A life of Dignity

Supreme Court: Circumstantial evidence should be conclusive, 13.01.2012

2012-01-16T09:55:00.000+05:30

1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.522 OF 2006
Madhu …. Appellant
Versus
State of Kerala …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. The appellant herein, Madhu Kalikutty Panicker (hereinafter referred to as
“Madhu”) was charged along with Sibi Bhaskaran (hereinafter referred to as
“Sibi”) for offences punishable under Section 302 and 392 read with Section 34
of the Indian Penal Code, for having robbed Padmini Devi alias Omana of her
gold ornaments and thereafter having murdered her on 8.5.1998 at her
residence, i.e., Kalathil House situated in Ward No.IV of Veliyanad Village. Both
Madhu (accused no.1) and Sibi (accused no.2) were also residing in the
neighbourhood of the deceased in the same ward and village.
2. The Sessions Judge, Alappuzha convicted the accused and sentenced
them to undergo rigorous imprisonment for 10 years and to pay a fine of
Rs.25,000/- under Section 392 of the Indian Penal Code. The accused were
sentenced to imprisonment for life under Section 302 of the Indian Penal Code.
2
The Sessions Judge directed that the aforesaid sentences would be suffered
successively, i.e., one after the other. In case of default of payment of fine, the
accused were to undergo further rigorous imprisonment for a period of three
years. The Sessions Judge also directed that the accused would be entitled to
set off equivalent to the period of their detention during the course of trial, under
Section 428 of the Criminal Procedure Code.
3. On appeal, the High Court of Kerala maintained the conviction of the two
accused. On the question of sentence, the High Court modified the order passed
by the Sessions Judge to the extent that the sentences would run concurrently.
Subject to the aforesaid modification, even the sentences awarded by the
Sessions Court were maintained.
4. The conviction of the accused at the hands of the Sessions Judge as also
the High Court was based on circumstantial evidence. Principally, the conviction
was ordered as a consequence of recovery of ornaments worn by the deceased,
pursuant to the information furnished by the accused. Based on the aforesaid
recovery, the High Court, relying on Section 114 of the Indian Evidence Act
inferred that the accused had committed the murder of Padmini Devi, and
thereupon, robbed her off the ornaments worn by her. The only other material
evidence taken into consideration by the courts below, to return the conviction of
the appellant herein (as also his co-accused Sibi) was the factum of their having
been sighted close to the place of occurrence at or around the time of
occurrence.
3
5. The care and caution with which circumstantial evidence has to be
evaluated stands recognized by judicial precedent. Only circumstantial evidence
of a very high order can satisfy the test of proof in a criminal prosecution. In a
case resting on circumstantial evidence, the prosecution must establish a
complete unbroken chain of events leading to the determination that the
inference being drawn from the evidence is the only inescapable conclusion. In
the absence of convincing circumstantial evidence, an accused would be entitled
to the benefit of doubt. During the course of deliberations of the present
controversy, we shall endeavour to evaluate the worthiness of circumstantial
evidence produced by the prosecution to prove the guilt of the accused. But
more importantly, our endeavour would be to evaluate the admissibility of the
statements made by the accused to the police, during the course of their
detention by the police, resulting in the discovery of the gold ornaments,
belonging to Padmini Devi, after having committed her murder. This piece of
evidence has been relied upon to connect the accused with the crime.
6. The prosecution case as is revealed from the charge-sheet, notices that
the accused with the deliberate intention of committing the murder of Padmini
Devi with the motive of robbing her of the ornaments worn by her, proceeded to
Kalathil House where the deceased was residing. Padmini Devi was found
alone, sitting on the ghat (place leading into water) steps leading to the paddy
field, washing utensils. The ghat was situated at about 3 meters (2 meters and
75 cms.) from the last door step of the kitchen’s eastern door of Padmini Devi’s
house (Kalathil House). It is alleged that Madhu – accused no.1, caught hold of
4
the plated hair and neck of Padmini Devi and Sibi-accused no.2, held her by her
feet, and the two together forcibly dragged her into the water. Thereupon, they
suffocated her. The act of drowning of Padmini Devi is alleged to have been
committed by the accused at a place 29 meters from the south-east of the steps
of the ghat. The accused are stated to have dragged Padmini Devi to the spot
from where her body was eventually recovered, at a distance of 7 meters northwest
of the foundation of the Snake God Shrine, which is to the south of the
paddy field in question. Madhu-accused no.1, is alleged to have removed six
gold bangles worn by Padmini Devi (on her left arm), whereas, Sibi-accused
no.2, is alleged to have removed a gold chain worn by Padmini Devi (around her
neck). The accused were thus alleged to have committed the murder of Padmini
Devi, and the theft of her ornaments jointly.
7. The son of the deceased Asuthosh PW3 is stated to have received a
phone call from his sister Ambily PW4 at 9.45 p.m. on 8.5.1998. Since
Ashutosh’s sister Ambily informed him that she would like to speak to her mother
Padmini Devi, Ashutosh PW3 who was sleeping at the time when the call was
received, got up to call his mother. He found his mother missing. He
accordingly, approached his relations and neighbours. A joint search was carried
out. The husband of the deceased, i.e., Ayyappa Kurup PW2 who, at that point
of time, was attending to his night duty in the Telephone Exchange at
Changanacherry was summoned. Ayyappa Kurup PW2 reached Kalathil House
at around 11.30 p.m. The body of the deceased was found at about 11.45 p.m.,
from under the water in the field on the eastern side of Kalathil House. Ayyappa
5
Kurup PW2 asked Purushottama Kurup PW1 to make a complaint to the police.
This decision was in fact, that the death of Padmini Devi was shrouded in
suspicious circumstances. The aforesaid suspicion emerged on account of
absence of her golden necklace (worn by the deceased on her neck), as also, six
bangles (worn by the deceased around her left arm) when her body was
recovered. Accordingly, Purushothama Kurup PW1 reported the matter to the
police, disclosing the aforesaid factual position on the following morning i.e. on
9.5.1998 at 8.30 a.m..
8. On the registration of the FIR, PJ Thomas PW21, Circle Inspector of
Police, reached the place of occurrence, and prepared the inquest report (Exhibit
P-3). As per the inquest report. the deceased Padmini Devi alias Omana was
aged 47 years. She was found by Karthikeyan Nair PW16, a neighbour and a
resident of Thundiyil House in Ward No.IV, Veliyanad Village at 11.45 p.m. from
the paddy field on the eastern side of his house. As per the inquest report,
Padmini Devi was last seen alive at her residence by her son Aushutosh at 9.15
p.m. on 8.5.1998. As per the inquest report, apart from the dress worn by her
she was wearing a gold chain around her neck of “thara” fashion weighing about
5-1/2 sovereigns, besides 4-5 golden bangles in her left hand and golden
earrings in her ears, when Aushutosh saw her for the last time. The inquest
report further depicts, that blood and water was oozing out from her nostrils on
both sides, and her tongue was protruding out by ½ inch, with the mouth slightly
open. Water weeds were found sticking to her hair. Ears had earrings of “claver”
design. The stomach was found to be slightly bloated. The inquest report
6
records, that at a distance of 2 meter 27 cm. of the first foot-step of the kitchen
door, there is a ghat (place leading into water) with three steps. The lower step
of the ghat is immersed in water. At a distance of 50 cms., from the lowest footstep
the water is 75 cms. deep. The spot in the field from where the dead body
of Padmini Devi was recovered, was 29 meters from the lowest foot-step. The
depth of the water at the place from where the dead body was recovered is
stated to be 82 cms. deep (32.28 inches, i.e., about 3 feet). The inquest report
also noted, that ornaments worn around the neck and in the left arm by Padmini
Devi were missing. According to the statement of Aushutosh PW3, his mother
must have gone to the ghat, fallen into the water and somehow died. Yet,
consequent upon the discovery of the missing golden ornaments, those present
at the spot at the time of preparation of the inquest report, expressed doubts
about the death of Padmini Devi. Accordingly, even though at Serial no.XI of the
inquest report, it stands recorded that Padmini Devi alias Omana had died due to
drowning, at Serial no.XVI it was mentioned that since the ornaments worn by
her were missing, the persons present had unanimously raised a doubt about the
cause of her death.
9. The contents of the First Information Report, as also, the Inquest Report
constituted the first factual depiction of an occurrence. These are of utmost
importance. The evidence produced by the prosecution during the course of trial,
will accordingly have to be evaluated along with the aforesaid reports conjointly
to substantiate the credibility of the charges levelled against the accused. During
the course of hearing, some salient facts which constituted the foundation for
7
establishing the prosecution version emerged. The first and the foremost in the
sequence of events, is the fact that Padmini Devi is alleged to have gone to the
steps of the ghat after having taken supper, for washing utensils. The second
important feature of the prosecution story is the absence of a gold necklace from
around the neck of Padmini Devi, and six gold bangles worn by her on her left
arm. Gold earrings worn by the deceased Padmini Devi were found intact on her
ears. The third facet is the factum of the state of body of deceased Padmini
Devi. The prosecution version is that Padmini Devi was first smothered and
thereafter drowned. Thereby inferring murder, as against death by accidental
drowning. The fourth component of the prosecution case was the presence of
Madhu-accused no.1 and Sibi-accused no.2 in the vicinity of the place of
occurrence at or around the time of occurrence on the fateful day i.e., on
8.5.1998. The final and the clinching basis for establishing the guilt of the
accused were the confessional statements made by Madhu-accused no.1, i.e.,
the appellant herein, on 13.5.1998 (Exhibit P-10) to P.J. Thomas PW21, Circle
Inspector of Police that he had wrapped six gold bangles belonging to Padmini
Devi, in an old plastic paper, and had hidden them under the earth near the field
on the southern side of his house. He offered that if he was taken to his house,
he could produce the bangles. Likewise, is the confessional statement of Sibiaccused
no.2 (Exhibit P-9) recorded on 13.5.1998 by PJ Thomas PW21, Circle
Inspector of Police, that he had wrapped the gold chain of Padmini Devi, in a
plastic paper, and had kept the same inside a “chadjan leaf” of a coconut tree,
standing on the eastern side of his house. He further stated, that he could show
the coconut tree and produce the chain. Consequent upon the aforesaid
8
confessional statements, (Exhibits P-10 and P-9 respectively), the police
recovered the gold chain as also the six gold bangles on 13.5.1998 at the
instance of the accused. These ornaments came to be identified as the necklace
and bangles worn by the deceased Padmini Devi.
10. The evidence produced by the prosecution also falls in different
compartments. One set of witnesses were produced to establish the search
conducted for the recovery of the body of the deceased Padmini Devi on
8.5.1998. The same set of witnesses deposed about the presence of utensils on
the steps of the ghat. The second set of witnesses was produced by the
prosecution to establish the presence of Madhu-accused no.1 and Sibi-accused
no.2, near the place of occurrence, at or around the time of occurrence on the
fateful day i.e., on 8.5.1998. The third set of witnesses deposed about the
recovery of the missing gold ornaments, at the instance of the accused. Besides
the aforesaid three sets of witnesses, the prosecution examined
Dr.Radhakrishnan, Principal, Medical College, Alappuzha as PW20.
Dr.Radhakrishnan had conducted the post mortem examination of the body of
the deceased. The only other witness whose statement was recorded was PJ
Thomas PW21, the then Circle Inspector of Police, whose statement was
recorded to show the course and process of investigation.
11. Since the prosecution endeavoured to establish the crime on the basis of
circumstantial evidence, it shall be necessary for us to record a bird’s eye view of
the statements of witnesses produced by the prosecution.
9
First and foremost the prosecution produced Purushothama Kurup as PW1.
Purushothama Kurup, deposed that he had recorded the First Information
Report. He also asserted, that he had called the husband of the deceased
Ayyappa Kurup (PW2) on telephone, to inform him that Padmini Devi was
missing. Purushothama Kurup PW1 also deposed, that on being informed that
Padmini Devi was missing, he had reached the house of the deceased and
participated in her search. PW1 in his cross-examination deposed, that he had
seen utensils, some of which were washed, and some were unwashed, at the
upper step leading to the field, even though it was acknowledged, that he had not
made any statement to the aforesaid effect to the police. Purushothama Kurup
PW1 in his deposition also narrated the fact, that a gold chain of “thara” fashion
weighing about 5-1/2 sovereigns and six gold bangles were missing when the
dead body of Padamini Devi was recovered. In his cross-examination he
affirmed that he had made the aforesaid assertion, on the basis of the statement
made by the deceased’s husband Ayyappa Kurup (PW2), after the dead body of
the deceased was recovered.
The statement of the husband of the deceased Ayyappa Kurup (PW2) recorded
before the Sessions Court reveals, that both the accused Madhu and Sibi were
known to him as they were his neighbours. He affirmed that on 13.5.1998, P.J.
Thomas PW21, Circle Inspector of Police, brought the accused to his residence
at about 6 p.m. The police party showed him six gold bangles, five of which were
hand-cut whereas one was machine made. The police also showed him the
recovered gold necklace. Ayyappa Kurup PW2 identified the recovered gold
ornaments, as the ones which were worn by the deceased Padmini Devi around
10
her neck and left arm. PW2 did not depose about the gold earrings worn by the
deceased Padmini Devi, which were found on her ears at the time of recovery of
her dead body. Ayyappa Kurup asserted during the course of his cross
examination, that he had seen the utensils at the ghat, and that, the same had
been taken and restored to the house, and were available at his residence.
Aushutosh, son of the deceased Padmini Devi was examined as PW3. He
asserted, that the accused Madhu and Sibi were known to him. He confirmed
that utensils were found lying on the eastern ghat when the search for his mother
Padmini Devi was carried out. Like his father, he also identified the recovered
ornaments on 13.5.1998, when the police party produced the same along with
the accused at their residence.
Ambily, the daughter of the deceased Padmini Devi deposed as PW4. She
confirmed having spoken to her brother over the telephone, whereupon, her
brother Aushuthosh PW3 who had been sleeping, went out in search of his
mother Padmini Devi, and found her missing. PW4 asserted that she had
reached her parents house, after she had received a call informing her that her
mother was missing. She also asserted that as usual, her mother had gone to
wash utensils at the field. She also deposed that her mother’s gold chain and six
bangles were missing when her dead body was recovered.
Vijayalakshmi was produced by the prosecution as PW5. Vijayalakshmi deposed
that the deceased Padmini Devi, as also, both the accused Madhu and Sibi were
known to her, as they were residing in her neighbourhood. Vijayalakshmi had
joined the search party when Padmini Devi was found missing. In her statement
she deposed that she had gone to the ghat on the fateful day, where she had
11
seen two/three utensils. She asserted that the utensils were lying on the steps of
the ghat. She further asserted that some of the utensils were washed while
some were still unwashed. She asserted that the deceased was her aunt, and
that, the golden necklace and the golden bangles worn by her aunt were missing
when her body was recovered. She however acknowledged, that her aunt was
still wearing the golden earrings when her body was recovered.
It would be relevant to indicate here, that all the aforesaid witnesses (PW1 to
PW5) were primarily associated with the search and recovery of the body of
deceased Padmini Devi as also, to support the prosecution version that Padmini
Devi had gone out of the house to wash utensils at the ghat, on the fateful day.
All these witnesses also deposed about the missing gold ornaments, namely, a
gold chain and six gold bangles.
12. The next set of witnesses produced by the prosecution was to establish
the presence of accused Madhu and Sibi close to the scene of occurrence at or
around the time of occurrence on 8.5.1998, as well as, matters associated
therewith.
The first witness produced for the aforesaid purpose was Kamalama PW6.
Kamalama in her deposition asserted, that the accused Madhu and Sibi had
come to her residence at about 8.30 p.m. on 8.5.1998 as it was raining heavily at
that time. She asserted that she had served two plantains each to the accused.
As per the statement of Kamalama PW6, the accused had come to her house to
borrow an umbrella. In her statement she also deposed, that both the accused
12
were intoxicated and were smelling of liquor. She stated that the accused left her
house when the rain subsided.
Madhu, a labourer appeared as PW7. Relevant part of the statement of Madhu
PW7 needs to be extracted herein. The same is therefore reproduced
hereunder:
“I swam from the eastern bank of the boat jetty to its northern bank.
It should have been 9.30 p.m. then. I swam by taking out by shirt
and keeping it aloft. A person was seen walking from the Western
side and turning to the North. I identified him as A-2 in the light of
my torch. I asked whether he is Sibi. Saying that he is Sibi, he
walked towards South. While I walked away and reached on the
West of the shutter of Kuttachi’s chira, a person was seen coming
flashing torch-light towards East. On reaching near me, I identified
him as A-1. I asked him whether he was swimming. A-1 told me
that it is so. He also added that he is a little intoxicated and that he
swam and got into the Karumuppathu ghat. A-1 was wearing a kyli
mundu (dhothi). The dhoti was wet. There was a country-boat in
the Karumuppathu ghat. A-1 told me that if I am to proceed to that
jetty, I can cross to the other side. Witness identified both the
accused persons. A-1 proceeded towards East and I went to my
house.”
Besides the aforesaid, Madhu PW7 also deposed about the recovery of gold
ornaments at the instance of accused Madhu and Sibi. He asserted that a
golden necklace was recovered from a palm tree at the instance of Sibi-accused
no.2, from the compound of his residence, whereas, six gold bangles were
recovered from under the earth at the instance of Madhu-accused no.1 from the
compound of his residence. In his cross examination he asserted that the death
of the deceased Padmini Devi was not natural as the gold ornaments worn by
her were missing. It was however clarified by him, that the fact that ornaments
worn by the deceased Padmini Devi were missing came to his notice on account
of an assertion made to the aforesaid effect by Ayyappa Kurup PW2. His
13
statement relating to his having seen the accused close to the place of
occurrence on 8.5.1998, emerges from his cross-examination which is being
extracted hereunder:
“When it was found that ornaments were missing, it was suspected
that it should have been a case of murder. I realized that the
ornaments were missing when PW.2 told about it. I did not tell
them that I had seen the accused persons (on 8.5.1998). I was
summoned to appear before the Police Station on 12.5.1998 at
8.00 a.m. A constable came to my house on the 11th and asked me
to come to the Police Station…. I am speaking about this for the
first time in Court. Raju is staying just near my house. I swam
ashore. At that time, it should have been 9.30 p.m. which fact I did
not tell the Police. I had also not told the Police that I had removed
my dress and kept it aloft while swimming.
Q. Are you not speaking about this also for the first time in
Court?
A. Yes.
The person whom I saw first, proceeded to the West and then
turned to the South. I had not stated during the chief-examination
that he turned to the North.”
It is also important to extract herein the cross-examination of Madhu PW7 on his
incidental presence, which led to his having sighted the accused Madhu and Sibi,
close to the place of occurrence:
“To swam ashore some 4/5 minutes are enough. Until I swam
ashore and saw the 2nd accused I did not meet anybody else. I was
walking by flashing the torch-light. When I got down after the
turning, and flashed the torch, I identified the person. The turning is
on the East of the Shutter, which is on the East of Kuttachi Chira,
and on the West of the Narayanan Achari. A-2 came from the West
and turned to the South. I saw him come 15 feet away. I had seen
very clearly. I did not notice the colour of the dress of A-2. He was
wearing a kyli mundu (dhothi), is what I remember. I did not care to
notice whether his dress was wet. I asked him whether he is Sibi.
He was walking.
Q. Did he try to run away?
A. No. He walked speedily.
14
I had not told the Police that he had walked speedily. I had not told
the Police how I was able to identify Sibi. There are inmates in the
house of Narayanan Achari. Sibi did not stand there talking to me.
After answering me that he is Sibi, he proceeded towards South.
Within two/three minutes I saw A-1. I saw A-1, some 20 feet on the
West of the shutter. Both had not come there together. One was
proceeding from behind and the other was walking in front. I saw
A-1 some 30 feet away from the place where I saw A-2. My dress
was not wet. I was walking along by wearing dhoti and shirt. A-1
asked me whether I was swimming. I told I was swimming. It
seems that the dhoti worn by A-1 was of blue colour. I had not told
the Police about the colour of that dhoti.”
It would be relevant to mention that Madhu PW7 also deposed the presence of
utensils on the steps of the ghat. In his statement he affirmed, that he had seen
one utensil on the upper step and one utensil on the lower step of the ghat. In
response to cross-examination he stated, that he had not made a statement in
connection with the utensils on the ghat, because he was not questioned in
connection therewith by the police. His presence, at the time of recovery of the
gold ornaments at the instance of accused Madhu and Sibi, is also relevant. The
same is also accordingly being extracted hereunder:
“I went for work on 13th at 7.30 a.m. In the afternoon, I reached my
house at about 2.30 p.m. I had gone back home on coming to
