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Supreme Court:- Why Trail Judge not make complaints u/s 340 CrPC for Perjury?

February 21, 2013 4 comments

SUPREME COURT OF INDIA

PETITIONER:                  SWARAN SINGH

Vs.

RESPONDENT:    STATE OF PUNJAB

DATE OF JUDGMENT:            26/04/2000

BENCH:            Ruma Pal, D.P. Wadhwa

HEAD NOTE:-

Dismissing the appeals, the Court Held : Per Ruma Pal, J

1.1. The eye-witnesses’ accounts of the accused persons’ involvement in the crime are not only consistent but were duly corroborated by mate-rial evidence. The enmity between the accused and deceased was estab-lished. Thus, Courts below were justified in convicting and sentencing the accused- appellants. [581-G; 582-B]

1.2. Accused `SS’ has admitted his presence at the scene of occur-rence with loaded double barrel gun and a cartridge belt. His defence that he had not fired by any shots and the deceased in a drunken State were the aggressors cannot be accepted in view of the medical evidence. According to the Chemical Examiner’s report, the alcohol concentration found in the viscera of deceased neither showed that it had been consumed immediately prior to the occurrence nor was it sufficient to make the deceased inebri- ated. [582-C]

2. The site plan, photographs showing position of deceased persons and the blood stained earth collected from the spot supports the prosecution case that the deceased were killed at the spot next to the truck and not near accused SS’s house as claimed by him. If indeed the deceased were shooting indiscriminately as alleged by the accused there would have been some pellets on the walls of SS’s house. It was not even suggested to any of the witnesses in the prosecution that there were pellets or pellet marks near SS’s house. Thus, both the Trial Court and High Court rightly rejected the story of accused to explain the presence of the truck at the scene of occurrence. Further, the fact that the hitting was at close range supports the evidence of the eye-witnesses and runs contrary to the defence account of the incident. [581-G-H; 582-A]

Forensic Science in Criminal Investigation & Trials (3rd Edn.) P. 280; Fisher, Svensson and Wendel’s Techniques of Crime Scene Investigation (4th Edn. P. 296), referred to.

3.  Merely because one portion of the evidence of eye-witnesses is disbelieved does not mean that the Courts were bound to reject all of it. Thus, non-acceptance of evidence of PW-3 and PW-4 by Courts below regarding the involvement of `M’ will not render their evidence regarding involvement of appellants unbelievable. [583-D]

4.  PW-1, Doctor has stated in his cross-examination that both the deceased could have met their death at about 4 P.M. on the fateful day, but this does not by itself establish the fact that the deceased were killed at 4 P.M. The evidence of PW 1, in chief was that the death could have been caused within 24 hours prior to the post-mortems. Therefore, PW-1’s evidence is equally consistent with the case of the prosecution that the incident took place at 7.45 P.M. [583-H]

5. Minor discrepancies in the testimony of PW-5, Investigating Officer, are not sufficient to discard the case of the prosecution or to throw doubt on the eye-witnesses’ testimony. Furthermore, the Trial commenced about three years after the incident and it is not unlikely that the Investi- gating Officer could not remember the details of the investigation. [584-G]

Per Wadhwa, J. (Supplementing):

1. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. Then appropriate diet money for a witness is a far cry. Proper diet money must be paid immediately to the witness and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. All the subordinate courts, should be linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. [585-G-H; 586-A-D]

2. Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure. [586-F-G] 

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 721 of 1993.

From the Judgment and Order dated 18.9.92 of the Punjab and Haryana High Court in Crl.A. No. 315-DB of 1991.

WITH Criminal Appeal No. 720 of 1993.

PETITIONER: SWARAN SINGH

            Vs. 

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:            26/04/2000

 

BENCH: Ruma Pal, D.P. Wadhwa

JUDGMENT:  RUMA PAL, J.

These appeals have been preferred from the decision of the  Punjab  & Haryana High Court  holding  the  appellants guilty under  Section 302 and Section 302/34 of the  Indian Penal  Code  (IPC) in connection with the death of  Shamsher Singh  and  Amar  Singh.   The  Additional  Sessions  Judge, Ludhiana  as well as the High Court accepted the case of the prosecution  and  found the  guilt of  the  appellants was established  beyond  reasonable doubt. The  case  of the prosecution was that on 24th April, 1986 at about 7.30 p.m., Karnail Singh (PW3)  was driving a Car with  Gurmel  Singh (PW4)  sitting next to him and Shamsher Singh and Amar Singh seated in  the rear. All of them  had  been to  village Bharthala  to  inquire about purbias (labourers) from Dilbagh Singh. They did not find Dilbagh Singh  nor any purbia and were on their way back to Samrala when a truck started continuously  blowing its  horn  behind  the car. Shamsher  Singh asked PW 3 to stop the car which PW 3 did.

Shamsher  Singh got down from the car and started looking at the  truck to identify who the driver was.  Jagjit Singh who was driving the truck, brought the truck along side the car. Jagjit Singhs son Mittar Pal ( also known as Lovely) and Swaran            Singh were seated next to Jagjit Singh in the  front cabin  of the truck.  Swaran Singh opened the left window of the  truck and shot Shamsher Singh in the chest with his  12 Bore  Double Barrel Gun .  Shamsher Singh died on the  spot. On  hearing  the shot, Amar Singh got down from the car and went  to the back of the truck. Then Jagjit Singh, his son Lovely as  well  as one Amrik Singh got out of the  truck.

Jagjit  Singh fired at Amar Singh hitting Amar Singh in the chest.  Amrik Singh told Jagjit Singh to fire more shots at Amar Singh.  Whereupon Lovely took the 12 Bore Double Barrel Gun  from  Jagjit  Singh and fired two more  shots  at Amar Singh, one of which hit Amar Singh in the neck and the other in  the stomach.  The assailants fired more shots  at Amar Singh. Amar Singh died on the spot.  While the  assailants were  firing shots, Satish Kumar, who got down from back  of the  truck also received a shot.  PW 3 and PW 4 both  raised an  alarm whereupon the assailants fled away firing shots in the  air  as they ran.            The motive for the crime alleged  by the  prosecution  was  that Swaran Singhs  truck  had  been de-listed  from the Truck Union of Samrala by Shamsher Singh who  was the President of the Truck Union, Samrala.  It was also alleged that there was rivalry between Jagjit Singh and Shamsher  Singh because of the forthcoming elections to            the Presidents  Office of the truck union which was to be  held about  a  week            later.            On 24th April 1986  at  9.30            p.m. Karnail            Singh            (PW 3) lodged a First Information Report  at the Police Station, Samrala.  SI Karnail Singh, S.H.O.            P.S. Samrala            (PW 5) went to the site and took possession of            the truck,            the car, the registration papers, the blood  stained earth  from near the dead bodies of the deceased, two  empty cartridges  from  the  cabin  of the truck  and            four  empty cartridges from near the dead body of Amar Singh.  According to  the PW 5 he found Satish Kumar who had been wounded  at the  spot  and sent him to the Civil Hospital, Samrala. He then prepared an inquest report and sent the dead bodies for post  mortem  to  the Civil Hospital, Samrala. As far as Shamsher  Singh was concerned the post mortem was  performed at 10.30 A.M.  on 25th April, 1986.  The post mortem of Amar Singh was done the same day at 12.40 P.M.  Both post mortems had  been  performed  by Dr.Rajiv Bhalla,  Medical  Officer, Civil Hospital Samrala (PW 1). According to the post mortem report Shamsher  Singh had the following injuries:-  There was a wound 2 cms in diameter on the right side of the chest with  corresponding  injury  on the shirt and  banian. The margins were  blackened  and rolled inwards with clots present.  The wound  was  present  in the  2nd  and 3rd intercostal  space in the mid clavicular line.            The  remnant of  cartridge  and pellets were removed from the  wound            and sealed.

In the opinion of PW 1 the cause of death was fire arm injury leading to the rupture of the right lung  and            left lung  leading to haemorrhage, shock and death.            It was            also stated            that  the death was instantaneous and injuries            were ante  mortem in nature and were sufficient to cause death in the  normal course.  The following six wounds were found  on Amar  Singh by PW 1:- 1.  Wound 3.5 cms diameter on the left side  of  chest with blackened margins with rolled in  ends. The  shirt  was blackened with corresponding injury  on the shirt. The left strip of banian was missing.  The wound was 10  cm            deep and in the area of Ist and second intercostal space. The remnant of cartridge was seen in the wound and it was removed and sealed.

2.   Wound 3 cm diameter in the middle of the chest in the  anterior  triangle of the neck.  The wound was 7 cm  in depth  with  remnant  of cartridge and pellets removed and sealed.

3.   Wound  3 cm diameter on the abdomen in the  right upper guadrant with intestine protruding out of it 8 cm deep with  margin  rolled  in and  surroundings  blackened. The intestines  were ruptured and there was corresponding cut on the  shirt  and banian with margins blackened.            The  pellets were removed from injury and sealed.

4.   A  penetrating  wound  2.5 cms  diameter  on            the posterior  aspect of the left leg in the popli togal fossa 2 cm  above  the            knee joint line with rolled in            margins            and blackened  ends.   The wound was bone deep with remnants  of cartridges  and            pellets embodied in the femur.              There            was fracture  of  the  lower  and of femur.              The  pellets            were removed            and  sealed.            There was corresponding cut  in            the pajama with margins blackened.

5.   A  penetrating wound 2.5 cm diameter in the            left leg  3            cm below the knee joint with rolled in            margins            and blackened  ends            with corresponding cut on the pajama.            The injury was bone deep and there was fracture of the upper end of tibia.

6.   Penetrating  wound 2 cm diameter on the left            leg rolled in margins and blackened end 3 cm below injury No.  5 pellet removed and sealed. In  the opinion of PW 1 the cause of death was due  to the injuries which were ante mortem in nature and sufficient to  cause  death in the ordinary course.  The various  items collected  by  PW  5 from the site as well as parts  of            the viscera            of  the deceased which had been removed during            the post  mortem  were sent to the Forensic            Science  Laboratory (FSL)  by the police for chemical analysis.  On 26th  April, 1986  Swaran  Singh  surrendered and handed over a  12            Bore Double            Barrel              Gun  (Ex.    P-22)  before  the   Judicial Magistrate,  Samrala (PW 6), who gave it on the same day  to PW  5.            Three months later on 26th July, 1986            Gajja  Singh father            of Jagjit Singh produced a 12 Bore Double Barrel Gun (Ex.   P  23)  which was the licenced gun  of  Jagjit  Singh before            PW  5.            After six weeks after            that,  the  Sarpanch produced  another  12 Bore Double Barrel Gun which  was            the licensed  gun of Shamsher Singh (Ex.  P 24).  Three other 12 Bore  Double Barrelled Guns were produced by other witnesses on  27th  October, 1986 (Ex.  P25, Ex.            P26 and            Ex.   P27). Surprisingly,  although Jagjit Singh was named in the FIR he was not arrested but the case was taken up for investigation by  Shri Mohinder Singh, DSP, Shri Baldev Sharma, DSP,            Shri Sanjeev              Gupta,  SP  and   Shri  B.P.Tiwari,  DIG,   Crime, Chandigarh  all            of  whom  found  that            Jagjit            Singh  was innocent.   The            police            accordingly only  challaned  Swaran Singh.            Being            aggrieved,  PW 3 filed a  complaint  on            Ist December,  1986            against  Jagjit Singh, Mittar Pal  Singh  ( alias  Lovely)            and Amrik Singh.  All the four accused            were committed  to trial on 22nd September, 1988.  The  objection of  the accused that the complaint case and the challan case could  not be clubbed was rejected by the Trial Court on 8th February,  1989            and the trial commenced on  18th  February, 1989.            The  Additional            Sessions  Judge,  Ludhiana  charged Swaran            Singh and Jagjit Singh under Section 302/34 IPC            and Amrik  Singh and Mittar Pal Singh under Section 302/34            IPC. All four accused were also charged under Section 307/34 IPC. Apart  from  tendering the formal evidence of Constable            Dev Bharath,  AMHC Jai Singh, Constables Hazura Singh and Jagtar Singh on affidavits (as these witnesses were not required by the  defence  for  cross-   examination),  the            prosecution examined  seven witnesses in support of the charges, namely, Dr.   Rajiv  Bhalla (PW 1), Ashok Kumar, Draftsman  (PW            2), Karnail            Singh            (PW 3), Gurmel Singh (PW 4), Karnail  Singh, SHO  PS Samrala (PW 5), K.S.  Bhullar, Judicial            Magistrate,  amrala            (PW  6) and Randhir Singh (PW 7).  Swaran Singh  in his  defence stated that he was a member of the Truck  Union and  was  actively helping Jagjit Singh, the co-accused            who was a rival candidate of Shamsher Singh, the deceased in the election  to the Presidentship of the Truck Union which            was to  take  place on 3.5.86.  According to Swaran Singh,            both the  deceased with the intention of scaring away the helpers of  Jagjit  Singh  came armed to the front of the  house  of Swaran Singh  on  24.4.86.  When Swaran Singh reached his house  in  his truck at 4.00 p.m.  along with  his  cleaner, Satish,            he found the deceased in a drunken state,  shouting and  using  abusive language.  The deceased  allegedly            were also  firing  indiscriminately Swaran Singh claimed that  he ran  away  leaving his licenced loaded gun,  the  cartridges along with the belt and his cleaner behind in the truck.  He further            stated that the cleaner, Satish received gun  shots at  the            hands            of the deceased.  He claimed  that  the            eye witnesses were procured.  Jagjit Singhs defence was that he had  been  falsely  implicated because of his  rivalry            with Jagjit            Singh  in relation to the truck union.            Amrik  Singh and  Mittar  Pal  Singhs  defence was that  they  were            not present            at the spot at all.  They examined three witnesses, namely,            the  Ahlmad, the Clerk (Complaints) and  the  Clerk (Records) of the Deputy Commissioners office of Ludhiana to prove  that  they  had            moved            an  application            before            the concerned  authorities for having been falsely implicated in the  case.  The Trial Court acquitted Amrik Singh and Mittar

Pal  Singh  on the ground that the prosecution had not            been able  to  establish their guilt.  The Trial Court,  however,

convicted  Swaran Singh under Section 302 IPC for the murder of  Shamsher  Singh  and under Section 302/34  IPC  for            the murder of  Amar  Singh.  Jagjit Singh was  convicted  under Section 302  IPC  for the murder of Amar  Singh  and  under Section 302/34 IPC for the murder of Shamsher Singh. Both the accused were sentenced to life imprisonment and to pay a fine of Rs.5,000/- or in default to further undergo rigorous imprisonment  for  one year  in  respect  of  each  of  the offences.  The amount of fine, if recovered, was directed to be  paid to the next kin of Shamsher Singh and Amar Singh as compensation.  The   sentences  were directed   to run concurrently. Three appeals were preferred before the High Court  of Punjab and Haryana.  The first appeal was filed by Swaran Singh  against his conviction, (Criminal Appeal No. 315/DB of 1991), the second appeal was preferred by  Jagjit Singh  against his conviction, (Criminal Appeal No.   204/DB of 1991), and the third appeal was preferred by the State of Punjab  (Criminal Appeal No.270/DB of 1992) against the acquittal  of Mittar Pal Singh. The High Court disposed  of all  the  appeals by a common judgment dated 18th  September 1992. The High Court dismissed the States appeal  against the  acquittal of Mittar Pal Singh but affirmed the findings of  the Trial Court in respect of Jagjit Singh and  Swaran Singh. However, the sentences were altered by setting aside the  sentences of  fine imposed.  Being  aggrieved  by the decision  of  the High Court, Swaran Singh and Jagjit  Singh have  preferred appeals before this Court.  It is  contended before            us  by both the appellants that both the Courts            had erred in relying on the eye witnesses, namely, PW 3 and PW 4 as  their account of the incident in so far as it related to Mittar            Pal  Singh had been disbelieved by both the  courts.

