Tuesday, July 29, 2014

Genuine compromise can make ipc 498a compoundable but Can’t nix rape case even after compromise: SC | Isnt it genuinely promoting extortion ?

Can’t nix rape case even after compromise: SC

Dhananjay Mahapatra,TNN | Jul 29, 2014, 12.16 AM IST

NEW DELHI: Dowry harassment cases are personal in nature and can be quashed if the estranged couple reach a "genuine" compromise, the Supreme Court has ruled. 

A bench of Justice Ranjana Desai and N V Ramana drew a contrast between offences under Section 498A IPC and heinous crimes like rape and murder, though all three categories of offences are non-compoundable. 

It said Section 320 of the Criminal Procedure Code provided the list of offences that could be compounded after parties reached a compromise and the courts have to strictly follow that. 

Writing the judgment for the bench, Justice Desai said, "It is, therefore, not possible to permit compounding of offences under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussion on society, unlike heinous offences like murder, rape etc." 

The judgment came in a case related to a complaint under Section 498A and Section 4 of Dowry Prohibition Act by a woman against her husband and parents-in-law. Though the Madhya Pradesh high court acquitted the parents-in-law, it upheld the conviction of the husband. However, the HC reduced the sentence of the husband to six months imprisonment from two years sentence imposed by the trial court.

In the apex court, the estranged couple reached a compromise with the husband agreeing to pay Rs 2.5 lakh in addition to bearing the cost of litigation. The woman pleaded for quashing of the case against her estranged husband. The standing counsel for Madhya Pradesh opposed quashing the case. 

The bench examined whether the apex court could reduce the sentence in a case where the conviction has been upheld by the trial court and the high court. The court found that though Section 498A of IPC did not prescribe a minimum sentence, Section 4 of the Dowry Prohibition Act provided a minimum six-month sentence. 

The court was in a dilemma even after coming to the conclusion that appellate courts could reduce sentence to the period already undergone despite the minimum sentence provided for. The dilemma arose because the husband had been in jail for just seven days.

The bench rejected the state's objection to the compromise and said, "We see no reason why in this case we should not reduce the husband's sentence to the sentence already undergone by him. There can be no doubt about the genuine nature of the compromise between the husband and wife." It recorded the compromise and relieved the husband of further imprisonment.

Source-http://timesofindia.indiatimes.com/india/Cant-nix-rape-case-even-after-compromise-SC/articleshow/39186138.cms


Sunday, July 27, 2014

Govt mulls amendments to anti-dowry law to add clause for misuse of ipc 498a

Govt mulls amendments to anti-dowry law to add clause for misuse of ipc 498a

As on PTI | Jul 27, 2014, 10.26 AM IST

NEW DELHI: Keeping in view the rising number of complaints regarding the misuse of anti-dowry law, Centre is mulling to introduce penal provisions in the act that will ensure punishment or penalty to those who make false charges.

The Union ministry of women and child development is also contemplating giving more teeth to the Dowry Prohibition Act by strengthening the existing provisions and widening the definition of 'dowry'.

"Recently, a rise in the incidents of misuse of the anti-dowry law has come to the notice of the ministry. In some cases, women falsely implicate their husbands and in-laws for various other reasons.

"If the allegations turn out to be false, the case gets closed. So there are discussions going on about changing some provisions under which the misuse of the act may invite punishment or penalty," an official in the ministry said.

Earlier this month, the Supreme Court had directed the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 of Criminal Procedure Code".

While giving the direction, the apex court had expressed concern over the misuse of the anti-dowry law by "disgruntled" wives against her husband and in-laws and noted that the act was being increasingly used to harass in-laws.

According to ministry officials, the amendments may include widening the definition of 'dowry' by changing the words 'in connection with marriage' to 'given before the marriage, at the time of marriage and at any time after the marriage'.

 The officials said that there was also "a proposal to link certain provisions of the Domestic Violence Act to the Dowry Prohibition Act to provide quick relief".

Notifying the list of gifts exchanged during the wedding may also be made a mandatory and failure to do so could invite heavy penalties including a three-year jail term not only to the bride and the groom but also to their parents.

"Notification of the gifts during the wedding will help in checking any claim from being made later that they were part of dowry," the officials said.

In addition to this, a new clause may be incorporated which will provide an aggrieved woman the opportunity to file her case either at the place where the offence was committed or where she permanently or temporarily resides, they said.

The National Commission for Women (NCW) had also proposed recommendations to amend the Dowry Prohibition Act in 2009.

