IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 867 OF 2009
(Arising out of SLP (Crl.) No. 4496 of 2006)
Koppisetti Subbharao @ Subramaniam ...Appellant
Versus
State of A.P. ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1 Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Andhra Pradesh High Court dismissing the petition filed under
Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code').
The prayer in the petition was to quash the proceedings in C.C.No. 440 of
1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class
Magistrate, Kakinada.
3. Background facts in a nutshell are as follows:
A case was registered against three accused persons including the
present appellant for alleged commission of offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC'). Initially, the presence of A-1 could not be secured and therefore
court separated the case against A-1 and proceeded the trial against A-2 and
A-3. In the said case A-2 and A-3 were acquitted. Thereafter, the present
application was filed before the High Court taking the stand that the
complainant was not be the legally wedded wife of the appellant as he was
already married and, therefore, Section 498-A has no application to the facts
of the case.
The High Court dismissed the application on the ground that disputed
questions of fact are involved.
4. Learned counsel for the appellant submitted that in view of the
acquittal of the co-accused persons the proceedings against the appellant
should not proceed.
5. Learned counsel for the respondent-State on the other hand submitted
that whether there was valid legal marriage subsisting qua the appellant is a
question of fact and, therefore, the High Court was justified in dismissing
the application under Section 482 of Code.
6. Parties to a marriage tying nuptial knot are supposed to bring about
the union of souls. It creates a new relationship of love, affection, care and
concern between the husband and wife. According to Hindu Vedic
philosophy it is sanskar - a sacrament; one of the sixteen important
sacraments essential to be taken during one's lifetime. There may be
physical union as a result of marriage for procreation to perpetuate the lineal
progeny for ensuring spiritual salvation and performance of religious rites,
but what is essentially contemplated is union of two souls. Marriage is
considered to be a junction of three important duties i.e. social, religious and
spiritual. A question of intricate complexity arises in this appeal where
factual scenario has to be also considered.
7. Stand of the appellant was that it was required to be shown that the
victim-woman was the legally married wife of the accused. Since victim
claim to have married during the lifetime of the appellant, prosecution has
failed to establish that it stood dissolved legally. Prosecution having failed to
bring any material record in that regard, Section 498-A has no application.
8. The marriages contracted between Hindus are now statutorily made
monogamous. A sanctity has been attributed to the first marriage as being
that which was contracted from a sense of duty and not merely for personal
gratification. When the fact of celebration of marriage is established it will
be presumed in the absence of evidence to the contrary that all the rites and
ceremonies to constitute a valid marriage have been gone through. As was
said as long as 1869 "when once you get to this, namely, that there was a
marriage in fact, there would be a presumption in favour of there being a
marriage in law". (See Inderun Valungypooly v. Ramaswamy (1869 (13)
MIA 141.) So also where a man and woman have been proved to have lived
together as husband and wife, the law will presume, until contrary be clearly
proved, that they were living together in consequence of a valid marriage
and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881
(6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686)
and Piers v. Piers (L.R.(2) H.L.C. 331). Where a marriage is accepted as
valid by relations, friends and others for a long time it cannot be declared as
invalid. In Lokhande's case (supra), it was observed by this Court "The
bare fact that man and woman live as husband and wife it does not at any
rate normally give them the status of husband and wife even though they
may hold themselves before the society as husband and wife and the society
treats them as husband and wife". These observations were cited with
approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At first
blush, it would seem that these observations run counter to the long catena
of decisions noted above. But on closer examination of the facts of those
cases it is clear that this Court did not differ from the views expressed in the
earlier cases. In Lokhande's case (supra), this Court was dealing with a case
of prosecution for bigamy. The prosecution had contended that second
marriage was gandharva form of marriage and no ceremonies were
necessary and, therefore, did not allege or prove that any customary
ceremonies were performed. In that background, it was held that even in the
case of gandharva marriages, ceremonies were required to be performed. To
constitute bigamy under Section 494 IPC, the second marriage had to be a
valid marriage duly solemnized and as it was not so solemnized it was not a
marriage at all in the eye of law and was therefore invalid. The essential
ingredient constituting the offence of Bigamy is the "marrying" again during
the lifetime of husband or wife in contrast to the ingredients of Section 498A
which, among other things, envisage subjecting the woman concerned to
cruelty. The thrust is mainly "marrying" in Section 494 IPC as against
subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of
the offence under Section 304B is also the "Dowry Death". Consequently,
the evil sought to be curbed are distinct and separate from the persons
committing the offending acts and there could be no impediment in law to
liberally construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly married but
also any one who has undergone some or other form of marriage and thereby
assumed for himself the position of husband to live, cohabitate and exercise
authority as such husband over another woman. In Surjit Singh's case
(supra) the stand was that the marriage was in Karewa form. This Court held
that under the custom of Karewa marriage, the widow could marry the
brother or a relation of the husband. But in that case the man was a stranger.
