In one more glaring case of gross violation of Article 21 of the Constitution of India and that also at the hands of the Police machinery which is supposed to be protector of common man. The victims are the second and third Petitioners who are senior citizens. High Court at Bombay swung in action to punish the gross violators (Police). Pls go through the complete Judgement below:-
ash 1 wp-856.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.856 OF 2012
1. Niraj Ramesh Jariwala, )
Age: 35 years, Occ: Service, )
2. Ramesh Vitthaldas Jariwala, )
Age: 66 years, Occ: Retired. )
3. Hansa Ramesh Jariwala, )
Age : 62 years, Occ: Household, )
All residing at Tirupati Supreme )
Enclave, K/29, Jalidar Nagar, )
Paithan Road, Aurangabad. )
4. Ravindra Dagadu Gaikwad, )
Age : 38 years, Occ: Chairman of )
Bharat Ratna Indira Gandhi )
Engineering College, Solapur, )
Residing at 65, Antroli Nagar1, )
5. Anamika Ravindra Gaikwad, )
Age : 32 years, Occ: Director of )
Bharat Ratna Indira Gandhi )
Engineering College, Solapur. )
Residing at 65, Antroli Nagar1, )
Solapur. ).. Petitioners
( Orig. Accused )
1. Mahadeo Pandurang Nikam, )
Police SubInspector, )
Navghar Police Station, Mumbai )
2. The Senior Inspector of Police, )
Navghar Police Station, Mumbai. )
3. Sheetal Niraj Jariwala, )
Age : Adult, Occ: Household, )
Residing at Plot No.1001, )
Manisha Tower, Tata Colony, )ash 2 wp-856.12
Navghar Road, Mulund (East), )
Mumbai – 400 081. )
4. The Commissioner of Police, )
For Greater Bombay, at Bombay. )
5. The State of Maharashtra, )
( Notice to be served upon A.P.P., )
High Court, A.S., Mumbai.) ).. Respondents
( Respondent No.3/
Shri Sachin Deokar i/by Shri V.V. Purwant for the Petitioners.
Shri D.B. Shukla i/by Shri Yogesh D. Dalvi for Respondent No.1.
Shri A.S. Gadkari, APP for the State.
CORAM : A.S. OKA & S.S. SHINDE, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 3RD DECEMBER, 2012
DATE ON WHICH JUDGMENT IS PRONOUNCED: 21ST DECEMBER,2012
JUDGMENT ( PER A.S.OKA, J)
1. This is one more glaring case of gross violation of Article21 of the Constitution of India and that also at the hands of the Police machinery, which is supposed to be protector of common man. The victims are the second and third Petitioners who are senior citizens.
2. We may note here that by an order dated 31st October, 2012, we directed that the Writ Petition shall be heard and disposed of finally. This Court noted in the said order that what survives for consideration is the prayer Clauses (b) and (d) which concern illegal detention of the second and third Petitioners.
The first Petitioner and the third Respondents are husband and wife. The Second and third Petitioners are parents of the first Petitioner. On 29th
November, 2011,at the instance of the third Respondent, the first Information Report was registered with Navghar Police Station, Mumbai, complaining about the offences under Sections 498A, 406, 323, 504 read with Section 34 of the Indian
penal Code against the Petitioners. As far as the arrest of the Second and third Petitioners is concerned, following are the admitted facts which are borne out from the record.
(i) The Respondent No.1 who was at the relevant time SubInspector of Police attached to Navghar Police Station, Mumbai was deputed to Aurangabad under
the permission of the Assistant Commissioner of Police, Mulund Region. The station diary entry to that effect has been recorded at 10.40 on 2nd December, 2011.
(ii) The first Respondent took the second and third Petitioners into custody at 22.50 on 2nd December 2011 at Aurangabad, but were not shown as arrested.
The first Respondent brought them to Bombay.
(iii) The station diary entry dated 3rd December, 2011 records that at 20.20, the second and third Petitioners were produced before the Senior Inspector of Police Shri Bhorde of Navghar police station. It is recorded that the first Respondent was investigating into the offence. It is recorded that the Second and third Petitioners were placed in the custody of the two Police Constables bearing buckle Nos.97015 and 8040305.
(iv) The Station Diary entry of 4th December 2011 at 08.10 shows that the second and third Petitioners were shown as arrested and the information about their arrest was conveyed to one Manoj Baburao Nishandar, Solapur on his cell phone.
(v) On 4th December 2011, the second and third Petitioners were taken from the Police station at 10.45 for producing them before the Court of the learned
Metropolitan Magistrate. They were actually produced before the learned Metropolitan Magistrate at 15.05 on 4th December 2011 and they were enlarged on bail.
(vi) We must note that the aforesaid facts are admitted facts.
3. We may note here that the order dated 19th June 2012 of this Court records that the investigation of the case has been transferred to Vikhroli Police Station and, therefore, the notice was issued only as regards the prayer clauses (b) to (d). The prayer (b) is for issuing direction to take action against the first Respondent for noncompliance with the directions issued by the Apex Court in the case of D.K. Basu Vs.State of West Bengal [(1997) 1 SCC 416 ]. Prayer (c) is for grant of compensation on account of illegal arrest. Prayer (d) is for directing the fourth Respondent to initiate disciplinary proceedings against the first Respondent. The learned counsel appearing for the Petitioners pointed out that going by the record, the first Respondent took the second and third Petitioners into the custody at 20.50 on 2nd December 2011 at Aurangabad. The first Respondent brought them to Navghar Police Station at 20.20 on 3rd December 2011. However, till 8.10 on 4thDecember 2011, they were not shown as arrested though they were in custody continuously from 20.50 on 2nd December 2011. It is urged that this action is patently illegal and is in violation of Articles 21 and 22 of the Constitution of India as well as Section 57 Code of Criminal Procedure, 1973 ( hereinafter referred to as “the CRPC”). He pointed
out various allegations made in the Petition as regards inhuman treatment meted out to the second and third Petitioners in the onward journey from Aurangabad to Navghar Police Station at Mulund. He pointed out that both the second and third Petitioners were senior citizens on the relevant date. His submission is that apart from initiating action in accordance with law, in view of gross violation of the guidelines laid down by the Apex Court in the case of D.K. Basu (supra) and in view of violation of Articles 21 and 22 of the Constitution of India, the Petitioners are entitled to substantial amount by way of compensation.
4. The learned counsel appearing for the first Respondent, apart from the earlier affidavit dated 2nd April 2012, has tendered additional affidavit affirmed on 3rd December 2012. His submission is
that the first Respondent has acted as per the instructions of the Senior
Inspector of Police of Navghar Police Station and as per the instructions
of the said officer, he brought the second and third Petitioners to the
Navghar Police Station and has made an entry in the station diary in the
night of 3rd December 2011 showing that they were produced before the
Senior Inspector of Police who in turn handed over their custody to the
two Police Constables. He submitted that all further actions at the
police station are by the Senior Inspector of Police and the first
Respondent has merely followed his directions. He denied the
allegations made in the Petition. He pointed out that though the
second and third Petitioners were taken into custody at 20.50 on 2nd
December 2011, onward journey from Aurangabad to Mumbai took 20
hours and, therefore, if the period of 20 hours is excluded, the second
and third Petitioners were produced before the learned Magistrate
within 24 hours from the time of arrest. His submission is that neither
there is any violation of Articles 21 and 22 of the Constitution of India
nor Section 57 of the CRPC. He urged that all the guidelines laid down
in the case of D.K. Basu (supra) have been complied with. He,
therefore, submitted that there is no illegality committed by the first
5. The learned APP has produced the station diary and all the
relevant documents before this Court. He pointed out that all the
relevant station diary entries were made by the first Respondent and the
illegality has been committed by the first Respondent. As regards
compliance with the directions in the case of D.K. Basu (supra), he
urged that the station diary records that the reasons for arrest were
informed to the second and third Petitioners and their close relatives
However, he could not show us any Memorandum of Arrest drawn in
compliance with the directions in the case of D.K. Basu (surpa). He
urged that as the entire default is on the part of the first Respondent,
even if this Court is inclined to direct compensation to be paid, the
same will have to be made payable by the first Respondent. ash 8 wp-856.12
6. Before dealing with the factual aspects, it will be necessary
to make a reference to the directions issued by the Apex Court in the
case of D.K. Basu (supra). Paragraphs 35 to 38 thereof read thus :
35. We, therefore, consider it appropriate to
issue the following requirements to be
followed in all cases of arrest or detention
till legal provisions are made in that behalf
as preventive measures:
(1) The police personnel carrying out the
arrest and handling the interrogation of
the arrestee should bear accurate, visible
and clear identification and name tags
with their designations. The particulars
of all such police personnel who handle
interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out
the arrest of the arrestee shall
prepare a memo of arrest at the time
of arrest and such memo shall be
attested by at least one witness, who
may either be a member of the family
of the arrestee or a respectable
person of the locality from where the
arrest is made. It shall also be
countersigned by the arrestee and
shall contain the time and date f
(3) A person who has been arrested or
detained and is being held in custody
in a police station or interrogation
centre or other lockup, shall be
entitled to have one friend or relative
or other person known to him or
having interest in his welfare being
informed, as soon as practicable, thatash 9 wp-856.12
he has been arrested and is being
detained at the particular place,
unless the attesting witness of the memo
of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of
custody of an arrestee must be notifie
by the police where the next friend or
relative of the arrestee lives outside the
district or town through the Legal Aid
Organisation in the District and the
police station of the area concerned
telegraphically within a period of 8 to
12 hours after the arrest.
(5) The person arrested must be made
aware of this right to have someone
informed of his arrest or detention as
soon as he is put under arrest or is
(6) An entry must be made in the diary at
the place of detention regarding the
arrest of the person which shall also
disclose the name of the next friend of
the person who has been informed of
the arrest and the names and particulars
of the police officials in whose custody
the arrestee is.
(7) The arrestee should, where he so
requests, be also examined at the time
of his arrest and major and minor
injuries, if any present on his/her body,
must be recorded at that time. The
“Inspection Memo” must be signed both
by the arrestee and the police officer
effecting the arrest and its copy
provided to the arrestee.
(8) The arrestee should be subjected to
medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union
Territory concerned. Director, Health Services should prepare such a panel for
all tehsils and districts as well.
(9) Copies of all the documents including
the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate
for his record.
(10) The arrestee may be permitted to meet
his lawyer during interrogation, though
not throughout the interrogation.
(11) A police control room should be
provided at all district and State
headquarters, where information
regarding the arrest and the place of
custody of the arrestee shall be
communicated by the officer causing the
arrest, within 12 hours of effecting the
arrest and at the police control room it
should be displayed on a conspicuous
36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
7. It is also necessary to make a reference to what is laid down in Paragraph 4 of the decision of the Apex Court in the case of Sheela Barse Vs. State of Maharashtra [(1983)2 SCC 96]. In Paragraph 4 of the said decision, it is held thus:
“4. We may now take up the question as to how
protection can be accorded to women prisoners in
police lockups. We put forward several suggestions to the learned Advocate appearing on behalf of the petitioner and the State of Maharashtra in the course of the hearing and there was a meaningful and constructive debate in court. The State of Maharashtra offered its full cooperation to the Court in laying down
the guidelines which should be followed so far as women prisoners in police lockups are concerned and most of the suggestions made by us were readily
accepted by the State of Maharashtra. We propose to give the following directions as a result of meaningful and constructive debate in court in regard to various aspects of the question argued before us:
(i) We would direct that four or five police lock ups should be selected in reasonably good localities where only female suspects should be kept and they should be guarded by female constables. Female suspects should not be kept in a police lockup in which male suspects are detained. The State of Maharashtra has intimated to us that there are already threeash 12 wp-856.12
cells where female suspects are kept and are guarded by female constables and has assured the Court that two more cells with similar arrangements will be provided exclusively for female suspects.
(ii) We would further direct that interrogation of
females should be carried out only in the
presence of female police officers/constables.
(iii) Whenever a person is arrested by the police
without warrant, he must be immediately
informed of the grounds of his arrest and in
case of every arrest it must immediately be
made known to the arrested person that he
is entitled to apply for bail. The Maharashtra
State Board of Legal Aid and Advice will
forthwith get a pamphlet prepared setting out
the legal rights of an arrested person and the
State of Maharashtra will bring out sufficient
number of printed copies of the pamphlet in
Marathi which is the language of the people in
the State of Maharashtra as also in Hindi and
English and printed copies of the pamphlet in
all the three languages shall be affixed in each
cell in every police lockup and shall be read
out to the arrested person in any of the three
languages which he understands as soon as he
is brought to the police station.
