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CALCUTTA HC:- Coming with unclean hands – disqualifies litigant from obtaining any relief

September 24, 2014 Leave a comment

“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

Pls refer the entire Judgment below

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side

PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE

CRR NO. 999 OF 2006

Md. Ashiruddin & Anr.
Vs.
State of West Begal & Anr.

For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir

For the State : Mrs. Krishna Ghosh

HEARD ON: 18.03.2008.

JUDGMENT ON:25.03.2008

KALIDAS MUKHERJEE, J.:

1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.

2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.

3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.

4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.

5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.

6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-

“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”

7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.

8. Let a copy of this order be sent to the learned Court below immediately.

9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.

( Kalidas Mukherjee, J. )

SC: SC: dowry law the most misused, abused law in India. Police shld follow 9 point checklist as per 41 crpc

July 3, 2014 2 comments

The Supreme Court on Wednesday said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.

Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of Criminal Procedure Code“.

Section 41 lays down a nine-point check list police to weigh the need to arrest after examining the conduct of the accused, in cluding possibility of his absconding.

If police arrested the accused, “the magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction…will authorize detention,“ the bench bench of Justices C K Prasad and P C Ghose said. It also said that this checklist for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and nonbailable offence, which made grant of bail to the accused a rarity in courts.

But the court singled out the dowry harassment cases as the most abused and misused provision, though the legislature had enacted it with the laudable object to prevent harassment of women in matrimonial homes.

Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harass

ment cases in India in the last few years. “The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives,” he said.

“The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” he said.

or long now, concerns have been expressed about stringent anti-dowry laws being misused by some women to harass or blackmail their in-laws. These apprehensions have not only been expressed by courts, women’s activists too have acknowledged that such misuse is not unknown. It was, therefore, necessary for the law to take this reality into account.

The apex court’s order does just that. Automatic arrest was one of the provisions that lent itself most to abuse and making it mandatory for a magistrate to sanction arrest should help curb this abuse of law. Beyond that, there’s a lesson for all of us – social ills can’t be eliminated just by enacting laws, as India tends to do. Society as a whole needs to join the movement against them.

Pls find the judgment below:-

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

 

Leave granted.

 

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

 

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

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

(a)x x x x x x

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

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

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

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

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

 

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

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

 

X x x x x x

 

From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.

 

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

 

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:

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

 

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

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

 

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

 

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:

All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;

The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

 

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years; whether with or without fine.

 

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

 

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

 

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

 

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

 

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 

NEW DELHI,
July 2, 2014.

 
———————–
21

 

 

 

 

Categories: 498A, 498A, Anticipatory Bail, NCRB Tags: , , ,

Bombay HC- Possibility of false implication by Wife cannot be ruled out, hence Anticipatory Bail Granted.

Another order from Justice. M. L. Tahilyani on false case by wife….

“I have gone through the First Information Report and police papers, particularly the spot panchanama.   Spot  panchanama does not indicate that the signs of kerosene were found on the spot.  Nothing incriminating was seized from the spot   by   the   police.     This   indicates   that   probably   no   such incident had occurred.

5. I have also gone through the Medical Report.  The Medical   Officer   has   not   stated   that   the   clothes   of   the  complainant were smelling kerosene when she was examined. There was no serious injury on her body.  Possibility of false
implication cannot be ruled out.””

Continue to read full order

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
CRIMINAL APPLICATION (ABA) NO.269 OF 2014

(Charansingh Jaising Rathod and others ..vs.. The State of Maharashtra, through PSO, PS Digras,
District Yavatmal)
­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
Office Notes, Office Memoranda of Coram,

Court’s or Judge’s orders appearances, Court’s orders of directions and Registrar’s orders
­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
Shri J.B. Kasat, Advocate for the applicants,
Mrs. Rashi Deshpande, Addl.P.P. for the non­applicant/State.

CORAM :  M.L.TAHALIYANI, J.

DATED  :  16­06­2014

Heard   learned   Counsel   Shri   J.B.   Kasat   for   the  applicants   and   learned   Additional   Public   Prosecutor   Mrs.
Rashi Deshpande for the non­applicant/State.

2. The   complainant   was   married   to   one   Manik Charansingh   Rathod   on   11­12­2013.     It   was   intercaste  marriage.  It appears that the family members of Manik were against the marriage.   It further appears that there was a
dispute in the family and therefore, a criminal case for the offence punishable under Section 498­A read with Section 34
of the Indian Penal Code was lodged by the complainant. Thereafter the complainant was staying on rent in the house
of Shri Shahade at Yavatmal along with her mother.

3. The incident  had occurred on 05­5­2014.    The complainant was going to the house of Postman at the time of  incident.     It   is   alleged   that   the   applicants   had   poured kerosene on her while she was proceeding to the house of postman.   She had lodged report at Police Station for the offences punishable under Sections 285 and 323 read with Section 34 of the Indian Penal Code.  It appears that later on Section 307 of the Indian Penal Code has also been added.

4. I have gone through the First Information Report and police papers, particularly the spot panchanama.   Spot  panchanama does not indicate that the signs of kerosene were found on the spot.  Nothing incriminating was seized from the
spot   by   the   police.     This   indicates   that   probably   no   such incident had occurred.

5. I have also gone through the Medical Report.  The Medical   Officer   has   not   stated   that   the   clothes   of   the  complainant were smelling kerosene when she was examined. There was no serious injury on her body.  Possibility of false
implication cannot be ruled out.  Hence, I pass the following order.
The applicants be released on bail in the sum of Rs.10,000/­   (rupees   ten   thousand)   each   with   one   solvent  surety in the like amount for each of them, in the event of their arrest in First Information Report No. of 156/2014 of
Digras   Police   Station,   District   Yavatmal,   for   the   offences punishable under Section 285, 323, 354­A and 307 read with
Section 34 of the Indian Penal Code.

The   applicants   shall   attend   the   office   of   the  Investigating   Officer   as   and   when   required   by   the  Investigating Officer till the investigation is completed.
The application stands disposed of accordingly.