Source-http://timesofindia.indiatimes.com/india/Govt-mulls-amendments-to-anti-dowry-law/articleshow/39095407.cms


Thursday, July 3, 2014

Anti-dowry law misused, no automatic arrest in such cases, Police officers to be punished for Non Adherence to laid guidelines:Supreme Court

Anti-dowry law misused, no automatic arrest in 498a, Guidelines Laid for Police and magistrates, Police officers to be punished for Non Adherence :Supreme Court

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 (Name of wife). 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 airconditioner, 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 nonfulfilment 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 177 th 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 –
(a) to prevent such person from  
committing any further offence; or
(b) for proper investigation of the 
offence; or
(c) to prevent such person from causing 
the evidence of the offence to 

disappear or tampering with such 

evidence in any manner; or 
(d) to prevent such person from making 
any inducement, threat or promise
to any person acquainted with the 
facts of the case so as to dissuade 

him from disclosing such facts to 
the Court or to the police officer;
or
(e) as unless such person is arrested, 
his presence in the Court whenever 

required cannot be ensured, 
and the police officer shall record while 

making such arrest, his reasons in writing:


Provided that a police officer shall, in 
all cases where the arrest of a person is 

not required under the provisions of this 

sub-section, record the reasons in writing 

for not making the arrest.

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:

(1) 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;

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

(3) 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;

(4) 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;

(5) 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;

(6) 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;

(7) 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.

(8) 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

Thursday, January 23, 2014

Punish cops who file false charges: SC

                                                           

Punish cops who file false charges: SC

    
Reportable




                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.169 OF 2014
     (Arising out of Special Leave Petition (Criminal) No.1221 of 2012)

Perumal                                            …Appellant
            Versus
Janaki                                             …Respondent





                               J U D G M E N T


Chelameswar, J.

1.    Leave granted.


2.    Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the  High  Court
of  Madras,  the  unsuccessful  petitioner  therein  preferred  the  instant
appeal.

3.      A petition in C.M.P.  No.4561  of  2010  (private  complaint)  under
section 200 of the Code of Criminal Procedure, 1973 (hereinafter  for  short
referred to as “the Cr.P.C.”) filed by  the  appellant  herein  against  the
respondent came to be dismissed by the Judicial Magistrate No.2 at  Pollachi
by  his  judgment  dated  31st  August  2010.   Challenging  the  same,  the
abovementioned Crl. R.C. was filed.

4.    The factual background of the case is as follows:

5.    The respondent was working as a Sub-Inspector in an  All-Women  Police
Station, Pollachi at the relevant point of time.   On  18th  May  2008,  one
Nagal reported to the respondent that the appellant herein had cheated  her.
 The respondent registered Crime No.18/08 under sections 417 and  506(i)  of
the Indian Penal Code (hereinafter for short  referred  to  as  “the  IPC”).
Eventually, the respondent filed a charge-sheet,  the  relevant  portion  of
which reads as follows:
      “On 26.12.07, that the accused called upon  the  de-facto  complainant
      for an outing and while  going  in  the  night  at  around  10.00  via
      Vadugapalayam  Ittori  route  the   accused   enticed   the   de-facto
      complainant of marrying her and had sexual interaction  several  times
      in the nearby jungle and on account of which  the  complainant  became
      pregnant and when she asked the accused to marry him he threatened the
      complainant of killing her if she disclosed the above fact to anybody.




      Hence the accused committed an offence punishable u/s. 417, 506 (i) of
      IPC.”
                                                         [emphasis supplied]

6.    The appellant was tried  for  the  offences  mentioned  above  by  the
learned  Judicial  Magistrate  No.1,   Pollachi.    The   learned   Judicial
Magistrate by his judgment dated 15th March 2010 acquitted the appellant  of
both the charges.

7.    It appears that the said judgment has become final.

8.    In the light  of  the  acquittal,  the  appellant  filed  a  complaint
(C.M.P. No.4561 of 2010) under section 190 of the Cr.P.C.  on  the  file  of
the Judicial Magistrate No.2 at Pollachi  praying  that  the  respondent  be
tried for an offence under section 193 of the IPC.  The said complaint  came
to be dismissed by an order dated 31st August 2010 on  the  ground  that  in
view of sections 195 and 340 of the Cr.P.C. the complaint of  the  appellant
herein is not maintainable.

9.    Aggrieved by the said dismissal, the appellant  herein  unsuccessfully
carried the matter to the High Court.  Hence the present appeal.