Further even under that form of marriage certain ceremonies were required
to be performed which were not proved. Dealing with the contention relating
to presumption, reference was made to Lokhande's case (supra). As the
parties had set up a particular form of marriage which turned out to be
invalid due to absence of proof of having undergone the necessary
ceremonies related to such form of marriage, the presumption of long
cohabitation could not be invoked.
9. The presumption may not be available in a case, for example, where
the man was already married or there was any insurmountable obstacle to
the marriage, but presumption arises if there is strong evidence by
documents and conduct. Above position has been highlighted in Mayne's
Hindu Law and Usage.
10. The question as to who would be covered by the expression `husband'
for attracting Section 498A does present problems. Etymologically, in terms
of the definition of "husband" and "marriage" as given in the various Law
Lexicons and dictionaries - the existence of a valid marriage may appear to
be a sine qua non for applying a penal provision. In Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a
woman claimed maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (in short the `Cr.P.C.'). This Court applied the provision of
the Marriage Act and pointed out that same was a law which held the field
after 1955, when it was enacted and Section 5 lays down that for a lawful
marriage the necessary condition that neither party should have a spouse
living at the time of the marriage is essential and marriage in contravention
of this condition therefore is null and void. The concept of marriage to
constitute the relationship of `husband' and `wife' may require strict
interpretation where claims for civil rights, right to property etc. may follow
or flow and a liberal approach and different perception cannot be an
anatheme when the question of curbing a social evil is concerned.
11. The question of origin of dowry or dos has been the subject of study
by theoreticians. Mayne says that it was a contribution by the wife's family,
or by the wife herself, intended to assist the husband in bearing the expenses
of the conjugal household (Mayne on "Early History of Institution" page
319). While dos or dowry previously belonged to husband, his right over it
being unrestricted, all the property of the wife not included in the dowry was
called her "paraphra" and was her absolute property over which her husband
had no control. (See Banerjee on `Marriage and Stridhan' 345) In Pratibha
Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the
history of stridhan it was held that wife is the absolute owner of such
property under Section 27 of the Marriage Act. Property presented to the
husband and wife at or about the time of marriage belongs to them jointly.
12. The Dowry Prohibition Act, 1961 (in short the `Dowry Act') was
introduced to combat the ever-increasing menace of dowry. The avowed
object is prohibition on giving and taking of dowry. Section 2 defines
"dowry". Section 4 provides the penalty for demanding "dowry", while
Section 5 is a significant provision making agreement for giving or taking
dowry to be void. Section 6 is another provision which reflects statutory
concern for prevention of dowry, be it taking or giving. It is provided therein
that pending transfer of the dowry, the person who received the dowry holds
it in trust for benefit of the woman. Amendment to Section 2 by Amendment
Act 43 of 1986 has made the provision clear and demand made after the
marriage is a part of dowry, in view of addition of words "at or before or
after the marriage". (See State of H.P. v. Nikku Ram (AIR 1996 SC 67).
13. The definition of the term `dowry' under Section 2 of the Dowry Act
shows that any property or valuable security given or "agreed to be given"
either directly or indirectly by one party to the marriage to the other party to
the marriage "at or before or after the marriage" as a "consideration for the
marriage of the said parties" would become `dowry' punishable under the
Dowry Act. Property or valuable security so as to constitute `dowry' within
the meaning of the Dowry Act must, therefore, be given or demanded "as
consideration for the marriage."
14. Section 4 of the Dowry Act aims at discouraging the very "demand"
of "dowry" as a `consideration for the marriage' between the parties thereto
and lays down that if any person after the commencement of the Act,
"demands", directly or indirectly, from the parents or guardians of a `bride'
or `bridegroom', as the case may be, any `dowry' he shall be punishable
with imprisonment or with fine or within both. Thus, it would be seen that
Section 4 makes punishable the very demand of property or valuable
security as a consideration for marriage, which demand, if satisfied, would
constitute the graver offence under Section 3 of the Act punishable with
higher imprisonment and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of such dowry whichever is
more.
15. The definition of the expression `dowry' contained in Section 2 of the
Dowry Act cannot be confined merely to be `demand' of money, property or
valuable security' made at or after the performance of marriage. The
legislature has in its wisdom while providing for the definition of `dowry'
emphasized that any money, property or valuable security given, as a
consideration for marriage, `before, at or after' the marriage would be
covered by the expression `dowry' and this definition as contained in
Section 2 has to be read wherever the expression `dowry' occurs in the Act.