(v) We would direct that in the City of Bombay, a
City Sessions Judge, to be nominated by the
principal Judge of the City civil court,
preferably a lady Judge, if there is one, shall
make surprise visits to police lockups in the
city periodically with a view to providing the
arrested persons an opportunity to air their
grievances and ascertaining what are the
conditions in the police lockups and whether
the requisite facilities are being provided and
the provisions of law are being observed and
the directions given by us are being carried
out. If it is found as a result of inspection that
there are any lapses on the part of the police
authorities, the City Sessions Judge shall bringash 13 wp-856.12
them to the notice of the Commissioner of
Police and if necessary to the notice of the
Home Department and if even this approach
fails, the City Sessions Judge may draw the
attention of the Chief Justice of the High Court
of Maharashtra to such lapses. This direction in
regard to police lockups at the district
headquarters shall be carried out by the
Sessions Judge of the district concerned.
(vi) We would direct that as soon as a person is
arrested, the police must immediately
obtain from him the name of any relative or
friend whom he would like to be informed
about his arrest and the police should get in
touch with such relative or friend and
inform him about the arrest; and lastly….”
( emphasis supplied)
8. It will be also necessary to make a reference to the decision
of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State
of Maharashtra, [(2011)1 SCC 694] and in particular paragraph 118
which reads thus :
“118. In case the arrest is imperative, according to
the facts of the case, in that event, the arresting
officer must clearly record the reasons for the
arrest of the accused before the arrest in the case
diary, but in exceptional cases where it becomes
imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately
after the arrest is made without loss of any time.”
It will be also necessary to make a reference to the decisions
of the Apex Court in the case of M.C. Abraham v. State of Maharashtraash 14 wp-856.12
[(2003)2 SCC 649]. In Paragraph 14 of the said decision, the Apex
Court held thus:
“14. Tested in the light of the principles aforesaid, the
impugned orders dated 1012002 and 1112002
must be held to be orders passed by overstepping the
parameters of judicial interference in such matters. In
the first place, arrest of an accused is a part of the
investigation and is within the discretion of the
investigating officer. Section 41 of the Code of
Criminal Procedure provides for arrest by a police
officer without an order from a Magistrate and
without a warrant. The section gives discretion to the
police officer who may, without an order from a
Magistrate and even without a warrant, arrest any
person in the situations enumerated in that section. It
is open to him, in the course of investigation, to arrest
any person who has been concerned with any
cognizable offence or against whom reasonable
complaint has been made or credible information has
been received, or a reasonable suspicion exists of his
having been so concerned. Obviously, he is not
expected to act in a mechanical manner and in all
cases to arrest the accused as soon as the report is
lodged. In appropriate cases, after some investigation,
the investigating officer may make up his mind as to
whether it is necessary to arrest the accused person. At
that stage the court has no role to play. Since the
power is discretionary, a police officer is not
always bound to arrest an accused even if the
allegation against him is of having committed a
cognizable offence. Since an arrest is in the nature
of an encroachment on the liberty of the subject
and does affect the reputation and status of the
citizen, the power has to be cautiously exercised. It
depends inter alia upon the nature of the offence
alleged and the type of persons who are accused of
having committed the cognizable offence. Obviously,
the power has to be exercised with caution and
ash 15 wp-856.12
9. In the light of the aforesaid law laid down by the Apex
Court, now the facts of the case will have to be appreciated. The
station diary entry made at 22.50 hours on 2
December 2012 by the
Usmanpura Police Station, Aurangabad records that the first
Respondent who was the Sub Inspector of Police of Navghar Police
Station, Mumbai, informed that he was taking the second and third
Petitioners from their residence at Aurangabad for the purposes of
investigation of the offence registered at the instance of the third
Respondent. It will be necessary to make a reference to the version of
the first Respondent in the first affidavit dated 2
April 2012. In
Paragraph 5 of the said affidavit, he has stated thus:
“5. I say that after the registration of the offence,
investigation commence and pursuant whereof, the
Petitioner No.2 & 3 were taken into in the
custody for purpose of the investigation and I
have visited the house of the Petitioner and take
them to local police station and accordingly the
concern police station was informed for taking
them to Mumbai for the purpose of investigation
and entry in police Station Usmanpura at
Aurangabad was made.”
10. Thus, the first Respondent himself has admitted that he
had taken the second and third Petitioners into custody for the purposes
of investigation. Thus, there is no doubt that in the night of 2
December 2011 at about 22.50, the first Respondent took the secondash 16 wp-856.12
and third Petitioners into custody at Aurangabad and the first
Respondent brought them to Navghar Police Station at Mulund,
Mumbai. The station diary entry at 20.20 of 3
December 2011 of
Navghar Police Station, Mumbai records that the first Respondent
produced the second and third Petitioners before the Senior Inspector of
Police Shri Bhorde. It also records that the Accused (Second and third
Petitioners ) were handed over in the custody of the two Police
Constables. As far as this aspect is concerned, the version of the first
Respondent in his first affidavit is very vague. The same reads thus:
“After reaching to the Mumbai to concern Police
Station i.e. Navghar Police Station they have
produced before Senior Police Officer. During
course of initial investigation reveal the
involvement of the Petitioner Nos. 2 and 3 and
therefore, they were come to be arrested.
Accordingly they have been produced before the
concern Court and Hon’ble Court was pleased
enlarge them on bail.”
The version of the first Respondent in the subsequent affidavit reads
“The Petitioner and Respondent reached to
Mumbai at about 8.20 pm. by that time Court
hours are over. The Respondent No.1 produced
the Petitioner Nos.1 & 2 before the Senior
Officer and accordingly diary made. The Senior
Officer directed the respondent No.1 to keep
them in rest room as the accused cannot be
produced before the court even if there would
take decision of their arrest save and except on
next day. Therefore, the senior P.I personally made
an enquiry with the Accused. The copy of Stationash 17 wp-856.12
House diary entry at Sr. No.46 dated 3.12.2011 is
annexed hereto and marked as Exhibit “D”.”
Undisputedly only on 4
December 2011 at 08.10, the second and third
Petitioners were shown as arrested and were produced before the
learned Metropolitan Magistrate, Bhoiwada at 15.05 on the same day.
11. Thus, the arrest of the second and third Petitioners made
by the first Respondent at Aurangabad is just before 20.50 on 2
December 2011. At that time no entry of arrest was made in the
station diary at Usmanpura Police Station, Aurangabad in terms of the
guidelines laid down by the Apex Court. There was no Arrest Memo
drawn at Aurangabad. In terms of the decision in the case of Sheela
Barse (supra), though the third Petitioner is a woman, she was not
informed about her right to apply for bail. Within 24 hours from 20.50
December 2011, they were not produced before the nearest
Magistrate. In fact, the first Respondent ought to have produced them
before the learned Magistrate at Aurangabad. Moreover, though they
were brought to Navghar Police Station at Mumbai at 20.20 on 3
December 2011, they were illegally detained in the police station
without showing them arrested and were ultimately shown as arrested
on the next day morning at 08.10. Shockingly after admitting in the
first affidavit that he had taken the second and third Petitioners into theash 18 wp-856.12
custody at Aurangabad for investigation, in the second affidavit in reply
in Paragraph 4, the first Respondent has come out with the following
“Hence, it is submitted that the accused/ petitioner
No.2 and 3 were produced within 24 Hours if
journey period is excluded as contemplated under
Section 57 of the Code of the Criminal Procedure.”
12. In so many words, the first Respondent has stated in the
first affidavit that the second and third Petitioners have been taken into
custody for the purposes of investigation. There is no other mode of
taking the Accused into the custody for investigation save and except by
arresting them. Thus, the said Petitioners were arrested just before
20.50 on 2
December 2011 at Aurangabad. But they were shown as
arrested in Mumbai at 08.10 on 4
December 2011. They were thus
illegally detained by the Police nearly for 35 hours and 40 minutes. The
decision in the case of Siddharam Satlingappa Mhetre (supra) was not
followed. There is no entry made in the station diary as to why they
were arrested. Memorandum of arrest was not drawn. Entry of arrest
was not made in the station diary of Usmanpura Police station at
Aurangabad. Therefore, this is a case of gross violation of the directions
issued by the Apex Court in the case of D.K. Basu (supra), Sheela Barse
(supra) and Siddharam Satlingappa Mhetre (supra). This is also a
case of gross violation of the Articles 21 and 22 of the Constitution ofash 19 wp-856.12
India as the directions in the case of D.K. Basu (supra) flow from the
Articles 21 and 22. It is shocking to note that 12 years after the
decision in the case of D.K. Basu (supra) under which directions were
issued which were already a part of the earlier decisions of the Apex
Court, the officers of the Maharashtra Police have shown a complete
disrespect and disregard to the binding directions. We may note here
that by introducing Section 41B in CRPC by Section 6 of Amendment
Act No.5 of 2009, the directions in the case of D.K. Basu (supra) have
been incorporated in the Statute .
13. Thus, there is a violation of fundamental rights of the
second and third Petitioners guaranteed under Article 21 of the
Constitution of India. There is also a violation of clauses (1) and (2) of
the Article 22 of the Constitution of India. This case of blatant violation
of human rights shocks the conscience of the Court.
14. Now the other issue is regarding grant of compensation. In
the case of Nilabati Behera v. State of Orissa [(1993)2 SCC 746], the
issue regarding grant of compensation in a public law remedy was
considered by the Apex Court. In Paragraphs 17 and 22, it was held
“17. It follows that ‘a claim in public law for
compensation’ for contravention of human
rights and fundamental freedoms, the
protection of which is guaranteed in theash 20 wp-856.12
Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and
such a claim based on strict liability made by
resorting to a constitutional remedy provided
for the enforcement of a fundamental right is
‘distinct from, and in addition to, the remedy
in private law for damages for the tort’
resulting from the contravention of the
fundamental right. The defence of sovereign
immunity being inapplicable, and alien to the
concept of guarantee of fundamental rights,
there can be no question of such a defence
being available in the constitutional remedy. It
is this principle which justifies award of
monetary compensation for contravention of
fundamental rights guaranteed by the
Constitution, when that is the only practicable
mode of redress available for the contravention
made by the State or its servants in the
purported exercise of their powers, and
enforcement of the fundamental right is
claimed by resort to the remedy in public law
under the Constitution by recourse to Articles
32 and 226 of the Constitution. This is what
was indicated in Rudul Sah
and is the basis of
the subsequent decisions in which
compensation was awarded under Articles 32
and 226 of the Constitution, for contravention
of fundamental rights.”
“22. The above discussion indicates the principle on
which the court’s power under Articles 32 and
226 of the Constitution is exercised to award
monetary compensation for contravention of a
fundamental right. This was indicated in Rudul
and certain further observations therein
adverted to earlier, which may tend to
minimise the effect of the principle indicated
therein, do not really detract from that
principle. This is how the decisions of this
Court in Rudul Sah
and others in that line
have to be understood and Kasturilal
distinguished therefrom. We have considered
this question at some length in view of theash 21 wp-856.12
doubt raised, at times, about the propriety of
awarding compensation in such proceedings,
instead of directing the claimant to resort to
the ordinary process of recovery of damages by
recourse to an action in tort. In the present
case, on the finding reached, it is a clear case
for award of compensation to the petitioner for
the custodial death of her son.”
15. In the case of Suber Singh v. State of Haryana [(2006)3
SCC 178], in Paragraph 46, the Apex Court held thus:
“46. In cases where custodial death or custodial
torture or other violation of the rights guaranteed
under Article 21 is established, the courts may award
compensation in a proceeding under Article 32 or 226.
However, before awarding compensation, the Court
will have to pose to itself the following questions: (a)
whether the violation of Article 21 is patent and
incontrovertible, (b) whether the violation is gross and
of a magnitude to shock the conscience of the court,
(c) whether the custodial torture alleged has resulted
in death or whether custodial torture is supported by
medical report or visible marks or scars or disability.