learn that the accused will be brought there around 4.00 p.m. I do
not remember who told me so. A lot of people had gone to the
Jetty. Seeing this, I too proceeded there.
Q. Did the people know that the accused will be brought there
and there will be recovery or seizure of ornaments?
A. I do not know about it.
I had not told the Police that as people were seen proceeding to the
Jetty, I too proceeded there. I had told the Police that I heard it
said by Sibi to the Police that the ornaments are hidden under the
cadjan leaf.”
15
Madhu PW7 also deposed that he remained present when the recovery of the
gold necklace was made at the behest of Sibi-accused no.2, and also thereafter,
when the recovery of six gold bangles were made at the behest of Madhuaccused
no.1.
Rajankutty was produced by the prosecution as PW8. He deposed that he was
the Manager of the Toddy Shop from where Madhu-accused no.1 and Sibiaccused
no.2, had purchased one bottle of toddy each at 8.00 p.m. on the fateful
day, i.e., 8.5.1998.
Sasseendran Nair was produced by the prosecution as PW9. He deposed that
he had seen the accused close to the place of occurrence on the fateful day. He
also deposed that he had left the house of Chandrasekhara Kurup PW10 at 9
p.m. on 8.5.1998, when the electricity was restored after the power cut. He
stated that when he reached near the bridge on the western side of the house of
Ayyappa Kurup PW2, he had seen a person ascending the bridge, and then
proceeding to the eastern bank. He had also seen another person following him
and going towards the east. The first person he had noticed was Sibi-accused
no.2, whereas the person who followed Sibi was Madhu-accused no.1. The
cross-examination of PW9, in connection with his having sighted the accused is
significant, relevant extract thereof is accordingly reproduced hereunder:
“I first met Sibi. I saw Sibi standing under the bridge. Each of the
accused persons were seen crossing the bridge from the Western
bank to the Eastern bank. I had told the Police that I saw (these
persons) crossing the bridge from Western bank to the Eastern
bank.
Q. Why is it not been noted by the Police?
A. May be, the Police had not noted it down.
16
I have not stated that one person alone was seen getting down to
the Eastern bank. I had not stated that then one person crossed
over the bridge from Western bank and descended on the Eastern
bank. Marked Ext.D-3. They were seen turning towards North.
Q. Did you notice any one standing there?
A. I did not see.
I had told the Police that a person along with another came there
and turned to the North. What I had seen was both the accused
going together towards the North. I had not noted one person
standing there and turning to the North along with another. I had
not told the Police what was the dress worn by the accused
persons or the colour of their dress. I have not told anybody else
about my having met the accused persons there. I am speaking
about it for the first time in Court. I had told the Police about this.
Q. I put it to you that you had not noticed the accused persons
on that day and that due to influence brought to bear upon by
Chandrasekhara Kurup, you are speaking about what you had not
Personally seen?
A. I had only spoken the truth.”
13. The next set of witnesses deposed mainly on the subject of recovery and
identification of the stolen gold ornaments and matters associated therewith.
Chandrasekhara Kurup appeared before the Sessions Court as PW10. The
deceased Padmini Devi was described by him as the wife of his younger brother
Ayyappa Kurup PW2. Chandrasekhara Kurup PW10 deposed about the
presence of utensils lying on the steps of the ghat. He also deposed, that he had
not only participated in the search but had also gathered people to find Padmini
Devi. He asserted that he was present when the dead body of Padmini Devi was
found. He confirmed the presence of earrings on the person of Padmini Devi.
He also deposed about the missing gold chain and gold bangles. He asserted
that he could identify the gold chain, as also, the gold bangles if they were shown
17
to him. Accordingly, he identified the gold chain and bangles recovered at the
instance of the accused, during the course of his deposition.
Neelakantan Nair appeared as PW11. His deposition was primarily in respect of
recovery of the gold chain and the golden bangles at the instance of accused
Madhu and Sibi. His presence at the time of recovery of ornaments, as deposed
during the course of his cross-examination, has an important bearing on the
controversy, the same is accordingly being reproduced hereunder:
“On the afternoon of 13th, I learnt that the accused persons have
been apprehended. I learnt it from the people in the locality. I
learnt that the accused persons, who had murdered the teacher,
have been arrested. In the morning itself, it was heard it said that
the accused persons will be brought there for recovering the thondy
articles. I had told the Police that on 13.05.1998 after my lunch at
noon, when I was resting at my house, on coming to know that the
Police are coming with the accused persons, who had murdered
Omana Teacher, and that the stolen gold ornaments will be
recovered, I came to the side of the Boat Jetty, well before 4.00
p.m. A big crowd had assembled at the boat jetty. It was widely
known that the stolen booty of gold ornaments will be recovered.
All those assembled there were knowing about this. The Police
arrived around 4.15 p.m. along with the accused persons. There
were two accused persons. The police took A-2, to A-2 house. I
too followed them. By about 4.20 p.m. we reached the residence of
A-2…. After leaving the residence of A-2, the police along with A-2
boarded the boat. It should have been 5.00 p.m. at that time. They
proceeded from there towards West, to the house of A-1. They
reached A-1’s house, around 5.15 p.m. They got down in front of
the house of A-1 in the boat. I had walked from the house of A-2 to
the residence of A-1. Police and A-1 at first reached the house of
A-1. I heard the Police asking Madhu about the thondy articles. I
have not given a statement to the Police that I had heard about this.
Madhu dug up the spot with his own hands and took out the
packet.”
S. Uthaman appeared as PW12. At the relevant time he was the Village Officer
of Veliyanad Village. He had prepared the site plan of the scene of occurrence
18
on the directions of the Circle Inspector of Police, P.J. Thomas PW21. His
statement is formal and needs no further elaboration.
Gopinathan was produced by the prosecution as PW13. He was produced to
establish the recovery of gold chain at the instance of Sibi-accused no.2. In fact
he was asked to climb the coconut tree pointed out by Sibi-accused no.2. He
brought down the gold chain. His cross-examination on the instant issue is
relevant to determine the validity of the confessional statements made by
accused Madhu and Sibi (vide Exhibits P-10 and P-9 respectively). Relevant
portion from the cross-examination of PW13 is being reproduced hereunder:
“Q. When did you come to know that the accused persons are
coming to recover the gold ornaments?
A. I knew it at 4.45 p.m.
On the 13th May, 1998, while I was sitting at my house, I learnt that
the police party is coming along with accused persons. I had gone
to Kumarangary Boat Jetty, coming to know that the accused
persons are arriving. The police arrived there along with accused
persons after 4.00 in the afternoon. They had come there after I
reached there. A large crowd had gathered at the place. There
was information available by noon that the police party is coming
with the accused persons. I had not noticed the arrival of the Police
with accused persons. I saw A-2 leading with the police party
behind him.”
Ramesh appeared before the Sessions Court as PW14. He was the goldsmith
summoned by the investigating agency to examine the gold ornaments and to
indicate the purity thereof as also the weight of the recovered ornaments. His
deposition being formal needs no further elaboration.
14. The remaining witnesses from PW15 to PW19 made statements on
different aspects of the matters. Some of them were formal witnesses.
19
Chacko appeared before the Sessions Court as PW15. He was associated with
the search of Padmini Devi. He affirmed that on the recovery of the body of
Padmini Devi, Ayyappa Kurup PW2 had asserted that the gold chain around her
neck, and the gold bangles on her left arm were missing. He also deposed, that
he had seen utensils on the eastern ghat at the time of search. For the present
controversy his statement in respect of recovery of gold ornaments for the
purposes of determining the admissibility of the confessional statements made by
accused Madhu and Sibi is relevant. A relevant extract of his statement is
accordingly being reproduced hereunder:
“The accused were arrested at 2.30 p.m. on the 13th, was what I
heard. After reaching the Block Jetty around 4.00 p.m. that day,
the accused were taken by the Police to the house of A-2. There
was a large crowd to witness this. I too went there. After pointing
out the coconut tree standing on the East of A-2’s house, A-2 told
the C.I. that the gold is deposited on the 3rd step. C.I. asked him to
go up and bring the gold. A-2 said that he was unable to do as he
was tired and feeling unwell. C.I. then asked those assembled
there as to who will go up the tree and bring the gold. Gopinathan
brought the ladder which was kept slanting at the house of A-2 and
with the help of the ladder, went up and brought down by the
Western side of the coconut tree, a green plastic packet and
handed it over to C.I. It was seen that he was taking it out from the
3rd step. C.I. took out the gold chain and showed it all. Witness
identified M.O. 1 chain. This itself is the Plastic cover. A goldsmith
appraised the ornament to see whether it is real gold. He also gave
the name of the fashion. He said it is `Kattithara’ fashion. A
mahazar was prepared. I am a witness to the Mahazar. I have
affixed my signature on Ext.P-5.”
The statement of Chacko PW15 reiterates the factual position recorded in the
statements of other witnesses including Gopnathan PW13 and Ramesh PW14.
During the course of their cross-examination they acknowledged that they had
been the part of search team. They confirmed that at the ghat he had seen
20
utensils on the steps. They asserted in their cross-examination, that all the
people in the locality had assembled in the courtyard of the house of Sibiaccused
no.2 before the police arrived, as the police was expected to bring the
accused to effect recovery of the stolen gold ornaments.
Karthikeyan Nair appeared before the Sessions Court as PW16. He was also a
member of the search party associated for finding Padmini Devi. He reiterated
the position in respect of the presence of the utensils at the bathing ghat. He
confirmed that the utensils were still there when the police arrived at the scene.
Sivan was produced by the prosecution as PW17. He and his nephew Saboo
were part of search team. In fact they were summoned to search out Padmini
Devi from the water in the paddy fields. He deposed, that when they found
Padmini Devi from under the water in the paddy fields, she was already dead.
He also deposed, that the gold chain and bangles of Padmini Devi were missing.
In his statement he asserted that he did not know whether when the body of
Padmini Devi was recovered, she had earrings. He also stated, that he had no
information about the loss of any earrings. He acknowledged his presence at the
time of preparation of the inquest report. He denied having noticed utensils at
the ghat. He asserted that the depth of the water at the place from where the
body of Padmini Devi was recovered was about 2-1/2 feet. He clarified that the
depth of the water was upto his waist.
Baby C. George appeared as PW18. He is a formal witness.
Likewise K.D. Sivamony PW19, Sub Inspector of Police was also a formal
witness who deposed in connection with the recording of the First Information
21
Report, and its dispatch to the court of the Sub Divisional Magistrate, as also, the
JFMC.
15. Dr. Radhakrishnan was examined as PW20. He conducted the postmortem
examination on the body of Padmini Devi on 9.5.1998 between 4 and 5
p.m. His deposition was in consonance with the injuries depicted by him in the
post mortem certificate dated 9.5.1998. He described the following injuries on
the body of the deceased:
“INJURIES ANTEMORTEM
1. Contusion with minute superficial laceration on the mucosal
part of lower lip corresponding to the right lateral incisor and canine
teeth.
2. Linear abraded contusion on the whole of the right ear lobe
just in front of the old ear lobule perforation.
3. Linear graze abrasions over an area 7x5 cm on the outer
aspect of left leg its upper border being 13 cms below the knee
placed obliquely outwards and upwards.”
Besides the aforesaid his other findings were recorded as under:
“The soft tissue and cartilages of the neck and the hyoid bone were
intact. The trachea and bronchi contained blood stained froth. A
few particles of fine sand found sticking on to the inner aspect of
trachea. The right and left lung weighed 515 and 485 gms
respectively. Both lungs were congested and edematous and
crepitus and their cut sections exuded copious blood stained frothy
fluid. The valves and chambers of the heart were normal and the
coronary arteries were patent. The stomach was full and contained
1.2 litre softened rice and vegetables in a watery fluid medium
without any peculiar smell. The uterus measured 7.5x6x2.5 cms in
size its os closed and cavity empty. The valva and vagina were
intact. All the other internal organs of the abdomen were normal
but congested. Sheaths of brain and brain matter were intact.
Skeletal system did not show any injury. Blood viscera, vaginal
swab were collected and preserved for laboratory examination.
Diatom test done with the bone marrow and the sample of water
from the alleged site of immersion of the body was negative.
Opinion as to cause of death – Postmortem findings are consistent
22
with death from drowning. This is the postmortem certificate issued
by me which bears my signature and seal. Marked Ext.P7. The
deceased died within a short time after the last meal. There is no
signs of any sexual assault. Finger nails were bluish, shows died
due to lack of oxygen in the blood. Injuries 1 & 2 could be due to
the application of blunt force at that part of the body. Injury
numbers 1 & 2 could be produced due to the attempt of smothering.
Cardio-vascular system appeared normal. Keeping a person
submerged in water forcibly need not produce any injury. Time
required for death may vary. But death can occur within 2 to 3
minutes. There was no smell suggestive of poisoning in the
stomach contents.”
During the course of his cross-examination he asserted that injury nos.1 and 2
depicted by him in his examination-in-chief, could be due to attempted
smothering. Even though he clarified by asserting that injury nos.1 and 2 are
possible if a person falls and during the course of that fall the right side of the
face comes in contact with a rough hard surface. It was also stated by him
during his cross-examination, that all the injuries suffered by the deceased
Padmini Devi, were superficial in nature.
16. P.J. Thomas, Circle Inspector of Police, appeared as PW21 was the last
witness to be examined by the prosecution. He deposed about the course of
investigation carried out by him. His deposition in respect of the arrest of the
Madhu-accused no.1 and Sibi-accused no.2, as also, the confessional
statements made by them is relevant, and is accordingly being reproduced
hereunder:
“On 13.05.1998 at 1.00 p.m. in the afternoon, Madhu (A-1) was
arrested near at the Boat Jetty at Valadi. Same day at 1.30 p.m.
Sibi (A-2) was arrested from near the Toddy shop at Valady. They
were questioned lawfully and their statements were recorded. A-1
and A-2 admitted/confessed about the commission of crime. When
A-2 Sibi was questioned, he said “The (gold) chain I have packed in
an old plastic paper and have kept it hidden at the top of the
23
coconut tree standing on the East of my residential house. If I am
taken there, I shall point out the coconut tree where I had deposited
the chain as well as the gold chain”. Confession statement is
marked as Ext.P9. On questioning A-1, he confessed :”Six bangles
after having packed them in a plastic paper, I have kept hidden
under the soil/ earth on the South of my residential house, adjoining
the field. If I am taken there, I shall take them out and deliver it.”
A-1’s confession statement is marked as Ext.P10…. The
confession statement from the accused persons was recorded in
between 2.00 and 2.30 p.m. The statements were recorded
separately. It was A-1’s statement that was recorded first. It was
recorded then and there. A-2’s confession statement was recorded
at about 2.45 p.m.”
It is significant to notice, that the presence of utensils were not depicted in the
inquest report. In consonance with his inquest report, when questioned about
the presence of utensils at the place of occurrence, PW21 categorically asserted,
that there were no utensils either at the ghat or at the steps to the paddy fields.
On the issue of earrings on the person of the body of the deceased at the time of
preparation of the inquest report his statement is of some interest, and is
accordingly being reproduced hereunder:
“The ear-rings were removed from the ears of the dead body by the
Policemen who were assisting me at the inquest. The thondy
(material) objects seized in a case would be produced before the
Court, the Court will direct those M.Os. to be kept in the Station
after entering them in the Sentry Leaf Book; the ear-rings and
M.O.3 series have not been entered in the Sentry Book.
Q. When were the ear-rings handed back to the relatives?
A. P.W.2 got back the ear-rings on 11.6.1998. He came to the
Station and took them back. Until then these ear-rings were kept
by the Writer to whom they were entrusted.
Q. Are there records to show that they were kept in the Station?
A. No records are there.”
24
The prosecution closed its evidence after recording the statement of P.J. Thomas
(PW21), Circle Inspector of Police.
17. The most significant issue in the present controversy is the veracity of the
confessional statements made by the accused Madhu and Sibi before P.J.
Thomas PW21, Circle Inspector of Police on 13.5.1998. It is evident that the
aforesaid statements were made by the accused before a police officer while the
accused were in custody of the police. Section 25 of the Indian Evidence Act
postulates that a confession made by an accused to a police officer cannot be
proved against him. Additionally, Section 26 of the Indian Evidence Act
stipulates that a confession made by an accused while in police custody cannot
be proved against him. It is evident from the factual position narrated
hereinabove, that the statements made by the accused Madhu and Sibi were
made to a police officer while the accused were in police custody. It is, therefore,
apparent that in terms of the mandate of Sections 25 and 26 of the Indian
Evidence Act, the said statements could not be used against accused Madhu
and Sibi. But then, there is an exception to the rule provided for by Sections 25
and 26 aforesaid, under Section 27 of the Indian Evidence Act. Section 27 of the
Indian Evidence Act is being extracted hereunder:
“27. How much of information received from accused may be
proved – Provided that, when any fact is deposed to as discovered
in consequence of information received from a person accused of
any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.”
As an exception, Section 27 of the Indian Evidence Act provides that a
confessional statement made to a police officer or while an accused is in police
25
custody, can be proved against him, if the same leads to the discovery of an
unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act is,
that police may procure a confession by coercion or threat. The exception
postulated under Section 27 of the Indian Evidence Act is applicable only if the
confessional statement leads to the discovery of some new fact. The relevance
under the exception postulated by Section 27 aforesaid, is limited “…as it relates
distinctly to the fact thereby discovered….”. The rationale behind Section 27 of
the Indian Evidence Act is, that the facts in question would have remained
unknown but for the disclosure of the same by the accused. Discovery of facts
itself, therefore, substantiates the truth of the confessional statement. And since
it is truth that a court must endeavour to search, Section 27 aforesaid has been
incorporated as an exception to the mandate contained in Sections 25 and 26 of
the Indian Evidence Act.
18. We shall now endeavour to apply the exception postulated in Section 27
of the Indian Evidence Act, to the facts of the present controversy, in order to
determine whether or not the confessional statements made by Madhu-accused
no.1 vide Exhibit P-10, and Sibi-accused no.2 vide Exhibit P-9, can be proved
against them in view of the exception stipulated in Section 27 of the Indian
Evidence Act. As already noticed hereinabove, relevance of the confessional
statements would depend on the discovery of facts based on the information
supplied by the accused. If any fresh facts have been discovered on the basis of
the confessional statement made by the accused, the same would be relevant. If
not, the confessional statement cannot be proved against the accused, to the
26
detriment of the accused. We have extracted the relevant portion of the
statement of P.J. Thomas PW21, Circle Inspector of Police hereinabove. It
reveals that Madhu-accused no.1 was arrested on 13.5.1998 at 1 p.m. from near
the boat-jetty at Valadi. On the same day, Sibi-accused no.2 was arrested from
near a toddy shop at Valadi at 1.30 p.m. It is thereupon, that the confessional
statements of accused Madhu and Sibi came to be recorded. In his crossexamination
P.J. Thomas PW21 has acknowledged, that the confessional
statements of the accused persons were recorded between 2 and 2.45 p.m. It
was sought to be clarified, that the confessional statement of Madhu-accused
no.1 was recorded first, and thereafter, the confessional statement of Sibiaccused
no.2 came to be recorded. As against aforesaid, we would like to refer
to the statements made by Madhu PW7, Neelakantan Nair PW11, Gopinathan
PW13 and Chacko PW15. Madhu PW7, during the course of his crossexamination,
stated that he had left for his work on 13.5.1998 at 7.30 a.m. He
further stated that he returned back from his work and reached his residence at
2.30 p.m. In so far as his return from work is concerned, in his examination-inchief
he stated that he would ordinarily return back from work only around 9 p.m.
at night. The reason for his return back early on 13.5.1998 was explained by
stating, that he had come to know that the accused would be brought to their
residences at around 4 p.m. for the recovery of the stolen gold articles. He also
asserted, that just like him, a lot of people had gathered at the jetty to witness the
recovery and seizure of the stolen ornaments. The statement of Madhu PW7
clearly establishes that he came to know that the police would effect recovery
well before 2.30 p.m. Therefore, as an exception to his coming home from work
27
late in the night, he had reached his residence at 2.30 p.m. Likewise, the
statement of Neelakantan Nair PW11 reveals, that in the morning itself, on the
date of arrest of the accused i.e., on 13.5.1998 he had heard, that the accused
