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Delhi High Court:- CrPC 340 Perjury Application should be accepted even after the Final Judgment or Order.

January 7, 2013 1 comment

Delhi High Court

Dated:- 11th Jan 2005

Cri. M. 928/2004

Mrs. Geeta Monga

vs

Ram Chand S. Kimat Rai And Ors.

Equivalent citations: 2005 (81) DRJ 781
Author: R Jain
Bench: R Jain

JUDGMENT

R.C. Jain, J.

Crl.M. 928/20041

1. This is an application under Section 5 of the Limitation Act, 1963 for condensation of delay in filing the appeal. The appellant has filed an appeal under Section 341 Cr.P.C. against an order dated 19.9.2003 passed by the learned Additional District Judge on an application under Section 340 Cr.P.C. moved by the plaintiff (appellant herein) in a civil suit bearing S.No.106/99; titled as Mrs. Geeta Monga v. Kimatrai and Co. and Ors.. The said suit was disposed of and decreed by the learned Additional Disrict Judge vide a judgment and decree dated 29.9.2000. After the disposal of the said suit, the plaintiff/appellant moved an application under Section 340 Cr.P.C. alleging commission of the offence of perjury by Ramchand S.Kimatrai by making false stateent in the Court. The said application was dismissed by the learned Additional District Judge vide the impugned order dated 19.9.2003.

2. Learned counsel for the appellant states that no specific time-frame has been prescribed for filing an appeal against an order passed by a Court on an application under Section 340 Cr.P.C. and in absence of such a prescription, 90 days limitation should be presumed for filing an appeal against such an order and in the case in hand after setting off this period and the time for obtaining certified copies, there is delay of only a few days. On the other hand, counsel for the respondent disputes this peposition and states that in absence of any prescription of limitation by the statute, the Court should presume 60 days period as the limitation for filing an appeal against such an order.

3. Having regard to the facts and circumstances of the case and more particularly the aspect that what is sought to be agitated by the appellant is an aspect touching the administration of justice, this Court considers it expedient in the interest of justice to condone the delay, if any, in filing the appeal. The application is, accordingly, allowed and the delay in filing the appeal is condoned.Crl.A.76/20041. This appeal is directed against the order of the learned Additional District Judge, Delhi dated 19.9.2003 whereby dismissing an application of the appellant under Section 340 Cr.P.C. praying for initiating proceedings against a certain Ramchand S.Kimatrai, who appeared as a witness in the Court and is stated to have made a false statement amounting to the commission of the offence of perjury. The said application was contested by the respondent/defendant. The learned Additional District Judge despiteecording an unequivocal/patent finding that respondent No. 2 had made a false statement during the course of the trial of the civil suit, has still declined to initiate the requisite proceedings under Section 340 Cr.P.C. and has dismissed the complaint. The following findings/observations as contained in para 4 and 5 of the said order are material and noted herein below:

“4. Respondent No. 2 while making the statement on oath has deposed that he is the partner of M/s J.Kimat Rai and Co. along with defendant nos. 4 and 5 (in the suit). But in the cross-examination he has stated that he is not the partner of M/s J.Kimat Rai andC. though the HUF Ram Chand Sobh Rai Kimat Rai is the partner in M/s J.Kimat Rai and Co. and that he was its karta up to 1996.

5. After comparing both the statements, this Court has finally decreed the suit giving its observations regarding the contradictions in the statement of respondent No. 2. Now the matter is pending in appeal before the Hon’ble High Court of Delhi. Whatever observations were made in the judgment are also before Hon’ble High court of Delhi. I do not find that the defendant/respondent No. 2 has committed any perjury or the fraud on the court. The gravity of the false statement is not such which attract the provisions of Section 340 Cr.P.C. The Court cannot notice every falsehood sworn in the Court. The Court has to weigh and give credence to the statement of the parties which has already been done by this Court while passing the final judgment. Therefore, iis not proper to proceed against the respondent Under Section 340 Cr.P.C. No case for referring the matter Under Section 340 Cr.P.C. is made out. The petition is dismissed with no order as to costs. File be consigned to R/R”.2. The above findings and observations of the learned Trial Court are not only mutually inconsistent but self-destructive because on one hand the learned trial court noted that the respondent has made a false/inconsistent statement and on the other hand,it has noted that the Court cannot take a notice of ”every falsehood sworn in the Court” and the gravity of the false statement is not such which attracts the provisions of Section 340 Cr.P.C.”

This Court is at a loss to appreciate such kind of approachf the learned trial court. The mere fact that the respondent/defendant/judgment debtor has filed an appeal against the judgment and decree passed by the learned Additional District Judge should not have dissuaded him from answering the application under section 340 Cr.P.C. on its merits. The whole approach of the learned Additional District Judge to such kind of issue cannot be approved. In the opinion of this Court, the impugned order cannot be legally sustained, as it has resulted into miscarriage ojustice.3.The result of the above discussion is that the appeal is allowed and the impugned order is hereby set aside and the matter is remanded back to the board of the learned Trial Court for deciding the application under Section 340 Cr.P.C. afresh in accordance with law. The parties are directed to appear before the learned Additional District Judge, Delhi on 7th February, 2005.

