were unable to pay

a sum of Rs.1,00,000/- (One lakh) , she had been coerced to bring in the same amount failing

which she has been physically and mentally harassed by all the four accused.

It is further alleged that the Accused No.3 took away all the gold ornaments presented to the

Complainant at the time of the Wedding.


It is alleged that Accused no.2 and 4 in collusion, to malign the character of the complainant

and her family, picked petty fights with her, sent her back to her maternal house and

categorically warned the father to keep a check at the misdemeanour, ill conduct and

misbehaviour of their daughter.

The complainant further fabricated the main accused and alleged that Accused No.1 has been

physically abusing her as he found out about her alleged affair in April 2012 with one Mr.

Hiten, brutally beat her up and assassinated her character as he was of the opinion that

complainant maintained physical relations with other men, where after he dropped the

complainant back to her maternal house.

The Complainant further alleged that after amicable settlement between her father and her in-

laws, she was taken back to her matrimonial house on the condition that she would give in

writing that she would not commit suicide. The Complainant alleged that her after her refusal

of the same, she was sent back to her maternal house and was told to stay away from

Accused No. 1.

It is further averred by the Complainant that in May 2012, the Accused, fed up with her

constant threats to commit suicide, filed a non-cognizable case against the Complainant with

the Deccan PS and after settling the dispute in the PS, the complainant was brought back to

her matrimonial house.

It is further alleged that due to constant disputes and petty arguments between the

Complainant and her In-laws, she was asked to shift out where after the complainant and the

main Accused rented a flat in Vadagaon Dhayari.

It is reiterated by the Complainant that she would be beaten up on several occasions as he

deemed the complainant unchaste who indulged with many other men, also asserts that she


had been abused by Accused no.1 who also threatened to kill her on 3rd Dec 2012 as she

insisted on going to her maternal house to attend her Niece’s Birthday.

The complainant stated that after unrequited recurrent quarrels between the couple, the

Accused decided to break all ties with the Complainant after which she was forcefully driven

back to her maternal house and thrown off at Law College Road in 20th December 2012 at

10.00 a.m.

The complainant submitted that about 4.00.p.m. on the very same day, she received a call

from her Brother-in-Law, one Mr. Ojas Runwal informing her that Accused No.1 has left

their house at Vadgaon, Dhayari leaving behind a letter explaining the same.

Subsequently, the complainant has filed an FIR on 27th March 2013 at 14.50.hrs for offences

punishable under Sections 498(A), 406, 323, 34, 504, 506 of the IPC, 1860.

ISSUE RAISED

WHETHER THE INSTANT APPLICATION FOR ANTICIPATORY BAIL SHOULD BE

ALLOWED?


SUMMARY OF ARGUMENTS

While considering an application for bail, detailed discussion of the evidence and elaborate

documentation of the merits is to be avoided. This requirement stems from the desirability that

no party should have the impression that his case has been pre-judged. Existence of a prima facie

case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not

required.1 Where the offence is of serious nature the question of grant of bail has to be decided

keeping in view the nature and seriousness of the offence, character of the evidence and amongst

others the larger interest of the public.2

1 Niranjan Singh and Anr. v. Prabhakar Rajram Kharote and Ors. AIR 1980 SC 785

2 See State of Maharashtra v. Anand Chaintaman Dighe AIR 1990 SC 625 and State v. Surendranath Mohanty 1990 (3) OCR 462).


WRITTEN SUBMISSIONS

The allegations made against the Applicant as not justifiable.

Section 34: When a criminal act is done by several persons, in furtherance of the common

intention of all, each of such persons is liable for that act in the same manner as if it were

done by him alone.

This section is intended to meet cases in which it may be difficult to distinguish between the acts

of the individual members of a party or to prove what part was exactly part was exactly taken by

each of them in furtherance of the common intention of all.3The reason why all are deemed

guilty in such cases is that the presence of accomplices gives encouragement, support and

protection to the person actually committing an act.

To constitute common intention it is necessary that the intention of each one of them was known

to the rest of them and was shared by them.4

The test to decide if the intention of one of them is common is to see whether the intention of one

was known to the other and was shared by that other. In drawing the inference the true rule of

law which is to be applied is the rule which requires that guilt is not to be inferred unless that is

the only inference which follows from the circumstances of the case and no other innocuous

inference can be drawn.5 Where accused persons on going together to a village attacked a victim

and caused his death and after having achieved the object tried to escape together, they act in

close concert and harbour the common intention of beating the deceased. To such a case S. 34

does apply.6 ‘Common intention’ is not the same or similar intention. It presupposes a prior

concert and a pre-arranged plan. It follows that there must be a prior meeting of the minds.

3 Mepa Dana, (1959) Bom LR 269 (SC): AIR 1960 SC 289: 1960 CrLJ 424.

4 (1979) 47 Cut LT 330 (338): ILR (1979)1 Cut 356.

5 Oswal Danji v. State,(1960) 1 Guj LR 145: AIR 1960 Guj 16 (18): 1961 (1) CrLJ 251 (DB).

6 Bherusingh v. State, 1956 Madh BLJ 905: 1956 Madh BLJ (Cri) 209: AIR 1956 Madh Bha 269 (270): 1956 Cr.L.J. 1408 (DB).


Several persons can simultaneously attack a man. Each can have the same intention, that is,

intention to kill. Each can individually cause a separate fatal blow. Yet, there may not exist a

common intention if there was no prior meeting of the mind. In such a case, each would be

individually liable for the injuries, he causes.7

PRINCIPLE:

This section is only a rule of evidence and does create a substantive offence. Section 34 does not

create a distinct offence. It lays down a principle of liability. When two or more persons join

actively in an assault on a third person they are directly responsible for the injuries caused to the

extent to which they had a common intention to cause those injuries, and what their common

intention was must be gathered from the circumstances.8

PARTICIPATION:

Two elements are required to fulfill the requirements of S. 34. One is that the person must be

present on the scene of occurrence and the second is that there must be a prior concert or a pre-

arranged plan. Unless these two conditions are fulfilled, a person cannot be held guilty to an

offence by the operation of S. 34.9

The essence of liability under this section is the existence of a common intention animating the

offenders and the participation in a criminal act in furtherance of a common intention. The

participation need not in all cases be by physical presence. The physical presence at the scene of

the offence of the offender sought to be rendered liable under this section is not one of the

conditions of its applicability in every case.10

7 (1966) 32 Cut LT 121.

