LegalManthan498aDowryMisuse

Husband, in-laws acquitted in dowry harassment case Dowry harassment law misused for extortion: Delhi Court Dr.Kamini Lau

2011-10-14T04:47:00.000-07:00

Husband, in-laws acquitted in dowry harassment case. Dowry harassment law misused for extortion: Delhi Court Dr.Kamini Lau

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE (NW)II:ROHINI COURTS:DELHI.

Criminal Appeal No. 4/2011

State Vs. 1. Sanjay Kumar
S/o Vijay Kumar Gupta
R/o 279/2, Rahul Garden,
near Shiv Mandir Pretha, Hazipur
Distt. Distt Gazipur, U.P.

2. Vijay Kumar
S/o Jagminder Shah
R/o 279/2, Rahul Garden,
near Shiv Mandir Pretha, Hazipur
Distt. Distt Gazipur, U.P.

3. Smt. Beena Devi
W/o Vijay Kumar
R/o E1/
28, Sultanpuri, Delhi.

4. Ranjeet
S/o Vijay Kumar
R/o E1/ 28, Sultanpuri, Delhi.

O R D E R
16.9.2011

Vide this order, I propose to decide the appeal filed on behalf of the State, under Section 378 Cr.PC against the order of acquittal passed by Ms. Vandana, Ld. MM on 29.4.2011 in case FIR No. 679/99 Police Station Jahangirpuri, Under Section 498A/406/34 Indian Penal Code acquitting the accused / respondents.

It has been pleaded that the impugned order is unlawful, unreasonable and miscarriage of justice. It is pleaded that Ld. MM failed to appreciate the testimony of PW1 on oath is substantive against the accused and has wrongly based the impugned order on the testimony of hostile witnesses. It is further pleaded that the impugned order is completely silent about the evidence pertaining to offence under Section 406 IPC despite specific allegations made by the complainant that the stridhan are still in the custody of the accused.

According to the respondents, the complainant Veena has already settled the matter with them vide a memo of understanding dated 28.8.2000 duly signed by the complainant in the presence of the witnesses and also received all the stridhan and a cash amount of Rs.25,000/towards her past, present and future alimony one for all, copy of which has been placed on record by the respondents.

The complainant on the other hand has repeatedly deposed to the effect that her inlaws used to harass her father for demand of dowry and for other reasons, but her testimony does not find any corroboration from any other source, both her brother and father who appeared as her witnesses not having uttered a single word in the court despite examination by the Addl. PP for the State.

PW7 W/SI Uma Bhardwaj has proved having received a complaint regarding harassment and cruelty and also proved that she tried for reconciliation but could not be materialized and it is for this reason that the FIR was got registered. The testimony of the father and the brother of the complainant are contradictory to the testimonies of the complainant Veena. They did not support any allegations made by the complainant though there are allegations by the complainant that the accused had told her father that he would not see her alive if she will not bring scooter, colour TV, fridge and gold chain and she objected to the accused not to give such treatment to her father, but her father PW4 Anant Kumar does not corroborate what she has stated. She has further alleged that she was beaten up bitterly and remained in the hospital and it was her father who spent the money for her treatment, but again her father does not corroborate her testimony in this regard and has not spoken even a word against the accused. It is writ large that the oral testimony of the complainant does not find any corroboration from any independent source and despite their being sufficient opportunity in this regard she has also not produced any medical record to prove any physical assault upon her or if she had been treated in any government hospital nor she has examined any doctor to prove the copies of the documents placed on record by the prosecution.

The trial court record has been duly received and perused. I have also gone through the evidence available on record and the arguments advanced before me. I may observe that the only evidence supporting the case is the testimony of PW1 Smt. Veena, which testimony does not find any independent corroboration from any source, rather, her younger brother i.e PW3 Manoj Kumar has resiled from his earlier statement and has specifically deposed that as of now his sister Veena has no concern with the accused now and she would take a divorce from the accused and has denied the suggestion that the accused persons had harassed his sister or misappropriated her stridhan articles. Further, the PW4 Anant Prashad who is the father of PW1 Veena whom she calls Phoofa. He has also testified in the Court to the effect that she has no concern with the accused persons as of now and would take divorce. He has denied the suggestion that Veena had been harassed by the accused persons or her stridhan had been misappropriated by them. The police witness are only the formal witnesses who had formally arrested the accused who were on anticipatory bail.

In this background, this being so, it is not safe to rely upon the uncorroborated testimony of the complainant which does not find any corroboration from any independent source I may further observe that Section 498A IPC in the recent years has become consummate embodiment of gross human rights violation, extortion and corruption and even the Apex Court of our country had acknowledged this abuse and termed it as Legal Terrorism. The provisions of Section 498 A IPC are not a law to take revenge, seek recovery of dowry or to force a divorce but a penal provision to punish the wrong doers. The victims are often misguided into exaggerating the facts by adding those persons as accused who are unconnected with the harassment under a mistaken belief that by doing so they are making a strong case as has happened in the present case where the complainant has involved the entire family of the husband i.e. father in law, mother in law and brother in law.

Courts cannot be a party to any kind of exploitative situation and it is necessary for every complainant to remember that it is only an honest complaint which succeeds in law where contents are supported by facts on the ground and persons, who are not connected with the harassment, should never be arrayed as accused. The platform of the courts cannot be permitted to be used to wreck personal vendetta or unleash harassment and the tendency of the complainants to come out with inflated and exaggerated allegations by roping in each and every relation of the husband is required to be deprecated. The obligation of the court is to ensure that innocent persons are not put to harassment and to curtail the frivolous allegations at the earliest stage by looking for due corroboration from the facts. [Ref.:Savitri Devi vsRamesh Chand & Ors. CRL (R) No. 462/2002 decided on 30.5.2003; Criminal Appeal No. 33941/ 05 dated 2.3.2010, Delhi High Court; Arjun Ram vsState of Jharkhand & Anr. reported in 2004 CLJ 2989; Mukesh Rani vsState of Haryana reported in 2002 (1) RCR (Criminal) 163 and Anu Gill vsState & Anr. reported in 2001 (2) JCC (Delhi) 86]

Before ending, a word of advise for the complainant that not all relationships in this world are successful. In fact most relationships which appear to succeed are only based upon compromises. Let go the past which is painful since attaching yourself to it will only give pain and miseries and help none. In the words of the famous poet Sahir Ludhyanvi Taaruf rog ho jaaye to usko bhoolna behtar; Taalluk bojh ban jaaye to usko todna achcha;Vho afsaana jise anjaam tak laana na ho mumkin; Use ek khoobsoorat mod dekar chhodna achcha. Now is the time for the complainant to move forward in life by leaving the past behind.

When the entire family of the complainant including her own father and brother have not supported her version in the Court, perhaps wanting her to move on in life, how then can one find fault with the order of the Ld. Trial Court. I find no infirmity or irregularity in the impugned order of Ld. Trial Court warranting interference. The grounds raised in the appeal are devoid of merits and consequently the appeal is dismissed.

Trail Court record be sent back along with copy of this order be sent. Appeal file be consigned to Record Room.

Announced in the open court

(Dr. KAMINI LAU)
Dated: 16.9.2011 ASJ (NW)II:
ROHINI

Is the Apex court legalising DOWRY giving !

2011-03-10T12:08:00.001-08:00

A woman and her family members cannot be treated as accused under the Dowry Prohibition Act for giving dowry at the time of marriage, the Supreme Court has said. A bench of Justices HS Bedi and CK Prasad upheld the Delhi High Court verdict that quashed a criminal case against a girl stating a dowry harassment victim was protected under the law and, could not be charged under the Act.

Two separate benches of the Delhi HC had taken divergent views on the issue. While Justice SN Dhingra (since retd) held the woman and her family could be prosecuted for giving dowry, Justice Ajit Bharihoke had said it could not be done.

The latter judgment held that section 7 of the Dowry Prohibition Act provided protection to the person who was a complainant under the law. Section 3 of the Act makes giving, accepting or abetting dowry an offence.

The SC order clarifies the legal position regarding the culpability of an alleged dowry-giver bride. It dismissed the appeal against Justice Bharihoke’s verdict filed by the husband who claimed that the judge could not have delivered it as the law was settled by Justice Dhingra.

The bench, however, dismissed the petition and said, “The girl is a victim and you want her to be prosecuted also. Then 498A (dowry harassment section) would be rendered nugatory.”

Vijary Aggarwal counsel for the woman who faced the case for giving dowry, contended there should be harmonious construction of the Act.

Justice Bharihoke had in October 2010 quashed a metropolitan magistrate’s order that directed registration of a case under the Act against a woman. The case was registered following a complaint made before the court by the husband.

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Full text of SC order

ITEM NO.14 COURT NO.7 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).1339-1340/2011
(From the judgement and order dated 20/10/2010 in WP No.
501/2010 & CRLMA No. 3921/2010 of The HIGH COURT OF DELHI AT N.
DELHI)
SAMEER SAXENA Petitioner(s)
VERSUS
STATE OF NCT OF DELHI & ANR Respondent(s)
(With appln(s) for exemption from filing c/c of the impugned
Judgment)
Date: 07/03/2011 These Petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE HARJIT SINGH BEDI
HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
For Petitioner(s) Mr. Gagan Preet Singh, Adv.
Mr. Karan Bir singh, Adv.
Mr. Rameshwar Prasad Goyal, Adv.
For Respondent(s) Mr. Vijay Aggarwal, Adv.
Mr. Rajnish Kumar singh, Adv.
Mr. Tanmay Mehta, Adv.
Ms. Manjusha Wadhwa, Adv.
UPON hearing counsel the Court made the following
O R D E R

Heard the learned counsel for the parties.
We see no reason to interfere in the Special
Leave Petitions which are, accordingly,
dismissed.

(KALYANI GUPTA) (VINOD KULVI)
SR. P.A. COURT MASTER

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Cases against women

Delhi police issues circular in 2007 asking its officers to register cases under the Dowry Act against women who marry despite dowry demand

Mar 19, 2010: Delhi court orders case against a woman saying she had willfully given dowry

Dec 4, 2008: Noida court orders case against woman.

http://www.hindustantimes.com/Relief-for-women-in-dowry-cases/Article1-671472.aspx

Supreme Court: Courts Can’t Impose Irrelevant Conditions of Wife’s Maintenance while granting Anticipatory Bail

2010-12-07T15:07:00.001-08:00

Supreme Court: Courts Can’t Impose Irrelevant Conditions of Wife’s Maintenance while granting Anticipatory Bail
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 344 OF 2009
(Arising out of S.L.P. (Criminal) No. 637 of 2008)
Munish Bhasin & Ors. … Appellants
Versus
State (Govt. of N.C.T. of Delhi) & Anr. … Respondents
J U D G M E N T
J.M. PANCHAL, J.
1. Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.

2. Heard Counsel.

3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code.

4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them.

5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02, 2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.

7. From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under subsection (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including

(i) a condition that a person shall make himself available for interrogation by police officer as and when required,

(ii) a condition that the person shall not, directly or indirectly, make 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 any police officer,

(iii) a condition that the person shall not leave India without the previous permission of the Court and

(iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, interalia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make 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 any police officer or tamper with the evidence.
The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

8. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and subsection (3) of Section 437 of the Code. Normally, conditions can be imposed

(i) to secure the presence of the accused before the investigating officer or before the Court,

(ii) to prevent him from fleeing the course of justice,

(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or

(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code.

While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and
appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.

9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.

10. The Appeal is accordingly disposed of.

…………………………J. [R.V. Raveendran]
…………………………J. [J.M. Panchal]
New Delhi; February 20, 2009.

Delhi HC – Put all FIR online-a facet of Article 21 of the Constitution of india-Section 74 of the Evidence Act-Section 207 Crpc

2010-12-07T13:37:00.001-08:00

* THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: , 22nd September, 2010

% Judgment Pronounced on: 6th December, 2010

+ WP(Crl.) No. 468/2010

COURT ON ITS OWN MOTION

THROUGH MR. AJAY CHAUDHARY ..... Petitioner Through: Dr. L.S. Chaudhary, Mr. Mathew D.,

Advocates

Mr. Arvind Nigam, Sr. Adv., Amicus

Curiae with Mr. Raghu Tandon, Adv.

versus

STATE ..... Respondent Through: Mr. A.S. Chandhiok, ASG with

Mr.Pawan Sharma, Standing Counsel

for State (Criminal)

CORAM:

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE MANMOHAN

1. Whether reporters of the local papers be allowed to see the judgment? Yes

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

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

DIPAK MISRA, CJ

The fundamental issue that has emerged for consideration in this writ

petition that has been instituted on the basis of a letter sent to this Court is

whether an accused is entitled to a copy of the First Information Report after

it is lodged and if so, what steps are required to be taken to facilitate its

availability as the liberty of an individual is inextricably linked with his right

to be aware how he has been booked under law and on what allegations.

Liberty and freedom are the strongest passion of men and many have

WP(Crl.) No.468/2010 Page 1 of 35 sacrificed their lives for the cause of liberty. No one has ever conceived it as

an arduous contrivance, a distant notion to be achieved by fortunate

moments but as a basic human right. Liberty and life are in wedlock in a

civilized society with the pledge not to tolerate the idea of separation. Jose'

Marti has described liberty thus:

Like bone to the human body, and the axle to the wheel, and the song to a bird, and air to the wing, thus is liberty the essence of life.

2. Regard being had to the aforesaid concept, we now proceed to deal

with the issue. At the very initial stage of adjudication, on 28.4.2010, the

learned standing counsel for the State submitted that a scheme has been

formulated in respect of the supply of First Information Report to the

accused. A statement was made that further time would be required to set up

a suitable mechanism for providing copies to the accused persons in certain

categories of cases.

3. On 04.08.2010, Mr. Chandhiok, learned Additional Solicitor General,

submitted that when an FIR is registered under Section 154 of the Code of

Criminal Procedure (for short the Cr.P.C.), the same is sent to the

Magistrate within 24 hours even if the accused is not apprehended. It was

his further submission that this Court can issue a direction that anyone can

file an application for obtaining the certified copy of the FIR and that would

subserve the purpose. On that date, this Court directed the Registrar General

of this Court to examine the aforesaid facet and submit a report. Mr.Arvind

Nigam, learned senior counsel, was appointed as the Amicus Curiae to assist

WP(Crl.) No.468/2010 Page 2 of 35 the Court. On the basis of the aforesaid order, the Registrar General of this

Court has submitted a report. Be it noted, the Registrar General has given

certain suggestions on which there was a debate at the bar on various issues.

It is also worth noting that the learned amicus curiae and the learned counsel

for the petitioner, Dr. L.S. Chaudhary, who appeared on behalf of Mr. Ajay

Chaudhary, who had invoked the jurisdiction of this Court, have given their

respective suggestions.

4. Presently to the scheme under the Cr.P.C. Section 154 of the Cr.P.C

requires a police officer to reduce in writing any information given to him

disclosing the commission of a cognizable offence. It is also incumbent that

the FIR is to be signed by the person giving it. The said provision being

relevant for the present purpose is reproduced hereinbelow:

"Section 154 - Information in cognizable cases-

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied

WP(Crl.) No.468/2010 Page 3 of 35 that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

5. On a scanning of the anatomy of Section 154 of the Cr.P.C., it is clear

as crystal that certain conditions are to be satisfied for recording of the first

information. The Apex Court in State of Haryana & Ors. v. Ch. Bhajan

Lal & Others, AIR 1992 SC 604 has enumerated the conditions which are

sine qua non for recording the First Information Report. We think it

appropriate to reproduce the relevant paragraph from the said decision:

31. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non- qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer incharge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an

WP(Crl.) No.468/2010 Page 4 of 35 officer incharge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973(Act II of 1974). An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.

6. Section 155 of the Cr.P.C. provides for information as to non-

cognizable cases and investigation of such cases. Section 156 of the Cr.P.C.

deals with the police officer's power to investigate into cognizable cases.

After investigation, when a final report is submitted by the police, the

Magistrate has a role under Section 156(3) of the Cr.P.C. Wherever the

Magistrate chooses to take cognizance, he can adopt certain alternatives as

has been stated by a three-Judge Bench of the Apex Court in Tula Ram &

Ors. v. Kishore Singh, AIR 1977 SC 2401.

7. Section 157 of the Cr.P.C. deals with the procedure for investigation.

The said provision is reproduced hereinbelow:

Section 157 - Procedure for investigation-

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to

WP(Crl.) No.468/2010 Page 5 of 35 take measures for the discovery and arrest of the offender:

Provided that

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer (to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not

investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

8. Section 207 of the Cr.P.C. which deals with the supply of copies to

the accused is as follows:

207. Supply to the accused of copy of police report and other documents.-

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such

WP(Crl.) No.468/2010 Page 6 of 35 exclusion has been made by the police officer under sub- section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

9. To understand the present provision and the authorities in the field, it

is apposite to refer to Section 173(4) of the Code of Criminal Procedure,

1898. It read as follows:

173(4). After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to

examine as its witnesses.

On a reading of the said provision, it is luculent that there was a

statutory duty on the police officer to furnish to the accused free of cost

copies of the police report, first information report under Section 154 and all WP(Crl.) No.468/2010 Page 7 of 35 other documents and relevant extracts after forwarding the report and before

the commencement of the enquiry or trial but the legislature thought it

appropriate to introduce Section 207 to confer the power on the Magistrate

to supply copies of the documents specified in the section to the accused free

of cost. This is an obligation and a duty cast upon the Magistrate to see that

they are furnished. We may hasten to clarify that we are presently only

concerned with the supply of the copy of the FIR. In the course of our

discussion, we will refer to the decisions to show how the courts had dealt

with the right of an accused to get a copy of the FIR on payment of legal

fees at any stage even earlier than the stage under Section 173(4) of the old

Code.

10. Be it noted, lodging of FIR, launching of criminal prosecution,

investigation, facilitation of the trial by enabling the accused to defend

himself and speedy trial are the sacred pillars of dispensation of the criminal

justice system.

11. In Emperor v. Kampu Kuki, (1902) 11 Cal W N 554, Chief Justice

Prinsep and Mr. Justice Henderson observed thus:

The first information if recorded as directed by S.154 at the time that it is made, is of considerable value at the trial because it shows on what materials the investigation commenced and what was the story then told.

12. In Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501, it has

been held thus:

12. First information report in a criminal case is an extremely vital and valuable piece of evidence for the WP(Crl.) No.468/2010 Page 8 of 35 purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation .

13. The lodging of FIR has an object. The Apex Court in Hasib v. State

of Bihar, AIR 1972 SC 283 has observed thus:

4. .The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party .

14. In Vidyadharan v. State of Kerala, (2004) 1 SCC 215, it has been

held that delay in lodging of FIR cannot be a ground to arouse suspicion and

it can only be so when the delay is unexplained. Similar view has also been

expressed in State of Punjab v. Ramdev Singh, AIR 2004 SC 1290. When

the delay is not satisfactorily explained, the same creates doubt as to the

genuineness of the prosecution. It has been ruled in State of Punjab v. Ajaib

Singh & Ors., AIR 2004 SC 2466 that if the explanation is not satisfactory

in the facts of the case, the same might have been due to long deliberation

questioning on its credence and acceptability.

WP(Crl.) No.468/2010 Page 9 of 35

15. It is apposite to note that once an FIR is lodged and the conditions

precedent are satisfied, it is the statutory duty of the police to investigate a

cognizable offence and in case it is not investigated, the informant can take

recourse to other modes as provided under the Cr.P.C. but we have dealt

with the aforesaid provisions only to highlight the significance of lodging an

FIR and the duty of the investigating authority under the Code. The

submission of Mr. Nigam, learned senior counsel, is that an FIR which is

recorded under Section 154 of the Cr.P.C. is to be recorded in terms of the

Punjab Police Rules, 1954 under the Indian Police Act, 1861 as extended to

Delhi in terms of Rule 24.1 thereof and in terms of Rule 24.5(1), an FIR is

required to be filled up in Form 24.5(1). A copy of the FIR is required to be

sent to the Superintendent of Police and to the Magistrate under Rule 24.5(b)

immediately and the said Magistrate is required to initial the same and note

the date and time of receipt, etc. That apart, submits Mr. Nigam, the police,

in terms of Section 157 of the Cr.P.C., is also required to submit to the

Magistrate forthwith the report of investigation, etc. It is contended by him

that recording of an FIR is an official act of a public official in discharge of

his official duties and, therefore, it becomes a public document within the

meaning of Section 74 of the Evidence Act, 1872. It is contended by him

that being a public document, every public officer having in custody thereof,

which any person has right to inspect, shall give to that person on demand a

certified copy thereof in terms of Section 76 of the Evidence Act, 1872. The

learned senior counsel further urged that under Sections 437, 438 and 439 of

the Cr.P.C., an accused is required to satisfy the Court in respect of the

WP(Crl.) No.468/2010 Page 10 of 35 matters specified therein before the Court may admit the accused to bail and

such right cannot be exercised by the accused in the absence of knowing the

substance of the allegations made against the accused if a copy of the FIR is

denied.

16. First, we shall refer to Section 74 of the Evidence Act. It reads as

follows:

74. Public documents. The following documents are public documents:-

(1) documents forming the acts, or records of the acts- (i) of the sovereign authority.

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, [of any part of India or of the

Commonwealth], or of a foreign country;

(2) public records kept [in any State] of private documents.

17. Section 76 of the Evidence Act being pertinent is reproduced below:

76. Certified copies of Public Documents- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

WP(Crl.) No.468/2010 Page 11 of 35

18. A Division Bench of Allahabad High Court in Shyam Lal v. State of

U.P. and Others, 1998 Crl. L.J. 2879 has ruled that the First Information

Report is a public document.

19. In Chnnappa Andanappa Siddareddy and others v. State, 1980 Crl.

L.J. 1022, it has been held thus:

The FIR being a record of the acts of the public officers prepared in discharge of the official duty is such a public document as defined under Section 74 of the Evidence Act. Under Section 76 of the Evidence Act, every public officer having the custody of a public document, which any person has a right to inspect is bound to give such person on demand a copy of it on payment of the legal fees therefor.

20. In this context, we may refer with profit to the decision in Munna

Singh v. State of M.P., 1989 Crl. L.J. 580, wherein a Division Bench of

Madhya Pradesh High Court has opined that a First Information Report is

not a privilege document under the Evidence Act.

21. Thus, there can be no trace of doubt that FIR is a public document as

defined under Section 74 of the Evidence Act.

22. Presently, coming to the entitlement of the accused to get a copy of

FIR, we may notice few decisions in the field. In Dhanpat Singh v.

Emperor, AIR 1917 Patna 625, it has been held thus:

It is vitally necessary that an accused person should be granted a copy of the first information at the earliest possible state in order that he may get the benefit of legal advice. To put difficulties in the way of his obtaining such a copy is only creating a temptation in the way of the officers who are in possession of the originals.

WP(Crl.) No.468/2010 Page 12 of 35

23. The High Court of Calcutta in Panchanan Mondal v. The State, 1971

Crl.L.J. 875 has opined that the accused is entitled to a copy of the FIR on

payment of legal fees at any stage. After so opining, the learned Judge

proceeded to deal with the facet of prejudice in the following terms:

The question of prejudice of the accused on account of the denial of the copy of the FIR at the earlier stage therefore assumes greater importance and on a proper consideration thereof, I hold that it is expedient in the interests of justice that a certified copy of the first information report, which is a public document, should be granted to the accused on his payment of the legal fees therefor at any stage even earlier than the stage of S.173(4) of the Code of Criminal Procedure. At the later stage of accused will have the right to have a free copy but the same would not take away the right he already has in law to have a certified copy of the first information report on payment of the legal fees.

24. In Jayantibhai Lalubhai Patel v. The State of Gujarat, 1992 Crl. L.J.

2377, the High Court of Gujarat has ruled thus:

6. whenever FIR is registered against the accused, a copy of it is forwarded to the Court under provisions of the Code; Thus it becomes a public document.

Considering (1) of the provisions of Art.21 of the Constitution of India, (2) First Information Report is a public document in view of S.74 of the Evidence Act; (3) Accused gets right as allegations are made against him under provisions of S.76 of the Indian Evidence Act, and (4) FIR is a document to which S.162 of the Code does not apply and is of considerable value as on that basis investigation commenced and that is the first version of the prosecution, as and when application is made by accused for a certified copy of the complaint, the Court to which it is forwarded should give certified copy of the FIR, if the application and legal fees thereof have been tendered for the same in the Court of law...

25. The situation can be viewed from the constitutional perspective.

Article 21 of the Constitution of India uses the expression personal liberty'.

WP(Crl.) No.468/2010 Page 13 of 35 The said expression is not restricted to freedom from physical restraint but

includes a full range of rights which has been interpreted and conferred by

the Apex Court in a host of decisions. It is worth noting, the great

philosopher Socrates gave immense emphasis on personal liberty'. The

State has a sacrosanct duty to preserve the liberties of citizens and every act

touching the liberty of a citizen has to be tested on the anvil and touchstone

of Article 21 of the Constitution of India, both substantive and also on the

canons of procedural or adjective law. Article 22 of the Constitution of

India also has significant relevance in the present context inasmuch as it

deals with protection against arrest and detention in certain cases. For the

sake of completeness, we think it apposite to reproduce Articles 21 and 22 of

the Constitution of India:

21. Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases -

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

WP(Crl.) No.468/2010 Page 14 of 35 (a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by

Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub- clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

WP(Crl.) No.468/2010 Page 15 of 35 (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

26. The Constitution Bench in Shri Gurbaksh Singh Sibbia and others v.

State of Punjab, (1980) 2 SCC 565 has held thus:

26. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.

27. In Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240,

it has been held thus:

the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.

28. In Ranjitsing Brahmajeetsingh Sharma v. State of Maharashtra and

another, (2005) 5 SCC 294, while reiterating that presumption of innocence

is a human right, the three-Judge Bench has held thus:

35. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exit cogent grounds therefor.

WP(Crl.) No.468/2010 Page 16 of 35

29. In State of West Bengal and others v. Committee for Protection of

Democratic Rights, West Bengal and others, (2010) 3 SCC 571, the Apex

Court has expressed thus:

68(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.

30. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699,

the Apex Court has observed that presumption of innocence is a human

right.

31. In this context, we may refer with profit the decision in Som Mittal v.

Government of Karnataka, (2008) 3 SCC 753, wherein it has been stated

thus:

46. The right of liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One is reminded to Charles Dickens's novel A Tale of Two Cities in which Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he was innocent.

32. The Apex Court in D.K. Basu v. State of West Bengal, AIR 1997 SC

610, while emphasizing on personal liberty in a civilized society on the

WP(Crl.) No.468/2010 Page 17 of 35 backdrop of constitutional philosophy especially enshrined under Articles 21

and 22(1) of the Constitution of India, has expressed thus:

22. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. In the said case, regard being had to the difficulties faced by the

accused persons and keeping in view the concept that the action of the State

must be right, just and fair and that there should not be any kind of torture,

their Lordships issued the following directions:

36. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

WP(Crl.) No.468/2010 Page 18 of 35 (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned

telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health

WP(Crl.) No.468/2010 Page 19 of 35 Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

33. Recently, in the decision rendered in Siddharam Satlingappa Mhetre

v. State of Maharashtra and others (Criminal Appeal No.2271/2010

decided on 2.12.2010), the Apex Court, while dealing with the concept of

liberty, has opined thus:

41. All human beings are born with some

unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty.

42. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence.

43. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the self-realization of the individual by way of

WP(Crl.) No.468/2010 Page 20 of 35 human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfil certain fundamental needs of human nature and was a means for development of individuals' personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-realization of the people.

After so holding, their Lordships referred to various jurisprudential

thought expounded by eminent jurists which we think it condign to

reproduce:

53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Guarantee of Liberty" that whatever, `liberty' may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals."

54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one's person to

whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due process of law".

X X X X X X X X X

57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body".

WP(Crl.) No.468/2010 Page 21 of 35 Thereafter, their Lordships referred to life and liberty under our

Constitution and opined thus:

61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.

In this regard, we think it seemly to reproduce paragraphs 71 and 72

of the said decision:

71. The object of Article 21 is to prevent

encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph Addision, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Others (1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part.

72. This court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo Nath Ganguly and Another (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the contrary in the statute, Court must take cognizance of that fact and act accordingly.

34. From the aforesaid enunciation of law, it is graphically vivid that fair

and impartial investigation is a facet of Article 21 of the Constitution of

India and presumption as regards the innocence of an accused is a human WP(Crl.) No.468/2010 Page 22 of 35 right. Therefore, a person who is booked under criminal law has a right to

know the nature of allegations so that he can take necessary steps to

safeguard his liberty. It is imperative in a country governed by Rule of Law

as crusaders of liberty have pronounced Give me liberty, or give me death'.