Where there is no evidence of custodial torture of a
person except his own statement, and where such
allegation is not supported by any medical report or
other corroborative evidence, or where there are clear
indications that the allegations are false or
exaggerated fully or in part, the courts may not award
compensation as a public law remedy under Article 32
or 226, but relegate the aggrieved party to the
traditional remedies by way of appropriate
16. Lastly, on this aspect, it will be necessary to make a
reference to the decision of the Apex Court dated 9
September 2011 in
the case of Raghuvansh Dewanchand Bhasin v State of Maharashtra &
Another ( in Criminal Appeal No.1758 of 2011). In Paragraph 19 of theash 22 wp-856.12
said decision, the Apex Court held thus:
“The power and jurisdiction of this Court and the
High Courts to grant monetary compensation in
exercise of its jurisdiction respectively under
Articles 32 and 226 of the Constitution of India
to a victim whose fundamental rights under
Article 21 of the Constitution are violated are
thus, well established. However, the question now
is whether on facts in hand, the appellant is entitled
to monetary compensation in addition to what has
already been awarded to him by the High Court.
Having considered the case in the light of the fact
situation stated above, we are of the opinion that
the appellant does not deserve further monetary
18. Coming back to the facts of the present case, by taking the
affidavits of the first Respondent as it is and going by the record of the
Police Station in the form of station diary entries, this is a case where
virtually it is an admitted position that the directions contained in the
decision in the case of D.K. Basu (supra) were breached. Though the
Petitioners were in fact arrested at Aurangabad, they were illegally
detained for about 36 hours before they were actually shown as
arrested and few hours thereafter, they were produced before the
learned Metropolitan Magistrate. Thus, there is gross violation of
Articles 21 and clauses (1) and (2) 0f Article 22 of the Constitution of
India. As we have narrated earlier, there is no dispute on facts and the
aforesaid conclusions follow from the facts which are not disputed.
Therefore, this is a case where the second and third Petitioners can seekash 23 wp-856.12
compensation on the ground of violation of fundamental rights
guaranteed under Articles 21 of the Constitution of India in a public
law remedy. At this stage, it will be necessary to make a reference to
the decision of the Division Bench of this Court in the case of Veena
Sippy Vs. Narayan Dumbre (2012) ALL MR (Cri) 1263) to which one of
us ( Shri A.S. Oka, J ) is a party . This Court considered various
decisions of the Apex Court in which the compensation on account of
illegal detention was granted when the public law remedy was adopted.
This was a case where the Petitioner who was a woman was illegally
detained in contravention of the directions of the Apex Court in the case
of D.K. Basu (supra). The said judgment shows that the Petitioner
therein was illegally detained in police custody from the evening of 4
April 2008 till 12.30 noon of 5
April 2008. In the said decision, this
Court granted compensation of Rs.2,50,000/ with interest thereon at
the rate of 8% per annum from the date of illegal detention. This Court
also directed payment of costs of Rs.25,000/. The State Government
has complied with the directions given in the said decision by accepting
19. In the present case, the age of both the Petitioners (second
and third Petitioners) is above 60 years. They were arrested at 20.50
December 2011 at Aurangabad and were brought to Navghar
Police Station, Mulund, Mumbai from Aurangabad at 20.20 on 3
rdash 24 wp-856.12
December 2011. They were taken from Aurangabad at 22.50 and they
reached Navghar Police Station, Mulund, Mumbai, nearly after 22
hours. They were shown as arrested in the morning of 4
2011 and were released on bail in the afternoon. Though the said
Petitioners were arrested just before 20.50 0n 2
December 2011 at
Aurangabad, they were shown as arrested in Mumbai at 08.10 on 4
December 2011. They were thus illegally detained by the Police nearly
for 35 hours and 40 minutes. As they were not shown as arrested for
a period over 35 hours, they could not apply for bail. Apart from gross
violation of their fundamental rights, there is a gross breach of the
directions issued by the Apex Court from time to time. There is no
dispute about the facts. Therefore, in the present case, both the second
and third Petitioners are entitled to reasonable compensation of
Rs.2,50,000/ each. Interest payable on the said amount will be at the
rate of 8% per annum from the date of filing of the present Petition i.e.
20. The other issue is whether the compensation should be
made payable by the first Respondent. The first Respondent has
submitted that he has acted as per the instructions of the Senior
Inspector of Police. Here we may note that the station diary entry
made at 20.20 on 3
December 2011 of Navghar Police Station records
that the first Respondent produced the second and third Petitionersash 25 wp-856.12
before the Senior Inspector of Police Shri Bhorde. Thus, the Senior
Inspector of Police was aware at that time regarding illegal detention of
the second and third Petitioners. Notwithstanding this, on the next
date in the morning at 08.10 hours, the second and third Petitioners
were shown as arrested.
21. Whether the first Respondent acted as per the instructions
of the Senior Inspector of Police and whether the Senior Inspector of
police has played any role are the matters which cannot be decided in
writ jurisdiction. Suffice it to say that when the gross violation of
fundamental rights under Articles 21 of the Constitution of India at the
hands of the police officers of the State is established, the compensation
will have to be paid by the State Government and it will be open for the
State Government to recover the same from the officers found guilty of
dereliction of duty by following due process of law. It is also necessary
to direct the Commissioner of Police, Mumbai, to nominate either a
Joint Commissioner of Police or Additional Commissioner of Police to
hold an inquiry for ascertaining as to who is responsible for violation of
fundamental rights of the second and third Petitioners guaranteed
under Article 21 of the Constitution of India. On the basis of the report,
the State Government will have to initiate appropriate proceedings
against the concerned erring police officers in accordance with law. ash 26 wp-856.12
22. Before parting with the judgment, we may record here that
the learned APP has fairly assisted the Court by pointing out correct
factual position and by showing all the relevant entries in the station
23. Accordingly, we dispose of the Petition by passing the
(a) We hold that the detention of the second and third
Petitioners by the officers of Navghar Police Station,
Mulund, Mumbai, from 2
December 2011 till 4
December 2011 is illegal and there has been a gross
violation of the fundamental right of the second and
third Petitioners guaranteed under Article 21 of the
Constitution of India;
(b) We direct the Fifth Respondent – State of
Maharashtra to pay compensation of Rs.2,50,000/
each to the second and third Petitioners together
with interest thereon at the rate of 8% per annum
February 2012 till realisation or payment.
We grant time of eight weeks from today either toash 27 wp-856.12
pay the amount directly to the second and third
Petitioners or to deposit the same in the Court;
(c) We make it clear that it will be open for the State
Government to initiate appropriate proceedings for
recovery of the said amounts from the erring police
officials who are responsible for the illegalities;
(d) We direct the Commissioner of Police, Mumbai, to
appoint an appropriate higher officer not below the
rank of Joint Commissioner of Police or Additional
Commissioner of Police to hold an inquiry for fixing
the responsibility for the illegalities committed by
the police officers of Navghar Police Station,
Mulund, Mumbai. We keep open all the issues in
that behalf ;
(e) The inquiry shall be completed within a period of
three months from today. On the basis of the
inquiry report, the State Government shall initiate
necessary action against the erring Police Officials;ash 28 wp-856.12
(f) We direct the State Government to pay costs of this
Petition quantified at Rs.25,000/ to the second and
third Petitioners within eight weeks from today;
(g) Costs shall be paid directly to the second and third
Petitioners or deposited in this Court within a period
of eight weeks from today;
(h) In the event the amount of compensation as well as
the amount of costs is deposited in this Court, it will
be open for the second and third Petitioners to
withdraw the said amounts;
(i) Rule is made partly absolute on above terms;
(j) All concerned to act on authenticated copy of
( S.S. SHINDE, J ) ( A.S. OKA, J )
Delhi High Court:- Delaying tactics by Wife in Divorce case liable for FINE. Rs. 50,000/- imposed as fine.
Misplaced sympathy in favour of any of the parties results in injustice to the other party. The courts have the solemn duty to maintain a judicial balance. We must deprecate such irresponsible approach of Courts granting numerous and unnecessary adjournments in the strongest terms. The frequent grant of unnecessary adjournments has come in for very serious public criticism. It is not surprising that frequent adjournments are unnecessarily sought, but what is surprising is that Courts generously grant such adjournments, regardless of the fact that it results in delayed disposal of cases, involves loss of public time, increases the financial burden of the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting unnecessary adjournments. The High Courts must take serious note of adjournments freely granted, even if unnecessary, and as a follow up action call upon the judicial officers concerned, in appropriate cases, to justify the numerous and unnecessary adjournments granted.?
It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court because she had urinary problem had been rightly disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the ground that she was unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of Rs.50,000/-.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 08, 2008
Date of Order : October 16, 2008
Sujata Aggarwal …Petitioner Through: Mr. Manu Nayar with
Mr. Hameed S. Shaikh, Advs.
Ravi Shankar Agarwal …Respondent Through: Mr. Sunil Mittal and
Mr. V.S. Pandey, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not ? Yes.
3. Whether judgment should be reported in Digest ? Yes.
1. By this order, I shall dispose of this petition preferred by the wife against the orders dated 3rd March, 2007 and 23rd March, 2007 passed by learned ADJ.
2. The case was at the stage of wife’s evidence. Wife had to file an affidavit in her examination-in-chief, as per directions of the Court, within 3 days of 21st November, 2006. She did not file the affidavit. Thereafter, again directions were given on 3.3.07 to the wife to file her affidavit within one week. The affidavit was still not filed. On 23rd March, 2007 when the case was fixed for evidence, a proxy counsel appeared and moved an application for adjournment and Court noticed the conduct of petitioner in not filing affidavit and not appearing in the Court. When objection was raised by the husband’s counsel, proxy counsel for the wife told the Court that affidavit shall be filed within half an hour and after half an hour an affidavit was produced, but copy of the same was still not given to the husband’s side saying that the same was not ready. The wife was not there for her cross examination. Looking at the entire conduct of the wife that she was not appearing in the Court and even the previous cost imposed by the Court was not paid, the husband’s counsel opposed the application for adjournment. The adjournment was sought by the proxy counsel on the ground that regular counsel could not come as his father was ill. The Court observed that it was the respondent who was to appear in the Court for her cross examination and she had been repeatedly avoiding to appear in the Court. Since there were no grounds given for her non-appearance, her defence was struck off by the Court.
3. The order dated 3rd March, 2007 is in respect of disposal of the application moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule 3(a) CPC and Order 17 Rule 2 CPC whereby she wanted to summon the records of other Courts and to summon the witnesses who had made statements in other Courts and she wanted that parents of the husband, the Chartered Accountant of the husband should also be summoned in the Court as defence witnesses.
4. The Trial Court found that the case was fixed for respondent’s evidence on 29th December, 2005. Thereafter, no respondent witness was ever present in the Court. Respondent did not examine even herself in her defence and only moved different applications. When the Court gave directions for wife to appear and examine her witnesses on 14th November, 2006, instead of examining herself she moved 4 applications. Those applications were dismissed with costs vide order dated 21st November, 2006. On next date when the matter was fixed for respondent’s evidence and directions were given to file affidavit within 3 days, instead of appearing, she got moved 2 more applications.
5. On next date of hearing, the costs was not paid and the respondent/wife also did not appear. Another application under Section 151 CPC was moved for her exemption from cross examination. The Court found that the respondent/wife was only indulging in dilatory tactics. It was also observed that only 3 adjournments can be granted to a party for evidence and respondent was not entitled to any further adjournment. But the Court still gave one more opportunity.
6. The respondent/wife in her application had taken a plea that she was suffering from tuberculosis of Urinal track and related gynecological problems due to which she was unable to bear any kind of stress and was unable to stand and move out of the house as her blood pressure shoots up and because of these health conditions she was not able to come to the Court. She should therefore be allowed to examine her other witnesses and she should be exempted from examining herself first. The husband denied that she was suffering from any disease as stated by her and stated that she had been seen moving around in shopping centres. The medical certificate filed by her only showed that she was under treatment since 25th May, 2006. The Trial Court found that although the respondent did not file her affidavit by way of evidence in the Court, but she filed several affidavits supporting various applications moved by her. That showed that she had been coming to the Court and executing other affidavits. Even her plea that she was not able to hold urine for more than 10 minutes, was not supported by her medical certificate. The medical certificate filed showed that she was undergoing treatment of Pyrexia of unknown origin.
7. The Trial Court also observed that her claim that she was not able to visit the Court stood belied from her repeated visits to the Court for filing affidavits supporting applications. The number of applications moved and number of affidavits filed by her showed that her plea of being not able to come to the Court was false. The Court also found that if she was not in a position to stand or move, as claimed by her, she would not have been able to come to Court even for moving various other applications. She made several applications on various dates running into numerous pages and with each application an affidavit was there. Thus, the Court dismissed the application of the wife under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court still gave the adjournment despite finding that the respondent was guilty of delaying the proceedings, imposing further costs of Rs.5,000/-. It was also made clear to the respondent that she would appear on next date of hearing and would also pay the entire costs including costs imposed on 3rd March failing which her defence would be struck off.