JUDGE
pma

SC- Family members acquitted u/s 498a and 304B of IPC.

What is a little disturbing about this case is that it is illustrative of the slow movement of the wheels of criminal justice delivery. The dowry death took place on 6th September, 1989. The Trial Court pronounced its decision on
3rd December, 1991 within two years of Janki Devi’s death.

The first appeal was decided by the High Court on 5th July, 2004 which is more than twelve years later. A petition for
special leave to appeal was filed in this Court in 2004 and  leave was granted only after a gap of four years in 2008.
Thereafter this appeal was listed for hearing as if it is an  appeal of 2008 rather than a petition of 2004 thereby wiping
away four years of its age in this Court. And even then, it has taken another five years for its disposal, making a total of nine years spent in this Court. It is high time those of us who are judges of this Court and decision makers also become policy makers.

 

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1022 OF 2008

Bhola Ram …..Appellant
Versus
State of Punjab …..Respondent
J U D G M E N T
Madan B. Lokur, J.

1. The question for consideration is whether the appellant  Bhola Ram was rightly convicted by both the Trial Court and
the High Court for having caused the dowry death of Janki  Devi, an offence punishable under Section 304-B and Section
498-A of the Indian Penal Code (IPC). In our opinion, Bhola Ram deserves an acquittal since there is no evidence inculpating him.

The facts:
2. Darshan Ram married Janki Devi on 30th June, 1986  after which they resided in Darshan Ram’s house in village
Mehma Sarja. The couple has a female child.

3. At the time of their marriage, Janki Devi’s family gave  dowry within their means to Darshan Ram and his family.
But according to the prosecution, his brothers Parshottam  Ram and Bhola Ram (the appellant) and his sister Krishna
Devi and mother Vidya Devi demanded more dowry from time to time.

4. Janki Devi’s family was unable to fulfill the additional  demands for dowry and, according to the prosecution, she
was humiliated and cruelly treated by Darshan Ram’s family  for their incapacity. Being unable to face the harassment,
cruelty and humiliation meted out by Darshan Ram’s family,  Janki Devi consumed poison and thereby committed suicide
on 6th September, 1989.

5. About one and a half months before her death, a  demand for Rs. 10,000/- was made by Janki Devi’s in-laws for
the purchase of a car. Janki Devi’s father PW-2 Nath Ram  borrowed this amount from PW-1 Nirbhai Singh for meeting
the dowry demand. The amount was then handed over by  him to Darshan Ram in the presence of other members of his
family.

6. Unfortunately, Darshan Ram’s family was not fully  satisfied with this payment. According to the prosecution,  about a fortnight before her death, Janki Devi came to her  father and told him that there was a further demand for an  amount of Rs. 30,000/- for purchasing some articles for a  service station proposed to be run by Darshan Ram and Bhola Ram. Thereupon, Nath Ram accompanied Janki Devi to her matrimonial home and informed Darshan Ram and the other accused that he would not be able to pay this amount.
On this, Darshan Ram’s family informed him that he should pay the amount failing which he could take Janki Devi back
with him. Nath Ram requested the family not to insist on the demand and left Janki Devi at her matrimonial home in
village Mehma Sarja.

7. On 3rd September, 1989 PW-3 Des Raj, the brother of Nath Ram’s wife, informed Nath Ram about Janki Devi being
ill-treated on account of Nath Ram’s inability to meet the additional demand for dowry. Again on 5th September, 1989
Des Raj informed Nath Ram that Janki Devi wanted to meet Nath Ram and was weeping in his presence.

8. On receiving this information, Nath Ram went to village Mehma Sarja along with his brother PW-4 Sukhdev Ram.
When they reached the bus stand in the village they were informed that Janki Devi had consumed poison and had
taken her life, having suffered more than enough cruelty at the hands of the family of Darshan Ram. Nath Ram and
Sukhdev Ram then proceeded to Janki Devi’s matrimonial home and found her lying there but no one from Darshan
Ram’s family was present in the matrimonial home.

9. Nath Ram then lodged a First Information Report (FIR) in Police Station Nehianwala. On the basis of the FIR PW-7
Manminder Singh prepared an inquest report in the presence of Sukhdev Ram. On the next day, that is 7th September,
1989 PW-5 Dr. Tirath Goyal performed an autopsy on the dead body of Janki Devi. He noted that froth was coming out
from her nose and mouth. Her viscera were sent to the Chemical Examiner who reported that Janki Devi had died due to having consumed an organo phosphorus insecticide which was poisonous and sufficient to cause death in the
ordinary course of nature.

10. On the basis of the above details and further investigations, a charge sheet was filed against Darshan Ram and four members of his family (including Bhola Ram) under Section 304-B and Section 498-A of the IPC for causing the dowry death of Janki Devi.

11. The accused pleaded not guilty and were tried by the Sessions Judge at Bathinda.Decision of the Trial Judge

12. In his Judgment and Order dated 3rd December, 1991 the Sessions Judge at Bathinda in Sessions Case No. 35 of
15th May, 1990 held that Section 304-B of the IPC required the prosecution to establish four ingredients, namely: (i) the
death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, (ii) such
death should have occurred within seven years of her marriage, (iii) soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, and (iv) such cruelty or harassment should be for, or in connection with, any demand for dowry. In the present case, all four ingredients were established by the prosecution.

13. It was further held that Darshan Ram, Bhola Ram and  their mother Vidya Devi were living together in the same
house at village Mehma Sarja and that they had demanded additional dowry from Janki Devi’s family. However,
Parshottam Ram and Krishna Devi were living separately and they could not be said to have caused the dowry death of
Janki Devi. Consequently, Parshottam Ram and Krishna Devi were found not guilty of the charges framed against them
and they were acquitted. However, the Sessions Judge found that Darshan Ram, Bhola Ram and Vidya Devi, by their
attitude and behaviour, caused Janki Devi to take the extreme step of taking her own life. These three accused were accordingly convicted for offences punishable under Section 304-B and Section 498-A of the IPC and sentenced to
undergo rigorous imprisonment for a period of 7 years with fine for the offence under Section 304-B of the IPC and 2 years rigorous imprisonment for the offence under Section 498-A of the IPC.