10.   The case of the appellant herein  in  his  complaint  is  that  though
Nagal alleged an offence of cheating against the appellant which led to  the
pregnancy of Nagal, such an offence was not proved against  him.   Upon  the
registration of Crime No.18/08, Nagal was subjected to medical  examination.
She was  not  found  to  be  pregnant.   Dr.  Geetha,  who  examined  Nagal,
categorically opined that Nagal was not found to be pregnant on the date  of
examination which took place six days after the  registration  of  the  FIR.
In spite of the definite medical opinion that Nagal was  not  pregnant,  the
respondent chose to file  a  charge-sheet  with  an  allegation  that  Nagal
became pregnant.  Therefore, according to the  appellant,  the  charge-sheet
was filed with a deliberate false statement by the respondent  herein.   The
appellant, therefore, prayed in his complaint as follows;
           “It is, therefore, prayed that this Hon’ble Court may be pleased
           to take this complaint on file, try the accused U/s. 193 IPC for
           deliberately giving false evidence in the Court as  against  the
           complainant, and punish the accused and  pass  such  further  or
           other orders as this Hon’ble court deems fit and proper.”




11.   The learned Magistrate dismissed the  complaint  on  the  ground  that
section 195 of the Cr.P.C. bars criminal courts to  take  cognizance  of  an
offence under section 193 of the IPC except on the complaint in  writing  of
that Court or an officer of that Court in relation to any proceeding in  the
Court where the offence under section 193 is said  to  have  been  committed
and a private complaint such as the one on hand is not maintainable.

12.   The High Court declined to interfere with the matter  in  exercise  of
its revisional jurisdiction.  The  operative  portion  of  the  order  under
challenge reads as follows:
          “3.     … This court is in agreement with the  conclusion  of  the
          court below in dismissing the complaint.  The  complaint  provided
          very little to take action upon, particularly,  where  this  court
          finds that the respondent had not in any manner tampered with  the
          medical record  so  as  to  mulct  the  petitioner  with  criminal
          liability.  The wording in the final report informing  of  the  de
          facto complainant having  been  pregnant  can  in  the  facts  and
          circumstances of the case, be seen only as a mistake.


          4.      In the result, the criminal revision stands dismissed.”

13.   We regret to place on record that at every stage of  this  matter  the
inquiry was misdirected.

14.   The facts relevant for the issue on hand are that:-
      (1)   The appellant was prosecuted for the offences under sections 417
      and 506 (i) IPC.  (The factual allegations forming the basis of such a
      prosecution are already noted earlier).


      (2)   The respondent filed a charge-sheet with an assertion  that  the
      appellant was responsible for pregnancy of Nagal.


      (3)   Even before the filing of the charge-sheet, a  definite  medical
      opinion was available to the respondent (secured during the course  of
      the investigation of the offence alleged against the appellant) to the
      effect that Nagal was not pregnant.


      (4)   Still the respondent chose to assert in  the  charge-sheet  that
      Nagal was pregnant.


      (5) The prosecution against the appellant ended in acquittal.

15.   The abovementioned indisputable facts, in  our  opinion,  prima  facie
may not constitute an offence under section 193 IPC but  may  constitute  an
offence under section 211 IPC.  We say prima facie only for the reason  this
aspect has not been examined at any stage in the case nor any submission  is
made before us on either side but we cannot help taking notice of the  basic
facts and the legal position.

16.   The offence under section  193[1]  IPC  is  an  act  of  giving  false
evidence or fabricating false evidence in a judicial  proceeding.   The  act
of giving false evidence is defined under section 191 IPC as follows:
      “191. Giving false evidence.— Whoever, being legally bound by an  oath
      or by an express provision of law to state the truth, or  being  bound
      by law to make a declaration upon any  subject,  makes  any  statement
      which is false, and which he either knows or believes to be  false  or
      does not believe to be true, is said to give false evidence.


            Explanation  1.—A  statement  is  within  the  meaning  of  this
      section, whether it is made verbally or otherwise.


           Explanation 2.—A false statement as to the belief of the  person
      attesting is within the meaning of this section, and a person  may  be
      guilty of giving false evidence by stating that he  believes  a  thing
      which he does not believe, as well as by stating that he knows a thing
      which he does not know.”

It can be seen from the definition that  to  constitute  an  act  of  giving
false evidence, a person must make a statement which is either false to  the
knowledge or belief of the maker or which the maker does not believe  to  be
true.  Further, it requires that such a statement is made by  a  person  (1)
who is legally bound by an oath; (2) by  an  express  provision  of  law  to
state the truth; or (3) being bound by law to make a  declaration  upon  any
subject.

17.   A police officer filing a charge-sheet does not make any statement  on
oath nor is bound by any express provision of law to state the truth  though
in our opinion being a public servant is  obliged  to  act  in  good  faith.
Whether the statement made by the police officer in a  charge-sheet  amounts
to a declaration upon any subject within the meaning of  the  clause  “being
bound by law to  make  a  declaration  upon  any  subject”  occurring  under
section 191 of the IPC is a question which requires further examination.