persons would be brought for recovery of the stolen articles. He further stated,
that a large crowd had gathered to witness the recovery of the stolen articles,
and that, he also witnessed the recovery of stolen articles. He reiterated, that
just like him all those who were assembled there were aware that the police
would bring the accused there for recovery of the stolen articles. Gopinathan
PW13 acknowledged, that there was information available by “noon” that the
police party would come along with the accused to recover the stolen articles. It
is, therefore, that he had gone to witness the recovery of the stolen articles.
Even Chacko PW15 while deposing before the Sessions Court asserted that a
large crowd had gathered to witness the recovery of the stolen articles at the
house of the accused. The statements of PW7, PW11, PW13 and PW15,
narrated (and relevant portions extracted) hereinabove, clearly lead to the
positive conclusion that the fact that the stolen articles would be recovered from
the premises of the accused was known before the accused were brought to the
recovery site. These witnesses, as also the crowd present, were aware of the
said factual position at around “noon” (as per statement of Gopinath PW13) but
definitely before 2.30 p.m. (as per the statement of Madhu-PW7). But according
to PJ Thomas (PW21), the confessional statements were recorded between 2
and 2.45 p.m. The question to be determined is whether the confessional
statements made by the accused (vide Exhibit P-9 and P-10) can be said to have
led to the discovery of an unknown fact? The answer to the aforesaid query has
28
to be in the negative, because the statements of PW7, PW11, PW13 and PW15
reveal that the factual position in respect of the recovery of the articles from the
place from where the same were shown to have been eventually recovered, was
known to the public at large by noon (and certainly before 2.30 p.m.) i.e., well
before the confessional statements had been recorded. As per the deposition of
P.J. Thomas (PW21), Circle Inspector of Police, “… A-2’s confession statement
was recorded at about 2.45 p.m….”. Interestingly, the public had become aware
of the recovery by “noon”, whereas, Madhu-accused no.1 was arrested at 1.00
p.m., and Sibi-accused no.2 was arrested at 1.30 p.m. and their confessional
statements were recorded by the police after their arrest. In the background of
the aforesaid factual position, it is not possible for us to conclude that the
confessional statements made by Madhu-accused no.1 vide Exhibit P-10 and
Sibi-accused no.2 vide Exhibit P-9, can be stated to have resulted in the
discovery of any fresh facts. The factual position that recovery of stolen
ornaments would be made by the police was a matter of common knowledge well
before the confessional statements were made. The said statements recorded
vide Exhibits P-9 and P-10 are inadmissible inspite of the mandate contained in
Section 27 of the Indian Evidence Act for the simple reason, that they cannot be
stated to have resulted in the discovery of some new fact. In the factual
background of the present controversy, the gold ornaments which eventually
came to be recovered by the police, allegedly at the instance of accused, may
well have been planted by the police. On account of the fact that the
confessional statements made by Madhu-accused no.1 and Sibi-accused no.2,
which is the main linking factor in the circumstantial evidence of the prosecution
29
version of the controversy, being inadmissible as the same cannot be proved
against them, we are of the view that the prosecution’s case stands fully
demolished. In view of inadmissibility of evidence which was taken into
consideration by the Trial Court, as well as, the High Court to implicate the
accused with the commission of the offence alleged against them, shall have to
be reconsidered on the basis of the remaining evidence.
19. The second significant conglomerate of evidence to link the accused to
the crime in question, is their alleged presence at or around the place of
occurrence. This evidence emerges from the statements made by PW6 to PW9.
The prosecution, through these witnesses, have endeavoured to demonstrate the
presence of the accused, in the vicinity of the place of occurrence, at around the
time of occurrence. According to the prosecution the occurrence took place on
8.5.1998 at 9.20 p.m. According to the statement of Kamalama PW6, the
accused came to her house and asked for an umbrella as it was raining heavily.
She offered two plantains each to both the accused. The accused left her
residence when the power was restored at 9 p.m., after the power cut. She
further stated that both the accused were smelling of liquor and were under the
influence of liquor. According to PW6, after leaving her house the accused
turned left, i.e., towards the house of the deceased Padmini Devi. The statement
of Kamalama PW6, to our mind, is wholly insignificant to connect the accused
with the crime under reference. Madhu PW7 has given his version of having
seen the accused close to the place of occurrence. But the statement of PW7
which has been extracted hereinabove is so unrealistic, that it is worthy of
30
rejection without recording any reasons. It is strange that Madhu PW7 reached
the embankment by swimming upto it since the last boat had already left. He
calims to have kept his clothes afloat and above the water while he was
swimming through the water. It is, therefore, that his clothes had remained dry.
Even though, in his statement, he asserted that “…I identified him as A-2 in the
light of my torch…”. He subsequently stated that a person was seen coming,
flashing a torchlight towards east, and that, he was identified by Madhu PW7 as
Madhu-accused no.1. As per the said statement, the identification was made on
the basis of the torch held in the hands of Madhu-accused no.1. The aforesaid
contradiction is hard to digest. How PW7 retained the torch in his hand in a dry
condition, while swimming, has not been explained. If he was holding his torch in
one hand and clothes in the other, it is difficult to understand how he swam
across the water. And if the accused himself was carrying the torch, the light
would not fall on his face, and in that situation, the accused could not have been
identified, because by then it was past 9 p.m. These and other such like
discrepancies, when viewed closely, leave no room with us to accept the
credibility of the statement made by Madhu PW7. Rajankutty PW8 was the
manager of Toddy Shop No.86 at Kuttanad. As per the statement of PW8 both
the accused purchased a bottle of toddy each, and after drinking the toddy, they
left the toddy shop. This statement does not establish the presence of accused
at or near the place of occurrence. Even so, it establishes the correctness of the
statement of Kamalama PW6, to the effect that the accused were smelling of
liquor, and were under the influence of liquor. Saseendran Nair PW9 is the only
other witness produced by the prosecution to show the presence of the accused
31
close to the place of occurrence, at or around the time of occurrence, on
8.5.1998. The statement made by Saseendran Nair PW9, during the course of
his deposition before the Sessions Court, in connection with his having seen the
accused near the place of occurrence, had not been disclosed by him even to the
police during the course of investigation. In fact during the course of his crossexamination
he acknowledged “…I have not told anybody-else about my having
met the accused persons there, I am speaking about it for the first time in
court…”. In fact PW9 was working as a labourer in the house of Chandrasekhara
Kurup PW10. Sassendran Nair PW9 had not even disclosed the aforesaid
factual position to his employer Chandrasekhara Kurup PW10, even though he
must have known, that Chandrasekahara Kurup was the elder brother of
Ayyappa Kurup (husband of the deceased Padmini Devi). In this situation it is
difficult to consider the statement of Saseendaran Nair PW9 as credible. In view
of the aforesaid evaluation of the statements of witnesses examined by the
prosecution, to establish the presence of the accused, in close vicinity of the
place of occurrence, there remains no proved connection of the accused with the
accusations levelled against them. Even otherwise, in our view the presence of
the accused close to the residence of Padmini Devi is inconsequential, because
according to the statement of Ayyappa Kurup PW2 (husband of the deceased
Padmini Devi) both the accused Madhu and Sibi were known to him as they were
his neighbours. Surely, presence close to ones own residence cannot be the
basis for drawing an adverse inference. We are therefore satisfied, that the
statements of PW6 to PW9, do not in any manner, further the case of the
prosecution.
32
20. There are other glaring discrepancies as well. A large number of
witnesses, referred to above, including Purushothama Kurup PW1, Aushutosh
PW3, Ambily PW4, Vijayalakshmi PW5, Madhu PW7, Chandrasekhara Kurup
PW10, Gopinathan PW13, Ramesh PW14, Chacko PW15 and Karthikeyan Naik
PW16, deposed, that they had seen utensils lying on the steps of the ghat.
Some of the witnesses had gone further to explain, that some of the utensils
were washed whereas some were still to be washed. Obviously, these
statements were made by the witnesses so as to support the prosecution version
mentioned in the charge-sheet, wherein it was projected that Padmini Devi had
gone out to the steps of the ghat after taking the supper meal, to wash the dirty
utensils. The inquest report (Exhibit P-3), a translated version whereof was
made available for our consideration, does not disclose the presence of any
utensils at the ghat. In conjunction with the aforesaid, it is relevant to notice, that
during the deposition of P.J. Thomas PW21, Circle Inspector of Police, who
carried out the investigation in the case, he categorically asserted (in response to
a pointed question posed to him), that when he reached the ghat there were no
utensils. He further stated, that none of the witnesses told him, that there were
utensils at the ghat or on the steps leading to the paddy fields. The absence of
any evidence supporting the prosecution case depicting the reason for Padmini
Devi to go out of her house at late hours in the night, so as to be found alone by
the accused, reveals the lack of evidence to project the prosecution version
reflected in the charge-sheet. But more than that, is the contradiction in the
statements of PW1, PW3, PW4, PW5, PW7, PW10 and PW13 to PW16 on the
one hand, and the statement of PW21 coupled with the details mentioned in the
33
inquest report on the other. The genesis of the crime should ordinarily emerge
from the inquest report specially when it is in respect of a patent fact. If utensils
were actually at the ghat, the mention thereof could not have been left out
therefrom. This would be so even if the inquest report had been prepared with
half the seriousness required in its preparation. A perusal of the inquest report
reveals that the same was painstakingly recorded, and even minute details have
been recorded therein. It is difficult to state which of the two sides has deposed
correctly and/or which one of them has deposed falsely. All the same, the instant
aspect of the deposition creates a serious doubt about the credibility of the
evidence on the instant factual aspect, irrespective of the significance thereof in
proving the charges.
21. Additionally, the charge-sheet pointedly records that Madhu-accused no.1,
caught hold of the plated hair and neck of Padmini Devi, and Sibi-accused no.2
caught hold of her feet, and forcibly dragged her into the water and suffocated
her thereby cause her death by drowning. This factual position remained
unproved as not a single prosecution witness narrated the said factual position,
so as to establish the manner in which Padmini Devi came to be drowned by the
accused Madhu and Sibi. This issue has been examined from a different
perspective in the next paragraph.
22. It is also essential to properly analyse the statement of Dr.Radhakrishnan
PW20. Dr. Radhakrishnan had expressed in the post mortem certificate dated
9.5.1998, and he had affirmed during the course of his deposition before the
Sessions Court, that the death of Padmini Devi had been caused by drowning.
34
The fact that she had been smothered first and thereafter drowned by the
accused Madhu and Sibi cannot be stated to have been established by the
prosecution. No injury whatsoever was suffered by deceased Padmini Devi
either on her neck or on her feet. Padmini Devi was 47 years old at the time of
occurrence. She would not have easily allowed two drunkards, who were in a
state of intoxication, to carry her away by holding her by her neck and feet as has
been alleged in the charge-sheet. Padmini Devi would have been expected to
fight for her life, consequent upon an assault on her, at the hands of the accused
Madhu and Sibi. Injury nos.1 and 2 referred to by the courts below, so as to infer
smothering, is clearly unacceptable in view of the fact that Dr. Radhakrishnan
PW20, in his cross-examination, clearly asserted, that injury nos.1 and 2 are
possible if a person falls and during the course of that fall the right side of the
face comes in contact with a rough hard surface. Dr. Radhakrishnan PW20 also
stated during his cross-examination, that all the injuries suffered by Padmini Devi
were superficial injuries. In the aforesaid view of the matter, even the medical
evidence produced by the prosecution, does not suitably support the prosecution
story, that the deceased Padmini Devi was, first assaulted by the accused Madhu
and Sibi, and thereafter, drowned. The deceased is alleged to have been
dragged, smothered and forcibly drowned. The instant version of the prosecution
story, is wholly unacceptable, keeping in mind the statement of Dr.Radhakrishna
PW20.
23. The motive for the accused in committing the murder of Padmini Devi is
stated to be theft of her gold ornaments. Madhu-accused no.1 is a labourer, and
35
Sibi-accused no.2 is a toddy trapper. If the motive had been theft, so as to
snatch away the jewellery of Padmini Devi, it is difficult to understand why the
accused only took away the golden chain around the neck of the deceased, and
the six bangles on her right arm, and forsake the earrings on the person of the
deceased. It is relevant to mention, that the factum of the earrings found on the
person of the deceased has been explained in a wishy-washy manner. P.J.
Thomas PW21, Circle Inspector of Police, has specifically deposed on the
recovery, retention and return of the earrings to the family of the deceased. The
statement of PW21 reveals a sorry state of affairs in handling the investigation of
the case in hand. According to the statement of PW21, the earrings were
removed from the dead body of Padmini Devi, by one of the policemen who was
assisting him in the preparation of inquest report on 9.5.1998. There is no
documentary record of this. The earrings were then (according to PW21)
retained by the writer at the police station. This again, without maintaining any
record. On 11.6.1998, the said earrings are stated to have been returned to
Ayyappa Kurup PW2, husband of deceased Padmini Devi. It was also deposed
by PW21, that Ayyappa Kurup PW2 had visited the police station to take back
the earrings. Accordingly, the earrings were returned to him. Yet again, without
maintaining any record. Coupled with the conclusion drawn by us in respect of
the gold chain and the six gold bangles, allegedly recovered at the instance of
accused Madhu and Sibi, we are of the view that it may well be, that the
ornaments were never taken away from the person of the deceased Padmini
Devi. This view comes to our mind because if the motive had been theft of gold
ornaments, then all the gold ornaments would have been taken away, most
36
certainly the earrings which were openly and clearly visible. The accused were
poor persons, for them the earrings alone would have meant a lot. If nothing
else, the earrings would have balanced (to some extent at least) the spoils in the
hands of the accused. It may well be, that the aforesaid ornaments came to be
planted only with the object of solving the case in hand. This aspect of the
matter also creates a serious doubt in the prosecution case.
24. For the reasons recorded by us hereinabove, we are of the view, that the
evidence produced by the prosecution does not, in any way, establish the guilt of
the accused. The prosecution had endeavoured to prove the allegations levelled
against the accused on the basis of circumstantial evidence. As noticed above,
the mainstay of the prosecution evidence is the recovery of the gold ornaments
belonging to the deceased Padmini Devi at the instance of the accused Madhu
and Sibi. We have concluded that the statements made by the accused Madhu
and Sibi (vide Exhibits P-10 and P-9 respectively) cannot be proved against the
accused, or to their detriment. This by itself removes the most vital link in the
chain of events sought to be established by the prosecution against the accused.
Evidence produced to establish the presence of the accused near the place of
occurrence, at or about the time of the commission of the crime has also been
found to be irrelevant. This because, the accused were in any case neighbours
of the deceased Padmini Devi. We have also found, that the theft of the golden
ornaments worn by the deceased Padmini Devi was also doubtful. The
explanation tendered by the prosecution of the earrings worn by the deceased
Padmini Devi when her body was recovered, is also far from satisfactory. From
37
the statement of Dr.Radhakrishnan PW20, and the surrounding facts, it cannot
be positively inferred that the deceased Padmini Devi was first smothered and
then drowned as has been alleged by the prosecution. We have also found
serious contradictions in the deposition of the prosecution witnesses. The
prosecution has failed to establish an unbroken chain of events lending to the
determination, that the inference being drawn from the evidence is the only
inescapable conclusion. In fact in our view the prosecution has not been able to
connect the accused with the alleged crime in any manner whatsoever.
25. For all the reasons recorded by us hereinabove, the appellantaccused/
Madhu, is liable to be acquitted of the charges levelled against him.
Ordered accordingly. He be released forthwith, unless he is required to continue
in detention in some other case.
26. Resultantly, the instant appeal is allowed and the judgments rendered by
the Trial Court, as also, by the High Court convicting the appellant-accused/
Madhu are hereby set aside.
27. During the course of the deliberations recorded by us hereinabove, we
have dealt with the evidence projected against appellant-accused/Madhu. From
our determination it emerged, that the evidence to establish the charges against
his co-accused Sibi was on the same lines. In fact Sibi-accused no.2 was
accused of the allegations for exactly the same reasons, as have weighed with
the courts below against the appellant-accused Madhu. He was also convicted
for the same reasons. We are of the view that if Sibi-accused no.2 had preferred
38
an appeal, the result would have been exactly the same, as it has been in the
present appeal, in respect of the appellant-accused/Madhu. But, is it open for us,
to extend the benefit of acquittal, determined by us in case of the accusedappellant/
Madhu to Sibi-accused no.2 also? In so far as the instant aspect of the
matter is concerned, reference may be made to the judgment rendered by this
Court in Gurucharan Kumar & Anr. vs. State of Rajasthan, (2003) 2 SCC 698,
wherein this Court had observed as under:
“32. As noticed earlier the accused Pravin Kumar, husband of the
deceased Geetu has not preferred an appeal before this Court, on
account of the fact that he has already served out the sentence
imposed against him. However, though we cannot obliterate the
sufferings of Pravin Kumar, we can certainly obliterate the stigma
that attaches to him on account of his conviction for a heinous
offence under Section 304B IPC. This Court has laid down a
judicious principle that even in a case where one of the accused
has not preferred an appeal, or even if his special leave petition is
dismissed, in case relief is granted to the remaining accused and
the case of the accused who has either not appealed or whose
special leave petition has been dismissed, stands on the same
footing, he should not be denied the benefit which is extended to
the other accused. This has been held in Harbans Singh vs. State
of U.P. [(1982) 2 SCC 101], Raja Ram v. State of M.P. [(1994) 2
SCC 568], Dandu Lakshmi Reddy v. State of A.P. [(1999) 7 SCC
69] and Akhil ali Jehangir Ali Sayyed v. State of Maharashtra
[(2003) 2 SCC 708].”
Reference may also be made to the decision rendered by this Court in Pawan
Kumar v. State of Haryana, (2003) 11 SCC 241, wherein this Court has held as
under:
“Apart from the salutary powers exercisable by this Court under
Article 142 of the Constitution for doing complete justice to the
parties, the powers under Article 136 of the Constitution can be
exercised by it in favour of a party even suo motu when the Court is
satisfied that compelling grounds for its exercise exist but it should
39
be used very sparingly with caution and circumspection inasmuch
as only the rarest of rare cases. One of such grounds may be, as it
exists like in the present case, where this Court while considering
appeal of one of the accused comes to the conclusion that
conviction of appealing as well as non-appealing accused both was
unwarranted. Upon the aforesaid conclusion arrived at by the Apex
Court of the land, further detention of the non-appealing accused,
by virtue of the judgment rendered by the High Court upholding his
conviction, being without any authority of law, infringes upon the
right to personal liberty guaranteed to the citizen as enshrined
under Article 21 of the Constitution. In our view, in cases akin to
the present one, where there is either a flagrant violation of
mandatory provision of any statute or any provision of the
Constitution, it is not that this Court has a discretion to exercise its
suo motu power but a duty is enjoined upon it to exercise the same
by setting right the illegality in the judgment of the High Court as it
is well settled that illegality should not be allowed to be perpetuated
and failure by this Court to interfere with the same would amount to
allowing the illegality to be perpetuated. In view of the foregoing
discussion, we are of the opinion that accused Balwinder Singh
alias Binder is also entitled to be extended the same benefit which
we are granting in favour of the appellant.”
In view of the ratio laid down in the two cases referred to above, we are satisfied,
that to do complete justice, it would be just and appropriate to extend the same
benefit as has been extended to the appellant-accused/Madhu, also to Sibiaccused
no.2. Therefore, for exactly the same reasons as have weighed with us
in the instant appeal, to determine the acquittal of the appellant-accused/Madhu,
we hereby order the acquittal of Sibi-accused no.2 as well, even though he has
not preferred an appeal so as to assail the impugned judgment whereby he
stands convicted.
40
28. For the reasons recorded hereinabove, even Sibi-accused no.2 is hereby
acquitted. He be released forthwith, unless he is required to continue in detention
in some other case.
…………………………….J.
(Asok Kumar Ganguly)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 13, 2012.