Not for nothing it has been said that when a dent is created in the spine of

liberty, it leads to a rainbow of chaos.

35. At this juncture, we may profitably refer to a part of the first Menon &

Pai Foundation Law Lecture delivered at Cochin by Lord David Pannick,

Queen's Counsel, wherein he has spoken thus:

We should respect human rights in difficult times as well as in tolerable times because we are battling against terrorism precisely so that we can maintain a democratic society in which we enjoy individual liberty, the right to debate and dissent, and all the other freedoms that we cherish and which the terrorists abhor. To discard those values even temporarily, devalues all of us. And it would hand a victory to the terrorists, part of whose goal is to destroy the values we cherish and they despise.

The aforesaid luminously throws the laser beam on the cherished

value of liberty.

36. In this context, it is apt to note that the right to know has its own

signification. The protagonists of modern democracy plead and preach with

immense enthusiasm and rationally support the principle that the collective

has a basic and fundamental right to know about things which are supposed

to be known by the society. In The State of Uttar Pradesh v. Raj Narain

and others, AIR 1975 SC 865, while dealing with a claim of privilege under

Section 123 of the Evidence Act, their Lordships have held as follows:

WP(Crl.) No.468/2010 Page 23 of 35

41. The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See 1973 AC 388 (supra) at p. 40). To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the State and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks v. Nott Bower. [1964] 1 All ER 717.

We have referred to the same only to show how a larger interest will

prevail over the private interest. It is basically in the realm of the doctrine of

striking of balance.

37. In S.P. Gupta v. Union of India and others, AIR 1982 SC 149, their

Lordships opined thus:

73. Now we agree with the learned counsel on behalf of the petitioners that this immunity should not be lightly extended to any other class of documents, but, at the same time, boundaries cannot be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document to

WP(Crl.) No.468/2010 Page 24 of 35 be disclosed, then it is in law immune from discolsure. If a new class comes into existence to which this principle applies, then that class would enjoy the same immunity.

Thereafter, their Lordships proceeded to state as follows:

74. It is necessary to repeat and re-emphasize that this claim of immunity can be justifiably made only, if it is felt that the disclosure of the document would be injurious to public interest. Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation whether its disclosure would hurt the State in its defence - should have no relevance in making a claim for immunity against disclosure. The sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court.

[Emphasis supplied]

38. In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express

Newspapers Bombay Pvt. Ltd. and others, AIR 1989 SC 190, their

Lordships, while dealing with the said issue, have ruled thus:

9. Elaborate arguments were advanced by counsel for both sides. It was contended that there was no contempt of Courts involved herein and furthermore, it was contended that pre-stoppage of newspaper article or publication on matters of public importance was uncalled for and contrary to freedom of Press enshrined in our Constitution and in our laws. The publication was on a public matter, so public debate cannot and should not be stopped. On the other hand, it was submitted that due administration of justice must be unimpaired. We have to balance in the words of Lord Scarman in the House of WP(Crl.) No.468/2010 Page 25 of 35 Lords in Attorney-General v. British Broadcasting Corporation, 1981 A.C. 303 at page 354, between the two interests of great public importance, freedom of speech and administration of justice. A balance, in our opinion, has to be struck between the requirements of free press and fair trial in the words of the Justice Black in Harry Bridges v. State of California, (86 Led 252 at page 260).

39. Thereafter, their Lordships referred to the decisions rendered in

Express Newspapers (Pvt.) Ltd. v. The Union of India, AIR 1958 SC 578,

State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699, In Re:

P.C. Sen, AIR 1970 SC 1821, C.K. Daphtary v. O.P. Gupta, AIR 1971 SC

1132, Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,

AIR 1986 SC 515, Harry Bridges v. State of California, 1941-86 Law ed

192, Abrams v. United States, (1918) 63 Law ed 1173, John D. Pennekamp

v. State of Flordia, (1945) 90 Law ed 1295, Nebraska Press Association v.

Hugh Stuart, (1976) 49 Law ed 2d 683, Attorney General v. British

Broadcasting Corpn., (1979) 3 All ER 45, Attorney General v. B.B.C.,

1981 AC 303, Attorney General v. Times Newspapers Ltd., (1974) AC 273,

Bread Manufacturers Ltd., (1937) 37 SR (NSW) 242 and eventually came

to hold as under:

38. In this peculiar situation our task has been difficult and complex. The task of a modern Judge, as has been said, is increasingly becoming complex. Furthermore, the lot of a democratic Judge is heavier and thus nobler. We cannot escape the burden of individual responsibilities in a particular situation in view of the peculiar facts and circumstances of the case. There is no escape in absolute. Having regard, however, to different aspects of law and the several decisions, by which though we are not bound, except the decisions of this Court referred to hereinbefore, about which we have mentioned, there is no decision dealing with this particular problem, we are of the opinion that as the Issue is not going to affect the WP(Crl.) No.468/2010 Page 26 of 35 general public or public life nor any jury is involved, it would be proper and legal, on an appraisal of the balance of convenience between the risk which will be caused by the publication of the article and the damage to the fundamental right of freedom of knowledge of the people concerned and the obligation of Press to keep people informed, that the injunction should not continue any further.

40. In Dinesh Trivedi, M.P. and others v. Union of India and others,

(1997) 4 SCC 306, while dealing with the facet of right to know, their

Lordships have expressed thus:

16. In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognised limitations; it is, by no means, absolute. This Court has had many an opportunity to express itself upon this issue. In the case of State of U.P. v. Raj Narain, (1975) 4 SCC 428, Mathew, J. eloquently expressed this proposition in the following words:

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the

common routine business, is not in the interest of the public. Such secrecy can seldom be

legitimately desired. It is generally desired for the purpose of parties and politics or personal self- interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the

WP(Crl.) No.468/2010 Page 27 of 35 chief safeguard against oppression and corruption.

[Emphasis added]

41. Be it noted, in the said case, their Lordships referred to the decision in

S.P. Gupta (supra) opining that the ordinary rule is that secrecy must be an

exception, justifiable only when it is demanded by the requirement of public

interest and eventually came to hold that to ensure the continued

participation of the people in the democratic process, they must be kept

informed of the vital decisions taken by the Government and the basis

thereof. Democracy, therefore, expects openness and openness is a

concomitant of a free society and sunlight is the best disinfectant. After so

stating, their Lordships have proceeded to state as follows:

19. But it is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision- makers in Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest.

42. As is evincible from our aforesaid analysis, we have adverted to the

singular issue from the schematic prism of the Code of Criminal Procedure,

the provisions contained in the Evidence Act, right under Article 21 and the

safeguards engrafted under Article 22 of the Constitution of India, the basic

human right and also the right to know and the limitations thereto be thought

WP(Crl.) No.468/2010 Page 28 of 35 of. Having dwelled upon the said facet, we shall now refer to the scheme

suggested by the learned Additional Solicitor General and combat put forth

by the learned counsel for the petitioner and also the suggestions given by

him.

43. The learned Additional Solicitor General has submitted the following

mechanism / procedure for obtaining a copy of FIR:

II PROCEDURE FOR OBTAINING COPY OF AN

FIR

I) FIRST APPLICATION

a. The applicant (accused person himself / herself or blood relation duly authorized by accused) may submit an application along with a declaration on the prescribed form (Annexure A). It will be submitted at the concerned police station where the SHO will initiate immediate necessary action on the request.

b. The SHO will record the reasons for

recommending or opposing the request of the applicant and forward the same immediately to the ACP / Sub- Division.

c. The ACP / Sub-Division shall take a decision based on the above mentioned criteria and also keep in mind any other relevant factor depending upon the nature of the case.

d. Thereafter, the copy of the FIR or a letter of rejection will be sent by the ACP to the concerned police station from where it can be collected by the applicant within one week of the date of receipt of application. e. The applicant will be duly intimated about the rejection of his / her application by the ACP concerned in the prescribed format (Annexure B).

f. It shall be ensured by the ACP / Sub-Division that this entire process of supplying a copy or rejecting the request is completed at the most within seven working days from the date of receipt of the application.

WP(Crl.) No.468/2010 Page 29 of 35 II) APPEAL

a. In case the applicant fails to get copy of FIR within seven working days from the date of application, or the application is rejected by the ACP / Sub-Division, he / she can make an appeal to the concerned Addl. CP / DCP.

b. On receipt of an appeal, the Addl. CP / DCP shall consider the grounds of appeal and keeping in view the totality of the circumstances including the nature of allegations made in the FIR and the current state of the investigation, the Addl.CP/DCP shall pass a speaking order accepting or rejecting the said appeal.

c. The second appeal against the order of the Addl.CP/DCP shall lie with the concerned Jt.

COMPANY.

III. NON ENTITLEMENT OF FIR: In the following types of cases, copy of FIR will not normally be provided to the accused, and in such cases no reason would be required to be given for non supply of an FIR nor even any confirmation or otherwise be given whether FIR has been recorded or not:

a. Cases of kidnapping for ransom.

b. Cases of kidnapping and abduction.

c. Heinous cases with a component of trauma like murder, rape etc.

d. Cases in which desperate gangsters are involved and there is the danger of witnesses or the complainant being intimidated.

e. Other serious cases in which only one accused has been arrested while others may be at large and since the FIR contains the names of the complainant, eye- witnesses etc, there may be chances of undue advantage being taken either by the accused still at large to continue to evade arrest or his / their becoming a threat to the complainant or eye-witnesses etc.

f. Cases relating to terrorists and cases in which the contents of the FIR may deal with issues of National Security.

WP(Crl.) No.468/2010 Page 30 of 35 g. Other cases such as those registered under the Official Secrets Act etc. where there may also be serious security implications or scope of leakage of sensitive information by revealing the contents of the FIR.

IV. MEASURES TO ENSURE COPY OF FIR DOES

NOT FALL INTO UNAUTHORIZED HANDS

a. Copy of FIR being sent for information to the area Metropolitan Magistrate and senior officers will be properly marked ad stamped and dispatched in a sealed cover.

b. Steps will be taken by supervisory levels to maintain confidentiality by Delhi Police Officers.

c. An undertaking will be taken from the accused / relative in the prescribed declaration (Annexure A) that he / she will use it only for the bona fide purpose and entitlement under the law and no pass on the same or its contents to any unauthorized person / organization.

44. Mr. Ajay Chaudhary has filed an affidavit opposing the mechanism

suggested by the learned counsel for the State on the grounds that the

proposed mechanism is not capable of achieving the object required to be

achieved inasmuch as if an accused has no relation in Delhi then the copy of

FIR would not be supplied to him; that if the accused has severed his

relations with the relatives, then the accused will be deprived of the copy of

FIR; that if a person, from distant part of the country visits Delhi and he is

implicated in any offence / case in Delhi then it would not be possible for

him to get a copy of FIR; that there is no need for any declaration being

attested by a Gazetted Officer because an accused some time may not have

access to a Gazetted Officer which eventually amounts to denial of a copy of

the FIR to the poor and downtrodden person who is badly in need of

protection of law and that the mechanism proposed by the police will

increase unnecessary paper work and wastage of manpower and time and the WP(Crl.) No.468/2010 Page 31 of 35 hierarchical system of appeal and second appeal is totally impracticable and

that the suggestions given are fundamentally unworkable. Mr. Chaudhary

has given certain suggestions, namely, that the FIR should be recorded on

the computer and the person who operates the computer can give a printout

by asking the same which would lessen the use of manpower and minimize

the human resources; that if the copies of FIR are uploaded on the internet

on the website of the Delhi Police, a person desirous of taking the copy of

the FIR may download the same; that the higher officials of the police like

DCP or the Joint Commissioner who sometimes receive copies of FIR be

directed to supply the copy / certified copy on demand to anyone; that the

Ahlmad / Record Clerk concerned can be authorized to supply the copy of

FIR; that no authorization from the accused would be necessary as that

would cause unnecessary and improper delay and negate the concept of

access to justice; and the charges can be fixed keeping in view the provisions

of the Right to Information Act, 2005.

45. It is fruitful to note that though the aforesaid scheme was given by the

learned Additional Solicitor General during the debate and deliberation in

Court, yet he fairly conceded that the investigating agency has no objection

to put the First Information Report which do not relate to sensitive matters

on the Delhi Police website so that an accused or his relative can download

the same.

46. Keeping in view the law in the field, the entitlement of the accused,

the mechanism suggested by the learned Additional Solicitor General as well

WP(Crl.) No.468/2010 Page 32 of 35 as the learned counsel for the petitioner and regard being had to the concept

of striking of balance, as had been referred to earlier, we proceed to record

our conclusions and the directions as enumerated below:

(A) An accused is entitled to get a copy of the First Information Report at

an earlier stage than as prescribed under Section 207 of the Cr.P.C.

(B) An accused who has reasons to suspect that he has been roped in a

criminal case and his name may be finding place in a First

Information Report can submit an application through his

representative / agent / parokar for grant of a certified copy before the

concerned police officer or to the Superintendent of Police on

payment of such fee which is payable for obtaining such a copy from

the court. On such application being made, the copy shall be supplied

within twenty-four hours.

to the concerned Magistrate or any Special Judge, on an application

being filed for certified copy on behalf of the accused, the same shall

be given by the court concerned within two working days. The

aforesaid direction has nothing to do with the statutory mandate

inhered under Section 207 of the Cr.P.C.

(D) The copies of the FIR, unless reasons recorded regard being had to the

nature of the offence that the same is sensitive in nature, should be

uploaded on the Delhi Police website within twenty-four hours of

WP(Crl.) No.468/2010 Page 33 of 35 lodging of the FIR so that the accused or any person connected with

the same can download the FIR and file appropriate application before

the court as per law for redressal of his grievances.

(E) The decision not to upload the copy of the FIR on the website of Delhi

Police shall not be taken by an officer below the rank of Deputy

Commissioner of Police and that too by way of a speaking order. A

decision so taken by the Deputy Commissioner of Police shall also be

duly communicated to the Area magistrate.

(F) The word sensitive' apart from the other aspects which may be

thought of being sensitive by the competent authority as stated

hereinbefore would also include concept of privacy regard being had

to the nature of the FIR.

(G) In case a copy of the FIR is not provided on the ground of sensitive

nature of the case, a person grieved by the said action, after disclosing

his identity, can submit a representation with the Commissioner of

Police who shall constitute a committee of three high officers and the

committee shall deal with the said grievance within three days from

the date of receipt of the representation and communicate it to the

grieved person.

(H) The Commissioner of Police shall constitute the committee within

eight weeks from today.

WP(Crl.) No.468/2010 Page 34 of 35 (I) In cases wherein decisions have been taken not to give copies of the

FIR regard being had to the sensitive nature of the case, it will be

open to the accused / his authorized representative / parokar to file an

application for grant of certified copy before the court to which the

FIR has been sent and the same shall be provided in quite promptitude

by the concerned court not beyond three days of the submission of the

application.

(J) The directions for uploading the FIR on the website of the Delhi

Police shall be given effect from 1st February, 2011.

47. A copy of this order be sent to the Commissioner of Police to take

appropriate action to effectuate the directions in an apposite manner

so that grievances of this nature do not travel to court.

48. The writ petition is accordingly disposed of.

CHIEF JUSTICE

MANMOHAN, J

December 6, 2010

WP(Crl.) No.468/2010 Page 35 of 35

http://lobis.nic.in/dhc/DMA/judgement/06-12-2010/DMA06122010CRLW4682010.pdf

http://www.indiankanoon.org/doc/1807555/

Del HC-Justice Dhingra aquits Mother in-law of dowry death, slamming the trial court and public prosecutor for callousness. 'Criminal Justice System in India Needs Overhauling'

2010-12-04T02:44:00.001-08:00

Crl. Appeal No. 93 of 2004

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 1st October, 2010 Date of Order: 2nd December, 2010 +Crl. Appeal No. 93 of 2004
02.12.2010

RANI ... Appellant
Through: Mr. Bhanu Pratap Singh, Advocate

Versus

THE STATE OF NCT OF DELHI ... Respondents
Through: Mr. O.P. Saxena, Addl. PP for the State

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.

JUDGMENT
1. Present Appeal has been preferred against the Judgment dated 1st October, 2003, and order on Sentence dated 13th October, 2003, whereby the Appellant was convicted under Section 304B/498-A IPC read with Section 34 IPC and sentenced to undergo Rigorous Imprisonment for a period of 7 years with fine of `1,000/-.

2. Janki was married to son of the Appellant on 5th December, 2000. She committed suicide by hanging herself on 1st March, 2001. After her death, her brother Ved Prakash, PW-2 gave a statement to SDM that he had visited Janki’s house on 23rd February, 2001 and found her in a sad mood. She told him that her in- laws were asking for ` 50,000/- and a scooter as they wanted to open a shop and the scooter was required for roaming around. Ved Prakash stated that thereafter he talked to in-laws of her sister and told them that he would respond after thinking over. He asked them to send Janki with him. On this, he was told that they would take her to his house after 2-3 days. After that he received information that Janki had died. He expressed his doubt that his sister had been killed by her husband, parents of her husband and husband’s sister Kiran.

3. In the name of investigation, police took photographs of deceased, recorded statement of brothers of Janki, collected postmortem report about the cause of her death, and FSL report of viscera. Even the site plan of the place of suicide and of the house was not prepared. The postmortem report shows that there was no external injury on the body of Janki. The cause of death was given due to asphyxia. Ligature mark present on the neck showed that there was no ligature mark on left side of neck showing that ligature was caused due to hanging. FSL report showed presence of insecticide in the body. No investigation was done by the police on the aspect of purchase of insecticide or administration of insecticide etc. Charges against the accused persons were framed under Section 304B read with Section 498-A IPC read with Section 34 of IPC.

4. Prime witnesses in this case are PW-2 Ved Prakash and PW-7 Jai Prakash, the two brothers of the deceased Janki. Ved Prakash is the one who claimed to have visited Janki on 23rd February, 2001 and stated that Janki was in sad mood and she complained that her in-laws were demanding ` 50,000/- and a scooter. PW-7 Jai Prakash stated that Janki had come to his house in the village after about a week of her marriage and had told him that her in laws were demanding scooter and ` 50,000/-. He then sent his brother Jaidev @ Ali to the house of his sister Janki and this demand was repeated to him and Jaidev informed him about the demand.

5. PW-4 Laxman is 3rd brother of Janki. He testified that he had visited his sister at her matrimonial house after about a month of her marriage. He stayed there for few moments and at that time he had no talks with his sister. Thus, as per his testimony, no complaint was made to him by his sister about demand of `50,000/- and a scooter.

6. These three witnesses were practically not cross examined on the charges framed against the accused persons. The only cross examination done by the defence counsel was putting to the witnesses statement recorded under Section 161 Cr. P.C. and giving suggestion regarding denial of the demand.

7. On the basis of the testimony of two brothers i.e. PW-2 and PW-7, the appellant and other two accused persons were convicted under Section 304B/ 498-A/34 IPC.

8. It is apparent that the allegations were very vague in nature. Who demanded ` 50,000/- and scooter, whether it was the demand of husband or of mother-in-law or of father-in-law, when was it made – answers to all these questions are absent. Even if it is presumed that demand was made, the ingredients of Section 304B IPC were totally absent in this case as there was no evidence on record to show that cruelty of any kind was perpetuated on Janki for this demand. Section 304B IPC reads as under:

“(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

To bring home an offence under Section 304-B IPC it is an obligation of the prosecution to prove in those cases where death of a woman occurs within 7 years of her marriage, that soon before her death, she was subjected to cruelty or harassment by her husband or any other relative, in connection with a demand of dowry. Mere making of demand is not the only pre-requisite for proving an offence under Section 304B IPC. The prosecution was thus supposed to prove that the demand made by the accused was coupled with a harassment or cruelty in connection with the demand. Unnatural death can be called a dowry death only if, after making a demand of dowry, the accused perpetuates cruelty on the victim so that the demand made by him is got fulfilled by perpetuation of cruelty on the victim. If the alleged demand of dowry is not coupled with cruelty, harassment or any other such act on the part of accused, Section 304B of IPC would not be made out. In this case, none of the three brothers stated that cruelty was perpetuated on Janki or she was harassed by the appellant or by any other relative for not fulfilling the demand. I consider in these circumstances conviction of the appellant under Section 304B IPC was totally illegal and unjust. The conviction seems to be the result of a callous criminal justice system where neither the defence counsel prepared the case nor the prosecutor discharged his duty in an impartial manner nor the Judge considered it as his duty to see what offence was made out and everyone acted in a mechanical manner.

9. The other question arises whether the appellant could be convicted under Section 306 IPC i.e. for the offence of abetment of suicide, since the deceased committed suicide within three months of her marriage. In order to convict a person
for abetment of suicide, apart from proving suicide, it has to be proved that the appellant or accused was instrumental in commission of suicide. Section 113A of Evidence Act which raises a presumption regarding abetment of suicide in respect of
a married woman reads as under:

“113A. Presumption as to abatement of suicide by a married women - When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”

A perusal of above section would show that abetment of suicide of a married woman by relatives would be presumed by the Court if it is shown that her husband or such other relative of husband had subjected her to cruelty. In the present case, there is not an iota of evidence in respect of cruelty perpetuated upon the victim, either medical evidence or oral evidence. I, therefore, consider that that the appellant could not have been convicted even under Section 306 IPC.

10. It is seen that the Appellant herein belonged to a very poor family of vegetable seller. She had three young daughters and two sons. She herself was a house-wife and not working and that seems to be reason that during trial she and her husband and son could not engage a counsel with some experience who could have done justice to the brief. The witnesses were not cross-examined in a proper manner and cross-examination done to the witness was only to confront them with their statements under Section 161 Cr. P.C. Along with the Appellant, her husband and her son were also convicted. Even during Appeals, this family could not engage an efficient counsel and that is why her husband and son remained in JC during entire Appeal period. After undergoing entire sentence, they appeared in the court and stated that they do not wish to pursue their Appeals, so, the Appeals were dismissed.

11. A perusal of record shows that the deceased’s brother had made application before the Court for return of dowry articles and Istridhan during trial and gave a list of the articles given at the time of engagement ceremony (sagai) and marriage. The
list reads as under;

(i) One Silver Coin, (ii) One Three Piece Suit for Boy, (iii)
One Gold Ring, (iv) 51 Utensils, (v) Fruits and Dry Fruits,
(vi) Nine Sarees, (vii) Nine Gents Shirts, (viii) Four Pairs of
Clothes for Children and (ix) ` 501/-. At marriage the dowry list is as under;
(i) One Silver Coin, (ii) 5 Units of Clothes for Boy, (iii) One
HMT Wrist Watch, (iv) 27 Utensils (of Steel and Brass), (v)
Ear-ring (Kundal) + „LONG‟ of Gold for Girl, (vi) A set of
Silver pajeb + Key Ring, (vii) One Double-Bed with
Matress, Quilt and Pillow, (viii) One Chair, One Table, One
Stool, One Dressing Table, One Cooler, One Godrej
Almirah and One Small Box.

This list, prepared at the time of marriage was duly signed by husband Raju. The list would show that both parties belonged to poor strata of society and except ` 501/-, there was no cash transaction as dowry between the parties and the parties knew each-other’s financial position well. No question was asked about the list nor the investigating agency made the list as a part of their investigation nor the dowry list attracted attention of the Judge concerned. This list would have shown that it was not a case where dowry has been demanded. Where the parties knew that the status of girl was such that even at marriage and engagement ceremonies only ` 501/- cash was given, the husband of relatives would not have thought of demanding ` 50,000/- and scooter within few days of marriage. The most disturbing factor is that no evidence, whatsoever, was collected by the police about the real facts. No effort was made by learned Public Prosecutor or by Trial Judge to even go through the evidence and consider what charges were made out. Charges seemed to have been framed in a mechanical manner. No effort is seem to have been made by the Trial Judge either at the time of framing charge or later on as to what offence was made out.

12. Every suicide after marriage cannot be presumed to be a suicide due to dowry demand. The tendency of the Court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck.

13. There is an unfortunate development under criminal justice system that even in those cases where accused should be examined as a witness by the defence, the accused persons are not examined as a witness. In matrimonial offences, it is the accused and his family members who know what transpired within the family and they should always volunteer themselves as witnesses in the Court so that the Court gets their side of the version by way of evidence and testimony. Under Section 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When a death takes place within the four walls of matrimonial home, the husband and in-laws should come forward and depose as to what was the real cause of death. The criminal practice in India has been on the lines of old track that accused must not speak and he should not be examined as a witness. I do not know why this practice developed but in all matrimonial offences, this practice is shutting the doors of the Court, to the version of the other side, by their advocates.

14. Adversarial system of trial being followed in this country has turned most of the trial court judges into umpires and despite having sufficient power to ask questions to the witnesses and to find out truth, most of them do not ask questions to the witnesses to know the truth. In fact, the witnesses are left to the Advocates and the Judges just sit and watch. This tendency of being only umpires works heavily against the poor who are normally not defended by Advocates of competence and standing, as they cannot afford their fee. The Trial Courts, therefore, must shed their inertia and must intervene in all those cases where intervention is necessary for the ends of justice.

15. In this case the High Court did not find time to hear the appeals of other two appellants, who continued to remain in jail during trial period as well as appeal period for no crime. In all such cases where appellants are in jail and sentence is not suspended, the High Court should fix a time limit for disposing of such appeals. Neither the criminal should be let off by default as High Court has no time to hear appeals nor should the innocents rot in jail by default. The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the person with money or power, as is the case today.

16. The appeal is allowed. The appellant is acquitted.

DECEMBER 02, 2010 SHIV NARAYAN DHINGRA, J.
acm

http://lobis.nic.in/dhc/SND/judgement/03-12-2010/SND02122010CRLA932004.pdf

No 498-A after Foreign Divorce - an abuse of the process of criminal law another misuse of 498a 406

2010-11-20T11:38:00.001-08:00

No 498-A after Foreign Divorce - an abuse of the process of criminal law another misuse of 498a 406

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Criminal Misc. No. 37932-M of 2006
Partap Singh and another
Petitioners
Versus
State of Punjab and another
Respondents
2. Criminal Misc. No. 49931-M of 2006
Gurnam Singh
Petitioner
Versus
State of Punjab and another
Respondents
3. Criminal Misc. No. 59336-M of 2006
Gurdit Singh and another
Petitioners
Versus
State of Punjab and another
Respondents
Date of decision: 4th October, 2010
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Tarunvir Vashist, Advocate for Mr. Rajesh Gupta, Advocate for the petitioners. Ms. Sudeepti Sharma, DAG Punjab,
for the State.
None for respondent No.2.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
By this common order, three petitions viz. (1) Criminal Misc. No.37932-M of 2006 preferred by Partap Singh-father-in-law and Kulwant Kaur-mother-in-law (2) Criminal Misc. No.49931-M of 2006 preferred by Criminal Misc. Nos. 37932-M; 49931-M and 59336-M of 2006 2 Gurnam Singh-brother of the husband and (3) Criminal Misc. No.59336-M of 2006 filed by Gurdit Singh-elder brother of father-in-law and Tejinder Singh-husband shall be decided together.
FIR in these cases was lodged by Kulwinder Kaur, who was a citizen of United Kingdom. As per the FIR, she was resident of 7, Scribers Lane, Har Green Birmingham B-280 NY. The marriage of complainant-Kulwinder Kaur was solemnized with Tejinder Singh at Ludhiana on 8th May, 2004. It is not disputed that for solemnizing the marriage, complainant-Kulwinder Kaur came to India only one month before her marriage and thereafter she left for United Kingdom. Thereafter, immigration of her husband-Tejinder Singh was sponsored and he also left for United Kingdom on 24th October, 2004. Counsel for the petitioners has referred to the divorce proceedings (Annexures P-10 to P-14) between the husband and wife initiated and concluded in the Uxbridge County Court and has stated that all property and entrustment disputes between the parties have been resolved by the Matrimonial County Court while granting divorce. The matter has been investigated by the Ludhiana police. It is stated that the only allegation against the petitioners is that the dowry articles were entrusted to them in India and during the stay of complainant-Kulwinder Kaur in India, her husband and his relations had misbehaved with the complainant and had demanded a car. It is stated in the report under Section 173 Cr.P.C. (Annexure P-9) that Tejinder Singh reached United Kingdom on 24th October, 2004 and resided there with his father-in-law. On 24th February, 2005, he is stated to have left the house for an unknown place. For search of Tejinder Singh, the complainant- Kulwinder Kaur and her father came to India and a Panchayat was called, where on 17th August, 2005, mother-in-law, father-in-law, brother-in-law and uncle-in-law of the complainant had demanded dowry articles. The Criminal Misc. Nos. 37932-M; 49931-M and 59336-M of 2006 3 police after enquiry, had deleted the offence punishable under Sections 364 and 382 IPC, however they came to a conclusion that offence punishable under Sections 406, 498-A and 323 IPC was made out against the accused.
This is one of those typical cases, where after the marriage, bride and bridegroom have gone abroad. The wife is a citizen of United Kingdom. She had facilitated immigration of her husband, who had married a Non-Resident-Indian wife only for the purposes of his settlement in a foreign country. Having reached abroad, he deserted his wife and had obtained a divorce. The hurt of a Non-Resident-Indian wife that she has been used as a conduit for immigration, can be well understood. In this context, the allegations in the FIR have been examined. This Court cannot become oblivious of the fact that the husband and wife, after obtaining divorce, parted their ways and are residing happily in United Kingdom. The property and entrustment of the articles was a subject matter before the Uxbridge County Court, which has granted divorce. A similar controversy was examined by Hon'ble the Apex Court in 'Harmanpreet Singh Ahluwalia and others v. State of Punjab and others' (2009) 7 Supreme Court Cases 712, wherein it was held as under:
"32. Furthermore, the larger part of offence, if any, has been committed only in Canada. Why the father of Respondent 3 had to come from Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent 3 and the first informant do not say that the inquiry report submitted by the Superintendent of Police on the representation made by Appellant 2 was incorrect. It has also not been stated that as to on what material, the chargesheet had been submitted. we, in the peculiar facts and circumstances of this case, have absolutely no doubt in our mind that the allegations contained in the FIR had been made with an ulterior motive to harass Criminal Misc. Nos. 37932-M; 49931-M and 59336-M of 2006 4 the appellants. Continuance of the criminal proceeding against them would, therefore, amount to abuse of process of the Court."
Admittedly, Tejinder Singh had left the house in United Kingdom, thereafter, as to why the complainant-Kulwinder Kaur and her father came to India in search of Tejinder Singh and then they met the relations of husband where they made a demand of dowry articles? This is something which this Court cannot comprehend. This kind of allegations are not only unnatural, improbable and unconvincing but have been coined only as an abuse of the process of criminal law. It is another case where provisions of Sections 406 and 498-A IPC have been misused. The very fact that complainant aggrieved wife had stayed in India for less than one month and husband cohabited with complainant wife for a period of about six months i.e. from October 2004 to February 2005 in United Kingdom and thereafter, obtained divorce from County Court in United Kingdom settling all disputes is sufficient to hold that proceedings in the present case should be quashed. Hence, the above said three petitions are hereby accepted and the impugned FIR along with all subsequent proceedings is quashed.