Meaning of the expression `dowry' as commonly used and understood is
different than the peculiar definition thereof under the Act. Under Section 4,
mere demand of `dowry' is sufficient to bring home the offence to an
accused. Thus, any `demand' of money, property or valuable security made
from the bride or her parents or other relatives by the bridegroom or his
parents or other relatives or vice-versa would fall within the mischief of
`dowry' under the Act where such demand is not properly referable to any
legally recognized claim and is relatable only to the consideration of
marriage. Marriage in this context would include a proposed marriage also
more particularly where the non-fulfilment of the "demand of dowry" leads
to the ugly consequence of the marriage not taking place at all. The
expression "dowry" under the Dowry Act has to be interpreted in the sense
which the statute wishes to attribute to it. The definition given in the statute
is the determinative factor. The Dowry Act is a piece of social legislation
which aims to check the growing menace of the social evil of dowry and it
makes punishable not only the actual receiving of dowry but also the very
demand of dowry made before or at the time or after the marriage where
such demand is referable to the consideration of marriage. Dowry as a quid
pro quo for marriage is prohibited and not the giving of traditional presents
to the bride or the bridegroom by friends and relatives. Thus, voluntary
presents given at or before or after the marriage to the bride or the
bridegroom, as the case may be, of a traditional nature, which are given not
as a consideration for marriage but out of love, affection or regard, would
not fall within the mischief of the expression `dowry' made punishable
under the Dowry Act.
16. Aryan Hindus recognised 8 forms of marriage, out of which four were
approved, namely, Brahma, Daiva, Arsha and Prajapatya. The dis-approved
forms of marriages were Gandharva, Asura, Rakshasa and Paisacha. In the
Brahma form of marriage, some amounts had to be spent by father/guardian,
as the case may be, to go ultimately to the spouses. The origin of dowry may
be traced to this amount either in cash or kind.
17. The concept of "dowry" is intermittently linked with a marriage and
the provisions of the Dowry Act apply in relation to marriages. If the legality
of the marriage itself is an issue further legalistic problems do arise. If the
validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognizable. Even then
the purpose for which Sections 498A and 304B-IPC and Section 113B of the
Indian Evidence Act, 1872 (for short the `Evidence Act') were introduced
cannot be lost sight of. Legislations enacted with some policy to curb and
alleviate some public evil rampant in society and effectuate a definite public
purpose or benefit positively requires to be interpreted with certain element
of realism too and not merely pedantically or hyper technically. The obvious
objective was to prevent harassment to a woman who enters into a marital
relationship with a person and later on, becomes a victim of the greed for
money. Can a person who enters into a marital arrangement be allowed to
take a shelter behind a smokescreen to contend that since there was no valid
marriage the question of dowry does not arise? Such legalistic niceties
would destroy the purpose of the provisions. Such hairsplitting legalistic
approach would encourage harassment to a woman over demand of money.
The nomenclature `dowry' does not have any magic charm written over it. It
is just a label given to demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is not only the husband but
also his relations who are covered by Section 498A. Legislature has taken
care of children born from invalid marriages. Section 16 of the Marriage Act
deals with legitimacy of children of void and voidable marriages. Can it be
said that legislature which was conscious of the social stigma attached to
children of void and voidable marriages closed eyes to plight of a woman
who unknowingly or unconscious of the legal consequences entered into the
marital relationship. If such restricted meaning is given, it would not further
the legislative intent. On the contrary, it would be against the concern shown
by the legislature for avoiding harassment to a woman over demand of
money in relation to marriages. The first exception to Section 494 has also
some relevance. According to it, the offence of bigamy will not apply to
"any person whose marriage with such husband or wife has been declared
void by a Court of competent jurisdiction". It would be appropriate to
construe the expression `husband' to cover a person who enters into marital
relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerce her in any
manner or for any of the purposes enumerated in the relevant provisions -
Sections 304B/498A, whatever be the legitimacy of the marriage itself for
the limited purpose of Sections 498A and 304B IPC. Such an interpretation,
known and recognized as purposive construction has to come into play in a
case of this nature. The absence of a definition of `husband' to specifically
include such persons who contract marriages ostensibly and cohabitate with
such woman, in the purported exercise of his role and status as `husband' is
no ground to exclude them from the purview of Section 304B or 498A IPC,
viewed in the context of the very object and aim of the legislations
introducing those provisions.
18. In Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this
Court observed:
"The primary principle of interpretation is that a
constitutional or statutory provision should be construed
"according to the intent of they that made it" (Coke).
Normally, such intent is gathered from the language of
the provision. If the language or the phraseology
employed by the legislation is precise and plain and thus
by itself proclaims the legislative intent in unequivocal
terms, the same must be given effect to, regardless of
the consequences that may follow. But if the words used
in the provision are imprecise, protean or evocative or
can reasonably bear meanings more than one, the rule of
strict grammatical construction ceases to be a sure guide
to reach at the real legislative intent. In such a case, in
order to ascertain the true meaning of the terms and
phrases employed, it is legitimate for the Court to go
beyond the arid literal confines of the provision and to
call in aid other well-recognised rules of construction,
such as its legislative history, the basic scheme and
framework of the statute as a whole, each portion
throwing light, on the rest, the purpose of the
legislation, the object sought to be achieved, and the
consequences that may flow from the adoption of one in
preference to the other possible interpretation.