8. In order to consider the challenge to these orders, the Court will have to look at the conduct of the petitioner/wife and see whether her prayer had been sincere or she had been taking the Court for a ride because she had enough money power, on the basis of which she has been assailing every order of the lower Court before High Court.
9. The wife herein is facing a Divorce petition filed by the husband. The Divorce petition was filed in 1998 and appearance was put by her counsel on 15th January, 1999. A perusal of record of Trial Court shows that thereafter the effort of the wife had been to see to it that this case does not proceed further. One leg of the wife had been in the High Court and almost every order passed by the leaned ADJ was challenged before this Court.
10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made following observations:-
?In the meanwhile, it appears that the respondent/husband has been under cross examination for the last three years and as many as 25 days of hearing have taken place. There has to be a finality to the cross examination of the respondent and it cannot be go on interminably. Consequently, other than the cross examination relating to the documents mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross examination of the respondent must be concluded positively on the next date of hearing, that is, 23rd December, 2004?
11. Above order of this Court and the orders passed by Trial Court right from the start of case show the intentions of the respondent.
12. A perusal of the order sheets of the Trial Court would show that every kind of excuse available on the earth had been put forward for seeking adjournments and all tactics had been adopted to delay the proceedings. The issues in the case were framed on 1st June, 2000. The Court could record statement of the husband in examination-in-chief only on 30th January, 2001. Thereafter, the cross examination of husband was concluded on 22.11.2005 only, after this Court passed above stated order. In between respondent or her counsel did not appear in the Court on 27th August, 2001 even to receive the alimony paid by the husband. On 11th February, 2002, counsel for the respondent wanted the proceedings to be stayed on the ground that he had preferred a revision before the High Court, despite the fact that there was no stay granted. The Trial Court still adjourned the case for cross examination of the petitioner. On next date, on 20th March, 2002, none appeared for the respondent/wife neither his counsel appeared. The Court still did not proceed ex parte and re-listed the matter.
13. On 4th April, 2002, an adjournment was sought on the ground of her ailment. Several adjournments were sought on the ground that the matter may be settled. However, whenever the matter was fixed for cross examination of husband, instead of cross examining him the counsel for the wife had moved an application and sought adjournment on one or the other ground. Even when he cross examined, the cross examination was made in prolix manner to make it linger on. The counsel also sought adjournments on his personal grounds, sometime his brother-in-law was ailing, sometime he had to attend the school of his child, sometime on the ground that a relative had expired. The respondent had all along been not appearing in Court on one or the other ground.
14. The petitioner had filed number of petitions and appeals in this Court right from the beginning. Every petition filed in this Court was accompanied by the affidavits of the petitioner. Number of petitions along with affidavits filed by the petitioner as gathered from the record of this case are CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07, CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and CM(M)969/06.
15. It is evidently clear from the entire proceedings that the effort of the petitioner had been to see that divorce petition filed by husband does not proceed. The mandate of the legislature is that proceeding under Hindu Marriage Act should come to an end within six months.
16. The ground on which husband sought divorce is desertion. The petitioner/wife had an option to lead her evidence to show that she had not deserted and the fault lied on the side of the husband. Instead of leading evidence, appearing in the Court she had just seen to it that the case does not proceed.
17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No. 3241/2006 decided on 2.8.2006 made following observations in respect of grant of repeated adjournments by Courts:
?………… at the same time we must impress upon the Courts that its approach, however liberal, must be in consonance with the interest of justice and fair to both the parties. Misplaced sympathy in favour of any of the parties results in injustice to the other party. The courts have the solemn duty to maintain a judicial balance. We must deprecate such irresponsible approach of Courts granting numerous and unnecessary adjournments in the strongest terms. The frequent grant of unnecessary adjournments has come in for very serious public criticism. It is not surprising that frequent adjournments are unnecessarily sought, but what is surprising is that Courts generously grant such adjournments, regardless of the fact that it results in delayed disposal of cases, involves loss of public time, increases the financial burden of the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting unnecessary adjournments. The High Courts must take serious note of adjournments freely granted, even if unnecessary, and as a follow up action call upon the judicial officers concerned, in appropriate cases, to justify the numerous and unnecessary adjournments granted.?
18. It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court because she had urinary problem had been rightly disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the ground that she was unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of Rs.50,000/-.
October 16, 2008
SHIV NARAYAN DHINGRA J.
M.K. Mittal, J.
1. This application has been filed under Section 482, Cr.P.C. for quashing the charge-sheet No. 14/02, State v. Dheeraj Jain and Ors. under Sections 498A and 406, I.P.C. and Sections 3/4, Dowry Prohibition Act in Criminal Case No. 5066/02 pending in the Court of Chief Judicial Magistrate, Saharanpur.
2. Heard the applicant Sri Dheeraj Jain in person, and Mr. G.S. Hajela learned Counsel for the opposite party No. 2 and learned AGA for the State and perused the material on record.
Counter and rejoinder affidavits have been exchanged.
3. The brief facts of the case are that the opposite party No. 2 filed an application under Section 156(3), Cr.P.C. and on that basis learned Magistrate directed for registration of the case and after investigation charge-sheet has been submitted against the accused persons. The case as taken in the First Information Report is that Smt. Shikha was married with Dheeraj Jain according to Hindu rites on 29.6.2001. Dowry was given at the time of the marriage. After marriage the opposite party No. 2 went to her sasural in Delhi. The informant was asked to bring Rs. 2,50,000 and Maruti car but when she told that her father was not in a capacity to give these things, she was badly beaten and no food was given to her for several days. About two months prior to the filing of the application her maternal uncle Anil Kumar Jain came to know about harassment and came to her sasural and tried to explain the things but the accused were adamant and she was brought to Saharanpur. After some time the informant along with Anil Kumar Jain came to her sasural and Rs. 50,000 were given to applicant No. 1 but still the harassment and demand for additional dowry was not given up and she was again beaten and mentally tortured to the extent that even she decided to commit suicide. She also sent a letter to her maternal uncle. On 25.11.2001 she telephoned her maternal uncle Anil Kumar Jain and told him that she was being continuously harassed and beaten and the accused were adamant for additional dowry. Next day Anil Kumar Jain came to her sasural with some relations and efforts were made to defuse the problem but the accused did not agree and demanded car and Rs. 2,50,000.00 and also told her uncle that if these items were not given there was no need to leave her in her sasural as she would be killed. Thereafter her maternal uncle brought her to Saharanpur.
4. The informant made efforts to lodge the report at police station but it was not written. She gave an application to Superintendent of Police and when no action was taken she filed the application under Section 156(3), Cr.P.C. on 4th December, 2001. First Information Report was registered on 13th December, 2001 after the order was passed by the learned Magistrate on 11th December, 2001.
5. The main contention of the applicant is that the Court at Saharanpur has no jurisdiction to entertain the present case because no cause of action or part of cause of action accrued within the limits of District Saharanpur. According to applicant even if the allegations as made in the First Information Report, although denied by him, are taken to be correct, the incident of alleged harassment and mental torture took place in the sasural of the informant which is situated in Delhi and therefore the Court at Saharanpur has no jurisdiction to entertain the case.
6. In this matter it will be useful to refer Section 177, Cr.P.C. which provides that every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed.
7. The offence under Section 498, I.P.C is not a continuing offence. In this case whatever offence is alleged to have been committed is within the area of Delhi and not in Saharanpur and, therefore, the Court at Saharanpur has no jurisdiction to try this case. In this connection the reference can be made to the cases of Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. and Ramesh and Ors. v. State of Tamil Nadu I (2005) CCR 245 (SC) : 2005 SCC (Criminal)
735. In these cases it has been held that the trial for the offence under Section 498, I.P.C. can take place where the incident is alleged to have been committed.
8. Learned Counsel for the complainant could not show any law to the contrary. However, he contended that in case it is held that the Court at Saharanpur has no jurisdiction, the Court be directed to return the complaint to the complainant. In the case of Y. Abraham Ajith (supra), the complainant had filed a complaint and the Hon’ble Apex Court while holding that the Court at Chennai had no jurisdiction, directed for quashing of the proceedings and the return of the complaint to respondent No. 2 who was permitted to file the same in the appropriate Court if she so chose to do. In the instant case the First Information Report was registered on the basis of the application given by the opposite party No. 2 and after investigation charge-sheet has been submitted. In the circumstances, charge-sheet cannot be returned to the informant to be filed in appropriate Court.
9. The applicant Dheeraj Jain has argued on other points also but it is not necessary for decision of this case because the application under Section 482, Cr.P.C. can be allowed on the ground of jurisdiction alone.
10. The application under Section 482, Cr.P.C. is hereby allowed and the proceedings in Criminal Case No. 5066/02, State v. Dheeraj Jain and Ors. pending in the Court of Chief Judicial Magistrate, Saharanpur, are hereby quashed. However, it shall be open to the opposite party No. 2 to take necessary legal action in the matter in appropriate Forum as may be permissible to her under law.
Mumbai High Court:- WIFE OR HER PARENTS Cannot claim Marriage expense. Also the right to claim permanent alimony is dependent on the conduct and the circumstances involved.
Mumbai High Court
Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar
JUDGMENT S.B. Mhase, J.
1. This appeal is directed against the Judgment and Order passed in Misc. Application No. 60 of 2000 on 5-8-2000 by the Family Court, Bandra in an application preferred under Sections 27 and 25 of the Hindu Marriage Act, inter alia, making prayer that the stridhan of the applicant be returned and also permanent alimony be granted. The said application was partly allowed by the Family Court. However, in respect of part rejection of the application, this appeal has been preferred.
2. The applicant was married with the opponent on 21-5-1995 according to Hindu Laws. The said marriage has been annulled by a-decree of nullity dated 16-3-1996 on a ground that the applicant-wife was suffering from epilepsy at the time of marriage. Even though the said decree was ex-parte, the said decree was not challenged by the applicant-wife. However, after passing of the said decree, the notice was issued by the applicant for return of the articles which were presented to her at the time of marriage by her parents as per the list. It is further claimed that the expenses incurred for the said marriage of Rs. 31,876/- be returned. During the pendency of this application the applicant-wife further submitted the application (Exh.16) for return of the articles and jewellery which was presented to her by her in-laws at the time of marriage. She has further claimed permanent alimony. The Family Court has rejected the claim of Rs. 31,876/- which was incurred by the parents of the’ applicant-wife for the purposes of marriage expenses on the ground that there is no provision to return such amount. At the time of argument of this matter, the learned Counsel for the appellant-wife fairly conceded that there is no provision for return of such marriage expenses and therefore, unless there is a provision to that effect, the trial Court was justified in rejecting the claim for the marriage expenses to the extent of Rs. 31,876/-. The trial Court has also rejected the claim in respect of the golden articles and jewellery as listed in (Exh.16). This appeal is mainly directed against the said finding of the trial Court. We need not go to list of those articles but what we find that all these articles, as per the claim made by the applicant-wife, have been presented to her by the in-laws viz. mother-in-law, sister-in-law i.e. (sister of the husband), another sister-in-law i.e. the wife of the brother of the husband and so on. Naturally, as these Articles have been presented by the in-laws, the applicant has not produced any evidence to demonstrate that these articles were purchased by her in-laws at any point of time. However, she had entered into witness box and stated that these articles were presented to her. In order to support her testimony, she has produced the photographs which were taken at the time of marriage wherein these articles were reflected as having been put on her and thereby claiming that these articles were with her and they have not been returned by the husband. Since they found to be stridhan, she is entitled to return of the same. The husband has denied that such articles were ever presented to the applicant-wife. According to him these articles were not presented at any point of time and he further made a suggestion in the cross-examination that these articles were of the parents of the appellant-wife which were put on by her parents in order to have a show of the presentation of such articles and he calls it as a “mandap show”. Such suggestion has been denied by the applicant-wife. However, it is pertinent to note that if these articles were presented to her, she should have examined some witnesses who were present at the time of marriage in the presence of whom these articles were presented by her in-laws. However, she has not examined her father and mother. She has not examined any friend who may be accompanied her at the time of said marriage ceremony to demonstrate that such articles were presented during the marriage ceremony to her. As against this, what we have noticed that the respondent-husband has entered into witness box to depose that such articles were not presented. Apart from that respondent-husband has examined his parents. The parents have also stated that such articles were not presented to the appellant-wife and therefore, the respondent has brought on record the primary evidence to demonstrate that such articles were never presented. Learned Counsel for the applicant tried to submit that since these articles will have to be returned to the appellant-wife, the respondent and his parents are making statements that such articles were not presented. However, what we find that in that eventuality, these witnesses have been cross-examined and nothing have been brought in the cross-examination to demonstrate that these witnesses were supressing the truth. We have gone through the evidence of the parents and noticed that the evidence is convincing one and the trial Court has rightly appreciated the evidence. Therefore, we find that appellant has failed to establish that such articles were presented by her in-laws in the marriage ceremony.