Supreme Court: Hindu woman entitled to equal property rights. Justice R.M.Lodha & Justice Jagdish Singh Khehar, 12.10.2011.

2011-10-16T18:53:00.002+05:30

Supreme Court: Hindu woman entitled to equal property rights. Justice R.M.Lodha & Justice Jagdish Singh Khehar, 12.10.2011.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8538 OF 2011
(Arising out of SLP (Civil) No. 9586 of 2010)
Ganduri Koteshwaramma & Anr. …. Appellants
Versus
Chakiri Yanadi & Anr. ….Respondents
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The question that arises in this appeal, by special leave,
is: whether the benefits of Hindu Succession (Amendment) Act,
2005 are available to the appellants.
3. The appellants and the respondents are siblings being
daughters and sons of Chakiri Venkata Swamy. The 1st respondent
(plaintiff) filed a suit for partition in the court of Senior Civil Judge,
1
Ongole impleading his father Chakiri Venkata Swamy (1st
defendant), his brother Chakiri Anji Babu (2nd defendant) and his
two sisters – the present appellants – as 3rd and 4th defendant
respectively. In respect of schedule properties ‘A’, ‘C’ and ‘D’ –
coparcenary property – the plaintiff claimed that he, 1st defendant
and 2nd defendant have 1/3rd share each. As regards schedule
property ‘B’—as the property belonged to his mother—he claimed
that all the parties have 1/5th equal share.
4. The 1st defendant died in 1993 during the pendency of
the suit.
5. The trial court vide its judgment and preliminary decree
dated March 19, 1999 declared that plaintiff was entitled to 1/3rd
share in the schedule ‘A’, ‘C’ and ‘D’ properties and further entitled
to 1/4th share in the 1/3rd share left by the 1st defendant. As regards
schedule property ‘B’ the plaintiff was declared to be entitled to 1/5th
share. The controversy in the present appeal does not relate to
schedule ‘B’ property and is confined to schedule ‘A’, ‘C’ and ‘D’
properties. The trial court ordered for separate enquiry as regards
mesne profits.
6. The above preliminary decree was amended on
September 27, 2003 declaring that plaintiff was entitled to equal
2
share along with 2nd, 3rd and 4th defendant in 1/5th share left by the
1st defendant in schedule property ‘B’.
7. In furtherance of the preliminary decree dated March 19,
1999 and the amended preliminary decree dated September 27,
2003, the plaintiff made two applications before the trial court (i) for
passing the final decree in terms thereof; and (ii) for determination of
mesne profits. The trial court appointed the Commissioner for
division of the schedule property and in that regard directed him to
submit his report. The Commissioner submitted his report.
8. In the course of consideration of the report submitted by
the Commissioner and before passing of the final decree, the Hindu
Succession (Amendment) Act, 2005 (for short, ‘2005 Amendment
Act’) came into force on September 9, 2005. By 2005 Amendment
Act, Section 6 of the Hindu Succession Act, 1956 (for short ‘1956
Act’) was substituted. Having regard to 2005 Amendment Act which
we shall refer to appropriately at a later stage, the present
appellants (3rd and 4th defendant) made an application for passing
the preliminary decree in their favour for partition of schedule
properties ‘A’, ‘C’ and ‘D’ into four equal shares; allot one share to
each of them by metes and bounds and for delivery of possession.
3
9. The application made by 3rd and 4th defendant was
contested by the plaintiff. Insofar as 2nd defendant is concerned he
admitted that the 3rd and 4th defendant are entitled to share as
claimed by them pursuant to 2005 Amendment Act but he also
submitted that they were liable for the debts of the family.
10. The trial court, on hearing the parties, by its order dated
June 15, 2009, allowed the application of the present appellants (3rd
and 4th defendant) and held that they were entitled for re-allotment of
shares in the preliminary decree, i.e., they are entitled to 1/4th share
each and separate possession in schedule properties ‘A’, ‘C’ and ‘D’.
11. The plaintiff (present respondent no. 1) challenged the
order of the trial court in appeal before the Andhra Pradesh High
Court. The Single Judge by his order dated August 26, 2009
allowed the appeal and set aside the order of the trial court.
12. 1956 Act is an Act to codify the law relating to intestate
succession among Hindus. This Act has brought about important
changes in the law of succession but without affecting the special
rights of the members of a Mitakshara Coparcenary. The Parliament
felt that non-inclusion of daughters in the Mitakshara Coparcenary
property was causing discrimination to them and, accordingly,
decided to bring in necessary changes in the law. The statement of
4
objects and reasons of the 2005 Amendment Act, inter alia, reads as
under :
“…….The retention of the Mitakshara coparcenary property
without including the females in it means that the females
cannot inherit in ancestral property as their male
counterparts do. The law by excluding the daughter from
participating in the coparcenary ownership not only
contributes to her discrimination on the ground of gender
but also has led to oppression and negation of her
fundamental right of equality guaranteed by the
Constitution. Having regard to the need to render social
justice to women, the States of Andhra Pradesh, Tamil
Nadu, Karnataka and Maharashtra have made necessary
changes in the law giving equal right to daughters in Hindu
Mitakshara coparcenary property.”
13. With the above object in mind, the Parliament substituted
the existing Section 6 of the 1956 Act by a new provision vide 2005
Amendment Act. After substitution, the new Section 6 reads as
follows :
“6. Devolution of interest in coparcenary property.—
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a Joint Hindu family
governed by the Mitakshara law, the daughter of a
coparcener shall,—
(a) by birth become a coparcener in her own right in the
same manner as the son;
(b) have the same rights in the coparcenary property as
she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the
said coparcenary property as that of a son,
5
and any reference to a Hindu Mitakshara coparcener shall
be deemed to include a reference to a daughter of a
coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property which
had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other
law for the time being in force in, as property capable of
being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005, his interest in
the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken
place and,—
(a) the daughter is allotted the same share as is allotted
to a son;
(b) the share of the pre-deceased son or a predeceased
daughter, as they would have got had
they been alive at the time of partition, shall be
allotted to the surviving child of such pre-deceased
son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a predeceased
son or of a pre-deceased daughter, as
such child would have got had he or she been alive
at the time of the partition, shall be allotted to the
child of such pre-deceased child of the predeceased
son or a pre-deceased daughter, as the
case may be.
Explanation.— For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been
6
allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he
was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognise any right
to proceed against a son, grandson or great-grandson for
the recovery of any debt due from his father, grandfather or
great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment)
Act, 2005, nothing contained in this sub-section shall affect
—
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction
of, any such debt, and any such right or alienation
shall be enforceable under the rule of pious
obligation in the same manner and to the same
extent as it would have been enforceable as if the
Hindu Succession (Amendment) Act, 2005 had not
been enacted.
Explanation.—For the purposes of clause (a), the
expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as
the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment)
Act, 2005.
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December, 2004.
Explanation. —For the purposes of this section “partition”
means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908
(16 of 1908) or partition effected by a decree of a court.”
7
14. The new Section 6 provides for parity of rights in the
coparcenary property among male and female members of a joint
Hindu family on and from September 9, 2005. The Legislature has
now conferred substantive right in favour of the daughters. According
to the new Section 6, the daughter of a copercener becomes a
coparcener by birth in her own rights and liabilities in the same
manner as the son. The declaration in Section 6 that the daughter of
the coparcener shall have same rights and liabilities in the
coparcenary property as she would have been a son is unambiguous
and unequivocal. Thus, on and from September 9, 2005, the daughter
is entitled to a share in the ancestral property and is a coparcener as if
she had been a son.
15. The right accrued to a daughter in the property of a joint
Hindu family governed by the Mitakshara Law, by virtue of the 2005
Amendment Act, is absolute, except in the circumstances provided in
the proviso appended to sub-section (1) of Section 6. The excepted
categories to which new Section 6 of the 1956 Act is not applicable
are two, namely, (i) where the disposition or alienation including any
partition has taken place before December 20, 2004; and (ii) where
testamentary disposition of property has been made before
December 20, 2004. Sub- section (5) of Section 6 leaves no room for
8
doubt as it provides that this Section shall not apply to the partition
which has been effected before December 20, 2004. For the
purposes of new Section 6 it is explained that `partition’ means any
partition made by execution of a deed of partition duly registered
under the Registration Act 1908 or partition effected by a decree of a
court. In light of a clear provision contained in the Explanation
appended to sub-section (5) of Section 6, for determining the nonapplicability
of the Section, what is relevant is to find out whether the
partition has been effected before December 20, 2004 by deed of
partition duly registered under the Registration Act, 1908 or by a
decree of a court. In the backdrop of the above legal position with
reference to Section 6 brought in the 1956 Act by the 2005
Amendment Act, the question that we have to answer is as to
whether the preliminary decree passed by the trial court on March 19,
1999 and amended on September 27, 2003 deprives the appellants
of the benefits of 2005 Amendment Act although final decree for
partition has not yet been passed.
16. The legal position is settled that partition of a Joint Hindu
family can be effected by various modes, inter-alia, two of these
modes are (one) by a registered instrument of a partition and (two) by
a decree of the court. In the present case, admittedly, the partition
9
has not been effected before December 20, 2004 either by a
registered instrument of partition or by a decree of the court. The
only stage that has reached in the suit for partition filed by the
respondent no.1 is the determination of shares vide preliminary
decree dated March 19, 1999 which came to be amended on
September 27, 2003 and the receipt of the report of the
Commissioner.
17. A preliminary decree determines the rights and interests
of the parties. The suit for partition is not disposed of by passing of
the preliminary decree. It is by a final decree that the immovable
property of joint Hindu family is partitioned by metes and bounds.
After the passing of the preliminary decree, the suit continues until
the final decree is passed. If in the interregnum i.e. after passing of
the preliminary decree and before the final decree is passed, the
events and supervening circumstances occur necessitating change in
shares, there is no impediment for the court to amend the preliminary
decree or pass another preliminary decree redetermining the rights
and interests of the parties having regard to the changed situation.
We are fortified in our view by a 3- Judge Bench decision of this
10
Court in the case of Phoolchand and Anr. Vs. Gopal Lal 1 wherein
this Court stated as follows:
“We are of opinion that there is nothing in the Code of Civil
Procedure which prohibits the passing of more than one
preliminary decree if circumstances justify the same and
that it may be necessary to do so particularly in partition
suits when after the preliminary decree some parties die
and shares of other parties are thereby augmented. . . . ..
So far therefore as partition suits are concerned we have
no doubt that if an event transpires after the preliminary
decree which necessitates a change in shares, the court
can and should do so; ........... there is no prohibition in the
Code of Civil Procedure against passing a second
preliminary decree in such circumstances and we do not
see why we should rule out a second preliminary decree in
such circumstances only on the ground that the Code of
Civil Procedure does not contemplate such a possibility. . .
for it must not be forgotten that the suit is not over till the
final decree is passed and the court has jurisdiction to
decide all disputes that may arise after the preliminary
decree, particularly in a partition suit due to deaths of some
of the parties. . . . .a second preliminary decree can be
passed in partition suits by which the shares allotted in the
preliminary decree already passed can be amended and if
there is dispute between surviving parties in that behalf and
that dispute is decided the decision amounts to a decree….
………… .”
18. This Court in the case of S. Sai Reddy vs. S. Narayana
Reddy and Others2 had an occasion to consider the question
identical to the question with which we are faced in the present
appeal. That was a case where during the pendency of the
proceedings in the suit for partition before the trial court and prior to
1 AIR 1967 SC 1470
2 (1991) 3 SCC 647
11
the passing of final decree, the 1956 Act was amended by the State
Legislature of Andhra Pradesh as a result of which unmarried
daughters became entitled to a share in the joint family property.
The unmarried daughters respondents 2 to 5 therein made
application before the trial court claiming their share in the property
after the State amendment in the 1956 Act. The trial court by its
judgment and order dated August 24, 1989 rejected their application
on the ground that the preliminary decree had already been passed
and specific shares of the parties had been declared and, thus, it
was not open to the unmarried daughters to claim share in the
property by virtue of the State amendment in the 1956 Act. The
unmarried daughters preferred revision against the order of the trial
court before the High Court. The High Court set aside the order of
the trial court and declared that in view of the newly added Section
29-A, the unmarried daughters were entitled to share in the joint
family property. The High Court further directed the trial court to
determine the shares of the unmarried daughters accordingly. The
appellant therein challenged the order of the High Court before this
Court. This Court considered the matter thus;
“………A partition of the joint Hindu family can be effected by
various modes, viz., by a family settlement, by a registered
instrument of partition, by oral arrangement by the parties, or
by a decree of the court. When a suit for partition is filed in a
12
court, a preliminary decree is passed determining shares of
the members of the family. The final decree follows,
thereafter, allotting specific properties and directing the
partition of the immovable properties by metes and bounds.
Unless and until the final decree is passed and the allottees
of the shares are put in possession of the respective
property, the partition is not complete. The preliminary
decree which determines shares does not bring about the
final partition. For, pending the final decree the shares
themselves are liable to be varied on account of the
intervening events. In the instant case, there is no dispute
that only a preliminary decree had been passed and before
the final decree could be passed the amending Act came into
force as a result of which clause (ii) of Section 29-A of the
Act became applicable. This intervening event which gave
shares to respondents 2 to 5 had the effect of varying shares
of the parties like any supervening development. Since the
legislation is beneficial and placed on the statute book with
the avowed object of benefitting women which is a vulnerable
section of the society in all its stratas, it is necessary to give a
liberal effect to it. For this reason also, we cannot equate the
concept of partition that the legislature has in mind in the
present case with a mere severance of the status of the joint
family which can be effected by an expression of a mere
desire by a family member to do so. The partition that the
legislature has in mind in the present case is undoubtedly a
partition completed in all respects and which has brought
about an irreversible situation. A preliminary decree which
merely declares shares which are themselves liable to
change does not bring about any irreversible situation.
Hence, we are of the view that unless a partition of the
property is effected by metes and bounds, the daughters
cannot be deprived of the benefits conferred by the Act. Any
other view is likely to deprive a vast section of the fair sex of
the benefits conferred by the amendment. Spurious family
settlements, instruments of partitions not to speak of oral
partitions will spring up and nullify the beneficial effect of the
legislation depriving a vast section of women of its benefits”.
19. The above legal position is wholly and squarely applicable
to the present case. It surprises us that the High Court was not
13
apprised of the decisions of this Court in Phoolchand1 and S. Sai
Reddy2. High Court considered the matter as follows:
“In the recent past, the Parliament amended Section
6 of the Hindu Succession Act (for short ‘the Act’),
according status of coparceners to the female members of
the family also. Basing their claim on amended Section 6
of the Act, the respondents 1 and 2 i.e., defendants 3 and 4
filed I.A. No. 564 of 2007 under Order XX Rule 18 of
C.P.C., a provision, which applies only to preparation of
final decree. It hardly needs an emphasis that a final
decree is always required to be in conformity with the
preliminary decree. If any party wants alteration or change
of preliminary decree, the only course open to him or her is
to file an appeal or to seek other remedies vis-à-vis the
preliminary decree. As long as the preliminary decree
stands, the allotment of shares cannot be in a manner
different from what is ordained in it.”
20. The High Court was clearly in error in not properly
appreciating the scope of Order XX Rule 18 of C.P.C. In a suit for
partition of immovable property, if such property is not assessed to
the payment of revenue to the government, ordinarily passing of a
preliminary decree declaring the share of the parties may be required.
The court would thereafter proceed for preparation of final decree. In
Phoolchand1, this Court has stated the legal position that C.P.C.
creates no impediment for even more than one preliminary decree if
after passing of the preliminary decree events have taken place
necessitating the readjustment of shares as declared in the
preliminary decree. The court has always power to revise the
14
preliminary decree or pass another preliminary decree if the situation
in the changed circumstances so demand. A suit for partition
continues after the passing of the preliminary decree and the
proceedings in the suit get extinguished only on passing of the final
decree. It is not correct statement of law that once a preliminary
decree has been passed, it is not capable of modification. It needs no
emphasis that the rights of the parties in a partition suit should be
settled once for all in that suit alone and no other proceedings.
21. Section 97 of C. P.C. that provides that where any party
aggrieved by a preliminary decree passed after the commencement
of the Code does not appeal from such decree, he shall be precluded
from disputing its correctness in any appeal which may be preferred
from the final decree does not create any hindrance or obstruction in
the power of the court to modify, amend or alter the preliminary
decree or pass another preliminary decree if the changed
circumstances so require.
22. It is true that final decree is always required to be in
conformity with the preliminary decree but that does not mean that a
preliminary decree, before the final decree is passed, cannot be
altered or amended or modified by the trial court in the event of
15
changed or supervening circumstances even if no appeal has been
preferred from such preliminary decree.
23. The view of the High Court is against law and the
decisions of this Court in Phoolchand1 and S.Sai Reddy2.
24. We accordingly allow this appeal; set aside the impugned
judgment of the High Court and restore the order of the trial court
dated June 15, 2009. The trial court shall now proceed for the
preparation of the final decree in terms of its order dated June 15,
2009. No costs.
………………………J
(R.M. LODHA)
…. …………………………….J.
(JAGDISH SINGH KHEHAR )
NEW DELHI
OCTOBER 12, 2011
16

Delhi Court: Husband, in-laws acquitted in dowry harassment case Dowry harassment law misused for extortion.16.09.2011

2011-10-14T20:43:00.001+05:30

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

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

Originally posted by manthan.

CIC: Reasons to be given when RTI denied. 2011

2011-10-12T12:49:00.001+05:30

CIC: Reasons to be given when RTI denied. 2011

CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi – 110067
Tel: +91-11-26161796

Decision No. CIC/SM/A/2011/000309/SG/12557
Appeal No. CIC/SM/A/2011/000309/SG

Relevant Facts emerging from the Appeal:

Appellant : Mr. P. C Srivastava,
A 3/3, Vasant Vihar,
New Delhi

Respondent : PIO & Superintendent of Police,
Economic Offences Wing,
Central Bureau of Investigation,
III Floor, A- Wing, Rajaji Bhawan,
Besant Nagar, Chennai- 600090

RTI application filed on : 06/07/2010
PIO replied on : 28/07/2010
First Appeal filed on : 09/08/2010
FAA order of : 31/08/2010
Second Appeal received on : 08/02/2011
The Appellant has sought information about the charge sheet filed against RIL by CBI in the Call Re-routing case.
S. No. Information sought Reply of Public Information Officer (PIO)
1. Date on which case was registered against RIL. 30/08/2006
2. Who was the Investigating Officer? (a) Shri Syed Bazlullah, DSP; and
(b) Shri K. Jayaraman,SP
3. Date on which investigation was completed. 29/04/2010
4. Date on which charge sheet was filed in the Chennai Court.
25/06/2010
5. Why were names of Mukesh and Anil Ambani not included in the charge sheet ?
As the information sought in the case would impede the process of prosecution of offenders, the same is denied under Section 8(1)(h) of the RTI Act.
6. The entire reasons may be given to me. -do-
7. Whether opinion was sought from the Director (Prosecution), CBI to exclude the names of Mukesh and Anil Ambani from the charge sheet.
The legal opinion is sought by an officer in his fiduciary relationship with the Law Officer and the same cannot be disclosed to a third party and hence denied under Sections 8(1)(e) and 8(1)(h) of the RTI Act.
8. If so, details of opinion given by the Director (Prosecution), CBI may be given.