14. The accused preferred two appeals (one by Vidya Devi and the other by Darshan Ram and Bhola Ram) against their
conviction and sentence in the High Court of Punjab and Haryana. Decision of the High Court

15. In so far as Vidya Devi is concerned, her conviction was upheld by the High Court and she preferred a Special Leave
Petition in this Court. She was granted special leave to appeal but during the pendency of her appeal she passed
away and accordingly her appeal was disposed of.

16. Darshan Ram and Bhola Ram preferred a joint appeal in the High Court being Criminal Appeal No. 25 SB of 1992.
This appeal was heard by a learned Single Judge who by his Judgment and Order dated 5th July, 2004 upheld their
conviction and sentence.

17. The High Court held that Vidya Devi, Darshan Ram and Bhola Ram were all residing together in the same house at
village Mehma Sarja. It was held that the amount of Rs. 10,000/- initially taken from Nath Ram was used to purchase
a car for Darshan Ram and that car was being plied as a taxi by him. It was also held that a service station was at the
initial stages of being established by Darshan Ram and Bhola Ram and that they needed Rs. 30,000/- for expenses in
connection with that venture. Since all three convicts were residing together at village Mehma Sarja, they were equally
responsible for demanding additional dowry from Janki Devi and her father and thereby compelling her to take her life.

18. It appears that Darshan Ram has not challenged the  Judgment and Order of the learned Single Judge and his
conviction and sentence have attained finality.

19. We are, therefore, only concerned with the appeal filed  by Bhola Ram who challenged his conviction and sentence in
this Court and was granted special leave to appeal on 8th July, 2008. He was also granted bail by this Court on the
same day and we are told that even today, he is on bail.

Discussion
20. Learned counsel for Bhola Ram submitted that in fact there is no specific allegation against him. The statements of all the witnesses are omnibus or generic in nature and Darshan Ram and other members of his family have been generally accused of having demanded additional dowry from Janki Devi’s family. It is submitted that in the absence of any particular allegation, demands for dowry made by Darshan Ram cannot be attributed to Bhola Ram and under these circumstances, there is really no evidence to uphold his conviction.

21. On the other hand, it was submitted by learned counsel for the State that the three convicts were jointly and directly
concerned with the demands of additional dowry made on Janki Devi and her family. Consequently, it is not possible to
segregate the case of Bhola Ram from that of the other two convicts.

22. We are unable to accept the contention of learned counsel for the State. The Sessions Judge found that there was no evidence that Parshottam Ram and Krishna Devi made demands for additional dowry from Nath Ram. Accordingly, they were acquitted at the trial stage itself.  Therefore, the segregation process, based on the evidence on record, had begun at the trial stage. This is clearly because in a dowry death, some actors play an active role while others play a passive role. Consequntly, to sustain the conviction of Bhola Ram, there must be some suggestive evidence and not generic evidence implicating him in the demand for additional dowry from Nath Ram.

23. As observed by the Law Commission of India (LCI) in its 91st Report of 10th August, 1983 (in paragraph 1.8) the truth
may not come in a dowry death case due to the sequestered nature of the offence. This is what the LCI said:
“Those who have studied crime and its incidence know
that once a serious crime is committed, detection is a
difficult matter and still more difficult is successful
prosecution of the offender. Crimes that lead to dowry
deaths are almost invariably committed within the safe
precincts of a residential house. The criminal is a
member of the family; other members of the family (if
residing in the same house) are either guilty associates
in crime, or silent but conniving witnesses to it. In any
case, the shackles of the family are so strong that truth
may not come out of the chains. There would be no
other eye witnesses, except for members of the
family.”

24. This passage also clearly brings out that in a case of a dowry death, every member of the family may not be fully and equally guilty. The degree of involvement may differ – as an associate, as a silent witness, as a conniving witness and
so on.

25. So far as this case is concerned, we have gone through the evidence of all the witnesses on record and while there is
no doubt that Janki Devi died an unnatural death within a few years of her marriage to Darshan Ram, no definite
allegation has been made by any of the witnesses including Nath Ram or anybody from his family that Bhola Ram had
demanded any additional dowry from him or anybody in his family or had treated Janki Devi with cruelty or in a
humiliating manner so as to make him complicit in the dowry death.

26. In Kans Raj v. State of Punjab, (2000) 5 SCC 2007  the ingredients of an offence under Section 304-B of the IPC
were held to be as follows:
“In order to seek a conviction against a person for the
offence of dowry death, the prosecution is obliged to
prove that:
(a) the death of a woman was caused by burns or
bodily injury or had occurred otherwise than under
normal circumstances;
Crl. Appeal No.1022 of 2008 Page 11 of 17Page 12
(b) such death should have occurred within 7
years of her marriage;
(c) the deceased was subjected to cruelty or
harassment by her husband or by any relative of
her husband;
(d) such cruelty or harassment should be for or in
connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased
should have been subjected soon before her
death.”
27. It is true that there was a demand of dowry of Rs.10,000/- which was paid by Nath Ram by borrowing this amount from Nirbhai Singh, but that demand was for the purchase of a car for use by Darshan Ram. Under the circumstances, it can safely be presumed that Darshan Ram made the demand for additional dowry for his benefit. Bhola Ram may have been a silent or a passively conniving participant, but there is nothing on record to suggest that he had either actively made such a demand or that the demanded amount was sought to be utilized for his benefit either directly or indirectly.

28. Similarly, the evidence on record does not show that the demand of another amount of Rs.30,000/- from Nath Ram just a fortnight before Janki Devi took her life was made by Bhola Ram to purchase articles for the service station being set up by him and Darshan Ram at village Nehianwala.
At best, it could be said that this amount was intended for use for the joint business venture of Bhola Ram and Darshan
Ram. Given that the earlier demand for additional dowry was made for the benefit of Darshan Ram, it is more than likely
that this demand was also made by him. In any event, there is again nothing to suggest that Bhola Ram was in any
manner actively concerned in making the demand directly or indirectly from Nath Ram.