8 Fac Zulla, AIR 1921 Cal 241: 61 Ind Cas522:25 CWN 24: 22 CrLJ 394 (DB).

9 Bijay Singh v. State of M.B., 1956 CrLJ 897: AIR 1956 MB 170.

10 Jaikrishnan Desai, (1960) 2 SCR 319:62 Bom LR 889: 1960 SC 889.


INGREDIENTS:

Before a man can be held liable for acts done by another, under the provision of this section, it

must be established that (i) there was common intention in the sense of a pre-arranged plan

between the two and (ii) the person sought to be held so liable had participated in some manner

in the act constituting the offence. Unless common intention and participation are both present,

this section cannot apply.11

It is the essence of S.34 that the person must be physically present at the actual commission of

the crime. He need not be present in the actual room, he can, for instance, stand guard by the gate

outside ready to warn his companions about any approach of danger or wait in a car on a nearby

road ready to facilitate their escape but he must be physically present at the scene of the

occurrence and must actually participate in the commission of the offence in some way or the

other at the time the crime is actually being committed. If several persons have the common

intention of doing a particular criminal act and in furtherance with that common intention all of

them join together and aid or abet each other in the commission of the act, then although one of

these persons may not actually with his own hands do the act, but if he helps by his presence or

by other acts in the commission of the act, he would be held to have done that act within the

meaning of S. 34.

Section 34 will not be attracted unless, first, it is established that a crime has been committed by

several persons, second, that there was a common intention and a pre-arranged plan to commit an

offence and, third, that there was a participation in the commission of the offence in furtherance

of that common intention.12 The common intention must be anterior in point of time to the

commission of crime. It means a pre-arranged plan.13When there is neither pre-concert nor

meeting of minds, S. 34 is not attracted as in the instant case.14

11 Chandrakant v. Murgyappa Umrani v. State of Madhya Pradesh AIR 1999 SC 1557: 1998 SSC (Cri) 698.

12 Parichhat v. State of M.P., AIR 1972 SC 535: 1971 SCD 1158: (1977) 4 SSC 694: 1972 CrLJ 322.

13 Devilal v. State of Rajasthan, AIR 1971 SC 1444:1971 CrLJ 1132.

14 Jarnail Singh V. State of Punjab, 1982 CrLJ 386 (SC): (1982) 3 SCC 672: AIR 2001 SC 1344.


COMMON INTENTION:

‘Common intention’ implies a pre- concerted plan and acting in concert pursuant to the plan.

Common intention comes into being prior to the commission of the act in point of time, which

need not be a long gap.15Though establishing common intention is difficult for the prosecution,

yet, however difficult it may be, the prosecution has to establish by evidence, whether direct or

circumstantial that there was a plan or meeting of mind of all the assailants to commit the

offence, be it pre-arranged or the spur of the moment, but it must necessarily be before the

commission of the crime.

IN FURTHERANCE OF COMMON INTENTION:

In view of the phraseology of S. 34 existence of common intention is not enough, the criminal

act impugned to attract S.34 must be committed in furtherance of common intention. The words

‘in furtherance of the common intention of all’ in S.34, I.P.C. do not require that in order that the

section may apply, all participants in the joint acts must either have common intention of

committing the same offence or the common intention of producing the same result by their joint

act be performed.16

Before the Court can convict the person vicariously for the act of another, it must satisfy itself of

the existence of a prior concert between them or a pre-arranged plan. No hard and fast rules must

be laid down, and each case has to decided on its own merits, but it is essential for the Court to

arrive at a definite finding on whether or not the accused before it had acted in furtherance of a

common intention and it is a part of the Court’s duty while examining witnesses to ensure that

appropriate questions are put to them in order to elicit from them necessary evidence in this

behalf.17

The aforementioned two essential conditions have not been met with in the present case and

therefore Section 34 of the IPC is not applicable.

15 Sharif Ahmad Alias Achhan, (1956) 2 All 188; Ramchander, 1970 CrLJ 653.

16 Ibra Akanda v. Emperor AIR 1994 Cal 339: 48 CWN 366:45 CrLJ 771.

17 1957 ALL WR (HC) 149: 1957 ALL LJ 308.


Section 323: Whoever, except in the case provided for by section 334, voluntarily causes

hurt, shall be punished with imprisonment of either description for a term which may

extend to one year, or with fine which may extend to one thousand rupees, or with both.

This is a general section for the punishment of voluntarily causing hurt. Section 324, 327, 328,

329 and 330 deal with the same offence committed under certain aggravating circumstances: and

ss. 334, 336 and 337 provide for punishment when there are certain mitigating circumstances.

Where death is caused as a result of simple injuries and where it is shown that the accused person

had no knowledge that the deceased’s spleen was diseased, he could only be convicted of

causing simple hurt. 18When victim receives two abrasions on her chest by the beating of the

accused, but victim dies afterwards by reason of rupture of enlarged spleen there being no

evidence that the accused was aware of the ruptured spleen, the accused is guilty of causing

simple hurt.19 When accused throws stones at the chest of the deceased who falls down and dies

in a short time-medical examination revealing that heart of the deceased was ruptured and he

died of heart failure- there being no mark of external or internal injury, the accused cannot be

convicted under section 304, part II, nor even under I.P.C.20

No charge possible u/s. 323-

The charge under section 323, I.P.C. could not be brought home to the accused in the following

cases.

It was in the evidence that soon after the alleged incident, the complainant and his brother went

to the police and immediately lodged information which was treated as N.C. complaint and

which was registered with the N.C. register. On perusal of the same, it emerges that the presence

of the appellant on the spot is not mentioned at all. The substantial part of the prosecution

evidence has been discharged as not only as being unavailable but also false. No conviction

could have ever been recorded under Section 323, I.P.C.21In another case, there was unexplained

delay in lodging the F.I.R for eight days. Delay in itself is not fatal in such cases. But when there

18 Bhajan Das v. Emperor AIR 1924 Lah 218:24 CrLJ 421:72 IC 533.

19 State v. Babur Ali, AIR 1952 Ass 110:1952 CrLJ 997.

20 Karim Khan v. State of Rajasthan, 1971 CrLJ 1654 (Raj).


are other surrounding circumstances like the person being examined twice and the injury finding

place in the first report missing in the second report and instead of one, three injuries finding

place in the second report it gives rise to suspicion in the matter. It cannot be said with certainty

that the injury or injuries concerned might have been caused by the accused only. The

prosecution failed to establish the guilt of the accused beyond reasonable doubt. Accordingly, the

conviction of the accused was set aside. 22

In appeal against conviction under section 323 IPC, it was found that prosecution witnesses were

silent as to causing hurt on the victim. Medical report in absence of oral testimony as to causing

hurt was meaningless.