19. In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this
Court held:
"....But, if the words are ambiguous, uncertain or any
doubt arises as to the terms employed, we deem it as out
paramount duty to put upon the language of the
legislature rational meaning. We then examine every
word, every section and every provision. We examine
the Act as a whole. We examine the necessity which
gave rise to the Act. We look at the mischiefs which the
legislature intended to redress. We look at the whole
situation and not just one-to-one relation. We will not
consider any provision out of the framework of the
statute. We will not view the provisions as abstract
principles separated from the motive force behind. We
will consider the provisions in the circumstances to
which they owe their origin. We will consider the
provisions to ensure coherence and consistency within
the law as a whole and to avoid undesirable
consequences.
20. In District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC
183), this Court stated:
"The legislation is primarily directed to the problems
before the legislature based on information derived from
past and present experience. It may also be designed by
use of general words to cover similar problems arising
in future. But, from the very nature of thing, it is
impossible to anticipate fully in the varied situations
arising in future in which the application of the
legislation in hand may be called for the words chosen
to communicate such indefinite referents are bound to
be in many cases, lacking in charity and precision and
thus giving rise to controversial questions of
construction. The process of construction combines both
literal and purposive approaches. In other words, the
legislative intention i.e. the true or legal meaning of an
enactment is derived by considering the meaning of the
words used in the enactment in the light of any
discernible purpose or object which comprehends the
mischief and its remedy to which the enactment is
directed".
21. The suppression of mischief rule made immortal in Heydon's case (3
Co Rep 7a 76 ER 637) can be pressed into service. With a view to suppress
the mischief which would have surfaced had the literal rule been allowed to
cover the field, the Heydon's Rule has been applied by this Court in a
number of cases, e.g. Bengal Immunity Co. Ltd., v. State of Bihar and Ors.
(AIR 1955 SC 661), Goodyear India Ltd. v. State of Haryana and Anr. (AIR
1990 SC 781), P.E.K. Kalliani Amma and Ors. v. K. Devi and Ors. (AIR
1996 SC 1963) and Ameer Trading Corporation Ltd., v. Shapporji Data
Processing Ltd. (2003 (8) Supreme 634).
22. In Reserve Bank of India etc. etc. v. Peerless General Finance and
Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing
with the question of interpretation of a statute, this Court observed:
"Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statue is best
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole
and then section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at in the
context of its enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take colour
and appear different than when the statute is looked at
without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no
word of a statute can be construed in isolation. Statutes
have to be construed so that every word has a place and
everything is in its place."
23. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA),
Lord Denning, advised a purposive approach to the interpretation of a word
used in a statute and observed:
"The English language is not an instrument of
mathematical precision. Our literature would be much
the poorer if it were. This is where the draftsmen of
Acts of Parliament have often been unfairly criticised. A
Judge, believing himself to be fettered by the supposed
rule that he must look to the language and nothing else,
laments that the draftsmen have not provided for this or
that, or have been guilty of some or other ambiguity. It
would certainly save the Judges trouble if Acts of
Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect
appears, a Judge cannot simply fold his hands and
blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament,
and he must do this not only from the language of the
statute, but also from a consideration of the social
conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he must
supplement the written word so as to give `force and
life' to the intention of the legislature......A Judge should
ask himself the question how, if the makers of the Act
had themselves come across this ruck in this texture of
it, they would have straightened it out? He must then do
so as they would have doe. A Judge must not alter the
material of which the Act is woven, but he can and
should iron out the creases."
(underlined for emphasis)
24. These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004
(3) SCC 199.
25. The High Court was justified in holding that disputed questions of fact
are involved and the application under Section 482 of Code has been rightly
rejected. We do not find any scope for interference with the order of the
High Court. However, we make it clear that we have not expressed any
opinion on the merits of the case.
26. The appeal is dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
(ASOK KUMAR GANGULY)
New Delhi,
April 29, 2009
Tuesday, August 31, 2010
SC on Marriage Dowry Stridhan Tradition and 498a
Saturday, August 7, 2010
Delhi HC – 498a jurisdictional quash – hammers work culture and motive of police culture - registration of FIRs has been made a profitable business by some police officials.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 28th July, 2010
Date of Order: August 06, 2010
+ Crl. M.C. 722 of 2009 06.08.2010
Amit Sharma ...Petitioner
Through: Mr. R.S. Kela, Advocate
Versus
State & Ors. ...Respondents
Through: Mr. Sunil Sharma, APP for State
Mr. R.K. Pandhi, Advocate for R-2
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. The present petition under Section 482 Cr.P.C read with Article 227 of the Constitution of India has been preferred by the petitioner for quashing of FIR No.170 dated 15th August, 2008 registered at Police Station Kirti Nagar, West Delhi District, New
Delhi.