29. Consequently, we do not find any evidence to suggest any active complicity of Bhola Ram in demanding any additional dowry from Nath Ram either for himself or for Darshan Ram or his proposed business venture.

30. Merely making a demand for dowry is not enough to bring about a conviction under Section 304-B of the IPC. As
held in Kans Raj a dowry death victim should also have been treated with cruelty or harassed for dowry either by her husband or a relative. In this case, even assuming the silent or conniving participation of Bhola Ram in the demands for
dowry, there is absolutely no evidence on record to suggest that he actively or passively treated Janki Devi with cruelty
or harassed her in connection with, or for, dowry. The HighCourt has, unfortunately, not adverted to this ingredient of
an offence punishable under Section 304-B of the IPC or even considered it.
31. The High Court has relied on the presumption available under Section 113-B of the Evidence Act, 1872 to conclude
that Janki Devi’s death was a dowry death. However, this presumption cannot be stretched to implicate all and sundry
in Darshan Ram’s family in demanding additional dowry from Janki Devi’s family and harassing her and treating her with
such cruelty that she had to resort to taking her life. As mentioned above, there is a possibility of members of the  family having varying roles, active and passive. Depending on the nature and extent of involvement, a person may be
punished for an offence under Section 498-A or Section 304-B or Section 306 of the IPC or Section 4 of the Dowry
Prohibition Act, 1961. A dowry death will not ipso facto suck the husband with all his relatives into the net of Section 304-
B of the IPC.

32. It was contended by learned counsel for the State that Darshan Ram, Bhola Ram and Vidya Devi were living
together at village Mehma Sarja and so their active involvement in the dowry death cannot be ruled out. While these persons may be staying together, it does not lead to any positive conclusion that each one of them was actively involved in demanding additional dowry from Janki Devi and also behaving in a cruel or humiliating manner towards her resulting in her consuming poison to end her life. In cases of this nature which attract a reverse onus of proof, the least that is expected of the prosecution to bring home a charge under Section 304-B of the IPC is to adduce some evidence to suggestively implicate a relative, in this case, to suggestively implicate Bhola Ram both in the demands for additional dowry and harassment or cruelty. Such evidence is not available on record and so the mere fact that all the members of Darshan Ram’s family were living together at village Mehma Sarja, would not alter the factual situation.

33. Consequently, in the absence of the prosecution proving the ingredients of Section 304-B of the IPC, the initial burden cast on it has not been discharged. Therefore, the presumption under Section 113-B of the Evidence Act cannot be attracted.
Conclusion
34. Based on the evidence available on record (or the lack of it) we have no doubt that the appeal filed by Bhola Ram
ought to be allowed. It is accordingly allowed and he is acquitted of the charges against him under Section 304-B and Section 498-A of the IPC in relation to the death of Janki Devi.

35. The appeal is allowed and the conviction and sentence of Bhola Ram is set aside.

Post script
36. What is a little disturbing about this case is that it is illustrative of the slow movement of the wheels of criminal
justice delivery. The dowry death took place on 6th September, 1989. The Trial Court pronounced its decision on 3rd December, 1991 within two years of Janki Devi’s death.

The first appeal was decided by the High Court on 5th July, 2004 which is more than twelve years later. A petition for
special leave to appeal was filed in this Court in 2004 and leave was granted only after a gap of four years in 2008.
Thereafter this appeal was listed for hearing as if it is an appeal of 2008 rather than a petition of 2004 thereby wiping
away four years of its age in this Court. And even then, it has taken another five years for its disposal, making a total of
nine years spent in this Court. It is high time those of us who are judges of this Court and decision makers also become
policy makers.

….…….……………………..J.
(Ranjana Prakash
Desai)
….…….……………………..J.
(Madan B. Lokur)
New Delhi;
November 11, 2013

Categories: 498A Tags: ,

Supreme Court:- Wife, separated for years, cannot sue husband for torture.

September 2, 2013 1 comment

“Issue no. 2 relates to the applicability of 498A I.P.C. As it has been alleged by the complainant that she had been given physical and mental torture by the appellant and it was not possible for her to stay with the appellant after 1993 though she was having seven months’ pregnancy at that time. She gave birth to a male child in the hospital and the appellant did not even come to see the child. The question would arise as to whether in the facts and circumstances where the complainant had left the matrimonial home and started living with her father in 1993, could a case be registered against the appellant under Section 498A I.P.C. in 1997?”

 

 

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 299 OF 2003

MANJU RAM KALITA …. Appellant

Versus

STATE OF ASSAM …. Respondent

 

J U D G M E N T

 

Dr. B.S. Chauhan, J.

 

1. This Appeal has been preferred against the Judgment and Order dated 21 December, 2001 of the High Court of Gauhati in Criminal Revision (P) No. 578 of 2000 by which the High Court concurred with the finding of facts, recorded by the Trial Court dated 22.12.1999 passed by the Addl. Chief Judicial Magistrate, Kamrup, Guwahati in Case No. G.R.1957/1997; and of the Appellate Court, the Sessions Judge, Kamrup dated 13.10.2000 passed in Criminal Appeal No.3 of 2000 that the appellant was guilty of committing the offences under Sections 494 and 498A of the Indian Penal Code (in short “I.P.C”) and sentenced him to undergo rigorous imprisonment for 2 years u/S 498A and for 3 years u/S 494 I.P.C. However, both the sentences were directed to run concurrently.

 

2. The facts and circumstances giving rise to this appeal are that the appellant, a Government servant, got married with Smt. Minati Das (Kalita), the complainant on 5.2.1992 as per Hindu rites. Smt. Minati Das (Kalita) gave birth to a male child on 10.3.1993. However, the relationship between the husband and wife were not cordial as it was alleged by the wife that she was being tortured mentally and physically by the Appellant. She left the matrimonial home and started living with her father and was residing therein since 1993. In 1997, she came to know that the appellant got married with one Ranju Sarma on 2.2.1997 at Tukeswari Temple. Thus, she filed an FIR against the appellant.