In a Supreme Court case there were two serious dents in the prosecution case. In that case two of

the four persons were unarmed, the third accused had a knife but he was not brandishing it, as it

was in his pocket and there was no reason to believe that the other accused knew about the knife

with him, the 4th accused was carrying a danda and the High Court did not accept his

participation as established beyond reasonable doubt. In that case, first, the evidence showed that

accused party sustained injuries in the same transactions. These injuries were not explained.

Secondly, it was difficult to see how any common intention could be attributed to the appellant

to cause simple hurt to the victim R. The only part attributed by the prosecution witness to the

appellants was that they assaulted R with kicks and fists. But this was no born out with medical

evidence on record, one did not find from medical evidence any injuries received by R from

kicks and fist blows. It was, therefore, extremely doubtful. Whether the appellants gave any

kicks or fist blows to R, the conviction of the appellants for the affairs under section 323 r/w sec

34, could not in the circumstances be sustained.23

But at the same time it is to be borne in mind, that conviction under sec 323 would not be barred

for the reason that charge under section 34 is not proved.24 When the complainant and the

21 Yusuf Sardar v. State of Maharashtra, 1979 Bom Cr 125 (132).

22 Govind Lal v. State of Rajasthan, 1978 Cr LJ (Raj) 729 (731).

23 Mittar Sen v. State of U.P., AIR 1976 SC 1156

24 Jinappa Kallappa v. State of Maharashtra, 1979 Cr LR (Mah) 481.


accused have sustained injuries and the case of the complainant is based entirely on the oral

evidence of the complainant himself, conviction under section 323 cannot be sustained. Where,

in a case of dacoity, the court disbelieves the evidence of the prosecution as regards the dacoity,

the case must fail and the court cannot convict the accused under section 323 and 324 merely on

the ground that the complainants party had received injuries and the injuries might have been

caused by some of the accused.25

In a case where the accused was not a proclaimed offender was rescued from custody of village

chaukidaar who, in the course therefore, received slight injuries. Rescuers were held neither

guilty under section 224, nor under section 323. Where in a prosecution under section 323, IPC,

the Judge disbelieved the entire prosecution evidence and convicted the accused simply because

they bore a number of injuries on their persons. If the judge wanted to maintain the conviction of

the accused, it was incumbent upon him to base the conviction on some evidence apart from the

presence of injuries on the persons of accused.26

Benefit of Doubt – It was held that in view of discrepancies and infirmities in evidence of

witnesses guilt of accused persons was not proved beyond reasonable doubt and conviction was

not proper.27 Benefit of doubt must therefore be awarded to the accused in the instant case.

Section 406 – Whoever commits criminal breach of trust shall be punished with

imprisonment of either description for a term which may extend to three years, or with

fine, or with both.

To constitute this offence, there must be dishonest misappropriation by a person in whom

confidence is placed as to the custody or management of the property in respect of which the

criminal breach of trust is charged. The ownership or beneficial interest in the property in respect

of which the criminal breach of trust is alleged to have been committed must be in some person

25 Jinappa Kallappa v. State of Maharashtra, 1979 Cr LR (Mah) 481.

26 Hakam Khan v. Emperor, 169 IC 453 : 38 CrLJ 797 (1)

27 Ashok Somalal Thakkar v. State, 2007 CrLJ 3579 (Guj)


other than the accused and the latter must hold it on account of some person or in some way for

his benefit.28

Scope and Object –

The offence consists of any of the four positive acts- 1) Misappropriation, 2) Conversion, 3)

User,4) Disposal of property. Neither failure to account nor breach of contract, however

dishonest, is actually and by itself the offence of criminal breach of trust.29

The ingredients of the offence of criminal breach of trust are-

1- The accused must have been entrusted with the property or dominion over it

2- The accused must have misappropriated the property or disposed of the property in

violation of such trust.

Offence under sec 405 of IPC can be said to have been committed only when all the ingredients

of that offence as defined in the statute are found to have been satisfied.

Essentials of offence of criminal breach of trust –

An offence of criminal breach of trust necessarily involves the facts of –

A – Entrustment of property, B – a dishonest misappropriation or conversion of property by

agent to his own use or C – dishonest use or disposal of the property in violation of mandate of

the law prescribing the mode in which the entrustment has to be discharged or D – Dishonest use

or disposal of the property in violation of the terms of any legal contracts either expressed or

implied regarding the discharge of the entrustment or willfully allowing some other person to do

so.

It must however be kept in mind that mere suspicion can’t take the place of proof and as long as

the accused has offered a plausible explanation which in the background of the circumstances

28 C.N. Narayan AIR 1953 SC 478

29 Daityari, Tripatti v. Subodh Chandra Choudhury, (1942) 2 Cal 507


appears to be better probable then he has discharged the onus upon him, the preponderance of

probability being that his explanation might be true.

Once the explanation of the accused appears to be so possible, the prosecution can’t be said to

have established the case beyond all reasonable doubt since the accused has succeeded in raising

a doubt through his explanation. When such is the case, there is no offence under section 409, of

the IPC, even if entrustment is proved since in the absence of intention of conversion by the

accused, a mere failure to account for the property wouldn’t be criminal breach of trust even

though it might be otherwise a breach of trust. It is therefore, for the prosecution to prove the

explanation as false, if at all.30

Being in any manner entrusted with property – One of the essential conditions of the offence of

criminal breach of trust is that the property which is the subject matter must have been entrusted

to a person; a trust of some kind is necessary, and the property in respect of which criminal

breach of trust can be committed must be either the property of some person other than the

person accused, or the beneficial interest in or ownership of it must be in some other person and

offender must hold such property on trust for such other person or in some way for his benefit.31

In every case when offence of criminal breach of trust is alleged, what must be established

initially is the fact of entrustment of money or property. The word “entrusted” in section 405 is

not necessarily a term of law and may have different implications in different context.32 The

words “in any manner” don’t enlarge the term “entrustment” itself and, unless there is

entrustment, the transaction in question cannot be affected by the terms of that section.33 The

word entrustment is not a term of law. In its most general significance, all it imports is a handing

over of the possessions for some purpose which may not imply the conferring of any property

30 Iswar Prosad v. State of Orissa, 1988 3 Crimes 516 (Ori) The basis of complaint is devoid of essential ingredients of offences alleged against the accused person, no case is made out and cognizance for the same taken by the magistrate can be quashed, Manoranjan Tripathy v. Ganesh Prasad Singh, 1994 Cr LJ 204 (Ori). Where prima facie case of offence relating to misappropriation and breach of trust is made out, the FIR lodged against the accused can’t be quashed, Jahangir Joiya v. State, 1999 CrLJ 154 (Raj).