 

 

http://indiankanoon.org/doc/1549501/

SC: Allegations against family members in 498A generall, reckless and vague hence FIR Quashed

December 27, 2012 1 comment

Supreme Court of India

Chandralekha vs State Of Rajasthan & Anr on 14 December, 2012
Author: ……………………………………………..J.
Bench: Aftab Alam, Ranjana Prakash Desai

, , , ,

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2070 OF 2012

[Arising out of Special Leave Petition (Crl.) No.9092 of 2011]

CHANDRALEKHA & ORS. … APPELLANTS

Vs.

STATE OF RAJASTHAN & ANR. … RESPONDENTS

O R D E R

1. Leave granted.

2. This appeal, by special leave, challenges order dated 14/9/2011 passed by the Rajasthan High Court dismissing the petition filed by one Rajeev Bhandari and appellants 1, 2 and 3 herein (original petitioners 2, 3 and 4 in the Special Leave Petition No.9092 of 2011) under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of FIR lodged by respondent 2 against them under Sections 498A and 406 of the Indian Penal Code.

2. Rajeev Bhandari is the husband of respondent 2. Appellant 1 is the mother-in-law and appellants 2 and 3 are the sisters-in-law of respondent

2.

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

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

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

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

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

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

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

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

……………………………………………..J.

(AFTAB ALAM)

……………………………………………..J.

(RANJANA PRAKASH DESAI)

NEW DELHI,

DECEMBER 14, 2012.

———————–

 

Bombay HC:- Fines State for Illegal Arrest of Husband and his parents (senior Citizens)

December 24, 2012 1 comment

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,  )

 

Solapur. )

 

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 )

 

Versus

 

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/

 

Orig.Complainant)

 

 

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

Respondent.

 

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

 

arrest.

(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

detained.

(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

notice board.

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.

 

(emphasis added)

 

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.”

 

(emphasis added)

 

 

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

 

circumspection.”

 

(emphasis added)

 

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

 

nd

 

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

 

nd

 

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.”

 

(emphasis added)

 

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

 

nd

 

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

 

rd

 

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.”

 

(emphasis added)

 

The version of the first Respondent in the  subsequent affidavit reads

 

thus:­

 

“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”.”

 

(emphasis added)

 

Undisputedly only on 4

 

th

 

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

 

nd

 

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

 

on   2

 

nd

 

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

 

rd

 

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

 

excuse:

 

“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

 

nd

 

December 2011 at Aurangabad.   But they were shown as

 

arrested in Mumbai at 08.10 on 4

 

th

 

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

 

thus:­

 

“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

 

1

 

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

 

Sah

 

1

 

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

 

1

 

and  others in  that line

 

have   to   be   understood   and  Kasturilal

 

8

 

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

 

civil/criminal action.”

 

16. Lastly,   on   this   aspect,   it   will   be   necessary   to   make   a

 

reference to the decision of the Apex Court dated 9

 

th

 

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

 

compensation.”

 

(emphasis added)

 

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

 

th

 

April 2008 till 12.30 noon of 5

 

th

 

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

 

the same.

 

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

 

on 2

 

nd

 

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

 

th

 

December

 

2011  and were  released  on bail in  the  afternoon. Though    the  said

 

Petitioners were arrested just before 20.50 0n 2

 

nd

 

December 2011 at

 

Aurangabad, they were shown as arrested in Mumbai at 08.10 on 4

 

th

 

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.

 

28

 

th

 

February 2012.

 

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

 

rd

 

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

 

diary.

 

23. Accordingly,   we   dispose   of   the   Petition   by   passing   the

 

following order:

 

ORDER :

 

(a) We hold that the detention of the second and third

 

Petitioners by the officers of Navghar Police Station,

 

Mulund, Mumbai,  from 2

 

nd

 

December 2011  till 4

 

th

 

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

 

from 28

 

th

 

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

 

Judgement.

 

( S.S. SHINDE, J ) ( A.S. OKA, J )

http://bombayhighcourt.nic.in/data/judgements/2012/CRWP85612.pdf

Categories: 498A, Contempt Tags: ,

Delhi High Court:- Delaying tactics by Wife in Divorce case liable for FINE. Rs. 50,000/- imposed as fine.

December 24, 2012 1 comment

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

CM(M) 1146/2007

16.10.2008

Sujata Aggarwal …Petitioner Through: Mr. Manu Nayar with

Mr. Hameed S. Shaikh, Advs.

Versus

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.

JUDGMENT:

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.

ak

 

http://www.indiankanoon.org/doc/1426499/

Categories: Divorce Tags: , ,

Allahabad High Court: IPC 498a Quashed based on Jurisdiction

December 14, 2012 Leave a comment
Allahabad High Court
Dheeraj Jain And Ors. vs State Of U.P. And Anr. on 1 November, 2007
Equivalent citations: I (2008) DMC 10
Author: M Mittal
Bench: M Mittal

JUDGMENT

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.