18.   On the other hand, section 211 of the IPC deals  with  an  offence  of
instituting or causing to be instituted any criminal proceeding  or  falsely
charging any person of having committed an offence even  when  there  is  no
just or lawful ground for such proceeding to the  knowledge  of  the  person
instituting or causing the institution of the criminal proceedings.

19.   Irrespective  of  the  fact  whether  the  offence  disclosed  by  the
complaint of the  appellant  herein  is  an  offence  falling  either  under
section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares  that  no
Court shall take cognizance of either of  the  abovementioned  two  offences
except in the manner specified under section 195 of the Cr.P.C.:
      “195. Prosecution for contempt of lawful authority of public servants,
      for offences against public  justice  and  for  offences  relating  to
      documents given in evidence.—(1) No Court shall take cognizance—


                          x     x     x    x     x


      (b) (i)     of any offence  punishable  under  any  of  the  following
           sections of the Indian Penal Code (45 of 1860), namely, sections
           193 to  196  (both  inclusive),  199,  200,  205  to  211  (both
           inclusive) and 228, when such offence is alleged  to  have  been
           committed in, or in relation to, any proceeding in any Court, or




      except on the complaint in writing of that Court or by such officer of
      the Court as that Court may authorise in writing in this behalf, or of
      some other Court to which that court is subordinate.”



20.   In the light of the language of section 195 Cr.P.C.  we  do  not  find
fault with the conclusion  of  the  learned  Magistrate  in  dismissing  the
complaint of the appellant herein for the reason that the complaint  is  not
filed by the person contemplated  under  section  195  Cr.P.C.   It  may  be
mentioned here that as a matter of fact the Court before which  the  instant
complaint was lodged is not  the  same  Court  before  which  the  appellant
herein was prosecuted by the respondent.

21.   Under section 340(1) of the Cr.P.C., it is  stipulated  that  whenever
it appears that any one of the offences mentioned  in  clause  (b)  of  sub-
section (1) of section 195 appears to have been committed in or in  relation
to a proceeding before a Court, that Court either on an application made  to
it or otherwise make  a  complaint  thereof  in  writing  to  the  competent
Magistrate after following the procedure mentioned under section 340 of  the
Cr.P.C.[2]

22.   Admittedly, the appellant herein did not make an  application  to  the
judicial magistrate No.1, Pollachi under section 340 to ‘make  a  complaint’
against the respondent herein nor  the  said  magistrate  suo  moto  made  a
complaint.  Therefore, the learned judicial magistrate No.2 before whom  the
private complaint is made by the appellant had no option but to dismiss  the
complaint.

23.   But the High Court, in our view, is not justified in confining  itself
to the examination of  the  correctness  of  the  order  of  the  magistrate
dismissing the said private complaint.   Both  Section  195(1)  and  Section
340(2) Cr.P.C. authorise the exercise of the power conferred  under  Section
195(1) by any other court to  which  the  court  in  respect  of  which  the
offence is committed is subordinate to. (hereinafter  referred  to  for  the
sake of convenience as ‘the original court’)

24.   It can be seen from the language of Section 195(4),  Cr.P.C.  that  it
creates a legal fiction whereby it is declared that the  original  court  is
subordinate  to  that  court  to  which  appeals  ordinarily  lie  from  the
judgments or orders of the original court. (hereinafter referred to as  ‘the
appellate court’)  In our view, such a fiction must  be  understood  in  the
context of Article 227[3] of the Constitution of  India  and  Section  10(1)
and 15(1) of Cr.P.C[4]. Article 227 confers the power of superintendence  on
a  High  Court  over  all  courts  and  tribunals  functioning  within   the
territories in relation  to  which  a  High  Court  exercises  jurisdiction.
Section 10(1) and 15(1) of  Cr.P.C.  declare  that  the  Assistant  Sessions
Judges and Chief Judicial Magistrates are subordinate to the  Session  Judge
and other Judicial Magistrates to  be  subordinate  to  the  Chief  Judicial
Magistrate  subject  to  the  control  of  the  Session  Judge.  It  may  be
remembered that Section 195(4) deals with  the  authority  of  the  superior
courts in the context of taking cognizance of various offences mentioned  in
Section 195(1). Such offences are relatable to civil, criminal  and  revenue
courts etc.[5] Each one of the  streams  of  these  courts  may  have  their
administrative hierarchy depending upon under the law by which  such  courts
are brought into existence.  It is also well known that certain courts  have
appellate   jurisdiction   while   certain   courts   only   have   original
jurisdiction.  Appellate  jurisdiction  is  the  creature  of  statute   and
depending upon the scheme of a  particular  statute,  the  forum  of  appeal
varies. Generally, the appellate for a are created on the  basis  of  either
subject matter of dispute or economic implications or nature of crime etc.