31 Sheo Narayayan Jaiswal v. State of Bihar, AIR 1953 PAT 225

32 Thakarsi Damjee v. Crown AIR 1952 NAG 253

33 Satyendra Nath Mukherji (1947) Cal 97. This case was approved by the supreme court in Jaswant Lal, AIR 1968 Sc 700; Dani Singh, AIR 1963 PAT 52; Ramn Niranjan, (1964) 1 Cr LJ 614


right at all.34 The natural meaning of entrusted involves that the assured should by some real and

conscious volition have imposed on the person, to whom he delivers the goods, some species of

fiduciary duty.35 The expression “entrustment” carries with it, the implication that the person

handing over any property or on whose behalf the property is handed over to another, continues

to be its owner. Further, the person handing over property must have confidence in the person

taking the property so as to create a fiduciary relationship between them.36

Criminal Breach of Trust by a spouse of property of another-

Under the old concept a woman had a joint possession of her husband’s property and could not

normally allege committing breach of trust against husband. Possession over the ornaments and

other articles of traditional presents would be regarded as joint possession and would exclude

theory of entrustment of property, but this presumption can be repelled by a written agreement to

the contrary. If such a presumption can be excluded by a written agreement, there is no reason

why even oral agreement or evidence, if convincing and acceptable to court, should not be

regarded as a legal equivalent of the written agreement. The emphasis on the written agreement

perhaps is because of the fact that oral agreement can be easily set up to show entrustment and

thereby perhaps the process of court can be abused by instituting false criminal complaints under

Section 406 of the IPC but, apparently, there does not appear to be any reason why an oral

agreement to the contrary, if established by reliable evidence, should not exclude the

presumption of jointness or establish entrustment within the meaning of Section 405 and 406 or

the IPC.37

As to criminal breach of trust of a spouse, it may, apposite that mere allegation in a complaint

either concerning entrustment of articles of dowry constituting streedhan to all the accused, or

their refusal to return such articles of dowry to the complainant (wife) at a later stage, would not

per se be sufficient to make out a prima facie case for commission of offences punishable under

34 Per Lord HALDANE in Lake v. Simmons, (1927) 487

35 Per Lord SUMMER in ibid

36 State of Gujarat v. Jaswant Lal, AIR 1968 SC 700

37 Hazi Badal v. Abid Hussain, 1984 All Cr R 51


section 406 of IPC against any particular accused. In the absence of clear, specific and

unambiguous allegations concerning entrustment or specific articles of dowry to any particular

accused and in the absence of further allegations against him that he had dishonestly or with any

mala fide intentions retain the same and had refused to return those articles to the wife for whose

exclusive use such articles were allegedly entrusted to him, no prima facie case for commission

of such offence would be made out against the particular accused. Normally in the cases relating

to the commission of offence of criminal breach of trust punishable under Sec 406 of the IPC, a

particular accused can be prima facie said to be responsible only for his individual acts and

cannot be fastened with joint or vicarious liabilities.38

In the present case, the complainant has alleged that her in-laws, and not the applicant, are

currently in possession of her property i.e. her stridhan. The in-laws have been granted

anticipatory bails but the applicant has been left in a fix even though the said charge isn’t

applicable to him.

Section 498-A. 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 purposes of this section," cruelty" means-

(a) Any willful 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 account

of failure by her or any person related to her to meet such demand.

In a case where the accused was charged to have administered the insecticide into the mouth of

the victim as she could not bring the dowry from her parents and the trial court convicted them

38 Vinod Kumal Goyal v. Union Territory, 1991 CrLJ 2333 (Punj)


http://indiankanoon.org/doc/1824991/

http://indiankanoon.org/doc/1776697/

u/s 302 , 34 and 498-A. However it was found that there was no abrasion on any part of the body

of deceased and delay in filing the FIR was not explained by the victim, nor were statements

recorded of the neighbors by the investigating officer. It was held that the prosecution had failed

to prove the guilt of the accused beyond reasonable doubt and they were acquitted of all

charges.39

The accused were charged of harassing the deceased who as a result of which has committed

suicide. It was held that accused were liable to be convicted u/s 306, 498-A. However conviction

of accused was not held proper where there was no evidence regarding the ill treatment given to

the deceased by husband or regarding the fact that deceased had died because of self-

immolation.40

Mother-in-law was accused of having forced her to use hand driven flour mills but there are no

direct evidence of harassment neither were there any medical reports that corroborated to

harassment of the deceased wife by the mother-in-law. She was acquitted of charges under Sec

498-A and 30641

The accused were charged for harassing the victim for bringing inadequate amount of money but

demand for dowry was not proved and hearsay evidence of the witnesses could not be proved

beyond reasonable doubt. It was held that offence u/s 498-A was not made out and accused was

entitled to acquittal.42

Cruelty –

The cruelty within the meaning of sec 498-A, IPC had been explained to establish that

harassment or cruelty to wife was to force her to cause grave bodily injury to herself or to

39 Hardeep Singh v. State, 1996 Cr LJ 2733 (P&H). No conviction was ordered where evidence established the simple case of suicide, Baljit Singh v. State, 1996 Cr LJ 2574 (P&H)

40 Ganjanan Singh Fulsingh Rajput v. State, 1996 CrLJ 2921 (Bom)

41 Rajbabu v. State, 2008 CrLJ 4301 (SC)

42 Gurnam Singh v. State, 1998 Cr LJ 3694 (P&H)


commit suicide, or the harassment was to compel her to fulfill illegal dowry demands, it is not

every type of harassment or cruelty related to marriage that can attract section 498-A, IPC.43

Sporadic incidents of ill-treatment by husband doesn’t attract definition of cruelty as these were

not aimed at pressuring wife for divorce or aimed at pressuring her to satisfy demands for

property.

Father-in-law was, in a case was subject to vague accusation of ill-treatment but since there was

no other evidence which could prove that father-in-law was inflicting physical and mental

cruelty to the deceased wife, hence order of conviction and sentence passed were set aside.