It  is further submitted  that the  evidence of  the eye witnesses  that the  deceased had not drunk  alchohol was belied by  the Report of the FSL.  It is also pointed out that  Dilbagh  Singh from whom inquiries  regarding  purbias were  allegedly            sought to be made by the deceased  had            not been  examined            as a witness.  It is further contended            that the  investigating officers evidence was inconsistent  with the  evidence  on  record.  The appellants claim  that            the incident  in fact had taken place in front of Swaran Singhs house  at  4.00            p.m.  and that this was  supported  by            the evidence  of  PW 1, both as regards the deceased as well  as Satish,            cleaner  of the truck.            It is further claimed            that there  was  as such a delay in lodging of the  complaint  by 5-1/2  hours during which time the alleged eye witnesses had concocted  the            story of involvement of the accused.  It  is claimed            that they had no motive, nor was there any evidence led  by the prosecution as to their motive for killing            Amar Singh.            Finally, as far as Jagjit Singh is concerned, it is stated            that apart from the eye witnesses account there was nothing            to  connect  Jagjit Singh with the  crime.   It  is pointed            out  that  the ballistic  experts  report  clearly showed that the cartridges recovered from the spot could not be linked to the licensed gun of Jagjit Singh.            In our view, both  the  appellants were rightly found guilty by both            the Courts.              The  evidence            against them is  conclusive.            That there  was enmity between the accused and Shamsher Singh was admitted.   Amar Singh was the deceaseds associate and            had the  misfortune not only to have been present when  Shamsher Singh  was  killed but also to have made himself visible  to the  accused then.  Both the eye witnesses accounts of            the deceaseds  involvement            are  not only consistent  but  were corroborated by the material evidence.            The site plan proved by  PW 2 showed that the truck was parked towards the  right rear  end  of the car in which the deceased was            travelling. If  the deceased were firing indiscriminately, it is  hardly likely            that the appellants would park the truck next to the car.  The photographs which were tendered as Exts P9 and P10 show the position of Shamsher Singhs body next to the truck on  the road on the left of the truck and Amar Singhs  body at the rear of the truck.  The blood stained earth which was collected  from            the spot where the deceaseds  bodies  were found supports the position that the deceased were killed at the spot next to the truck and not near Swaran Singhs house as  claimed by the accused.  Both the Trial Court as well as the High Court rightly rejected the story of Swaran Singh to explain the presence at the truck at the scene of the crime. That  Swaran Singh was present at the scene and was carrying a  loaded  double barrel gun and a cartridge belt  has            been admitted  by him.  His defence was that he had not fired any shots  and  that  the deceased in a drunken state  were            the aggressors.   The  appellants allegation that the  deceased were  drunk  does not appear to be borne out by the  medical evidence.  According to the Chemical Examiners report (Ext. PV/ 3) the alcohol concentration found in the viscera of the deceased  (Ext.              Nos.            1,2, and 4) was 74.75            mg/100            mls.

This does not show either that the alcohol had been consumed immediately  prior to the occurrence as was suggested to the eye  witnesses            nor can it be said that the alcohol  content was sufficient to make the deceased inebriated.            It was also correctly  noted by both the Courts below that if indeed the deceased  had  been shooting indiscriminately as alleged  by him,  there  would  have been some pellets on the  walls  of Swaran            Singhs house.  The High Court also noticed that            it was  not  even            suggested  to any of the  witnesses  in            the prosecution  that  there were pellets or pellet            marks            near Swaran            Singhs            house.            The  evidence            of  PW1  and            the post-mortem  reports was to the effect that the single wound on the right side of the chest of Shamsher Singh and several wounds            on Amar Singh were blackened.  Blackening is caused by  smoke deposit.  Smoke particles are light.            They do            not travel            far.  Therefore, smoke deposit, i.e., blackening  is limited to a small range.  See Forensic Science in Criminal Investigation & Trials (3rd Edn.) P.  280;  Fisher, Svensson, and  Wendels  Techniques of Crime Scene Investigation  (4th Edn.   p.296). The fact that the firing was at close  range supports the evidence of the eye witnesses and runs contrary to  the defense account of the incident.  The situs of the wounds found by PW 1 on the deceased also bear out the eye witnesses  testimony  of  the incident.            As far as  Swaran Singh  is  concerned, the gun which was handed over  by him bearing No.   8395/5391/A-7 (Ext.22) to PW 6 was tested  by the Forensic Science Laboratory at Chandigarh. The report ( Ext.   P-7)  showed that three of the  cartridges  collected from  inside the truck and the site had been fired from the right  barrel of Ext.22 and another cartridge had been fired from  the  left barrel of  the same  gun.   Both  the eye witnesses  said Jagjit was driving the truck.  He  alighted from  the drivers side of the truck viz.  the right of the truck. Amar Singhs body was found shot at close range near the  right rear end of the truck.  The wounds found on Amar Singhs body  by  PW  1 thus  sustain  the  eye witnesses version.   No  doubt, the particular empty  cartridge  cases found  could  not be related to Jagjit Singhs licensed  gun which  had  been  handed over to the police by            his  father, three months after the incident, but there was evidence that the  gun  had  been fired.  The appellants  contention            that because the  eye witnesses account of the  involvement  of Mittar Pal  was  not  accepted by  either  of the  Courts, therefore  their  evidence was suspect, is  a  non-sequitur.

Merely because one portion of the evidence of PW 3 and PW 4 is  disbelieved does not mean that the Courts were bound  to reject all  of it.  Besides Mittar Pals acquittal  by the Trial  Court is unsupported by any reason.  The High  Court, in  its turn,            held  that  it was  unlikely  that  the            eye witnesses would have remained on the spot after Jagjit Singh had  shot Amar Singh killing him instantaneously.  The            High Court  also  said that their version that Mittar Pal  Singh alias  Lovely accused had snatched the gun of his father and fired  two  gun            shots            is   not  believable  being   highly un-natural  because if Jagjit Singh accused was bold  enough to  fire  first            gun  shot hitting the neck  of            Amar  Singh deceased,  then            there was no question of his not  repeating gun  shots, especially when the medical evidence shows            that the injuries on the dead body of Amar Singh were caused with gun shot from close range.  Thus, it cannot be said that the medical            evidence  corroborates the participation of  Mittar Pal  Singh alias Lovely accused in this occurrence.  It            is not necessary for us to question this reasoning as no appeal has been preferred against Mittar Pals acquittal but in the case  of the accused the medical evidence corroborates their participation.            Regarding the time of the occurrence, it may be  that PW 1 has stated in cross-examination that both            the deceased  could have met their death at about 4.00 P.M.              on 24.4.86, but this does not by itself establish the fact that the  deceased were killed at 4.00 P.M.            The evidence of PW 1 in-chief  was that the deaths could have been caused  within 24  hours  prior  to  the  post-mortems.   Therefore,  PW1s evidence  is  equally  consistent  with              the  case  of            the prosecution  that  the incident took place at 7.45 P.M.              PW 1s  evidence  regarding Satish Kumar in fact  supports            the prosecutions  case.  Satish Kumar was examined on 24.4.1986 at  11.20 P.M.            In cross-examination he said that the injury had  been caused  within six hours.  This statement  means that the injury did not take place at 4.00 P.M.            Besides, if Satish            Kumar  had been injured at 4.00 P.M., as claimed  by the accused, there is no explanation why he should have been admitted  to the hospital at 9.20 P.M.            more than five hours later  and  that too by the police.  The chronology  of            the series            of occurrences shows that the crime had taken  place at  about  7.30 p.m. as claimed by  the  prosecution and testified  to  by  the eye witnesses.  That  being  so, the lodgment  of  the  F.I.R by PW 3 promptly  with a  detailed account of the incident, renders improbable the possibility of  the fabrication of the involvement of  the appellants. Given  these unambiguous confirmatory circumstances, we see no reason to interfere with the reliance placed by both the Courts on PWs 3 and 4s direct evidence of the part  placed by  the appellants in the perpetration of the crime.  On the other  hand, the appellants version of the incident has not been  substantiated at all.  The fact that the deceased had gone  to make inquiries about the employment of purbias from Dilbagh Singh is peripheral to the case and the credibility of  the eye witnesses account of the incident can in no way be  affected by Dilbagh Singh not being produced in  support of  the prosecution case.  In any event, as recorded by the Trial  Court, Dilbagh Singh PW had been given up as he  was won over by the accused.  For similar reasons, the P.P. for the  State could not produced Dilbagh Singhs mother.  The appellants  also  contended  that the evidence of PW  5 was discrepant.   The  appellants have emphasised that PW 5  had incorrectly  stated  that he had not gone out of the  police station prior  to  recording  of  the FIR.   He  had also incorrectly  stated that he had found Satish at the scene of the  crime  at 11.45  p.m.  and sent him  to  the  hospital whereas Satish had  in  fact already been  taken  to the hospital  by some other police personnel at 9.20 p.m. None of  the discrepancies are sufficient to discard the case  of the  prosecution  or  to throw doubt on the  eye  witnesses testimony.   Furthermore  the  trial commenced            about  three years  after  the incident.  In the meanwhile PW 5 had            been transferred  in April 1987 from Samrala.  PW 5 was called to give  evidence            in  1990.  In the circumstances            it  is            not unlikely  that            he  would not remember the  details  of            the investigation.            These are the adverse effects of a  delayed trial.            This  aspect  has been dealt with at length  by  my Learned            Brother  and I am in respectful agreement with            his opinions  on  the matter.  Having found no lacunae  in            the reasoning  of  the  High Court either on facts            or  law,  we dismiss the appeals.  If the accused are on bail, they shall be  taken into custody forthwith to serve out the  sentences imposed on them.

 

 

 

Supreme Court:- Trail Court should be of the opinion that the offence is committed u/s 195 of IPC to launch prosecution u/s 340.

February 20, 2013 Leave a comment

PRITISH Vs. STATE OF MAHARASHTRA & ORS.

Coram

K.T. THOMAS, S.N. PHUKAN, Y.K. SABHARWAL

Citation

2002 AIR 236, 2001( 5 )Suppl.SCR 302, 2002( 1 )SCC 253, 2001( 8 )SCALE235 , 2001( 9 )JT 574

Head Notes

Head Notes not found

Subject

Subject not found

Judgment

CASE NO.: Appeal (crl.) 1188 of 2001

PETITIONER: PRITISH

Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT: 21/11/2001

BENCH: K.T. Thomas, S.N. Phukan & Y.K. Sabharwal

JUDGMENT: THOMAS, J.

Leave granted. Appellant who scored substantially in a land acquisition proceeding is now facing rough weather as he is arraigned in a criminal proceeding on account of certain documents he produced as evidence. The court which granted a quantum leap in awarding compensation to the land owners later found that they had used forged documents for inveigling such a bumper gain as compensation and hence the court ordered some of the claimants to face prosecution proceedings in a criminal court. The only point now convassed by the appellant is that the court should have heard the appellant before ordering such prosecution. The said plea raised by the appellant before the High Court was repelled as per the impugned judgment. Hence this appeal by special leave. An area of 3.9 acres of land was acquired by the State Government for construction of a canal under Arunwati Project in 1985. The land acquisition officer awarded a total of Rs.24,000/- as compensation for the entire land. As the owners were not satisfied with the said award they moved for a reference under Section 18 of the Land Acquisition Act. The reference court (which is a civil court) on the basis of evidence adduced by the parties made a big leap by enhancing the compensation amount from Rupees twenty four thousand to Rupees ten lakhs thirty thousand, besides the other benefits such as solatium, additional compensation and interest as provided in Section 23 of the Land Acquisition Act. The reference court passed the award granting the said enhancement on 23.4.1993. Appellant was one of the beneficiaries of the said award and the enhancement was made on the basis of the evidence adduced by the parties including the appellant. Though the claimants expressed dissatisfaction even with such enhancement and moved the High Court for further enhancement the High Court dismissed the appeal filed by them in 1993.