2. The present FIR was registered at the behest of Smt. Kavita Gupta who a resident of USA and had come to Delhi perhaps only for registration of this FIR. A perusal of FIR reveals that Smt. Kavita Gupta was living in USA since 1993. She obtained Master Degree in Electrical Engineering from Arizona State, USA in 1995 and subsequently got employed in USA and started working there and living there. She came to India at Panchkula, Haryana for the purpose of marriage and was married to Shri Amit Sharma on 10th January 2000 at Panchkula. After this marriage, her version of events, as given in FIR reads as under:
“After marriage, I and my husband went to USA and all the documents and money for the visa and other arranged by me as per assurance and promise of the husband that when we will reach at USA, I already arranged a job at there through my friends and sister immediately I will joint there and payback to all the money spent by you for my visa and other expenses in presence of my father in law and mother in law. Accordingly, my husband and I arrived at USA in the month end of January, 2000 and I shocked after four months pass away when my husband at home without any job neither he tries for the same nor any tension in his mind, totally depends upon me as well as enjoy with my hard earning money congregate since 1993 and the present salary earned by me. In continuation, my husband wants to persuade a professional course for the same course I burdened the shelter, education and day to day expenses of my husband, texts books, fees, etc. Till 2003 I provided well professional education my husband and accordingly he got the join in the year, 2004 as per the hardship, sacrifice and financial and monetary help and encouragement of mine. I have, sponsored him H-4 spouse visa to USA. Thus facilitating immigration to USA and sponsored his Green Card application. As such I have not been able to enjoy my matrimonial life and married life normally and I totally sacrificed her obligations and enjoyments only for the career and goodwill of my husband. Further, I have provided a car to him for his personal use totally financed by me just to maintain the respondent’s social status in the University as well as his friends circle. The year wise events of sacrifice and financial help provided by me annexed as Annexure-B. My nightmare started after my husband got a full time job. As soon as he was settled into his job, his parents (father in law and mother in law) sponsored by his sister for green cards and they come to stay on a permanent basis at my place now in addition to supporting my husband, I was forced to pay for his parents expenditure as well. It is to be noted that I was not even informed about the development that they were planning to immigrate permanently and would be staying with the complainant. His sister Anita Trehan sponsored and signed the financial support documents agreeing to support his parents. However, she has
not contributed singly penny towards their support nor offer to keep them at her home. This information has been reported to USA immigration authorities as well. His parents in compliance with his sister and my husband therefore forced their way into the house in Houston and started to threatened me and harass me if I questioned them on this step. Further, I submit that they treated me like a slave and prisoner in my own house each time of which has been bought with my own hard earned money. I was subjected to mental abuse, and criticized the complainant constantly and made her lose of her self-esteem. It is to be noted that I was undergoing infertility (intrusive inventor fertilization procedure) chiefly because of my husband’s abuse the complainant (push her against the wall, twist her arms, catch her neck) and in summer 2006, he slapped her in front of his parents as well as admitted to doing other physical harms and also threatened to me to evict me from my life and made pieces of her dead body and the same can be disposed of in such a manner without be able to identifying at any point to time. It is further pertinent to mention here that on August 2nd 2006, my husband and his parents assaulted me and forced me out of my own house in Friendswood, Texas, where each and everything were brought by myself including two cars. They also took all my wedding and other jewellary into their possession i.e. my “Istri Dhan” items and they also took possession of all the cheque books of joint accounts and without the knowledge of the petitioner, they transferred/ withdrew considerable amounts from the account. They have further gone into such a grave extent by removing and destroying all the documents relating to the education and bills etc paid by me for my husband and even spent for the welfare of the parents of my husband. After completing their ill designs they had filed a divorce case against me in Harris County Court, USA on the grounds of irreconcilable differences and further claimed all the properties belonged to me which I got and bought out of my own hard earned money. Being harassed by my in- laws and my husband I with folded hands request / pray before your goodself to register a criminal case against my husband and my in-laws for the offence committed by them…….”
3. After lodging this FIR in Delhi, she again flew back to USA and is presently residing in USA. The case is being prosecuted by her father as her attorney. A perusal of this FIR would show that immediately after marriage, the parties moved to USA and thereafter all events as alleged by her are of USA. Even the allegations of her Istridhan being taken away by her father in law and mother in law is of USA and not of India. Allegations of cruelties and the attitude of her husband towards her are all of USA. It is not stated by her that she ever stayed with her in laws or husband from the time of marriage till filing of this complaint at Delhi. When the counsel for State was asked how this FIR was registered in Delhi, the response of the State counsel as given in the form of brief synopsis is that while in India, the complainant and accused cohabited at Delhi at Kirti Nagar, which is the matrimonial house of complainant and therefore there was jurisdiction of Delhi court. A perusal of FIR would show that nowhere the complainant had stated that cohabitation had ever taken place between the parties at Delhi or the parties ever lived at Delhi.
4. It is surprising that such FIRs are registered by the police when neither complainant lives in Delhi nor the accused persons live in Delhi nor any part of alleged offence had taken place in Delhi. The alleged offence admittedly had taken place in USA. All the accused persons, as mentioned by the complainant, are living in USA. The complainant herself is living in USA and the father of complainant perhaps is living in Delhi and pursuing this complaint. I consider that registration of this FIR is a sordid story of working culture of Delhi police. It is this police which refuses to register FIRs in case of robberies, thefts and other heinous offences which take place on the roads of Delhi and when the complainant dare comes to police station for registration of FIR, he is made to run from one police station to another on the issue of jurisdiction itself, while the FIRs are registered when nothing happened in India and no investigation can be done by the police in India. Why such FIRs are registered is obvious. It seems registration of FIRs has been made a profitable business by some police officials. The police, in the present case, not only registered the FIR but also got lookout circulars for the petitioners issued.