Conviction of the accused husband was maintained but reduced44

Unlawful demand for any property or valuable security: Cruelty –

Clause (b) to Sec 498-A, IPC, contemplates harassment of the woman to coerce her or any

relation to her to meet any unlawful demand for any property, valuable security or money. A

complainant if wants to come under the ambit of Cl. (b) of the explanation of Sec.498-A, can

succeed if she can prove there was “unlawful demand” by the husband or any of his relations in

respect of money or some valuable security. It may in some cases be that if the husband makes a

demand through the wife conceded by the father-in-law, and if that be done, the demand would

not be considered unlawful and therefore subsequent refusal by the father-in-law is not a

determinative factor whether the demand was unlawfully made unless the said demand can come

within the definition of dowry.45

The accused was alleged to harass the wife and subject her to cruelty but there was no evidence

to show that all this was done in relation to demand for dowry. The deceased was of slow

tolerance and the usual domestic quarrel led her to commit suicide. In this situation, the accused

was acquitted by giving him the benefit of doubt.46

43 Sarala Prabhakar v. State of Maharashtra, 1990 Cr LJ 407

44 Jawahar Maghi Sindhi Bhansale v. State, 2006 Cr LJ 1717 (Guj)

45 Ramesh Chand v. State of U.P., 1992 CrLJ 1444 (All)

46 Shunkara Suri Babu v. State, 1996 CrLJ 1480 (AP)


The accused was discharged as there were inconsistent versions by witness with regard to ill-

treatment and the testimony of the witness was replete with contradictions. It was held that the

accused couldn’t be convicted. Even though the wife committed suicide, there was no evidence

to show that the accused had abetted the wife to do so.47

In a Supreme Court case, the accused was alleged to have abetted the wife to commit suicide by

ill-treating and subjecting her to cruelty. The evidence of one of the brothers of the deceased was

that there was no enmity or ill will between the spouses. It was held that convicting the accused

on weak evidence was not proper and acquittal was justified as point raised by parents of

deceased about demand of dowry was not found reliable and death was caused due to accidental

causes.48

In the present case, the scuffles that took place in the Runwal household were normal family tiffs

which were instigated and aggravated by the complainant. The complainant has alleged that the

accused inflicted her with physical harm on a regular basis but there are no medical evidences

that substantiate these allegations.

Section 504: Whoever intentionally insults, and thereby gives provocation to any other

person, intending or knowing it to be likely that such provocation will cause him to break

the public peace, or to commit any other offence, shall be punished with imprisonment of

either description for a term which may extend to two years, or with fine or both.

ESSENTIAL INGREDIENTS- An offence under this section has the following ingredients:

(i) Intentionally insulting a person and thereby giving provocation to him;

(ii) The person insulting must intend or know it be likely that such provocation will cause

him to break the public peace or to commit any other offence.

EVIDENCE- To bring home an offence under Sec 504 of the IPC, the prosecution must prove-

(a) That the accused insulted the victim

47 Bansiya v. State of Rajasthan, 1996 Cr LJ 1393 ( Raj)

48 State of Haryana v. Rajinder Singh. 1996 Cr LJ 1875 (SC)


(b) That the accused did so intentionally

(c) That the accused by the insult hurled to the victim, provoked her

(d) That the accused intended or knew it to be likely that the resulting provocation would lead

the victim to break the public peace or to commit any other offence.

This section provides a remedy for using abusive and insulting language. Abusive language

which may lead to breach of the public peace is not an offence. There must be an intentional

insult, which may be offered by words or conduct. If it is by words, the words must amount to

something more than mere vulgar abuse.49 It is not every insult that can be classified as

“intentional insult” coming within the purview of Sec 504. Mere breach of good manners does

not constitute an offence under this section.50 If the insult is of such nature that it may give

provocation which might rouse a man to act either to break or the public peace or to commit any

other offence, the offence is committed.51 The offence contemplated in Section 504 is a serious

one. It is obviously intended to deal with persons who are responsible for breaches of peace of

the commission of offences as those who openly abet or incite them.52

The law makes punishable the insulting provocation which, under ordinary circumstances, would

cause a breach of the peace to be committed, and the offender is not protected from the

consequences of his act because the person insulted does not take the provocation in the manner

intended53, or exercises self-control, or being terrified by the insult, or overpowered by the

personality of the offender, does not actually break the peace or commits another offence. In

judging whether a particular abusive language comes within the mischief of section 504, I.P.C.,

the Court has to see what would be the effect of the language used in ordinary course of events

and not how the complainant actually behaved on being abused. Merely because a man of cool

49 Pukh Raj, (1953) 3 Raj 983

50 Abraham, AIR 1960 Ker 236

51 Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274

52 Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1942 Mad 672

53 Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.


temperament did not react violently or break the peace it does not follow that no offence was

committed by the accused.

SCOPE AND OBJECT:

For an offence under S. 504, what is material is not the reaction of the complainant which might

vary according to the sensitiveness of the individual insulted but the intention of the offender to

provoke or his knowledge that he is likely to provoke the person insulted to commit an

offence.54The offence punishable under S. 504 of the I.P.C. is a distinct offence which comes

under the category of misdemeanors. Using foul and provocative language against any person

which has a tendency of provoking a person to commit an offence is made punishable under this

section. However if filthy or abusive language is used during the course of commission of a

higher offence which has the tendency of provoking the victim to indulge in retaliatory acts, no

charge u/s. 504 IPC need be framed as such conduct of the accused is to be construed as a part of

the higher heinous offence.55

For the offence under S. 504 I.P.C., it is necessary that the insult should be delivered to the

person insulted with the intention that he may be there and then provoked to commit an offence

but where there is no such publication, no offence under S. 504 is committed.56 S. 504, I.P.C.

contemplates an intentional insult to any person leading to provocation or at least intending or

knowing it to be likely that such provocation will cause the person to whom the intentional insult

is offered to break the public peace or commit any other offence.