25.   Therefore, all that sub-section  (4)  of  Section  195  says  is  that
irrespective of the fact  whether  a  particular  court  is  subordinate  to
another court in the hierarchy of judicial administration, for  the  purpose
of exercise of powers under Section 195(1), every appellate court  competent
to entertain the appeals either from  decrees  or  sentence  passed  by  the
original court is treated to be a court concurrently competent  to  exercise
the jurisdiction under Section 195(1).   High  Courts  being  constitutional
courts invested with the powers of superintendence over  all  courts  within
the territory over which the High Court exercises its jurisdiction,  in  our
view, is certainly  a  Court  which  can  exercise  the  jurisdiction  under
Section 195(1).  In the absence of any  specific  constitutional  limitation
of prescription on  the  exercise  of  such  powers,  the  High  Courts  may
exercise such power either  on  an  application  made  to  it  or  suo  moto
whenever the interests of justice demand.

26.   The  High  Courts  not  only  have  the  authority  to  exercise  such
jurisdiction but also an obligation to exercise such  power  in  appropriate
cases.  Such obligation, in our opinion, flows from two factors  –  (1)  the
embargo created by Section 195 restricting the liberty of aggrieved  persons
to initiate criminal proceedings with respect to offences  prescribed  under
Section 195; (2) such offences pertain to  either  the  contempt  of  lawful
authorities of public servants or offences against public justice.

27.   A constitution Bench of this Court in Iqbal Singh  Marwah  &  Anr.  v.
Meenakshi Marwah & Anr., (2005) 4 SCC 370, while  interpreting  Section  195
Cr.P.C., although in a different  context,   held  that  any  interpretation
which leads to a situation where a victim of crime is  rendered  remediless,
has to be discarded[6]. The power of superintendence like  any  other  power
impliedly carries an obligation to exercise powers in  an  appropriate  case
to maintain the majesty of the judicial process and the purity of the  legal
system. Such an obligation becomes more profound when these  allegations  of
commission of offences pertain to public justice.

28.   In the case on hand, when the  appellant  alleges  that  he  had  been
prosecuted on the basis of a  palpably  false  statement  coupled  with  the
further  allegation  in  his  complaint  that  the  respondent  did  so  for
extraneous considerations, we are of the opinion that it is  an  appropriate
case where the High Court ought to have  exercised  the  jurisdiction  under
Section  195  Cr.P.C..   The  allegation  such  as  the  one  made  by   the
complainant against the respondent is not uncommon. As was  pointed  earlier
by this Court in a different context “there is no rule of  law  that  common
sense should be put in cold storage”[7]. Our  Constitution  is  designed  on
the theory of checks and balances. A theory which  is  the  product  of  the
belief that all power corrupts - such belief is based on experience.

29.   The appeal is, therefore, allowed.  The  matter  is  remitted  to  the
High Court for further appropriate course of action to initiate  proceedings
against the respondent on the basis of the complaint  of  the  appellant  in
accordance with law.
                                                        ………………………………………..CJI
                                         (P. Sathasivam)
                                                         …………………………………..……J.
                                         (J. Chelameswar)

New Delhi;
January 20, 2014.
-----------------------
[1]    Section 193. Punishment  for  false  evidence.—Whoever  intentionally
gives false evidence in any stage of a judicial  proceeding,  or  fabricates
false evidence for the purpose of being used in  any  stage  of  a  judicial
proceeding, shall be punished with imprisonment of either description for  a
term which may extended to seven years, and shall also be liable to fine,

      and whoever intentionally gives or fabricates false  evidence  in  any
other case, shall be punished with imprisonment of either description for  a
term which may extended to three years, and shall also be liable to fine.

       Explanation  1.—A  trial  before  a  Court-martial;  is  a   judicial
proceeding.