3. Apart from this, we have taken into consideration that when the first notice was given the articles mentioned in the list Exh.16 were not demanded. Not only that when the application was filed, in the said application there was no demand for the articles. It is during the pendency of the application, the Exh.16 was submitted to the Family Court making claim towards specific articles. Those articles were golden and jewellery articles and such important stridhan will not be forgotten by the appellant-wife till the pendency of the application. In that context it is reflected that it is a after thought decision to claim the articles and we find that the observation and finding recorded by the Family Court are proper and justified one and we find that there is no merit in the submission of the learned Counsel that the Family Court should have allowed the list (Exh.i6).
4. So far as the articles which are directed to be returned to the appellant-wife, we find that the findings have been rightly recorded and no interference is called for. Apart from that there was a counter appeal filed by the first party challenging the said order. The said appeal is withdrawn by the respondent-husband as not pressed and therefore, we confirm that part of the Family Court’s order.
5. The last question which requires consideration is in respect of the alimony. It is an admitted fact that the decree for nullity has been passed under Section 5(ii)(c) since the appellant was suffering from epilepsy. Since the learned Advocate for the appellant submits that under Section 25 the alimony has to be paid at the time of passing of the final decree. He relied on the decision in the case of Shantaram Tukaram Patil and anr. vs. Dagubai Tukaram Patil and ors. reported in 1987 Mh.LJ. 179. He further pointed out that the said Judgment is relied upon by the single Judge in a subsequent Judgment in the case of Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted that even though the decree of nullity was passed the petitioner is entitled to claim alimony under Section 25.
The learned Counsel for the respondent submitted that both these Judgments have considered the aspect that the entitlement of the party for permanent alimony and more specifically right of the wife. However, he submitted that the said right is available on condition that taking into consideration the conduct and the circumstances of case the Court is satisfied that alimony shall be granted. According to him after marriage, immediately there was a “Satyanarayan Pooja” and for the first time husband and wife came together. The respondent-husband found that the appellant-wife is a patient of epilepsy and on the next day, he has called on to the parents of appellant-wife and the father of the appellant came along with the Doctor to discuss. Learned Counsel further stated that the father requested respondent to allow the appellant to stay with respondent and the medical expenses will be borne by the father of the appellant. He submitted that thus the fact that the appellant was suffering from epilepsy was not disclosed at the time of settlement of marriage and till the marriage is performed. He further submitted that even though on 1 or 2 occasions, prior to the marriage there was a meeting of respondent husband and appellant-wife, still the appellant wife has not disclosed that she is a patient of epilepsy. Thus he submitted that the conduct of the appellant and her parents in not disclosing that the appellant wife is suffering from epilepsy is itself a fraudulent and therefore, the party which takes the benefit of it, shall not be allowed to take such benefit and this circumstance may be taken into consideration. Relevant portion of Section 25 of the Hindu Marriage Act, 1955 is as follows :- Section 25.- Permanent alimony and maintenance – (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having reward to the respondent’s own income and other property, if any, the income and other property of the applicant, (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. In the facts and circumstances of the present case what we find that since the decree for nullity of marriage is passed under Section 5(ii)(c) we have to consider as to whether order for amount of alimony is to be passed. In view of the above referred 2 Judgments which have been relied by the Counsel for the appellant, we do not find any difficulty to conclude that in such a decree the wife is entitled to have a permanent alimony. However, whether the conduct of the parties and other circumstances involved in this case will allow us to pass such order is the main question. It is an admitted fact that the marriage was celebrated on 21-5-1995 and within 4 days from the date of marriage, ‘Satyanarayan Pooja’ was performed in the matrimonial home and thereafter husband and wife were allowed to stay with each other. However, when it was found that the appellant-wife is suffering from epilepsy the marriage was not consumated and on 27-5-1995 the respondent-husband has contacted the appellant’s father. The applicant’s father and mother accompanied by the Doctor attached to the Poddar hospital came to the house of the respondent-husband and thereafter they discussed about the fact of suffering of the epilepsy. The appellant’s father showed willingness to incur the medical expenses for the treatment of the appellant. However, he requested the Respondent to allow the appellant to stay in the house of the respondent-husband. This was not accepted by the respondent and therefore, the father of the appellant has taken the appellant and thereafter, a petition for nullity of marriage was filed in which ex-parte decree was passed. The said decree is not challenged. Thereafter, the applicant has filed this application for the permanent alimony. It is pertinent to note that the parents and/or father of the appellant have not entered into a witness box either to depose that the fact of the epilepsy was disclosed to the respondent husband at the time of settlement of carriage nor the appellant has stated in her evidence that at any point of time prior to the marriage when they have seen each other said fact was disclosed to the respondent-husband. Therefore, the only inference is that till the marriage is performed the respondent was not aware of the fact that the appellant is a patient of epilepsy. The moment he got knowledge, he has not consummated the marriage and called the parents of the appellant and thereafter appellant was taken by the parents. This shows that had the fact been disclosed prior to the performance of the marriage, the respondent-husband would not have conducted such marriage with the appellant-wife. The non disclosure by the parents of the appellant and the appellant accepting the decree as it is without making any grudge that in respect of the ground that the appellant was suffering from the epilepsy prior to the marriage reflects upon the conduct of the appellant and if we take into consideration this aspect what we find is that the appellant is trying to take advantage of her wrong or fraud and is trying to harass the respondent by claiming the amount of alimony. But what we find is that after a decree of annulment the respondent has married and he is having a child. Now this appears to be an attempt on the part of the appellant and her parents to disturb the marital life of the respondent which he has tried to settle after annulment of the marriage. This is an attempt to shift the liability of maintenance by the appellant-wife on a husband who was not at fault and who has not consummated the marriage. Even though the law permits the right of the alimony in favour of the appellant, however, the conduct and the circumstances involved in the present case does not permit us to pass an order of permanent alimony in favour of the appellant. We find that the findings recorded by the Family Court are just and proper and no interference is called for.
6. In the result, we find that there is no substance in the appeal and hence, appeal is hereby dismissed with no order as to costs.
Bombay HC- Husbands condition to tender unconditional apology for filing criminal complaint and publish in the newspaper allowed by Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 142 OF 2011
Rushabh Parekh …Appellant
Meghna Parekh Nee Vora …Respondent
CRIMINAL APPLICATION NO. 419 OF 2012
CRIMINAL APPLICATION NO. 4324 OF 2009
Rushabh Sudhir Parekh and Ors. …Applicants
The State of Maharashtra and Anr. …Respondents
CRIMINAL APPLICATION NO. 830 OF 2012
Meghna Parekh Nee Vora. …Applicant
The State of Maharashtra and Anr. …Respondents
CRIMINAL APPLICATION NO. 2131 OF 2008
Meghna Rushabh Parekh …Applicant
The State of Maharashtra and Anr. …Respondents
CRIMINAL APPLICATION NO. 5232 OF 20102/7 fca.142-11.doc
Meghna Rushabh Parekh and Anr. …Applicants
The State of Maharashtra and Anr. …Respondents
CRIMINAL REVISION APPLICATION NO. 274 OF 2007
CRIMINAL APPLICATION NO. 156 OF 2010
Meghna Parekh Nee Vora …Applicant
The State of Maharashtra and Ors. …Respondents
CRIMINAL WRIT PETITION NO. 2491 OF 2008
Meghna Parekh Nee Vora …Petitioner
The State of Maharashtra and Anr. …Respondents
Mr. Avinash Avhad i/b Mrs. Racheeta R. Dhuru for the Appellant in FCA no. 142 of 2011, for the Applicant in Cr.Appln. no. 419 of 2012, for Respondent nos. 2 to 4 in Cr. Revision Application no. 274 of 2007, for Respondent no. 2
in Cr. Writ Petition no. 2491 of 2008.
Mr. Shyam Mehta, Senior Advocate with Mr. A.H. Ponda, Senior Counsel i/b. Kalpesh Joshi for Respondent in FCA no.
142 of 2011, for Respondent no. 2 in Cr.Appln. no. 419 of 2012, for the Applicant in Cr.Appln. no. 830 of 2012.
Mr. A.H.H. Ponda for the Applicant in Cr.Appln. no. 2131 of 2008 and Cr. Appln. no. 5232 of 2010.
Mrs. Racheeta R. Dhuru for Respondent no. 2 in Cr. Appln. no. 2131 of 2008.3/7 fca.142-11.doc
Mr. S.V. Kotwal, for Respondent no. 2 in Cr. Appln. no. 5232 of 2010.
Smt. V.R. Bhosale, APP for State.
Rushabh Parekh, Appellant present in-person.
Meghna Parekh Nee Vora, Respondent present in person.
CORAM: V.M. KANADE &
P.D. KODE, JJ.
DATE : 4th September, 2012.
1. Both the parties have filed consent terms which were taken on record by this court by order dated 30th August, 2012. In clause (2) and (3) of the consent terms, the respondent had agreed to publish an apology in Time of India newspaper and Mumbai Samachar newspaper on Page 3 and in terms of clause (4) only after the said condition was complied, it was agreed that both the parties will proceed further to act upon the present consent terms
2. We have perused the consent terms. We are satisfied that the amicable settlement of the disputes between the husband and wife and in laws of the either side are in the best interest of the husband and wife and their families also. Matrimonial disputes between the parties not only disrupted the family life of the husband and wife but had also resulted into several criminal cases being filed by either side.
Allegations and counter allegations were levelled against each other by both the parties. After a suggestion was made by this court, both the parties have now resolved the dispute and differences which have arisen between them and that resulted in filing of the consent terms. The respondent-wife has filed a petition for divorce in the Family Court, which was allowed and against the said Judgment and decree passed by the trial court an appeal was preferred by the husband in this court. Decree is passed in
terms of consent terms. Decree be drawn up accordingly.
The appellant-husband has now agreed to withdraw the appeal, so that the Judgment and decree passed by the Family Court could get confirmed by virtue of the withdrawal of the appeal. In our view, it is in the interest of both the parties to start their life afresh on a clean slate instead of fighting against each other in various civil and criminal proceedings.
3. The Apex Court in number of cases viz., B.S. Joshi & Others v/s. State of Haryana and Another (AIR 2003 SC 1386), Abasaheb Yadav Honmane v/s. State of Maharashtra, 2008 (1) Bom. C.R.(Cri.) 584, Mansur A. Khan v/s. State of Maharashtra, 2004(Supp.2) Bom.C.R. 693 : 2004 All. M.R. (Cri.) 1911 and Jitendra S. Bhadoria v/s. State of Maharashtra, 2009(1) Bom.C.R.(Cri.) 688:2008 All.M.R.(Cri.) 898 has held that the High Court while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India is empowered to quash criminal proceedings, if the court comes to the conclusion that the said settlement of dispute between the parties is genuine and it is in the best interest of both the parties and secondly, the court is to be satisfied that the dispute between the parties is personal one. In our view the ratio of the said Judgments clearly apply to the facts of the present case.
4. The Respondent no. 2 has now complied the said condition nos. 2 and 3 by publishing an apology in Times of India newspaper and Mumbai Samachar newspaper. Learned Counsel for the Appellant-husband submits that since the said condition has been complied with, the criminal proceedings pending against the appellant and the respondents may be quashed and set aside.