[KANWALJIT SINGH AHLUWALIA]
JUDGE
October 4, 2010

http://www.indiankanoon.org/doc/1318745/

Advisary,Circular,Directions from High Courts of various states for 498a arrest guidelines

2010-11-20T11:10:00.001-08:00

Advisary,Circular,Directions from High Courts of various states for 498a arrest guidelines

http://498amisuse.wordpress.com/category/resource/ipc-498a/advisarycirculardirections-from-court/

Delhi district court-Three acquitted in dowry death case. Suicide due to Illicit relationship given color of dowry demand and death by Girl’ family

2010-11-14T03:35:00.001-08:00

Three acquitted in dowry death case

New Delhi, Nov 14 (PTI) A Delhi court has acquitted a man and his parents of the charges of causing death of the former''s wife for dowry, noting that the accused were financially well-off to raise such demands.
Additional Sessions Judge Kamini Lau absolved Pankaj Raj, his father Surender Kumar and mother Kamlesh of the charges under Section 304 B (dowry death) and 498 A (cruelty) of the IPC.
The court took into account a number of facts like Raj''s earnings, the gifts he had given to his wife Ritu, the places he took her to on their honeymoon, besides the financial condition of Kumar and the victim.
It said that Ritu was maintaining an independent bank account and had even paid Rs 40,000 to her brother for buying a motorbike after her marriage with Raj on December 9, 2005 to conclude that she herself was capable of taking care of her financial requirements.
The court further said the demands for articles like TV and AC do not appear "plausible" as Raj was the only son of his parents and his sister was settled in the USA as professor at Harvard University.
It also said that besides the mother and brother of the deceased, no one else from her family including the father was cited as witness by the prosecution to prove their charges.
"It is clear from the evidence of the witnesses that the deceased has committed suicide but it cannot be related to any dowry-related harassment by the accused as apparently there is no proximity or link between her death and the alleged misconduct by the accused persons," the court said.
During the trial, the accused tried to point out to the court that the victim could not reconcile with her marriage as she got attached with a boy with whom she was earlier engaged and was even in touch with before committing suicide on April 10, 2006 at her matrimonial home in Janak Puri here within five months of her marriage.
"The prosecution story does not inspire confidence and is not worthy of credence, especially in view of the glaring contradictions and overwhelming inconsistencies in the statements of witnesses," the court said, acquitting the accused.

http://news.in.msn.com/national/article.aspx?cp-documentid=4576032

SC acknowledges Gross Abuse of ANTI DOWRY LAWS 498a 304B by wife’s parents

2010-11-13T03:23:00.001-08:00

Bench: P Sathasivam, B Chauhan

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 891 of 2004

Dr. Sunil Kumar Sambhudayal Gupta & Ors. ...Appellants Versus

State of Maharashtra ...Respondent JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order of the High Court of Bombay, dated 29.4.2004, passed in Criminal Appeal No. 865 of 1987, by which the High Court has reversed the judgment and order of the Trial Court acquitting the appellants of the charges under Sections 306/34 and 498A/34 of the Indian Penal Code, 1860 (hereinafter called as `IPC').

2. Facts and circumstances giving rise to this case are that appellant No.1 got married to one Neeru Gupta (hereinafter called as `the deceased') on 1.12.1978 by way of an arranged marriage. Out of the said wedlock, a female child named Mili was born in 1981. There had been some disputes between the husband and wife on petty matters. Neeru committed suicide on 28.9.1985 by hanging herself in the bathroom when all the other family members had gone outside. Rajesh (PW.2), brother of the deceased, filed a complaint dated 30.9.1985, against the appellants i.e. the husband and parents in law of the deceased, alleging that they had been demanding dowry and had given ill treatment to the deceased, and that is why Neeru committed suicide. The police investigated the matter and filed the charge sheet against all the three appellants on 9.1.1986 under Section 306 read with Section 34 IPC and Section 498A read with Section 34 IPC. The prosecution examined a large number of witnesses to substantiate its case. After the conclusion of the trial, the Sessions Court vide its judgment and order dated 21.5.1987, held that the deceased had committed suicide. However, no role could be attributed to any of the appellants for the same, and the prosecution failed to prove any of the charges beyond reasonable doubt against the appellants. The witnesses examined by the prosecution improved their version with regard to claims of the alleged demands, particularly in respect of the gold ornaments and ill treatment of the deceased. The Trial Court came to the conclusion that the deceased was suffering from epilepsy, psychosis and depression and had been getting regular treatment for the same. Therefore, it was not a case of dowry demand or treating her with cruelty.

3. Being aggrieved, the State of Maharashtra preferred Criminal Appeal No.865 of 1987 before the High Court of Bombay and the High Court reversed the order of acquittal, convicted the appellants vide its judgment and order dated 29.4.2004 and imposed the punishment of 3 years RI on the husband, appellant No.1, and 2 years on the other appellants i.e. the in-laws of the deceased. Hence, this appeal.

4. Shri K.T.S Tulsi, learned senior counsel appearing for the appellants, has submitted that the High Court failed to appreciate the medical evidence and depositions of the prosecution witnesses in the right perspective, as the same could not establish conclusively that the suicide by the deceased could be attributed to the appellants to any extent. It was a clear cut case of suicide because of depression, as the deceased had been suffering from epilepsy and other mental disorders. The deceased had developed an illicit relationship with a family friend, Kake, and a letter written by the said Kake had been in the possession of the other family members and, therefore, they had informed her parents and brother about the said illicit relationship. The medical evidence, particularly, the deposition of Dr. Daulatram Nekumal Gurbani (PW.10) made it clear that the deceased had been suffering from serious depression and such a patient often develops suicidal tendencies. The deceased had also made an attempt earlier to commit suicide in 1985 and she had been taken to the local hospital. Subsequently, she had also been treated at Kanpur. The findings of fact recorded by the Trial Court that there was neither any demand of gold ornaments or any kind of dowry, nor had the deceased been subjected to cruelty, could not be held to be perverse by the High Court to bring home the charges against the appellants under Sections 306 or 498A IPC. The parents-in-law of the deceased were not living at Kalyan, as the appellant No.2 had been transferred to Kurudwadi in 1983 and the deceased was living with her husband i.e. appellant No.1, at Kalyan. The High Court committed an error in shifting the burden of proof to the defence as the court observed that the defence failed to prove its version. In fact the prosecution has to prove its case beyond reasonable doubt and the failure of the defence to prove the defence version cannot be a ground for conviction. More so, as there has been no abetment to suicide, the provisions of Section 306 IPC could not be attracted. Thus, in view of above, the appeal deserves to be allowed.

5. On the contrary, Shri Sushil Karanjakar, learned counsel appearing for the State has vehemently opposed the appeal contending that the High Court's judgment is based on cogent reasons and on a proper appreciation of the evidence on record. The High Court has correctly reached the conclusion that the findings of fact recorded by the Trial Court were perverse. The High Court is the final court of facts, its findings do not deserve to be disturbed by this Court in a routine manner. There is sufficient evidence on record to prove the demand of dowry and abetment to suicide. Therefore, no interference is required by this Court with the findings of fact recorded by the High Court. The appeal lacks merit and, thus, is liable to be dismissed. 5

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

7. Before proceeding further, it may be pertinent to mention here that Shri K.T.S Tulsi, learned senior counsel appearing for the appellants, has informed us that appellant No.3, Sou. Pushamalati Sambhudayal Gupta died in the month of February, 2010. In view thereof, the appeal by appellant No.3 stands abated and we only have to consider the case of appellant Nos. 1 and 2, i.e., the husband and the father-in-law of the deceased.

8. The Trial Court after appreciating the depositions of the witnesses and examining the documentary evidence on record came to the conclusion that the alleged demand of gold ornaments or ill- treatment of the deceased could not be established and none of the letters produced by the prosecution has been suggestive of either of ill-treatment or demand of dowry. None of the prosecution witnesses, i.e. the family members of the deceased, made such allegations either while lodging the FIR or in their statements recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.'). Such allegations had been made for the first time while making statements before the court during trial. There were material contradictions and improvements, which were not mere elaborations of their statements already made. Thus, their statements in regard to those allegations were liable to be discarded.

9. The High Court reversed the findings of fact recorded by the Trial Court, mainly relying upon the evidence of Dr. Daulatram Nekumal Gurubani (PW.10), as he had deposed that when he had examined the deceased, she told him that she had been deprived of love and affection by her family members. She had no faith in any member of her family. He had also opined that it was not a case of psychosis, but the deceased had been suffering from a mental disorder. The High Court also reached the conclusion that the defence failed to establish that the deceased was suffering from epilepsy before her marriage. The stay of the deceased along with her parents in a Guest House for two-three days after going from Kanpur to Kalyan has also been taken by the High Court as a circumstance adverse to the appellants. The High Court also came to the conclusions that the intimacy between the deceased and Kake did not mean that she had illicit relationship with Kake; and there had been a demand of a gold chain by appellant No.3.

10. As the High Court has reversed the order of acquittal and taken a view contrary to the view taken by the Trial Court, we have taken upon ourselves the task of appreciation of evidence and considered the legal and factual issues involved in the case.

11. Letters written by the parties to each other:

(A) A large number of letters had been placed on record before the Trial Court by both the parties. Letter dated 24.2.1979 (Ext.P-26), written by the deceased to her husband, about 3 months after the marriage reveals that there was no problem in the relationship between the husband and wife. In fact, it suggests that they had deep love and affection for each other.

(B) Letter dated 3.4.1985, written by appellant no. 2 to the father of the deceased, makes it evident that something had gone wrong and the behaviour of the deceased had been totally unwarranted, as it revealed that she had gone out of the house i.e. on the main road, half-naked and she had brought disrepute to the family of her in-laws. However, they had been tolerating such behaviour. She had lowered their prestige so much that they had not been able to show their faces to anyone. It suggested an illicit relationship between the deceased and one family friend, Kake. It also suggested that the deceased wanted to live with the said Kake, as she had developed love for him and she was willing to elope with him. It also suggested that it was wrong on the part of Smt. Shanti (mother of the deceased) to have been giving wrong advice to the deceased and making false allegations that her in- laws were not treating her properly. According to this letter, the deceased had declared that she was no longer interested in Sunil, her husband, as she did not like him any more and in the end appellant No.2 had expressed great concern about his grand daughter Mili and stated that he was willing to keep her in a hostel so that she could be spared humiliation because of the illicit relationship between the deceased and Kake. The author of the letter suggested to the father of the deceased that he should call the deceased to Kanpur as there could be some untoward/disastrous incident in future. (C) The undated letter (Ext. P-2) purported to have been written by Kake to the deceased, gives an impression that the deceased had not only deep intimacy, but something more with Kake. Kake was also in possession of some of her photographs which he claimed to be his fortune and said that the same would not be returned to her as she had requested and would be burnt only with the end of his life. This letter also suggested that he had the opportunity to have a physical relationship with her.

(D) There are several other letters on record showing that after the development of the intimacy between Kake and the deceased, both families were disturbed and attempts had been made from both the sides to patch up the matter. However, none of the letters suggests any demand of dowry or ill treatment to the deceased amounting to cruelty by the appellants.

(E) The letter dated 7.7.1985 written by the complainant, Rajesh, brother of the deceased to appellant No.1, is suggestive in nature. It suggests that appellant no. 1 should try to save the prestige of the family at any cost and forget all that had happened in the past, as the deceased was willing to improve herself and accept any advice given by her husband. Another letter dated 9.7.1985, written by the informant, Rajesh, brother of the deceased to the appellant No.2 revealed that the entire family of the deceased had been making serious attempts at re-conciliation. Even in this letter there was not even a whisper/mention of any demand of dowry or of ill treatment.

(F) The letter dated 18.7.1985 written by the father of the deceased to his son Rajesh (PW.2) from Kalyan made it clear that the author along with the deceased had gone to Kalyan to meet the family of the appellants, and they were not welcomed by the mother-in-law of the deceased at the initial stage. They had been staying in Modern Guest House in the same colony. Appellant No.1, the husband of the deceased suggested that the deceased should meet her mother-in-law and apologies, which was accepted by the deceased. The deceased met her mother-in-law and apologized. After some time, the mother-in- law became quiet and calm and started behaving properly and all the appellants treated them well.

(G) The un-dated letter (Ex.P-21) written by the deceased to her father revealed that her mother-in-law wanted her to separate herself from the other members of the family and her parents. It also gave the impression that her mother-in-law was asking for a gold chain ("zanzir ke liye keh rahi thi") and created problems for her in meeting her husband and daughter. After the arrival of her brother-in-law to Kalyan, the behaviour of her mother-in-law had improved a lot, but her husband being busy in his practice and did not have sufficient time to be with her.

(H) From the original record, a letter dated 1.4.1985 (Ext. 16), by the mother-in-law to the father of the deceased seems to have been written after losing hope completely and concluding that the deceased had become incorrigible. The said letter suggests that the relationship between the deceased and her husband had come to an end. The deceased had become a woman of bad character. They had tolerated her to a great extent. The deceased had been tutored by her mother; she had been misbehaving with them and it had become difficult for them to tolerate her any more. The deceased had been using abusive language to all the family members. She had lowered their reputation and they had been very unlucky to have such a daughter-in-law. As she wanted to live with Kake and not with her husband, they did not want to have any relationship with her. [Appellant No. 3 had denied writing the said letter].

(I) Another letter dated 22.5.1985, is on record written by Jai Narain Gupta from Sandila, U.P. (who seems to be relative of the deceased) wherein a suggestion had been made to patch up the matter. The author has drawn the inference that the problems were being created for the deceased, and she has been treated with cruelty as her in-laws did not receive dowry according to their expectations, though, there is no allegation that there has been any demand of dowry and for not giving the same.

(J) The undated letter written by the deceased to her aunt Manorma Gupta at Barabanki does not suggest anything against the accused, as the deceased had written that everything was fine and that she would discuss things when they met. The undated letter written by her aunt in reply, suggests that there was something amiss. She had mentioned that the whole family was very disturbed, but they were not able to suggest any solution. There was nothing to worry or fear as all of them were with the deceased and she also told the deceased to face things with courage, as she had equal rights to stay in the house and to fight for justice.

12. Depositions of Prosecution witnesses (Relevant parts): (I) Dr. Mohan Kulkarni, a practicing doctor residing in the same building (PW.1)-

"I know both accused Nos. 2 and 3 used to occasionally visit their block at Waldhuni (Kalyan) after transfer of accused No.2 at Kurduwadi.....I have no any personal knowledge about the relations in between accused No.1 and his deceased wife.....It is true that I was told by accused No.1 some four or five month before the incident that his wife Guddi was getting the attacks of epileptic fits. The ailment of epileptic fits is of neurological problems. I say that these medicines namely used in neurological problems as gardenal, have their side effects on the patient. E.C.T. (Electro Convulsive Therapy) treatment is given to mental patients of some sort. If a person shows abnormal signs then he is branded as a mental patient. I say that those who have tendency of mental depression they tend to commit suicide. It is true that mental disorder in some cases creates mental depression."

(II) Rajesh (PW.2) (Brother of the deceased)- "It is true that there was nothing wrong in between the accused and Neeru till the delivery of a female child and everything was smooth and cordial, in between them......I cannot say why it is not disclosed specifically in my complaint that as accused no.3 instructed Neeru to fetch golden ornaments on account of my marriage ceremony, my father presented with four golden bangles in the ceremony....... I cannot say why it is not stated in my complaint that after the birth of her daughter we presented Neeru with two golden ear rings and golden chain of two tolas because those were demanded by her husband's family members..... As I did not remember the exact account of the remaining ornaments presented to Neeru by us as and when demanded by her in laws. I did not narrate about them in the complaint. Except my words I have no documentary evidence to show how many golden ornaments were presented to Neeru and when...... There is no reference to golden chain any other letters except letter (Exh.21) sent by Neeru to my parents and myself. That golden chain we give to Neeru in 1985 was weighing 2 and = tolas..... The only reference about the golden chain asked for by accused no.3 appears in letter (Exh.21) sent by Neeru to us after she was reached at her in laws place on 24.8.1985."

(III) Manorma (PW.7) Aunt of deceased-

"She told me that accused persons had demanded a golden chain from her and hence she was not being called back now shown inland letter dated 10.7.1985 which is written by me to Neeru alias Guddi at Kanpur.....I have not stated before the police that when I met Neeru in March 1985 she told me that accused persons were demanding more golden ornaments from her and that they were keeping her starving and were not allowing her to meet her daughter Mili, and that she was craving to meet Mili. As I was not well at that time I forgot to narrate the things before the police. I have told this fact for the first time to the court...... I have not written specifically in my two letters (Exh.39 and 40) addressed to my brother and sister in law that Neeru told me that she was subjected to physical assault by the accused and that she was kept starving by the accused and further accused demanded golden ornaments from her."

(IV) Ramkishan Gupta (PW.8) Father of deceased- "I then arranged for a golden chain and sent Rajesh along with Neeru with a golden chain to Kalyan on 24.8.1985. Rajesh handed over golden chain to accused, and left Neeru in her in laws house and returned back to Kanpur. After 15 days we received a telegram sent by brother of accused no.1 Pradeep Kumar that all was well in the house at Kalyan. On 29.9.1985 we received a phone call informing us the said news of death of Neeru..... I have not stated in letter (Exh.23/1) that while we were standing out side the house of accused and requesting them to accept Neeru, accused no.3 demanded a golden chain from us and refused to allow Neeru to see her daughter in side the house, because Rajesh already knew all these things at Kanpur. I have no documentary evidence except my words to show that I had written to my sister Manorama and to my brother that accused persons were demanding...... I have not stated in either of my two statements before the police that when accused no.3 came to attend the wedding of my son Rajesh she demanded golden ornaments for herself (Accused no.3). I have not stated in either of my two statements before the police that even after the delivery of Neeru in 1981 none of the accused persons came to Kanpur to visit her. I have not stated in my first statement dated 1.10.1985 before the police that when Neeru came for delivery at Kanpur she informed us that accused no.3 was demanding golden ornaments from her..... I have not stated in either of my two statements specifically that when I and my wife went to the house of accused on 17.2.1985 we met all three accused at the entrance and all of them asked me whether I had brought golden ornaments or had come empty handed, and that they had already asked Rajesh to bring along golden ornaments and whereupon I told all three accused that I had not brought along golden ornaments as I was not having them and where upon all three accused pointed out towards Neeru and said as to how all those accused had driven Neeru to such a condition and that they would further make her condition miserable. I have not stated in either of my two statements before the police that when Neeru returned back to our house in March 1985 she told us that all accused told her that till their demand for cash and ornaments was not made, they would not allow Mili to go along with Neeru. I have not stated in either of my two statements before the police that when accused nos.2 and 3 had come to attend the marriage ceremony at Kanpur in the month of March 1985 accused nos.2 and 3 did not allow me to meet Mili. I had not stated in either of my two statements before the police that when Rajesh brought back Neeru in the month of June 1985 at Kanpur Neeru told me that she was not allowed to meet her daughter Mili in the house of her husband and accused no.3 asked her if she had brought golden chain or not."

(V) Daulatram Nekumal Gurubani (PW.10), Doctor- "In the mid of February, 1985 accused No.1 told me that his wife has become aggressive and was not co-operative and also used to become violent. When I reached the house of accused No.1, there I met accused No.2 and Accused No.3. I examined Neerubai, the wife of accused No.1. She was lying in store room and was not in a mood to talk anything with me even she become aggressive with me in the sense she was not co- operative with me. Accused No.1 told Neerubai that I was psychotherapist of Thane Mental Hospital and then Neeru asked me whether I treated my wife in the same way she was being treated by her husband accused No.1. She showed me injury marks bruises on her both knees and a small injury on the lower lip and also bruises on the back. She also told me that she was beaten by her family members and by a ward boy of hospital. She also told me that she had been maltreated by her husband, by her mother in law. She also told me that, her ornaments were being worn by accused No.3. On seeing the injury marks on her person I talked with accused No.1 and asked for details. Accused No.1 told me that as Neeru had become violent and we were controlling her it was possible that she sustained small bruises..... Accused No.1 told me that his wife was suffering from epileptic fits since before her marriage and that she was on Geroin tablets. I told him that there were side effects of this drug and the drug should be stopped after 3 years. He told me that she was on drug for so many years and she is maintained on that drugs. I told him to continue with above tablets and consult Neurologist if she is suffering from the above ailments. I visited her place for 4 times in the same month i.e. February, 1985. During all those visits I never found any signs of epileptic fits......

Cross examination:

I started my practice in January 1985 at Ulhasnagar and handed the case of Neeru in February 1985 after I passed my M.D. Degree in Psychiatry in July 1984 though I joined mental hospital at Thane as Medical Officer...... I agree that even in major epilepsy this medicine Geroin is prescribed. It will not be correct to say that because I prescribed medicine Geroin I was convinced that the patient was suffering from major epilepsy. Even though I knew that drug Geroin carried side effect yet I prescribed it though I knew she had no sign of epilepsy because once the drug is started it cannot be abruptly discontinued otherwise the patient may get fits. I stick to the proposition that if an anti- convulsent drugs such as Geroin is given for long period and withdrawn abruptly then she may get convulsions. I am backed by authority. Clinical examination alone cannot decide whether a patient is suffering from epilepsy or not. Patient of epilepsy may have a grand-mal or petit-mal. It is true that dose of Geroin daily is more in case of grand-mal than in the case of petit-mal. It is true that a maximum dose of Geroin tablets is 4 tablets 3 times a day. I agree that brain scan, EEG and X- ray of all the skull are required for investigations in cases of epilepsy....

It is true that drugs at Sr. Nos. 1 to 5 prescribed by me to Mrs. Neeru wife Exh.46 are normally prescribed in a case of epilepsy with psychoses and in depressive state....I have prescribed to Neeru E.C.T. treatment.....It is not stated in my prescription letter (Exh.46) that if the drug as Sr. Nos. 1 to 5 prescribed to Neeru do not work out, then E.C.T. therapy should be started to her, though verbally told her so. It is true that I have not specifically stated in my prescription letter (Exh.46) at any time during my visits to Mrs. Neeru on 4 or 5 occasions that as the drugs at Sr.Nos. 1 to 5 in (Exh.46) were working, E.C.T. therapy was not essential.....I have not stated in my police statement that the room in which Neeru was found was an unkept room or a store room. I have not stated before the police that when I was introduced to Neeru as a psychiatrist, Neeru asked me whether I treat my wife in the same way as she was treated by her husband. I have not stated before the police that before Neeru was examined by me she told me that she was harassed by accused persons and that her ornaments were worn by accused No.3......

I have not stated before the police that I examined Neeru and found that there was not any gross psychological problem but she was mentally disturbed and I found that she had no faith in any of the members of the family and I found that she was deprived of love, affection and sympathy of her family members. I have not stated before the police that accused No.1 told me she was also epileptic but I did not find any signs and symptoms of that disease with her. I have not stated before the police that I requested accused No.1 where was the X-ray of skull and other investigation papers and accused No.1 told me that his wife was suffering of epileptic fits since before her marriage and that she was on geroin tablet. I have not stated before the police that I told him that there were side effects of this drug and the drug should be stopped after 3 years..... I agree that Mrs. Neeru did not meet me in April 1985 but she brought the letter of April 1985 of Dr. S. Mahendru in the month of June 1985. I have not stated before the police that Neeru either met me in April 1985 or in June 1985. Beyond my word there is no any other evidence to show that in September 1985 accused Nos. 1 and 2 came to me. I have not stated before the police that both accused Nos. 1 and 2 later on told me that Neeru committed suicide and that they needed certificate about her mental condition....."

(VI) Dr. Ramesh Kumar Mahendru (PW.12) - Doctor from Kanpur :

xxx

".....I say that the experts prescribed E.C.T. (Electro Convulsive treatment) in cases of retarded

depression and, manic depressive psychosis. I am shown the chart today by the learned Defence counsel in which the prescription of medicines advised by Dr. Gurubani for Niru and by me are practically same except with a difference that the medicines mentioned at Sr.No.4 does not potentiate as anti depressants but it prevents the reactions caused by the medicines stated at Sr.No.3 in the chart.....

Narco therapy is a kind of suggestive psycho therapy under the influence of narcotic drugs such as barbiturates."

13. The above referred letters and the depositions of the witnesses have to be understood/appreciated within the four corners of law, particularly dealing with the issues of reversal of the order of acquittal by the appellate court and discrepancies/improvement/embellishment and contradictions in the statements of the witnesses.

14. Material Contradictions:

While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152).

15. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).

16. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334).

17. In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440).

18. In State of Rajasthan v. Smt. Kalki & Anr., AIR 1981 SC 1390, while dealing with this issue, this Court observed as under: "In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."

19. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (see: Syed Ibrahim v. 23 State of A.P., AIR 2006 SC 2908; and Arumugam v. State, AIR 2009 SC 331).

20. In Bihari Nath Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186, this Court examined the issue and held: "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."

21. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.

Appeal against Acquittal:

22. It is a well-established principle of law, consistently re-iterated and followed by this Court is that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.

23. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

24. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Shailendra Pratap & Anr. v. State of U.P., AIR 2003 SC 1104; Budh Singh & Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066; Arulvelu & Anr. v. State, (2009) 10 SCC 206; Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445); and Babu v. State of Kerala, (2010) 9 SCC 189).

25. The instant case is required to be examined in light of the aforesaid legal principles.

Undoubtedly, the record reveals that at an initial stage the relationship between husband and wife had been very cordial and they had love and affection for each other. At a later stage when the family suspected an illicit relationship between the deceased and Kake, the appellants were very much disturbed. Both the families made serious attempts to re-concile and patch up the matter and the appellants agreed that the deceased may be given an opportunity to improve her behaviour. Thus, admittedly there was a doubt that the deceased had developed serious intimacy with Kake, which was much more than what happens in normal course with a family friend. Therefore, the finding recorded by the High Court that the intimacy between them to the extent of having an illicit relationship was not there, loses its significance, for the reason that even the suspicion of such a matter becomes the talk of the town and the reputation of the family remains at stake. The protests on the part of the appellants even on a mere suspicion and asking the deceased to keep distance from Kake or improve her behaviour is not something which can be termed to be unwarranted or uncalled for.