      Explanation 2.—An investigation  directed  by  law  preliminary  to  a
proceeding before a Court of Justice, is a stage of a  judicial  proceeding,
though that investigation may not take place before a Court of Justice.
[2]    Section 340. Procedure in cases mentioned in  section  195.—(1)  When
upon an application made to it in this behalf or otherwise, any Court is  of
opinion that it is expedient in the interests of  justice  that  an  inquiry
should be made into any offence referred to in  clause  (b)  of  sub-section
(1) of section 195, which appears to have been committed in or  in  relation
to a proceeding in that Court or, as the  case  may  be,  in  respect  of  a
document produced or given in evidence in a proceeding in that  court,  such
Court may, after such preliminary inquiry, if any, as it thinks necessary,-
      (a)   record a finding to that effect;
      (b)   make a complaint thereof in writing;
      (c)   send it to a Magi?
-----------------------
16

SOURCE - http://judis.nic.in/supremecourt/imgst.aspx?filename=41160

Sunday, November 24, 2013

Delhi High Court - Truth losing significance because of the ego of the litigants to see that in-laws should be hanged - Misuse abuse of 498a 304B

Delhi High Court - Truth losing significance because of the ego of the litigants to see that in-laws should be hanged - Misuse abuse of 498a 304B  



IN THE HIGH COURT OF DELHI AT NEW DELHI

BAIL APPLN.1036/2013
Reserved on : 29 th October, 2013
Date of decision : 19 th November, 2013

BISHAN DASS DURGA    ..... Petitioner
Through :  Mr. Anurag Jain, Adv.

versus

STATE NCT OF DELHI      ..... Respondent
Through :  Mr. Karan Singh, APP.
Mr. Sanjay Suri, Adv. for complainant.
S.I. Gopal, P.S. Shakar Pur,  Delhi.

CORAM :-HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT

1.  The petitioner  is seeking regular bail in FIR No.835/2012 under  Sections 498A/304B/34 IPC and Section 4 of Dowry Prohibition Act.

2.  The petitioner is the father-in-law of  Payal.  On 12 th November, 2012  at about 6:00 am, the petitioner  found Payal hanging from the ceiling fan whereupon he  immediately  informed the complainant, Naresh Batra (father of Payal) who  along with his wife,  son  and  daughter  reached the petitioner‟s house. The deceased was taken to Shanti Mukund Hospital where she was declared dead.  The complainant lodged the FIR in which he made allegations of harassment and demands against the accused persons. It was alleged that the deceased was beaten by her husband and  mother-in-law. It was further alleged that money and gifts were demanded within 10-15 days of marriage; separate house was demanded  for son-in-law and recently Renault Duster  was demanded.  As per the post-mortem report, the cause  of death is asphyxia due to ante-mortem hanging.

3.  On 1st May, 2013, the police filed the chargesheet after investigation against the petitioner  and the aforesaid family members of the petitioner. 

4.  The hearing of this  bail application  was deferred from time to time  till  the  recording of the  statements  of the six material witnesses by the Trial Court. The statement of all the six material witnesses have now  been recorded. Copies of the statements have been placed on record by the petitioner. 

5.  PW-1, Jasvinder Maakheja, an independent material witness,lives on the second floor of the building in which the accused persons  are  residing. On the fateful morning of 12th November, 2012, PW-1 went to the third floor and saw Payal hanging from the ceiling fan. PW-1 told the accused persons to bring down the body whereupon the accused  -  Saurabh cut  the  „chunni‟ and brought down the dead body and kept it on the bed.  PW-1  tried to revive the deceased by pressing her chest while accused - Gaurav gave her mouth to mouth  resuscitation. PW-1  informed the police.  The parents and the other family members of Payal reached the accused persons‟  residence  within five minutes. PW-1  accompanied the body of Payal to the hospital.  PW-1 deposed that Gaurav (husband of the deceased) tried to revive Payal many times on the way to the hospital.

6.  PW-1 to PW-6 have made some important admissions in their cross-examination.  PW-2 to PW-5  deposed  that Payal knew Gaurav before marriage and they worked together on various projects of interior decoration before and after marriage. PW-6, Jagdeep Madan,  deposed that  Payal and Gaurav  had a  love affair which resulted in their marriage. PW 6 deposed that Payal told her that she had not told anything to her parents and she had married Gaurav against their wishes. PW-1  deposed  that accused had a Honda City Car, two motorcycles and a scooter prior to the marriage of Payal. The motorcycles and scooter were used by the sons of the petitioner and one more bike was purchased by the petitioner after the marriage of Payal. PW-2 also  deposed  that the accused had a Honda City car and bikes. PW-2  deposed  that Gaurav was having a furniture showroom in Geeta Colony.  PW-1 deposed  that Payal never complained of dowry demands, harassment or torture though she demanded separation from her in laws one-and-a-half months before her death. PW-1 further deposed  that he never saw any quarrel between the deceased and her in-laws and Payal being beaten up by the accused persons. PW-2 further deposed that he never made any complaint during the lifetime of Payal to any authority for harassment or demands.    