5. Police is supposed to be professional in its working culture. The fall in standard of police has gone to such an extent that in genuine cases it is difficult to get a case registered and even if registered, it wont act with sincerity but you can get any false registered with it, if you have right connections. The Supreme Court has to say about registration of FIRs in India in Lalita Kumari v Govt. of U.P. & Ors Writ Petition (Crl.) No.68 of 2008 decided on 14th July, 2008 as under:
“It is a matter of experience of one of us (B.N. Agrawal, J) while acting as Judge of Patna High Court, Chief Justice of Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the concerned police authorities do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further experience shows that even after orders are passed by the concerned courts for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the Inspecting Judges of the High Court during the course of inspection of Courts and Superintendents of Police are taken to task, then only FIRs are registered. In large number of cases investigations do not commence even after registration of FIRs and in case like the present one, steps are not taken for recovery of the kidnapped person of apprehending the accused person with reasonable desptach. At times it has been found that when harsh orders are passed by the Members of the Judiciary in a State, the police becomes hostile to them for instance in Bihar when a bail petition filed by a police personnel, who was accused was rejected by a member of Bihar Superior Judicial Service, he was assaulted in the Court room for which contempt proceedings was initiated by Patna High and the erring police officials were convicted and sentenced to suffer imprisonment. On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were subject matter of theft or dacoity. In the case before us allegations have been made that the Station House Officer of the concerned Police Station is pressurizing the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do not know there may be innumerable such instance.”
6. In the result, I allow this petition and the FIR No.170 dated 15th August, 2008 registered at Police Station Kirti Nagar, West Delhi District, New Delhi and the proceedings emanating therefrom are hereby quashed. The lookout circulars of petitioners are also quashed.
7. The petition stands allowed.
August 06, 2010
SHIV NARAYAN DHINGRA J.
rd
source : http://lobis.nic.in/dhc/SND/judgement/07-08-2010/SND06082010CRLMM7222009.pdf
Sunday, July 25, 2010
How to get Anticipatory Bail ?
How to get Anticipatory Bail ?
I wish to share my experience that one should not be overconfident in courts as anything can happen there. Therefore in criminal matters, on the day of order, all accused must be ready with applications for (1) Bail - Cash Bail and for that keep sufficient money say about Rs.15K per person, and (2) suspension of order for appeal to higher court.
If AB is rejected on authenticity of voice recordings - exhaust your chances before going to below points -file a revision petition challenging the rejection of the audio recording. Then try
1. State's Forensic Lab
2. A private organisation called Truth Labs, Hyderabad. Not sure, if their findings are admissible in the court. their website linked here : http://truthlabs. org/services. php
Bail commonly means release on one’s own bond, with or without sureties. The purpose of bail is not to set the accused free, but to release him from custody and to entrust him to the custody of his sureties who must produce him at his trial at a specified time and place. Every accused person is presumed under law to be innocent until proved guilty. An opportunity is given to him to prove his innocence by granting bail.
LAW IN DETAIL………
The offences committed by an accused fall under two categories:
1. BAILABLE OFFENCES :
Bailable offences are offences mentioned in the I schedule of the Indian Penal code as bailable offences. When any person accused for a bailable offence is arrested or detained without warrant by police officer or is brought before a Court, he must be released on bail, if a request for bail is made. In case of a bailable offence, bail is a matter of right . If such officer or Court thinks it fit, such person maybe released on a personal bond without sureties. If for any reason, the police doesn’t give bail, the arrested person must be produced before a Magistrate within 24 hours of arrest.
2.NON-BAILABLE OFFENCES
In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail. A person will not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. However a person under the age of sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time after the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court feels that the accused is not guilty of any such offence, it shall release the accused on bail.
3. Anticipatory Bail :
If a person believes that he may be arrested for a non-bailable offence, he may apply to the High Court or Court of session for anticipatory bail i.e, in the event of arrest, he shall be released on bail. While granting anticipatory bail, the court may impose certain conditions in the interest of justice and to ensure that no obstructions are created on the path to justice. The accused may have to take the permission of the court before leaving the country. The anticipatory bail is valid during the whole proceedings of the case unless cancelled earlier.
PROCESS FOR SOLUTION…………Complaint Under which Section ?
Section 436 - 450
Whom to complain / where to complaint? ……
• The police officer himself grants bail in bailable cases
• The Magistrate grants bail in non-bailable cases
• The Court of session & High Court have special & wide powers to grant bail.
How to file the Case ? ……………………
• For non-bailable offences, apply to the concerned magistrate setting out the grounds for the grant of bail.
• In case the court is convinced that bail should be granted, it passes the order after hearing the arguments.