 

3. The appellant was charged under Sections 498A/494 IPC by CJM, Guwahati. The appellant defended himself before the Trial Court denying all the charges. However, considering the evidence on record, the Trial Court found both the charges proved against the appellant beyond reasonable doubt and after convicting him, for the said offences, awarded the sentences as mentioned here-in- above, vide judgment and order dated 22.12.1999. (Annexure P-12)

 

4. Being aggrieved, the appellant preferred Appeal No.3 of 2000 which was dismissed by the Appellate Court vide Judgment and Order dated 13.10.2000 (Annexure P-13).

 

5. The appellant further approached Gauhati High Court by filing Criminal Revision (P) No. 578 of 2000 which has been dismissed by the impugned Judgment and Order dated 21 st December, 2001. Hence, this Appeal.

 

6. Shri S.K. Bhattacharya, learned counsel appearing for the appellant has raised all the contentions which the appellant has raised before the courts below, inter alia, that there was no valid marriage with Smt. Ranju Sarma as the marriage had taken place before a Hindu Deity and that there was no case of mental or physical torture to bring home the charges under Section 498A IPC. Thus, the appeal deserved to be allowed.

 

7. On the contrary, Mr. Riku Sharma, learned counsel appearing on behalf of the respondent State submitted that there are concurrent finding of facts by three courts below so far as the issue of marriage of the appellant with Smt. Ranju Sarma is concerned. This Court should not interfere with the findings so recorded, being the fourth court entertaining this matter. So far as the attraction of the provisions of Section 498 A is concerned, it was submitted that the appellant subjected the complainant (legally wedded wife) to physical and mental torture and agony; thus the charges have rightly been found proved against him by all the three courts. Therefore, there is no occasion for this Court to interfere in the matter. The appeal is liable to be dismissed.

 

8. We have considered the rival submissions made by learned counsel for the parties and perused the record.

 

9. So far as issue no. 1 is concerned i.e. as to whether the appellant got married with Smt. Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage.

 

10. It is settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. It’s function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by re-appreciating the evidence. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice. The position may undoubtedly be different if the inference is one of law from the facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure. (Vide Firm Sriniwas Ram Kumar Vs. Mahabir Prasad & Ors.; AIR 1951 SC 177; M/s. Tulsi Das Khimji Vs. The Workmen, AIR 1963 SC 1007; and Pentakota Satyanarayana & Ors. Vs. Pentakota Seetharatnam & Ors., AIR 2005 SC 4362).

 

11. Where the court below considered the material facts and did not take into consideration any inadmissible evidence etc., the interference is not required by court on third instance. (vide Madhavan Nair vs. Bhaskar Pillai, (2005) 10 SCC 553.)

 

12. Thus, it is evident from the above that this Court being the fourth Court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially.

 

13. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count required to be interfered with.

 

14. Issue no. 2 relates to the applicability of 498A I.P.C. As it has been alleged by the complainant that she had been given physical and mental torture by the appellant and it was not possible for her to stay with the appellant after 1993 though she was having seven months’ pregnancy at that time. She gave birth to a male child in the hospital and the appellant did not even come to see the child. The question would arise as to whether in the facts and circumstances where the complainant had left the matrimonial home and started living with her father in 1993, could a case be registered against the appellant under Section 498A I.P.C. in 1997?

 

15. The provisions of Section 498A IPC read as under:

“498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. – For the purposes of this section ‘cruelty’ means–

(a) any welful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;

(b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Cruelty has been defined by the explanation added to the Section itself. The basic ingredients of Section 498A I.P.C. are cruelty and harassment. In the instant case, as the allegation of demand of dowry is not there, we are not concerned with clause (b) of the explanation. The elements of cruelty so far as clause (a) is concerned, have been classified as follows:

(i) any ‘wilful’ conduct which is of such a nature as is likely to drive the woman to commit suicide; or

(ii) any ‘wilful’ conduct which is likely to cause grave injury to the woman; or

(iii) any ‘wilful’ act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.

 

16. In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318, this Court considered the meaning of cruelty in the context of the provisions under Section13 of the Hindu Marriage Act, 1955 and observed that:

“mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”

 

17. In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710, this court, while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under:

“17. …….It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made……….. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.”

 

18. In Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414, this Court while dealing with the similar issue held that mental or physical torture should be “continuously” practiced by the accused on the wife. The Court further observed as under :

“Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”

 

19. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559, this Court held that while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.

 

20. In Sushil Kumar Sharma vs. Union of India, AIR 2005 SC 3100, this Court explained the distinction of cruelty as provided under Section 306 and 498A IPC observing that under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated and intended. Therefore, there is a basic difference of the intention in application of the said provisions.

 

21. In Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078; this Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498A I.P.C. and there should be a case of continuous state of affairs of torture by one to another.

 

22. “Cruelty” for the purpose of Section 498-A I.P.C. is to be established in the context of S. 498-A IPC as it may be a different from other statutory provisions. It is to be determined/inferedby considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.

 

23. The instant case required to be examined taking into consideration the aforesaid settled legal provisions. Undoubtedly, there had been complaint by the wife of physical and mental torture upto 1993 when she left the matrimonial home and started living with her father. The complaint of cruelty was lodged by filing an FIR on 23.5.1997 i.e. after four years of leaving the matrimonial home. More so, 11 the mental or physical torture was not continuous on the part of the appellant as there is no complaint against him between 1993 to 1997 i.e. leaving the matrimonial home by the wife and performing the second marriage by the husband.

 

24. The complainant Smt. Minati Das (Kalita) P.W.3 deposed that she had been tortured physically and mentally but there was no allegation that she was subjected to physical or mental torture after the birth of the child in 1993. Similarly, Shri Lakhi Kt. Das (P.W.1), the father of the complainant has not mentioned any incident of physical or mental torture after 1993. None of the witnesses examined in this respect deposed that there was a continuous physical or mental torture and some untoward incident occurred between the husband and wife after 1993.