The provisions of S. 504, I.P.C, are attracted only when, first, the accused insults the

complainant, secondly, the insult must be such a nature that it should be a provocation to the

complainant; and thirdly, that the accused intended or knew that the provocation was likely to

cause to either break public peace or commit any other offence. Further, in a case u/s. 504, I.P.C,

the complainant must mention the actual words which were used by the accused while insulting

him/her; otherwise the Court will not have enough material before it to come to a conclusion

54 Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)

55 Baby Kumar Janardana v. State, 2003 CrLJ 1425 (Kant).

56 Gourishankar v. Bachha Singh, AIR 1939 Pat27: 177 IC 896 (2): 39 CrLJ 980.


whether the words used by the accused amounted to intentional insult. Where the only allegation

in the complaint is that when the complainant resisted the attempts by the accused to evict her

forcibly from the land in her tenancy, the accused persons abused her in filthy words but neither

the complainant has given out the actual words in her complaints which were said to have been

used by the accused nor has she states in her complaint that she was provoked by the insulting

abused, the accused could not be summoned for the offence u/s. 504 of the I.P.C.57

INSULT:

Intentional insulting giving provocation to cause breach of peace is an offence answering S. 504,

I.P.C. Thus would words used by the accused should not only give insult but also must provoke a

man to cause breach of peace or to commit any other offence, or an offence under S.504, I.P.C.58

ABUSIVE WORDS: USER OF-

If abusive language is used intentionally and is of such a nature as would in the normal course of

events lead the person intended to break the peace or to commit an offence, the case is not taken

away from the purview of S. 504, I.P.C merely because the person insulted did not actually break

the peace or did not break the law. Each case of abusive language is not to be judged in the light

and circumstances of that case and there cannot be any general proposition in this regard.59Mere

vulgar abuse thus is no offence. 60Mere vulgar abuse may be condoned as ‘‘De minimis non curat

lex’’61 As held in an M.P Case mere ‘‘vulgar abuses’’ do not constitute offence under S. 294,

I.P.C., though of course in certain circumstances intentional insult with intent to provoke breach

of peace may, enable a Court to frame charge under S. 504, I.P.C. To constitute the offence

under S. 504, there should have been an act or conduct amounting to intentional insult. In the

57 Jodh Singh v. State of U.P., 1991 CrLJ 3226 (All).

58 Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).

59 Karumanchi Veerangiah v. Katta Mark, 1976 CrLJ 1690: 1976 Andh L T 295: (1976) 1 Andhra Pradesh LJ (HC) 344.

60 Hukumchand v. Chandmal, AIR 1950 MB 25:51 CrLJ 764.

61 Bina v. V. Vanspall, 160 IC 420 (1) : 37 CrLJ 296.


absence of these words it is not possible to decide whether the ingredients of intentional insult

are present.62

INSULT OR ABUSIVE UTTERANCES-NEED OF ACTUAL WORDS IN THE

COMPLAINT:

It is necessary that the actual words used or supposed to have been used should be must be

mentioned in the complaint. Otherwise the Court would not be in the position to decide whether

the words used amounted to intentional insult. In the second place, the words used which

amounted to intentional insult should be such as to give provocation for the commission of a

breach of the peace.63 The need of actual words used should also be emphasized in a Calcutta

case because for want of the actual words, the Court felt difficulty in disposing of a revision

against a conviction u/s. 504. The High Court observed that before a person can be found guilty

of an offence punishable u/s 504 for insulting a person by the use of words it must be shown that

the accused used those words intending or knowing it to be likely that it would result in such

provocation as would cause the person to break the peace etc., in the event of non-mention either

in the charge when the charge is framed or in the record of evidence as to what words were used

it is not possible for the High Court in revision to decide whether the words used indicated such

intention or knowledge and the convict on cannot be maintained.64

PROVOCATION:

S. 504 further requires an intention in the accused to give provocation intending or knowing it to

be likely that the man provoked should commit breach of peace. Mere abuse unaccompanied by

an intention to cause a breach of the peace or knowing that the breach of the peace likely does

not come within S. 504.

To constitute an offence under S. 504 insult must be caused intentionally thereby provoking with

intent that the person should break the public peace. Discourtesy or bad manners do not amount

62 Venkataranam, AIR 1948 Mad 9: 48 CrLJ 970:60 Mad LW 271: (1947) 1 Mad LJ 359.

63 K.P.Sinha v. Aftabuddin, AIR 1955 Pat 454:1955 CrLJ 1382.

64 Shamlal Bania v. King, 1952 CrLJ 721.


to an offence under this section. As a matter of fact, the gravamen of the offence underlying the

section 504 lies with the utterer provoking the victim by his words to commit an immediate

breach of peace. In dealing with section 504 the Court has not to judge the temperament or the

idiosyncrasies of the individual concerned .It should try to find out what in the ordinary

circumstances would have been the effect of the abusive language used. Where there is no doubt

that the abusive language used might ordinarily have resulted in broken limbs or at least in an

affray and consequent breach of the peace an offence under Section 504 is committed.65

PROVOCATION TO COMMIT BREACH OF TRUST-

The offence under S. 504, I.P.C., does not depend upon the same sensitive feeling of the

offended but upon the intention or knowledge of the offender to provoke the person concerned to

commit break of public peace. Such an intention is to be gathered from the circumstances

attending insult.66

On the other hand insult without required intention to provoke to commit any breach of public

peace or to provoke to commit any other offences does not constitute an offence u/s. 504, I.P.C.

The reaction of the complainant is not material.67

Before finding that conduct was sufficient to provoke another to violence amounting to a breach

of the peace, a Court must be satisfied that it was the defendant who had acted unreasonably and

not the other person. The conduct must involve the degree of interference with the rights of

others that was shown to be both unlawful and wholly unreasonable.68

In the instant case, the accused had no intentions of provoking the complainant. Whatever scuffle

took place was the result of the complainant’s conduct and not that of the accused’s intentions to

provoke the complainant. Also, the complainant hasn’t recorded in her F.I.R the allegedly

provocative words used which is an essential requirement.

65 Guranditta v. Emperor, AIR 1930 Lah 344 (2): 127 IC 860 :32 CrLJ 62.

66 Abdul Aziz v. Md. Arab Saheb, AIR 1935 Cal 736 :61 Cal LJ 205 :37 CrLJ 133.

67 Mahammad Sabed Ali v. Thuleswar, AIR 1995 Ass 211: 1955 CrLJ 1318.

68 Nicol v. DPP, The Times, Nov. 22, 1995 DC.


Section 506 – Punishment for criminal intimidation -- Whoever commits the offence of

criminal intimidation shall be punished with imprisonment of either description for a term

which may extend to two years, or with fine, or with both;

And if threat be to cause death or grievous hurt, or to cause the destruction of any property

by fire, or to cause an offence punishable with death or imprisonment for life, or with

imprisonment for a term which may extend to seven years, or to impute unchastity to a

woman, shall be punished with imprisonment of either description for a term which may

extend to seven years, or with fine, or with both.