26. There is ample evidence on record to suggest that the deceased had been suffering from psychosis/mental dis-order. According to Dr. Daulatram Nekumal Gurubani (PW.10) the ailment was not of a very serious nature. However, the prescriptions given by Dr. Gurubani (PW.10) reveal that the deceased had been suffering from serious mental dis-order, otherwise such medicines could not have been prescribed by him. He has prescribed the deceased the medicine Geroin because he was convinced that the deceased was suffering from major epilepsy, in spite of the fact that he was fully aware that the said drug has side effects. He also deposed that mere clinical examination alone is not sufficient to decide whether the patient is suffering from epilepsy. He further deposed that such medicine can be given to a person suffering from grand-mal epilepsy. More so, had it not been the case of serious ailment of mental dis-order, the question of prescribing and giving E.C.T. to the deceased could not arise.

27. There had been a lot of improvements and contradictions in his statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an unkept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor it had been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother in law (A.3). More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a fact- situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that appellants had ill-treated the deceased or that appellant No.3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy etc.

28. The deposition of Dr. Mohan Kulkarni (PW.1) reveals that E.C.T. treatment is given only to mental patients, who have mental depression and tend to commit suicide; the ailment of epileptic fits is a neurological problem. His statement also suggests that her in-laws had not been living with her after 1983, as the appellant No.2 stood transferred to Kurudwadi and had shifted to the said transferred place and her in-laws had been visiting Kalyan occasionally. This view stands fully corroborated by the deposition of Dr. Ramesh Kumar Mahendru (PW.12), Reader in Psychiatric Medicine, Mental Hospital, Kanpur, as referred to herein above. He had examined the deceased and prescribed medicines for manic depressive Psychosis. The prescription of this witness substantially remained the same as of Dr. Daulatram Nekumal Gurubani (PW.10). The cumulative effect of the medical evidence given by three Doctors leads us to the conclusion that deceased had been suffering from manic depression and certainly had some mental/epileptic/ psychosis problem.

29. So far as the other witnesses are concerned, they are the father, brother and aunt of the deceased. Thus, being close relatives, in such facts and circumstances they might have developed inimical feelings towards the appellants, since they came to the conclusion that the appellants were responsible for the death of the deceased. However, their depositions are full of contradictions and have marked improvements from their statements recorded earlier. The exaggerations and improvements are of such a nature that they make their whole statements in respect of the demand for gold ornaments and/or the ill-treatment of the deceased liable to total disregard on these counts. Gold ornaments had been given by the complainants to the deceased out of love and free will at the time of the marriage of Rajesh (PW.2) and at the time of delivery of her daughter Mili. Undoubtedly, Rajesh (PW.2) had alleged in the FIR that there had been demand of gold ornaments by the appellants without any details of the same, however, he could not furnish any explanation as why this fact had not been disclosed to the police when his statement and supplementary statement was recorded. Also no such inference can be drawn from any of the letters on record. Only one un-dated letter (Ext.P-21) written by the deceased to her father suggests that her mother in-law had been asking for a chain. More so, as the chain had been given by the complainants to the deceased just 2/3 months before her death, and there is no evidence that any further demand had been there, the issue became totally irrelevant in terms of proving the motive, and it cannot be presumed that any demand had been made. More so, even if it is presumed that there was some demand by appellant No.3, as she is no more, and her appeal stands abated, this issue becomes totally irrelevant for the reason that no such allegation had ever been made against the remaining two appellants.

30. So far as the stay of the deceased with her parents after coming from Kanpur to Kalyan at the guest house is concerned, admittedly at that time the relations between the parties were strained because of the suspicion that the deceased was having an illicit relationship with Kake. However, it has been admitted by Ramkishan (PW.8), father of the deceased, that subsequently the relations became normal and they were invited at the house of the appellants after the deceased tendered an apology to her mother-in- law. The said witness did not state in his statement before the police that when he went to see the appellants on 17.2.1985, they had asked him whether he had brought gold ornaments or had come empty handed or that he was told that the deceased would not be allowed to live there and they would make her condition even more miserable. Such an improvement was made while deposing in court and no explanation could be furnished by him as to why such vital facts were not stated by him at the time of recording his statement under Section 161 Cr.P.C. This statement is to be discarded as it is not safe to hold the appellants guilty of the offences alleged against them on such an improved version.

31. The deposition of Manorma (PW.7), aunt of the deceased is by no means different, as she had also made major contradictions and improvements in her statement made in court. She had not stated in her police statement that the appellants were demanding gold ornaments from the deceased and her family or that the appellants were keeping the deceased starving and were not allowing her to meet her daughter, Mili. The explanation furnished by her that she had not been feeling well and had forgotten to narrate such material facts, cannot be believed.

32. The statement of Rajesh (PW.2), the brother of the deceased is also full of contradictions and suffers from major improvements. The contradictions are of such a nature that they impair the whole of his evidence. The same cannot be held to be clarificatory. He was not in a position to state what ornaments his family had presented to the deceased on different occasions. More so, it was not even stated in his police statement that after the birth of Mili, his family had given gold ornaments as demanded by the appellants. He could not even furnish an explanation as to why the demand of a gold chain is not evident from any of the letters between the parties, except in the letter (Ext. P- 21).

33. The complainants have denied the receipt of letter dated 3.4.1985 written by the appellant No.2 to the father of the deceased, referred to hereinabove. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, 1897 and held as under: "There is a presumption of service of a letter sent under registered cover.... No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him.....The burden to rebut the presumption lies on the party challenging the factum of service." (Emphasis added)

A similar view has been re-iterated by this court in Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj & Ors., (1996) 7 SCC 275; and Shimla Development Authority & Ors. v. Santosh Sharma (Smt.) & Anr., (1997) 2 SCC 637.

In Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Indian Evidence Act, 1872. In view of the above, it was the responsibility of the complainants to prove by adducing evidence of the official of the Post Office, Kanpur that the said letter had not been delivered to them. However, for the reasons best known to the prosecution such an exercise has not been undertaken.

34. The instant case is required to be examined from another angle also. The marriage took place on 1st December, 1978. The complainant party could not place any correspondence on record prior to February 1985 except letter dated 24th February, 1979 written by the deceased herself to her husband. However, it goes in favour of the appellants. Therefore, it is evident that the controversy arose only after the expiry of the period of more than 6 years from the date of marriage. It is quite possible that the dispute arose between the parties only because of the suspicion that the deceased had developed an illicit relationship with Kake. Had there been a demand of dowry or ill-treatment to her on any other ground by the appellants, there could have been some correspondence between the parties during the aforesaid long period of more than 6 years. None of the prosecution witnesses had made any allegation of any demand of dowry or ill treatment during the said earlier period. It is unnatural that after expiry of such a long period, the appellants suddenly became greedy and started demanding ornaments and for not meeting their demand, started ill treating the deceased to the extent that she had to commit suicide. Thus, the allegations made by the complainant party remained unnatural and improbable. More so, the demand had been only of a thin gold chain which could not be very expensive in those days, especially given the socio-economic status of all the parties. For the gold ornament worth such a petty amount after the expiry of a long period of about 6 = years, from the date of marriage, it is not natural that the appellants could treat the deceased with such cruelty that she was drawn to commit suicide.

35. It is a clear cut case of gross abuse of the dowry laws. We find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier. The High Court did not dislodge the reasons given by the Trial Court for acquittal. The High Court did not make any reference to the deposition of Dr. Daulatram Nekumal Gurubani (PW.10) in the cross-examination and dealt with the case very casually, adopting a very superficial approach to the whole matter and brushed aside the allegation of an illicit relationship for which there had been documentary evidence on record without recording any cogent reasons for the same. The High Court did not make any attempt to appreciate the evidence with accuracy and reversed the findings of the trial court which were based on the evidence on record and for which detailed reasons had been assigned.

36. In view of the above, the appeal succeeds and is allowed. The judgment and order of the High Court of Bombay, dated 29.4.2004, passed in Criminal Appeal No. 865 of 1987 is set aside. The judgment and order of the Trial court in Sessions Case No. 25/1986 dated 21.5.1987 is hereby restored. The appellants are on bail. Their bail bonds stand discharged..................................J.

(P. SATHASIVAM)

..............................

...J.

(Dr. B.S. CHAUHAN)

New Delhi,

November 11 , 2010

http://www.indiankanoon.org/doc/664488/

SC explains Double Jeopardy - Double jeopardy applies to same offence, not same facts

2010-11-11T03:31:00.001-08:00

Bench: B S Reddy, S S Nijjar

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 782 OF 2007

Monica Bedi ...Appellant Versus

State of A.P. ...Respondent WITH

CRIMINAL APPEAL NO. 784 OF 2007

Shaik Abdul Sattar ...Appellant Versus

State of A.P. ...Respondent WITH

CRIMINAL APPEAL NO. 783 OF 2007

D. Gokari Saheb ...Appellant Versus

State of A.P. ...Respondent WITH

CRIMINAL APPEAL NO. 1357 OF 2007

Mohd. Yunis ...Appellant Versus

State of A.P. ...Respondent JUDGMENT

B. Sudershan Reddy, J :

1. These criminal appeals which are to be disposed of by a common order are directed against the common judgment of the High Court whereunder the High Court confirmed the conviction of the appellants under Section 120-B, 419 and 420 IPC and other provisions including under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act. We shall later notice in detail the conviction and sentence as awarded by the courts below.

2. The Central Bureau of Investigation, SPE, Hyderabad, laid charge sheet against altogether 10 accused persons before the Special Judge for C.B.I. cases, Hyderabad in which Abu Salem Abdul Qayoom Ansari @ Abu Salem(A-1), Sameera Jumani w/o Abu Salem(A-2), Monica Bedi (A-3), 3

Chamundi Abdul Hameed (A-6) and Faizan Ahmed Sultan (A-10) were shown as absconders. The learned Special Judge took the charge sheet on file as C.C. No. 3 of 2005 and issued non-bailable warrants against A-1, A-2, A-3, A-6 and A-10. Case against A-1, A-2, A-6 and A-10 came to be separated and case proceeded against A-3, A-4, A-5, A-7, A- 8 and A-9.

3. The learned Special Judge upon consideration of the material made available framed the following charges against the accused persons:

i) for the offence under Section 120-B IPC against A-3 to A-5, A-7 to A-9;

ii) for the offence under Section 419 IPC against A-3; iii) for the offence under Section 419 r/w 109 IPC against A-4, A-5 and A-7 to A-9;

iv) for the offence under Section 468 IPC against A-5; v) for the offence under Section 420 IPC against A-8; vi) for the offence under Section 468 IPC against A-7; 4

vii) for the offence under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act against A-4, A-5, A-7 and A-8;

viii) for the offence under Section 12 of the Passports Act, 1967 against A-3;

ix) for the offence under Section 420 IPC against A-3; x) for the offence under Section 420 r/w 109 IPC against A-4, A-5, A-7 to A-9.

4. The prosecution in order to substantiate the charges examined altogether 38 witnesses and proved 79 documents. Exhibit D-1 to Exhibit D-4 were marked on behalf of the defence.

5. The learned trial judge upon appreciation of the evidence and material available on record found Monika Bedi (A-3 ) guilty of the offences punishable under Sections 120- B, 419 and 420 IPC but acquitted of the charge under Section 12 of the Passports Act, 1967; Shaik Abdul Sattar 5

(A-5) guilty of the offences under Sections 120-B, 419 r/w 109, 420 r/w 109, 468 IPC and Sections 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act; Mohammed Yunis (A-7) guilty of the offence under Section 468 IPC and D. Gokari Saheb (A-8) guilty of the offences under Section 120B, 420, 419 r/w 109 IPC, 420 r/w 109 IPC and under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. A-3 was accordingly sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 120-B IPC; rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default, to suffer simple imprisonment for one month for the offence under Section 420 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month and for the offence under Section 419 IPC; A-5 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for 6

the offence under Section 120-B IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 419 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 468 IPC, and rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. A-7 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 468 IPC; A-8 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence 7

under Section 120-B IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 419 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 IPC and rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. All the substantive sentences were directed to run concurrently.

6. On appeal the High Court of Andhra Pradesh upon re- appreciation of evidence available on record confirmed the conviction of A-3 for the offences punishable under Sections 120-B, 419 and 420 IPC but reduced the sentence from three years rigorous imprisonment to two years rigorous 8

imprisonment for the offence punishable under Section 120B IPC, from five years rigorous imprisonment to three years rigorous imprisonment for the offence punishable under Section 420 IPC and from three years rigorous imprisonment to two years rigorous imprisonment for the offence punishable under Section 419 IPC while maintaining the fine imposed by the trial court. The High Court also confirmed the conviction of A-5 under each count but reduced the quantum of imprisonment from three years to one year for offences under each count under Sections 120- B, 419 r/w 109, 420 r/w 109, 468 IPC. However, his conviction and sentence imposed for the offences punishable under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act was confirmed. That so far as A-7 is concerned the High Court while partly allowing the appeal modified the conviction from Section 468 IPC to that of one under Section 465 IPC and accordingly sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for three 9

months. That so far as A-8 is concerned the High Court confirmed his conviction under all counts but reduced the quantum of imprisonment from three years to one year for offences under each count under Section 120-B, 420, 419 r/w 109, 420 r/w 109, 468 IPC. However, his conviction and sentence imposed for the offences punishable under Section 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act was confirmed. Hence, these appeals.

Case of Prosecution:

7. In order to consider as to whether the High Court committed any error in convicting and sentencing the appellants as noted herein above, it may be just and necessary to briefly notice the case of the prosecution. The allegation against Accused No. 3 (appellant in Criminal Appeal No. 782/2007) is that she obtained a second passport in the assumed name of Sana Malik Kamal from the Regional Passport Office, Secunderabad by submitting false documents like residence certificate, educational certificate 10

with the help of A-4 to A-9. She used the passport to travel Lisbon, Portugal. The owner of M/s. Faizan Enterprises, Mumbai (A-10) is involved in the business of recruiting people for jobs in foreign countries. He gave 10 passport size photographs of A-1 to A-3 and fake names and documents to A-9 to secure passports falsely showing them as residents of Kurnool in the State of Andhra Pradesh. A-9 has relatives in Kurnool. He visited Kurnool in the month of March, 2001 and entrusted the work of securing passports of A-1 to A-3, to A-6 an unauthorized passport agent. At the instance of A-6, A-7 Mohammed Yunis, Mandal Revenue Inspector of Mandal Revenue Office, Kurnool issued a false residential certificates in the assumed names intended for the benefit of A-1 to A-3. A-6 procured fake transfer certificates purported to have been issued by the Headmaster, Zila Parishad High Court, Peddapadu, Kurnool District in the name of Ramil Kamil Malik and two fake memorandum of marks sheets in the names of Neha Asif Jafari and Sana Malik, purported to have been issued by the 11

Headmaster, Higher Elementary School, Kurnool, as a proof in support of date of birth. One Abdul Gaffar (PW-1) filled up three passport applications of A-1 to A-3 at the instance of A-6 and they were accordingly submitted in the Regional Passport Office, Secunderabad. The authorities accordingly sent the particulars mentioned in the forms to the office of Superintendent of Police, Kurnool which were received in the office on 16.5.2001 vide exhibit P-28 covering letter. A-5 (appellant in Criminal Appeal No. 784/07) at the relevant time was working as Writer-Head Constable in special branch. He submitted fake verification reports along with statements of six persons in support of character and conduct of A-1 to A-3 by portraying them as if they were the neighbours of A-1 to A-3. On receipt of reports, A-4 despatched them to Regional Passport Office, Secunderabad. It is on the basis of these reports, passports were accordingly issued to A-1 to A-3 in their assumed names and they were despatched by speed post to their respective address at Kurnool as indicated in the passport 12

applications. The passports were received at the Head Post Office, Kurnool through speed post. On 23.8.2001 two speed post articles addressed to the assumed names of A-2 and A- 3 were entrusted to PW-11 Babu Miah, a postman of Beat 2, for delivery of the same to the addressees. A-8 (D. Gokari Saheb appellant in criminal appeal no. 783/07) Postman, Head Post Office, Kurnool, approached PW-11 Babu Miah and collected the two speed post articles by giving his acknowledgement on the delivery slip list falsely representing that he knew the addresses and he would personally deliver the articles. On 27.8.2001 another speed post article containing passport in the assumed name of A-1 was entrusted to A-8 for delivery who in turn delivered it to one Aslam Khan, Cashier of Hotel Elite, Kurnool where A-6 was also working. A-6 sent two covers to A-9 on 23.8.2001 and 27.8.2001 in courier service.

8. We shall notice further details only so far as the appellants before us are concerned. Exhibit P1 is the index card of Sana Malik Kamal. ( assumed name for Monika 13

Bedi). PW-1 is the author of exhibit P1. PW-1 filled up exhibit P1 at the request of C.A. Hameed (A-6). PW-4 is the Superintendent in the Regional Passport Office, Secunderabad. He speaks of issuance of the passports in pursuance of passport application in the name of Sana Malik. PW-5 P. Krishna Mohan Reddy was the Mandal Revenue Officer, Kurnool Mandal who issued residence certificate dated 9.4.2001 in the name of Sana Malik Kamal based on false verification reports submitted by A-7 Mohammad Yunis. That as per exhibit P9 residence certificate, Sana Malik Kamal (assumed name of Monica Bedi) is stated to be residing at Babu Gounda Street, Kurnool. PW-6 at the relevant time was working as Deputy Educational Officer, Nandyal, Kurnool District who stated that there was no school by name of Hanuman Higher Elementary School, Kurnool wherein Sana Malik Kamal was alleged to have studied. PW-7 M. Lakshminarayana at the relevant time was the Junior Assistant in the District Police Office, Kurnool and he speaks of receiving applications for 14

verification of contents therein. According to him, A-4 ( G. Srinivas) who attended to passport inquiries, received the passport application of Sana Malik Kamal. After receipt of exhibit P15 enquiry report along with exhibits P16 and P17 statements submitted by A-5 S.A. Sattar, A-4 prepared the relevant report and forwarded the same to the Regional Passport Office, Secunderabad. Exhibit P18 is the letter addressed by the Superintendent of Police to the Regional Passport Office, Secunderabad reporting no objection for the grant of passport to the applicant. Rest of evidence relates to handing over of speed post articles relating to Babu Miah as per the instructions of the Head Post Master, Kurnool from whom A-8 Gokari Saheb took the speed post articles from him for being delivered to the addressees. PW-13 is the owner of the residential apartment wherein Monica Bedi (A-3) is alleged to have resided as tenant during the years 1995-1997. Rest of the details are not required to be noticed.

9. The learned Special judge for C.B.I. on a careful and meticulous appreciation of the evidence and material made available on record convicted the appellants as noted herein above. The High Court on re-appreciation of the evidence confirmed the conviction but modified the sentence as noted herein above.

Submissions:

10. Now we shall proceed to consider the submissions made by the learned senior counsel Shri K.T.S. Tulsi appearing on behalf of the appellant - Monica Bedi (A-3). The learned senior counsel submitted that the appellant has been tried and convicted by a competent court of jurisdiction at Lisbon for being in possession of fake passport and, therefore, her trial and conviction for possessing the same passport before the C.B.I. Court at Hyderabad amounts to double jeopardy and in violation of Article 20(2) of the Constitution of India and as well under Section 300 Cr.P.C. The learned senior counsel further submitted that there is no 16

evidence of appellant's involvement in any of offence whatsoever. His further submission was that the appellant has been denied the benefit of Section 428 of the Code of Criminal Procedure, in as much as she has neither been given the benefit of the period of sentence undergone by her in Portugal nor has she been given the benefit of the complete period pursuant to sentence in Portugal i.e. after 18th September, 2004, which she is legally entitled to.

11. We have also heard the learned counsel appearing on behalf of Shaik Abdul Sattar (A-5), Mohd. Yunis (A-7) and D. Gokari Saheb (A-8).

12. Shri P.P. Malhotra, learned Additional Solicitor General and Shri I. Venkata Narayana, learned senior counsel supported the impugned judgment. Both of them have submitted that Article 20 (2) has no application whatsoever to the facts on hand.

Double Jeopardy

13. Now we shall take up the first contention of Shri Tulsi as to whether the appellant's guaranteed fundamental right under Article 20 (2) has been infringed? Article 20 (2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once.

14. Article 20 (2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well known maxim `nemo delset bis vexari pro eadem causa' embodies the well established common law rule that no one should be put on peril twice for the same offence. BLACKSTONE referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.

15. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy' in the American Constitution. 19

16. In Maqbool Hussain vs. The State of Bombay1, this Court explained the scope of the right guaranteed under Article 20 (2) and as to what is incorporated in it as "within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as it known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence." That in order for the protection of Article 20 (2) to be invoked by a person there must have been a prosecution and as well as punishment in respect of the same offence before a court of law of competent jurisdiction or a tribunal, required by law to decide the matters in controversy judicially on evidence. That the proceedings contemplated therein are in the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or 1

(1953) SCR 730

starting of the proceedings of a criminal nature in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. This principle is reiterated in S.A. Venkataraman vs. The Union of India & Anr.,2 wherein this Court observed that the words "prosecuted or punished" are not to be taken distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted."

17. What is the meaning of expression used in Article 20 (2) "for the same offence"? What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. In Leo Roy Frey vs. Superintendent District Jail, Amritsar3, petitioners therein were found guilty under Section 167 (8) of the Sea Customs Act and the goods recovered from their possession were confiscated and heavy 2

(1954) SCR 1150

(1958) SCR 822

personal penalties imposed on them by the authority. Complaints thereafter were lodged by the authorities before the Additional District Magistrate under Section 120B of the Indian Penal Code read with provisions of the Foreign Exchange Regulations Act, 1947 and the Sea Customs Act. The petitioners approached the Supreme Court for quashing of the proceedings pending against them in the court of Magistrate inter alia contending that in view of the provisions of Article 20 (2) of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Magistrate violated the protection afforded by Article 20 (2) of the Constitution. This Court rejected the contention and held that criminal conspiracy is an offence under Section 120B of the Indian Penal Code but not so under the Sea Customs Act, and the petitioners were not and could not be charged with it before the Collector of Customs. It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when 22

attempted or completed; it forms no ingredients of such crime. They are, therefore, quite separate offences. The Court relied on the view expressed by the United States, Supreme Court in United States vs. Rabinowith4. In The State of Bombay vs. S.L. Apte5, this Court laid down the law stating that if the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable. It was the case where the accused were sought to be punished for the offence under Section 105, Insurance Act, after their trial and conviction for the offence under Section 409, Penal Code, this Court held that they were not sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20 (2) of the Constitution or Section 26 of the General Clause Act, 1897, was not applicable. This Court made it clear that the emphasis is not on the facts "alleged in the two complaints but rather on the 4

(1915) 238US 78.

(1961) 3 SCR 107

ingredients which constitute the two offences with which a person is charged." The ratio of the case is apparent from the following:

"To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the same offence'. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out."

That the test to ascertain is whether two offences are the same and not the identity of the allegations but the identity of the ingredients of the offences.

It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and 24

they did not form the same offence. In Bhagwan Swarup vs. State of Maharashtra6, the accused was convicted with regard to a conspiracy to commit criminal breach of trust in respect of the funds of one Jupiter company. There was another prosecution against the accused for the conspiracy to lift the funds of another company, though its object was to cover the fraud committed in respect of the Jupiter company. This Court held that the defalcations made in the Jupiter may afford a motive for new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, "some of the facts proved to establish the Jupitor conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. The ingredients of both the offences are totally different and do not form the same offence within the meaning of Article 20 (2) of the Constitution and, therefore, that Article has no relevance." 6

AIR 1965 SC 682

18. In State of Rajasthan vs. Hat Singh & Ors.7, this Court held that the Rajasthan Sati (Prevention) Act, 1987 provided for different offences and punishment for glorification of sati and for violation of prohibitory order against glorification of sati. They are not the same offences. While Section 5 of the said Act makes the commission of an act an offence and punishes the same; the provisions of Section 6 are preventive in nature and make provision for punishing contravention of prohibitory order so as to make the prevention effective. The two offences have different ingredients. This Court held:

"It is, therefore, concluded that in a given case, same set of facts may give rise to an offence punishable under Section 5 and Section 6 (3) both. There is nothing unconstitutional or illegal about it."

19. This appears to be the consistent view of the Supreme Court of the United States. In T.W. Morgan vs. Alfonso J. Devine @ Ollie Devine8, the U.S. Supreme Court observed that the court has settled that the test of identity of 7

(2003) 2 SCC 152

(1915) 237 U.S. 1153

offences is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offence where two are defined by the statutes.

20. In United States vs. Vito Lanza9, it is held that an act with respect to intoxicating liquor which is denounced as a crime by both the National and State sovereignties may be punished under the law of each sovereignty without infringing the provision of the 5th Amendment to the Federal Constitution against double jeopardy for the same offence. It is observed:

"An act denounced as a crime by both National and State sovereignties is an offence against the peace and dignity of both, and may be punished by each ..... We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the Amendment. Each government, in determining what shall be an offence against its peace and dignity, is 9

(1922) 260 U.S. 314

exercising its own sovereignty, not that of the other."

21. Shri K.T.S. Tulsi, learned senior counsel in the present case before us mainly contended that the facts based on which the appellant (Monica Bedi) was prosecuted and punished by a competent court of jurisdiction at Lisbon and the facts based on which prosecution has been initiated resulting in conviction are the same and, therefore, the conviction of the appellant is in the teeth of Article 20 (2) of the Constitution and Section 300 of the Code of Criminal Procedure. The submission is not well founded for the simple reason that the same set off facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time constitute an offence under any other law. It needs no restatement that the bar to the punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same. 28

22. The question that falls for our consideration is, whether the appellant can be said to have satisfied all the conditions that are necessary to enable her to claim the protection of Article 20 (2) of the Constitution. The charges upon which the appellant has been convicted now, for the charges under the Indian Penal Code, we will presume for our present purpose that the allegations upon which these charges are based, proved, resulting in conviction and punishment of the appellant are substantially the same which formed the subject matter of prosecution and conviction under the penal provisions of Portugal law. But we have no doubt to hold that the punishment of the appellant is not for the same offence.

23. Be that as it may, there is no factual foundation laid as such by the appellant taking this plea before the trial court. Nothing is suggested to the Investigating Officer or to any of the witnesses that she is sought to be prosecuted and punished for the same offence for which she has been 29

charged and convicted by a competent court of jurisdiction at Lisbon. She did not even make any such statement in her examination under Section 313 Cr.P.C. It is true that the fundamental right guaranteed under Article 20 (2) of the Constitution is in the nature of an injunction against the State prohibiting it to prosecute and punish any person for the same offence more than ones but the initial burden is upon the accused to take the necessary plea and establish the same.

24. In Halsbury's Laws of England, 2nd Edition, Volume-IX, the law is succinctly summarised on this aspect of the matter as:

"If the defendant pleads autrefois convict or autrefois acquit, the prosecution replies or demurs. If the prosecution replies, which is the usual course, a jury is sworn to try the issue(x). The onus of proving the plea is on the defendant (a). He may prove it by producing a certified copy of the record or proceedings of the alleged previous conviction or acquittal (b), and showing by such copy or by other evidence, if necessary, that he has been convicted or acquitted of the same, or practically the same, offence as that on which he has been arraigned (c), or that he 30

might on his former trial have been convicted of the offence on which he has been arraigned (d). The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned (e), for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials (f). "

25. However, having regard to the nature of the guaranteed right we have examined the judgment passed by a Constitutional Court, Lisbon ( a typed copy of the same made available by the learned senior counsel for the appellant - Monica Bedi which we believe to be a true copy) does not support the plea of the appellant. The Constitutional Court while considering the issue of extradition of the appellant and the nature of the trial undergone by her in Portugal observed:

[*]

"It is a fact that the appellant has been trialled in Portugal for committing an offence provided and punishable under article 256 of the penal 31

code. However, should any facts be found in that process and in that trial that would release her of any guilt regarding offences based upon which she is wanted by the requesting state, then it is not acceptable by means of a

restrictive and formal interpretation of a principle which is deemed to assume wider configurations to authorize her extradition to trial her for facts strongly linked and which may even coincide with those same offences.

In other words, it is not acceptable and it cannot be admitted that the appellant has been trialled and convicted in Portugal for the commission of the offence of use of forged documents, namely in a decision which

revealed in the analysis of the facts regarding the attainment of such documents (allegedly subsumed by India in the offences of corruption and association) that the appellant was not involved in those fact. Furthermore, it cannot be admitted that her extradition is authorized in order to trial her for committing such act. Extradition process which brings in contact a variety of legal systems and different forms of legal classification and of behaviour punishments, but which does not allow going deeper in those laws, as well as in the evidence based upon which the requests for extradition were made requires a wider interoperation of the principle of ne bis idem."