Grounds for First Appeal:
Complete information not provided. The Appellant wanted information about why the owners Mr.
Mukesh and Anil Ambani were protected from the prosecution charges.
Order of First Appellate Authority (FAA):
S.No. Information sought Reply
1. The reason why Mr. Mukesh D.Ambani who was chairman of the company at the time the offence was committed has not been named in the charge sheet as an accused?
It is to inform (you) that the case was finalised after obtaining
legal opinion and evaluation of evidence. The information
sought was confidential and cannot be disclosed as it would
impede the process of prosecution. Hence, rejected under
Section 8(1)(h) of the RTI Act.
Grounds for Second appeal:
Dissatisfied with the order of the FAA.
Relevant Facts emerging during hearing held on May 23, 2011:
The following were present:
Appellant: Mr. P. C Srivastava;
Respondent: Ms. Thenmoezhi, PIO & SP through video conference.
“The Appellant stated that he wanted information on queries 5 and 6 of the RTI application. He further
stated that the ruling of the High Court of Delhi (the “Delhi HC”) in Crl.M.C. 1343 of 2007 on
08/10/2010 backed his plea that the information sought can be revealed.
On the other hand, the PIO contended that the information sought under queries 5 and 6 was exempted
under Section 8(1)(h) of the RTI Act. The PIO stated that the case pertained to Reliance Infocom Limited
(“RIL”) and that CBI was prosecuting certain directors of the company under Section 120 B of the IPC
read with Sections 20/ 20(A) /21 /25(C) /27 of the Indian Telegraph Act, 1885 and Sections 65 /66 /85 of
the IT Act, 2000 and other substantive offences. The PIO stated that the investigation was over. The PIO
further stated that charge sheet had been filed and prosecution was underway in CC No. 2938/10 in the
Court of ACMM, Chennai.
The Commission asked the PIO whether reasons for not prosecuting Mr. Mukesh Ambani and Mr. Anil
Ambani were available on record. The PIO, in response, stated that CBI had decided to prosecute certain
directors and the reasons for not prosecuting Mr. Mukesh Ambani and Mr. Anil Ambani were on record.
However, disclosing such information would provide clues to other persons accused in the said case by
which they would be able to argue why they should also not be charged.
The Commission reserved the order at the hearing held on 23/05/2011.” Decision announced on 26 May 2011:
The Appellant, under queries 5 and 6 of the RTI application, has sought the reasons why names of Mr. Mukesh Ambani and Mr. Anil Ambani were not included in the charge sheet in the relevant case. The PIO has stated that though the reasons were available on record, disclosure of the same was exempted under Section 8(1)(h) of the RTI Act. It must be noted that as per Section 19(5) of the RTI Act, in any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.
Section 8(1)(h) of the RTI Act provides as follows:
“8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this
Act, there shall be no obligation to give any citizen,-

(h) information which would impede the process of investigation or apprehension or
prosecution of offenders;”
Section 8(1)(h) of the RTI Act exempts disclosure of information which would impede the process of
investigation or apprehension or prosecution of offenders. Merely because the process of investigation or
prosecution of offenders is continuing, the bar stipulated under Section 8(1)(h) of the RTI Act is not
attracted; it must be clearly established by the PIO that disclosure of the information would impede the
process of investigation or apprehension or prosecution of offenders. Ravindra Bhat, J. of the Delhi HC in
Bhagat Singh v. CIC W.P. (C) No. 3114/2007 has observed as follows:
“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section
8, the exception. Section 8 being a restriction on this fundamental right, must therefore to be
strictly construed. It should not be interpreted in manner as to shadow the very right itself.
Under Section 8, exemption from releasing information is granted if it would impede the process
of investigation or the prosecution of the offenders. It is apparent that the mere existence of an
investigation process cannot be a ground for refusal of the information; the authority
withholding information must show satisfactory reasons as to why the release of such
information would hamper the investigation process. Such reasons should be germane, and the
opinion of the process being hampered should be reasonable and based on some material. Sans
this consideration, Section 8(1)(h) and other such provisions would become the haven for
dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal
interpretation. The contextual background and history of the Act is such that the exemptions,
outlined in Section 8, relieving the authorities from the obligation to provide information,
constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption
provisions have to be construed in their terms; there is some authority supporting this view (See
Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001
(7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different
approach would result in narrowing the rights and approving a judicially mandated class of
restriction on the rights under the Act, which is unwarranted.” (Emphasis added)
It is clear from the ruling of Ravindra Bhat, J. that the PIO, who is denying information under Section
8(1)(h) of the RTI Act, must show satisfactory reasons as to why disclosure of such information would
impede the process of investigation or apprehension or prosecution of offenders. These reasons must be
relevant and the opinion of the PIO that by disclosing the information prosecution of offenders shall be
impeded should be reasonable. The opinion of the PIO must be based on some material and cannot be a
mere apprehension not supported by any evidence.
The right to information is a fundamental right of the citizens. The RTI Act was enacted with the spirit of
ensuring transparency and access to information giving citizens the right to information. According to the
RTI Act, information may be exempted from disclosure in accordance with Sections 8 and 9 only and no
other exemptions can be claimed while rejecting a demand for disclosure. The RTI Act is premised on
disclosure being the norm, and refusal, the exception. It is clearly laid down in the RTI Act that the onus
to prove that a denial of a request for information was justified shall be on the PIO who denied the
request. Therefore, while denying a request for information under the RTI Act, the PIO must have cogent
reasons for doing so which must necessarily come within the purview of Sections 8 and 9 of the RTI Act.
In the instant case, the PIO has relied on Section 8(1)(h) of the RTI Act and argued that disclosing such
information would provide clues to other persons accused in the relevant case by which they would be
able to argue why they should also not be charged and this would impede the prosecution of offenders.
The argument raised by the PIO to justify the denial of information on the basis of Section 8(1)(h) of the

RTI Act appears to be nothing more than a mere apprehension on her part. The PIO has failed to produce
or place reliance on any cogent evidence or material before the Commission on the basis of which she can
establish that disclosure of information would impede the prosecution of offenders. In other words, the
PIO has failed to discharge the burden placed upon her under Section 19(5) of the RTI Act to prove that
the denial of information under Section 8(1)(h) of the RTI Act was justified. Moreover, this Commission
is unable to understand how lack of evidence against a person can be used by another person against
whom evidence has in fact been found leading to filing of charge sheet against the latter. On this basis, the
Commission rejects the contention of the PIO that the information sought was exempted under Section
8(1)(h) of the RTI Act. The PIO has not been able justify how disclosing the information would impede
the process of prosecution of offenders.
The Appeal is allowed.
The PIO is directed to provide the information as available on record on
queries 05 and 06 to the Appellant before 20 June 2011.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
26 May 2011
(In any correspondence on this decision, mention the complete decision number.)(SG)

Husband lost job because of complaint, maintenance denied u/s12 DV. 24.05.11.

2011-10-05T22:08:00.002+05:30

Husband lost job because of complaint, maintenance denied.

IN THE COURT OF MS. KIRAN GUPTA, METROPOLITAN MAGISTRATE, MAHILA COURT,
CENTRAL DISTRICT, DELHI

CC no. 593/6/09
PS Patel Nagar
U/s 12 of D.V. Act

Harpreet Kaur …..complainant

Vs.

Sh. Dilvinder Singh Bedi …..respondent

ORDER ON INTERIM APPLICATION

Vide this order, I shall dispose off the interim application filed by the complainant u/s 23(2) of D.V. Act filed along with the petition u/s 12 of D.V. Act. Brief Facts of the petition are stated as under:

The complainant was married with the respondent on 25.01.09 according to sikh rites and ceremonies and both of them resided together as husband and wife at matrimonial house bearing no. 2749/13, Ground Floor,Ranjit Nagar, New Delhi which is the house where they last resided together.
It is stated that the respondent no. 1 is doing a job in Kingfisher airlines and earning Rs. 40,000 to Rs. 50,000/- per month and has no liability. The petitioner by way of present petition has prayed for esidence rights in the shared household bearing no. 2749/13, Ground floor, Ranjit Nagar, New Delhi or in the alternate accommodation or rent @ Rs. 4,000 to Rs. 5,000/- per month. She has further prayed for maintenance @ Rs. 15,000/- per month.

Detailed reply has been filed by the respondent no. 1 to 3 wherein the respondent has denied all the allegations as alleged in the petition and has stated that the complainant is working for the last 5 years at the auto parts show room namely Auto Emporium, Karol Bagh and getting salary of Rs. 20,000/- per month. It is further stated that respondent no. 1 is not working with Kingfisher Airlines at present.

Detailed rejoinder has been filed by the complainant wherein she has admitted that she worked in showroom as part time employee and draw salary below Rs. 7,000/- per month. She has further stated that since April 2010, she is regular job holder.

Complainant has denied all the allegations as alleged in the reply and has reiterated the entire facts as stated in the petition.Heard arguments on behalf of both the parties and perused the file.

During the arguments, it is submitted by the counsel for respondent that the respondent no. 1 is no more working with Kingfisher Airlines as he has been forcefully made to resign by the company due to the constant complaints made by the complainant. It is further argued that the alleged shared house hold is in the name of mother of the respondent no. 1.in support of his arguments, counsel has placed on record the copy of relinquishment deed and copy of e-mail in respect of job status of the respondent no.1.
It is argued by the counsel for complainant that the complainant is doing a part time job and is earning very less. At this stage it is submitted that some amount may be granted to the complainant for the alternate accommodation or she may be allowed to reside in the shared house hold.

As per the relinquishment deed, the shared house hold is in the name of the mother in law of the complainant, hence in view of the law laid down in S.R. Batra Vs. Taruna Batra, the complainant has no right in the said shared house hold, accordingly her plea for right for residence in the shared house hold is dismissed. As regards the amount of maintenance,admittedly the complainant is doing a part time job and is earning certain amount which has not been disclosed in the petition, hence, since the complainant is already working, no amount of maintenance can be awarded to her. The respondent is stated to be unemployed at present and on the other hand, the complainant is working, hence the husband cannot be forced to pay the amount for the alternate accommodation for the complainant at this stage. The interim application is accordingly disposed off.

Put up for CE on 24.05.11

Supreme Court: Presence of accuser not required under section 313 Crpc, 11.10.2000, Basavaraj R. Patil vs State Of Karnataka

2011-10-05T14:27:00.004+05:30

SUPREME COURT: Presence of accuser not required under section 313 Crpc, 11.10.2000, Basavaraj R. Patil And Others vs State Of Karnataka And Others, Justice S.N.Variava, K.T.Thomas

PETITIONER:
BASAVARAJ R. PATIL AND OTHERS
Vs.
RESPONDENT:
STATE OF KARNATAKA AND OTHERS
DATE OF JUDGMENT: 11/10/2000
BENCH:
S.N.Variava, K.T.Thomas
JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......T..J
J U D G M E N T THOMAS, J. Leave granted. When a
criminal court completes prosecution evidence (other than in
summons cases) is it indispensably mandatory that the
accused himself should be questioned? Can not the court
allow the advocate to answer such questions on behalf of the
accused at least in some exigent conditions? A two Judge
Bench of this Court has held in Usha K. Pillai vs. Raj K.
Srinivas & ors. {1993(3) SCR 467} that there is no
alternative to it permissible under law. When such an issue
arose in this case before this Court, a Bench of two Judges
made a reference to a larger Bench for reconsideration of
the legal position stated in Usha K. Pillai (supra).
The aforesaid question arose in this case from the
following factual background: First appellant a software
engineer (now stationed in USA) is the husband of second
respondent Ms. Arundathi. Their marriage was solemnised in
November 1992 and a female child was born to them. But
eventually their connubial life passed through bad weather
and the situation reached a stage when Arundathi moved a
Judicial Magistrate of First Class for maintenance allowance
from her husband. An order in her favour was passed by the
said magistrate under Section 125 of the Code of Criminal
Procedure (for short the Code).
On 10.3.1993, Arundathi lodged a complaint with the
police alleging, inter alia, that her husband and his sister
(Kumari Jaya second appellant) and their parents had
ill-treated Arundathi for not bringing more dowry; and that
she was pestered with persistent demand for more amount of
dowry. The police conducted investigation on the said
complaint and laid a charge-sheet against both the
appellants and their parents. The trial court discharged
the mother of the appellants at the initial stage itself and
framed a charge against the appellants and their father for
offences under Section 3 and 4 of the Dowry Prohibition Act
and also under Section 498-A of the Indian Penal Code.
Prosecution examined five witnesses and closed the
evidence. When the next stage for examination of the
accused under Section 313 of the Code reached the trial
court passed the following proceedings:
Evidence closed and statement under Sec/313 Cr.P.C.
was kept ready to give opportunity to the accused as
prescribed under Sec.313 Cr.P.C. Statement of A-2 father
recorded who denied every circumstance, but did not add any
further statement. The counsel for the accused filed
application for dispensing with the questioning of A-1 &
A-4. As A-1 is in America and A-4 is a student studying in
Gadag, the counsel has endorsed on their statement that A-1
and A-4 have nothing to say by way of their statements.
Considering the reality, A-1 has to come from America the
case will unnecessarily be delayed. Hence, on the said
endorsement the counsel for the accused was given the
opportunity to make statement for A-1 and A-4 and their
physical presence is dispensed with. The case is posted for
argument.
The trial magistrate thereafter proceeded to hear the
arguments and finally passed a judgment acquitting all the
accused of the offences charged. Arundathi then filed a
revision before the High Court challenging the aforesaid
order of the acquittal. A Single Judge of the High Court
heard the revision and learned Judge found that as per the
decision of this Court in Usha K. Pillai (1993 (3) SCR
467), trial court has no other alternative and has no
discretion to dispense with the examination of the accused
personally under Section 313 of the Code. Hence the learned
Single Judge set aside the order of acquittal passed by the
trial court and remitted the case to the trial court with a
direction to dispose it of afresh after examining the three
accused under Section 313 of the Code.
The father of the appellants passed away in the
meanwhile. Hence this appeal was filed by the remaining
accused who are the husband and sister-in-law of Arundathi.
One of the contentions raised by the appellants is that if
the court did not put questions under Section 313 of the
Code there is no reason for the complainant to be aggrieved
thereof because the prejudice can be caused only to the
accused due to non-compliance with the said provision. Next
contention is more important and that was pressed into
service here, that no criminal court can be rendered
absolutely powerless to deal with a situation like this,
i.e. if the accused is in such a far away country and when
he has to incur a whopping expenditure and undertake a
tedious long distance journey solely for the purpose of
answering the court questions he himself pleaded that his
counsel may be allowed to answer such questions on his
behalf.
We are not inclined to deal with the first contention
in this case because the High Court interfered with the
order in exercise of its revisional jurisdiction. Such
jurisdiction can be invoked even suo motu and therefore it
is immaterial whether the power of the High Court was
exercised on a motion made by the complainant. Now, for
dealing with the second contention we may extract Section
313 of the Code:
313. Power to examine the accused.- (1) In every
inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him, the Court- (a) may at any stage,
without previously warning the accused, put such questions
to him as the Court considers necessary; (b) shall, after
the witnesses for the prosecution have been examined and
before he is called on for his defence, question him
generally on the case: Provided that in a summons-case,
where the Court has dispensed with the personal attendance
of the accused, it may dispense with his examination under
clause (b). (2) No oath shall be administered to the
accused when he is examined under sub- section (1). (3) The
accused shall not render himself liable to punishment by
refusing to answer such question, or by giving false answers
to them. (4) The answers given by the accused may be taken
into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to
show he has committed.
The forerunner of the said provision in the Code of
Criminal Procedure 1898 (for short the old Code) was
Section 342 therein. It was worded thus:
342. (1) For the purpose of enabling the accused to
explain any circumstances appearing in the evidence against
him, the Court may, at any stage of any inquiry or trial,
without previously warning the accused, put such questions
to him as the Court considers necessary, and shall, for the
purpose aforesaid, question him generally on the case after
the witnesses for the prosecution have been examined and
before he is called on for his defence. (2) The accused
shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them;
but the Court and the jury (if any) may draw such inference
from such refusal or answers as it thinks just. (3) The
answers given by the accused may be taken into consideration
in such inquiry or trial, and put in evidence for or against
him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has
committed. (4) No oath shall be administered to the accused
when he is examined under sub- section (1).
Dealing with the position as the Section remained in
the original form under the old Code, a three Judge Bench of
this Court (Fazal Ali, Mahajan and Bose, JJ) interpreted the
section in Hate Singh Bhagat Singh vs. State of Madhya
Bharat (AIR 1953 SC 468) that the statements of the accused
recorded by committal magistrate and the Sessions Judge are
intended in India to take the place of what in England and
in America he would be free to state in his own way in the
witness box; they have to be received in evidence and
treated as evidence and be duly considered at the trial.
Parliament, thereafter, introduced Section 342A in the
old Code (which corresponds to Section 315 of the present
Code) by which permission is given to an accused to offer
himself to be examined as a witness if he so chose.
In Bibhuti Bhusan Das Gupta & anr. vs. State of West
Bengal {1969(2) SCR 104}, another three Judge Bench (Sikri,
Bachawat and Hegde, JJ) dealing with the combined operation
of Section 342 and 342A of the old Code made the following
observations: Under Section 342A only the accused can give
evidence in person and his pleaders evidence cannot be
treated as his. The answers of the accused under s.342 is
intended to be a substitute for the evidence which he can
give as a witness under sec. 342A . The privilege and the
duty of answering questions under sec. 342 can not be
delegated to a pleader. No doubt the form of the summons
show that the pleader may answer the charges against the
accused, but in so answering the charges, he cannot do what
only the accused can do personally. The pleader may be
permitted to represent the accused while the prosecution
evidence is being taken. But at the close of the
prosecution evidence the accused must be questioned and his
pleader cannot be examined in his place.
The Law Commission in its 41st Report considered the
aforesaid decisions and also various other points of view
highlighted by legal men and then made the report after
reaching the conclusion that-
(i) in summons cases where the personal attendance of
the accused has been dispensed with, either under section
205 or under section 540A, the court should have a power to
dispense with his examination; and (ii) In other cases,
even where his personal attendance has been dispensed with,
the accused should be examined personally.
The said recommendation has been followed up by the
Parliament and Section 313 of the Code, as is presently
worded, is the result of it. It would appear prima facie
that the court has discretion to dispense with the physical
presence of an accused during such questioning only in
summons cases and in all other cases it is incumbent on the
Court to question the accused personally after closing
prosecution evidence. Nonetheless, the Law Commission was
conscious that the rule may have to be relaxed eventually,
particularly when there is improvement in literacy and legal
aid facilities in the country. This thinking can be
discerned from the following suggestion made by the Law
Commission in the same Report:
We have, after considering the various aspects of the
matter as summarized above, come to the conclusion that
section 342 should not be deleted. In our opinion, the
stage has not yet come for its being removed from the
statute book. With further increase in literacy and with
better facilities for legal aid, it may be possible to take
that step in the future.
The position has to be considered in the present set
up, particularly after the lapse of more than a quarter of a
century through which period revolutionary changes in the
technology of communication and transmission have taken
place, thanks to the advent of computerisation. There is
marked improvement in the facilities for legal aid in the
country during the preceding twenty-five years. Hence a
fresh look can be made now. We are mindful of the fact that
a two Judge Bench in Usha K. Pillai (supra) has found that
the examination of an accused personally can be dispensed
with only in summons case. Their Lordships were considering
a case where the offence involved was Section 363 of the
IPC. The two Judge Bench held thus:
A warrant case is defined as one relating to an
offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. Since an
offence under section 363 IPC is punishable with
imprisonment for a term exceeding two years it is a
warrant-case and not a summons-case. Therefore, even in
cases where the court has dispensed with the personal
attendance of the accused under section 205(1) or section
317 of the Code, the court cannot dispense with the
examination of the accused under clause (b) of section 313
of the Code because such examination is mandatory.
Contextually we cannot bypass the decision of a three
Judge Bench of this Court in Shivaji Sahabrao Bobade & anr.
vs. State of Maharashtra & anr. {1973(2) SCC 793} as the
Bench has widened the sweep of the provision concerning
examination of the accused after closing prosecution
evidence. Learned Judges in that case were considering the
fallout of omission to put to the accused a question on a
vital circumstance appearing against him in the prosecution
evidence. The three Judge Bench made the following
observations therein:
It is trite law, nevertheless fundamental, that the
prisoners attention should be drawn to every inculpatory
material so as to enable him to explain it. This is the
basic fairness of a criminal trial and failures in this area
may gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has flowed. However,
where such an omission has occurred it does not ipso facto
vitiate the proceedings and prejudice occasioned by such
defect must be established by the accused. In the event of
evidentiary material not being put to the accused, the Court
must ordinarily eschew such material from consideration. It
is also open to the appellate court to call upon the counsel
for the accused to show what explanation the accused has as
regards the circumstances established against him but not
put to him and if the accused is unable to offer the
appellate court any plausible or reasonable explanation of
such circumstances, the court may assume that no acceptable
answer exists and that even if the accused had been
questioned at the proper time in the trial court he would
not have been able to furnish any good ground to get out of
the circumstances on which the trial court had relied for
its conviction.
The above approach shows that some dilution of the
rigor of the provision can be made even in the light of a
contention raised by the accused that non questioning him on
a vital circumstance by the trial court has caused prejudice
to him. The explanation offered by the counsel of the
accused at the appellate stage was held to be a sufficient
substitute for the answers given by the accused himself.
What is the object of examination of an accused under
Section 313 of the Code? The section itself declares the
object in explicit language that it is for the purpose of
enabling the accused personally to explain any circumstances
appearing in the evidence against him. In Jai Dev vs.
State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he
then was) speaking for a three Judge Bench has focussed on
the ultimate test in determining whether the provision has
been fairly complied with. He observed thus:
The ultimate test in determining whether or not the
accused has been fairly examined under section 342 would be
to enquire whether, having regard to all the questions put
to him, he did get an opportunity to say what he wanted to
say in respect of prosecution case against him. If it
appears that the examination of the accused person was
defective and thereby a prejudice has been caused to him,
that would no doubt be a serious infirmity.
Thus it is well settled that the provision is mainly
intended to benefit the accused and as its corollary to
benefit the court in reaching the final conclusion.
At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but
to comply with the most salutary principle of natural
justice enshrined in the maxim audi alteram partem. The
word may in clause (a) of sub-section (1) in Section 313
of the Code indicates, without any doubt, that even if the
court does not put any question under that clause the
accused cannot raise any grievance of it. But if the court
fails to put the needed question under clause (b) of the
sub-section it would result in a handicap to the accused and
he can legitimately claim that no evidence, without
affording him the opportunity to explain, can be used
against him. It is now well settled that a circumstance
about which the accused was not asked to explain cannot be
used against him.
But the situation to be considered now is whether,
with the revolutionary change in technology of communication
and transmission and the marked improvement in facilities
for legal aid in the country, is it necessary that in all
cases the accused must answer by personally remaining
present in Court. We clarify that this is the requirement
and would be the general rule. However, if remaining
present involves undue hardship and large expense, could the
Court not alleviate the difficulties. If the court holds
the view that the situation in which he made such a plea is
genuine, should the court say that he has no escape but he
must undergo all the tribulations and hardships and answer
such questions personally presenting himself in court. If
there are other accused in the same case, and the court has
already completed their questioning, should they too wait
for long without their case reaching finality, or without
registering further progress of their trial until their
co-accused is able to attend the court personally and answer
the court questions? Why should a criminal court be
rendered helpless in such a situation?
The one category of offences which is specifically
exempted from the rigour of Section 313(1)(b) of the Code is
Summons cases. It must be remembered that every case in
which the offence triable is punishable with imprisonment
for a term not exceeding two years is a summons case.
Thus, all other offences generally belong to a different
category altogether among which are included offences
punishable with varying sentences from imprisonment for
three years up to imprisonment for life and even right up to
death penalty. Hence there are several offences in that
category which are far less serious in gravity compared with
grave and very grave offences. Even in cases involving less
serious offences, can not the court extend a helping hand to
an accused who is placed in a predicament deserving such a
help?
Section 243(1) of the Code enables the accused, who is
involved in the trial of warrant case instituted on police
report, to put in any written statement. When any such
statement is filed the Court is obliged to make it part of
the record of the case. Even if such case is not instituted
on police report the accused has the same right (vide
Section 247). Even the accused involved in offences
exclusively triable by the Court of sessions can also
exercise such a right to put in written statements [Section
233(2) of the Code]. It is common knowledge that most of
such written statements, if not all, are prepared by the
counsel of the accused. If such written statements can be
treated as statements directly emanating from the accused,
hook, line and sinker, why not the answers given by him in
the manner set out hereinafter, in special contingencies, be
afforded the same worth.
We think that a pragmatic and humanistic approach is
warranted in regard to such special exigencies. The word
shall in clause (b) to Section 313(1) of the Code is to be
interpreted as obligatory on the Court and it should be
complied with when it is for the benefit of the accused.
But if it works to his great prejudice and disadvantage the
Court should, in appropriate cases, e.g., if the accused
satisfies the court that he is unable to reach the venue of
the court, except by bearing huge expenditure or that he is
unable to travel the long journey due to physical incapacity
or some such other hardship relieve him of such hardship and
at the same time adopt a measure to comply with the
requirements in Section 313 of the Code in a substantial
manner. How this could be achieved?
If the accused (who is already exempted from
personally appearing in the Court) makes an application to
the court praying that he may be allowed to answer the
questions without making his physical presence in court on
account of justifying exigency the court can pass
appropriate orders thereon, provided such application is
accompanied by an affidavit sworn to by the accused himself
containing the following matters: (a) A narration of facts
to satisfy the court of his real difficulties to be
physically present in court for giving such answers. (b) An
assurance that no prejudice would be caused to him, in any
manner, by dispensing with his personal presence during such
questioning. (c) An undertaking that he would not raise any
grievance on that score at any stage of the case.
If the court is satisfied of the genuineness of the
statements made by the accused in the said application and
affidavit it is open to the court to supply the
questionnaire to his advocate (containing the questions
which the court might put to him under Section 313 of the
Code) and fix the time within which the same has to be
returned duly answered by the accused together with a
properly authenticated affidavit that those answers were
given by the accused himself. He should affix his signature
on all the sheets of the answered questionnaire. However,
if he does not wish to give any answer to any of the
questions he is free to indicate that fact at the
appropriate place in the questionnaire [as a matter of
precaution the Court may keep photocopy or carbon copy of
the questionnaire before it is supplied to the accused for
answers]. If the accused fails to return the questionnaire
duly answered as aforesaid within the time or extended time
granted by the court, he shall forfeit his right to seek
personal exemption from court during such questioning.
In our opinion, if the above course is adopted in
exceptional exigency it would not violate the legislative
intent envisaged in Section 313 of the Code.
In the present case the trial court can pass
appropriate orders if an application is made by the accused
relating to the examination under Section 313 of the
Code, in the light of the legal principles stated above.
This criminal appeal is disposed of accordingly