 

25. The Trial Court, after considering the depositions, came to the conclusion that the appellant being husband of the complainant subjected her to cruelty both mental and physical. But it further held as under:

“No doubt there is no evidence on the record to show that the accused committed harassment on P.W.3 with a view to force her to commit suicide or to fulfil illegal demands of him. The continuous harassment, both physical and mental by the accused made her life miserable and forced her to live separately from her husband.” (Emphasis added)

 

26. The Appellate Court dealt with the issue as under:

“Her specific evidence is that the cruelty both physical and mental was meted to her by her husband after the marriage and this has been well supported by the evidence of the witnesses as discussed above. Her mental torture had reached to such an extent that she had to leave her matrimonial home along with the baby in the womb and this has been well testified in the evidence on record.” (emphasis added)

 

27. The High Court considered the issue and reached the conclusion:

“ The offence u/S 498 A IPC is punishable with imprisonment upto three years only and as such the prosecution is barred u/S468, Cr.P.C. In view of the catena of decisions of the Apex Court, the law is well settled that offence of cruelty to wife is a continuing offence. Hence the fact that the wife was not living with the husband since 1993 is immaterial and mental and other cruelty may be committed even after the parties living separately.”

The High Court further held that during the subsistence of the marriage, the appellant contracted second marriage and started living with the another woman that itself was a cruelty and therefore he was liable for the punishment under Section 498 A.

 

28. Thus, from the above, it is evident that the Trial Court itself had been of the view that there was no evidence of cruelty on the part of the appellant with a view to drive the complainant to commit suicide. The appellate Forum reached the conclusion that mental torture was of the magnitude that the complainant had to leave her matrimonial home during her pregnancy. The Revisional court did not find that the complainant had been subjected to cruelty continuously.

 

29. Thus, in our opinion, all the three courts below erred in not considering the case in correct perspective. The findings so recorded by the Courts below may be relevant for granting the relief in a matrimonial dispute i.e. divorce etc. but could not bring home the charge under Section 498-A IPC.

 

30. Thus, in view of the aforesaid, conviction of the appellant under Section 498-A IPC and punishment for the said offence awarded by the courts below are set aside. However, conviction and sentence under Section 494 IPC are maintained.

 

31. Appeal succeeds to the said extent and disposed of accordingly.

 

New Delhi;

….…………………………….J.

(Dr. Mukundakam Sharma)

…….…………………………….J.

(Dr. B.S. Chauhan)

29 th May, 2009.

Supreme Court: In dowry death cases, the trial courts should not mechanically frame a murder charge against the accused unless there is prima facie evidence supporting the finding.

“The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact, situation and the evidence in the case,” said the apex court bench of Justice T.S. Thakur and Justice Ranjana Prakash Desai in a recent judgment.

“If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC, the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters,” said Justice Thakur pronouncing the judgment.

If the main charge of murder was not proved against the accused at the trial, the court could look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B was established, the apex court said.

The ingredients constituting the two offences were different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients, the bench said.

A charge under Section 304B of the Indian Penal Code (IPC) was not a substitute for a charge of murder punishable under Section 302 of the IPC, the court said.

The court said this while clarifying its earlier order of Nov 22, 2010, which was being “mechanically” read to invoke the charge of murder in every dowry death case.

The apex court by its interim order had directed all trial courts to ordinarily add Section 302 of the IPC to the charge under Section 304B “so that death sentences could be imposed in such heinous and barbaric crimes against women”.

Setting aside a Delhi High Court order upholding the addition of murder charges by the trial court in pursuance to the apex court’s Nov 22, 2010, interim order, Justice Thakur and Justice Desai said: “That was not, in our opinion, the true purport of the order passed by this court.”

Clarifying the Nov 22, 2010, interim order, the apex court said: “The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case.”

“All that this court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits,” the judgment said.

It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302.

The court said this while addressing the question whether the high court was justified in affirming the trial court decision to add murder charge against Jasvinder Saini and others who were under penal provisions for punishment for cruelty against woman by her husband and his relatives, dowry death and criminal breach of trust.

Initially while framing the charges, the trial court did not find any evidence to invoke the murder charge but added it after the apex court’s Nov 22, 2010, interim order.

Saini and his relatives were named as accused in the case of his wife Chandni’s death under unnatural circumstance.

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 819 OF 2013
(Arising out of S.L.P (Crl.) No.8738 of 2011)
Jasvinder Saini & Ors. …Appellants

Versus

State (Govt. of NCT of Delhi) …Respondent

 

REPORTABLE

 
J U D G M E N T

T.S. THAKUR, J.

 
1. Leave granted.

2. The short question that falls for consideration in this appeal by special leave is whether the trial Court was justified in framing a charge under Section 302 of the IPC against the appellants and whether the High Court was justified in affirming that order of the trial Court and dismissing the writ petition filed by the writ petitioners against the same. The question arises in the following background.

3. FIR No. 765/2007 was registered against the appellants alleging commission of offences punishable under Sections 498A, 304-B, 406 and 34 of IPC in connection with the demise in unnatural circumstances of Ms. Chandni wife of appellant No.1-Mr. Jasvinder Saini. The case was registered on a complaint filed Ajay Gautam, father of the deceased. The matter was investigated and a charge sheet filed before the Jurisdictional Magistrate alleging commission of offences mentioned above against the appellants 1 to 4. A supplementary charge sheet followed in which appellants 5 to 8 were also implicated in the case to which Section 302 was also added by the Investigating Officer.
4. The case was soon committed to the Sessions and assigned to the Additional Sessions Judge, Rohini, Delhi, who heard the matter for framing of charges and came to the conclusion that there was no evidence or material on record to justify framing of a charge under Section 302 IPC. Charges were accordingly framed against the appellants under Sections 498A, 304B read with Section 34 IPC.