It is further observed:

"The Indian Union claims extradition of the appellants to trial her for the commission of an offence of criminal conspiracy. We consider that this offence has no correspondence in our legal and penal system and that it is not the object of an autonomous incrimination. As a matter of fact, it constitutes a from that could be classified as joint authorship;

...As a matter of fact, we consider that such arguments have no legal basis. Because the requesting state wants at any cost the

appellants extradition, it is clear that it is justifying its request by stating that criminal conspiracy as opposed to what the person to be extradited claims constitutes an autonomous incrimination.

However, careful analysis of the original version of article 120 B of the Indian Penal Code (included in the records, but attached herewith as documents no. 1 and which is incorrectly translated into Portuguese) allows one to conclude, with safety, that the type of

conspiracy described therein as being the conduct of someone who commits an offence associated with someone else (complicit), is not coincident with the incorporation of a stable organization, hierarchically defined and whose object is the commission of offences.

...Given that our judiciary authorities are convinced that the question under consideration is the charge against the appellant regarding offence subsumable under an offences of

criminal association which does not correspond to the Indian charges.

...it is not up to the constitutional court to interpret and set out the meaning of any provisions contained in the Indian Penal Code and establish on a final basis the scope of criminal conspiracy, given that this would transcend the object of constitutional rules control.

Taking into consideration the reasons stated in the appealed decision, one cannot accept the argument that the appealed courts interpretation of article 31, no. 2 of law 144/99 of 31st August was in the sense that the judge is not obliged to substantiate and explain (in the decision to extradite someone claimed for the commission of offences which do no fall within the range of offences provided under our legal system) the reasons why the offence should be appealed decision, the appellant could not have raised this unconstitutionality based on the different of legal qualification of the offences that the was charged with by both legal systems in concurrence. As a matter of fact, the question under consideration is the charge with different offences, one should note that, besides the fact that this statement does not faithfully reproduce what is said in the summary decision, the two subsequent paragraphs demonstrate that the real problem does not involve the facts but rather the different legal classification thereof." [* There are number of typographical errors and mistakes in construction of sentences and we did not correct the same and extracted as it is from the copy supplied.] 34

26. In the light of these findings and conclusions reached by the Constitutional Court at Lisbon and on a careful consideration of the entire matter and the facts placed before us, we are of the considered opinion that the appellant's plea of double jeopardy is wholly untenable and unsustainable. This point is accordingly answered against the appellant.

Merits:

27. Now we shall proceed to consider as to whether the courts below committed any error in convicting and sentencing the appellant for the charged offences? Is there no evidence against the appellant as contended by the learned senior counsel? It is fairly settled that this Court in exercise of its jurisdiction under Article 136 of the Constitution of India normally does not interfere with the concurrent findings of facts arrived at by the courts below on proper appreciation of evidence. It is not the function of this Court to re-appreciate the evidence and substitute the 35

findings for that of the courts below unless it is clearly established that the findings and the conclusions so arrived at by the courts below are perverse and based on no evidence.

28. The simple case of the prosecution is that all the appellants entered into a conspiracy in order to secure a passport in the assumed name of Sana Malik Kamal, for the benefit of Monica Bedi so as to enable her to utilize the same to leave the country and travel abroad. There is no controversy whatsoever that Monica Bedi travelled abroad on the strength of the passport secured by her in the assumed name. She entered Portugal with the aid of passport standing in the name of Sana Malik Kamal for which she has to face the prosecution and suffer conviction and sentence in Portugal.

29. It is evident from the record that the involvement of the appellants is at two stages. Stage one is where Monica Bedi (A-3) and Mohd. Yunis (A-7) are involved in the pre- 36

passport application at the threshold and even before the preparation of application seeking the passport in the assumed name. Stage two is the involvement of Monica Bedi (A-3), Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8) after the submission of passport application before the authorities. Exhibit P2 is the passport application submitted in the assumed name of Sana Malik Kamal which contains the photograph of Monica Bedi (A-3). Essential requirements for obtaining the passport are: (1) passport application; (2) proof of residence and (3) date of birth certificate as spoken to by PWs. 2, 3, 21 and 31. How these documents are obtained for the benefit of Monica Bedi has been clearly brought on record through a number of witnesses whose evidence remained unimpeached. It is Mohd. Yunis (A-7), the Mandal Revenue Inspector who verified the residence particulars of Sana Malik Kamal on the instructions of PW-5, Mandal Revenue Officer, Kurnool and submitted a false verification report based on which exhibit P9 residence certificate was issued by PW-5. PW-17 on 37

requisition from C.B.I officials once again got verified and issued exhibit P30 certificate to the effect that no person by name Sana Malik Kamal resides in the house as earlier submitted by Mohd. Yunis (A-7). PW-37 is the Investigating Officer who in his evidence stated that he verified the particulars of occupants of the said house in the presence of PW-27 (D.V. Ratnamaiah), Assistant Superintendent of Post Offices, Kurnool and found no such person named Sana Malik Kamal ever resided therein. It is based on this evidence the trial court and appellate court came to the right conclusion that the prosecution established its case that it is Mohd. Yunis (A-7) who gave false verification based on which exhibit P9 residence certificate was issued by PW-5 in the name of Sana Malik Kamal. The trial court convicted Mohd. Yunis (A-7) for the offence under Section 468 IPC which reads as under:

"468. Forgery for purpose of cheating. - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be 38

punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Section 463 defines forgery, which reads as under: "463. Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

30. The High Court came to the conclusion that in submitting the false verification report in respect of residence of Sana Malik Kamal he may not have been aware and knew that the certificate so obtained would be used for the purpose of securing the passport in the assumed name of Sana Malik Kamal. At any rate there is no evidence on that aspect of the matter. The High Court also came to the conclusion that by the time Mohd. Yunis (A-7) submitted a false verification there is nothing on record that he was hand in glove with the other accused for the purpose of 39

cheating. Be it noted that the High Court confirmed the acquittal of A-7 of the charge under Section 120B IPC. The High Court, accordingly, found that the proper offence made against him would be one for making forged document simplicitor punishable under Section 465 IPC. In our considered opinion, the High Court was not justified in convicting Mohd. Yunis (A-7) at all for it had found no case against the appellant made out under Section 120B IPC and further found that there is no evidence to assume that he was hand in glove with the other accused for the purpose of cheating. That there is no evidence that A-7 prepared false document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud. The ingredients of Section 463 are not satisfied. In such an event the conviction of the appellant under Section 465 IPC is unsustainable.

31. That so far as D. Gokari Saheb (A-8) is concerned there is a clear evidence which has been properly appreciated by the courts below that he who took the article (envelop contained the passport) addressed to Sana Malik Kamal from PW-11 representing that he knew the addressee and deliver the same. The said article was actually entrusted to PW-11 for its delivery but D. Gokari Saheb (A- 8) took the same from PW-11 for delivery to Sana Malik Kamal - assumed name of Monica Bedi (A-3). The courts below found that D. Gokari Saheb (A-8) was aware of the contents of the article. It is under those circumstances the courts below came to the right conclusion that evidence available on record clearly establish that he participated in the conspiracy in securing the passport for Monica Bedi in the assumed name of Sana Malik Kamal. Thus the conviction of D. Gokari Saheb (A-8) for the charged offences is accordingly upheld. We do not find any reason whatsoever to interfere with the view taken by the High Court. However, the sentence of one year rigorous 41

imprisonment under each count awarded while maintaining the fine imposed by the trial court is reduced to that of 6 months rigorous imprisonment under each count while maintaining the fine amount.

32. Shaik Abdul Sattar (A-5) is the Head Constable who submitted exhibit P15 report. PW-7, PW-8 and PW-14 are the material witnesses examined by the prosecution to prove the accusations leveled against A-5. PW-7 at the relevant time was Junior Assistant in the District Police Office, Kurnool who speaks about entrustment of the verification of the passport application in respect of Sana Malik Kamal to A-5. He also speaks about A-5 submitting Exhibit P15 inquiry report together with statements of persons purported to have been recorded by him in exhibit P16 and P17. There is absolutely nothing on record to disbelieve the evidence of PW-7 who stated in his evidence that A-5 submitted exhibit P15 report knowing it to be a false one apart from certifying that Sana Malik Kamal was residing at that particular house in Kurnool and was not 42

involved in any civil and criminal cases and there was nothing adverse against her. PW-8 was working as Inspector of Police, District Special Branch, Kurnool who prepared exhibit P18 letter on the basis of exhibit P15 inquiry report submitted by A-5. PW-14 is the Sub-Inspector, District Special Branch, Kurnool who testified that A-5 submitted exhibit P15 report and it bears signature of A-5. The courts below held that the evidence of PW-7, PW-8 and PW-14 is cogent and consistent which in clear and categorical terms prove the fact that A-5 is the person who verified the passport application particulars of Sana Malik Kamal and submitted exhibit P15 inquiry report along with exhibit P16 and exhibit P17 enclosures. There cannot be any doubt whatsoever that A-5 submitted a false report in order to enable Monica Bedi to secure a passport for herself in the assumed name of Sana Malik Kamal. His conviction for the charged offences is accordingly upheld. The High Court however, reduced the sentence awarded by the trial court to one year rigorous imprisonment under each count while 43

maintaining the fine imposed by the trial court. The sentence awarded under Section 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act has been confirmed. Having regard to the facts and circumstances of the present case, we however, reduce the sentence to that of six months rigorous imprisonment under each count while maintaining the fine imposed by the trial court and the sentence to suffer imprisonment, in default, of payment of fine. Sentences are directed to run concurrently.

Case of Monica Bedi - Appellant in Criminal Appeal No. 782/2007:

33. So far as the appellant - Monica Bedi is concerned she is involved in the conspiracy as proved at both stages i.e. pre-passport application stage and post-passport application stage. The conspiracy itself has been hatched only with a view to secure a passport for Monica Bedi in the assumed name of Sana Malik Kamal. We do not find any merit in the submission of Shri Tulsi, learned senior counsel that there is 44

no evidence whatsoever against Monica Bedi to prove her involvement for the offence punishable under Sections 120B, 419 and 420 IPC. The sequence of events as unfolded by the evidence, which we do not want to recapitulate once again as we have noticed the same in detail in the preceding paragraphs, clearly prove the charges levelled against Monica Bedi. It is for her benefit that the entire conspiracy has been hatched involving more than one individual in order to secure a passport for her benefit enabling her to travel abroad in the assumed name of Sana Malik Kamal. There is no material based on which this Court is to differ with the findings and conclusions concurrently arrived at by the courts below.

Shri Tulsi, however, reiterated the submission which he made before the High Court that exhibit P50 is a Photostat copy of the passport in the name of Sana Malik Kamal and the same is inadmissible document as it is not authenticated by legal keeper as provided under Section 78 (6) of the Indian Evidence Act. The submission was that based on 45

such inadmissible document no prosecution could be launched and once it is to be held that the said document is not admissible the whole case of the prosecution collapses like a pack of cards. The High Court after elaborate consideration of the matter came to the right conclusion that Section 78 (6) of the Evidence Act, 1872 deals with public document of any other class in a foreign country. In the present case, the original of exhibit P50 is the passport issued by the competent authorities in this country and, therefore, Section 78 (6) has no application whatsoever to the facts of this case. The issuance of original of exhibit P50 passport is clearly proved. It is based on that passport Monica Bedi travelled abroad and entered Portugal for which she has to face a prosecution and suffer conviction and sentence. The prosecution cannot be held to be vitiated. We accordingly reject the contention and uphold the conviction of the appellant for the offence punishable under Sections 120B, 419 and 420 IPC. The High Court, however, reduced the sentence of imprisonment imposed on the 46

appellant - Monica Bedi (A-3) as noticed in the preceding paragraphs. The High Court also held that she is entitled for set off of the periods of detention suffered by her in Lisbon i.e. from 18.9.2004 to 4.6.2005 and 3.11.2005 to 10.11.2005.

However, having regard to the facts and circumstances of the case and the fact that she had undergone more than 2 = years of sentence, we consider it appropriate to reduce the sentence to that of already undergone by her while maintaining fine amount imposed by the courts below.

34. In the view we have taken it is not necessary to go into the question as to the interpretation of Section 428 Cr.P.C and her entitlement to set off against the sentence imposed on her.

Conclusion:

35. Criminal Appeal NO. 782 of 2007 ( Monica Bedi - A-3)

For all the aforesaid reasons, we confirm the conviction of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC. The sentence awarded under each count directed to run concurrently is reduced to that of the period already undergone by her while maintaining the sentence of fine awarded by the courts below. The bail bonds shall stand cancelled.

The appeal is, accordingly, partly allowed. Criminal Appeal NO. 784 of 2007 ( Shaik Abdul Sattar - A-5)

The conviction of Shaik Abdul Sattar (A-5) under Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act is, accordingly, upheld. However, the sentence awarded under each count is reduced to that of six months rigorous imprisonment while maintaining the fine imposed by the courts below. Sentences 48

are directed to run concurrently. He shall surrender before the trial court to serve the remaining sentence, if any. The appeal is, accordingly, partly allowed. Criminal Appeal NO. 1357 of 2007 ( Mohd. Yunis - A- 7)

Mohd. Yunis (A-7) is acquitted for the offence under Section 465 IPC and sentence awarded is set aside. The bail bonds shall stand cancelled.

The appeal is, accordingly, allowed.

Criminal Appeal NO. 783 of 2007 ( D. Gokari Saheb - A-8)

The conviction of D. Gokari Saheb (A-8) under Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act is, accordingly, upheld. However, the sentence awarded under each count is reduced to that of six months rigorous imprisonment while 49

maintaining the fine imposed by the courts below. Sentences are directed to run concurrently. He shall surrender before the trial court to serve the remaining sentence, if any. The appeal is, accordingly, partly allowed. ..................................

........J.

(B. SUDERSHAN REDDY)

..........................................J. (SURINDER SINGH NIJJAR)

New Delhi,

November 09, 2010.

http://www.indiankanoon.org/doc/1104661/

SC fiat on summoning of accused in criminal cases

2010-10-13T13:35:00.001-07:00

SC fiat on summoning of accused in criminal cases

13 oct 2010

New Delhi: The Supreme Court has held that summoning of accused persons cannot be withheld merely on the ground that it will hurt the interests of other accused who are "well-known" or just because the witnesses are related to the complainant.
A bench of Justices Aftab Alam and R M Lodha in an order ticked off a trial court for refusing to summon certain accused merely because they were "well-known persons" and the Karnataka High Court for refusing the plea because of certain delay.

The apex court passed the order while upholding an appeal filed by the complainant Bangarayya in a criminal case challenging the refusal of the two courts to summon additional witnesses during the trial.

On a complaint filed on September 1, 2002, a case was registered against 17 persons, but police, after investigation, submitted chargesheets against only 14 persons under IPC Sections 143, 147, 149 (unlawful assembly), 323 (causing hurt), 427(damage to property), 504 (breach of public peace)and 506 (criminal intimidation). No chargesheet was filed against accused Nos 2, 3 and 6 named in the FIR.
The complainant filed an application under Section 319 CrPC for summoning of the three other accused. The State also also supported the plea for summoning of the three accused.

However, the trial court rejected the plea by taking the view that the two witnesses were related to the complainant and no independent witness had been examined before him.

The trial court observed that it would further delay the matter as some of the other accused were "teachers and well-known persons" and they would suffer due to the delay caused by summoning the additional accused.

Aggrieved by the decision, the complainant approached the High Court which dismissed his plea by citing delay in filing of the application following which he appealed in the Supreme Court.

Rejecting the reasonings, the apex court said the two witnesses were examined on August 24, 2007 and February 2, 2008 respectively and the application for summoning three other accused was filed on March 6, 2008.

"We are unable to see where was the delay. In those facts it is quite unreasonable to hold that the application was made after long delay and was, therefore, liable to be rejected. "The reason assigned by the trial court is equally untenable. The two witnesses being related to the complainant or the accused already before the court, being 'teachers and well-known persons' can be no ground to reject the petition under section 319 of the Code for summoning some other persons as well for facing the trial," the apex court observed.

It directed the trial court to consider afresh the plea for summoning of the additional accused.

PTI

http://www.zeenews.com/news661290.html

Delhi HC- ipc506/34 Frivolous petition by wife to harass husband and his relatives dismissed with costs

2010-10-13T03:39:00.001-07:00

Crl. Revision Pet. No.456 of 2006 Anjali Aggarwal v State & Ors.

              IN THE HIGH COURT OF DELHI AT NEW DELHI
             Date of Reserve: September 7th, 2010    Date of Order: September 22nd , 2010

Anjali Aggarwal            ...Petitioner

Versus

State & Ors. ...Respondents

Counsels:
Mr. J.C. Mahendroo for petitioner.
Mr. Sunil Sharma, APP for State/respondent.

JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?

JUDGMENT

1. By way of present petition under Section 397 of Cr.P.C. petitioner sought setting aside of the judgment dated 10th
February 2006 passed by leaned Metropolitan Magistrate acquitting respondents no.2 and 3 for the offences under Section 506 read with Section 34 IPC.

2. The revision petitioner in her complaint to police had alleged that on 26th September 1992, she had come to Tis Hazari Courts in a child custody case. Respondent Sudershan Kumar Bagrodia, her ex-husband, who was a party in the custody case had come to Tis Hazari Courts along with his sister Smt. Jai Shree Bindal and when she was near gate no.2 of Tis Hazari Courts, both the respondents stopped her and threatened that she should stop coming to the Court otherwise she would be killed. She alleged that they tried to snatch the child from her and slapped her. She then went to the police station to lodge a report and her report was recorded and after investigation, challan was filed.

3. The learned trial court after calling the records of the custody case pending between the parties observed that on 26th September 1992, there was no date of the custody case between the parties. The learned trial court also, after appreciating the testimony of complainant and her cross examination, concluded that the child was not with her on that day. The learned trial court found that the complaint made by the petitioner/ complainant was a false complaint and, therefore, acquitted the respondents.

4. In her revision petition, the petitioner/complainant had taken the stand that on 26th September 1992, there was no hearing in the court and she had taken the child for meeting with the husband. Thus, the stand taken by the petitioner in revision is contrary
to her statement made in the trial court wherein she had stated that she had appeared on that day in custody case of her child before the Court of Ms. Mamta Sehgal as her case was going on in the Court of Ms. Mamta Sehgal. I consider that in a revision petition, this Court cannot consider a new plea of fact which was not raised before trial court. Moreover, her version in the revision petition is belied by her version in FIR also wherein she had stated that on 26th September 1992, there was a date of the case.

5. I find that the present revision petition was another step taken by the petitioner to harass her husband and his family members. This petition being a frivolous petition is hereby dismissed with costs of Rs.20,000/-.

September 22nd, 2010 SHIV NARAYAN DHINGRA, J
rd

http://lobis.nic.in/dhc/SND/judgement/23-09-2010/SND22092010CRLR4562006.pdf

Delhi HC- NRI 498a Quash-Jurisdictional (Section 4 IPC and Section 188 Cr.P.C.) and Limitaion bar U/s 468 crpc-Misuse of criminal justice system as a tool of vengeance

2010-10-12T04:02:00.001-07:00

Crl. MC No.3329/2009 Sanjeev Majoo & Ors. v State (Govt. of NCT of Delhi)

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
             Date of Reserve: August 25th , 2010
Date of Order: September 22, 2010 Crl. M.C. No.3329 of 2009          22.09.2010

Sanjeev Majoo & Ors. ...Petitioners

Versus

State Govt. of NCT of Delhi ...Respondents

Counsels:

Mr. Pallav Shishodia, Sr. Advocate with Mr. Mukul Kumar, Mr. B.R. Sharma and Mr.
Satpal Singh for petitioners.

Mr. O.P. Saxena, APP for respondent/State.
Mr. Rakesh Tikku, Advocate for complainant

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.

JUDGMENT
1. This petition under Section 482 Cr.P.C and Article 227 of the Constitution of India has been preferred by the petitioners for quashing of FIR No.97 of 2009 dated 7th July, 2009 registered against the petitioners under Sections 498A, 406 read with Section 34 of IPC at police station Crime Against Women Cell, Nanakpura, New Delhi.

2. It is an undisputed fact that petitioner no.1 Mr. Sanjeev Majoo and the complainant i.e. wife Ms. Ruchi Majoo, both are citizens of USA and the marriage between them had taken place on 12th December 1996 at Delhi. Even at the time of engagement, Ms. Ruchi Majoo and Mr. Sanjeev Majoo were in America and engagement ceremony had taken place in Detroit, USA at the house of uncle of Ms. Ruchi Majoo in September 1996. After marriage, the parties left for USA, lived there as US citizens. Ms. Ruchi Majoo gave birth to one son namely master Kush, who became US citizen by birth. However, it appears that the life was not happy for them and Ms. Ruchi Majoo served a legal notice dated 8th July, 2008 on Mr. Sanjeev Majoo through her advocate inter alia, making following allegations:

“2. That however, immediately after the marriage, your conduct had been unbecoming of a good husband. My client was not earning at that time. You did not take care of her financial requirements in an alien country and as a result she had to borrow from her father and family from time to time even for her personal needs. So much was your negative attitude towards her that she had to remain most of the times confined in the apartment where you and my client had shifted.
3. Even then for no justifiable reason you had been often scolding and rebuking my client and also adversely commenting on her mannerism and way of dressing, even privately and in the presence of your friends and relations, thereby causing humiliation to her.
4. That during the year 1997 when you and my client were in the USA, my client also came to know of your having extra-marital relationship with a married girl Neetu whose husband had been threatening to cause physical harm to my client as well as to you. On coming to know of this, you had assured my client that you would mend your ways and as such my client agreed to pardon you at that time.
5. That during my client’s stay in the USA she also came to know that you were also often having physical relationship with different women at time in Motel and/or some other places and you were caught on one of such occasion. Even after you had got a job in New Jersey, after completing your studies, you did not take care of the financial needs and daily expenses of my client who was being forced to borrow from her family, which was a humiliating experience for my client. You did not even permit her to pursue her further studies thereby causing her physical, mental paid and anguish. Every time you would create such a situation thereby forcing my client to withdraw to her room. You would pick up fights and arguments with her for no reason or rhyme thereby disturbing her peace of mind.
Xxxxxxx
7. That somewhere in the year 2002, you also injured my client physically in the presence of baby sitter who was persuaded not to call the police at the insistence of my client who was trying to make the marriage work. You again apologized and also assured my client that in future you shall take care of the things. In between you had also been for counseling as you realized that your behavior was not normal. With the minor son also you were abusive and also caused hurt by pinching him hard on his body. You were also rough to him most of the times. This abusive behavior continues.
Xxxxxxxxx
9. That there are a large number of instances of occasions when your cruel conduct continued of which you are aware of and the same are not being repeated herein. You and your parents had also been complaining of inadequate dowry to my client. Whatever my client had brought as Istridhan was also retained partly by you and partly by your parents. Whenever my client demanded the Istridhan, o n the pretext that the same is lying in safe custody, you had been refusing to give that to my client.
Xxxxxx
12. You were persuaded to go for counseling twice but you left both times unfinished citing one or the other reason. You had also informed my client that in your office also, you had been warned of your aggressive behavior and asked my client to go for some kind of improvement training so that you could know how to work as a group member.
xxxxx
15. That accordingly on behalf of my client, I am to inform you that my client is not interested in going back to you to USA and she is trying to work out an alternate suitable arrangement for herself and her minor son and as such you are required not to co me and visit my client’s father house. My client is also seeking appropriate legal advice to take such legal steps which may be required for the welfare of the minor son as well as for herself which my client is likely to take shortly which could include divorce proceedings in appropriate court including in US and would also include claim of rights in respect of matrimonial assets. However, should you force your entry into my client’s father house in New Delhi, then my client and her father will take appropriate action against you in accordance with law.”

3. As things turned out, Ms. Ruchi Majoo came to India with her son and a custody battle for the son is going on between the parties. Mr. Sanjeev Majoo, petitioner no.1 herein, applied for divorce before the Court in USA and a decree of divorce was granted by the US Court on 13th May, 2009 whereby rights of Ms. Ruchi Majoo wife were decided by the Court in USA and following arrangement was made:

“10. The Respondent is awarded the following items of community property as her sole and separate property subject to all liens ad encumbrances thereon:
A. Furniture, furnishing, and personal effects in her possession;
B. Gold jewelry in her possession;
C. Bank of America bank account in her name;
D. Emigrant Direct bank account in her name;
E. Standard Chartered bank account in her name;
F. Bank accounts in India in Respondent’s name;
G. Real property in India in Respondent’s name;

4. Ms. Ruchi Majoo in her communication to the Superior Court at California, USA on 22nd April, 2009 had informed the Court as under:

“1. I do not own any Real estate in India. The information given by Mr. Sanjeev Majoo is wrong and needs to be corrected.

2. All my jewelry excepting two items of jewelry and a ring are in my home at 462, Cremona Way, Oak Park, CA, where my, My Sanjeev Majoo stays and at the Residence of my’s parents, in Udaipur, India. This forms a part of my dowry given by my family at the time of my marriage in India and during the course of our married life, which is customary as per Indian traditions.
3. I have Indian Rupees 4,10,000/- (equivalent to USD 10k) in Indian banks, which was a gift from my family and not a part of my income. This money was transferred by me from USA (Bank of America) to India much before I left USA for India.”

5. However, in the FIR which Ms. Ruchi Majoo lodged against Mr. Sanjeev Majoo and her father in law, mother in law and brother in law, she made allegations that even before her marriage, her father in law and mother in law had told that her parents should keep in mind the expenditure on education of Mr. Sanjeev Majoo while considering the dowry and the dowry should commensurate with the status of in laws and so a lot of dowry was given at the time of marriage including jewelry, clothes and gazettes. After marriage a locker was opened at Udaipur in the joint name of herself, her husband and mother in law and whole lot of articles and expensive gifts were retained by in-laws at Udaipur. She further alleged that even when in 1997, when her mother in law was in USA, she passed sarcastic remarks regarding insufficient dowry. In 1999, she had come to attend the marriage of husband’s brother Mr. Rajeev Majoo and gone to Udaipur. Even during that period, her in-laws put consistent pressure and demanded more money. She was permitted to open locker in Udaipur for wearing jewelry on the occasion of marriage but again the jewelry was kept in the locker and she was not allowed to take her items. Thereafter, she made allegations of what transpired between her and her husband in USA from 1997 onwards. She stated that her matrimonial life went through rough weathers and it became difficult for her to stay in USA with her husband anymore. She decided to come to India with the child in December 2004. In December 2004, her in laws also came to India and threatened her to return to USA or else a situation would be created that she would be divorced by her husband. She came to Delhi and requested her to go back to USA and promised that things will improve. She went back to USA on this promise in January, 2005. Again her husband’s attitude did not improve and she narrated what happened in USA between her and her husband. Ultimately in January 2008, she had told her husband that she would no more live with him as she had planned to live separately from him with her son. On this, her husband suggested that she should go to India along with the child for summer vacation and he would also accompany her since had had to see his parents. She came to his parent’s house. She went on narrating the sequence of incidents which took place in Delhi between her and her husband including the legal battle for taking custody of her son Kush. Both she and her husband exchanged emails regarding their son and she leveled allegations against her husband about threats of filing a kidnapping case against her in USA and obtaining of divorce by her husband from US Court. Ultimately, she recorded in her complaint that the facts written by her showed that she had been treated with cruelty both physically and mentally because of willful conduct of her husband, her parents in law and her brother in law.

6. It is apparent that the complainant, a citizen of USA, had all along lived in USA with her son and husband, away from her in laws but filed this FIR against her mother in law, father in law, brother in law and her husband so as to misuse criminal justice system as a tool of vengeance. From perusal of her statement made in California Court, it is apparent that entire scene of occurrence was USA, her in laws had no say in their married life. In California court, she had categorically stated that all her jewelry was lying in her US house. She nowhere stated that her jewelry was lying with her in laws but in FIR against her in law, she suddenly discovered that she had a locker in Udaipur. She does not disclose the locker number or the bank where the locker was, the date of opening of locker and what jewelry were lying in it and submits that her in laws in 1997 and 1998 had asked her to keep her jewelry there. While in 2008, she told the California Court that her entire jewelry was with her at her house in USA, California.