In 1995, some persons of the locality brought to the notice of the reference court that the claimants had wangled a whopping enhancement after playing chicanery on the court by producing forged copies of sale deeds for supporting their claim for enhancement. The documents marked by the reference court as Exts.31, 32 and 35 were fabricated copies of sale deeds in which the extent of the lands sold had been shown as far less than the real area transferred as per the instruments of sale, according to those persons. The reference court conducted an inquiry on being told by the aforesaid applicants that the above mentioned documents are forged. The court got down the relevant records from the Sub-Registry for the purpose of examining the correctness of the aforesaid three documents and found that they were fabricated copies of the original sale deeds. The said court further found that appellant and one Rajkumar Anandrao Gulhane have committed offences affecting the administration of justice by using forged documents. The court then passed the following order: Therefore, it is expedient in the ends of justice on my part to file the complaint in writing against them before Judicial Magistrate of First Class having jurisdiction to take appropriate and proper criminal action against them, as it appears that they have not only cheated the public at large and government but have misguided or tried to misguide my learned predecessor by preparing and producing false documentary evidence as well as by giving false oral evidence just to have a wrongful gain. The persons who moved the court for taking action under Section 340 of the Code of Criminal Procedure (for short the Code) by bringing the above facts to the notice of the reference court were not satisfied as they felt that the other persons who also secured the advantage of such enhancement were also to be proceeded against. So they filed an appeal before the District Court. On 12.8.1996 the District Judge concerned ordered that the complaint shall be filed against five more persons besides the appellant and Rajkumar Ananarao Gulhane. We are told that those five persons moved the High Court and got themselves extricated from prosecution proceedings. Appellant then filed an appeal before the High Court purportedly under Section 341 of the Code in challenge of the order of the reference court which directed the filing of a criminal complaint against him. The main contention he raised before the High Court was that the reference court has overlooked the basic principles of natural justice and proceeded to make an inquiry without giving an opportunity to him to be heard in the matter and hence great prejudice had been caused to him as he had been deprived of the opportunity to be heard. Learned single judge of the High Court while repelling the above contention observed thus: The procedure does not contemplate that before initiating preliminary enquiry the court ought to give notice to the person against whom it may make a complaint on completion of the preliminary enquiry and, obviously so because what is contemplated is only a preliminary enquiry, and if the court chooses to take action against the said person, it does not mean that he will not have full and adequate opportunity under Section 340(1)(b) of the Criminal Procedure Code. Therefore, the contention of the learned counsel for the appellants, that the court, before initiating any enquiry into the matter, ought to have given notice to the appellants and that the appellants have a right to be heard, cannot be accepted. Shri V.A. Mohta, learned senior counsel for the appellant contended that the basic principle of natural justice is violated when the reference court ordered prosecution against the appellant without affording him an opportunity of being heard. In elaborating the said point learned senior counsel submitted that the scheme of Sections 340 to 344 of the Code contains an in-built safety for the persons sought to be proceeded against, by obliging the court to afford an opportunity of being heard to them. Chapter XXVI of the Code contains provisions as to offences affecting the administration of justice. Among the 12 sections subsumed therein we need consider only three. Section 340 consists of four sub-sections of which only the first sub-section is relevant for the purpose of this case. Hence the said sub-section is extracted below: When upon an application made to it in this behalf or otherwise, any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. Inquiry is defined in Section 2(g) of the Code as every inquiry, other than a trial, conducted under this Code by a magistrate or court. It refers to the pre trial inquiry, and in the present context it means the inquiry to be conducted by the magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the magistrate of first class concerned. As the offences involved are all falling within the purview of warrant case [as defined in Sec.2 (x)] of the Code the magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code. Section 238 of the Code says that the magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the magistrate has to proceed to conduct the trial. Until then the inquiry continues before the magistrate. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused. In any event appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not. Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff and anr. vs. State of Madras and ors. (AIR 1954 SC 397) a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. Learned senior counsel cited the decision of a single Judge of the High Court of Andhra Pradesh in Nimmakayala Audi Narrayanamma vs. State of Andhra Pradesh (AIR 1970 A.P. 119) in which learned judge observed that it is just and proper that the court issues a show cause notice to the would be accused as to why they should not be prosecuted. This was said while interpreting the scope of Section 476 of the old Code of Criminal Procedure (which corresponds with Section 340 of the present Code). The following is the main reasoning of the learned single Judge: The proceedings under Section 476 Criminal P.C. being judicial and criminal in nature, the interpretation that should be placed in construing the section should be just, fair, proper and equitable and must be in accordance with the principles of natural justice. By adopting such interpretation and procedure, the aggrieved party would be afforded with an adequate opportunity to show and satisfy the court that it was not in the interests of justice, to launch the prosecution and thereby avoid further proceeding. That apart, the appellate court also would be in a position to appreciate the reasons assigned in each case and would have the advantage of coming to its own conclusion without any difficulty about the justification or otherwise of launching the prosecution in a particular case. When once the prosecution had been launched, the accused will not be having an opportunity thereafter to raise the question of expediency in the interests of justice to launch the very prosecution itself. The case thereafter will have to be gone into on the merits. We are unable to agree with the said view of the learned single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry. {vide M. Muthuswamy vs. Special Police Establishment (AIR 1985 Criminal Law Journal 420)}. We therefore agree with the impugned judgment that appellant cannot complain that he was not heard during the preliminary inquiry conducted by the reference court under Section 340 of the Code. In the result we dismiss this appeal.

J [ K.T. Thomas ] J [ S.N. Phukan ] J [ Y.K. Sabharwal ]

November 21, 2001.

 

 

Delhi HC:- Definite opinion needs to be formed by Court to launch the prosecution in Interest of Justice u/s 340 CrPC Perjury.

February 20, 2013 Leave a comment

IN THE HIGH COURT OF DELHI AT NEW DELHI

10

CRL.M.C. 1130/2008 & CRL.M.A.4231/2008

JAGDISH PRASAD ….. Petitioner Through: Mr.R.B. Pandey, Advocate.

versus

STATE & ORS. ….. Respondents Through: Mr.Jaideep Malik,APP.

Mr. R.P. Kaushik, Advocate for

Respondent No.2.

CORAM:

HON’BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be

allowed to see the judgment? No

2. To be referred to the Reporter or not? Yes

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

23.03.2009

1. This petition under Section 482 of the Code of the Criminal Procedure (CrPC) is directed against an order

dated 22nd February 2008 passed by the learned Additional Sessions Judge (ASJ) Delhi allowing Crl.A.No.18

of 2005 filed by the Respondent No.2 against an order dated 9 th September 2005 passed by the learned

Metropolitan Magistrate (MM) Delhi in an application filed by the Petitioner herein under Section 340 CrPC.

By the said order dated 9th September 2005, the learned MM came to the prima facie conclusion that

Respondent No.2 had committed an offence under Section 193 of the Indian Penal Code (IPC) and ought to be

prosecuted for the same. The learned ASJ has, in the Crl.M.C.1130/08 Page 1 of 11 impugned order, set aside

the order dated 9 th September 2005 on the ground that the learned MM had not determined if it was

expedient in the interests of justice that an inquiry should be held for ascertaining whether the Respondent

No.2 should be prosecuted for the offence under Section 193 IPC.

2. The brief facts leading to the filing of the present petition are that Respondent No.2 wife filed an

application under Section 125 CrPC seeking maintenance from the Petitioner husband for herself and the

minor female child. In her petition she stated in Para 15 that she was “not employed anywhere and is unable to

maintain herself and her said minor girl Shruti and they presently are survived on the mercy of parents of the

petitioner No.1 (wife) who themselves have limited resources to maintain the large family.”

3. According to the Petitioner in the month of June 2001, the Respondent No.2 wife had joined Tirath Ram

Shah Charitable Hospital, Rajpur Road, Delhi as a `Receptionist’ and was receiving salary from the said

hospital. On this basis, Petitioner had earlier filed an application under Section 340 CrPC which, according to

Respondent No.2, was dismissed on 16th September, 2003.4. On 12th February 2004, Respondent No.2 was examined in chief in the maintenance petition. She stated: “I was not working anywhere after my marriage, I was not working till today anywhere from the date when I was kicked out from my matrimonial home.” She was cross examined on 7th April 2004 and was asked whether she was doing any job during the pendency of the petition. She replied that “since after coming to my parental home, I am not doing any job. I have one bank account in Co- operative Bank. It is incorrect to suggest that after coming to my parental home, I have worked with Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi.” In response to another specific question whether she was holding a bank account at Punjab National Bank, Civil Lines she stated as under:

“It is wrong to suggest that I am holding an account which is 427791 in the above said bank i.e., PNB”

5. Consequent upon the above replies in cross exam-ination, the Petitioner filed an application under Section 340 CrPC seeking the prosecution of the Petitioner for committing perjury punishable under Section 193

CrPC.

6. It appears that a reply was filed to the said petition by Respondent No.2. Even evidence appears to have been led by examining the officials from both the Punjab National Bank as well as the Tirath Ram Shah

Charitable Hospital.

7. RW-2 D.S. Bandari, Senior Manager, Punjab National Bank, Civil Lines, Delhi was examined on 28th Septem-ber 2004. He confirmed that Crl.M.C.1130/08 Page 3 of 11 an account had been open by Respondent No.2 with the bank with the addresses “C/o Tirathram Shah Hosp-ital, 2 Battery Lane, Rajpur Road, Delhi -54.”

He stated: “On 20.07.01 Smt. Veena Bhatt opened her

account in Punjab National Bank, Civil Lines, Delhi. The account was introduced by Sh.B.Arora, SF account

No.11908 with the address C/o Tirathram Shah Hospital, 2 Battery Lain(sic Lane), Rajpur Road, Delhi-54 with a initial amount of Rs.500/-. She was allotted account No.427791. Statement of the account since opening of the account till today is exhibited as Ex.RW2/A, Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of account Smt. Veena Bhatt stated her occupation “service” which has been written in point A over Ex.RW2/D.

8. RW-3 Manoj Nair, AAO, Tirath Ram Shah Hospital in his examination in chief stated as under:-

“The authority letter given by Dr.A.K.Dubey, Director is Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram Shah Hospital. She was working as a receptionist on fixed term contract basis. The gross salary of Mrs.Veena was Rs.3,572/- only. Her employ- ment no. was 1225. I identify Mrs. Veena who is present in the court. There was break in service for one day. Smt. Veena Bhatt was working as a receptionist and not as a trainee as per the record. In my hospital no receptionist trainee are engaged. She has not applied for the renewal of her further contract after 10.06.02. I can submit a copy of the application form and record of salary if required. The original is before this hon’ble court. Application for employment form is Ex.RW3/B (four pages) and the copy of salary register for the month of June, 2001 to June, 2002 are collectively Ex.RW3/C (12 pages).”

9. The cross examination only elicited the following clarification by Respondent No.2:-

“It is correct that Smt. Veena had not worked in the hospital as a permanent hospital (sic) or on ad hoc basis or on temporary basis she had worked only on contract basis.

10. The learned MM in the order dated 9th September 2005 came to the following conclusion:-

“I have gone through the record of the present applica-tion as well as the petition under Section 125 Cr.P.C., which is pending in the present court. Smt. Veena may have had a genuine cause for having worked as proved

against her in her case and also admitted by her in the present proceedings. Nevertheless her pressing require- ments for income does not exonerate her from the offence of having given false testimony in the court.

I am, therefore, of the opinion that Smt.Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same.”

11. Aggrieved by the above order, Respondent No.2 filed an appeal in the Court of learned ASJ. Among the

grounds urged in the appeal were that an earlier petition under Section 340 CrPC having been dismissed, a further application ought not to have been entertained by the learned MM. It was further urged that there was

never any intention on the part of Respondent No.2 to commit any offence and that her only intention was to

claim maintenance as per law. It was sought to be urged that in the recording of the answers to the questions

put to Respondent No.2 in her cross examination there were chances of inadvertent mistakes “unless it is in

the language of the appellant/witness i.e. Hindi/ vernacular language .”. It was also urged that the learned MM had, in fact, pronounced a final judgment on the guilt of the Respondent No.2 for the offence under Section193 IPC and, therefore, the order dated 9th September 2005 stood vitiated.

12. In the impugned order dated 22nd February 2008, the learned ASJ has referred to the judgments of the

Supreme Court in Afzal v. State of Haryana and others AIR 1996 SC 2326, Murrari & Company 2002 (2)

SCC 367 and Pritish v. State of Maharashtra and others AIR 2002 SC 236 to hold that it was incumbent on the

learned MM to come to a definite conclusion that it was expedient in the interest of justice that an action should be taken against respondent No.2 under Section 193 IPC. The learned ASJ proceeded to observe as under:- “Mere recording of a finding to the effect that an offence punishable under section 193 of the Penal Code was committed would not answer requirement of section 340 of the Code. When primary question was answered in affirmative then secondary and most effective proposi-tion was to be answered to the effect whether it was expedient in the interest of justice to initiate an action in the matter. No such step was taken by the Trial Court to see that it was expedient in the interest of justice to take such action. In such a situation, order impugned is shrouded with illegality. In cannot be allowed to stand. Consequently, order impugned is set-aside and appeal is granted. Trial Court record be sent back. File be consigned to Record Room.”

13. Learned counsel for the Petitioner makes a two-fold submission. According to him, the learned ASJ, hearing the criminal appeal had to specifically direct the complainant to withdraw the complaint and could not

have passed any other order. Secondly, he submits that a reading of the order dated 9th September 2005 passed by the learned MM shows that, in fact, the learned MM had come to a conclusion about the expediency in the interest of justice for prosecuting Respondent No.2 thus satisfying the requirement of the law under Section 340 14. Learned counsel for the Respondent No.2 urged that there was no illegality in the order of learned ASJ

mandating a full-fledged inquiry prior to the formation of opinion that it was expedient in the interest of justice to prosecute Respondent No.2. He submits that in as much as there was no specific conclusion drawn by the learned MM to that effect, the order dated 9th September 2005 stood vitiated. He also submits that with the learned MM already having concluded on the guilt of Respondent No.2, nothing really remained as far as

the prosecution of Respondent No.2 was concerned. It would be an empty formality.

15. The submissions of both sides have been heard. As regards the first contention, a reference may be made

to Section 341 CrPC which reads as under:-

(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 95, and the superior Court may thereupon, after notice to the parties concerned, direct the with-drawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.”

16. A plain reading of the above provisions would show that an appeal can be filed by either a complainant

seeking to invoke Section 340 CrPC or by a person against whom the Court below has invoked the provision.

In the instant case, the provision was successfully invoked by the Petitioner before the learned MM and it was Respondent No.2 who filed an appeal. While accepting her submission, learned ASJ set aside an order dated 9th September 2005. The effect of this was the withdrawal of a complaint itself. Therefore, there was no

illegality committed by learned ASJ as far as the order that should have been passed under Section 341 CrPC.

The first submission of learned counsel for the Petitioner is accordingly rejected.

17. That brings us to the merits of the case. The only ground on which the learned ASJ appears to have set

aside the order dated 9th September 2005 passed by the learned MM is that a definite opinion was not formed

by the learned MM that it was expedient in the interest of justice to prosecute Respondent No.2 for the offence

under Section 193 IPC. The learned ASJ unfortunately does not appear to have referred to the record of the

detailed inquiry conducted by learned MM. This involved not only considering the reply filed by Respondent No.2 but also the evidence recorded of RW-2 i.e. the Senior Manager D.S.Bandari of the PNB and RW-3, the official of the `Tirath Ram Shah Hospital Manoj Nair. In the light of the evidence of these witnesses, the relevant portion of which have been extracted hereinbefore, there was no question of learned MM having to hold any further inquiry in order to deter-mine whether Respondent No.2 ought to be prosecuted or not.