December 14, 2012 Leave a comment

Mumbai High Court

Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar

on 15/9/2004

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.

December 12, 2012 Leave a comment

1/7 fca.142-11.doc
nsc.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 142 OF 2011

 

Rushabh Parekh …Appellant

Vs.
Meghna Parekh Nee Vora …Respondent

WITH
CRIMINAL APPLICATION NO. 419 OF 2012
IN
CRIMINAL APPLICATION NO. 4324 OF 2009

Rushabh Sudhir Parekh and Ors. …Applicants
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL APPLICATION NO. 830 OF 2012

Meghna Parekh Nee Vora. …Applicant
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL APPLICATION NO. 2131 OF 2008

Meghna Rushabh Parekh …Applicant
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL APPLICATION NO. 5232 OF 20102/7 fca.142-11.doc

Meghna Rushabh Parekh and Anr. …Applicants
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL REVISION APPLICATION NO. 274 OF 2007
IN
CRIMINAL APPLICATION NO. 156 OF 2010

Meghna Parekh Nee Vora …Applicant
Vs.
The State of Maharashtra and Ors. …Respondents

WITH
CRIMINAL WRIT PETITION NO. 2491 OF 2008

Meghna Parekh Nee Vora …Petitioner
Vs.
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.
P.C.

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.)

 

http://bombayhighcourt.nic.in/data/civil/2012/FCA2623411040912.pdf

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

December 6, 2012 Leave a comment
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
Judgement
HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. 46
Case: Criminal Misc. Writ Petition No. 17410 of 2011
Petitioner: Shaukin
Respondent: State of UP and others
Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava
Respondent counsel: Government Advocate

Hon’ble Amar Saran, J.
Hon’ble Kalimullah Khan, J.
1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictly enforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State.
2.It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied.
3.The following observations in the order dated 15.9.11 have been quoted in the DGP’s circular: “Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance report of this direction within three weeks.”
4.Annexure 2 to the DGP’s affidavit in compliance of our dated 15.9.11 also contains the following endorsement from all 72 districts in U.P.: “???? / ???????? ?? ???? ?? ??????? ???? ?? ???? ?? ??? ??”
5.The directions were issued by the DGP’s circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections.
6.By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C.
7.It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here :
41. When police may arrest without warrant. — (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
(a)——————
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary–
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(C) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. -

41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.

170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
8.The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations.
9.Where however the accused has not been named in the FIR, or at the time when the co-accused have been picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be participating in some organized crimes, and there is probability of the accused repeating the offence, these would also be circumstances where it may be necessary to arrest such accused without delay.
10.However in a case under section 498 A IPC where the wife subject to violence has gone back to her “maika” following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her “sasural a charge sheet .” In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive.
11.It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases.
12.But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested.
13.Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested.
14.The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP’s circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP’s circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P.
15.Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the Magistrate before whom the accused is produced for remand.
16.Section 167(1) reads thus:
167. Procedure when investigation cannot be completed in twenty-four hours. —-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter presecribed relating to the case, and shall at the same time forward the accused to such Magistrate.
17.As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to “rubber stamp” the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer’s reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and influence witnesses, or without arrest the particular accused would not appear in Court. These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security.
18.There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected. Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C.
19.If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts.
DIRECTIONS:
20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases.
21.The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer.
22.The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials.
23.We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above.
24.The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: “???? / ???? ???? ?? ???? ?? ??????? ???? ?? ???? ?? ??? ??.”
25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers.
26.We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such as “??? ??? ?? ?? ??? ???? ???? ?????????? ?? ????
,” informing the public that henceforth accused wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010.
27.Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days.
28.Let a copy of this order be also furnished to the learned Government Advocate forthwith.
29.Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions.
List on 14.12.2011.

Dated: 11.10.2011

 

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Categories: 498A Tags: , ,

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)

November 20, 2012 1 comment

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.

1/13 jud.744-97
nsc.

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)
V/s.
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
th
October, 2012
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 :-
Explanation :-
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.)

http://bombayhighcourt.nic.in/data/judgements/2012/CRAPEAL74497.pdf

Categories: 498A Tags: ,

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

November 3, 2012 Leave a comment

* 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.
versus
SANJIVE RAGHOVE & ORS ….. Respondent
Through : NEMO.

CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)

Crl.M.A. 1565/2012(Exemption)

Exemption is allowed subject to just exceptions.
Criminal M.A. stands disposed of.
Crl.M.A. 1566/2012(Delay)
Delay condoned.

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
summoned.
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
Sessions.
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
Jg

 

http://lobis.nic.in/dhc/SKT/judgement/09-02-2012/SKT07022012CRLMM4522012.pdf

Categories: PWDVA 2005 Tags: ,
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