7.  PW-2 to 5 are the father, mother, brother and sister of the deceased, made material improvements in their deposition made before the Court vis-à-vis the statement made to the police/SDM earlier. They were confronted with their previous statements at the time of cross-examination.  The following improvements were made by the aforesaid witnesses:-

-  The demand of more gifts was made on Holi as the gifts were not enough to distribute among relatives on Holi.
-  The mother-in-law taunted  Payal that her family  just came to have dinner on her birthday without any gifts for them
-  On the occasion of “Nirjala Ekadashi”,  the  mother-in-law was not happy on seeing the  fruits, clothes and cash  sent by the father of the deceased  and she questioned  the deceased  what Gaurav saw in  Payal  and that she could get 20 others like her for Gaurav.
-  The deceased was beaten up by her husband on the road and that the deceased came to her parent‟s house and two days  later,the petitioner with Gaurav came to the parent‟s house   and apologized and assured that demands of car and bikes would not be made and took the deceased back.
-  Three to four months after the marriage,  on  Raksha Bandhan suits,  diamond ring and  Rs.5,100/-  were given to Payal and Gaurav whereupon  Payal‟s  brothers-in-law argued and quarreled with her that they had not got anything for them.
-  The petitioner, his wife and Gaurav demanded  a Duster Car and brothers-in-law demanded motor cycles.
-  PW-4 took dry fruits, sweets, Rs.2,100/-  for Gaurav,  Rs.1,100/-for other family members and a fully automatic washing machine on Diwali to which the mother-in-law quarreled with Payal about gold coins and clothes not being given and that PW 4 assured that the same would be given next morning. 

8.  The defence  set up by  the accused  in  the cross-examination of the six witnesses is that Gaurav and Payal were having a love affair for more than three-and-a-half years; Payal‟s father came to know of the said love affair about  two to  three months before the marriage; Gaurav‟s family approached Payal‟s family for marriage in pursuance to which  Gaurav and Payal got married on  23
rdFebruary, 2012;  Payal was insisting her husband to separate from the joint family house  immediately  to which Gaurav was  not agreeable  as he wanted to  separate  after Diwali;  Payal was a stubborn,  aggressive and emotional girl;  Payal wanted to lead an independent modern life with her husband separate from her in laws;  Payal attempted to commit suicide  twice  before;  Payal purchased Phenyl for committing suicide if Gaurav did not separate from the joint family;  Payal committed suicide because of her obstinacy for shifting immediately; Payal‟s sister also threatened to
commit suicide as she did not want to stay with her husband;  the accused  persons have  furniture showrooms  at Geeta Colony,  New Lahore Colony, Shastri Nagar,  a house at Anarkali  and a plot allotted by DDA at Rohini  besides the 200 sq. yard house at Bank Enclave; the interior decoration of the house of accused was done by Payal;  the  relationship between Payal and the accused were cordial;  the atmosphere at the joint family house was calm and cordial;  photographs show Payal being happy with Gaurav and the other accused persons in various events;  Payal is shown feeding cake to Himanshu  in  a  clipping of Himanshu‟s (one of the coaccused and brother-in-law of Payal) birthday on 21st August, 2012;  Payal stayed with her mother-in-law for her cataract operation at the Centre for  Sight  for three days;  the complainant and his family have  leveled false allegations against the accused persons regarding demand of dowry and torture out of emotion and vengeance;  the complainant engaged a private counsel from the very beginning; the complainant‟s family gave statements to the police after consulting a lawyer and taking advise from the police.

9.  In  Narender Singh Arora  v.  State, 2010 (173) DLT 244, this Court noted that whenever a woman dies an unnatural death within seven years of her marriage at in-laws' house, whatever be the cause of death, the  parents of the deceased want the  in-laws  to be hanged. This Court observed truth is losing significance because of the ego of the litigants to see that in-laws should be hanged.This Court further observed that normally in-laws are convicted on the  testimonies of parents of the girl who, in a fit of anger or because they had lost their daughter, are not prepared to believe that their daughter could commit suicide for any other reason. The testimony given by the complainant in such cases is not a normal testimony. The deceased‟s father and other family members who deposed in the court testified after the death of their daughter and their testimony is coloured with the loss they suffered due to sudden death of the daughter little realizing that she committed suicide not because of dowry demands but could be because of her fragile and sensitive nature.This Court  further  observed  that suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons, some are  not able to bear the normal stresses which are common in life; some are not able to cope up with the circumstances in which they are placed; and some commit suicide because of frustration of not achieving the desired goals. There are many cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position, some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her in-laws' house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her in-laws.
10.  In  Hari Gopal Wadhwa  v.  State, (143) 2007 DLT 210, this Court observed that no doubt, an unnatural death is always a cause for concern and if proved that the daughter-in-law of the family was compelled to take her own life as it was rendered not worth living by the in-laws, they must suffer. But personal liberties have to be preserved, meaning thereby, in an appropriate case, accused has to be set free till trial concludes.