18. In the considered view of this Court, when the learned MM in the order dated 9th September 2005

observed “I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC

and she ought to be prosecuted for the same”, the requirement of Section 340 CrPC as explained by the

Supreme Court stood satisfied. In other words, the opinion formed by learned MM was obviously only a

tentative or a prima facie one. This is plain from the expression “ought to be prosecuted”. Further, the same

expression “ought to be prosecuted” also indicates the formation of an opinion that it was expedient in the

interest of justice that Respondent No.2 should be prosecuted. Therefore, both the requirements of law as

explained by the Supreme Court in relation to Section 340 CrPC stood completely satisfied by the order dated

9th September 2005 passed by the learned MM. This Court is, therefore, unable to agree with the conclusion

reached by learned ASJ to the contrary.

19. The order dated 22nd February 2008 passed by the learned ASJ is accordingly set aside. The order dated

9th September 2005 passed by the learned MM and the consequent application presented to the learned

Additional Chief Metropolitan Magistrate for prosecuting Respondent No.2 are revived. The further steps will proceed in accordance with law.

 

20. The petition is accordingly allowed with no order as to costs. The pending application is also disposed of.

S. MURALIDHAR, J.

Bombay HC:- complaint under section 340 of Cr.P read with section 195(1)(b) for filing misleading affidavit and for not disclosing true and correct facts to this Court is made out

February 19, 2013 1 comment

 

Bombay High Court 

 

Ctr Manufacturing Industries … Petitioner

vs Sergi Transformer Explosion .& Oths

on 30October, 2012

Bench: B. P. Dharmadhikari

1 1282. 11caa

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

CIVIL APPELLATE JURISDICTION.

CIVIL APPLICATION NO. 1282 OF 2011

IN

APPEAL FROM ORDER NO. 102 OF 2011

CTR Manufacturing Industries Limited,                                                                                                                                                                     a company incorporated under the provisions                                                                                                                                                          of the Companies Act, 1956, having registered                                                                                                                                                    office at Nagar Road, Pune411

014. … Applicant.

V/s.

1. Sergi Transformer Explosion Prevention

Technologies Private Limited,

of 324, Udyog ViharPhase

IV,

Gurgaon, India.

2. Antoine Magnier, s/o Phillipe Magnier,

Director, Sergi Transformer Explosion

Prevention Technologies Private Limited,

having his office at 426, Udyog ViharPhase

IV, Gurgaon122016,

Haryana.

3. Dharmendra Tyagi,

Corporate Legal Manager,

Sergi Transformer Explosion Prevention

Technologies Private Limited,

having his office at 426, Udyog ViharPhase

IV , Gurgaon122016,

Haryana. … Respondents.

Navroz Seervai, Senior Advocate with Gulnar Mistry;

Aakash Rebello; Amit Jajoo; and Atul Singh i/b. Paras Kuhad & Associates for the applicant.

Atul Rajadhyaksha with S.Kher and C.Chavan i/b.

Ms.Rani Boazz for respondent Nos.1 and 2

CORAM: B.P.DHARMADHIKARI, J.

DATED : 30th October 2012.

JUDGMENT :

This Civil Application is filed in a disposed of Appeal against order for action under S. 340 Cr.P.C.That appeal from order arose out of Special Civil Suit No.1/2010 and has been disposed of by this Court on 11th January 2011. This Court set aside the order dated 28th December 2010 passed by learned District Judge, Thane and allowed the application of appellant therein (respondent in thiscivil application) and permitted it to submit drawings to Delhi Transco Limited (DTL). It directed that the said appellant should not take any further steps for execution of contract except submission of drawings till the decision of application filed by the appellant/ respondent No.1 herein below Exh.5 under order 39 rules 1 and 2 of Code of Civil Procedure, 1908 (C.P.C.) (Said application below Exh.5 in special civil suit was filed by present applicant/plaintiff who was respondent in that appeal from order). It is not in dispute that later on temporary injunction as prayed for came to be denied & the said application at Exh.5 has been dismissed.

2. The present civil application is filed by respondent in that appeal from order 102 of 2011 for recording of finding that an offence under section 193 read with section 191 or section 209 of Indian Penal Code, 1860 has been committed by the respond-ents and for making a complaint in writing through competent officer of this Court to the Magistrate of First Class having jurisdiction. Thus the application is under section 195 read with section 340 of Cr.P.C.

3. Effort of applicant is to show that on 9 th December 2010 it had obtained orders from Thane Court in its civil suit restraining respondent from taking any steps in relation to tender floated by DTL. That order was served upon respondents on 14 th December 2010. Appeal challenging that order was filed by respondents before this Court on 20th December 2010 and that appeal was considered by Vacation Judge on 24th December 2010. The Vacation Judge did not interfere with the impugned order dated 9th December 2010 but directed the trial Court to hear the parties and pass appropriate orders on 27th December 2010. While obtaining this order and in the proceedings, it was not disclosed to this Court that drawings were already submitted by the respondent to DTL on 24 th December 2010. This fact was not even pointed out to the trial Court on 27 th December 2010 during hearing. The trial Court, as per the direction issued by this Court, heard parties and passed an order on 28 th December 2010 maintaining its earlier direction. That direction was then questioned in Appeal No. 102/2011 and even in that appeal or during said proceedings, which even ultimately decided by this Court on 11 th January 2011, the fact that direction dated 9 th December 2010 was violated and drawings were already submitted was not disclosed by the present respondent who was appellant in the said appeal.

4. It is in this background that learned Senior Advocate Shri Seervai appearing urges that a fact very relevant for consideration and critical in exercise of jurisdiction to grant temporary injunction was deliberately suppressed from this Court. Learned counsel submits that the affidavit in support of said appeal from order is sworn by one Dharmesh Tyagi, Corporate Legal Manager of respondent and though he is/was served with notice of present proceeding he has chosen not to appear. Learned counsel contends that the said affidavit is by and on behalf of appellant and, therefore, binding on all the respondents in present proceedings. Attention has been invited on ground(a) in the memo of said appeal to show how denial of even an opportunity to submit drawings & its adverse effect on the chances of present respondents has been pressed into service to seek vacation of interim direction. The statement made in Civil Application (St.) No.33479/2011 that parties have been litigating since February 2010 on weekly basis before the District Court, Thane is also pointed out. Attention is also invited to the fact that for said violation of interim direction, proceedings under order 39 rule 2A read with 2(11) of C.P are already instituted but then the scope thereof is entirely .C.different. Learned senior counsel has strongly relied upon the assertions in paragraphs4, 17, 18, 19, 20 and 21 of the present civil application.

5. In support of his contention, Shri Seervai has relied upon following judgments: Queen Empress v. Mehrban Singh (1884 6 All 626); Sanjeev Kumar Mittal v. State 174 (2010) DLT 214; In Re: Suo Motu Proceedings Against R.Karuppan, Advocate, (2001) 5 SCC 289; K.Karunakaran v. T.V.Eachara Warrier, (1978) 1 SCC 18; Pritesh v. State of Maharashtra, (2002) 1 SCC 253; Emperor v. Padam Singh, AIR 1930 Allahabad 490; and Emperor v. Ratanchand Dhannram, 1904 (6) BLR 886.

6. Shri Rajadhyaksha, learned senior advocate counsel for respondent Nos.1 and 2 in this civil application submits that interim prayer before the trial Court was much wider and only part of it was granted initially and the respondents were restrained only from actual “selling”. Thus, submission of drawings was not prohibited by that order which occupied the field till 9.12.2010. Parties appeared before the trial Court on several dates thereafter. In this background, on 9th December 2010, Trial Court was moved by present applicant plaintiff behind back of respondents and the order restraining them from taking any steps in the matter was obtained. Learned senior counsel submits that though this order was served upon the office of respondent No.1 at New Delhi on 14th December 2010 and though appeal against it was also filed before this Court, the officer who submitted drawings to DTL was unaware of the said order or developments. He has invited attention to the affidavit dated 1st May 2012 of one Rahul Chavan, employee of respondent No.1. For very same purpose, attention is also invited to the affidavit of one P.B.More dated 13 th July 2012. Affidavit in rejoinder filed by respondent 2 Antoine Magnier dated 22 nd September 2012 is also pointed out to show as to how that officer was very busy & occupied, and could not pay attention to these details. Learned senior counsel has urged that this was only a bonafide error which has not prejudiced the case of applicant in any way. Subsequent affidavit in rejoinder filed by Rahul Chavan is pressed into service to substantiate stand that it was a bonafide mistake.

7. By way of abundant precaution, it was submitted that interim order sought for by the applicant has been ultimately vacated and Hon’ble Apex Court has also permitted the respondents to participate in the tender process. Learned counsel submits that, thus, for an honest and bonafide mistake which has got no impact on administration of justice, no action under section 340 of Cr.P.C. Read with section 195 is called for. He has also relied upon various precedents reference to which is being made little later in the course of this judgment.

8. In his reply arguments, Shri Seervai has contended that reason of honest and bonafide mistake by Shri Chavan is erroneous. He points out that now said person is not in employment of the respondents and he obliged them by giving letters or affidavits as they wanted. The communication dated 9th November 2010 is signed by said Chavan and sent to Manager (Stores) of DTL confirming that M/s.Sergi India was in a position to execute the full project of DTL in spite of legal proceedings going on against it. He states that this knowledge has not been disputed by the respondents. He further contends that reliance upon affidavit of Antoine Magnier dated 30 th April 2012 or his later affidavit in an effort to show bonafide mistake is equally erroneous. He points out the statement contained in affidavit of Shri Chavan dated 1 st May 2012 that he had submitted drawings on 24th December 2010 as a routine purchase related activity. On 11 th or 12th January 2011, he was asked to submit drawings to DTL following the order of High Court and, accordingly, he submitted those drawings on 12th January 2011. The communication dated 12th March 2010 sent by respondent No.3 Shri Tyagi to DTL pointing out injunction order and hope that it would be vacated is also pressed into service.

9. I have perused all records in the light of rival contentions. Perusal of affidavit dated 13th July 2012 filed by Shri P.B.More on behalf of the applicant shows an assertion that drawings were not submitted second time in January 2011 and statement made by respondents that drawings were so submitted is false and malafide. It is claimed that Shri Chavan by his letter dated 12th January 2011 has only informed that drawings had already been submitted. The applicant claims that respondent 2 Mr.Magnier, therefore, is making false and incorrect statement on oath even before this Court.

10. In K.Karunakaran v. T.V.Eachara Warrier (supra), the Hon’ble Apex Court has held that in a proceeding under section 340(1) of Cr.P.C., the reasons recorded in the principal case, in which a false statement has been made have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in an earlier proceedings. At an enquiry held by the Court therein, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the offence and whether it is also expedient in the interest of justice to take such action. The parties like present respondents may choose to place all their material before this court at this stage but then they are not estopped from disclosing it later during trial, in case prosecution is sanctioned by this court. Observations of this Court in this order are not detrimental and relevant during trial. The enquiry is only to afford a locus poenitentiae to a person at that stage. Only prima facie opinion is required to be reached by this court and challenge is required to be established during trial. In Pritesh v. State of Maharashtra (supra),  the Hon’ble Apex Court has observed that merely because power is given to the Court under section 340 of Cr.P.C., it does not mean that the Court should as a matter of course make a complaint. But once the Court decides to do so, it should record a finding to the effect that on the fact situation it is expedient in the interest of justice that offence should be further probed into. Absence of preliminary enquiry by the Court does not vitiate a finding reached and aim of preliminary enquiry, if held, is not to find out whether particular person is guilty or not. In Motu Proceedings Against R.Karuppan, Advocate (supra), the Hon’ble Apex Court has found that justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The common law pr0position is also appreciated by Hon’ble Apex Court in paragraph14 of this judgment and thereafter in paragraph15, law in India relating to offence of perjury as defined in section 191 and Chapter XI of I.P.C. is also noted. Hon’ble Apex Court has observed that unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which pollutes the judicial system. Hon. Court observes that if the system is to survive, effective action is the need of time.

11. In Emperor v. Padam Singh (supra), the Division Bench of Allahabad High Court has found that an express provision of law required defendant to confirm the truth of statement made by him in written statement and if that verification is found false, section 191 itself declares him a person giving false evidence. The meaning of word “evidence” in other sections may have different connotations but those words in section 191 and 193 have same meaning. In Emperor v. Ratanchand Dhannram (supra), plea of signing Darkhast when it was blank is held not sufficient to avoid penalties attached under section 193 of I.P The Division Bench has found that through .C. verification, Court is made to believe that statement of facts made are true and correct. In Queen Empress v. Mehrban Singh (supra), it has been held that essence of crime of perjury is not how it may injure the party to the litigation but how it may deceive or mislead the Court. Judgment of learned single Judge of Delhi High Court reported in Sanjeev Kumar Mittal v. State (supra) also considers these aspects and reiterates the same view. It has been found that it is the duty of the parties to disclose true and correct facts to the Court. The provisions of order VI rule 16 dealing with verification of pleadings are also looked into. It has also been observed that the person submitting false verification can be proceeded against in contempt and also for an offence of perjury. Reluctance of Court’s to prosecute for perjury is found to encourage parties to make false averments.