Supreme Court: Suicide threats ground for divorce, 30.09.11, Justice P. Sathasivam & Justice B.S. Chauhan

2011-10-01T23:36:00.001+05:30

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8402 OF 2011
(Arising out of S.L.P. (Civil) No. 29641 of 2009)
Pankaj Mahajan .... Appellant(s)
Versus
Dimple @ Kajal .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 06.08.2009 passed by the High Court of Punjab &
Haryana at Chandigarh in FAO No. M-123 of 2006 whereby
the High Court allowed the appeal filed by the respondent
herein and set aside the judgment and decree dated
29.04.2006 passed by the Additional District Judge(Ad-hoc)-
cum-Presiding Officer, Fast Track Court, Ropar filed under
Section 13 of the Hindu Marriage Act, 1955 (in short ‘the Act’).
1
3) Brief facts:
(a) The marriage of Pankaj Mahajan-appellant husband and
Dimple @ Kajal, respondent-wife, was solemnized on
02.10.2000 at Amritsar. After the marriage, the parties
cohabited and resided together as husband and wife at
Amritsar in the parents’ house of the appellant-husband, but
later on shifted to a rented house in Tilak Nagar, Shivala
Road, Amritsar. On 11.07.2001, a female child was born, who
is now in the custody of the respondent-wife.
(b) After the marriage, the appellant-husband found that the
respondent-wife was acting in very abnormal manner, as she
used to abruptly get very aggressive, hostile and suspicious in
nature. In a fit of anger, she used to give threats that she
would bring an end to her life by committing suicide and
involve the appellant-husband and his family members in a
criminal case, unless she was provided a separate residence.
On one occasion, she attempted to commit suicide by jumping
from the terrace but was saved because of timely intervention
of the appellant-husband.
2
(c) Succumbing to the pressure of the respondent-wife, the
appellant-husband shifted to a rented house on 28.11.2001 at
a monthly rent of Rs.3,200/- and started living with her, but
the behaviour of the respondent-wife became more aggressive
and she repeated threats of suicide even in the rented house.
On enquiry, the appellant-husband came to know that the
respondent-wife was suffering from acute mental depression
coupled with schizophrenia even prior to the marriage and was
taking treatment for the same. The appellant-husband hoping
that the respondent-wife would become alright took her to
various doctors, but her mental condition did not improve and
she became more and more violent and aggressive. She
insulted and humiliated the appellant-husband in front of his
colleagues and relatives several times and even on one
occasion she pushed the appellant-husband from the staircase
causing fracture in his right forearm.
(d) On 23.03.2002, the appellant-husband wrote a letter to
his mother-in-law stating therein that the respondent-wife was
repeatedly threatening to commit suicide and even on
19.04.2002, he wrote a letter to the SSP, Amritsar regarding
3
the factum of repeated threats to commit suicide given by the
respondent-wife. On 24.05.2002, the appellant-husband filed
a petition under Section 13 of the Act in the District Court at
Amritsar for dissolution of marriage by a decree of divorce. By
order dated 29.04.2006, the Additional District Judge, Ropar,
granted a decree of divorce in favour of the appellant-husband.
(e) Being aggrieved by the above-said order, the respondentwife
filed FAO No. M-123 of 2006 before the High Court of
Punjab & Haryana at Chandigarh. The High Court, by order
dated 06.08.2009, allowed the appeal filed by the respondentwife
and set aside the judgment and decree dated 29.04.2006
passed by the Additional District Judge(Ad-hoc)-cum-
Presiding Officer, Fast Track Court, Ropar. Aggrieved by the
said decision, the appellant-husband has preferred this appeal
before this Court by way of special leave petition.
4) Heard Mr. Nidhesh Gupta, learned senior counsel for the
appellant-husband and Mr. B.K. Satija, learned counsel for
the respondent-wife.
4
Discussion:
5) It is not in dispute that the petition for dissolution of
marriage for granting a decree of divorce under Section 13 of
the Act came to be filed by the appellant-husband before the
District Court at Amritsar. The marriage was solemnized
between the parties at Amritsar on 02.10.2000. Since the
case of the appellant-husband as well as the respondent-wife
has already been narrated, there is no need to traverse the
same once again. The fact remains that it was the appellanthusband
who approached the court for a decree of divorce on
the grounds of ‘cruelty’ and ‘unsound mind’ of the respondentwife
which is incurable, hence we have to see whether the
appellant-husband has made out a case for divorce on these
grounds.
6) Section 13 of the Act, which is useful for our present
purpose, reads as under:-
“13. Divorce (1) Any marriage solemnised, whether before or
after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by
a decree of divorce on the ground that the other party—
(i) xxx
(i-a) has, after the solemnisation of the marriage, treated the
petitioner with cruelty; or
(ib) xxx
(ii) xxx
5
(iii) has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental disorder
of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
Explanation .—In this clause,—
(a) the expression “mental disorder” means mental illness,
arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and
includes schizophrenia;…..”
Section 13 specifies the grounds on which a decree of divorce
may be obtained by either party to the marriage. The onus of
proving that the other spouse is incurably of unsound mind or
is suffering from mental disorder lies on the party alleging it.
It must be proved by cogent and clear evidence.
7) In the case on hand, since the appellant-husband has
approached the District Court for a decree of divorce, the onus
is on him to prove the grounds put-forth by him. As regards
the ground alleged by the appellant-husband for a decree of
divorce i.e. the respondent-wife is suffering from unsound
mind/mental disorder/schizophrenia, apart from his own
evidence as PW-4, various Doctors, who treated her and other
witnesses were also examined. From the side of the appellanthusband,
Dr. Paramjit Singh (PW-1), Dr. Ravinder Mohan
Sharma (PW-2), Dr. Virendra Mohan (PW-3) and Dr. Gurpreet
6
Inder Singh Miglani (PW-7), who had given treatment to the
respondent-wife for mental disorder, were examined.
8) Dr. Paramjit Singh (PW-1), Professor and Head Psychiatry
Department, Medical College, Amritsar in his evidence stated
as follows:-
“The respondent remained admitted in my Department at
Amritsar from 17.12.2001 to 28.12.2001. This disease is
Bipolar Affective Disorder. I treated her during this period.
She was admitted in Emergency because her disease was in
quite serious stage. In this disease, the patient can commit
suicide. When she came, she was aggressive and irritable. If
the proper treatment is not given to the respondent then her
aggressive nature can be prolonged. The respondent Kajal
was treated by me by giving electric shock for four times
during her stay in the ward M.R.I. i.e. Magnetic Resonance
Imaging. MRI has got no concern with the disease with
which the respondent was suffering. This disease is
treatable but not curable. I have seen the certificate issued
by me which is Ex.P1. It bears my signatures and is correct
Ex. P2 i.e. Discharge Certificate. I have brought the original
record of the Department concerning the respondent both indoor
as well as out-door. A certified copy of the same
attested by me is Ex. P3. These are correct according to the
original record brought by me today in the court. The
respondent was brought to the Hospital for her admission
and treatment by Sh. S.K. Mahajan son of later Sh. Gian
Chand and Pankaj Mahajan. I have seen the receipts today
in the court which relate to our hospital and the same are
Ex. P4 to Ex. P7 and Ex. P8 is the receipt regarding room
rent of our Hospital. On 08.10.2002, father of the
respondent had brought her to our hospital and she was
treated by me as well as other doctors of department of our
hospital from 08.10.2002. After the discharge from the
Hospital, the respondent was brought to our hospital for
treatment by her father on 22.01.2002, 02.02.2002,
09.02.2002, 15.04.2002, 08.08.2002, 08.10.2002,
21.11.2002, 05.02.2003 and 20.06.2003.”
(Emphasis supplied)
7
In cross-examination, he admitted that when the respondentwife
was discharged from the hospital, she was not perfectly
alright, however, she was able to return home. He further
admitted that in the original record of Ex. P3 some entries
were made by him and some by junior doctors, who worked
with him. All the entries made therein are correct. He also
stated that during the treatment, he did not notice abnormal
behaviour of the respondent-wife.
9) Dr. Ravinder Mohan Sharma (PW-2), Senior Medical
Officer, Punjab Mental Hospital, Amritsar, stated as under:
“According to file No. 57914 the patient was examined in the
out door by Dr. Charu Chawla, Senior Resident whose
handwriting I identified as she has been working with me.
After examining the patient and recording the history, she
has diagnosed her to be a case of Bipolar Affective Disorder
with which I agreed and advised her treatment in my own
hand. There is another entry dated 16.01.2002 again in my
own hand where I had advised her treatment. The second
file No. 58803 is in the hand of Dr. Purnima Singh, who after
examining presented the case to Dr. Manjit Singh who made
a diagnosis of depressive episode and advised her medical
treatment dated 21.02.2002. I identified the handwriting of
Dr. Purnima Singh and Dr. Manjit Singh as I had been
working with them. I have seen the original outdoor ticket of
respondent and the same are Ex. P11 and Ex. P12. As per
the history recorded in file No. 58803, there is a mention of
suicide ideas and threats and it is recorded that she had
attempted suicide once. As per the record, hers is a history
of abusive and irritable behaviour. On 16.01.2002 she was
advised injection by me because she was irritable and
restless. It is not a simple yes or no answer to the question
8
whether the disease is curable or not. It is an episodic
illness which patient getting episodes of mental illness and
with treatment in between she can remain normal. The
intensity and frequency of these episodes is highly
unpredictable and varies from patient to patient. Generally,
the frequency increases with every episode. The disease of
the respondent is treatable but cannot be definitely say
curable. MRI has got nothing to do with this disease of
respondent.” (Emphasis supplied)
In cross-examination, he reaffirmed what he had stated in
examination-in-chief.
10) Dr. Virendra Mohan (PW-3), M.D. Psychiatry,
Dharampur, District Solan, H.P. stated as follows:-
“Patient Dimple, aged 23 years, female (single) d/o Shri Prem
Kumar, village Shivaji Nagar, House No. 810/11 Ludhiana
was admitted on 22.05.1998 and discharged on 06.06.1998.
She was suffereing from mental disorder at that time. She
was diagnosed as Chronic Paramoid Schizophrenia for the
last four years. She got admitted by her father Shri Prem
Kumar, and the history of the patient was described to me. I
have recorded the history as told by her father. He told that
she was having mental symptoms for the last 4 to 5 years.
The sleep was less. She was having acute psychotic
symptoms at the time of admission. I have mentioned the
history of the patient in the register which I have brought
today, and the attested true copy of the same is Ex.PW3/As
she was admitted in-door because she showed acute mental
symptoms. She had paranoid symptoms. She was suicidal
and also she could harm herself and others. The patient
was restless and she could harm and attack others as well,
and could cause injury. It has been recorded in the history
of the patient that her Nana had been suffering from the
mental disease. There was no test for diagnosing this
disease from which the respondent was suffering. Only the
history tells about the earlier condition of the patient. I
cannot say if the disease for which the respondent was
suffering is definitely curable or not. This disease is known
9
for relapses. There is no direct relationship in the stress or
strain with the disease. This disease is not related to nose or
throat. There can be no finding in MRI regarding this kind of
disease. There may be suicidal tendency of such type of
person suffering from this disease. The respondent was
admitted in the hospital due to abnormal behaviour. I had
observed that she passed stool in her cloth, she has visual
hallucination. During her admission, she also stated that
she wanted to marry her cousin and she was also laughing
herself. She was admitted twice in my mental Hospital at
Dharampur. I got signatures of father of the respondent in
my register, whenever she got admitted by her father in my
hospital and the register bears the signatures of her father.
Second time, she was admitted by her father Prem Kumar on
28.09.1999 and was discharged on 05.10.1999. That time
she was more excited and more elated and at that time the
diagnosis was quarry mania. This time she did not have any
paranoid symptoms. Her address was recorded this time
810/11 Shivaji Nagar, Ludhiana. Usually, if patient remains
symptoms free for two years they can get married, but other
partner should know the problem so that the treatment
should be continued.”
(Emphasis supplied)
In cross-examination, PW-3 stated that during the treatment
in his hospital, the respondent-wife responded very well to the
treatment. No suicidal action was taken by her during the
treatment in his hospital for the second time. He also stated
that if the patient remained symptoms free then she is
manageable. According to him, as per the records, the
respondent-wife was manageable.
1
11) Dr. Gurpreet Inder Singh Miglani (PW-7), Associate
Professor and Incharge, Department of Psychiatry, Guru Ram
Dass Medical Hospital, Amritsar stated as under:-
“I remained posted in Guru Teg Bahadur Sahib Charitable
Hospital at Ludhiana from 1995 to 1998. I was working
there as Consultant for Psychiatry. I have seen the original
file produced in the Court today relating to Dimple d/o Prem
Kumar r/o Shastri Nagar, H.No. 257-A Ludhiana. Dimple
was got admitted in our Hospital on 15.06.1996 at 06:50
a.m. by her father Prem Kumar in the Emergency Ward. She
was suffering from a very violent behaviour and she has to
be given Electric Convulsive Therapy (ECT) on the same day
in the operation theater. Subsequently also five ECTs were
given as her violence was not being controlled along with
other anti psychotic drugs. A diagnosis of F 2004 was made
according to ICD 10 at the time of discharge on 15.07.1996.
She was labeled as suffering from Paranoid Schizophrenia
with incomplete remission and discharged on stable
condition. Due consent for ECTs in operation theater under
general anesthesia were taken from the father of the
patient.”
(Emphasis supplied)
In cross-examination, he has stated that he cannot say exactly
about the disease of the respondent-wife whether it can be
treatable or not at this stage. He further stated that the
disease of the respondent can be cured or it can aggravate
after a lapse of time.
12) It is relevant to point out that the documents produced
from the side of the respondent-wife, particularly, medical
1
report issued by Dr. Harjeet Singh, Consultant Psychiatrist,
RW-4 shows as:
“Impression: Bipolar Affective (Mood) Disorder, currently in
remission.”
“Advice: marital therapy for the couple. Follow up as and
when required.”
The said Report has been marked as Annexure R10. A fair
typed copy of relevant extract of Ex. P3 shows that “Mood
according to patient is euthenics.” The Annexure along with
the counter affidavit of the respondent-wife filed in this Court,
particularly, Certificate issued by the Doctor refers “suicide
threats made by her on some occasions”.
13) The appellant-husband was examined as PW-4.
According to him, the marriage with respondent-wife was
solemnized on 02.10.2000 and it was an arranged marriage.
After marriage, both of them went to Vaishno Devi, however, in
the meanwhile he noticed some strange facial expressions and
behaviour of his wife-Dimple. He subsequently came to know
that she was suffering from some serious disease. She used to
become annoyed and angry on petty issues, abuse and fight
with him, flaunt her father’s status and influence, comb her
hair throughout the day, cry like children, apply brakes of a
1
moving vehicle, call strangers in the house and offer them tea.
Even once she called a washerman in the house and gave him
Rs. 200/- unnecessarily and when he said ‘thanks’ she
immediately snatched the money from his hands and slapped
him for no reason and, thereafter, she abused him and pushed
him out of the house. According to him, such things had
become her everyday chores. She used to wake up very late in
the morning. Whenever his mother and sister called her to
join them, she started abusing and insulting them. She used
to call his mother stupid and his sister as wretched. One day,
when his friend Sumit came to their house, she insulted him
when he was sitting in the drawing room on the ground floor
and when the appellant-husband was coming down to join
him, she pushed him from stairs and started laughing, as a
result, he fell down and got fractured. She was in the habit of
listening to phone calls of Madan Lal, the landlord (PW-5) and
used to abuse his relatives over phone. One day, when the
landlord (PW-5) told them that he is fed up with the appellant
and his family and asked to leave the house immediately
thereupon, the respondent-Dimple slapped him on his face for
1
which he had to apologise him for her acts. Even, one day,
she threw the infant child towards him.
14) In order to show that his marriage was an arranged one
he explained that he knows the father of the respondent-wife
prior to the marriage as he was his Boss in Life Insurance
Corporation office, Amritsar Division. He worked under him
for a period of 6-8 months. He further explained that the
behaviour of the respondent-wife came to his notice after 1½
months’ after their marriage and he immediately disclosed this
fact to her father. The treatment was given to the respondentwife
for the first time on 06.09.2001 for her abnormal
behaviour.
15) Another important witness examined on the side of the
appellant-husband is Madan Lal (PW-5), the landlord, who
rented his house to them. In his evidence, PW-5 deposed that
he is resident of H.No. 62, Tilak Nagar, Amritsar and his wife
is also residing with him. He rented out a portion of the
building to the appellant-husband and respondent-wife which
was on the first floor. He and his wife were residing on the
ground floor. According to PW-5, the respondent-wife usually
1
remained sitting in the portion of his house during the day
time where he is residing with his family unless and until the
appellant-husband return home. She used to sit with his
daughter and daughter-in-law and remained talking with
them. She also quarrels with his wife and daughter due to the
use of telephone. He explained that his daughter-in-law told
him that the respondent-wife often threatens to commit
suicide. The High Court, without looking into the evidence of
Madan Lal (PW-5), erroneously concluded that his evidence
was of no help. On the other hand, PW-5 has specifically
narrated the behaviour of the respondent with his wife,
daughter-in-law and the agony he himself had undergone and
highlighted all those details in the Court.
16) Apart from the above oral evidence, the appellanthusband
has also pressed into service a copy of an affidavit of
the respondent-wife i.e. Annexure-R3. In the said affidavit,
the respondent-wife has stated that she threatened to commit
suicide so many times to her in-laws and she even tried to
commit suicide by way of jumping from the roof of the house
on the intervening night of 19-20.09.2001 but could not
1
succeed due to timely intervention of her husband. She also
stated that she realized that her attempt to commit suicide
was at the instance of her parents and now she is repentant
for her actions for threatening to commit suicide and apologise
for the same with the assurance not to repeat such type of
actions in future.
17) Though the trial Court accepted the claim of cruelty, the
High Court reversed the said conclusion and completely
rejected the claim of divorce even under unsound mind. In the
impugned judgment, though the High Court has adverted to
the evidence of four doctors, without proper appreciation,
arrived at an erroneous conclusion that mere evidence of
mental illness is not sufficient to seek decree for divorce. In
spite of abundant materials, unfortunately, the High Court
has erroneously concluded that only wordings of Section
13(1)(iii) of the Act were merely reproduced without adverting
to the facts of the case. According to the High Court,
necessary materials were not pleaded. We are unable to
accept the said conclusion. Without proper discussion and
adequate reasons, the High Court rejected the evidence of the
1
appellant-husband as PW-4. A perusal of his evidence clearly
show the agony and treatment meted out immediately after the
marriage due to mental disorder/unsound mind of the
respondent-wife.
18) From the materials placed on record, we are satisfied that
the appellant-husband has brought cogent materials on record
to show that the respondent-wife is suffering from mental