5. At the trial the prosecution had examined as many as eighteen witnesses, when a two-Judges Bench of this Court passed an order on 22nd November 2010 in Rajibir @ Raju & Anr. v. State of Haryana AIR 2011 SC 568 by which this Court directed all trial Courts in India to add Section 302 in every case alleging commission of an offence punishable under Section 304B of the IPC. This direction, it appears, came because the Court felt strongly about the commission of heinous and barbaric crimes against women
in the country.

6. In Rajbir’s case (supra) the appellant had been convicted under Section 304-B IPC and sentenced to imprisonment for life by the trial Court apart from offences under other sections. The High Court had, however, reduced the sentence to ten years rigorous imprisonment in so far as Rajbir was concerned and to two years rigorous imprisonment in the case of his mother Appellant No.2 in that case. This Court on a prima facie basis felt that the reduction in the sentence was not justified. Relying upon an earlier decision rendered in Satya Narayan Tiwari @ Jolly & Anr. v. State of U.P. (2010) 13 SCC 689, Criminal Appeal No.1168 of 2005 decided on 28th October, 2010 this Court issued notice to Rajbir to show cause why his
sentence be not enhanced to life imprisonment as awarded by the trial Court.

7. It was in the above background, that this Court in para 11 of the interim order passed by it directed all the trial Courts in India to ordinarily add Section 302 to the charge under Section 304B “so that death sentences could be imposed in such heinous and barbaric crimes against women.” Para 11 may be extracted at this stage:
“We further direct all trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes
against women.”

8. In the case at hand the trial Court noticed the above direction and considering itself duty bound to abide by the same added a charge under Section 302 IPC to the one already framed against the appellant. While doing so, the trial Court simply placed reliance upon Section 216 of Cr.P.C. which empowers the Court to add or alter the charge at any stage and the direction of this Court in Rajbir’s case (supra). This is evident from the following passage from the order passed by the trial Court:
“… I have considered the submissions made before me. It is
settled law that charges can be modified/amended at any stage of
the proceedings and even if at the initial stage the Court is of
the view that there is no material for framing the charge under
Section 302 IPC. The same can be added/altered at any later
stage (Section 216 Cr.P.C.) which cannot be termed as a review
of the earlier order. Even otherwise, the directions of the
Hon’ble Apex Court in the case of Rajbir @ Raju & Anr. Vs. State
of Haryana in Special Leave Petition bearing No. 9507/2010
decided on 22-11-2010 duly circulated vide No. 33760-
69/DHC/Gaz/G-X/SCJ/2010 dated 3-12-2010, specific directions
have been issued to all the subordinate Courts in India to
ordinarily add Section 302 IPC to the charge under Section 304B
IPC.
Therefore, this being the background, charge under Section 302 IPC is being framed in alternative against the accused persons against whom charge under Section 304 B IPC had been framed. The accused pleaded not guilty and claimed trial.”

9. Aggrieved by the above direction, the appellant preferred Writ Petition (Crl.) No.413 of 2011 before the High Court of Delhi which failed and was dismissed by the High Court in terms of the order impugned in the present appeal. Placing reliance upon Section 216 of Cr.P.C. the High Court observed that appearance of additional evidence at the trial was not essential for framing of an additional charge or altering a charge already framed though it may be one of the grounds to do so. The High Court apart from placing reliance upon the order passed by this Court in Rajbir’s case (supra) held that a perusal of the Autopsy Surgeon’s Report provided prima facie evidence to the effect that the death of the deceased “could be homicidal” in nature and that the earlier order passed by the trial Court holding that no case for offence under Section 302 IPC was made out did not constitute any impediment for the trial Court to take a different view at a later stage. The present appeal assails the correctness of the above orders.

10. Section 216 of the Code of Criminal Procedure deals with alteration or addition of any charge and empowers the Court to do so at any time before the judgment is pronounced. The section runs as follows:

“216. Court may alter charge –

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defense or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or
added charge is founded.”

11. A plain reading of the above would show that the Court’s power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the Court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the Court after commencement of the trial. There can in the light of the above be no doubt about the competence of the Court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the Court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the Court. In the case at hand the evidence assembled in the course of the investigation and presented to the trial Court was not found sufficient to call for framing a charge under Section 302 IPC. The trial Court recorded a specific finding to that effect in its order dated 18th March 2009 while framing charges against the appellants before us. The trial Court said:
“The two witnesses Kiran Devi and Smt. Dharam Kaur were at
the spot when the deceased fell down from the second floor and
did not notice anyone on the roof of the house. Thus there is no
material for framing of charge Under Section 302 IPC against the
accused persons. However, there are specific allegations of
dowry demand and torture in the statement given by Sh. Ajay
Gautam to the SDM and as also in the statements given by his
wife Manisha Gautam and his son Vishal Gautam. The deceased had
died under unnatural circumstances. Her death took place at her
matrimonial home within seven years of her marriage. There is a
presumption Under Section 113-B of the Indian Evidence Act of
dowry death. Hence on the basis of material on record, I am of
the view that prima facie offence Under Section 498A/304B/34 IPC
is made out against all the accused persons.”
12. A reading of the order which the trial Court subsequently passed on 23rd February 2011 directing addition of a charge under Section 302 IPC makes it abundantly clear that the addition was not based on any error or omission whether inadvertent or otherwise in the matter of framing charges against the accused. Even the respondents did not plead that the omission of a charge under Section 302 IPC was on account of any inadvertent or other error or omission on the part of the trial Court. The order passed by the trial Court, on the contrary directed addition of the charge under Section 302 IPC entirely in obedience to the direction issued by this Court in Rajbir’s case (supra). Such being the position when the order passed by the trial Court was challenged before the High Court the only question that fell for determination was whether the addition of a charge under Section 302 IPC was justified on the basis of the direction issued by this Court in Rajbir’s case (supra). The High Court has no doubt adverted to that aspect and found itself to be duty bound to comply with the direction in the same measure as the trial Court. Having said so, it has gone a step further to suggest that the autopsy surgeon’s report was prima facie evidence to show that the offence was homicidal in nature. The High Court has by doing so provided an additional reason to justify the framing of a charge under Section 302 IPC.