12. In the light of arguments, it is also necessary to refer to the judgments relied upon by Shri Rajadhyaksha, learned senior counsel for respondent Nos.1 and 2. The judgment of the Apex Court in Chajoo Ram v. Radhey Shayam, AIR 1971 SC 1367 shows that before sanctioning prosecution for perjury, the Court must be satisfied that there is prima facie case for deliberate falsehood on a matter of substance and that there is a reasonable foundation for the charge. The judgment reported in Santokh Singh v. Izhar Hussain, AIR 1973 SC page 2190 reveals that the High Court has to be cautious while ordering prosecution for such offence as frequent prosecutions often tend to defeat the purpose & therefore, only in glaring cases of deliberate falsehood where conviction is highly likely that the Court should direct prosecution. In K.T.M.S.Mohd and another v. Union of India, AIR 1992 SC 1831, the Hon’ble Apex Court has pointed out two conditions namely the Court must be of opinion that it is expedient in the interest of justice that enquiry should be made into offence and the offence must be in respect of document produced and/or given in the evidence in a proceeding of that Court. Same principle is reiterated in B.K.Gupta v. Damodar H. Bajaj, (2001) 9 SCC 742. Judgment in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 shows that the expediency is normally judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. Judgment in Rugmini Ammal v. V.Narayana Reddiar, AIR 2008 SC 895 also lays down that purpose of preliminary enquiry is to find out whether it is expedient in the interest of justice to order prosecution. In Patel Laljibhai Somabhai v. State of Gujrat, (1971) 2 SCC 376, the underlined purpose and the object of legislature in creating bar to direct cognizance of such grievance is found to be to save the accused persons from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of his adversary and also to avoid confusion which is likely to arise on account of conflicts between the findings of Courts in which forged documents are produced or false evidence is led and the conclusions of criminal courts dealing with the private complaint. In R.S.Sujatha v. State of Karnataka, 2011 (5) SCC 689, the earlier judgment reported in Pritish v. State of Maharashtra, AIR  2002 SC 236 pointing out the purpose of preliminary enquiry is cited with approval in paragraph11 thereof. In Mannala Sardarmal Jain v. Kishan Jodhraj Maharaj, AIR 1959 MP 264, standard of proof required in cases of perjury is looked into. In AIR 1957 AP 832 (In Re: Balabhadra Narayudu), the prosecution is found to have been sanctioned on an immaterial fact. In John Peter v. State, AIR 1953 TRAVCO 343, the purpose of prosecution is held to be not to satisfy private grudge of a litigant. In Keramat Ali v. Emperor, AIR 1928 Cal. 862, on facts the ordering of prosecution is found not expedient. In Vimala v. Ranjini Murugan, 1988 (2) Crimes 124, again it is found that purpose of such prosecution is not to assist adversary and not to further private revenge.

13. In Bhagirathibai v. Emperor, AIR 1926 Nag 141, reasonable possibility of conviction is found to be a decisive test. In Asgarali s/o Mulla Ibrahimjee Musalman v. Emperor, AIR (29) 1942 Nagpur 80, the intention of person charged with offence is held an essential ingredient. Judgments reported in Veerappa Shivappa Horadi v. Krishna Triyambak Deshpande, 1977 CRI.L.J. 1367, Anandi Prasad v. Emperor, AIR 1934 Oudh 65 also lay down same law. In Taj Mohammad v. Emperor, AIR 1928 Lah 125; Ramgobind v. Kind Emperor, AIR 1924 Patna 381; and Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd., 2010 (159) Com.Cases 545 (SC), same principles have been applied. However, this law is laid down while deciding the matter in challenge after finding by competent criminal court. There the orders passed by Court under section 340 of Cr.P were not .C.questioned. Yardsticks will be different when prosecution is being ordered under S. 340 & when challenge is to verdict delivered at the end of such prosecution. Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), the Hon’ble Apex Court has found that false statement in declaration by a company does not render its Chairman automatically guilty.

14. In Esher Singh v. State of Andhra Pradesh, AIR 2004 SC 3030, the Hon’ble Apex Court has considered proof required for establishing criminal conspiracy where challenge was to a conviction by a competent criminal Court. The question whether criminal conspiracy was proved or not needs to be appreciated in the light of evidence which comes before the criminal Court. In K.T.M.S.Mohd v. Union of India (supra), the Hon’ble Apex Court has, after considering the evidence on record, appreciated the same to find out whether appellant Nos.1 and 2 before it knew that third appellant had intentionally fabricated false evidence or had willfully submitted a false return before IT. The Hon’ble Apex Court has noted that this was not a case of complainant at all. This law also needs to be applied by a competent Court when matter goes to it for trial. In Kehar Singh v. The State (Delhi Admn.) AIR 1988 SC 1883, the controversy considered is again after regular trial and in the light of evidence adduced. In Dadasaheb Bapusaheb Naik v. State of Maharashtra. 1982 CRI.L.J. 856, the learned single of this Court has considered the standard of proof required to establish criminal conspiracy in a criminal appeal. In Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), the challenge has been considered after the judgment of this Court under section 482 of Cr.P.C. declining to quash criminal complaint.

15. In Maksud Saiyed v. State of Gujrat, 2008 (5) SCC 668 is again after judgment by High Court setting aside criminal prosecution and investigation. It has been found that Penal Code does not contain any provision for attaching vicarious liability to/on part of Managing Director or Director of the Company when the accused is company. The Magistrate, before whom complaint was filed, therefore ought to have examined whether complaint contained necessary material to make the Director personally liable. In Maharashtra State Electricity Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), same law has been followed and it was noted that there was no allegation that Chairman participated in or was managing arbitration proceedings. He was, therefore, held not liable for false statement made before the arbitral tribunal.

16. The facts presented to this Court reveal that the submission of drawings to DTL on 24 th December 2010 despite communication of restraining order on 14 th December 2010 is accepted by respondent 1 & 2. The fact that said submission of drawings was not pointed to this Court in a challenge presented to it & decided in winter vacation on the very same date or then in later proceedings till delivery of judgment therein on 11th January 2011 is not in dispute. This Court has to find out whether the respondents have given probable reasons for their inability to place said fact on record and impact, if any, of its nondisclosure.

17. The Managing Director of respondent No.1Shri Antoine Magnier is respondent No.2 in the present proceeding. His reply affidavit dated 30th April 2012 assumes importance. Apart from pointing out his heavy preoccupation, programme to leave India for his country for Christmas celebration, his affidavit also discloses that after receipt of purchase order from DTL, he had issued necessary oral orders to various departments to meet the purchase order requirements but to stop short of “selling” the product in dispute to DTL. He has expressly mentioned that he was aware of legal opinion given to Sergi by its lawyer in context of order of the trial Court dated 5 th February 2010. In this proceeding, we are not concerned with the said legal opinion. This affidavit, therefore, shows knowledge of the fact to respondent 1,2 & all concerned that product could not have been sold and all other steps were permitted. The said officer, thereafter in paragraph8.7 of that affidavit shows knowledge of order dated 9 th December 2012 preventing Sergi from taking any step whatsoever in relation to DTL purchase orders. This knowledge is acquired on 14 th December 2010. Seriousness & drastic nature of change brought about is well understood & hence, in affidavit, grievance is made by him about obtaining such an order ex parte. He, then, immediately instructed the Legal Manager to rush to Mumbai and coordinate with the Sergi lawyer to have that order vacated. Thus the urgent need felt by him to get that order vacated has also come on record. In the light of the earlier “oral orders” the change brought about in the situation by order dated 9th December 2010 has struck respondent No.1company and respondent No.2 and it made efforts to get that order vacated. However, the affidavit does not show any steps taken by either respondent No.1 or respondent No.2 to stop violation of latter order dated 9th December 2010 after 14th December 2010. The drawings/ designs have been submitted by Shri Chavan on 24 th December 2010 and he claimed ignorance of directions issued by the trial Court on 9 th December 2010. It is important to note that Shri Chavan is presently not in employment of respondent No.1. Its Legal Manager, who is respondent No.3 in the present proceeding is also not in employment. The affidavit filed by said Antoine Magnier, therefore, shows only oral directions issued by him on earlier occasion to see that the Court orders are not breached by actually selling the product to DTL. His affidavit discloses steps taken by him to get later order dated 9.12.2010 vacated as it altered the situation to the prejudice of respondent 1 , but then he has not taken any steps to prohibit its breach for violation. Whether this omission is accidental or deliberate is an issue which cannot be resolved in this proceeding. The law on point is well settled and this Court can only express prima facie opinion. Its conclusion is not binding when actually trial Court trial Court is competent criminal Court. This defence of oral order to stop “short of selling” and then the alleged later omission to issue instructions to others not to take any steps in the light of court order dated 9 th December 2010 itself appears to be doubtful. In any case, it may be the defence in criminal trial & burden to substantiate it is upon respondent Nos.1 and 2.

18. Shri Chavan, the exemployee of respondent No.1, in his affidavit has urged that on 24th December 2012, when he submitted drawings, he was not aware of order dated 9 th December 2010. His affidavit also shows that after the order of this Court dated 11 th January 2011, on 12th January 2011, he has submitted drawings. It is not his case that DTL demanded drawings twice. If the drawings were already submitted on 24th December 2010, there was no need to submit it again on 12th January 2011. The applicant has specifically come up with the contention that drawings were submitted only once. The respondents have not produced on record any communication with which drawings were submitted to M/s.DTL on 24th December 2010. If the drawings were already submitted, on 12 th January 2011 the respondents would have informed M/s.DTL that drawing were already submitted on 24 th December 2010. They could have also informed about the restraining orders, in ignorance of which, drawings were “inadvertently” submitted and its dilution or vacation by the High Court on 11 th January 2011. Such a disclosure would have been more desirable to show the bonafides of respondents in the matter. There is no attempt to point out to this Court the fact that submission of drawing in violation of interim directions was communicated by the respondents or by Shri Chavan to M/s.DTL.

19. If on 12th January 2012 Shri Chavan resubmitted the drawings, he ought to have or could have immediately informed his seniors/superiors about the first submission thereof already on 24 th December 2010. Thus the circumstances in which drawings were inadvertently submitted on 24th December 2010 would have then come on record in normal course of events. In that event, the respondents could have also pointed out that inadvertent submission to this Court by filing proper affidavit even though the appeal from order was disposed of on 11th January 2011. There is no such effort by the respondents. Though this is not a conclusive application of mind, in any way, at this stage it deserves to be given due importance.

20. As held by Hon’ble Supreme Court in Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, 2006 (5) SCC 282, the remedy of injunction is an equitable remedy and plaintiff, who does not approach the Court with clean hands or suppresses material facts, can be denied that relief. This judgment has been followed by learned single Judge of this Court in Harcharanjit Singh Thind (Capt.) v. Deeksha Thind, 2008 (3) Mh.L.J. 587 and by me in General Manager, Central Railway v. Mehmooda Shikshan and Mahila Gramin Bahuuddeshiya Sanstha, Nagpur, 2010 (6) Bom.C.R. 828: 2011 (2) LJS 168. Thus, if material facts are suppressed by a party invoking said jurisdiction, the relief can be declined to it. Here the affidavits filed by respondents show knowledge of court litigation and they accept that it was being fought on weekly basis since February 2010. They are also aware that only part of the relief claimed as interim relief by present applicant/ plaintiff was initially granted on 5 th February 2010 and all of a sudden it was modified drastically on 9 th December,2010. The emergent situation resulting therefrom after 14 th December and hence hurried steps taken by them to have that order vacated have also come on record. Thus, the respondent company has, all the while, attempted to demonstrate that order prohibiting it from taking any steps in the matter was unjust and needed forthwith vacation. In the process, they did not point out the fact that drawings were already submitted on 24 th December 2010. On the contrary, they have again resubmitted the drawings on 12 th January 2011 after High Court orders without reference to the earlier submission on 24 th December 2010. The applicant has urged that there is no resubmission on 12th January 2011 and the drawings were already submitted on 24 th December 2010.

21. It is not necessary, at this stage, to resolve this factual dispute & issue. Now the fact of submission of drawings on 24 th December 2010 is accepted. The respondents have not pointed out that after the said resubmission they have informed M/s. DTL that earlier submission of drawings on 24 th December 2010 was contrary to Court orders. In injunction jurisdiction, when a party applies for grant of temporary injunction or for its vacation, its highhanded or disrespectful conduct is definitely relevant. The fact that drawings were already submitted on 24th December 2010 ought to have been disclosed to this Court. This Court in that event would have applied its mind appropriately and taken a suitable view of the matter. The fact relevant in the exercise of that jurisdiction has not been pointed out to this Court. Actual impact the said fact may have on the findings recorded in the judgment dated 11 th January 2011 is again not very important. The suppression of relevant facts and therefore denial to other side to point out its impact or then inability of this Court to consider its effect is the only relevant aspect in this jurisdiction & at this juncture. The present respondents continued to question the modified order dated 9.12.2010 by urging that denial of an opportunity to it to take even preliminary steps was unjustified. Conclusion that a fact relevant for administration of justice was held back & this Court was prohibited from looking into a relevant event is, therefore, the most significant facet in the present matter. The contention of learned senior advocate Shri Rajadhyaksha that original plaintiff or present applicant who seeks the prosecution is trade rival of respondents or has no stake in contract with M/s. DTL is totally irrelevant.

22. Discussion above shows that a case for filing complaint under section 340 of Cr.P read with section 195(1)(b) for filing .C. misleading affidavit and for not disclosing true and correct facts to this Court is made out. Respondent No.2 Antoine Magnier as also Mr.Chavan have independently filed their affidavits in this proceeding unequivocally stating that nothing material relevant has been concealed. Same discloser is also made by respondent No.3Mr. Tyagi in affidavit filed for respondent 1 Company in Appeal from Order No.102/2011 which has been decided on 11 th January 2011. It is expedient & the events noted above also indicate after this preliminary inquiry, a need for investigation into alleged offences under Section 195(1)(b) of Cr.P. C. to see that facts vital in exercise of any jurisdiction are not suppressed by parties. Thus by such suppression as also by declaring that nothing material has been concealed from this Court, prima facie, an offence under section 193 read with section 191 or section 209 of Indian Penal Code, 1860 appears to have been committed by the respondents which deserves to be inquired into by the competent judicial magistrate.

23. The Registrar (Judicial) attached to this Court is, therefore, directed to draw & make appropriate complaint before competent Court having jurisdiction for offences mentioned in S. 195(1)(b) Cr.P.C., supra. The respondent No.1Company thorough its authorized or competent officer as also its director i.e. respondent No.2 shall file undertaking before this court personally undertaking to appear before the trial Court in the said proceeding on first date scheduled for their appearance by it & as per law. Said undertaking/ bond to be executed by them for said purpose in the sum of Rs.50,000/each shall be filed in the registry of this Court within three weeks from today & shall be sent to concerned court of Magistrate.

24. The trial Court to proceed further in the matter in accordance with law uninfluenced by the observations made by this Court above.

25. Civil Application No.1282/2011 is, accordingly, allowed to that extent.

26. Learned Senior Advocate Shri Rajadhyaksha, at this stage, seeks stay of the present order for a period of six weeks. The request is being strongly opposed by Shri Seervai, learned Senior Advocate for the applicant.