7. Even if it is believed that in 1996, her in laws had expressed desire that the dowry must commensurate with the status, firstly she had not alleged any demand, still if she considered this as demand, she was at liberty to get a case registered under Dowry Prohibition Act at that time. There are no allegations of cruelty against in laws. Therefore, no offence under Section 498A IPC was made out against her in laws on the basis of allegations made by her in the FIR even if every allegation is considered true. As far as Mr. Sanjeev Majoo is concerned, the complainant and Mr. Sanjeev Majoo had lived in USA and all allegations of cruelty are of USA. No offence was committed within the jurisdiction of this country. Thus, no offence could have been registered against any of the petitioners/ accused persons under Section 498A or 406 IPC in India. Even otherwise, since both of them were American Citizens and the matrimonial offence, if committed, were committed in USA, the Court at India would have no jurisdiction to proceed against Mr. Sanjeev Majoo. All persons who commit crime in India can be tried in India whether they are foreign or Indian citizens, but Section 4 IPC puts a bar on the scope of applicability of territorial jurisdiction to the courts of India to try a case, cause of action of which had taken place outside the geographical limits only in respect of Indian citizens. Where the accused is not a citizen of India and the cause of action/ offence has not been committed within India, in view of Section 4 IPC and Section 188 Cr.P.C, the trial of offence against the person cannot proceed in India. Section 188 Cr.P.C reads as under:

“188. Offence committed outside India.
When an offence is committed outside India-
(a) By a citizen of India, whether on the high seas or elsewhere; or
(b) By a person, not being such citizen, on any ship or aircraft
registered in India.
He may be dealt with in respect of such offence as if it had been
committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding
sections of this Chapter, no such offence shall be inquired into or tried
in India except with the previous sanction of the Central Government.”

8. Mr. Sanjeev Majoo in this case and the complainant in this case both being American citizens and the alleged matrimonial cruelties having taken place in America, police and courts in India did not have jurisdiction to enquire into or conduct trial of offence.

9. In view of the facts disclosed from the FIR, even if all the facts stated in FIR are considered true, no offence was made out against father in law, brother in law, mother in law. If any offence is made out cognizance of it was barred by limitation under Section 468 Cr.P.C. As far as Mr. Sanjeev Majoo is concerned , FIR could not have been registered in view of Section 4 IPC and Section 188 Cr.P.C.

10. In the result, the petition is allowed and the FIR No.97 of 2009 dated 7th July, 2009 registered against the petitioners under Sections 498A, 406 read with Section 34 of IPC at police station Crime Against Women Cell, Nanakpura, New Delhi and the proceedings emanating therefrom are hereby quashed.

11. The petition stands allowed.

September22, 2010 SHIV NARAYAN DHINGRA, J
rd

http://lobis.nic.in/dhc/SND/judgement/23-09-2010/SND22092010CRLMM33292009.pdf

************************

PS- this is same woman who had filed Guardianship case and was dismissed by Justice Dhingra on Jurisdictional grounds and later the Mother and WCD/NCW challenged the HC (Dhingra’s) order in SC where it is still pending

here is the GWA case http://lobis.nic.in/dhc/SND/judgement/09-03-2010/SND08032010CMM4482009.pdf

Related news on the case

Latest on the GWA CASE Pending in SC

http://courtnic.nic.in/supremecourt/temp/dc%20922010p.txt

ITEM NO.1                   COURT NO.6                 SECTION XIV


S U P R E M E       C O U R T   O F    I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).9220/2010

(From the judgment and order dated 08/03/2010 in            CMM No. 448/2009   of
The HIGH COURT OF DELHI AT N. DELHI)

RUCHI MAJOO                                                 Petitioner(s)

VERSUS

SANJEEV MAJOO                                               Respondent(s)

(With appln(s) for permission to place addl. documents on record and
prayer for interim relief ))


Date: 05/10/2010    This Petition was called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE MARKANDEY KATJU
HON'BLE MR. JUSTICE T.S. THAKUR


For Petitioner(s)        Ms.   Indira Jaising, ASG
Mr.   Sanjay Parikh, Adv.
Mr.   Anish R. Shah, Adv.
Ms.   Mamta Saxena, Adv.
Mr.   Ashish Bhan, Adv.
Ms.   Soumya Ray, Adv.
Mr.   A. N. Singh, Adv.
Ms.   Anitha Shenoy,Adv.


For Respondent(s)        Mr. Pallav Shisodia, Adv.
Mr. Mukul Kumar,Adv.



UPON hearing counsel the Court made the following
O R D E R

In this case, the parties, who are of

Indian origin, had gone to USA and had a child

there,   who    having   been   born   in   USA   has   US

citizenship.
-1-


SLP(Civil) No.9220/2010

The parties also took up           US citizenship.

Thereafter, the petitioner (wife) returned to

India    and    filed   a     petition     for   custody   and

guardianship,        which     is    pending     before    the

District Court, Delhi.              At the same time, the

husband also filed a petition for guardianship

in the Superior Court of California, USA which

has been allowed.        The District Judge III (west)

Delhi dismissed the husband's application for

dismissing the wife's petition.

The    Delhi   High       Court   has   allowed   the

petition filed by the husband-respondent herein,

and dismissed the Guardianship petition filed by

the wife on the ground that the District Judge,

Delhi has no jurisdiction to entertain the said

petition.

This      matter           pertains     to   private

International law.           Hence, we would like to get

the     assistance      of     the    Indian     Society    of

International law, Bhagwan Das Road, New Delhi,

as it has expertise in the matter.               Issue notice

to the Indian Society of International Law which

is requested to assist us as amicus curiae in

the matter.        The Indian Society of International
Law     is    requested     to       depute     some    expert       in

private international law to appear before us to

assist us in the matter.

-2-



-3-

In the meantime, the interim order passed

by    this Court will continue.                     Copies of the

proceedings      and    other        relevant       papers    may    be

forwarded       forthwith      by     the     Registry       of   this

Court    to    the   Indian      Society       of    International

Law, Bhagwan Das Road, New Delhi.




Mr. Sanjay Parikh, learned senior counsel

has    stated    that     he    recuses       himself    from       any

exercise      undertaken       by     the    Indian    Society       of

International Law, since, he is a member of the

executive       council    of       the     Society    and    he     is

appearing for the petitioner in this case.



List this matter on 9th November, 2010.




(Deepak Joshi)                                  (Indu Satija)
Sr. P.A.                                       Court Master

-----

ITEM NO.1                   COURT NO.11                SECTION XIV
              S U P R E M E     C O U R T   O F    I N D I A
                             RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).9220/2010
(From the judgement and order dated 08/03/2010 in CMM No. 448/2009 of
the HIGH COURT OF DELHI AT NEW DELHI)
RUCHI MAJOO                      Petitioner(s)
                   VERSUS
SANJEEV MAJOO                    Respondent(s)
(With prayer for interim relief)
Date: 15/09/2010    This Petition was called on for hearing today.
CORAM :
          HON'BLE MR. JUSTICE AFTAB ALAM
          HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
For Petitioner(s)
Ms.    Indira Jai Sing, ASG
                     Mr.    Sanjay Parekh, Adv.
                     Mr.    Anish R. Shah, Adv.
                     Ms.    Soumya Ray, Adv.
                     Mr.    Ashish Bhan, Adv.
                     Ms.    Mamta Saxena, Adv.
                     Ms.    Smidhi Sinha, Adv.
                     Ms.    Sonam Anand, Adv.
                     Mr.    Mukul Kumar, Adv. (NP)
For Respondent(s)
                     Mr.    Pallav Shishodia, Sr. Adv.
                     Mr.    Dhruv Mehta, Sr. Adv.
                     Mr.    Mukul Kumar, Adv.
                     Mr.    Sudhir Pal Singh, Adv.
                     Ms.    Anitha Shenoy, Adv. (NP)
UPON hearing counsel the Court made the following
O R D E R
                 Put up before a Bench of which one of us (Aftam
          Alam, J.) is not a member.
            (N.S.K. Kamesh)                          (S.S.R. Krishna)
              Court Master                             Court Master

Court restrains Interpol from taking custody of child from NRI

Press Trust of India, Friday March 26, 2010, New Delhi

The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.

A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court. (Custody battle: A child's wait for justice)
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries. The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.
A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court.
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries.

http://www.ndtv.com/news/india/court-restrains-interpol-from-taking-custody-of-child-from-nri-18497.php

Court restrains Interpol from taking custody of child from NRI

The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.
A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court. (Custody battle: A child's wait for justice)
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries. The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.
A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.
The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.
Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court. The high court had passed the order while setting aside the district's order granting custodial rights to the mother.
However, Ruchi's husband, armed with a US court order, sought the help of the Interpol to take custody of the child and came to India, following which the woman moved the apex court.
In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.
Normally, government counsel, more so those holding high ranking law officer posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.
Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.
However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries.

Cross examination shatters 498a 304B case- U-turn by deceased’s(wife) parents who deny their own allegations- Aquittal of husband and family members