disorder, i.e., Schizophrenia. From the side of the appellanthusband,
various doctors and other witnesses were examined
to prove that the respondent-wife was suffering from mental
disorder. We have already extensively quoted the statements
of Dr. Paramjit Singh (PW-1), Dr. Ravinder Mohan Sharma
(PW-2), Dr. Virendra Mohan (PW-3) and Dr. Gurpreet Inder
Singh Miglani (PW-7) – all the four doctors/Psychiatrists who
treated the respondent-wife, prescribed medicines and also
expressed the view that it is “incurable”. Even the respondentwife
and her father themselves admitted in their crossexamination
that the respondent had taken treatment from
the said Doctors for mental illness. Thus, it is proved beyond
doubt that the respondent-wife is suffering from mental
1
disorder/Schizophrenia and it is not reasonably expected to
live with her and the appellant-husband has made out a case
for a decree of divorce and the decree should have been
granted in favour of the appellant-husband and against the
respondent-wife.
19) The High Court, by impugned order, negatived the plea of
the appellant-husband under Section 13(1)(iii) of the Act on
the ground that the appellant-husband has merely reproduced
the wordings of the Section without applying the same to the
facts of the case and that it was not pleaded that it was a case
of continuous or intermittent disorder. The aforesaid
reasoning of the High Court is completely erroneous and
contrary to the material on record which we have already
demonstrated.
20) Coming to the pleadings before the High Court, the
appellant-husband had specifically pleaded that the
respondent-wife was suffering from Schizophrenia, which is a
kind of mental disorder and he had pointed out specific
incidents to show that the respondent-wife was not of sound
1
mind. The relevant portion of the petition for divorce filed by
the appellant is reproduced hereunder:
“4. That the petitioner shortly after his marriage found the
respondent to be acting in a very abnormal manner. She
would abruptly get very aggressive, hostile and suspicious in
nature, ought to hit any body available in her company and
her suspicion would go to such an extent that she should
not like to take food without some other member of the
family consuming the same. The respondent would also in a
fit of anger declare that she will bring an end to her life by
committing suicide and would have the petitioner and all the
family members involved in a false criminal case unless she
was provided with separate place of residence…….Enquiries
made in the meantime revealed that the respondent has
been suffering from acute mental depression coupled with
Schizophrenia, a mental disorder and illness at intervals
with Psychopathic disorder since developed into mania,
which prompted her to become more and more violent and
aggressive and on one such occasion she repeated threat of
suicide and attempted jumping from the house of her in-laws
on 19/20.09.2001 but could not succeed in her attempt due
to timely intervention of her husband, who is the petitioner…
……All the same hoping that treatment may cure the
respondent she was got treated by the petitioner and her
parents from various places in connection with her mental
illness but such treatment provided to her including
administering her electric shocks, did not improve the state
of affairs. She was so treated as indoor and outdoor patient
in Shri Guru Teg Bahadur Hospital, Amritsar in Psychiatric
Department in Dr. Vidya Sagar Mental Health Institute and
in Bhatti Neuro Psychiatric Hospital till the end of the year
2001 but all the intensive and costly treatment did not yield
fruit and she could not be cured of her mental sickness. The
respondent is, therefore, suffering from major mental
disorder in which she has suicidal tendency and becomes
aggressive and violent in her behaviour for which she was
getting treatment, as referred above, before as well as after
the marriage. She has been given anti-psychic treatment
and even electric therapy at four occasions at least to the
knowledge of the petitioner but the things did not improve
therewith. The respondent has, therefore, been suffering
incurably from unsoundness of mind and has been so
suffering continuously or intermittently from mental disorder
1
of such a kind and such an extent that the petitioner cannot
reasonably be expected to live with the respondent.
5. That on one such occasion under the fit of insanity the
respondent pushed the petitioner from the staircase leading
to their residential portion causing the petitioner fracture of
right hand for which he got treatment from, Dr. Hardas
Singh Sandhu in the last week of November, 2001. Such
aggressiveness was not first of its kind and in the past also
the respondent under the fit of insanity ventured to slap the
petitioner in his face in the presence of his parents…..”
The above averments make it clear that the appellanthusband,
after narrating specific incidents of abnormal
behaviour of the respondent-wife had duly pleaded that she
was suffering continuously/intermittently from ‘incurable’
mental disorder of such a nature that he cannot be reasonably
expected to live with her. It was also stated therein that due
to her unsoundness, the respondent-wife was not able to lead
a married life and thus the appellant-husband was entitled to
a decree of divorce. Apart from this, the appellant-husband
had brought cogent evidence on record to show that the
respondent-wife was not in a fit state of mind whereas the
respondent-wife could not lead any acceptable evidence to
rebut the same. We have already pointed out that the
respondent and her father admitted her mental illness and
2
periodic treatment from the doctors mentioned above. No
doubt, it was pointed out that after the marriage, the couple
was blessed with a female child and at present she is studying
in a school and there is no dispute about the same. It is clear
from the respondent’s evidence that from the date of delivery
of child, the child was periodically taken care of by her grandparents.
It is also relevant to note that whenever the child was
with respondent-wife, she (the mother) was not taking
appropriate care which is clear from the evidence of the
appellant-husband (PW-4) and their landlord, Madan Lal
(PW-5). One incident which was referred to was that many a
times the respondent-wife casually threw the child facing
opposite to her. Under these circumstances, the High Court
ought to have accepted the case of the appellant-husband.
21) The High Court rejected the plea of the appellanthusband
regarding cruelty on the ground that apart from his
statement, there is no evidence to prove the same and Madan
Lal (PW-5), being hearsay, his evidence was not reliable. As
rightly pointed out by Mr. Nidhesh Gupta, learned senior
counsel for the appellant-husband that as far as Madan Lal
2
(PW-5) is concerned, the High Court has only referred to his
cross-examination without even adverting to the examinationin-
chief wherein he had categorically stated about cruelty
meted out by respondent-wife to the appellant-husband. The
relevant portion of the evidence of PW-5 is as follows:
“Thereafter Pankaj Mahajan, his wife Dimple alias Kajal and
their infant child aged about 4-5 months started living on
the upper portion of my house. They lived in my house on
rent upto 30.11.2002. After some days of taking of the
house on rent by them, I felt that the girl Dimple was not
taking any interest in household affairs and she used to
avoid doing household works………..
……….She used to sit idle after Pankaj’s going to office and
was not breast-feeding the child even after child’s
uncontrollable crying. Not only this, she used to come down
and sit in our bedroom for long hours unnecessarily and
talking rubbish and repeating on the same thing again and
again. Many times when I asked Dimple why she behaves
like this and whether she is alright or not, then she did not
reply back and kept mum and whenever she answered to my
queries, she used to say that I want to die and my heart says
that I should commit suicide. When I heard this from the
mouth of Dimple, I become doubly sure that she is mentally
unsound and due to her unsound behaviour even my family
too become disturbed and started living in constant fear
because it appeared from her behaviour that she will do
something extreme one day and if she does so, then apart
from her in-laws, all of us too will be unnecessarily
implicated in the criminal case. Dimple used to come to our
house during lunch time and demand food for herself and
used to sit in our house for long hours and whenever Pankaj
used to come back from his office, she used to tell him that
we will go to our portion after taking meals from us. She
used to repeat one thing many times. One day, she even
went to the extent of saying that you are cooking food every
day-then why don’t you keep us as your paying guest
because I cannot prepare food myself and I also cannot look
after my child. Mostly Dimple used to leave her child with
2
my daughter-in-law and request my daughter-in-law that
she should change clothes, bath the child and give her
canned milk. My daughter-in-law did all this for 5-6 times,
but one day my daughter-in-law clearly told Dimple that this
is your duty and she herself should look after the child. On
hearing all this, Dimple immediately turned red in anger and
slapped my daughter-in-law and called her idiot.”
It is clear from the above that the respondent-wife was not of
sound mind and she did not look after the household work
rather she used to give threats to commit suicide. She did not
even make food for the appellant-husband and he had to
arrange the same from outside. Apart from this, she used to
embarrass the appellant-husband before his landlord’s family
and because of her weird behaviour and threats to commit
suicide, the appellant-husband was forced to leave the rented
accommodation. Madan Lal, the landlord, PW-5 has also
highlighted several instances when the respondent-wife used
to quarrel with her husband and he had to face humiliation in
front of others because of her behaviour. Inasmuch as PW-5
was living in the same house on the ground floor and the
appellant-husband and the respondent-wife were living on the
first floor, the said witness being the eye-witness to the cruelty
meted out by the respondent-wife to the appellant-husband,
2
as he had himself seen the behaviour and the activities of the
respondent-wife including humiliation and threats of
committing suicide, cannot be thrown out. Under those
circumstances, the observation of the High Court that the
statement of PW-5 is only hearsay is liable to be rejected.
22) In addition to the evidence, the appellant-husband had
categorically pleaded in his petition for divorce about the
cruelty meted out to him. He narrated the incidents when she
used to give threats to commit suicide and had even tried to
commit suicide by jumping from the terrace and also pushed
him from the staircase resulting in fracture in his right
forearm. Due to her mental disorder, on various occasions,
she even slapped him. She was also most disrespectful to his
parents and she even forced him to live separately from them.
His evidence in the form of an affidavit filed before the trial
Court is available in the paper book wherein he narrated all
the sufferings meted out by her. It is useful to refer the
relevant portion from the same:
“My wife Dimple used to become annoyed and angry on petty
issues. She used to abuse and fight with me. She used to
flaunt her father’s status and influence. She used to comb
her hair throughout the day. She used to cry like children.
2
She used to apply brakes of a moving vehicle. She used to
call strangers in the house and offer them tea. Once she
even called a washerman in the house and gave him Rs.
200/- unnecessarily and when he said thanks she
immediately snatched Rs. 200/- from his hands and slapped
him for no rhyme or reason and thereafter she abused him
and pushed him out of the house. In fact, such things had
become her everyday chores. She used to tell me everything
about sex lives and relationship of her maternal uncle and
aunt. She was in the habit of not sleeping throughout night
and also used to keep me awake throughout night and
whenever I tried to sleep, she used to insist me to talk to her
and whenever I told her to allow me to sleep, she used to
press my neck. She used to wakeup the child from deep
slumber and start slapping her for no reason. She was in
the habit of wrapping the child in wrapper throughout
continuously and due to which child used to weep
continuously. She used to say that she is obsessed and
hears outer world’s voices and barking of dogs. She used to
tell me that she is regularly seeing evil spirits. She used to
go out for roaming at 2-3 a.m. in the night. Whenever I
refused to listen or agree to her demands, she used to throw
dirty clothes upon me. She was in the bad habit or keeping
the door of toilet opened throughout the day even while she
was bathing or refreshing herself. She used to doubt
everything whenever she started eating her food. She also
used to doubt her mother and sister and used to say that
both of them have immoral character. She was in the habit
of opening and closing the central locking system of the car.
She was in the habit of increasing the volume of TV to the
maximum unnecessarily. Whenever I used to go to office,
she used to stop me from going and when I told her that I
have to go to office, she used to say that she will commit
suicide. In fact she was in the habit of pressing and coaxing
me for all her needs and desires. She used to say that I
want to live with Happy and also used to say that she has no
interest in living with me. She stressed that she will leave
me and starts living with Happy. (Happy is the son of my
wife’s elder paternal uncle.)
She was in the habit of unnecessarily arguing with my
parents and used to abuse them and whenever I stopped her
from doing so, she used to threaten me that she will commit
suicide. However, I used to request my parents to look after
her in my absence. But she used to misbehave and insult
them. She used to say that she will buy her own house and
2
will start living in that house because this house is very
small for her needs and she feels suffocated in this house.
Although my house is in a very posh colony and it is a very
spacious, airy, open and large house. I noticed that
condition of Dimple is becoming worse every day. I became
sure that she is actually mad and she is concealing her
madness from me. I noticed that she used to keep some
medicine in her purse and used to take that medicine often.
She was actually sex-hungry and was not interested in doing
any household works. She never showed any interest in
keeping her bedroom and drawing clean and tidy. She was
in the habit of wearing the clothes of 3-4 days regularly. She
used to wake up very late in the morning. Whenever my
mother and sister called her to join them, she was abusing
and insulting them. She used to call my mother stupid and
my sister as wretched. However, I controlled myself and
kept on tolerating her conduct, because all of us were in the
fervent hope that one day God will cure her….
…..One day, my friend Sumit came to my house. Earlier
also he used to come to my house as he is also working with
me in the LIC. He wished Dimple and enquired about her
and instead of welcoming him, Dimple insulted him by
saying why are you coming to our house uncalled every day.
He felt very insulted and sat in the drawing room on the
ground floor and when I was also coming down to join him,
Dimple pushed me from stairs and started laughing
unnecessarily. As a result of aforesaid pushing, I fell down
and bones of my right arm and wrist got fractured.
Perchance, Ashok Kumar too had come to my house on that
day and he was repeatedly asking for meals. But when he
saw my condition, he immediately took me to the Hospital of
Dr. Hardas where plaster was applied on my arm and wrist.
When we came back, to my utter shock and surprise, Dimple
did not even notice any change in me and did not remotely
felt that I have received fractures in my arm and wrist and
plaster has been applied on my arm. One day when we were
sitting in the drawing room, I called Dimple and asked her to
bring tea for me. At that time she was wearing very dirty
clothes. So, I asked her to immediately go and change her
dirty clothes and wear some good clothes. But instead of
changing her clothes, she started abusing me and even
slapped me on my face. Thereupon my mother asked her
why she is behaving like this, upon which she rose her
hands to slap my mother too, but my sister stopped her from
doing so. We narrated all the above incidents of Dimple to
2
her father. He expressed his shock and apologized on her
behalf and advised us to start living separately and said that
she will start behaving properly and nicely.”
All the above details in the form of assertion in the affidavit
clearly show that the appellant-husband faced cruelty at the
hands of the respondent on several occasions.
23) It is well settled that giving repeated threats to commit
suicide amounts to cruelty. When such a thing is repeated in
the form of sign or gesture, no spouse can live peacefully. In
the case on hand, the appellant-husband has placed adequate
materials to show that the respondent-wife used to give
repeated threats to commit suicide and once even tried to
commit suicide by jumping from the terrace. Cruelty
postulates a treatment of a spouse with such cruelty as to
create reasonable apprehension in his mind that it would be
harmful or injurious for him to live with the other party. The
acts of the respondent-wife are of such quality or magnitude
and consequence as to cause pain, agony and suffering to the
appellant-husband which amounted to cruelty in matrimonial
2
law. From the pleadings and evidence, the following instances
of cruelty are specifically pleaded and stated. They are:
i. Giving repeated threats to commit suicide and
even trying to commit suicide on one occasion
by jumping from the terrace.
ii. Pushing the appellant from the staircase
resulting into fracture of his right forearm.
iii. Slapping the appellant and assaulting him.
iv. Misbehaving with the colleagues and relatives
of the appellant causing humiliation and
embarrassment to him.
v. Not attending to household chores and not
even making food for the appellant, leaving
him to fend for himself.
vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and
misbehaving with them.
viii. Forcing the appellant to live separately from
his parents.
2
ix. Causing nuisance to the landlord’s family of
the appellant, causing the said landlord to
force the appellant to vacate the premises.
x. Repeated fits of insanity, abnormal behaviour
causing great mental tension to the appellant.
xi. Always quarreling with the appellant and
abusing him.
xii. Always behaving in an abnormal manner and
doing weird acts causing great mental cruelty
to the appellant.
24) All these factual details culled out from the pleadings and
evidence of both the parties clearly show the conduct of the
respondent-wife towards the appellant-husband. With these
acceptable facts and details, it cannot be concluded that the
appellant-husband has not made out a case of cruelty at the
hands of the respondent-wife. We are satisfied that the
appellant-husband had placed ample evidence on record that
the respondent-wife is suffering from “mental disorder” and
due to her acts and conduct, she caused grave mental cruelty
2
to him and it is not possible for the parties to live with each
other, therefore, a decree of divorce deserves to be granted in
favour of the appellant-husband. In addition to the same, it
was also brought to our notice that because of the
abovementioned reasons, both appellant-husband and the
respondent-wife are living separately for the last more than
nine years. There is no possibility to unite the chain of marital
life between the appellant-husband and the respondent-wife.
25) In the light of the facts and circumstances as discussed
above, in our view, the impugned order of the High Court
resulted in grave miscarriage of justice to the appellanthusband,
more particularly, the High Court failed to consider
the relevant material aspects from the pleadings and the
evidence, the ultimate conclusion cannot be sustained. The
appellant-husband established and proved both grounds in
terms of Section 13 of the Act. In the result, the appeal stands
allowed. The divorce petition filed by the appellant-husband
stands accepted and a decree of divorce is hereby passed
dissolving the marriage of the appellant with the respondent
from today, i.e. 30.09.2011. The impugned order of the High
3
Court dated 06.08.2009 in FAO No. M-123 of 2006 is set
aside. The appellant-husband is directed to pay an amount of
Rs. 2 (Two) lakhs as alimony to the respondent-wife in two
equal instalments within a period of three months from today
and to deposit Rs. 3 (Three) lakhs in the name of his daughter
in the shape of three FDRs in a nearest nationalised bank in
three equal instalments commencing from January, 2012
ending with June, 2012. On attaining majority, the daughter
is permitted to withdraw the amount. Till such period, the
respondent-wife is permitted to withdraw accrued interest
once in three months directly from the bank from the said
deposit for the benefit and welfare of their daughter.
..…....…………………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
SEPTEMBER 30, 2011.
3