27. In the interest of justice, the request made by Shri Rajadhyaksha is accepted. The order is stayed for a period of six weeks. The interim order shall cease to operate automatically thereafter.

(B.P.DHARMADHIKARI, J.)

Sanjay Nanoskar, P.S.

Categories: Perjury Tags: ,

DELHI HIGH COURT- Falsehood in pleadings intolerable…PERJURY CrPC 340 is applicable

February 19, 2013 Leave a comment
Holding that the case before it was an “instance of how litigants make false averments of facts in the pleadings and raise untenable contentions with impunity” whereafter “litigation, on controversies supposedly arising out of these false averments are dragged on for years in the hope that the other side will succumb to buy peace” and “if the other side does not so settle, in the end, he is hardly compensated and remains a loser”, in a recently reported decision [SANJEEV KUMAR MITTAL v. STATE 2010 (174) DLT 214], Justice J.R. Midha of the Delhi High Court took survey of the rueful position of litigation standards in the country.
The High Court inter alia observed as under;

6.1. Inasmuch as the facts of this case are demonstrative and this Court cannot be oblivious to the problems afflicting the judicial system, I shall now examine certain general issues on how litigation with false claims is filed, or false defences are put forward, and then continues to remain pending, consuming the Court‘s time and resources. The result is that courts are overloaded and there is delay in disposal.

6.2. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Hon‘ble Supreme Court noted:

For many centuries, Indian society cherished two basic values of life i.e. ‘Satya‘ (truth) and ‘Ahimsa‘ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

6.3. In Padmawati and Ors v. Harijan Sewak Sangh, 154 (2008) DLT 411, the learned Single Judge of this Court (S.N. Dhingra, J.) noted as under:

6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.

9. Before parting with this case, I consider it necessary to pen down that one of the reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts. The Court imposed costs of 15.1 lakhs. Against this, Special Leave to Appeal (Civil) No 29197/2008 was preferred to the Supreme Court. On 19.03.2010, the Hon‘ble Supreme Court passed the following order:

We have heard learned counsel appearing for the parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed.

6.4. I agree with the findings by the learned Judge in Padmawati’s case (supra) and I would wish to add a few words. There is another feature which has been observed and it is of unscrupulous persons filing false claims or defences with a view that the other person would get tired and would then agree to compromise with him by giving up some right or paying some money. If the other party is not able to continue contesting the case or the Court by reason of falsehood falls into an error, the wrongsucceeds. Many times, the other party compromises, or at other times, he may continue to fight it out. But as far as the party in the wrong is concerned, as this Court noted in Padmawati’s case (supra), even if these litigants ultimately lose the lis, they become the real victors and have the last laugh .

6.5. Padmawati’s case (supra) was one where the wrongdoer was holding up delivery of possession. The present case, another species of the same genus, is where a party puts forward a false claim in order to entangle someone else‘s property in the hope that he can, with court delays and the needs of the other, one day, extract money for withdrawing the claim. The manner in which the case has been presented, and proceeded with, gives a clear impression that it is of this type.

6.6. If there is falsehood in the pleadings (plaint, written statement or replication), the task of the Court is also multiplied and a lis that could be decided in a short time, then takes several years. It is the legal duty of every party to state in the pleadings the true facts and if they do not, they must suffer the consequences and the Court should not hold back from taking action.

6.7. A similar sentiment had been expressed by the Karnataka High Court in A. Hiriyanna Gowda v. State of Karnataka, 1998 Cri.L.J. 4756:

1. The present application is filed under Section 340, Cr. P.C. and undoubtedly involves a power that the Courts have been seldom exercising. It has unfortunately become the order of the day, for false statements to be made in the course of judicial proceedings even on oath and attempts made to substantiate these false statements through affidavits or fabricated documents. It is very sad when this happens because the real backbone of the working of the judicial system is based on the element of trust and confidence and the purpose of obtaining a statement on oath from the parties or written pleadings in order to arrive at a correct decision after evaluating the respective positions. In all matters of fact therefore, it is not only a question of ethics, but an inflexible requirement of law that every statement made must be true to the extent that it must be verified and correct to the knowledge of the person making it. When a client instructs his learned Advocate to draft the pleadings, the basic responsibility lies on the clients because the Advocate being an Officer of the Court acts entirely on the instructions given to him, though the lawyer will not be immune from even a prosecution. If the situation is uncertain it is for his client to inform his learned Advocate and consequently if false statements are made in the pleadings the responsibility will devolve wholly and completely on the party on whose behalf those statements are made.

2. It has unfortunately become common place for the pleadings to be taken very lightly and for nothing but false and incorrect statements to be made in the course of judicial proceedings, for fabricated documents to be produced and even in cases where this comes to the light of the Court the party seems to get away because the Courts do not take necessary counter-action. The disastrous result of such leniency or indulgence is that it sends out wrong signals. It creates almost a licence for litigants and their lawyers to indulge in such serious malpractices because of the confidence that no action will result. To my mind, therefore, the fact that the petitioner has pressed in this application requires to be commended because it is a matter of propriety and it is very necessary at least in a few glaring cases that an example be made of persons who are indulging in such malpractices which undermine the very administration of justice dispensation system and the working of the Courts. This will at least have a deterrent effect on others.

5. It is true that the power that is now being exercised is seldom exercised, but I am firmly of the view that in the interest of the purity of the working the Courts that it is absolutely essential to take such corrective action whenever an instance of the present type arises.

6.8. A Division Bench of this court over two decades back in Rajendra Jaina Towers (P) Ltd. v. Delhi Development Authority 33 (1987) DLT 216 held as under:

27. All the statements in paragraph 11, to which I have referred, were material for the purpose of taking a decision in the case. As I have tried to show, they were deliberately made and carefully worded. Their object was to mislead and overreach the court. The perjury was daring and atrocious. Probably, Mr. Rajender Jain thought it was worth taking the risk because the courts are so reluctant to prosecute for perjury. That is the general impression which has caused perjury to become so rampant in our courts and resulted in vexatious litigation. It is clearly expedient in the interests of justice, that Mr. Rajender Jain be prosecuted for the statements made in paragraph 11 of the petition, which he has incorporated by reference in his affidavit.

The Court ordered the Registrar of this court to make a complaint in writing against Mr. Rajender Jain, for having committed offences under Sections 191, 192 and 193 of the Indian Penal Code to the Magistrate having jurisdiction.

6.9. If this Court were to go by a general impression, the position has not improved but only worsened. It is time to take appropriate action so that parties, when they file their pleadings, do so with a sense of responsibility and if averments therein, or any evidence in support, is found to be false, the wrongdoer is not able to escape the punishment prescribed by law.

6.10. The present case is a striking example of how the petitioner could file the petition without any fear, keep it pending, and disappear when he found the respondent did not succumb and exposed the petitioner. The non-appearance by the petitioner at this stage (27th April, 2010) appeared to be intentional and therefore a number of opportunities were given (11th May, 2010, 14th May, 2010, 17th May, 2010 and 18th May, 2010), yet the petitioner or his advocate did not appear. To have simply dismissed the petition for default and not taken action would be allowing them to escape. It has also been the experience that when falsehood has stood exposed, the party tenders an apology and the courts tend to let off and take no action. Such an approach emboldens others to do likewise.

6.11. On a related issue, in South Eastern Coalfields Ltd. v. State of M.P. (2003) 8 SCC 648 : AIR 2003 SC 4482, the Hon‘ble Supreme Court said:

“26 … In law, the term ‘restitution‘ is used in three senses; (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another.

6.12. In fact, restitution, which includes compensation, and levy of costs, is not sufficient where there is, in the pleadings before the Court, falsehood, concealment or reliance upon forged documents. There it also calls for triggering into motion the penal laws, i.e., making of a complaint under Section 340 Cr.P.C. The more important part is of punishment to prevent, in the first instance, litigants from making false averments before a court of law. While the punishment prescribed by law is deterrent, the probability of prosecution, and thereafter conviction, should also be sufficient to deter such conduct. 

6.13. A party, whether he is a petitioner or a respondent, or a witness, has to respect the solemnity of the proceedings in the court and he cannot play with the courts and pollute the stream of justice. It is cases like this, with false claims (or false defences) which load the courts, cause delays, consume judicial time and bring a bad name to the judicial system. This case is a sample where the facts are glaring. Even if they were not so glaring, once falsehood is apparent, to not take action would be improper.

6.14. The judicial system has a right and a duty to protect itself from such conduct by the litigants and to ensure that where such conduct has taken place, the matter is investigated and reaches its logical conclusion and depending on the finding which is returned in such proceedings, appropriate punishment is meted out. 

6.15. It is perhaps the general reluctance, as also noticed by the Hon‘ble Supreme Court in Swaran Singh v. State of Punjab, (2000) 5 SCC 668:

36. …… Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint….. that has made the situation reach such levels where pleadings contain false averments and parties make false averments with impunity in the hope that in all probability the opposite party will cough up something, and even if he does not, in the end he will have the last laugh, for a prosecution of perjury, although consciously committed and persisted in, will have a probability of punishment as good as nil. The gain far exceeds the risk.

6.16. In an effort to redeem the situation, not only realistic costs and full compensation in favour of the winning party against the wrongdoer are required, but, depending on the gravity of the wrong, penal action against the wrongdoers is also called for. Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens. Litigation caused by false claims and defences will come to be placed before the courts, load the dockets and delay delivery of justice to those who are genuinely in need of it. Let us then examine the procedures in this regard.

xxx

8.7. Making false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it must be treated as an offence. 8.8. Where a verification is specific and deliberately false, there is nothing in law to prevent a person from being proceeded for contempt. But it must be remembered that the very essence of crimes of this kind is not how such statements may injure this or that party to litigation but how they may deceive and mislead the courts and thus produce mischievous consequences to the administration of justice. A person is under a legal obligation to verify the allegations of fact made in the pleadings and if he verifies falsely, he comes under the clutches of law.

8.9. Consequently, there cannot be any doubt that if a statement or averment in a pleading is false, it falls within the definition of offence under Section 191 of the Code (and other provisions). It is not necessary that a person should have appeared in the witness box. The offence stands committed and completed by the filing of such pleading. There is need for the justice system to protect itself from such wrongdoing so that it can do its task of justice dispensation.

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Supreme Court: Wife cannot implicate one and all in Domestic Violence case…Quashed against 9 respondents

February 18, 2013 5 comments
Supreme Court of India
Ashish Dixit & Ors. vs State Of U.P. & Anr. on 7 January, 2013
Author: …………………..J.
Bench: H.L. Dattu, Chandramauli Kr. Prasad

, , , ,

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 43 OF 2013

(SPECIAL LEAVE PETITION (CRL.)NO.8522 OF 2010) ASHISH DIXIT & ORS. APPELLANTS VERSUS

STATE OF U.P. & ANR. RESPONDENTS O R D E R

1. Leave granted.

2. This appeal is directed against the judgment and order dated 05.07.2010 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No.8358 of 2008. By the impugned judgment and order, the High Court has refused to quash the proceedings initiated against the petitioners by the respondent no.2-wife, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity “the Act, 2005”).

3. In the petition filed by respondent no.2, apart from arraying her husband and her parents-in-law as parties to the proceedings, has included all and sundry, as

: 2 :

respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.

4. In a matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by respondent no.2 be confined to her husband as also her parents-in-law and should not have allowed the impleadment of respondent nos.4 to 12.

5. In view of the above, while allowing this appeal in part, we quash the proceedings as against appellant nos. 4 to 12 in Case No.240 of 2007. We direct the learned Chief Judicial Magistrate, Agra to proceed with the aforesaid case; only against the husband i.e. Shri Ashish Dixit, S/o. Padmakar Dutt Sharma, her father in law, Shri Padmakar Dutt Sharma, S/o.late Pt.Diwakar Dutt Sharma and Smt.Girja Dixit, W/o.Shri Padmakar Dutt Sharma, her mother in law.

: 3 :

6. We are of the opinion that the direction issued by the High Court, inter-alia, directing the appellants herein to appear before the Trial Court and seek bail is wholly unnecessary. …………………..J.

(H.L. DATTU)

…………………..J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI;

JANUARY 07, 2013.

Supreme Court:- IPC 498a, 304B were actuated by malice and ulterior motive for wreaking vengeance on the accused

February 13, 2013 Leave a comment

Supreme Court of India

Rajiv Thapar & Ors. vs Madan Lal Kapoor on 23 January, 2013
Author: J S Khehar
Bench: D.K. Jain, Jagdish Singh Khehar

, , , ,

“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.__174___ OF 2013

(Arising out of SLP (Criminal) No. 4883 of 2008)

Rajiv Thapar & Ors. …. Appellants

Versus

Madan Lal Kapoor …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on 30.11.1991. After her marriage, Dr. Monica Thapar got admission in a Post Graduate Diploma course in Gynaecology (DGO) at Medical College, Surat, in June 1992. Accordingly, she started working as a Resident at the aforesaid Medical College. At his own request, Rajiv Thapar, who was (and still is) a member of the Indian Revenue Services, was transferred from Ahmedabad to Surat. On 16.9.1992, while the husband and wife were living at Surat, Dr. Monica Thapar fell ill. For her treatment, she was admitted to Mahavir Hospital, Surat. She was diagnosed as suffering from Malaria. Having been treated for the same, she was discharged on 20.9.1992. Two days thereafter, Dr. Monica Thapar again fell ill on 22.9.1992. This time, she was taken to Medical College, Surat i.e., the hospital where she was herself working as a Resident. She was first examined by a radiologist, and thereafter, by Dr. Girish Kazi, a cardiologist. It was suspected, that she has a hole in her heart. Based on the aforesaid diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The said echo-cardiography confirmed the presence of a large hole in her heart. On the advice of doctors who attended on Dr. Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack on 26.9.1992. The same supposedly proved fatal.

3. The factum of death of Dr. Monica Thapar was conveyed to the immediate family of Rajiv Thapar, as well as to the family of the deceased. A decision was taken to cremate the dead body at Delhi. Accordingly, after embalming the body of Dr. Monica Thapar, it was transported by rail to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar including her father Madan Lal Kapoor (respondent-complainant herein) were present at the time of arrival of the body at Delhi.

4. Madan Lal Kapoor made a complaint to the Police Control Room alleging, that he suspected that his daughter had been poisoned. This suspicion was based on the fact, that the body had turned blue. On the aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of powers vested in him under Section 176 of the Code of Criminal Procedure (hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings. In the first instance, the body of the deceased was subjected to a post- mortem examination, for which the following Medical Board was constituted:-

(i) Dr. Bharat Singh, Medical Superintendent, Civil Hospital, Delhi.