5. Following complaints accordingly are quashed and set aside :-
a) Criminal case no. 431/PW/2006 is filed by the State of Maharashtra against the appellant and his parents-respondent no. 2 and 3, under the provisions of Section 498A and 406 r/w Section 34 of the Indian Penal Code tried by the Metropolitan Magistrate, 5th Court, Dadar who was pleased to acquit the appellant and respondent nos. 2 and 3. Against the said Judgment and Order passed by the trial court the State had preferred an appeal against acquittal in this court. However, in view of the amendment to section 378, this court had directed the State to file an appeal in the Sessions Court. In our view, since both the parties have amicably settled the dispute and since the consent terms have been filed, it will be appropriate if the complaint itself is quashed, so that the question of State filing a further appeal against the acquittal in the Sessions Court will not arise. Hence the Criminal Application filed by the
Appellant-husband being Criminal Application no. 419 of 2012 is allowed in terms of prayer clause (a) and is disposed of.
b) The private complaint filed by respondent no. 2 in CMM, 5th Court, Dadar against the respondent no. 1, under the provisions of Sections 465, 467, 468, 471, 420 r/w Section 120B of the Indian Penal Code which was registered as MECR no. 4 of 2007
is also quashed and set aside. The charge-sheet also therefore does not survive. Hence Criminal Application no. 830 of 2012 is allowed.
c) Similarly, respondent no.2 also had filed a criminal complaint no. 286/M/2007 for the offence punishable under Section 500 of the Indian Penal Code. In view of the amicable settlement between the parties, the said complaint is quashed and criminal application no. 2131 of 2008 is allowed.
d) Criminal complaint filed by the appellant under Section 500 of the Indian Penal Code and pending before the CMM, 5th Court, Dadar against the respondent no. 1 and her sister Sonali Gandhi is also quashed and set aside and criminal application no. 5232 of 2010 is allowed.
e) Criminal Revision Application no. 274 of 2007 filed by the wife against the appellant-husband is dismissed as withdrawn.
6. Both the parties have withdrawn all allegations which have been made in the petition and in the criminal complaints.
7. All the petitions/applications accordingly are disposed of in the aforesaid terms.
(P.D.KODE. J.) (V.M. KANADE J.)
Allahabad High Court:- Police not to arrest accused persons for offences punishable upto imprisionment upto 7 years – provisions of 41(1)b,41A discussed and directions issued
|Date||10/11/2011 12:00:00 AM|
|Court||Allahabad High Court|
|Parties||Shaukin Vs, State of U.P.|
|Appeal||Writ Petition - 17410/2011|
|Act||Criminal Procedure Code - 41(1)B, 41A|
|HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 46
Hon’ble Amar Saran, J.
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.
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.
Bombay High Court acquits Husband and his relative from charges of Dowry Death (498a) as the Wife committed suicide for not meeting the demand of KOMBDI (HEN)
Friends, as we all know that the conviction rate of cases u/s 498a IPC is only 2% across India. In other words 98% cases are False and filed with malafied intentions. And only after knowing this truth the Supreme Court of India and various High Courts across the court has termed the section 498a IPC as legal terrorism And further this 2% rate of conviction is because of the Victim i.e. Wife committing suicide. Now if we go through such judgments from Higher Courts where the Appeal is decided then its revealed that 25% cases where the husband and his family members were convicted by the trial court are acquitted by High Courts.
Pls read one such judgment where the Husband and his family is acquitted from charges of Dowry Death i.e. 498a, 3o6 by Bombay High Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 744 OF 1997
The State of Maharashtra
through Police Station Neral, …Appellant
Taluka Karjat, District – Raigad (Orig. Complainant)
Madhukar Raghunath Kambari
Age. 23 years
R/o. Dhamote, …Respondent
Taluka Karjat, District – Raigad (Orig. Accused)
Mr. P.S. Hingorani, APP for State.
Mr. G.S. Hiranandani, for the Respondent.
CORAM: P.D KODE, J.
DATE : 19
ORAL JUDGMENT :
1) By the aforesaid appeal, the Appellant-State has assailed the part of the Judgment and Order dated 7th May, 1997 passed by
the Additional Sessions Judge, Raigad-Alibag acquitting the respondent no.1 from the charge of commission of offence under
Sections 498-A, 306 r/w 34 of the Indian Penal Code. The respondent no.1 at the said trial was tried for commission of such
offences in furtherance of common intention of himself, his father, original accused no.2, his mother, original accused no.3 and his sister, original accused no.4.
2) The said prosecution emerged out of the charge sheet submitted by the Neral Police Station as a investigation of crime no. 12/94 registered with the said police station upon complaint (Exhibit-14) lodged by PW.1 Janu Thamke, the father of victim Vandana i.e. wife of respondent against respondent and his father, mother and sister.
3) According to the prosecution daughter of PW.1 viz. Vandana had married respondent on 10th May, 1995 and since then she was residing in village Dhamote at which PW.1 was also residing alongwith other family members. Vandana after marriage on two occasions had been to the house of her father and on said occasions she appraised PW.1 that respondent was beating her upon suspicion and was also asking her to bring money and grocery from the paternal house. PW.1 on both occasions provided grocery and money for house-hold expenditure after pacifying her sent her back to the respondent.
4) According to the prosecution on 20th October, 1995, father in law of Vandana, original accused no. 2-Raghunath Dhau Kambari, her mother-in-law, original accused no. 3-Mainabai Raghunath Kambari and Sister-in-law, Ramabai Raghunath
Kambari and the respondent on the ground of Vandana after their demand having not returned gold and silver ornaments given by them on her marriage assaulted her with fist blows. Vandana narrated about the said incident to PW.1 when he had been to her house and thereafter he had taken her for treatment to the Government Dispensary at Neral. PW.1 produced the case paper bearing no. 336 dated 21.10.1995 regarding treatment given to Vandana at said dispensary while lodging complaint. According to the prosecution after treatment PW.1 had then taken Vandana to his house without lodging complaint about the incident at the police station. In the said night upon assurances given by villagers one Parsu Bhoir and Ally Mundhe that Vandana would not be assaulted and would be well treated in future, PW.1 had sent to the matrimonial house.
4. According to the prosecution on 21st November, 1995 Vandana returned to the house of PW.1 and told him that respondent has asked to bring a hen for the meal and thereon PW.1 purchased and handed over hen to her. We also gave money for expenditure.
5. According to the prosecution on 24th November, 1995 i.e. a day prior to the lodging of Exhibit-14, Vandana returned to the
house of PW.1 and informed him, her sisters, PW.2, Pama Vehale and PW.3 Alka Patil, that respondent upon suspicion assaulted her by fist blows and asked her to bring hen and money from her father. PW.1 then pacified Vandana by telling that on the next day he would be sending hen and sent her back to her matrimonial house. PW.1 thereafter went to the house of one Deshpande, residing at Sainath Nagar, Neral. As he was returning from the house of Deshpande he met his daughter PW.3. She appraised him that quarrel had ensued in between respondent and Vandana on the ground of having not brought hen from her parental house and thereafter Vandana burned herself and has sustained burn injuries and hence she was going to the Police Station. PW.1 rushed to the house of Vandana and found that she has sustained burn injuries and learnt from the people gathered that the said incident occurred at about 6.30 p.m. The villagers and police brought Vandana from Neral to Government Dispensary at Neral and at the said dispensary her dying declaration (Exhibit-22) was recorded by PW.7 Mr. Pardeshi, Special Executive Magistrate. Vandana was thereafter shifted to Civil Hospital at Thane for further treatment. According to the prosecution PW.1 lodged complaint to such effect. After Vandana succumbed to the burn injuries on 29th November, 1995 the offence under Section 306 of I.P.C. was added to the crime already registered. After effecting the requisite investigation PW.8 PSI Patel had charge-sheeted the respondent and the other three accused for commission of offence under Section 306, 498-A r/w 34 of Indian Penal Code.
6. The trial court after appreciating the oral evidence of eight witnesses and documentary evidence adduced by the prosecution at the said trial acquitted the respondent and other co-accused from the charge of commission of offence punishable under Section 306, 498A r/w 34 of Indian Penal Code. Though prosecution sought leave to prefer an appeal against judgment and order of acquittal of all accused, the leave was granted and appeal was admitted only against respondent.
7. Mr. P.S. Hingorani, learned APP urged that the trial court failed to appreciate that the evidence of PW.1, PW.2 and PW.3 in
terms reveal that during the short span of life, Vandana was illtreated by respondent no.1. He urged that the trial court failed to
take into account the provisions of Section 113-A of the Evidence Act. He urged that the incident in question having taken place within few months after the marriage i.e within a span of seven years, the trial court ought to have presumed that subjecting
Vandana to cruelty by respondent no.1 has abated the commission of a suicide by Vandana. He urged that considering the evidence of PW.1,PW.2 and PW.3 in proper perceptive the same leads to the conclusion of the prosecution having established the commission of offences under Section 498-A and Section 306 by respondent no.1. He urged that the prosecution evidence in term reveals that Vandana was ill-treated and was subjected to cruelty since her marriage by respondent no.1. The Ld. APP urged that merely because the same evidence of PW.1, PW.2, PW.3 is not accepted against respondent no.2 to 4 would be no ground for not relying the said evidence against the respondent no.1. He urged that admittedly the evidence pertaining to cruelty to which Vandana was subjected at her matrimonial house could have flown only from matters informed by her to her parents and sister. He urged that the said evidence having remained un-shattered and no circumstance having surfaced on record for not accepting the said evidence or any rational reason for committing suicide, the trial court manifestly erred in discarding the said evidence. He thus contended that entire Judgment and Order of acquittal respondent recorded by the trial court is not only erroneous but perverse, warranting an interference. He thus urged that the appeal may be allowed and the Judgment and Order of acquittal recorded by the trial court against respondent no.1 be quashed and set aside and he be convicted for commission of offence under Section 306, 498-A of the Indian Penal Code and be sentenced in accordance with law.
8. Mr. G.S. Hiranandani, learned counsel for the respondent supported the judgment impugned by urging that though it is true
that without any rhyme and reason, no sensible person would commit a suicide, the same does not absolve the prosecution the
basic burden of establishing that Vandana committed suicide due to cruelty to which she was allegedly subjected by respondent
no.1 or the other co-accused. By drawing the attention towards the dying declaration (Exhibit-22) he contended that the matters stated therein in term reveal the reasons because of which Vandana had committed suicide. He urged that the matters in the said of dying declaration amply denotes that suicide was committed by Vandana in heat of anger and not because of any
act on part of respondent.
9. Learned Counsel further urged that occurrence of an quarrel between a married couple cannot be viewed with a narrow
campus of the same denoting husband subjecting his wife with cruelty. He urged that hardly there would be any married couple
without there occurring an quarrel in between husband and wife. Learned Counsel contended that even accepting the evidence of PW.1 or that of PW.2 and PW.3 as it is ,it appears that the prosecution is trying to make mountain out of mole. He urged that the evidence regarding acts of cruelty surfaced at the trial is vague and/or in a nature of an improvement made by PW.1 and other witnesses as rightly observed by the trial court after carefully scanning the evidence of the said witnesses. It was urged that the said evidence fails to denote that such acts would be covered within the parameters of Section 498 of the Indian Penal Code.
10. Learned Counsel by inviting attention to the provisions of Section 113-A of the Evidence Act contended that the presumption provided in the said section is required to be raised after taking into consideration all the relevant facets. It was urged that the dying declaration (Exhibit-22) of Vandana recorded by PW.7 in term reveals that the suicide was resulted of inability of Vandana to control her anger. He thus contended that hardly any legal evidence has surfaced of commission of any act constituting the offence either under Section 306 or 498A r/w of the IPC. He urged that the judgment and order of acquittal passed by the trial court neither can be said to be erroneous nor perverse. He urged that the view taken by the trial court being based upon correct appreciation of an evidence surfaced at the trial, the same would not warrant any interference by this court. He thus contended that the appeal devoid of merit be dismissed.
10. Thoughtful considerations were given to the submissions advanced by both the parties and the record and proceedings and
the judgment impugned was carefully perused to ascertain the merits of the said submissions. Considering the tenure of the
submissions advanced and the subject matter being in relation with the offences under Section 498-A, 306 of Indian Penal Code and the learned APP having lead finger upon the provisions of Section 113-A of the Indian Evidence Act, it appears proper to consider the same before making dilation about the evidence surfaced at the trial and the conclusions arrived by the trial court after appreciating the same.
11. Without unnecessarily reciting the provisions of Section 498-A of Indian Penal Code, it can be safely said that the cruelty
made punishable under the said section has been culled out in the explanation given to the said section which runs as under :-
For the purpose 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.