Scope –

A bare perusal of section 506 makes it clear that Part II of the section deals with a graver form of

offence of criminal intimidation which is punishable with imprisonment of either description for

a term which may extend to seven years, or with fine, or with both.

Where there is no evidence of threat having been given by the accused to the complainant, the

conviction of the accused will be set aside69 as mere threat causing no harm to the complainant is

not offence u/s 506.70

Causing alarm is must –

Before an offence of criminal intimidation can be made out, it must be established that the

accused has an intention of causing alarm to the complainant. Mere threats given by the accused

not with an intention to cause alarm to the complainant but with a view to deterring him from

interfering didn’t constitute an offence of criminal intimidation.71

Delaying in lodging complaint may reasonably operate as a reasonable doubt for entailing

acquittal.72

69 Inacio Manuel Miranda v. State of Goa, 1999 Cr LJ 422 (Bom)

70 Amitabh Adhar v. NCT of Delhi, 2000 Cr LJ 4772 (Del)

71 Hajee Abdul Rehman v. Gulam Nabi, (1964) 1 Cr LJ 40 ( j&k)

72 B.T. Sharma v. State, AIR 1967 Mani 30


Deceased in her dying declaration stated that the accused appellant has abused her in filthy

language in public place. There was no other evidence to show that the accused had ever abused

the deceased in a vulgar manner, publically. It was held that declaration made by the deceased

did not fall within any of the limbs of sec 34 and 506, hence conviction held was improper.73

In the instant case, although the complainant has accused the applicant of threatening her, she

has no evidence to corroborate her allegations. Even the account given to the complainant’s

parents by the complainant cannot be believed in the absence of physical evidence. And the very

fact that the complainant’s parents kept sending her back to her matrimonial home goes to show

that the ‘threat’ was but a farce.

INDIAN EVIDENCE ACT

Evidence means and includes –

1) All statements which the court permits or requires to be made before it by witnesses, in

relation to matters of fact under inquiry; such statements be deemed as oral evidence.

2) All documents including electronic records produced for the inspection of the court – such

documents are called Documentary Evidence

The word ‘evidence’ would mean the testimony, whether oral, documentary, electronic records

or real, which maybe legally received in order to prove or disprove some facts in dispute.74

Section 61 – the contents of documents may be proved either by primary or by secondary

evidence.

73 Jangiah v. State, 2007 CrLJ 4598 (AP)

74 Phipson on Evidence, 2 (15th Edn., 2000)


The contents of the document must be proved either by production of the document which is

called primary evidence or by copies or oral accounts of the contents, which are called secondary

evidence. Where there is documentary evidence, oral evidence is not entitled to any weight.75

Evidentiary Value of FIR –

An FIR or a First information Report, that is, information recorded under section 154 CrPC plays

importance as it displays what materials the investigation commenced with and what was the

story then told.

In Gulshan Kumar v. State, it was held that FIR is not a substantive piece of Evidence; it can be

used to corroborate or contradict the statement of maker thereof and also is used to judge the

trustworthiness of the prosecution story.76

Section 8 – Any fact is relevant which shows or constitutes a motive or preparation for any

fact in issue or relevant fact.

Motive –

Motive is that which moves a man to do any particular act. The ordinary feelings, passions and

propensities under which parties act, are facts known by observation and experience and they are

so uniform in their operation that a conclusion may be safely drawn that, if a party acts in a

particular manner he does so under the influence of a particular motive.

Previous threats, previous altercations, or previous litigations between the parties are admitted to

show motive.77 Motive often plays an essential role and becomes a compelling force to commit a

crime and therefore motive behind the crime is a relevant factor for which evidence may be

adduced. Existence of previous or subsequent similar conduct is relevant to an issue of intention

75 Uday singh v. State of Maharashtra, AIR 2007 NOC 1640 (Bom)

76 1993 Cr LJ 1525 (Del)

77 Chhotka v. state of W.B., AIR 1958 Cal 482


or other state of mind although it can’t be used to prove the commission of any crime.78 Motive

can be proved from past ill-conduct or enmity.

Burden of Proof –

Section 101 – Whoever desires any Court to give judgment as to any legal right or liability

dependent on the existence of facts which he assets, must prove those facts exist. When the

person is bound to prove the existence of any fact, it is said that the burden of proof79 lies

on that person.

The parties on whom the onus of proof lies must in order to succeed establish a prima facie case.

He cannot on failure to do so take advantage of the weakness of his adversary’s case. He cannot

be heard to say that it was too difficult or virtually impossible to prove the matter in question.

For example, the mere suspicion is not a proof of benami80. This expression means that a party is

required to prove an allegation before any judgment can be given in his favor. It also means that

on a contested issue in front of the court of law, one of the two contending parties has to

introduce evidence.

In the instant case, while the applicant’s family has gone so far as to produce medical certificates

to prove accused no. 3’s illness as well as an affidavit from the accused’s employer, the

complainant has not produce any evidence to collaborate her allegations.

The grounds on which the bail application has been filed are tenable.

Section 438, CrPC –

Who can apply for anticipatory bail?

78 Emperor v. Shiv Kali Goswami (1944) All 758 (FB)

79 Taylor, 12th Edn., s.364, p.252

80 Drigpal Singh v. Wife of Laldhari Ojha, AIR 1985 pat 110


A person apprehending arrest by magistrate remanding him to custody under section 209 can

apply for anticipatory bail under section 438.81

Where the accused apprehends arrest in view of the fact that a non-bail able warrant has been

issued against him on the basis of charge- sheet filed against him, he can apply for anticipatory

bail82

A person already on bail or apprehending an anticipatory bail can’t apply for bail/anticipatory

bail in respect of the same accusation.83 “He” in the expression “he may apply to court”

occurring in section 438 doesn’t include a stranger or a tadbirkar or a tout of a middleman.

Presence of the petitioner (Sub sec 1B) –

The presence of an applicant seeking anticipatory bail shall be obligatory at the time of the final

hearing of the application and passing of final order by the Court, if on an application made to it

by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

This amendment in the section will come into force from the date of its notification.