(ii) Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi. (iii) Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital, New Delhi.

(iv) Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi.

The Medical Board came to the conclusion, that Dr. Monica Thapar had died of cardiac decomposition. The final opinion of the Medical Board, was recorded in a report dated 28.9.1992, in the following words:- “OPINION In view of the clinical reports submitted and post mortem findings observed, the Board of Direcors is of the opinion that, death is consequent to cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension. No definite opinion can be given about falciparm Malaria, histopathological assessment.

Viscera is preserved for chemical analysis as desired by SDM. Time since death is about 48 hours and is consistent with the history.”

(emphasis is ours)

During the post-mortem examination, samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken. These samples were sent for chemical examination to the Central Forensic Science Laboratory, New Delhi. The report of the Forensic Laboratory dated 9.2.1993, recorded the following conclusions:-

“SPECIFICATION OF THE ARTICLE CONTAINED IN THE PARCEL

1. Parcel contained:

(a) One wide-mouth bottle containing stomach, intestine with contents, Exhbt 1a.

(b) One wide mouth bottle containing liver, spleen & kidney, Exhbt 1b.

(c) One phial containing few drops blood, Exhbt 1c.

xxx xxx xxx

RESULTS OF ANALYSIS

The Exhibit nos. 1a, 1b and 1c gave negative tests for common poisons.”

It is therefore apparent, that the Central Forensic Science Laboratory, New Delhi, having analysed the samples from the stomach, intestine, liver, spleen, kidney and blood, concluded that the same did not contain any “common poison”.

5. Insofar as the inquest proceedings initiated by the Sub-Divisional Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are concerned, it would be relevant to mention, that Madan Lal Kapoor (the respondent-complainant herein) the father of the deceased, in the first instance, refused to record any statement before the SDM, Delhi, on the ground that he would record his statement only after the receipt of the post-mortem report. Even on the receipt of the post-mortem report, the said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record their statements before the SDM, Delhi, on the assertion, that the mother of the deceased knew the facts best of all, and as such, her statement needed to be recorded first of all. It was pointed out, that her statement could not be recorded immediately because she was in a state of shock. It may be noted, that neither the mother nor the brother of Dr. Monica Thapar appeared before the SDM, Delhi, to record their statements. Madan Lal Kapoor had sought time thrice, from the SDM, Delhi, to get the statement of his wife recorded. Madan Lal Kapoor, father of the deceased, however, eventually recorded his statement before the SDM, Delhi, even though the mother of the deceased had not appeared before the Magistrate to record her statement.

6. The SDM, Delhi, during the course of inquest proceedings, recorded the statements of the following accused persons:-

(i) Rajiv Thapar (husband of the deceased; appellant no. 1 herein).

(ii) Kusum Thapar (mother-in-law of the deceased; appellant no. 5 herein).

(iii) Sangeeta Thapar (wife of the brother-in-law of the deceased; appellant no. 4 herein).

In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria (a colleague of the deceased at Medical College, Surat). Insofar as the accusations and counter allegations are concerned, it is not essential to refer to the statements of any of the rival parties. It is however, appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the same is not available on the record of the case, reference thereto in the inquest report, is being extracted hereunder:-

“Statement of Mr. Pritu Dhalaria

Sh. Pritu Dhalaria stated that Monika Thapar was known to him from the date she got admission in the Medical College in June,

92. And he regards her as his elder sister. He further stated that both Monika and Rajeev were happy and living a happy married life. On 17th September, 1992, he came to know that Monika was ill and admitted in the Mahavir Hospital. In the evening of 17.9.1992, when he met Monika he came to know that she was suffering from Malaria. And on 24.9.1992, he came to know that she was admitted in the Urmil Heart Hospital. He further stated after Echo-Cardiography doctor declared that Monika was suffering from A.S.D. (Larger Hole in Heart) and pulmonary Hypertension. He stated that on 26.9.1992, at about 2.00-2.15 p.m., Monika’s situation became serious. And inspite of all attempts of doctors, she got heart attack and died on 3.30 p.m. He also stated that the MS of Civil Hospital, Surat, Dr. Khanna was present alongwith the other doctors at that time.”

(emphasis is ours)

7. The statement of Dr. Pritu Dhalaria fully coincides with the version expressed by the appellants-accused. That Dr. Monica Thapar had two bouts of illness. In the first episode, she was diagnosed as suffering from Malaria. She was treated for the same and discharged. Thereafter, she was diagnosed with a large hole in her heart, on the basis of an echo- cardiography. She died of a massive heart attack on 26.9.1992. At the time of her death, Dr. Khanna and other doctors of the Civil Hospital, Surat, were present.

8. The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the following conclusions:-

“Conclusion

Allegation levelled by Shri Madan Lal Kapoor, father of the deceased regarding harassment and dowry death, it appears that allegation are not correct in the light of the fact of Natural death in the statements the husband and in laws of the deceased produced photocopies of letters written by Sh. Madan Lal Kapoor and Rajiv Kapoor. Perusal of the letter shows that both the families enjoyed a normal happy relationship and not an abnormal and strained relation till the death of Monika.

Sh. Rajeev Thapar has produced copy of telephone Bill of residential phone shows the Telephone Cells are made to Madan lal phone No.574390 at Mohali Chandigarh on 17.09.92, 21.09.92, 24.09.92 and 25.09.92 during the course of illness of Monika

Sh. Rajeev Kapoor, the brother of the deceased well aware of the situation of Monika as per his letter dated 22nd September, 92 and at that time the families are enjoying a very good relationship. So it is not possible in these circumstances that Monkka was harassed by her in-laws. The few lines as under:-

“How are you Now? I hope by now you will have recovered from Malaria. We should have faith in God. Please give top priority to your health.

Off and on I go to Janakpuri, all are very nice there, very affectionate and very caring. You must be knowing that Sanjay Bhai Saheb have been promoted to the rank of Squadron Leader..

The brother is no likely to praise the family of his sister’s in-laws in case his sister is being harassed for dowry.

Statement of Sh. Pritu, Colleague of Mrs. Monika, also shows that Monika and Rajiv enjoyed a very happy and cordial relationship, which also shows that allegations of harassment does not appear to be correct. According to the statements given before me Monika stayed with her in-laws in Delhi only for 4-5 days. Hence the charged of harassment levelled does not appear to be correct. From the statement and evidence produced before me, it does not appear that she was being harassed. Report of Sh. S.K. Pathi M.d. Radiologist during the treatment of Monika.

“Mild Cardiac enlargement with dilated pulmonary vessels and evidence of Pulmonary Dedema. Advise: Echocardiography.”

Report of Dr. J.C. Damaswala M.D. during the treatment of Monika.

“Large osteum secundum ASD Measuring 3.0 cm with Ltd. To Rt. Shunt on colour flow and conventional Doppler.”

Death certificate issued by Urmil Heart and Lung Centre:-

Cause of Death: Cardio-Respiratory arrest due to Malaria ASD C Pulmonary Hypertension.

The post-mortem of the dead body revels that death is due to Cardiac de-compensation due to enlarged atrial Septal Defect and pulmonary Hypertension (As per board of doctors)

The CFSL report of the viscera reveals negative tests for common poison.

Inquest proceedings started on 27.09.1992 and till now mother of the deceased has not come forward to give her statement. Father of the deceased visited SDM office three times but never brought his wife for recording statement. Now there is no point in waiting for her statement when death is proved natural and beyond any doubt.

The case of the death is clearly determined to be natural inquest proceedings under Section 176 Cr.PC may be closed as foul play in the death of Smt. Monika Thapar is completely ruled out and the allegation made in the PCR called on 29.09.1992 have not been turned out by the evidence on record. Sd/-

Sub-Divisional Magistrate, Kotwali, Delhi.

6.7.1993”

A perusal of the inquest report reveals that the SDM, Delhi, concluded that “… foul play in the death of Smt. Monika Thapar is completely ruled out…” The SDM, Delhi, also held “…death is proved natural and beyond any doubt…”

9. On 29.9.1992, Madan Lal Kapoor (the respondent-complainant), father of the deceased Dr. Monica Thapar, filed a complaint before the Commissioner of Police, Delhi. Prior thereto, on the same issue, he had filed similar complaints before the Police Commissioner, Surat, Police Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy. Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura, New Delhi. The aforesaid complaints had been filed by the father of the deceased praying for registration of a First Information Report, interalia, under Sections 304B and 498A of the Indian Penal Code. Since the complaints filed by Madan Lal Kapoor did not bear any fruitful result, he filed a criminal complaint before the Metropolitan Magistrate, Delhi on 6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning. Relevant portion of the complaint made by Madan Lal Kapoor (the respondent- complainant) is being extracted hereunder:-

“10. That in the second week of September, 1992, accused no.1 Rajiv Thapar called his mother from Delhi, on the false pretext that Monika was pregnant and needed care. As a matter of fact, it was in the pursuance of the conspiracy hatched by the accused themselves to do away with the life of Monika in some mysterious manner and on the pretext the mother of Rajiv Thapar accused no.1 was called from Delhi, and sometimes thereafter on that pretext she was admitted in some hospital of their choice, where the conspiracy could be implemented.

11. That on 26.9.1992 the complainant enquired on telephone from accused no.2 about the welfare of his daughter but now she was quite alright and there was nothing worry about her. The complainant enquired from him about the details of her illness and hospital where she was admitted, but accused no.2 did not disclose as the voice of Mr. Thapar accused no.2 was some what in co-herent on the phone, the complainant suspected something wrong, when the complainant told him that he along with his wife was going to Surat, accused no.2 told him that there was no need of going and everything was alright, but when the complainant told him in clear term that he apprehended something wrong regarding the illness of his daughter, on which accused no.2 told the complainant on phone that Monika had expired.

12. That accused no.2 in conspiracy with his co-accused did not disclosed the kind of illness, of the treatment she was given with a criminal intention that the complainant and his wife may not able to see their daughter and give her proper treatment. Mrs. Monika was not suffering from any disease. Of course, due to constant harassment, torture, physical and violent and mental torture, her health had broken down and she fell ill. Her death was due to constant torture for not meeting the illegal demand of a Maruti Car.

13. That the dead body of Monika was brought to Delhi under mysterious circumstances, no permission was obtained for taking dead body from Surat to Delhi in the train.

14. That the complainant and his wife reached Delhi and saw some poisonous substance had been administered to her, on this report of the complainant, the post-mortem was conducted at Delhi.

15. That the complainant was moved hell and earth in the matter. He has given complaint to police Commissioner, Surat. Deputy Commissioner, Athwa Crime Women Cell, South, Moti Bagh, Nanakpura, New Delhi, Police Officer Incharge, Umra , Police Station, Athwa Lines, Surat and another authority; but no action has been taken, even the copy of the Post Mortem Report has not been supplied to the complainant.

16. That the death of Mrs. Monika took place within a year of her marriage under mysterious circumstances on account of demand of dowry which demand was not met and thereafter she was tortured mentally and physically and leading to her illness and in that condition she was administered some poisonous matter. The accused have committed serious offences under Sections 304B/120B/498A/109 I.P.C. They be tried according to law and convicted.

Sd/-

Dated 6.7.93 Madan Lal Kapoor Complainant”

(emphasis is ours)

10. The complaint extracted above, reveals mere aspersions, based on suspicion. The complaint did not express any concrete fact disclosing how the appellants-accused were responsible for having taken his daughter’s life. In fact, the narration of facts hereafter reveal, the shifting stance of the father of the deceased, about the cause of his daughter’s death. On 24.5.1995, Madan Lal Kapoor (the respondent-complainant) examined himself and his son Rajiv Kapoor before the Metropolitan Magistrate, Delhi in order to substantiate the allegations levelled by him in respect of the unnatural death of his daughter Dr. Monica Thapar. Based on the statements made by Madan Lal Kapoor (the respondent-complainant) and his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated 24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi, while summoning the accused, recorded the following observations:- “It is further alleged that at the time of her death she was doing Diploma in Gynaecology in territories at Surat where his son in law was employed. The complainant did not receive any telephone call either from his daughter or son in law and he therefore rang up to Ramesh Thapar at Delhi to enquire about the welfare of his daughter and Ramesh Thapar told him on telephone that his wife Kusum Thapar had been called to Surat to look after his daughter as she was said to be pregnant but subsequently she was aborted. The complainant enquired from him as to the particulars of the hospital where she was admitted and what was the ailment she was suffering from, she replied that her daughter was quite all right and he should not worry about her welfare again insisted to given particulars of the hospital and the complainant suspected that her in-laws were not behaving with her properly and were harassing, therefore, he insisted that he himself and his wife shall go to Surat and he told him that he suspected some foul play in the matter on which Ramesh Thapar told him from Delhi that his daughter Monika has already expired, and he enquired as to where she will be cremated. The accused brought the dead body of his daughter from Surat to Delhi but they did not allow him and his family members to see the dead body but on their insistence, they saw the dead body of his daughter and he saw that the face and mouth of his daughter was blue. He suspected that her daughter has been given some poisonous matter, as a result of which she had died. He informed the police and the police came and got the post mortem of the dead body conducted, but thereafter nothing was done by police in this matter. He sent a registered letter to the Police Commissioner, Delhi and he went to Surat and filed a complaint before the Police Commissioner but nothing was done. The complainant suspect that his daughter has been admitted because his daughter had not brought sufficient dowry according to the status and had also failed to fulfill the demands of above named accused persons of bringing dowry and Maruti Car and cash.

I have carefully considered the argument put forward by Ld. Counsel for complainant. I have also carefully gone through the complaint and have carefully considered the preliminary evidence adduced by the complainant in support of his case, and from the material on record in my considered opinion, there are sufficient grounds for proceedings against all the accused persons for committing offence punishable u/s. 304B/498A/406/120B IPC.

Accordingly, I order that accused Rajiv Thapar, Ramesh Thapar, Sangeet Thapar and Mrs. Kusum Thapar be summoned for 19.12.1995 on filing of PF.”