12. Now considering the nature of the allegation in the present case and apparently the same being not related with coercing victim Vandana for meeting any unlawful demand for any property or a valuable security, it will be wholly unnecessary to make any detailed dilation about the harassment contemplated under clause (b) of above stated explanation. At any rate considering the harassment contemplated under clause (b) of the said explanation is related with “demand for any property or a valuable security”.
Needless to add that the harassment contemplated under the said clause (b) is apparently of an persistent nature and is required to be in relation with the property of an significant value. Further more it us added that mere asking of bringing some article of an insignificant value on a stray occasion will not be covered under clause (b) of the said explanation that is to say the same amounting to a cruelty contemplated under Section 498-A.
13. Similarly, even considering the matters in clause (a) of the said explanation, it is amply clear that the same contemplates a
reasonable nexus between the act committed by the accused person leading to the victim committing the suicide or causing grave injury and danger to her life, limb and or health. Needless to add that the true import of the said section is the acts complained must be of such a nature having a reasonable likelihood of the victim due to said act/s committing either suicide and/or grave injury and danger to her life, limb or health. Hence, merely because of some demand of an insignificant nature is followed by suicide committed by an victim would not be covered within the clause (a) of explanation of the said section unless the act committed by the victim can be said to be fall out of the acts committed by the accused.
14. Now even considering the provisions of Section 306 which provides for an punishment of an abatement of an suicide, it is
amply clear that the same requires of their existing a reasonable nexus in between the acts committed by the accused person leading to the commission of an suicide by an victim and/or abatement of commission of such a suicide by the victim. It an be
added that without existence of such an nexus mischief will not be covered by the provisions of Section 306 of the I.P.C.
15. In the same context now reference to the provisions of
Section 113-A of an Evidence Act, the same runs as under :-
Section 113-A :- “Presumption as to abatement of suicide by a married woman.-
When the question is whether the commission of suicide by a women had been abetted by
her husband or any relative of her husband and it is shown that she had committed suicide
within a period of seven years from the date of her marriage and that her husband or such
relative of her husband has subjected her to cruelty, the court may presume, having regard
to all the other circumstances of the case, that such suicide had been abetted by her husband
or by such relative of her husband”.
16. A bare glance of the said section reveals that the even the said provisions do not contemplate any mandatory presumption
created by the said provision, even though the event of an suicide had occurred within a period of seven years from the date of the marriage. The word used “may presume” considered with the further words “having regard to all the circumstances of the case” denote that no presumption stipulated by the said section can be raised merely on the count of the suicide being committed by the victim within the period of seven years of her marriage. Further more the further part of section recited hereinabove also denotes that while considering the question of raising the presumption the court has to give regard to all the other circumstances of the case. Obviously, in event of suicide committed being as an result of any other cause then no such a presumption can be raised.
17. Having considered the legal provisions relevant to offences involved in the present appeal, now considering the evidence
surfaced at the trial at the first blush it can be said that the fact of Vandana having committed suicide at her matrimonial house, PW.1 having lodged the complaint about the same and PW.4 Dr. Sunita Shankar Jagtap, having treated her and PW.7 having recorded her dying declaration is not disputed by either side. Apart from the same, the same is also evident from her dying declaration (Exhibit- 22) considered alongwith the evidence of PW.4 Dr. Sunita Shankar Jagtap, PW.5 Alu Pandu Mundhe, PW.6 Ramesh Janu Palkar and PW.7 Deepak Deviprasad Pardeshi, the said aspect does not require any detailed dilation.
18. Needless to add that through the evidence of PW.7 the prosecution has duly established of Vandana having made the dying declaration (Exhibit-22) to PW.7 and PW.7 having recorded the same. Similarly, the evidence of PW.5, Alu Pandu Mundhe, is
confined to PW.2 having told him about the quarrel occurred in between Vandana and the respondent. The said evidence also
does not appear to be of any significant help to the prosecution to supports its case.
19. Now considering the most relevant evidence of PW.1, father, PW.2 elder sister and PW.3 younger sister of the victim the careful scrutiny of the evidence of the said witnesses clearly reveals that during the short span of six months of the said marriage, Vandana had been to her parental house only twice.
Though all the said witnesses during the evidence has claimed of Vandana having complained to them about the ill-treatment at the hands of the respondent and her relatives, the said entire evidence is confined to the respondent having allegedly asked her to bring the hen on two occasions and also asked her to bring the money for grocery. Apart from the said evidence being vague regarding the precise nature harassment caused to her, it is difficult to perceive that the same can be construed to be constituting the cruelty within the meaning of Section 498-A of the Indian Penal Code.
20. In the context of the evidence of the said 3 witnesses, scrutiny also supports that the trial court has also rightly observed
that PW.1 during his evidence has tried to make an improvement of Vandana having told him of herself being harassed by
respondent and so also by his relatives on the count of herself having not returned the gold and silver ornaments given by them
in her marriage. Thus the trial court has rightly discarded the said part of the evidence against the respondent and other accused who were facing the trial. Similarly, the trial court has also rightly come to the conclusion of PW.1 and so also PW.3 her sister Alka having made an improvement at an trial of Vandana having told them of herself being asked to bring a hen from the parental house. Without unnecessarily enlisting the improvements made by the said witnesses at the time of an trial, it can be safely said that the observation made by the trial court in paragraph nos. 10 to 16 are well in conformity with the evidence surfaced at the trial and particularly the matters elicited during their cross examination. Having regard to the same, it is difficult to find any infirmity in the conclusion arrived by the trial court of their evidence not inspiring confidence.
21. Now considering the dying declaration (Exhibit-22) the same also clearly supports the observations made by the trial court pointed out by the learned counsel for the respondent that the same squarely indicates of Vandana having committed suicide
in heat of an anger. Thus from careful examination of the judgment impugned, it is difficult to find that the trial court committed any error for coming to the conclusion of hardly their existing any evidence establishing nexus of the suicide committed by Vandana with the acts constituting cruelty allegedly committed by the respondent. Having regard to the same, it is difficult to find any infirmity in the finding reached by the trial court on the basis of the evidence surfaced at the trial. Since the said findings are based upon the evidence surfaced at the trial and the view taken by the trial court being probable view no interference with the same is warranted. Needless to add that there is absolutely no substance in the submission canvassed that the findings arrived are perverse. Resultantly there being no merit in the appeal preferred the same deserves to be and accordingly stands dismissed.
(P.D. KODE, J.)
Delhi HC: If Family members did not stay together with complainnant as joint family and stayed separately, cannot be made respondent to the DV act
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 452/2012
Judgment delivered on: 7th February, 2012
SONIA CHAUHAN RAGHOVE ….. Petitioner
Through : Mr.M.B. Singh, Adv.
SANJIVE RAGHOVE & ORS ….. Respondent
Through : NEMO.
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Exemption is allowed subject to just exceptions.
Criminal M.A. stands disposed of.
Criminal M.A. stands disposed of.
+ Crl. M.C. 452/2012
1. Vide the instant petition, the petitioner has challenged the impugned judgment dated 15.11.2011 passed by ld. ASJ (01), DistrictWest Delhi and order dated 16.08.2010 passed by ld. MM in
Complaint Case no. 278/01/2010, filed under Section 12(1)(3(4)(5)
read with Sections 18,19,20 and 22 read with Rule 6(1) of the
Domestic Violence Act, has issued summons only against respondent
no. 1 i.e. husband of the complainant and declined to issue summons
against respondent no. 2 to 5.
2. I note in order dated 16.082010, ld. MM of Mahila Court, West
Delhi has recorded that respondent no. 1 Dr. Sanjeev Raghav, husband
of the applicant, who is residing at Rewari, Haryana. Respondent no. 2
and 3 are residing separately and cannot be stated to be in domestic
relationship with the applicant. Therefore, ld. Trial Judge not preferred
to issue summons against the aforesaid respondents.
3. Similarly, respondent no. 4 is residing in Delhi. She is the
married sister in law, who does not share any domestic relationship
with the applicant. Therefore, respondent No.4 has also not been
4. As far as the respondent no. 5 is concerned, who is stated to be
the friend of respondent No.1 and not a relative, therefore respondent
No.5, has also been summoned.
5. Being aggrieved by the order dated 16.08.2010 the petitioner has
challenged the aforesaid order passed by ld. MM before the court of
6. Vide order dated 15.11.2011, ld. ASJ after considering the fact
has held that respondent no. 1 is the husband of the applicant and
respondent no. 2 to 4 are the father-in-law, mother-in-law and sister-inlaw of the applicant respectively and respondent no. 5 is the colleague of respondent no. 1. It is alleged in the application that petitioner had married with respondent no. 1 on 10.03.2004. After the marriage, they lived together as husband and wife at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. It is further alleged that she was harassed, humiliated and ill-treated by respondent no. 1 to 4 for not fulfilling their demands of dowry. They hatched a conspiracy to turn the complaint out of the matrimonial home and while acting on the same, respondent no. 1 had started applying for the job outside Chandigarh.
7. I note that ld. ASJ, has perused the impugned order dated 16.08.2010, wherein it is recorded that respondent no. 2 to 4 cannot be
summoned as they cannot be stated to be in domestic relationship with the complainant. Respondent no. 5 has not been summoned as he is a friend of respondent no. 1 and not the relative.
8. I note ld. ASJ has also dealt the issue raised by ld. Counsel for the petitioner and has referred Section 2 (f) of the Act that respondent no. 2 to 4 being the blood relatives of respondent no.1 and with whom petitioner lived immediately after her marriage fall within the domestic relationship.
9. It is further submitted by the ld. Counsel for the petitioner that as per the provisions of Section 2 (q) of the Act, the male partner of the respondent is liable for violation of the Act. Respondent no. 5 being the business partner of the respondent no. 1 is liable to summoned.
10. Section 2 (a) of the Act defines aggrieved persons. For the convenience, said Section is reproduced as under:-
“Aggrieved person means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”
11. I note, ld. Addl. Sessions Judge has been guided by the case titled as Vijay Verma vs. State N.C.T of Delhi & Anr. decided by this
Court in 2010 (4) JCC 2377 wherein it is recorded as under:
“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:
“(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic
Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-inlaw, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time”.
12. It is clear from the judgment recorded by ld. ASJ that complainant had admitted in her application under Section 12 of the
Act, that had stayed together at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. However, respondent no. 2 & 3 are living together separately from the petitioner. Respondent no. 4 is the married sister and is also living separately from the petitioner.
13. There is no allegation in the application, which would show that petitioner along with respondent no. 1 and respondent no. 2 to 4 had lived together as a joint family.
14. As respondent no. 5 is concerned, he is alleged to be a business partner of the respondent no. 1. Respondent no. 5 being the business partner of the respondent no. 1 does not fall under the category of the male partner as provided by the proviso to Section 2 (q) of the Act.
15. In the view of above, I find no discrepancy in the order passed by the ld. Trial Courts, therefore I refrain to interfere with the same.
16. Accordingly, the instant petition is dismissed.
17. No order as to cost.
SURESH KAIT, J
FEBRUARY 07, 2012
Delhi Session Court:- Wife is not entittle for maintenance as she is able to maintain to herself which is proved by the IT assessment.
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL SESSIONS JUDGE01, DISTT. WEST, TIS
HAZARI COURTS, DELHI.
Crl. (R) No. 24/2012
Unique Case I.D. No. 02401R0173942012
W/o Sh. Balender Kumar Vayas
D/o Late Shri Gopal Dass Malhotra
R/o H.No. F207, C/o Smt. Kanta
W/o Chamanlal Puri, Moti Nagar, Delhi.
Shri Balender Kumar Vyas
S/o Late Shri Mayudeen Vayas
R/o H.N. C21, Srichand Park,
Near Matiala Uttam Nagar,
Delhi110059 … Respondent
Date of Institution : 18.04.2012
Date or arguments : 10.10.2012
Date of orders : 30.10.2012
This is a revision against the order dated 15.03.12 passed by the trial court in case no. 705/04 of PS Moti Nagar, whereby the application of the petitioner for interim maintenance U/s 125 Cr.PC has been dismissed.