2010-09-22T10:08:00.001-07:00

IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.146/09
FIR No.39/07
U/s 498A/304B/406/34 IPC
PS C.R.Park
State
Vs.
1. Sandeep Chopra s/o Chaman Lal Chopra
2. Sonika Chopra w/o Sanjay Chopra
3. Chaman Lal Chopra s/o Late Sh. Rattan Lal Chopra
4. Sanjay Chopra s/o Chaman Lal Chopra
5. Vipin Chopra s/o Chaman Lal Chopra
6. Ekta Chopra w/o Vipin Chopra
7. Sudesh Chopra w/o Chaman Lal Chopra (Since expired)
............Accused
Challan filed on : 10.05.07
Received by Fast Track Court on:30.11.09
Reserved for Order on : 27.08.2010
Judgment delivered on : 31.08.2010
JUDGMENT
Briefly stated the facts of the prosecution case are that on
09.02.07 on receipt of DD no.13A regarding hanging of one lady at D-
720 CR Park, Delhi, SI Tika Ram alongwith Ct. Azad reached at the spot
and found one Shefali W/o Sandeep hanging with dupatta with ceiling
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 1 of 36fan. Crime team was summoned at the spot and HC Giriraj took some
photographs. The Executive Magistrate was informed and he also
reached at the spot and dead body was removed from the ceiling fan
after cutting the dupatta. The Executive Magistrate recorded the
statements of parents of deceased. The statement of Smt. Anita Bhatia is
Ex.PW2/A in which she has alleged that the engagement ceremony of
her daughter Shefali was solemnized with Sandeep Chopra on
10.02.2006 and they spent about Rs.10.00 in the engagement ceremony
and they spent about Rs.30.00 lacs on the marriage of her daughter
Shefali. After marriage Sandeep came to their residence and stated asked
as to why they have not called his friend Raju and uttered that he is
everything for him. After that Sandeep started quarreling with their
daughter. He is a drunker and also a gambler. They were under the
impression that Sandeep will improve after birth of child. On 18th
Jan.
2007, a male baby has been born out of the wedlock and on that
occasion, Sandeep demanded Skoda Car from them. In the marriage they
had given Accent Car of red colour bearing no. HR 29P 4907 to accused
Sandeep but he had passed on this car to his sister. They went to the
matrimonial house of their daughter and urged the parents of Sandeep to
make him understand but they also paid no heed and inturn started
uttering to Shefali that she should perform her work properly. Sandeep
had a fight with his own brothers because of Raju. He used to utter that
he will not leave Raju but he can leave Shefali. Whenever they visited
the matrimonial house of Shefali, her father in law, mother in law,
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 2 of 36Sandeep and his brothers used to given them a long list of items and ask
them that they have to give those items otherwise it will not be in their
interest. Sandeep uttered to them that if their demands will not be
fulfilled and they did not take care of his friend Raju, he will leave
Shefali at her parents house. He used to come to home after 11 p.m after
consuming liquor and he used unparliamentary language to Shefali. He
used to beat her by giving leg blows during pregnancy. All the accused
persons Chaman Lal Chopra, Sandeep Chopra, Raju, his wife Neetu,
Sonika Chopra, Vipin Chopra, Ekta Chopra and Anju Chopra have killed
her daughter and thereafter hanged her with fan and it was informed to
them at about 9.15 p.m that Shefali has committed suicide. On this
statement SDM has directed the SHO PS C.R Park to register the case
u/s 498A/304B/406/34 IPC. The case was registered and investigation
was done. The accused persons were arrested and after completion of
investigation challan was filed.
2. Being the case of the category exclusively triable by the court
of Sessions, after committal proceedings, it was assigned to the court of
sessions and charge against accused persons u/s 304B/498A/406/34 IPC
has been framed on 22.02.08 against accused Sandeep Chopra, Chaman
Lal, Sudesh Chopra(Since deceased), Vipin Chopra, Ekta Chopra,
Sanjay Chopra and Sonika Chopra to which all the accused persons
pleaded not guilty and claimed trial.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 3 of 363. The prosecution to bring home the guilt of accused persons
has examined in all 16 witnesses.
4. The incriminating evidence against the accused persons were
put to them in their statements recorded u/s 313 Cr.P.C in which they
have denied each and every allegation and stated that they have been
falsely implicated in this case. Thereafter the case was fixed for final
arguments.
5. I have heard Sh Inder Kumar Ld. APP for the State as well as
Sh Ramesh Gupta, Sr. Advocate for the accused persons.
6. In view of the submissions made by Ld.Counsel for defence
as well as Ld.APP for the State, I have also perused the documents and
testimonies of each witness carefully. During the course of arguments
Ld. counsels for the accused persons have drawn the attention of the
court on the testimonies of each witness and stated that the statements
given by the relatives of the deceased are contradicting to each other and
they have made glaring improvements in their testimonies. It has further
been stated that no demand for dowry was ever made by the accused
persons and the deceased was never harassed for dowry. Ld. counsel has
drawn the attention on the testimonies of each and every witnesses and
stated that no case is made out against the accused persons and they may
kindly be acquitted.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 4 of 367. On the other hand Ld.APP for the State has stated that no
improvement have been made by the PWs because they has stated as per
the statement recorded u/s 161 Cr.P.C and the statement recorded by the
SDM. The relatives of the deceased have made specific allegations
against the accused persons for demand of dowry and harassment due to
which Shefali committed suicide. It has been further submitted that
accused persons may kindly be punished in accordance with law.
8. In view of the submissions made by the Ld.defence counsels
as well as Ld.APP for the State, I have also perused the testimonies of
witnesses.
9. PW1 Kuldeep Bhatia is the father of deceased Shefali. He has
stated that SDM has recorded his statement which is Ex.PW1/A. He
identified the dead body of his daughter vide staetment Ex.PW1/B and
received the dead body vide memo Ex.PW1/C. He handed over the list
of dowry to the police which is Ex.PW1/D and photographs which are
Ex.PW1/E & F.
10. PW2 Anita Bhatia is the complainant and mother of
deceased Shefali. She has stated that SDM has recorded her statement
which is Ex.PW2/A. She has stated that accused persons demanded
Skoda from her at the time when her daughter gave birth to a male baby.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 5 of 3611. PW3 Dr. Akhilesh has stated that Dr. MG Jai and Dr.
Raghvender had conducted the post mortem on the dead body of Shefali.
the post mortem report is Ex.PW3/A.
12. PW4 Rajan Bhatia is the maternal uncle of deceased Shefali
and he has stated that Raju demanded skoda car from Anita Bhatia and
Kuldeep Bhatia. He has been declared hostile by the prosecution and
cross examined by the Ld. APP for the State.
13. PW5 Sahil Bhatia is the brother of deceased Shefali and he
has not supported the case of the prosecution and he has been declared
hostile by the prosecution and cross examined by the Ld. APP for the
State but in vain.
14. PW6 Ct. Azad Singh reached at the spot with SI Tika Ram
and he has stated that they found one lady hanging with ceiling fan with
the help of chuni. The executive Magistrate came there and he recorded
the statements of the parents of deceased. The dead body was sent to
Mortuary. IO prepared the rukka and got the case registered through him.
He further deposed about seizure of articles from the spot vide memo
Ex.PW5/A,B and C. He further deposed that accused Sandeep was
arrested vide memo Ex.PW6/A and his personal search was conducted
vide memo Ex.PW6/B. He further deposed about arrest of accused
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 6 of 36Chaman Lal on 10.2.07 vide memo Ex.PW6/C and conducting of his
personal search vide memo Ex.PW6/D. He recorded the disclosure
statement of accused Sandeep Chopra which is Ex.PW6/E. He identified
the chappal, key with chhalla as Ex.Pw6/Article1 and Ex.PW6/article2.
15. PW7 Ct. Gopal Prasad has deposed that on 9.2.07 he reached
at the spot with SI Tika Ram. He was sent by SI Tika Ram with dead
body to mortuary of AIIMS. He handed over the pulland given to him in
the hospital to IO which was seized vide memo Ex.PW7/A.
16. PW8 HC Sarjeet Singh has deposed that he was posted in
control Room, PHQ on 9.2.07 and he received telephone call from no.
9811111118 from Vipin Chopra that his sister in law has killed herself
and he recorded the same in form which is Ex.PW8/A.
17. PW9 HC Giriraj is the witness from crime team and he took
photographs which are Ex.PW9/A6 to A10 and negatives are
Ex.PW9/A1 to A5.
18. PW10 HC Rajeev has recorded the FIR of this present case.
The copy of FIR is Ex.PW10/A.
19. PW11 SI Naveen Kumar has deposed that on 9.2.07 he was
posted in crime team and after inspecting the spot he prepared his report
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 7 of 36which is Ex.PW11/A.
20. PW12 Ct.Tejpal has deposed that he delivered the copies of
FIR to Joint CP, ACP and area ACP on 9.10.07 (should be 09.02.07).
21. PW13 SI Tika Ram is the first IO and he reached at the spot
with Ct. Azad where they found one lady Shefali hanging from Ceiling
fan with dupatta. He called Executive Magistrate and crime team. He has
stated that Executive Magistrate recorded the statements of the parents of
the deceased on the basis of which he got the case registered. He seized
the articles lying at the spot vide memo Ex.PW5/A, B and C. He
prepared the site plan Ex.PW13/B. He arrested accused Sandeep,
conducted his personal search and recorded his disclosure statement. He
got conducted the post mortem on the dead body of Shefali and after post
mortem handed over the dead body to her father and brother vide memo
Ex.PW1/C. He arrested accused Chaman Lal and conducted his personal
search. He got prepared the scaled site plan. He identified the case
property.
22. PW14 Sh. RK Saini is the Executive Magistrate who
recorded the statements of Kuldeep Bhatia and Anita Bhatia Ex.PW1/A
and Ex.PW2/A and he has instructed the SHO to take legal action vide
endorsement Ex.PW14/A.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 8 of 3623 PW15 SI Mahesh has prepared the scaled site plan which is
Ex.PW15/A.
24. PW16 Insp. Jogender Kumar is the second IO and he
formally arrest accused Raj Kumar vide memo Ex.PW16/C. He seized
the photographs and marriage invitation card vide memo Ex.PW16/D.
He also seized the accent car vide memo Ex.PW16/E.
25. In the overall analysis of the testimonies of all the PWS it is
revealed that PW1 Kuldeep Bhatia is the father of deceased, PW2 Anita
Bhatia is the mother of deceased, PW4 Rajan Bhatia is the maternal
uncle of deceased and PW5 Sahil Bhatia is the brother of deceased
Shefali. PW2 Smt. Anita Bhatia is the complainant and mother of the
deceased. These witnesses including PW14 Sh RK Saini, the then
Executive Magistrate are the main star witnesses of the prosecution.
PW1,2,4 & 5 are the near relatives of the deceased.
26. To bring the guilt of the accused persons u/s 498A/ 304 B
IPC it is necessary to discuss the relevant provisions. Section 304B
relates to dowry death. The same was introduced in the Indian Penal
Code and it reads as under:-
304 B (1)
Where the death of a woman is caused by any burns or bodily
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 9 of 36injury or occurs otherwise than under normal circumstances within seven
years of her marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of her
husband for or in connection with any demands for dowry such death
shall be called dowry death and such husband or relative shall be deemed
to have caused her death.
For the purpose of this sub section dowry shall have the same
meaning as in section 2 of the dowry prohibition Act 1961.
'Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than 7 years but which
may extend to imprisonment for life'.
And if the ingredients of section 304B have been completed
then the presumption u/s 113 B in the Indian Evidence Act is required.
Section 113 B
Presumption as to dowry death - when the question whether a
person has committed the dowry death of a woman and it is shown that
soon before her death such woman had been subjected by such person to
cruelty or harassment for or in connection with any demand for dowry,
the court shall presume that such person had caused the dowry death.
In a case of dowry death cruelty on part of husband towards
his wife by prosecution has to be proved beyond reasonable doubt and
section 113 B of Evidence Act does not alter this requirement of stick
proof.
And section 498 A IPC reads as under:-
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 10 of 36'Husband or relatives of husband of a woman subjecting her
to cruelty Whoever being the husband or the relative of the husband or
a woman subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall be
liable to fine'.
27. There is explanation for the purpose of this section cruelty
means:-
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life ,limb
or health (whether mental or physical ) of the woman or
(b) Harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
28. In the normal circumstances though cruelty at any time after
marriage may cause depression in the mind of the victim, the cruelty and
harassment envisaged by section 304B is to be seen before the death of
a woman and it is the duty of the court to scrutinize the evidence
carefully because cases are not rare in which occasionally there is
demand and then the atmosphere becomes calm and quiet and then
again there is demand. Where a wife dies in the house of the husband
within the short span of seven years of her marriage, it is of considerable
difficulty to assess the precise circumstances in which the incident
occurred because ordinarily independent witnesses are not available as
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 11 of 36the torture and harassment is confined in the four walls of the house.
However, the courts are to be vigilant to scrutinize the evidence
regarding the harassment and torture carefully if the witnesses are
relatives of the deceased and relations between them and her in laws are
strained for any reason whatsoever it might be.
29. Urge for living is a natural phenomenon in mankind. A
person would not embrace death unless there is some psychological
trouble or mental agony or such circumstances that the person
committing suicide may think that the life he or she is living is more
miserable than the pangs and agony of death. The power of tolerance
would vary from person to person. Some persons try to make the life
easy by tolerance while others even on petty points bring an end to their
life.
30. Reverting back to the testimonies of witnesses firstly I would
consider the testimonies of the witnesses adduced by the prosecution
who are related to deceased Shefali. PW4 Rajan Bhatia is the maternal
uncle of deceased and he has stated that Shefali was got married to
Sandeep on 6.3.06 as per Hindu Rites and Customs and Accent car was
given to him in the dowry alongwith other gold and silver jewellery. His
brother in Law spent Rs.15 to 20 lac on the marriage of Shefali. One
friend named Raju @ Raj Kumar of accused Sandeep Chopra used to
demand more dowry from his brother in law Kuldeep Bhatia and
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 12 of 36whenever complaint has been made to Sandeep Chopra, he used to say
that whatever Raju says that is final. His niece was not kept well in the
house. Shefali told her that she is not happy in her in laws house. He has
further stated that at the time of delivery of first child Raju demanded
Skoda car from Kuldeep Bhatia. On receiving the message regarding
death of Shefali he reached in Chitranjan Park and found Shefali hanging
with fan. This witness has been declared hostile by the prosecution and
cross examined by the Ld. APP for the State wherein he has admitted
that the accent car which was gifted in the dowry, the same was further
gifted to the sister in law nanad/sister in law named Gitanjali. He denied
that when his jija Kuldeep and his family reached at the house of accused
persons, some hot exchange took place between them and then accused
persons went away from their house. He denied that the half portion of
the dupatta which was cut down from the neck of Shefali was taken in
police custody alongwith two pair of lady's chappal and key with
chhalla. He did not state to the police that Shefali committed suicide due
to harassment and demand of dowry by the accused persons and she
expired due to harassment for demand of dowry. He cannot identify the
exhibits which were lifted by the police. I have also considered the cross
examination wherein he has admitted that he has never been to the house
of his sister after or prior to the marriage of his niece Shefali. When he
has not visited the house of his sister, it is not understandable as to how
he came to know that there was some demand for dowry from the side of
accused persons. He has further stated that once only his deceased niece
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 13 of 36disclosed him regarding the harassment otherwise his sister used to tell
him regarding the harassment by accused persons. Sandeep used to meet
him socially in normal way. It is correct that Sandeep never gave beating
to Shefali at the instance of Raju in his presence. In view of his statement
he has alleged that one Raju has demanded more dowry and even that he
demanded skoda car at the time when Shefali gave birth to first child. He
has not levelled allegations against any of the accused persons facing
trial before this court. Raju has already been discharged by the court
vide order dated 22.02.08. Considering the cross examination conducted
by the Ld. APP for the State, nothing incriminating could come out
against the accused persons. In cross examination he has admitted that
accused Sandeep never gave beating to Shefali at the instance of Raju in
his presence.
31. PW5 Sahil Bhatia is the brother of deceased Shefali and he
has stated that the marriage of his sister was solemnized on 6.3.06 with
Sandeep Chopra and they present one accent car in the marriage. His
mother used to tell him about the harassment of his sister Shefali by her
in laws. As and when he used to visit the in laws house of Shefali, after
seeing her face he understand her problem but he did not involve in any
affair to avoid future relations. Thereafter he has stated about receiving
of information regarding death of his sister by hanging herself with
fan.During life time his sister was not happy in her in laws house. He has
been declared hostile by the prosecution and cross examined by the Ld.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 14 of 36APP for the State wherein he has stated that police did not record his
statement Ex.PW5/A. He has been confronted with his statement by the
Ld. APP for the State but he denied having made such statement to the
police. However, he admitted that on 10.2.07 he identified the dead
body of his sister in mortuary of AIIMS Hospital and he received the
dead body. In view of his statement he has stated that his mother used to
tell him about the harassment of his sister. He has deposed on hearsay
because it was told to him by his mother and not by his sister Shefali.
Secondly, he has not stated as to how the accused person caused
harassment to Shefali and what they used to utter and what they used to
demand. By conducting cross examination by the Ld. APP for the State,
nothing incriminating could come against the accused persons. PW5 has
not made any allegation that accused persons has ever demanded more
dowry or skoda car from his father. He has also not stated that Shefali
has ever told him about the harassment caused to her by her husband as
well as in-laws.
32. PW1 Kuldeep Bhatia is the father of deceased Shefali and he
has staetd that he gave hyundai Accent car in dowry. As soon as his
daughter reached her matrimonial house her mother in law took all
jewellery from her and told that she will return as and when she would
require. After days Raju friend of Sandeep told his daughter that they
had to purchase one plot for Sandeep and they asked for Rs.5.00 lac. He
was shocked to know this fact. He was surprised that when he has spent
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 15 of 36so much money on marriage why they are asking for more money. He
told that he is unable to pay Rs.5.00 lac. His daughter was not allowed to
talk on phone and when his daughter prayed them to talk she was told
'bill kya tera baap bharega'. Seeing this, in August 2006 he gave her one
mobile phone. He has further stated that his daughter was not provided
proper food and accused her that from the day she had come, their
business had collapsed. When they received instruction from the side of
Sandeep Raju mere bhai se bharkar hai aur jo cheez tum mujhey doge
tum Raju ko bhi doge'. Sandeep used to return back home at 11 p.m in
drunken condition. They pressurized for Rs.5.00 lac. In June 2006 he
gave Rs.2.00 lac to Sandeep Chopra in the presence of Raju and parents
of Sandeep Chopra and requested them with folded hand that he cannot
afford more money. Sandeep, Raju and his family members never liked
the food cooked by his daughter and they used to tell 'teri maa ne tujhe
kya sikhya'. In the presence of all the family members and Sandeep, Raju
slapped his daughter uttering the words 'tere ko khana banana nahi aata'.
In the same night Sandeep and Raju returned home after taking drinks
and went in the bedroom where his daughter was sleeping and Raju
started molesting his daughter. He has further stated that Shefali got
pregnant and during pregnancy she was beaten mercilessly. They used to
tell her that after birth of child everything will be settled down. On
18.1.07 Shefali gave birth to a son and at that time Sandeep asked him to
give him Skoda Car. He told the parents of Sandeep about this and they
told 'theek hai jo yeh kah raha hai puri kar do'. He was shocked to know
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 16 of 36that Sandeep has handed over the car Accent to Anjali Lekhi. He has
further stated that on 8.2.07 Sandeep, Raju and parents of Sandeep came
to their house and demanded Skoda Car and used filthy language. After
requesting them, they went back and thereafter Shefali made a call and
told 'mai bahut pareshan ho rahi hoo apki inse kya baat hui'. On 9.2.07
Sandeep, Raju and parents of Sandeep again came to their house and told
'hamari yeh demand puri kartey ho to theek hai nahin to apni ladki se
haath dho baithogey'. They told them 'agar aap police me galti se bhi
chaley gaye hum apko fasa denge kyunki hamari bahut unchi pahunch
hai'. On 9.2.07 at 1 p.m Shefali had a talk with her mother on telephone
and she told her mother -'Mami dil bahut ghabra raha hai samajh mai
nahi aa raha'. On the same day at about 9.15 p.m his wife received call
from Sandeep that Shefali had hanged herself. He alongwith his wife
reached at the house of Shefali and saw the body of Shefali hanging with
ceiling fan. Her feet were touching the ground. There was no stool near
the dead body one which she might have climbed. He was shocked that a
girl who was married only 11 months back having 22 days child would
never commit suicide. His daughter had not committed suicide as she
had 22 days son, in fact she had been killed by the accused persons.
SDM recorded his statement which is Ex.PW1/A. He identified the dead
body his daughter and received the same. He handed over the list of
dowry articles to police which is Ex.PW1/D, photographs Ex.PW1/E and
F and photocopy of marriage card Ex.PW1/G. He has further stated that
Sandeep Chopra, entire family and Raju are responsible for the incident
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 17 of 36with his daughter. In view of the above statement of PW1 he has made
certain allegations against the accused persons. So, first I have perused
the cross examined of this witness conducted by the Ld. defence counsel.
He has stated in cross examination that it is correct that he has not stated
in his statement Ex.PW1/A that the parents of Sandeep had asked that
the marriage should be performed as per their status and accordingly he
raised his budget by taking loan and financial assistance from his
relatives and friends. It is correct that he had gifted Accent Car in the
marriage with his own free will. So,the accent car has been given by
PW1 to accused Sandeep with his own free will in the dowry and it
cannot be terms as demand for dowry. He has further stated that it is
correct that he had not stated to the SDM that parents of Sandeep and his
friend told his daughter that they had to purchase one plot for Sandeep
and they asked for Rs.5.00 lac of that this fact was told by his daughter
to his wife. It is correct that his daughter did not told him directly for
demand of Rs.5.00 lacs. He admitted that no accused present in the court
made any demand of any nature directly from him at any time after the
marriage of his daughter Shefali. PW1 is the father of deceased Shefali
but he has clearly stated in his cross examination that no demand of any
nature has been made from him at any time after the marriage of his
daughter Shefali by the accused persons. Since he has admitted about no
demand by the accused persons, allegation made by him in the
examination in chief seems to be doubtful because he has not made
consistent statement in this respect. It seems that no demand for Rs.5.00
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 18 of 36lacs has been made by the accused persons. Further, PW1 has admitted
in cross examination that he has not stated to Magistrate that their
daughter was not allowed to use telephone and on request of his daughter
that she be allowed to use phone and she was told 'bill kya tera baap
bharega' on which he gave her a mobile phone. He admitted that he did
not stated to the Magistrate that she was not provided food and used to
be harassed for preparing food and that accused used to curse her that
from the day she has come, their business has collapsed.He admitted that
when he used to meet Sandeep and other accused, they used to meet
normally and in cordial manner as relative meets and respect each other.
He admitted that he has not stated that he was pressurized for Rs.5.00 lac
and Rs.2.00 lac was given by him to the mother of Sandeep in the
presence of Raju. He admitted that he did not state to the SDM in
statement Ex.PW1/A that family members of Sandeep never liked food
cooked by his daughter or that Sandeep slapped his daughter by saying
tere ko khana banana hain aata or that Sandeep and Raju returned home
after drink and Raju attempted to molest her daughter. He has not stated
to the SDM that Shefali was pregnant and she was mercilessly beaten.
Sandeep had not demanded Skoda car from him. IN examination in chief
he has alleged that skoda car was demanded from him but in cross
examination he has stated that it was not demanded from him by accused
Sandeep. However, he has stated that it was demanded by Raju (already
discharged). He further stated that it is correct that he has not stated in
his statement to Magistrate that he told the parents of Sandeep that Raju
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 19 of 36was demanding a skoda car and that they told 'theek hai jo yeh keh raha
hai puri kar do'. He has further stated that he has not stated to the SDM
that the car which was given by him has been given to Anjali Lekhi by
Sandeep. He had not stated in his statement that on 8.2.07 Sandeep and
his parents came to their house and demanded Skoda car and used filthy
language and thereafter Shefali called them and said 'mai bahut pareshan
ho rahi hu inse kaya baat hui'. He has further stated that he has not stated
in his statement that on 9.2.07 Sandeep and his parents again came to
their house and claimed that their demand may be fulfilled. He has not
stated that on 9.2.07 at 1 p.m Shefali had a talk with her mother on
telephone and she said 'mummy dil bahut ghabra raha hai samaj mai
nahin aa raha'. He has not stated that when he saw his daughter hanging
her feet were touching the ground and there was not stool nearby. He
made the statement Ex.PW1/A to the SDM in a very perplexed situation
as some of the relatives got it dictated and he just signed. He has further
stated that it is correct that Sandeep has a habit of consuming liquor and
beyond that they have no grievance against him or the accused present in
the court. From the deposition of PW1 who is father of deceased it is
revealed that he has made allegations against the accused persons in his
examination in chief but when he was put through cross examination his
testimony has been completely shattered by the Ld. defence counsel. He
has not been re-examined by the Ld. APP for the State when he denied
the allegations in cross examination. On perusal of his cross examination
it is revealed that the accent car has been given by him on his own free
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 20 of 36will. She has further stated that accused persons have made no demand
from him. So, his version that Rs.5.00 lacs and Skoda Car were demand
cannot be believed.
33. PW2 Anita Bhatia is the mother of the deceased and
complainant in this case. She has also stated in her examination in chief
that they had given hyundai accent car in dowry. She has stated that
after 3-4 days of marriage of his daughter , accused Sandeep told her
daughter that he has to purchase a plot for which he told her daughter to
demand Rs.5.00 lac from them. It was told to her in April 2006. He told
Sandeep that they cannot afford Rs.5.00 lac. They brought it to the notice
of parents of Sandeep who told that whatsoever Sandeep demanding,
they will have to give him. Thereafter they started harassing their
daughter. Her mother in law told to her daughter 'tumhari maa nai ghar
ka kaam nahi sikhya hai' and both bhabies and Sandeep used to take
entire household work from Shefali and used to torture her. Her daughter
used to weep bitterly whenever she called her up. Considering her
grievance they gave Rs.2.00 lacs on 28.6.06. On 10th
August Sandeep
took Rs.11,000/- from them. They were not allowed to meet their
daughter in the hospital and they were asked to bring Skoda car. Anjali
instigated Sandeep and told to give car and she took the car which was
given by them in the marriage. On 8.2.07 Sandeep Raju and parents of
Raju came to their house and demanded skoda car. They requested them
that they cannot give the same but their request was not accpeted. They
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 21 of 36tortured Shefali after reaching house. On 9.2.07 Sandeep, Raju and
parents of Sandeep came to their house and told that if she want to meet
her daughter and want to see her happy she should give skoda car. At
about 1 p.m she received call from her daughter and she was weeping
bitterly and told that Sandeep had not given anything to eat. At about
9.15 p.m Sandeep telephoned her that Shefali has committed suicide.
They had gone there and saw Shefali hanging from ceiling fan. He
further stated that no mother can commit suicide leaving her 20 days
child. Like PW1 father of deceased Shefali, PW2 Anita Bhatia has also
levelled allegation for demand of Rs.5.00 lac and Skoda car from the
accused persons. So, I have also perused her cross examination
conducted on behalf of the accused persons. She has stated in cross
examination that she has not stated in her statement that on the demand
of accused persons they have given accent car. She has not stated in her
statement Ex.PW2/A that Sandeep told her daughter to demand Rs.5.00
lacs for purchasing the plot. She has admitted that she has not stated in
her statement that she has stated that her mother in law told her daughter
'tumhari maa ne ghar ka kaam nahi sikhaya'. He further stated that it is
correct that she has not stated in her statement Ex.PW2/A that whenever
she called her daughter she wept bitterly and considering her grievances,
Rs.2.00 lac was given to Sandeep in the presence of his mother on
28.6.06. She has not stated that Rs.11,000/- was taken by Sandeep for
purchase of mobile. She has also admitted that she has not stated in her
statement that Raju and Sandeep met them at the gate of the hospital and
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 22 of 36did not allow to meet Shefali after birth of male child and asked them to
bring skoda car first. She has not stated in her statement that Sandeep's
sister Anjali instigated Sandeep and told to give her car and she took the
car which was given in marriage. It is correct that she had not stated in
her statement Ex.PW2/A that on 8.2.07 at 6 p.m Sandeep, Raju and
parents of Sandeep came to his house and demanded skoda car and
abused despite their request with folded hands but they did not accept
their request and left their house or that they tortured Shefali after
reaching the house and she wept bitterly on phone. She has not stated in
her statement that she saw her daughter hanging with thin chuni and her
feet were touching the ground. It is correct that she had not stated in her
statement Ex.PW2/A that she beg to submit that no mother can commit
suicide leaving her 20 days old child. She has further stated that it is
correct that Sandeep had never demanded any money or dowry directly
from her or in her presence. Sometime mother of Sandeep used to taunt
Shefali in her presence regarding lack of dowry. It is correct that she has
not stated in her statement that her daughter Shefali was engaged with
Sandeep on 10.2.06. It is correct that she has not stated in her statement
Ex.PW2/A that her son in law used to fight with his brother because of
Raju. She has not stated that the family members of Sandeep gave a list
of articles that were to be given by her if she want to see her daughter
safe and happy. She has not stated in her statement that Sandeep used to
drink everyday and come back at home at 11 p.m and after coming home
he used to abuse and beat with legs during pregnancy. She denied that
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 23 of 36she was told by Shefali that Sandeep is in the habit of consuming liquor
vol. but in her presence he never took liquor. It is correct that Shefali
was a very sensitive girl. She admitted that all the accused persons have
never harassed Shefali in her presence nor demanded any money or
dowry. She admitted that Shefali has never complaint to her about any
harassment. She admitted that sister of Shefali has not taken Accent Car
in her presence. She admitted that accused persons have never demanded
any skoda car at the time of chuchak vol. it was demanded by Raju. PW2
Smt. Anita Bhatia has been re-examined by the Ld. APP for the state
wherein she has stated that she has stated the same whatever she was told
by the police on 25.8.08. In view of the statement of PW2 mother of
deceased and complainant she has also made allegation in her
examination in chief but in cross examination her testimony has been
shattered by the Ld. defence counsel. Considering her cross examination
the allegations made by her in examination in chief cannot be believed.
34. In view of the above discussions I would like to mention
here some case laws for the just decision of this case. In case law Sunil
Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note:-
'Section 304B- It is pleaded that last letter of deceased did
not mention any allegation of dowry demand The letter
of deceased does not speak of any demand of dowry and
there is totally absence of demand of dowry and so
sec.498A of IPC is not at all attracted Thus the
necessary ingredients of the offence of sec.304B of IPC is
absence and so the conviction and sentence of the
appellant cannot sustain and so the appellant is acquitted
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 24 of 36of the conviction us/ 304B IPC. It is further stated that :
Both the courts below concurrently committed the
appellant But out of so many witnesses of the neighbour
none could say that there was a dowry death and the
deceased was soon before her death was subjected to
demand of dowry which was necessary ingredient of the
offence u/s 498A of IPC committed by the husband or by
any of the family members or near relatives'.
In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC
627 it is stated in headnote that :
'Evidence Act. 1872 Sec.113B- Presumption- Dowry
death Against accused persons to be drawn provided
the prosecution establishes that soon before her death if
the woman was subjected to cruelty or harassment
within 7 years of marriage'.
'Dowry death Onus of proof- Preliminary facts Proof
of Onus lies upon the prosecution High Court
erroneously shifted the burden upon the accused About
the date of marriage Prosecution is required to prove
that death occurred within 7 days of marriage PW4
father of the deceased was not creditworthy So were
other related PW5 Prosecution failed to discharge its
initial onus of proof PW5/ the mother stated that the
deceased was depressed This indicated that woman
committed suicide in a state of depression Hence
conviction is set aside and appeal is allowed'.
In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC 1840 it
is stated in head note that :
'Sec. 304B Evidence Act, 1872 Sec. 113B Dowry
Death No incidence of demand of dowry or cruelty or
harassment 'soon before death' Letter relied on shows
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 25 of 36demand of articles by her parents by her own and not on
the behalf of appellant Improvements in the statements
of prosecution witnesses Prosecution squarely failed to
establish accusations against appellant Appeal allowed
Conviction set aside'.
In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is
stated in head note that :
'Sec. 304B Dowry death soon before the death,
deceased was subjected to cruelty or harassment by her
husband for or in connection with demand of dowry
Once this is established, a legal fiction is created under
section 304B IPC whereby such death would be called
dowry death On facts held, ingredients of Sec.304B
IPC r/ sec. 113 B Evidnce Act not satisfied'.
In case law Appasaheb & Anr Vs. State of Maharashtra, 2008(1)
Crimes 110(SC) it is stated in head note that :
'Sec.304B Dowry death- appellant convict under
Deceased died as a result of insecticide poisoning
Evidence of mother and father of deceased that when
deceased visited her parents she used to narrate all
treatment and beating for bringing money from her
parents Conviction by Trial court and upheld in appeal
by High Court Appeal Both witnesses deposed that
deceased was receiving ill treatment as a result of
domestic cause as regards domestic cause they
explained that there was a demand for money to meet
expenses for mature and other domestic expenses
Evidence did not show that any demand for dowry was
made Essential ingredient of dowry death i.e. demand
for dowry was not established Conviction could not be
sustained.
One Important point has been stated that :
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 26 of 36'A demand for money on account of some financial
stringency or for meeting some urgent domestic
expenses cannot be termed as demand for dowry and
conviction for dowry death on such demand could not be
sustained'.
In case law Bhaskar Ramappa Madar & ors. Vs. State of Karnataka,
2009 (3) JCC 1622 it is stated in head note that :
'Sec.498A- Demand of dowry The facts that husband
of deceased owned a truck which need heavy repairs
The amount given for the purpose does not amount to
demand of dowry'.
In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is
stated in head note that:-
'One of the essential ingredients amongst others, is that
the woman must have been 'soon before her death'
subjected to cruelty or harassment for, or in connection
with the demand for dowry Nothing on record to show
that any demand of dowry was made soon before her
death- The cause of action appears to be an ego problem
on the part of the appellant, namely the deceased had not
been coming to her matrimonial home Conviction u/s
304B not proved'.
'Cruelty or harassment When the name of the
appellant/husband and his parents were material in the
FIR It is clear that all of them had been ill treating
deceased for non bringing of sufficient dowry and not
bearing a child- Not correct to contend that FIR does not
contain any statement of cruelty or harassment of the
deceased especially when death occurred within 7 years
of marriage and dead body was found in matrimonial
home'.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 27 of 36It is stated in case Arvind Singh Vs. State of Bihar, 2001(1) JCC (SC
341 that:-
'Sec.302, 304B and 498A deceased wife died of burn
injuries No independent and reliable witness
prosecution case based on evidence of interest witnesses
and members of the family of deceased and also on the
basis of dying declaration made to the mother of
deceased. Deceased remained at the house and could not
be admitted to hospital parents of deceased informed
Oral dying declaration made at home and not in presence
of any doctor or any other independent witness Courts
below acquitting other family members of the
appellant/husband Dying declaration not tained on
basis of such dying declaration No clearcut evidence of
dowry demand on record- no doctor's evidence Benefit
of doubt extended to appellant'.
It is stated in case Sabar Bhatti & Ors. Vs. State, 2009(v) AD (Cr)
(DHC) 209 that :-
'Improvements of material nature in depositions of
parents of M No Particulars of dates when dowry
demands made and amounts paid, given Conviction of
Z, Mother in law, and S u/s 498A, set aside'.
In case law Jai Ram Vs. State of Rajasthan, 1995(1) Crimes 611 it is
stated in head note:
'Sec.304B & 498A Deceased, Wife of appellant, was
married to appellant two and half year prior to incident
cause of death as per post mortem was asphyxia due to
organo phosphorus poisoning Evidence of father of
deceased that deceased used to complain that her in laws
maltreated and harassed her and taunted for insufficient
dowry Significant omission in FIR and statement
before police regarding demand of motor cycle by
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 28 of 36appellant Evidence regarding cruelty and maltreatment,
quite vague, inconsistent and untrustworthy
Independent two witnesses, neighbours not produced
Co-accused acquitted by trial court on same evidence
Conviction of appellant is unsustainable'.
In case Law Kalyan & Ors. Vs. State of UP, 2001(2) JCC (SC) 203 it
is stated in head note that :
'Appreciation of evidence -Incident stated in FIR, being
the first version of the occurrence has to be given due
weightage The case of the prosecution, as sought to be
proved at the trial, appears to be different than the one as
narrated in the FIR view taken by trial court in
acquitting the appellants herein is justified'.
'Prosecution setting out a new case in evidence, which is
in contradiction to the version stated in FIR Witnesses
are partisan witnesses and also inimical towards one
accused Conflict in oral evidence as against medical
evidence-Was High Court right in disturbing the order of
acquittal Held (NO)'.
In case law Babita Vs. State, 2009(2) JCC 1247 it is stated in head note
that :
'Sec.304B and 498A- no specific demand have been
made except the demand of Rs.1,50,000/- which
according to the father of deceased was made at the time
of marriage Cannot make out a case of harassment soon
before the death No dying declaration of deceased was
recorded Not a single instance of harassment by
petitioner who is sister in law of deceased soon before
her death No basis to frame charge against petition'.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 29 of 3635. Ld. APP for the state has relied up case law titled Alamgir
Vs. State of Assam, 2003(3) SRJ 461 it is stated in head note that :
'IPC 1860 Sec 304B -Indian Evidence Act 1872
Sec.113B- Dowry Death- Injuries not self inflicted
Deceased was with appellant in the bedroom
Deceased wife was in bathroom for a long time and
appellant showed no anxiety Some witnesses are
independent witnesses and some are the friends of both
family Held No reason to disbelieve the witnesses
Death having taken place within 7 years of marriage
Sufficient evidence of demand of dowry Presumption
u/s 113B of Evidence Act get invoked'.
Ld. APP for the State has also relied upon case law Pawan
Kumar & ors. Vs. State of Haryana, 1998(2) CC Cases 12 (SC).
36. In view of the testimonies of PW1,2,4 & 5,it is revealed that
PW4 Rajan Bhatia and PW5 Sahil Bhatia who are maternal uncle and
brother of deceased Shefali have not made any allegation against any of
the accused persons. PW5 has also been declared hostile by the
prosecution and cross examined by the Ld. APP for the State but in vain.
PW1 Kuldeep Bhatia, father of deceased and PW2 Anita Bhatia, mother
of deceased and complainant in this case, both have made main
allegations that accused persons have demanded Rs.5.00 lacs and Skoda
car and they also harassed & tortured Shefali by uttering different
words. But in cross examination both PW1 and PW2 have admitted that
they have not stated about these allegation to the Magistrate in their
statements Ex.PW1/A and Ex.PW2/A. All the above PWS have made
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 30 of 36inconsistent statements in this case. So, their versions cannot be
believed. It is held by our own Hon'ble High Court in case Raj Kumar
Vs. State 1997(2) CC Cases HC 291 that:-
'Where the PW has been absolutely inconsistent and has
been changing his stand from time to time, he cannot
be regarded as reliable and trust-worthy witness of the
occurrence'
It is also held by Apex Court in the case of Suraj Mal Vs. Delhi Admn.
1997 Criminal Law Journal 108(SC) CC Cases that :-
'When the prosecution witness gives two different
statements in their testimonies either at one or two suggest,
therefore the testimony become unreliable and unworthy of
credit and in the absence of any circumstances no
conviction could be made therein'.
37. Considering the above discussion, to prove the case u/s 304B
IPC three ingredients have to be proved (i) unnatural death (ii) within 7
years of marriage and (iii) soon before death she was subjected to cruelty
or harassment by her husband or relative of her husband (iv) such cruelty
must be in connection with demand of dowry (v) such cruelty is shown
to have been meted to the woman soon before her death. In this case the
death of Shefali was unnatural death and it was within 7 years of
marriage. Now it is necessary to find out as to whether the deceased was
being harassed soon before her death by subjecting her to cruelty and
demand of dowry. In this case only PW1&2 Kuldeep Bhatia and Anita
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 31 of 36Bhatia who are father and mother of deceased have stated that deceased
Shefali made call to them on 9.2.07 i.e. the alleged day of incident and
she was weeping bitterly and stated that family members of Sandeep had
not given anything to eat and thereafter the phone was disconnected. It
has not been stated by them as to what the accused persons were saying
at that time. Allegedly the call for hanging of Shefali was made at 9.15
p.m by Sandeep on 9.2.07. But in cross examination PW2 mother of the
deceased has stated that she has not stated in her statement Ex.PW2/A
that at about 1 p.m she received call from deceased Shefali and at that
time she was weeping bitterly and told her that family members of
Sandeep had not given her food to eat and thereafter the phone was
disconnected. PW1 Kuldeep Bhatia who is the father of deceased has
also stated the version of PW2 in this respect. Further both the witnesses
in cross examination have stated that accused persons had never
demanded any money or dowry directly from them. It has been stated
that sometime Sandeep used to taunt Shefali. But they have not stated as
to how the accused persons have caused taunt to Shefali. Even PW2 who
is complainant in this case has admitted that Shefali has never complaint
to her about any harassment meted to her by the accused persons. So, in
my view there is no evidence available on file in this case that deceased
Shefali was subjected to cruelty or harassment on account of demand of
dowry soon before her death. Hence, ingredients of Sec.304B IPC are
not complete in this case.
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 32 of 3638. In this case at the first blush I found that there was force in
the testimonies of PW1 & 2 (father and mother of deceased) but on
perusal of their cross examinations, I am astonished to see their changed
version. Both these witnesses have deposed entirely different in their
cross examination than from their examination in chief. So, I am of the
view that their contentions deposed in examination in chief are not
reliable.
39. I have also perused the testimony of other witnesses. PW3
Dr. Akhilesh has been examined by the prosecution to prove the post
mortem report which is Ex.PW3/A. This report has been prepared by Dr.
Raghvender Kumar and Dr. MG Jai. The cause of death has been opined
as asphyxia due to anti mortem hanging by ligature. The doctor who
prepared the Post Mortem Report has not been produced by the
prosecution. PW3 has only identified the hand writing of doctors who
prepared the post mortem report. PW8 HC Surjeet is the formal witness
who recorded the information in form Ex.PW8/A regarding hanging of a
lady. PW9 HC Giriraj is the photographer who clicked photographs
Ex.PW9/A6 to A10 at the spot and PW11 SI Naveen from Crime team
has inspected the spot and gave report which is Ex.PW11/A. PW10 HC
Rajeev has recorded the FIR of this case copy of which is ex.PW10/A
and PW12 Ct. Tejpal delivered the copies of FIR to Sr. Police officials.
PW15 SI Mahesh has prepared the scaled site plan which is
Ex.PW15/A and he is also a formal witness. PW14 Sh RK Saini, SDM
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 33 of 36visited the spot and recorded the statements of parents of deceased and
conducted inquest proceedings. In cross examination he has stated that
he does not recollect which police official recorded the statement of
Anita Bhatia and Kuldeep Bhatia vol. same was recorded by the police
officer on his direction. Both the statements are in different hand
writings. From this version of PW14 it seems that he has not recorded
the statement of Anil Bhatia (complainant) and Kuldeep Bhatia, parents
of deceased at the spot with his own handwriting and it was recorded by
some police officer there. He could not tell the name of the police
officers who recorded the statements of both Anita Bhatia and Kuldeep
Bhatia. As per version of PW14 the statements Ex.PW1/A and
Ex.PW2/A were recorded on his direction. It seems that he was not
aware as to what was recorded in the statements because he has not
stated that he was recorded under his dictation. So, it create doubt in the
case of the prosecution. PW16 Insp. Jogender Kumar is the second IO
and he arrested accused Raju (since discharged) and Nitu (set free). He
seized the list of articles, photographs and marriage card and also seized
the car. PW6 Ct. Azad, PW7 Ct. Gopal Prasad and PW13 SI Tika Ram
reached at the spot together and found a lady Shefali hanging from the
ceiling fan. PW7 has been sent to mortuary with the dead body and
PW13 got recorded the case through PW6 Ct. Azad. But PW6 Ct. Azad,
in cross examination has stated that he did not take rukka to PS. PW13
has seized the articles lying at the spot and arrested the accused persons.
Both PW6 and PW13 have deposed about the investigation carried out
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 34 of 36by PW13 at the spot. It is well settled principle of law that result of
investigation can never be a legal evidence.
40. In view of the above overall analysis of the testimonies of the
witnesses and in brief the allegations levelled by complainant Anita
Bhatia (PW2) and PW1 Kuldeep Bhatia cannot be believed considering
the deposition made by them in cross examination because both the
witnesses have stated that the accused persons have not made any
demand of dowry from them. They have not levelled any allegation for
demand of any household items. PW2 has also stated that she did not
state to the Magistrate that Shefali called her up on 9.2.07 at 1 p.m and
at that time she was weeping bitterly and told her that family members of
Sandeep had not given her food to eat and thereafter the phone was
disconnected. She has not stated as to what they were uttering to her at
that time. There is no evidence for demand of dowry or harassment
considering the cross examination of both the witness during the period
6.3.06 to 9.2.07. So, in this case soon before death is also absent and
there is no allegation for soon before death of harassing for demand of
dowry of deceased Shefali. Even there is no evidence on file about
beatings given by the accused persons to deceased Shefali. So, I am of
the opinion that Shefali was not maltreated soon before death or even at
any time after marriage by the accused persons.
41. In view of my above discussions and considering the case
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 35 of 36laws discussed above, this case does not fall under the category of
section 304B IPC and no presumption can be taken against the accused
persons u/s 113B of Indian Evidence Act. The prosecution has failed to
bring home the guilt of the accused u/s 498A/304B/34 IPC.
42. In over all analysis of the testimonies of the witnesses this
case does not fall under the category of 304B IPC and I also did not find
any evidence against the accused persons u/s 498A IPC keeping in view
the facts and circumstances of the case and cross examination of
PW1&2. So, I am of the considered view that the prosecution has failed
to prove its case against the accused persons. In such circumstances, the
accused persons are entitled to be given the benefit of doubt. I therefore
give the benefit of doubt to accused Sandeep Chopra, Chaman Lal,
Vipin Chopra,Sanjay Chopra, Sonika Chopra and Ekta Chopra and I
therefore, hereby acquit all these accused persons from the charges
levelled against them u/s 304B/498A/406/34 IPC. All the accused
persons are on bail. Their bail bonds are cancelled and sureties are
discharged. File be consigned to record room.
Announced in the open Court
on 31.08.2010.
(SURESH CHAND RAJAN)
ADDL.SESSIONS JUDGE
      (Fast Track Court-New Delhi and South East District)
       NEW DELHI
State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 36 of 36State Vs.Sandeep Chopra etc.
FIR no.39/07                                                                                  Page No. 37 of 36