11. The appellants assailed the aforesaid summoning order dated 24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the High Court of Delhi (hereinafter referred to as, the High Court). The challenge raised was primarily on the ground, that Madan Lal Kapoor (the respondent- complainant) had suppressed vital material, in his complaint. It was alleged, that the complainant did not disclose the particulars of the post-mortem examination, the report of the Central Forensic Science Laboratory, as also, the inquest report. The High Court dismissed the aforesaid petition summarily on the premise, that the same had been prematurely filed. Accordingly, liberty was granted to the appellants to move the trial Court, if they were so advised, for seeking a recall of the summoning order (dated 24.8.1995). Immediately, on the disposal of the petition by the High Court, the appellants moved an application before the Metropolitan Magistrate, Delhi, praying for a recall of the summoning order dated 24.8.1995. The aforesaid application was dismissed by the Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of the opinion that at this stage, there is no ground to review or recall the order dated 24.8.1995 passed by my L.D. Predecessor, whereby he summoned the accused for the above stated offences after taking cognizance…”

12. Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary evidence. Based thereon, and having formed an opinion, that there was sufficient material to proceed against the accused under Sections 498, 496, 304B read with Sections 120-B of the Indian Penal Code, the Metropolitan Magistrate, Delhi, committed the case to the Court of Sessions, as the offence under Section 304B is exclusively triable by a Court of Sessions.

13. While examining the matter further, with the pointed object of either discharging the accused (under Section 227 of the Cr.P.C.) or framing charges against them (under Section 228 of the Cr.P.C.), the Additional Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the respondent-complainant) had not brought the following record/material/documents to the notice of the Metropolitan Magistrate, Delhi:-

(i) The post-mortem report dated 28.9.1992.

(ii) The inquest report dated 6.4.1993.

(iii) The correspondence made by the respondent and his son. The Additional Sessions Judge, Delhi also felt, that the Metropolitan Magistrate, Delhi, had not fully complied with the provisions of Section 202 of the Cr.P.C. (requiring him to enquire into the case himself). Therefore, the Additional Sessions Judge, Delhi examined the allegations made in the complaint in conjunction with all of the aforesaid material.

14. Since the learned counsel representing Madan Lal Kapoor (the respondent-complainant) had raised an additional plea (before the Additional Sessions Judge, Delhi), that the deceased was also suspected of having been strangulated to death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of the Medical Board, which had conducted the post-mortem examination). The Additional Sessions Judge, Delhi, sought clarifications on the allegations of strangulation, from the two doctors. The Court also recorded the statement of Dr. Amit Banerjee.

15. The Additional Sessions Judge, Delhi then heard detailed arguments on charge. Upon consideration, the Additional Sessions Judge, Delhi, recorded detailed findings, which are being summarized hereunder:- (i) The inquest proceedings conducted by the SDM, Delhi, which interalia contained the broad facts of the married life of the deceased, were inconsistent with the theory of harassment extracted in the complaint.

(ii) The accused Rajiv Thapar, husband of Dr. Monica Thapar (deceased) had been seeking medical advice, and had been getting the deceased’s medical treatment at Surat, whereupon it came to be discovered, that she had a large hole in her heart.

(iii) The Medical Board which conducted the post-mortem examination on the body of the deceased, confirmed the conclusion certified by Urmil Heart and Lung Centre, Surat, that her death occurred because of cardiac de-compensation, and that Dr. Monica Thapar had died a natural death.

(iv) The plea of strangulation raised on behalf of the complainant was held to be unsubstantiated consequent upon the clarification rendered by Dr. L.T. Ramani and Dr. Amit Banerjee.

(v) The post-mortem report and the Central Forensic Science Laboratory’s report, which recorded a negative opinion on poisoning, were taken into consideration to conclude, that the death of Dr. Monica Thapar was not due to poisoning.

(vi) The statement made by Dr. Pritu Dhalaria, a colleague of the deceased at the Medical College, Surat, referred to in the inquest proceedings (relevant portion extracted above), was relied upon to disbelieve the theory of foul play, in the death of Dr. Monica Thapar.

(vii) Based on the facts recorded in the inquest report, as also in the statement of Dr. Pritu Dhalaria, that Dr. Monica Thapar had died after her admission and treatment in the Urmil Heart and Lung Centre, Surat, it was deduced, that Rajiv Thapar, the husband of the deceased could have neither strangulated nor poisoned the deceased, while she was admitted for treatment at the Urmil Heart and Lung Centre, Surat.

Based, interalia, on the aforesaid evaluation of the complaint filed by Madan Lal Kapoor (the respondent-complainant), the Additional Sessions Judge, Delhi concluded, that no prima facie case was made out against the appellants/accused either under Section 304B of the Indian Penal Code or under Section 498 of the Indian Penal Code. The Additional Sessions Judge, Delhi, accordingly discharged the appellants/accused by an order dated 7.8.1999.

16. Dissatisfied with the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant) filed a Criminal Revision Petition (bearing no. 42 of 2000) in the High Court. The aforesaid Criminal Revision Petition was dismissed in default on 11.8.2005. The order dated 11.8.2005 was assailed through a Special Leave Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court. The aforesaid Special Leave Petition was allowed by this Court on 31.8.2007. The matter was remanded back to the High Court for adjudication on merits. It is thereupon, that the High Court passed the impugned order dated 8.5.2008, setting aside the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi. The instant order dated 8.5.2008 is the subject matter of challenge in the present appeal.

17. A perusal of the order of the High Court would reveal that the Additional Sessions Judge, Delhi, had primarily relied on certain observations made in the judgment rendered by this Court in Satish Mehra Vs. Delhi Administration, (1996) 9 SCC 766:-

“15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself”

Madan Lal Kapoor (the respondent-complainant), before the High Court, had relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, to contend that the judgment relied upon by the Additional Sessions Judge, Delhi, having been overruled, had resulted in an erroneous conclusion. For the same proposition, reliance was placed on the judgment of this Court in Suresh Kumar Tekriwal Vs. State of Jharkhand, (2005) 12 SCC 278. On behalf of the complainant, reliance was also placed on the decision in State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, to contend, that only the material placed on record by the prosecution, could be gone into at the time of framing charges. And if, on the basis of the said material, the commission of the alleged offence was prima facie made out, the charge(s) was/were to be framed. At the stage of framing of charges, it was submitted, that the requirement was not to determine the sufficiency (or otherwise) of evidence to record a conviction. For this, reliance was placed on State of M.P. Vs. Mohanlal Soni (2000) 6 SCC 338, wherein this Court had concluded, that the requirement was a satisfaction, that a prima facie case was made out. On behalf of Madan Lal Kapoor, reliance was also placed on State of A.P. Vs. Golconda Linga Swamy (2004) 6 SCC 522, to contend that at this stage, meticulous examination of the evidence was not called for.

18. As against the submission advanced on behalf of Madan Lal Kapoor (the respondent-complainant), the appellants/accused contended, that the Court was justified in considering the material on the record of the case, and on the basis thereof, to arrive at a just and reasonable conclusion. In this behalf, it was averred that the post-mortem report, the report of the Central Forensic Science Laboratory, the inquest proceedings recorded by the SDM, Delhi, and the letters addressed by the family members of the complainant (duly noticed in the inquest proceedings), were a part of the record of the case, and as such, were to be taken into consideration while passing the orders contemplated under Sections 227 and 228 of the Cr.P.C. The submission advanced on behalf of Madan Lal Kapoor (the respondent- complainant) before the High Court, was accepted. The High Court arrived at the conclusion, that the Additional Sessions Judge, Delhi had erroneously placed reliance on the decision rendered by this Court in Satish Mehra Vs. Delhi Administration (supra), which had already been overruled by the judgment rendered by a larger Bench in State of Orissa Vs. Debendra Nath Padhi (supra).

19. While considering the contention advanced on behalf of the appellants/accused, the High Court concluded, that the material/documents/record which the complainant was placing reliance on, did not fall within the ambit and scope of the term “record of the case” contained in Section 227 of the Cr.P.C. According to the High Court, the record of the case referred to in Section 227 of the Cr.P.C. was only such record, documents and articles which, on consideration by the Magistrate, are sent to the Court of Sessions, consequent upon passing an order of commitment. The material and documents relied upon by the appellants/accused in the present controversy would, therefore, not fall within the zone of consideration at the hands of the Court of Session under Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the behest of the appellants/accused were declined. For the aforesaid reasons, the High Court accepted the Criminal Revision Petition filed by Madan Lal Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly quashed. The parties were accordingly directed to participate in the further proceedings before the Court of Sessions.

20. We have considered the submissions advanced at the behest of the rival parties. We are of the view, that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 of the Cr.P.C. specially because the Additional Sessions Judge in his order dated 7.8.1999, had concluded, on the basis of the material relied upon by the accused, that no case was made out against the accused. This according to learned counsel, was permissible in view of the inherent jurisdiction vested in the High Court under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being extracted hereunder:-

“482. Saving of inherent power of High Court

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”

The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice. This Court had an occasion to examine the matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent-complainant), wherein it was held thus:-

“29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.”

(emphasis is ours)

Recently, this Court again had an occasion to examine the ambit and scope of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & Ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 of the Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed, that under Section 482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 of the Cr.P.C. in the facts and circumstances of this case.

21. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.

24. The complaint made by Madan Lal Kapoor (the respondent-complainant) proceeds on the assumption, that his daughter Dr. Monica Thapar was administered poison. The said assumption was based on the fact, that the respondent-complainant, (as also the members of his family), found the body of their daughter had turned blue when they laid their eyes on it for the first time after her death. The motive disclosed in the complaint is non- cordiality of relations between the deceased Dr. Monica Thapar, and the family members of her husband (the appellants herein), on account of non- fulfillment of dowry demands. Insofar as the allegation, that the appellants had poisoned Dr. Monica Thapar to death is concerned, the appellants have placed reliance on the post-mortem report dated 28.9.1992, chemical analysis findings recorded in the Central Forensic Science Laboratory’s report dated 9.2.1993, the inquest report dated 6.7.1993, and the order passed by the Additional Sessions Judge, Delhi, dated 7.8.1999. It is clear, that Madan Lal Kapoor (the respondent-complainant), was associated with the investigative process from the very moment the body of Dr. Monica Thapar arrived at Delhi. It was at his instance, that the post- mortem examination was conducted. The body of the deceased, after the same was subjected to the post-mortem examination, was handed over jointly to Madan Lal Kapoor (the father of the deceased) and to Rajiv Thapar (the husband of the deceased). The cremation of the body of Dr. Monica Thapar was carried out jointly by the two families. A high level Medical Board, constituted for conducting the post-mortem examination, in unequivocal terms returned a finding, that “cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension” was the cause of Dr. Monica Thapar’s death. It would be pertinent to notice, that samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken for forensic examination in order to verify the allegation of poisoning levelled by Madan Lal Kapoor. The Central Forensic Science Laboratory, New Delhi, in its report dated 9.2.1993 negatived the aforesaid allegation by concluding, that the samples did not indicate the presence of any common poisoning substance. Relying on the inquest report dated 6.7.1993, rendered by the SDM, Delhi, it was sought to be asserted, that echo-cardiography conducted at the Urmil Heart and Lung Centre, Surat, disclosed the presence of a large hole in Dr. Monica Thapar’s heart. Even according to the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had suffered a massive heart attack, and had died at the said hospital on 26.9.1992. It was the submission of the learned counsel for the appellants, that the aforesaid material is evidence of sterling quality which was sufficient to demonstrate, that there was not the remotest possibility, that the trial against the appellants would lead to their conviction.

25. The evidence, relied upon by the appellant has not been contested or refuted by Madan Lal Kapoor (the respondent-complainant), even though he was aware of the same when he filed the complaint. During the course of the proceeding before the committing Magistrate, and even before Sessions Court and the High Court, the appellants had placed emphatic reliance on the material referred to above. The same remained unrefuted in the pleadings filed on behalf of Madan Lal Kapoor. During the course of hearing at the stages referred to above, the veracity of the documents/material referred to above was not contested. The aforesaid position has subsisted even before this Court. It was accordingly submitted on behalf of the appellants, that even if trial is allowed to proceed against the appellants, at the culmination thereof, it would be impossible to return a finding of guilt against any of the accused.

26. According to the learned counsel for the appellants, the material in the nature of the post-mortem report, the Central Forensic Science Laboratory’s report, as also the inquest report, would be sufficient to exculpate the appellants from the allegations and accusations levelled in the complaint.

27. We are one with the aforesaid submission. From the documents/material relied upon by the appellants, for exactly the same reasons as have been projected on behalf of the appellants, we are satisfied to conclude, that the death of Dr. Monica Thapar was not caused by poisoning. Merely because her body had turned blue, when it arrived at Delhi, in our view, is not a sufficient basis to infer that she had been poisoned to death. In fact material relied upon by the appellants is sufficient to condemn the factual basis of the accusation as false.

28. It also needs to be noticed, that Madan Lal Kapoor (the respondent- complainant) took a summersault before the Additional Sessions Judge, Delhi by alleging, that Dr. Monica Thapar had been strangulated by the appellants, (even though the assertion in the complaint was, that she had been poisoned to death). To determine the veracity of the allegation of strangulation, as the cause of her death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, New Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi (members of the Medical Board which had conducted the post-mortem examination) to clarify the altered accusation levelled by Madan Lal Kapoor. The aforesaid doctors, as is apparent from the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, opined in the negative. They affirmed, that the death of Dr. Monica Thapar had not been caused by strangulation. We are therefore satisfied to affirm, that the death of Dr. Monica Thapar has not been shown to have been caused by strangulation. On an overall examination of the matter, we have no other option, specially in the absence of any submission to the contrary, but to conclude, that the material relied upon by the appellants would lead to the indubitable conclusion, that Dr. Monica Thapar had not died on account of having been strangulated.

29. We shall now advert to the allegation made in the complaint by Madan Lal Kapoor, that there was non-cordiality of relations between the deceased Dr. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in consistent and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as “very affectionate and very caring”. The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint.

30. Even though the statement of Dr. Pritu Dhalaria has been relied upon by the SDM, Delhi in the inquest report, which completely knocks out all the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are of the view, that it would be improper to make any reference thereto in deciding the present controversy. Reliance on the statement of Dr. Pritu Dhalaria would be permissible only after the same is recorded by a court on oath, whereupon, he has to be subjected to cross-examination. Only then, his statement would acquire credibility for reliance. Any fact situation based on the oral testimony, by one or the other party, cannot be the basis of a determination, akin to the one in hand.

31. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory’s report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.

32. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.

33. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.

…………………………….J.

(D.K. Jain)

…………………………….J.

(Jagdish Singh Khehar)

New Delhi;

January 23, 2013.

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