2. I have heard the Ld. Counsel for the petitioner and Ld. counsel for the respondent and perused the file.
3. The petitioner has filed the application U/s 125 Cr.PC against the respondent alleging that the petitioner has married with the respondent on 20.1.1993 and out of the said wedlock one female child was born. The maternal uncle of the petitioner Shri Buta Ram Chopra constructed a temple and handed over the reins of the said temple to the petitioner. The petitioner also acquired another plot adjacent to it from her own funds. The respondent used to humiliate and assault the petitioner and also indulged in extra marital affairs. The petitioner was thrown out of the house. The respondent is working as a Pujari in the temple and is earning more than Rs. 35,000/ per month. The petitioner is penniless and is on the mercy of her sister for her minimum requirements. In the application of interim maintenance, the petitioner has prayed that the respondent be directed to pay Rs. 15,000/ per month as interim maintenance.
In reply, the respondent has alleged that the marriage with the petitioner was solemnized on 14.1.95. The said marriage was dissolved by a decree of divorce on 21.10.09. The respondent is earning Rs. 2500 to 3000/ per month by doing his job of Puja Path. The petitioner is running a Bhajan Mandli and is earning more than Rs. 50,000/ per month. The petitioner is the coowner of the house bearing No. F207, Sudershan Park, Moti Nagar, New Delhi. The petitioner is a income tax payee. The respondent has denied the other allegations of the petitioner.
4. Ld. counsel for the petitioner has argued that the trial court has passed the impugned order on the basis of conjecture and surmises and which is against the facts and the law. The trial court has passed the impugned order without considering the material on record. The income tax return filed by the respondent pertains to the year 200405 and 200506, while the petitioner was living with the respondent and the same were filed by the respondent in her name. The petitioner has not made any concealment in her petition. On these grounds, it is prayed that the impugned order be set aside.
On the other hand, Ld. counsel for the respondent has argued that the trial court has passed the impugned order after considering the material on record. There is no illegality or infirmity in the impugned order. The revision petition is without any merits and it be dismissed.
5. The income tax returns of the assessment year 2004-05 which is in the name of the petitioner shows the income of the petitioner as 1,04,502. The income tax return of the assessment year 2005-06 which is in the name of the petitioner shows the income of the petitioner as 1,67,267. The petitioner has also alleged in her petition that she is acquired one plot adjacent to the plot in which the temple has been situated. The petitioner has not specifically denied the allegations of the respondent that she is running a Bhajan Mandli and she is the head of said Bhajan Mandli and that she is the coowner of the House bearing No. F207, Sudershan Park, Moti Nagar, Delhi.
Keeping in view these facts which are showing the financial position of the petitioner, I am of the opinion that the petitioner has failed to show that she is unable to maintain herself. Accordingly, I do not find any infirmity in the impugned order dated 15.03.12 passed by the trial court in case no. 705/04 of PS Moti Nagar and it is upheld. The revision petition is without any merits and it is dismissed. Nothing expressed herein shall tantamount to an opinion on the merits of the case.
Trial court record be sent back to the concerned trial court along with the attested copy of this order. Revision file be consigned to Record Room.
Announced in the open court (Rajneesh Kumar Gupta)
today i.e. on 30.10.12 Additional Sessions Judge01 (West)
Tis Hazari Courts, Delhi.
Karnataka High Court: – Two Contradictory Statements attract IPC 193 and Cr.P.C 340. It is not necessary for the charge to state specifically which of the statements made by the petitioner is false.
Karnataka High Court
Gangawwa vs State Of Mysore on 17 February 1967
Equivalent citations: AIR 1969 Kant 114, AIR 1969 Mys 114, 1969 CriLJ 496
1. The petitioner has been convicted of an offence under section 193 I.P.C. by the Judicial Magistrate, Ist Class, Bijapur, and sentenced to suffer one year’s R. I. In the appeal filed by the petitioner against the said conviction and sentence to the Sessions Judge of Bijapur, the conviction was confirmed, but the sentence was reduced to three months’ R. I. The petitioner has come up in revision to this Court questioning the correctness and legality of the said order of the Sessions Judge confirming her conviction.
2. In P. R. Case No. 5/1963, in a proceeding under section 512 Cr.P.C. the petitioner examined as a witness by the Judicial Magistrate, I Class, Bagewadi, and made a certain statement on oath. When the petitioner was examined in the committal proceedings in P. R. Case No. 2/65, she made another statement wholly irreconcilable and contradictory to the previous statement. After issuing show cause notice, the learned Magistrate directed that a complaint be filed against the petitioner under S. 193 IPC. After the trail, the Judicial Magistrate, I Class, Bijapur, convicted her of an offence under S. 193, IPC.
3. Sri Malimath learned counsel on behalf of the petitioner, has contended that the charge framed against the petitioner is defective. The charge simply says that either of the statements made by her in the two different proceedings is false and it does not say which particular statement made by her is false. He also argues that the charge framed is not consistent with the complaint or the committal order in the case. I see no force in the said contentions.
4. It is not necessary for the charge to state specifically which of the statements made by the petitioner is false. As pointed out by Sri Vijaya Shankar, learned counsel appearing on behalf of the State, it is open to the Court under section 236 Cr.P.C. to frame alternative charges against a person. Illustration (b) to section 236 Cr.P.C. states that a person may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of those contradictory statements is false. The charge framed by the Court must depend on the evidence in the case and does not depend on either the complaint or the order passed in the committal proceedings.
Further, there is no inconsistency between the complaint filed and the charge framed in this case. the complaint sets out the contradictory statements made by the petitioner and states that the answers given by her go to show that she has perjured. In any case, even assuming there are defects in the charge, S. 225 Cr.P.C. states, that no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
5. Sri Malimath has next contended that the prosecution has failed to establish which of the statements made by the petitioner is false and therefore the petitioner cannot be convicted under S. 193 IPC. He has strongly relied on Emperor v. Ningappa Ramappa Kurbar, 43 Bom LR 864 : (AIR 1941 Bom 408) in support of his said contention. The facts of that case were entirely different from the facts of the present case. their Lordships were considering there the question whether it was expedient to prosecute a person under S. 476, Cr.P.C. and not under S. 479A, Cr.P.C. They were considering the statement made by the accused under S. 164 Cr.P.C. in the committal Court.
6. I have already referred to Illustration (b) of S. 236 Cr.P.C. which states that a person may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of the contradictory statements was false. Sri Vijaya Shankar has also relied on Umrao Lal v. State, , which is an authority for the proposition that in a prosecution under S. 193 IPC. if the prosecution succeeds in proving that the accused in the witness box deliberately made two statements which are so contradictory and irreconcilable with each other, that both cannot possibly be true, he can be convicted of perjury even without its being proved which one of them was not true.
7. Sri Malimath also contends that the examination of the petitioner by the learned Magistrate under S. 342 Cr.P.C., is not according to law and it has gravely prejudiced the petitioner. He has relied on Ajmer Singh v. State of Punjab, and Ramashankar Singh v. State of W. B., . He argues that the questions put by the Court to the petitioner were so long, involved and confusing that it was not possible for the petitioner to understand the same and give proper answers. If the petitioner had been properly questioned, she would have come out with an explanation. There is no doubt, the question put by the Magistrate are long and complicated. But the point for consideration is whether the petitioner has been prejudiced in her defence and whether it has caused failure of justice.
8. In Moseb Kaka v. State of W. B., , their Lordships, in paragraph 8, page 540, have observed as follows:
“There can be no doubt that this is very inadequate compliance with the salutary provisions of S. 342, Cr.P.C. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing Tara Singh v. State, on a due and fair compliance with the terms of S. 342 Cr.P.C. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342 Cr.P.C. It is settled that clear prejudice must be shown. This Court has clarified the position in relation to cases where accused is represented by Counsel at the trial and in appeal. It is up to the accused or his Counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice.”
The charge which the petitioner was upon to meet was a simple one. The case was that she made two totally contradictory statements on oath in P. R. Case No. 5/63 and P. R. Case No. 2 of 1965. The petitioner denied that she made the statement alleged in P. R. Case No 5/63. Hence, I am of opinion that it cannot be said that the petitioner has been prejudiced and it has resulted in miscarriage of justice.
9. Sri Malimath has further contended that the statement under S. 512 Cr.P.C. made by the petitioner cannot be made use of when the petitioner is alive and can give evidence. Further, he contends S. 512 Cr.P.C. is only a mode of recording evidence. It is neither an enquiry nor a trial. The petitioner was not a witness when her statement was recorded under S. 512 Cr.P.C. He also argues that a complaint could not be made under S. 479A Cr. P.C. by the Committal Court. It could be made only by the Sessions Court to whom the accused is committed. There is no final order disposing of the case when the accused is committed to the Court of Session for trial. Committal proceedings are not independent proceedings, but only a stage of the judicial proceedings before the Sessions Judge who and it is only the Sessions Judge who has jurisdiction to file a complaint under S.479-A Cr.P.C. If the Committal Court and the Sessions Court both have jurisdiction to pass an order under S. 479A, this would result in conflicting orders.
9A. It may be pointed out that the contentions mentioned above have not been urged either in the trial Court or in the appeal before the Sessions Court. This Court has not got the benefit of the views of the Courts below on these questions. Since Sri Malimath argues that they are questions of law and could be raised revision, I will deal with these points shortly.
10. With regard to the contention that the statement under S. 512 Cr.P.C. cannot be made use of when the petitioner is alive and could give evidence, it may be pointed out that this has reference only to the absconding accused in the said proceedings. There is no prohibition for making use of a statement given by the petitioner under section 512 Cr.P.C. against herself in proceedings instituted under section 193 IPC. With regard to the contention that S. 512 proceedings are neither inquiry, nor trial, it may be pointed out that S. 479A Cr.P.C. does not refer to any inquiry or trial. All that it states is “giving false evidence in any stage of the judicial proceeding”. What is a ‘judicial proceeding’ is defined in S. 4(m) Cr.P.C. it reads thus:
“‘Judicial proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath.”
Explanation 2 to S. 193 IPC. states that even an investigation directed by law, preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Explanation 3 to the same section also states that an investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding though that investigation may not take place before a Court of Justice. It is therefore clear that both under the Code of Criminal Procedure and the Indian Penal Code, a proceeding under section 512 Cr.P.C. comes within the definition of ‘judicial proceeding.’
11. Sri Malimath has also contended that when a person is examined under S. 512 Cr.P.C. he is not deposing as a witness. He has relied on in re: Ramalingam, AIR 1965 Mad 100 in support of his contention. What was decided in that case was that section 479A, Cr.P.C. applied only to person appearing before Court as witnesses and does not apply to a case where a person does not appear as a witness before Court but only files an affidavit without entering the box. Here, it cannot disputed that the petitioner had appeared before Court in both the proceedings as a witness.
12. Sri Malimath has argued that committal proceedings are only a stage of the judicial proceedings before the Sessions Court and that only the Sessions Judge has got the power to take proceedings under S. 479A, Cr.P.C. and not the Committal Court. He has strongly relied on the observations made by their Lordships of the Supreme Court in Shabir Hussain Bholu v. State of Maharashtra, in support of his contention. The question which their Lordships were considering in the said case was, in a case where proceedings under S. 479A Cr.P.C. should have been taken, whether it was open to the Court to proceed under S. 476 Cr.P.C. Their Lordships held that the provisions of S. 476 are totally excluded where the offence is of the kind specified in S. 479A. In that particular case, the accused had made conflicting statements before the Committal Court and the Sessions Court.
Their Lordships held that the committal proceedings were not independent proceedings and it was only the Sessions Court which decide whether proceedings under S. 479A could be taken against the accused. It may be pointed out in this case, the petitioner was never examined in the Sessions Court. Hence the question of Sessions Court taking proceedings S. 479A did not arise. The question of conflicting orders by the Sessions Court and the Committal Court also does not arise in the case.
13. There is equally no force in the contention of Sri Malimath that in the committal proceedings there is no final order disposing of such proceedings. So far as the Committal Court is concerned once it commits an accused to the Sessions Court, there is final disposal of the proceedings before it. In Dastagiramma v. State, it has been held that committal proceedings are final so far as they result in discharge or in committal. Such an order would be final order disposing of such proceedings within the meaning of S. 478A Cr. P.C.
14. Finally, Sri Malimath has contended that the statement made by the petitioner was not intentional and that she is an illiterate woman. It is not possible to accept this contention. The learned Magistrate, who recorded the evidence in both the proceedings has been examined as a witness. He has stated that the petitioner after being administered oath, made the above mentioned contradictory statements. The evidence given by her was read over and explained to her and she admitted the statements to be correct. There is, therefore, no force in any of the contentions urged by Sri Malimath on behalf of the petitioner.
15. In the result, there is no merit in this revision petition and the same is dismissed.
16. Petition dismissed.