• At that stage fill in the bail bond duly signed by the surety and to be filed through his advocate. The surety takes the responsibility for producing the accused person in the court.
• The amount of every bond executed shall be fixed with due regard to the circumstances of the case.
• A High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application filed by the complainant or the prosecution.
• In case of a bailable offence, only the bail bonds must be filed. No application is required to be made.
What Next ? ………………………
• Where a person is released on bail he should make himself available to the police whenever they need him
• If he is released on a conditional bail, he must fulfill all the conditions
• If he refuses to comply with the conditions, the court will refuse any further applications for bail.
• A person released on bail by police must seek fresh bail from court.
ALTERNATE REMEDIES…………………………………
There are no Alternative remedies
Format :
What should be written in the application?
In the application always mention the following things:
• Name :
• Offence for which he was arrested :
• Date of arrest :
• Address, years of residence and description of family :
• To whom the house belongs
• If a tenant, details of landlord:
• Place of work and other details:
• Mention whether arrested earlier or not, if not involved in any crime then mention it :
• Write " I promise that I will not abscond/mislead the witnesses/manipulate or destroy the evidences/whenever called I will appear before the court of Police Station."
• Request to be released on bail :
• Give Details like I Stay_____ ( place ) or I belong to ________ community. People from_____ Community know me very well therefore there is no apprehension of my absconding.
• This application should be placed before the magistrate on first hearing.
• It could be given either in writing or in oral.
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One thing to remember is after getting bail according to The Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990 says that - Rule 30: When an accused is released on bail during investigation, he shall be bound over to appear in Court after the chargesheet is filed and summons served on him. It is not necessary to bind him to appear on any earlier date or dates.
This rule is framed in almost every state which the High Court of that respective state enforces on ALL magistrates or criminal courts under it(their jurisdiction). Basically it dictates the code and procedure/guidance to be followed in the criminal courts. It derives its power from the Cr.P.C 477 and is notified. Hence, mandatory.
I request the moderator to put this rule in the front page. Unnecessarily many people are attending court and many Magistrates are issuing Non-Bailable Warrants i.e exercising their powers ultra vires the rules. They are bound by it. This must be brought to the notice of the magistrate and if he does issue , then HC will give you respite even after chargesheet - dispense with appearance petition. These rules are mandatory and binding not directory on them but due to ignorance and prodding by opposite side lawyers to make arrest for all silly reasons. The fear of arrest is pervasive and must be resisted by all.
There is a direction/order given by Justice Raja Elango of AP High COurt in one of the petitions warning the Magistrate in Karimnagar to not issue NBW's until chargesheet is filed in all criminal cases. It was commented that this is atrocious behavior of Magistrates and should be curtailed. It cannot be seen on net though. Don't know why. Transparency is lacking and one of the ways to deal is to fight for computerization of the courts. If we write letters to Chief Justices - maybe in 10 years it might be all computerized.
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Bail before jail to protect a persons reputation says Supreme Court.
Here is one important point to be kept in mind with regard to anticipatory bail: The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 200
Here is the coverage from The Hindu http://www.hindu.com/2009/07/24/stories/2009072461182000.htmThe Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds.
Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life.
Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation.
One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.
Here is the judgment: SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 2009
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The main conditions for AB i sthat you have to prove that you have
1> Roots in society and that you will comply with the investigation. Since it is a familial matter and that you are separated - there are chances of the wife filing a case on you.
2> Show the court that you will not abscond and are willing to put up a surety amounting to Rs 5000 or something like that.
3> Show the court that you have been threatened of false dowry harassment case on you and your entire family. AB will cost only Rs 12-20 as court fee. Your lawyer may charge you and is one of the main sources of income for many lawyers and advocates.
4> Mention in court if all else fails - that you be given atleast 7 days notice to comply with investigation and apply for regular bail at the minimum.
Read the recommendations of the law commission which were made in 2007.
File CRLP in High Court for Anticipatory Bail like as under:
Example: Petition under Section 438 of Crl. P.C. praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to direct the Station House Officer, XXX to release the petitioner on bail in the event of execution of Non Bailable Warrants issued against the petitioner in P.R.C.No. XX of 2008 on the file of Judicial Magistrate of First Class, Special Mobile Court, XXXX. See below information on using your AB to maximum use.
If the accused of 498a or any one is arrested as per record, because a person is in arrest even if he is released on Anticipatory Bail and his Life and Liberty is restricted and can has the Right to Information within 48 hrs u/s 7(1) of RTI Act.
You will also get replies within 48 hrs of your RTI application under life and liberty section. So this is a great new for all people arrested and this will really let the police think before unnecessory arresting innocent people as this may lead flooding with asking information within 48 hrs.
Regular Bail under U/s.437 and 439 Cr.P.C
See the link:what-is-anticipatory-bail/
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Here is an explanation of Anticipatory bail given by the Supreme Court (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
- 35. Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
- Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.
- Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested.
- After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.