11.  On careful examination of the statements of the six witnesses, this Court is of the prima facie view that although it is difficult to say ultimately what shape  the trial would take after completion of the entire evidence, but if ultimately it is found on evidence that Payal was a very sensitive person and committed suicide because she could not bear the pressure of living in joint family, the possibility of the  petitioner succeeding in establishing their defence cannot be ruled out.

12.  The petitioner as well as four other family members namely, his wife  and  three  sons  including the husband of the deceased  are in custody since 13th November, 2012.

13.  The petitioner  himself had informed the complainant about the demise of Payal without any delay.

14.  There was no ante-mortem injury on the  body  of the deceased.

15.  There is no possibility of the petitioner influencing any witness  since the statements of the six material  witnesses have already been recorded by the learned Trial Court.

16.  There is no material to show that if released on bail, the petitioner will misuse the liberty granted to him to subvert the justice.

17.  In view of the aforesaid, the bail application is allowed  and the petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs.1,00,000/-  with one surety in the like amount to the satisfaction of the concerned Court. The petitioner is directed to surrender his passport, if any, with the Trial Court and  he  shall not leave the country  without  prior permission of the Court.

18.  All  observations made hereinabove for the purpose of dealing with the bail application  and  shall not  be considered at the time of trial of the case.

19.  Dasti.
J.R. MIDHA, J.
NOVEMBER 19, 2013

Tuesday, October 29, 2013

Supreme court Quashes says Courts should be cautious in implicating family members’ in dowry case

Supreme court Quashes says Courts should be cautious in implicating family members’ in dowry case 

Supreme Court of India Geeta Mehrotra & Anr. vs State Of U.P. & Anr. on 17 October, 2012

Author: G S MisraBench: T.S. Thakur, Gyan Sudha Misra, , , ,

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTIONCRIMINAL

 APPEAL NO. 1674 OF 2012(Arising out of SLP (Crl.) No. 10547/2010)

Geeta Mehrotra & Anr. ..Appellants
Versus
State of U.P. & Anr. . Respondents

Geeta Mehrotra & Anr. vs State Of U.P. & Anr. on 17 October, 2012
Head Note:-
Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 323, 498A, 504 and 506 - Dowry Prohibition Act, 1961 - Sections 3 and 4 - Quashing of FIR - Family members of a person should not be implicated in a dowry case just because their names have been mentioned in the complaint without any specific allegation levelled against them.
Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 323, 498A, 504 and 506 - Dowry Prohibition Act, 1961 - Sections 3 and 4 - Quashing of FIRMere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them.  
Held:- The courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives or the FIR prima facie discloses a case of over-implication by involving the entire family at instance of the complainant, who is out to settle her scores arising out of teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 323, 498A, 504 and 506 - Dowry Prohibition Act, 1961 - Sections 3 and 4 - Quashing of FIR - Family members should not be implicated unless FIR discloses specific allegations against the relatives who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. 
Held:- If the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of legal and judicial process to mechanically send the named accused in the FIR to undergo trial.
Practice and ProcedureQuashing of FIR - If the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law.
J U D G M E N T

GYAN SUDHA MISRA, J .
1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.
2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) againsther husband, father-in-law, mother-in-law, brother-inlaw and sister-in-law. This appeal has been preferred by the sister-in-law, who is appellant No.1 and brotherin- law of the complainant, who is appellant No.2.
3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary ofRs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in-laws.
4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was notgetting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.
5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-inlaw and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go withhim immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.
6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For manydays the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-inlaw and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may dowhatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.
7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in-law’s place in order to live with her father where she lodged a police case as stated hereinbefore.
8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabadstarted investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.
9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter-alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of thecomplainant got the arrest warrant issued through George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.
10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.
11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlookedas the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.
12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-inlaw and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictionsindicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from the family of her ex-husband Shyamji Mehrotra and his family members.
13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.
14. The High Court further overlooked the fact that during the pendency of this case, the complainantrespondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of thecomplainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.
15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugnedorder dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.
16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it wasbeyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of theSupreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.
18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her. The High Court, therefore, ought to have considered thateven if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.
19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reportedin (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it outin a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman fromsettling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.
22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side-tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.
23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remainsthat the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising outof matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish ofdomestic bickering while settling down in her new matrimonial surrounding.
25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.
26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.
27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.


……………………………J(T.S. Thakur)
……………………………J(Gyan Sudha Misra)
 
New Delhi,October 17, 2012

SOURCE :- http://judis.nic.in/supremecourt/imgs1.aspx?filename=39680