13. Be that as it may the common thread running through both the orders is that this Court had in Rajbir’s case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. It is common ground that a charge\ under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought
to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the
perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir’s case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir’s case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court.

14. In the light of what we have said above, the order passed by the trial Court and so also that passed by the High Court are clearly untenable and shall have to be set aside. That would not, however, prevent the trial Court from re-examining the question of framing a charge under Section 302 IPC against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial Court comes to the conclusion that there is any room for doing so. The trial Court would in that regard keep in view the decision of this Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 where this Court has recognized the principle that in cases where the trial Court upon
a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so. Reference may also be made to the decisions of this Court in Ishwarchand Amichand Govadia and Ors. v. State of Maharashtra and Anr. (2006) 10 SCC 322 and the decision of the Calcutta High Court in Rajendra Singh Sethia v. State and Ors. 1989 Cri.L.J. 255 and that delivered by the Allahabad High Court in Shiv Nandan and Ors. v. State of U.P. 2005 Cri. L.J 3047 which too are to the same effect. In any such fresh exercise which the trial Court may undertake, it shall remain uninfluenced by the observations made by the High Court on merits of the case including those touching the probative value of the autopsy surgeon’s opinion.

15. In the result, we allow this appeal, set aside the order passed by
the High Court and that passed by the trial Court framing the charge under
Section 302 IPC and remit the matter back to the trial Court for a fresh
order keeping in view the observations made above. No costs.

 
………………………………………………J.
(T.S. THAKUR)

 

………………………………………………J.
(RANJANA PRAKASH DESAI)
New Delhi
July 2, 2013

Karnataka HC:- Unhappiness between Husband and Wife does not attract IPC 498a.

“Where the prosecution relied only on incident of unhappiness of deceased with her husband and the allegation was only in form of suggestion, it does not establish criminal offence under either or both of the charges, hence conviction under section 498A is improper.”

Karnataka High Court

State By C.O.D. Police, Anti Dowry …

vs

K. Sridhar

on 31 July, 1999

Equivalent citations: 2000 CriLJ 328, I (2000) DMC 320, 2000 (1) KarLJ 274

Bench: M S Veerabhadraiah

ORDER

M.F. Saldanha

1. We have heard this appeal at considerable length principally because the learned State Public Prosecutor submitted before us that the Trial Court has totally and completely bypassed all those parts of the evidence which clearly indicates that there was a demand for money which was effectively the unpaid dowry amount and that this was the reason for the unhappiness that emanated in the mind of the deceased wife. He has relied principally on the evidence of P.W. 3 in order to demonstrate to us that the reason for the unfortunate suicide was the continuous demand coupled with harassment that is traceable to the accused and that the learned Trial Judge has not accorded due weight to this very important evidence. The learned State Public Prosecutor relies on the position in law because he submits that once the prosecution established that the aspect of dowry was very much in the forefront at the time of the marriage, that despite having demanded and received certain amount of money and other expensive presents that the accused-husband persisted in further demands, that he pressurised and ill-treated the wife with the object of seeing to it that the demands were met and that in view of this continuous pressure that the deceased ultimately put an end to her life. The overall contention was that all the ingredients necessary to establish the charges under Section 498A and Section 304B of the IPC are present in this case and that the acquittal is totally unjustified.

2. We need to record here that we have taken careful note of the legal submission canvassed and the proposition advanced both of which are upheld as there could be no two opinions about the fact that where there is basic evidence of the demand and receipt of dowry and where the evidence discloses that there were demands which continued after the marriage and allegation that ill-treatment of a serious nature was linked to this demand that not only would the offence under Section 498A be established but that it would in most cases lead up to the more serious offence under Section 304B of the IPC. The Supreme Court has very clearly elucidated the interlinking between these two offences but what we also need to take note of is that the very definition of Section 498A of the IPC and the case law clearly postulates that the evidence of cruelty is required to be established, cruelty of a grave level which is sufficient to seriously jeopardise the mental or physical well-being of the spouse. The law does not contemplate the usual day-to-day misunderstandings or quarrels or minor matrimonial problems which do not have this kind of after-effects and it is this last aspect of the matter that has been uppermost in our minds while evaluating the evidence before us.

3. We agree with the learned State Public Prosecutor that there are overtones of subsequent demands and that there are some incidents such as leaving the girl at her parents’ place and the like, which are relied on by the prosecution as incidents of cruelty of a serious nature. There is also a charge that the accused was friendly with one Meenakshi and that this is also one of the aspects of cruelty vis-a-vis the wife who had reacted seriously to this. That allegation is only in the form of a suggestion and Meenakshi, who was even cited as a witness was not examined. More importantly, what we find on a very minute evaluation of the record is that a review of the incident would undoubtedly disclose some level of unhappiness to the deceased, but in order to establish the criminal offence under either or both of the charges the incidence, gravity and the volume of the cruelty would have to be much higher. All that we can hold is that this material comes dangerously close, but that in its totality, it is not good enough to sustain a conviction under either of the two charges.

4. We need to deal in passing with the last submission on a point of law canvassed by the learned State Public Prosecutor where he argued that since the defence taken was that the delivery of the first child and the subsequent abortion had taken a heavy toll on the deceased that she was physically in a very low condition which in turn had affected her mind and that in this state of depression, she has committed suicide. The learned State Public Prosecutor submitted that assuming without admitting that the material falls short of being good enough for a conviction under Section 304 of the IPC that the lesser charge under Section 498A of the IPC is certainly sustainable. We have already referred to the close interlinking between these charges which also means that where the lesser of the two charges is established, that the more serious one under Section 304B of the IPC invariably succeeds. The reverse’ is not necessarily true, but is invariably the case. It may be that in a microscopically small number of cases that even if the more serious charge fails that the lesser one would survive, but for this again, independent and strong evidence of serious cruelty is the sine qua non. It is this last ingredient that we find wanting in the present case. After a very careful appraisal and a detailed hearing, we are of the view that a conviction would be impossible and consequently, we refrain from interfering with the order of acquittal.

5. The appeal fails on merits and stands dismissed.

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