When Can A Person Apply For AB ?: When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him. He has the right to move the Court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
Conditions That May Be Imposed By The Court: The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
· A condition that the person shall make himself available for interrogation by the police officer as and when required;
· 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;
· A condition that the person shall not leave India without the previous permission of the court.
Arrest: If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.
Anticipatory Bail Not A Blanket Order: The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
Cancellation: An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
Anticipatory Bail Not Available In Uttar Pradesh & Uttaranchal
Two-month-old Zoya Khan is perhaps the youngest person to get bail. Her entire family was accused by her step mother of harassment for dowry. Says lawyer Anil Bole: "Her stepmother Shakila lodged a complaint of dowry harassment against her father. In the complaint letter she is also mentioned as an accused."
Zoya's ordeal started last Friday when her stepmother filed the complaint. The Khans were summoned to the police station. Zoya spend over ten hours there with her biological mother before anticipatory bail was granted to them.
Says Zoya's mother Reshma Khan: "My daughter is two months old. I have to breast feed her in every ten minutes. If I am not around who ill take care of her." The police says the complaint letter mentions everybody, including Zoya. In their FIR, obviously, a minor Zoya is not an accused.
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Sample order:
Dated this the 16th day of July 2007
O R D E R
Application for anticipatory bail. The petitioners are the husband and step-mother of the husband of the de facto complainant. The marriage between the spouses took place on 13/2/2006. The petitioners face allegations under Section 498A I.P.C. A crime was registered inter alia under Section 498A read with 34 I.P.C on the basis of a private complaint filed before the learned Magistrate and referred by the learned Magistrate under Section 156(3) Cr.P.C. Investigation is in progress. The petitioners apprehend imminent arrest.
2. The learned counsel for the petitioner submits, the learned Public Prosecutor does not oppose the said prayer and I am satisfied that the petitioners can be granted anticipatory bail. In coming to this conclusion, the reality that if the petitioners were arrested and detained in custody, that would mar all possibilities of harmony in the marriage, does weigh with me considerably. No specific allegations of overt physical violence is made also.
3. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner.
i) Petitioners shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 23/7/2007. B.A.No.4312/07 2 ii) They shall be released on regular bail on condition that they execute bonds for Rs.25,000/- (Rupees twenty five thousand only) each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. iii) The petitioners shall make themselves available for interrogation before the investigating officer between 10 a.m and 3 p.m on 24/07/2007 and 25/07/2007 and thereafter on all Mondays and Fridays between 10 a.m and 12 noon for a period of two months and subsequently as and when directed by the investigating officer in writing to do so. (iv) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to
arrest the petitioners and deal with them in accordance with law, as if these directions were not issued at all.
(v) If they were arrested prior to 23/7/2007, they shall be released from custody on their executing a bond for Rs.25,000/- (Rupees twenty five thousand only) without any sureties, undertaking to appear before the learned Magistrate on 23/7/2007.
http://498afaq.blogspot.com/2009/04/how-to-get-anticipatory-bail.html
Bail procedure follwed
1. Any bail application must be presented before the Superintendent, District Court, District. He receives it, puts his initials and the date stamp of the District Court on every page and transmits it to the Inward Section.
2. The Inward Section Clerk enters the name/s of the petitioner/s, name of the Advocate, Crime Number and name of the Police Station in the 12-Register (Inward Register) and sends it to the Translator, Criminal Section of the District Court.
3. Then the Translator of the District Court or his Assistant checks the application, writes a brief note on the bail application and the Translator places the same before the District Judge, District for orders.
4. After obtaining orders from the District Judge, the Translator of the District Court allots Cr.M.P.Nos. to the bail applications and enters them in the Cr.M.P. Register (6 A Register). He also enters the orders passed by the District Judge on each application in the Diary Register (11-Register). If they are made over to any of the Additional District Courts, the said order would
also be mentioned in both the Registers.
5. If the bail application is ordered to be made over to any of the Additional District Courts, the Translator sends it to the concerned Court along with the Cr.M.P. Register. The Criminal Section Clerk in the I-Additional District Court and the Translator in the II-Additional District Court receive bail applications after putting their initials in the Cr.M.P.Register, in token of having received these application. They place the applications before the concerned Additional District Judges for orders, after making a note on the application "Received from Sessions Court".
6. Then the Additional District Judges order notice to the Additional Public Prosecutors of their Courts. The Criminal Clerk of the I-Addl. District Court and Translator of the II-Addl. District
Court enter the particulars of these applications in their respective Cr.M.P. Registers (6-A Register) as well as the Diaries (11-Register) of their courts.
7. The Steno-Typists of both the Additional District Courts take down the orders, in short hand, as and when the Additional District Judges dictate them and transcribe them on the bail applications. The Typist in the II-Addl. District Court types the fair orders, while in the I-Addl. District Court the Steno-Typist does it.
8. Whenever any bail application is made over to any Additional District Court in any Crime Number, all subsequent bail applications filed in the same Crime number either for the same accused or for the co-accused will also be made over to that particular Additional district Court only.