Applicability to all non-bailable offences – Section 438 applies to all non-bailable offences; it is

not confined to duly those non-bailable offences which are punishable with death or

imprisonment for life.84

Applicability to cognizable and non-cognizable cases – Anticipatory bail can be granted in

respect of non- bailable offences whether they are cognizable or non-cognizable offences.85

The courts have the power to grant anticipatory bail even in cases where either cognizance has

been taken or charge sheet has been filed.86

81 Natturasu v. State, 1998 CrLJ 1762 (Mad)

82 Supra 1

83 Supra 2

84 State of Andhra Pradesh v. Bimal Krishna Kundu, AIR 1997 SC 3589

85 Suresh Vasudeva v. state, 1978 Cr LJ 677(Del)

86 Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)


Anticipatory bail may be granted to the following under section 438 –

1) Government Servants

2) Minors

3) Women

4) Old and infirm person

5) Handicapped persons

6) Persons having personal disability

7) Persons involved in petty cases

8) Persons who are likely to be harassed in police custody

In the instant case, the applicant has been accused of allegations that have not been proven by

physical evidence. Here, petty household scuttles have been given the name of serious offence

which can potentially ruin the reputation of the Runwal family.

Broad circumstances for grant of bail –

Court can give direction for grant of bail under this section –

1 The provisions of this Section are an exception to the general rule and this power should be

exercised in exceptional cases

2 The consideration governing the exercise of power under this section are materially different

from those when an application for bail is made by a person who is in custody during the

investigation or who is convicted and his appeal is pending before the High Court.

3 In an application under this section the applicant must show that he has reasons to believe he

may be arrested for a non-bailable offence and grounds for such belief must be capable of being

examined by the Court objectively and this section cannot be invoked on the basis of vague and

general allegations, as anticipatory bail is a device to secure the individual’s liberty; it is neither

a passport to the commission of crime nor a shield against any and all kinds of accusations, likely

or unlikely.


4 In disposing of an application for anticipatory bail the High Court or the Court of Session must

apply its own mind to the question and decide whether a case has been made out for granting

such relief.

5 The filing of a first information report is not a condition precedent to the exercise of the power

under this section and anticipatory bail can be granted so long as the applicant has not been

arrested.

6 An order under this section can be passed without notice to the Public Prosecutor. But such

notice must be issued forthwith and the question of bail should be re-examined thereafter in the

light of respective contentions of the parties.

7 If the proposed application appears to stem not from motives of furthering the ends of justice

but from some ulterior motive, the object being to injure and humiliate the applicant by having

him arrested, a direction for the release of the application in pre-arrest bail in the event of the

arrest should generally be made.

8 Status in life, affluence or otherwise, are hardly relevant considerations while examining the

request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of

investigation of crime and the Court must be cautious and circumspect in exercising such power.

9 Some very compelling circumstances must be made out to grant anticipatory bail to a person

accused of committing murder and that too when the investigation is in progress.

10 This section can be attracted when some influential person is the complainant against a weak

person or in the case of political rivalry between two persons if the case is instituted between two

political rivals. However there must be some indication that the allegations are false.87

11 Where the allegations against the petitioners are of general nature, anticipatory bail would be

allowed.88

87 Adri Dharan Das v. State of West Bengal, 2005 CrLJ 1706 (SC): (2005) 2 SCC 303.

88 Om Prakash v. State of Punjab, 2002 (1) Crimes 124 (P&H).


The considerations which ought to weigh the Court while granting bail either under this section

or S. 439 is:-

1- The nature or gravity of the circumstances in which the offence is committed.

2- The position and the status of the accused with reference to the victim and the witnesses.

3- The likelihood of the accused fleeing from justice.

4- Of repeating the offence.

5- Of jeopardizing his own life being faced with a grim prospect of possible conviction in the

case.

6- Of tampering with evidence.

7- The history of the case as well as his investigation, and

8- Other relevant grounds which may apply to the facts and circumstances of a particular case.89

Without looking into the gravity of the offences, bail would not be refuse merely because the

petitioner would influence the witnesses.90

If on the same materials, prayer for regular bail has been rejected, there can be no basis for

granting an anticipatory bail on the same materials.

The grant of bail is the rule, and refusal is the exception.91

KEEPING OUT OF REACH OF POLICE:

The mere circumstance that the petitioners are keeping themselves out of the reach of the police

is not a sufficient to deny the proper relief of anticipatory bail to them, when there is no

possibility of the absconding as they are agriculturists by profession.92

GRANT OF BAIL TO CO-ACCUSED (PARITY):

89 Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)

90 PG Gupta v. State, (2002) 101 DLT 193.

91 RL Jalappav. Delhi Police establishment, 1989 (3) Crimes 113, 120 (Kant).

92 Gaffarsah v. State of Karnataka, 1991 CrLJ 2136, 2138 (Kant).


When other two accused persons on similar allegations have been granted bail, the accused

applicant should be granted anticipatory bail. Anticipatory bail was allowed to the accused

appellant.93 When two co-accused have been enlarged on bail, the petitioner being similarly

should be allowed the benefit of bail.94

Here, most of the serious allegations are against the in-laws who have been granted anticipatory

bails while the applicant has been left in a fix. The only reason for this being that in the opinion

of the Court, the applicant had absconded arrest. However, what the Court fails to see is that the

applicant had gone missing since December, 2012 and the charges were filed by the complainant

in March, 2013, before which she had made no attempts at finding her husband. Hence, this is

not a case of absconding. Ergo, the applicant should be granted an anticipatory bail on the

grounds of parity.

OFFENCES UNDER S. 498A:

Several families are ruined, marriages have been irretrievably broken down and chances of

reconciliation of spouses have been spoiled on account of unnecessary complaints and the

consequent arrest and remand of the husbands and their kith and kin. To discourage this

unhealthy practice, it is desirable that anticipatory bail is be granted very liberally in all cases of

S. 498-A, IPC., particularly when the petitioner/accused is not the husband of the complainant

and when the allegations are not very specific and prima facie do not inspire confidence.95

In conclusion, these charges are a deliberate attempt on the complainant’s part to malign the

name of the Runwal family. In the event that an anticipatory bail is not granted to the applicant,

the entire family fill face great humiliation when in fact, the instant case is nothing but a petty

family scuttle that has given the name of a serious offence.

93 Kamaljit Singh v. State of Punjab, 2006 CrLJ 4617 (4618):2005 SCC (Cri) 1668.

94 Supra 10.

95 Kamireddy Mangamma Reddy v. State of A.P., 2008 CrLJ 1083 (1084) (AP).


PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsels for the

Applicant humbly and forever pray before this Hon’ble Court to kindly:

ALLOW THE ANTICIPATORY BAIL APPLICATION

AND/ OR

PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,

EQUITY AND GOOD CONSCIENCE.

And for this the Applicant as in duty bound shall forever humbly pray.

(Counsels on behalf of the Applicant)


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