SOURCE - http://judis.nic.in/dist_judis/pdf_retrieval_main.asp

------------------------------

SC -Reasons for judgment must – 15 points outlined for reasoning

2010-09-22T04:31:00.001-07:00

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._____ OF 2010
(Arising out of SLP (Civil) No.20428 of 2007)
M/s. Kranti Associates Pvt. Ltd. & Anr. ..Appellant(s)
Versus
Sh. Masood Ahmed Khan & Others ..Respondent(s)
WITH
CIVIL APPEAL NO._____ OF 2010
(Arising out of SLP (C) NO.12766 OF 2008)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. These   two   appeals,   one   at   the   instance   of   the
builder   and   the   other   at   the   instance   of   the
Corporation   Bank,   have   been   filed   impugning   the
Order   of   National   Consumer   Disputes   Redressal
Commission (hereinafter, the said Commission).
13. In the case of the builder, the said Commission has
not   given   any   reason   and   dismissed   the   revision
petition by passing a cryptic order dated 31.8.2007
which reads as under:
“Heard.
In view of the concurrent findings of the
State   Commission,   we   do   not   find   any
force in this revision petition.
The revision Petition is dismissed.”
4. In so far as the case of the builder is concerned,
this   Court   is   of   the   opinion   that   the   said
Commission   cannot,   considering   the   way   it   is
structured,   dismiss   the   revision   petition   by
refusing to give any reasons and by just affirming
the order of the State Commission.
5. The said Commission has been defined under Section
2(k)   of   the   Consumer   Protection   Act,   1986
(hereinafter CP Act) as follows:
“2(k)   “National   Commission”   means   the
National   Consumer   Disputes   Redressal
Commission   established   under   clause   (c)
of Section 9;”
6. Under section 9(c) of CP Act, the said Commission
has been established by the Central Government by a
notification.
27. The   composition   of   the   said   Commission   has   been
provided   under   Section   20   of   the   CP   Act   and
wherefrom it is clear that the said Commission is a
high-powered adjudicating forum headed by a sitting
or a retired judge of the Supreme Court.
8. Section   21   of   the   CP   Act   provides   for   the
jurisdiction of the said Commission.
9. In   order   to   appreciate   the   questions   involved   in
this case, the provision relating to jurisdiction of
the said Commission is set out hereunder:
“21.   Jurisdiction   of   the   National
Commission.-   Subject   to   the   other
provisions   of   this   Act,   the   National
Commission shall have jurisdiction-
(a) to entertain-
(i) complaints   where   the   value
of   the   goods   or   services
and   compensation,   if   any,
claimed exceeds [rupees one
crore]; and
(ii)   appeals   against   the   orders
of   any   State   Commission;
and
(b) to call for the records and pass
appropriate   orders   in   any   consumer
dispute   which   is   pending   before   or
has   been   decided   by   any   State
Commission   where   it   appears   to   the
National Commission that such State
Commission   has   exercised   a
jurisdiction   not   vested   in   it   by
law,   or   has   failed   to   exercise   a
3jurisdiction so vested, or has acted
in the exercise of its jurisdiction
illegally   or   with   material
irregularity.”
10. Under Section 23 of the CP Act, an appeal would lie
against the order of the said Commission passed in
exercise of its powers under Section 21(1)(a), to
this Court, within 30 days, subject to extension of
time by this Court on sufficient cause being shown.
Under   Section   21(1)(b),   the   said   Commission
exercises   revisional   power   over   orders   of   State
Commission.
11. The   power   and   procedure   applicable   to   the   said
Commission has been provided under Section 22 of the
CP Act. A perusal of Section 22(1) would show that
Sections 12, 13 and 14 of CP Act, with necessary
modification, are applicable to the decision making
process by the said Commission. Under Section 13 of
the CP Act, the District Forum has been vested, in
certain matters, with the powers of a Civil Court
while   trying   a   suit.   Section   13(4)   of   CP   Act   is
applicable to the said Commission in view of Section
22(1)   thereof.   Similarly,   Sections   13(5),   (6)   and
4(7) will also apply to the said Commission in view
of Section 22(1).
12. On a perusal of Sections 13(4), (5), (6) and (7) of
the CP Act, it is clear that the said Commission has
been   vested   with   some   of   the   powers   of   a   Civil
Court. The following powers have been vested on the
said Commission:
“13(4) For the purposes of this section,
the   District   Forum   shall   have   the   same
powers   as   are   vested   in   a   civil   court
under Code of Civil Procedure, 1908 (5 of
1908) while trying a suit in respect of
the following matters, namely:-
(i) the   summoning   and   enforcing
the   attendance   of   any
defendant   or   witness   and
examining   the   witness   on
oath,
(ii) the discovery and production
of   any   document   or   other
material object producible as
evidence,
(iii) the reception of evidence on
affidavits,
(iv) the   requisitioning   of   the
report   of   the   concerned
analysis   or   test   from   the
appropriate   laboratory   or
from   any   other   relevant
source,
(v) issuing of any commission for
the   examination   of   any
witness, and
(vi) any other matter which may be
prescribed.
513. Under Section 13(5) of CP Act, every proceeding of
the said Commission will be deemed to be a judicial
proceeding within the meaning of Sections 193 and
228   of   the   Indian   Penal   Code,   and   the   said
Commission shall be deemed to be a Civil Court for
the purpose of Section 195 and Chapter XXVI of the
Code of Criminal Procedure.
14. The   above   provisions   make   it   clear   that   the   said
Commission has the trappings of a Civil Court and is
a high-powered quasi-judicial forum for deciding lis
between the parties.
15. The   necessity   of   giving   reason   by   a   body   or
authority   in   support   of   its   decision   came   up   for
consideration   before   this   Court   in   several   cases.
Initially   this   Court   recognized   a   sort   of
demarcation between administrative orders and quasi-
judicial   orders   but   with   the   passage   of   time   the
distinction between the two got blurred and thinned
out and virtually reached a vanishing point in the
judgment of this Court in A.K. Kraipak and others
vs. Union of India and others reported in AIR 1970
SC 150.
616. In Kesava Mills Co. Ltd. and another vs. Union of
India and others reported in AIR 1973 SC 389, this
Court approvingly referred to the opinion of Lord
Denning in Rigina vs. Gaming Board Ex parte Benaim
[(1970) 2 WLR 1009] and quoted him as saying “that
heresy was scotched in Ridge and Boldwin, 1964 AC
40”.
17. The expression ‘speaking order’ was first coined by
Lord   Chancellor   Earl   Cairns   in   a   rather   strange
context. The Lord Chancellor, while explaining the
ambit of Writ of Certiorari, referred to orders with
errors on the face of the record and pointed out
that an order with errors on its face, is a speaking
order. (See 1878-97 Vol. 4 Appeal Cases 30 at 40 of
the report)
18. This Court always opined that the face of an order
passed   by   a   quasi-judicial   authority   or   even   an
administrative   authority   affecting   the   rights   of
parties,   must   speak.   It   must   not   be   like   the
‘inscrutable face of a Sphinx’.
719. In the case of Harinagar Sugar Mills Ltd. vs. Shyam
Sunder Jhunjhunwala and others, AIR 1961 SC 1669,
the   question   of   recording   reasons   came   up   for
consideration   in   the   context   of   a   refusal   by
Harinagar   to   transfer,   without   giving   reasons,
shares   held   by   Shyam   Sunder.   Challenging   such
refusal,   the   transferee   moved   the   High   Court
contending,   inter   alia,   that   the   refusal   is   mala
fide,   arbitrary   and   capricious.   The   High   Court
rejected such pleas and the transferee was asked to
file a suit. The transferee filed an appeal to the
Central Government under Section 111 Clause (3) of
Indian   Companies   Act,   1956   which   was   dismissed.
Thereafter, the son of the original transferee filed
another application for transfer of his shares which
was similarly refused by the Company. On appeal, the
Central Government quashed the resolution passed by
the Company and directed the Company to register the
transfer.   However,   in   passing   the   said   order,
Government   did   not   give   any   reason.   The   company
challenged the said decision before this Court.
20. The other question which arose in Harinagar (supra)
was whether the Central Government, in passing the
8appellate order acted as a tribunal and is amenable
to Article 136 jurisdiction of this Court.
21. Even though in Harinagar (supra) the decision was
administrative,   this   Court   insisted   on   the
requirement   of   recording   reason   and   further   held
that   in   exercising   appellate   powers,   the   Central
Government   acted   as   a   tribunal   in   exercising
judicial powers of the State and such exercise is
subject to Article 136 jurisdiction of this Court.
Such powers, this Court held, cannot be effectively
exercised if reasons are not given by the Central
Government in support of the order (Para 23, page
1678-79).
22. Again in the case of Bhagat Raja vs. Union of India
and others, AIR 1967 SC 1606, the Constitution Bench
of   this   Court   examined   the   question   whether   the
Central   Government   was   bound   to   pass   a   speaking
order while dismissing a revision and confirming the
order   of   the   State   Government   in   the   context   of
Mines and Minerals (Regulation and Development) Act,
1957, and having regard to the provision of Rule 55
of Mineral and Concessions Rules. The Constitution
9Bench held that in exercising its power of revision
under the aforesaid Rule the Central Government acts
in a quasi-judicial capacity (See para 8 page 1610).
Where the State Government gives a number of reasons
some of which are good and some are not, and the
Central Government merely endorses the order of the
State Government without specifying any reason, this
Court,   exercising   its   jurisdiction   under   Article
136, may find it difficult to ascertain which are
the grounds on which Central Government upheld the
order   of   the   State   Government   (See   para   9   page
1610).   Therefore,   this   Court   insisted   on   reasons
being given for the order.
23. In M/s. Mahabir Prasad Santosh Kumar vs. State of
U.P and others, AIR 1970 SC 1302, while dealing with
U.P.   Sugar   Dealers   License   Order   under   which   the
license was cancelled, this Court held that such an
order of cancellation is quasi-judicial and must be
a speaking one. This Court further held that merely
giving an opportunity of hearing is not enough and
further pointed out where the order is subject to
appeal,   the   necessity   to   record   reason   is   even
greater. The learned Judges held that the recording
10of reasons in support of a decision on a disputed
claim ensures that the decision is not a result of
caprice,   whim   or   fancy   but   was   arrived   at   after
considering the relevant law and that the decision
was just. (See para 7 page 1304).
24. In the case of M/s. Travancore Rayons Ltd. vs. The
Union   of   India   and   others,   AIR   1971   SC   862,   the
Court, dealing with the revisional jurisdiction of
the Central Government under the then Section 36 of
the Central Excise and Salt Act, 1944, held that the
Central Government was actually exercising judicial
power of the State and in exercising judicial power
reasons in support of the order must be disclosed on
two grounds. The first is that the person aggrieved
gets an opportunity to demonstrate that the reasons
are erroneous and secondly, the obligation to record
reasons   operates   as   a   deterrent   against   possible
arbitrary action by the executive authority invested
with the judicial power (See para 11 page 865-866).
25. In M/s. Woolcombers of India Ltd. vs. Woolcombers
Workers Union and another, AIR 1973 SC 2758, this
Court while considering an award under Section 11 of
11Industrial   Disputes   Act   insisted   on   the   need   of
giving   reasons   in   support   of   conclusions   in   the
Award. The Court held that the very requirement of
giving   reason   is   to   prevent   unfairness   or
arbitrariness   in   reaching   conclusions.   The   second
principle is based on the jurisprudential doctrine
that justice should not only be done, it should also
appear to be done as well. The learned Judges said
that   a   just   but   unreasoned   conclusion   does   not
appear   to   be   just   to   those   who   read   the   same.
Reasoned and just conclusion on the other hand will
also   have   the   appearance   of   justice.   The   third
ground is that such awards are subject to Article
136 jurisdiction of this Court and in the absence of
reasons, it is difficult for this Court to ascertain
whether the decision is right or wrong (See para 5
page 2761).
26. In Union of India vs. Mohan Lal Capoor and others,
AIR 1974 SC 87, this Court while dealing with the
question   of   selection   under   Indian   Administrative
Service/Indian   Police   Service   (Appointment   by
Promotion   Regulation)   held   that   the   expression
“reasons for the proposed supersession” should not
12be   mere   rubber   stamp   reasons.   Such   reasons   must
disclose how mind was applied to the subject matter
for a decision regardless of the fact whether such a
decision is purely administrative or quasi-judicial.
This   Court   held   that   the   reasons   in   such   context
would   mean   the   link   between   materials   which   are
considered   and   the   conclusions   which   are   reached.
Reasons must reveal a rational nexus between the two
(See para 28 page 98).
27. In Siemens   Engineering   and   Manufacturing   Co.   of
India Ltd. vs. The Union of India and another, AIR
1976 SC 1785, this Court held that it is far too
well settled that an authority in making an order in
exercise of its quasi-judicial function, must record
reasons   in   support   of   the   order   it   makes.   The
learned Judges emphatically said that every quasi-
judicial   order   must   be   supported   by   reasons.   The
rule   requiring   reasons   in   support   of   a   quasi-
judicial   order   is,   this   Court   held,   as   basic   as
following the principles of natural justice. And the
rule must be observed in its proper spirit. A mere
pretence   of   compliance   would   not   satisfy   the
requirement of law (See para 6 page 1789).
1328. In Smt. Maneka Gandhi vs. Union of India and Anr.,
AIR   1978   SC   597,   which   is   a   decision   of   great
jurisprudence   significance   in   our   Constitutional
law,   Chief   Justice   Beg,   in   a   concurring   but
different opinion held that an order impounding a
passport is a quasi-judicial decision (Para 34, page
612). The learned Chief Justice also held when an
administrative action involving any deprivation of
or restriction on fundamental rights is taken, the
authorities must see that justice is not only done
but   manifestly   appears   to   be   done   as   well.   This
principle   would   obviously   demand   disclosure   of
reasons for the decision.
29. Justice Y.V. Chandrachud (as His Lordship then was)
in   a   concurring   but   a   separate   opinion   also   held
that refusal to disclose reasons for impounding a
passport is an exercise of an exceptional nature and
is to be done very sparingly and only when it is
fully   justified   by   the   exigencies   of   an   uncommon
situation.
1430. The   learned   Judge   further   held   that   law   cannot
permit any exercise of power by an executive to keep
the reasons undisclosed if the only motive for doing
so   is   to   keep   the   reasons   away   from   judicial
scrutiny. (See para 39 page 613).
31. In Rama   Varma   Bharathan   Thampuran vs. State   of
Kerala   and   Ors.,   AIR   1979   SC   1918,   Justice   V.R.
Krishna Iyer speaking for a three-Judge Bench held
that the functioning of the Board was quasi-judicial
in   character.   One   of   the   attributes   of   quasi-
judicial functioning is the recording of reasons in
support of decisions taken and the other requirement
is   following   the   principles   of   natural   justice.
Learned   Judge   held   that   natural   justice   requires
reasons to be written for the conclusions made (See
para 14 page 1922).
32. In Gurdial Singh Fijji vs. State of Punjab and Ors.,
(1979) 2 SCC 368, this Court, dealing with a service
matter, relying on the ratio in Capoor (supra), held
that   “rubber-stamp   reason”   is   not   enough   and
virtually quoted the observation in Capoor (supra)
to the extent that reasons “are the links between
15the materials on which certain conclusions are based
and the actual conclusions.” (See para 18 page 377).
33. In a Constitution Bench decision of this Court in
Shri Swamiji of Shri Admar Mutt etc. etc. vs. The
Commissioner,   Hindu   Religious   and   Charitable
Endowments   Dept.   and   Ors.,   AIR   1980   SC   1,   while
giving   the   majority   judgment     Chief   Justice   Y.V.
Chandrachud referred to Broom’s Legal Maxims (1939
Edition, page 97) where the principle in Latin runs
as follows:
“Ces-sante Ratione Legis Cessat Ipsa Lex”
34. The English version of the said principle given by
the Chief Justice is that:
“Reason is the soul of the law, and when the
reason of any particular law ceases, so does
the law itself.” (See para 29 page 11)
35. In M/s. Bombay Oil Industries Pvt. Ltd. vs. Union of
India and Others, AIR 1984 SC 160, this Court held
that   while   disposing   of   applications   under
Monopolies and Restrictive Trade Practices Act the
duty of the Government is to give reasons for its
order. This court made it very clear that the faith
16of   the   people   in   administrative   tribunals   can   be
sustained   only   if   the   tribunals   act   fairly   and
dispose   of   the   matters   before   them   by   well
considered orders. In saying so, this Court relied
on   its   previous   decisions   in Capoor (supra)   and
Siemens Engineering (supra), discussed above.
36. In Ram Chander vs. Union of India and others, AIR
1986   SC   1173,   this   Court   was   dealing   with   the
appellate   provisions   under   the   Railway   Servants
(Discipline   and   Appeal)   Rules,   1968   condemned   the
mechanical way of dismissal of appeal in the context
of requirement of Rule 22(2) of the aforesaid Rule.
This Court held that the word “consider” occurring
to the Rule 22(2) must mean the Railway Board shall
duly   apply   its   mind   and   give   reasons   for   its
decision. The learned Judges held that the duty to
give reason is an incident of the judicial process
and   emphasized   that   in   discharging   quasi-judicial
functions   the   appellate   authority   must   act   in
accordance with natural justice and give reasons for
its decision (Para 4, page 1176).
1737. In M/s.   Star   Enterprises   and   others vs. City   and
Industrial   Development   Corporation   of   Maharashtra
Ltd.   and   others,   (1990)   3   SCC   280,   a   three-Judge
Bench of this Court held that in the present day set
up   judicial   review   of   administrative   action   has
become expansive and is becoming wider day by day
and the State has to justify its action in various
field   of   public   law.     All   these   necessitate
recording of reason for executive actions including
the rejection of the highest offer. This Court held
that   disclosure   of   reasons   in   matters   of   such
rejection provides an opportunity for an objective
review both by superior administrative heads and for
judicial process and opined that such reasons should
be   communicated   unless   there   are   specific
justification for not doing so (see Para 10, page
284-285).
38. In Maharashtra State Board of Secondary and Higher
Secondary   Education vs. K.S.   Gandhi   and   others,
(1991)   2   SCC   716,   this   Court   held   that   even   in
domestic   enquiry   if   the   facts   are   not   in   dispute
non-recording of reason may not be violative of the
principles of natural justice but where facts are
18disputed   necessarily   the   authority   or   the   enquiry
officer,   on   consideration   of   the   materials   on
record,   should   record   reasons   in   support   of   the
conclusion reached (see para 22, pages 738-739)
39. In the case of M.L. Jaggi vs. Mahanagar Telephones
Nigam   Limited   and   others,   (1996)   3   SCC   119,   this
Court dealt with an award under Section 7 of the
Telegraph   Act   and   held   that   since   the   said   award
affects public interest, reasons must be recorded in
the award. It was also held that such reasons are to
be recorded so that it enables the High Court to
exercise   its   power   of   judicial   review   on   the
validity of the award. (see para 8, page 123).
40. In Charan   Singh vs. Healing   Touch   Hospital   and
others,   AIR   2000   SC   3138,   a   three-Judge   Bench   of
this Court, dealing with a grievance under CP Act,
held   that   the   authorities   under   the   Act   exercise
quasi-judicial   powers   for   redressal   of   consumer
disputes and it is, therefore, imperative that such
a   body   should   arrive   at   conclusions   based   on
reasons. This Court held that the said Act, being
one   of   the   benevolent   pieces   of   legislation,   is
19intended to protect a large body of consumers from
exploitation   as   the   said   Act   provides   for   an
alternative mode for consumer justice by the process
of a summary trial. The powers which are exercised
are definitely quasi-judicial in nature and in such
a situation the conclusions must be based on reasons
and held that requirement of recording reasons is
“too   obvious   to   be   reiterated   and   needs   no
emphasizing”. (See Para 11, page 3141 of the report)
41. Only in cases of Court Martial, this Court struck a
different   note   in   two   of   its   Constitution   Bench
decisions, the first of which was rendered in the
case   of Som   Datt   Datta vs. Union   of   India   and
others,   AIR   1969   SC   414,   Mr.   Justice   Ramaswami
delivering   the   judgment   for   the   unanimous
Constitution Bench held that provisions of Sections
164 and 165 of the Army Act do not require an order
confirming   proceedings   of   Court   Martial   to   be
supported by reasons. The Court held that an order
confirming such proceedings does not become illegal
if it does not record reasons. (Para 10, page 421-
422 of the report).
2042. About   two   decades   thereafter,   a   similar   question
cropped up before this Court in the case of S.N.
Mukherjee vs. Union of India, AIR 1990 SC 1984. A
unanimous   Constitution   Bench   speaking   through
Justice S.C. Agrawal confirmed its earlier decision
in Som Datt (supra) in para 47 at page 2000 of the
report   and   held   reasons   are   not   required   to   be
recorded   for   an   order   confirming   the   finding   and
sentence recorded by the Court Martial.
43. It must be remembered in this connection that the
Court   Martial   as   a   proceeding   is sui   generis in
nature and the Court of Court Martial is different,
being called a Court of Honour and the proceeding
therein   are   slightly   different   from   other
proceedings. About the nature of Court Martial and
its   proceedings   the   observations   of   Winthrop   in
Military Law and Precedents are very pertinent and
are extracted herein below:
“Not belonging to the judicial branch of the
Government,   it   follows   that   courts-martial
must pertain to the executive department; and
they are in fact simply instrumentalities of
the executive power, provided by Congress for
the   President   as   Commander-in-Chief,   to   aid
him in properly commanding the Army and Navy
and enforcing discipline therein, and utilized
under his orders or those of his authorized
military representatives.”
2144. Our   Constitution   also   deals   with   Court   Martial
proceedings   differently   as   is   clear   from   Articles
33, 136(2) and 227(4) of the Constitution.
45. In England there was no common law duty of recording
of   reasons.     In Marta   Stefan vs. General   Medical
Council, (1999) 1 WLR 1293, it has been held, “the
established position of the common law is that there
is no general duty imposed on our decision makers to
record reasons”.   It has been acknowledged in the
Justice Report, Administration Under Law (1971) at
page   23   that   “No   single   factor   has   inhibited   the
development   of   English   administrative   law   as
seriously as the absence of any general obligation
upon public authorities to give reasons for their
decisions”.
46. Even then in the case of R vs. Civil Service Appeal
Board, ex parte Cunningham reported in (1991) 4 All
ER 310, Lord Donaldson, Master of Rolls, opined very
strongly   in   favour   of   disclosing   of   reasons   in   a
case where the Court is acting in its discretion.
The learned Master of Rolls said:
22“..It   is   a   corollary   of   the   discretion
conferred upon the board that it is their duty
to set out their reasoning in sufficient form
to   show   the   principles   on   which   they   have
proceeded.     Adopting   Lord   Lane   CJ’s
observations   (in   R   vs.   Immigration   Appeal
Tribunal, ex p Khan (Mahmud) [1983] 2 All ER
420   at   423,   (1983)   QB   790   at   794-795),   the
reasons for the lower amount is not obvious.
Mr.   Cunningham   is   entitled   to   know,   either
expressly or inferentially stated, what it was
to which the board were addressing their mind
in arriving at their conclusion.   It must be
obvious to the board that Mr. Cunningham is
left with a burning sense of grievance. They
should   be   sensitive   to   the   fact   that   he   is
left with a real feeling of injustice, that
having   been   found   to   have   been   unfairly
dismissed, he has been deprived of his just
desserts (as he sees them)”.
47. The   learned   Master   of   Rolls   further   clarified   by
saying:
“..thus, in the particular circumstances
of this case, and without wishing to establish
any   precedent   whatsoever,   I   am   prepared   to
spell out an obligation on this board to give
succinct reasons, if only to put the mind of
Mr.   Cunningham   at   rest.   I   would   therefore
allow this application.”
48. But, however, the present trend of the law has been
towards   an   increasing   recognition   of   the   duty   of
Court   to   give   reasons   (See North   Range   Shipping
Limited vs. Seatrans Shipping Corporation, (2002) 1
WLR 2397). It has been acknowledged that this trend
is consistent with the development towards openness
in Government and judicial administration.
2349. In English vs. Emery Reimbold and Strick Limited,
(2002) 1 WLR 2409, it has been held that justice
will   not   be   done   if   it   is   not   apparent   to   the
parties why one has won and the other has lost. The
House of Lords in Cullen vs. Chief Constable of the
Royal Ulster Constabulary, (2003) 1 WLR 1763, Lord
Bingham   of   Cornhill   and   Lord   Steyn,   on   the
requirement of reason held, “First, they impose a
discipline … which may contribute to such decisions
being   considered   with   care.     Secondly,   reasons
encourage   transparency   …   Thirdly,   they   assist   the
Courts in performing their supervisory function if
judicial review proceedings are launched.” (Para 7,
page 1769 of the report)
50. The position in the United States has been indicated
by this Court in S.N. Mukherjee (supra) in paragraph
11 at page 1988 of the judgment. This Court held
that   in   the   United   States   the   Courts   have   always
insisted   on   the   recording   of   reasons   by
administrative   authorities   in   exercise   of   their
powers. It was further held that such recording of
reasons is required as “the Court cannot exercise
their duty of review unless they are advised of the
24considerations underlying the action under review”.
In S.N. Mukherjee (supra) this court relied on the
decisions   of   the   U.S.   Court   in Securities   and
Exchange Commission vs. Chenery Corporation, (1942)
87   Law   Ed   626   and John   T.   Dunlop vs. Walter
Bachowski, (1975) 44 Law Ed 377 in support of its
opinion discussed above.
51. Summarizing the above discussion, this Court holds:
a. In   India   the   judicial   trend   has   always   been   to
record reasons, even in administrative decisions,
if such decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in
support of its conclusions.
c. Insistence   on   recording   of   reasons   is   meant   to
serve the wider principle of justice that justice
must not only be done it must also appear to be
done as well.
d. Recording   of   reasons   also   operates   as   a   valid
restraint   on   any   possible   arbitrary   exercise   of
judicial and quasi-judicial or even administrative
power.
25e. Reasons   reassure   that   discretion   has   been
exercised   by   the   decision   maker   on   relevant
grounds   and   by   disregarding   extraneous
considerations.
f. Reasons have virtually become as indispensable a
component   of   a   decision   making   process   as
observing   principles   of   natural   justice   by
judicial,   quasi-judicial   and   even   by
administrative bodies.
g. Reasons facilitate the process of judicial review
by superior Courts.
h. The   ongoing   judicial   trend   in   all   countries
committed   to   rule   of   law   and   constitutional
governance   is   in   favour   of   reasoned   decisions
based   on   relevant   facts.   This   is   virtually   the
life blood of judicial decision making justifying
the principle that reason is the soul of justice.
i. Judicial   or   even   quasi-judicial   opinions   these
days   can   be   as   different   as   the   judges   and
authorities who deliver them. All these decisions
serve one common purpose which is to demonstrate
by   reason   that   the   relevant   factors   have   been
objectively   considered.   This   is   important   for
26sustaining   the   litigants’   faith   in   the   justice
delivery system.
j. Insistence   on   reason   is   a   requirement   for   both
judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not
candid   enough   about   his/her   decision   making
process then it is impossible to know whether the
person   deciding   is   faithful   to   the   doctrine   of
precedent or to principles of incrementalism.
l. Reasons   in   support   of   decisions   must   be   cogent,
clear   and   succinct.   A   pretence   of   reasons   or
‘rubber-stamp reasons’ is not to be equated with a
valid decision making process.
m. It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision making not only makes the
judges   and   decision   makers   less   prone   to   errors
but also makes them subject to broader scrutiny.
(See David Shapiro in Defence of Judicial Candor
(1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates
from   the   broad   doctrine   of   fairness   in   decision
making,   the   said   requirement   is   now   virtually   a
component of human rights and was considered part
27of Strasbourg Jurisprudence.   See (1994) 19 EHRR
553,   at   562   para   29   and Anya vs. University   of
Oxford,   2001   EWCA   Civ   405,   wherein   the   Court
referred   to   Article   6   of   European   Convention   of
Human   Rights   which   requires,   “adequate   and
intelligent   reasons   must   be   given   for   judicial
decisions”.
o. In all common law jurisdictions judgments play a
vital   role   in   setting   up   precedents   for   the
future.     Therefore,   for   development   of   law,
requirement of giving reasons for the decision is
of   the   essence   and   is   virtually   a   part   of   “Due
Process”.
52. For the reasons aforesaid, we set aside the order of
the National Consumer Disputes Redressal Commission
and remand the matter to the said forum for deciding
the matter by passing a reasoned order in the light
of the observations made above. Since some time has
elapsed, this Court requests the forum to decide the
matter   as   early   as   possible,   preferably   within   a
period of six weeks from the date of service of this
order upon it.
2853. In   so   far   as   the   appeal   filed   by   the   Bank   is
concerned,   this   Court   finds   that   the   National
Consumer Disputes Redressal Commission in its order
dated 4th April 2008 has given some reasons in its
finding. The reasons, inter alia, are as under:
“We   have   gone   through   the   orders   of   the
District   Forum   and   the   State   Commission,
perused   the   record   placed   before   us   and
heard   the   parties   at   length.   The   State
Commission has rightly confirmed the order
of the District Forum after coming to the
conclusion   that   the   Petitioner   and   the
Builder   –   Respondents   No.3   and   4   have
colluded   with   each   other   and   hence,
directed them to compensate the complainant
for the harassment caused to them.”
54. From the order of the State Commission dated 26.7.07
in connection with the appeal filed by the Bank, we
do   not   find   that   the   State   Commission   has
independently   considered   Bank’s   appeal.   The   State
Commission   dismissed   the   Bank’s   appeal   for   the
reasons   given   in   its   order   dated   6.7.07   in
connection with the appeal of the builders.
55. This Court is of the view that since the Bank has
filed a separate appeal, it has a right to be heard
independently in support of its appeal. That right
has   been   denied   by   the   State   Commission.   In   that
view   of   the   matter,   this   Court   quashes   the   order
29dated 26.7.07 passed by the State Commission as also
the order of the National Commission dated 4th April
2008   which   has   affirmed   the   order   of   the   State
Commission.
56. This case is remanded to the State Commission for
hearing on merits as early as possible, preferably
within   a   period   of   six   weeks   from   the   date   of
service of this order to the State Commission.
57. It is expected that the State Commission will hear
out   the   matter   independently   and   give   adequate
reasons   for   its   conclusions.   We,   however,   do   not
make any observations on the merits of the case.
58. Both   these   appeals   are   allowed.     No   order   as   to
costs.
.....................J.
(G.S. SINGHVI)
.....................J.
(ASOK KUMAR GANGULY)
30New Delhi
September 08, 2010
31

source - http://judis.nic.in/supremecourt/chejudis.asp

IPC 498a Misuse judgments

2010-09-22T03:57:00.001-07:00

IPC 498a Misuse judgments

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