High Court Delhi: No need to prove Domestic relation or Domestic violence to get maintenance..all you need to prove is husband’s Income 20.09.2011

2011-09-27T11:20:00.001+05:30

Delhi High Court: No need to prove Domestic relation or Domestic violence to get maintenance…..all you need to prove is husband’s Income

Crl.M.C.No1814/2011 Page 1 of 15
$~6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C.No.1814/2011 % Judgment delivered on:20th September,2011 SHANKER ..... Petitioner Through: Ms.Saahila Lamba, Adv versus MEENA ..... Respondent Through: Mr.Ashok Kumar & Mr.R.M.Tatia, Advs. Inspector Jai Kishan Gautam, SHO police station Uttam Nagar in person. CORAM: HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? No. 2. To be referred to Reporter or not? No. 3. Whether the judgment should be reported in the Digest? No. SURESH KAIT, J. (Oral) 1. On 16.08.2011, this Court has passed following order:- “1. The present petition is filed against the order dated 18.03.2011 passed by ld. Addl. Sessions Judge.
2. The learned counsel for the petitioner submits that vide order dated 05.10.2007
Crl.M.C.No1814/2011 Page 2 of 15
the learned MM had directed that a sum of Rs.2,000/- each per month would be paid by the petitioner, to the respondent/ complainant for her maintenance and also for the maintenance of the minor daughter namely Bhavna, as an interim measure till the disposal of the petition. 3. Further the learned counsel for the petitioner submits that the application was filed for clarification of the said order dated 05.10.2007 that typographically it was directed that Rs.2,000/- each instead of Rs.2,000/- total in favour of the respondent for her maintenance and for the maintenance of her minor daughter. The same was dismissed on 18.12.2010 and confirmed the order dated 05.10.2007. 4. Being aggrieved the petitioner challenged the same before the Sessions Court vide order dated 18.03.2011, the learned Sessions Judge, Tis Hazari Courts, Delhi has also confirmed the order dated 05.10.2007 passed by the learned MM.
5. Learned counsel for the petitioner submits that learned ASJ has not dealt with the relevant points on the petition and has
Crl.M.C.No1814/2011 Page 3 of 15
only given the opinion that learned Magistrate had no power to rectify the order passed on 05.10.2007. 6. Learned counsel for the petitioner has drawn the attention of this court to order dated 25.02.2008 passed by the learned ASJ wherein in para 5 as on page 19 it is stated as under : “5. I have also gone through the provisions of Section 23(2) of the said Act. Under the Section learned Magistrate can grant even an exparte order on the basis of the affidavit filed by the petitioner/ aggrieved person under the said Act. In the present case the learned Trial Court has duly considered the averments of both the parties. It is purely the interim order till the final decision of the case. The learned Trial Court shall come to the conclusion for grant of maintenance only after the evidence is lead by both the parties. The petitioner had his brothers also who could very well maintain his parents. Even as per minimum wages of an unskilled labour, the wages are approximately 3,500/- per month.”
7. Learned counsel for the petitioner submits that the petitioner is earning Rs.5,000/- per month. Therefore, he cannot afford to pay Rs.4,000/- i.e. Rs.2,000/- each when he is also maintaining one daughter
Crl.M.C.No1814/2011 Page 4 of 15
aged about 6 years. The petitioner has drawn attention to order dated 18.12.2010 passed by learned trial court for the rectification of the order as under : “In support of the said contention, it is point out by Ld. Counsel for the respondent that the respondent had been continuously making payment of Rs.2,000/- per month to the petitioner w.e.f. 5.10.10.07 till 4.4.10 and no objection has been raised on behalf of the petitioner that the complete payment is not being made. It is also pointed out that even some of the order sheets of my Ld. Predecessor like order sheet dated 29.1.07, 30.1.08 clearly reflect that payment of Rs.2000/- towards the month of November and December respectively. It is thus stated that the petitioner now cannot be permitted claim the additional maintenance @ Rs.2000/- per month and from the conduct of the parties as pointed out hereinabove, it is very clear that the order of interim maintenance was only for Rs.2000/- per month and not @ Rs.2000/- per month for each of the petitioners.”
8. Keeping in mind the monthly wage of the petitioner/husband @ Rs.5,000/- per month and since he is also maintaining one daughter as the respondent. It is only fair that both children are provided with the right environment for a proper upbringing.
Crl.M.C.No1814/2011 Page 5 of 15
Therefore, in equity I deem it appropriate to modify the order to the extent that the petitioner shall continue to pay Rs.3,000/- per month to the respondent as maintenance till the disposal of the application. The arrears, if any, shall also be cleared as per the rate of Rs.3,000/- per month. 9. CRL.M.C. 1814/2011 is partially allowed. Order dated 05.10.2007 passed by the learned trial Judge is modified. 10. At this stage, the petitioner, who is present in person, submits that he is ready to keep his wife with him and he will keep her happy. 11. At his request, re-notify on 23rd August, 2011. 12. The notice be served to respondent through SHO concerned and ensure the presence of the respondent on the next date of hearing in the Court.”
2. Since, the SHO concerned could not serve the respondent on 23.08.2011, therefore, she did not appear, hence the matter was adjourned.
Crl.M.C.No1814/2011 Page 6 of 15
3. On 24.08.2011, respondent appeared in person with her learned counsel, and inter alia, following order was passed:- “….. She submits that the petitioner is a man of means; apart from shirts business, he is also in the business of property dealing. He also owns some properties in Delhi. She further submits that before the separation she was staying with her husband at 331, J. J. Colony, Raghubir Nagar along with her brother-in-law namely Arjun, who is younger to the petitioner. 2. Respondent further submits that the said brother-in-law has left his first wife and he has kept another lady without taking divorce and he has three sons from his new wife, whereas, the first wife has one girl child and living separately. 3. She further submits that the petitioner is intending to repeat the same with her also, therefore, due to this reason she is not ready to go with the petitioner.”
4. Inspector Jai Kishan Gautam, SHO police station Uttam Nagar, New Delhi was present in person and was directed to
Crl.M.C.No1814/2011 Page 7 of 15
verify the total income earned by the petitioner and whether or not is there any property in his name. 5. Pursuant to the order dated 24.08.2011, SHO, police station Uttam Nagar, filed the status report and submits that on inquiry it is found that the property No.M-331, Raghubir Nagar, New Delhi, is registered in the name of father of petitioner, Shri Lalu Ram, which was purchased after selling his earlier House No.A-641 and A-646, Raghubir Nagar, New Delhi. 6. Further it is stated that, one Jhuggi No.W-52, R-144, near water tank, Raghbubir Nagar, Delhi was also found to be registered in the name of the father of the petitioner, which was purchased on 23.08.2005. One tenant Krishan s/o Sh.Laxman is stated to be in possession of said Jhuggi at a monthly rent of `1,200/-.
7. On inquiry it is further found that one Janta Flat No.268, Type GRP-1, Sector B-4, Pocket – 3, Narela, Delhi was allotted in the name of petitioner on 27.09.2007. However, same was disposed on 10.10.2008 for a sale consideration of ` 3.5lacs; a copy of the sale deed is produced by SHO, police
Crl.M.C.No1814/2011 Page 8 of 15
station Uttam Nagar, New Delhi to prove the same. The photocopy seen and returned to the SHO concerned. 8. Learned counsel for respondent further submitted that the said Janta Flat at Narela was purchased during the pendency of the proceedings under the Protection of Women from Domestic Violence Act, 2005. However, the petitioner neither has paid the arrear nor the installments. 9. However, learned counsel for the petitioner has clarified that the petitioner is paying ` 2,000/- per month as understood by both the parties. Further, she submits that the opposite party never raised any objection. 10. Learned counsel for the petitioner further submits that an order for the maintenance was passed on 05.10.2007. Thereafter, the petitioner continued to pay to the respondent a maintenance amount of ` 2,000/- per month. She also continued to accept the same without any protest, till the filing of the execution petition on 04.04.2010. Further she submits that under Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2005, which reads as under:-
“6.Applications to the Magistrate.—(1)
Crl.M.C.No1814/2011 Page 9 of 15
Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto. (2) xx xx xx (3) xx xx xx (4) xx xx xx (5) xx xx xx (6) The application under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973.” 11. Further submitted that under Section 12(2) of the Protection of Women from Domestic Violence Act, 2005, the relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.
12. Further submitted that, the application has to be disposed of as per the provisions under Section 125 (3) of the Code of Criminal Procedure, 1973; wherein it is
Crl.M.C.No1814/2011 Page 10 of 15
enumerated as under:- “125. Order for maintenance of wives, children and parents. – (1) xx xx xx (2) xx xx xx (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person
Crl.M.C.No1814/2011 Page 11 of 15
offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under the section notwithstanding such offer, if he is satisfied that there is just ground for so doing.” 13. Learned counsel for the petitioner submits that learned Magistrate has the power to issue any order for the amount which is due for a period of one year only from the date it became due. 14. Further, pointed out that the amount became due on 05.10.2007 and the execution petition filed on 04.04.2010, is barred by the provisions mentioned above. 15. It is submitted that when the respondent moved an application for execution before learned Metropolitan Magistrate; the petitioner simultaneously, also filed an application for clarification.
16. Vide order dated 18.12.2010, the application for clarification of the petitioner was dismissed whereas; the execution application filed by respondent was allowed and
Crl.M.C.No1814/2011 Page 12 of 15
directed to pay the difference amount of ` 2,000/- per month from the date of order passed by learned Metropolitan Magistrate. 17. Thereafter, the petitioner filed the revision petition before the Sessions Court and the same was dismissed vide order dated 18.03.2011 on technical ground that the Magistrate has no powers to rectify its order, therefore, same was dismissed. 18. Vide the instant petition, the petitioner has assailed said order dated 18.03.2011 passed by learned Additional Sessions Judge. 19. Though, vide order dated 16.08.2011, on equity, this Court directed to reduce the amount from ` 4,000/- to ` 3,000/- per month, to which, petitioner had no objection.
20. Since, learned counsel for the petitioner was of the view that there are chances of the reconciliation in the matter, therefore, this matter was further adjourned and the SHO concerned was directed to ensure the presence of the respondent.
Crl.M.C.No1814/2011 Page 13 of 15
21. After hearing learned counsel for respondent, I am of the view that the chances for reconciliation are bleak; and just to clarify whether the petitioner is earning the same amount as he has agitated before the Trial Court, therefore, just for substantial justice, I directed the concerned SHO for the purpose as mentioned above. 22. After perusing the status report and hearing both counsels, it is emerged that the petitioner is in the vocation of repairing and selling old shirts in Bazar. He is living with his parents and four children. Though, the father of the petitioner is having two Jhuggis in his name; one is occupied by tenant at a monthly rent of ` 1,200/- and the other one is being used as their residence. 23. Therefore, I am of the view that he is not a man of a high means, therefore, the order passed by this Court on 16.08.2011 is maintained; whereby the petitioner was directed to pay the arrears of maintenance @ ` 3,000/- per month.
24. On instructions, learned counsel for the petitioner submits that within ten days, the petitioner shall pay an
Crl.M.C.No1814/2011 Page 14 of 15
amount of ` 7,000/- towards arrear and within 1½ months thereafter he shall clear the outstanding arrears from the date of the order till its realisation. The technical plea taken by the learned counsel for the petitioner being time barred is now, not to be pressed before the Trial Court. 25. If the petitioner fails to pay the said arrear amount within the specified period i.e. maximum two months then the respondent is entitled to simple interest @ 9% per annum on outstanding arrears. 26. I make it clear that this order has been passed with the consent of learned counsels for both parties. However, this order will not come in the way of respondent for the relief under Section 125 Code of Criminal Procedure.
27. Before parting with this order, I record my appreciation for the counsels for both parties, who have assisted the Court in reaching to the amicable settlement. In addition, I also record my appreciation for Inspector Jai Kishan Gautam, SHO police station Uttam Nagar, New Delhi who had submitted the report on pros and cons of income and property of the petitioner, in a very fair manner.
Crl.M.C.No1814/2011 Page 15 of 15

28. In view of above, Criminal M.C.No.1814/2011 is disposed of accordingly. SURESH KAIT, J September 16, 2011 Mk

Supreme Court : Complaint u/s 498A IPC is maintainable by the second wife also even if she was married in existence of the first marriage.

2011-07-26T12:16:00.001+05:30

Complaint u/s 498A IPC is maintainable by the second wife also even if she was married in existence of the first marriage.

2011-07-25 21:19

SUPREME COURT OF INDIA
(J.M. PANCHAL & H.L. GOKHALE, JJ.)
A. SUBASH BABU
Petitioner(s)
VERSUS
STATE OF A.P.& ANR.
Respondent(s)
Criminal Appeal No. 1428 of 2011 (Arising out of S.L.P. (Crl.) No. 6349 of 2010)-Decided on 21-07-2011.
Quashing of Complaint - Cruelty – Set aside
JUDGMENT
J.M. Panchal, J.-Leave granted.
2. This appeal by grant of Special Leave, questions the legality of Judgment dated 26.02.2010, rendered by Reportable the learned Single Judge of the High Court of Judicature, Andhra Pradesh in Criminal Petition No. 2426 of 2005 by which the prayer made by the appellant, a Police Officer, to quash the proceeding in C.C. No. 820 of 1996 initiated for commission of offences punishable under Sections 498A, 494, 495, 417 and 420 IPC, has been partly allowed by quashing proceedings insofar as offence punishable under Section 498A IPC is concerned, whereas the proceedings relating to the offences punishable under Sections 494, 495, 417 and 420 IPC are ordered to continue against the appellant.
3. The appeal arises in the following circumstances:-
The respondent no. 2 is the original complainant. According to her, the petitioner who is Sub-Inspector of Police, cheated her and her parents by stating that his first wife had died after delivering two children who are studying and staying in a hostel, even though his first wife by name Sharda is very much alive and living with him at Reportable Avanthinagar near Erragadda and thus by making false and fraudulent representation, the appellant married with her at Yadagirigutta on 09.10.1994. The case of the respondent no. 2 is that the appellant had collected total amount of Rs.28,000/- from her father towards hand loan on the false plea that he was constructing his own house at Borabanda and the appellant further demanded a sum of Rs.20,000/- from her father and when her father expressed inability to pay the amount, the appellant threatened the complainant and her father with dire consequences by showing his licensed revolver. According to the complainant, several times the appellant had tried to snatch away gold ornaments put on by her by threatening her with dire consequences and had demanded gold ornaments together with cash of Rs.15,000/- from her parents. The case of the respondent no. 2 is that when additional demand was not fulfilled the appellant had threatened her and her father again by saying that he would wipe out the evidence of his marriage with the complainant which had taken place at Yadagirigutta by destroying all the photographs
and negatives and would walk Reportable out of her life. Thus feeling aggrieved by the acts of the appellant in cheating her, committing bigamy and meting out cruelty to her for dowry, etc., the respondent no. 2 lodged FIR dated 26.05.1995 with Ranga Reddy Police Station, Balanagar and prayed to take appropriate action against the appellant for alleged commission of offences under Sections 498A and 420 IPC.
4. The Investigating Officer, investigated the FIR lodged by the respondent no. 2 and submitted charge sheet in the Court of learned Judicial Magistrate, First Class, Hyderabad, West and South Court, R.R.District at Kothapet, Sarunagar for commission of offences punishable under Sections 494, 495, 417, 420 and 498A IPC. On receipt of the charge sheet the learned Magistrate took cognizance of the offences and summoned the appellant. The record shows that earlier Criminal Petition No. 812 of 2001 was filed by the appellant before the High Court to quash the proceedings initiated pursuant to C.C. No. 820 of 1996 pending on the file of the learned Judicial Magistrate. However, the said petition was Reportable withdrawn by the appellant and therefore the petition was dismissed by the High Court vide order dated 09.04.2005 reserving liberty to the appellant to file a fresh petition in case of necessity. After few days thereof, the appellant filed Criminal Petition No. 2426 of 2005 in the High Court for quashing the proceedings in the Criminal Case pending before the learned Magistrate. The record does not indicate as to why Criminal Petition No. 812 of 2001 filed by the appellant in which similar reliefs as claimed in Criminal Petition No. 2426 of 2005, were claimed, was withdrawn and which were the new/additional circumstances/grounds which prompted the appellant to file Criminal Petition No. 2426 of 2005. The said petition was filed mainly on the ground that the proceedings against the appellant were registered for commission of above mentioned offences on the basis of charge sheet submitted by the Sub-Inspector of Police, Women Police Station, Amberpet, R.R. District and not on the basis of complaint made by the aggrieved person within the meaning of Section 198 of the Code. According to the appellant the person aggrieved by alleged commission of Reportable offences under Sections 494 and 495 is his wife and cognizance of those offences could have been taken only on the basis of the complaint filed by his wife in the Court or by someone on her behalf as contemplated by Section 198A (1)(c) of the Code, and therefore, the learned Magistrate could not have taken cognizance of those offences on the basis of submission of charge sheet by Sub-Inspector of Police on the basis of the investigation into the FIR lodged by the respondent No. 2 who is not the aggrieved person within the meaning of Section 198 of the Code. It was pleaded that there was no averment that pursuant to deception or fraudulent or dishonest inducement made by the appellant, there was any delivery or destruction of property belonging to the original complainant and therefore Section 420 IPC was not attracted. It was the case of the appellant that the provision of Section 498A was also not attracted because the respondent no. 2 was not the wife of the appellant. It was also the case of the appellant that Section 417 IPC merged into offence under Section 495 IPC which is a graver offence than Section 417 and as there were no allegations Reportable constituting offence under Section 417 IPC, the proceedings initiated for alleged commission of the offences should be quashed.
5. The High Court considered the submissions advanced at the Bar as well as the provisions of Sections 198(1)(c) of the Code of Criminal Procedure, Section 494 and 495 IPC and the Judgment of Division Bench of Andhra Pradesh High Court in Mavuri Rani Veera Bhadranna Vs. State of A.P. and Anr. 2007 (1) ALD (Crl.) 13 (A.P.) and concluded that the Division Bench in Mavuri Rani Veera Bhadranna (supra) had taken note of the fact that the offence punishable under Section 494 IPC as amended by the State of Andhra Pradesh was made cognizable, and though there was no corresponding amendment to Section 198 of the Criminal Procedure Code, the investigating agency was entitled to investigate, and the Magistrate was not precluded from taking cognizance of the said offence on report filed by the police. Having so concluded the Division Bench proceeded to quote part of the Judgment in Mavuri Rani Veera Bhadranna (supra) and after noting contentions on behalf of the parties proceeded to consider the decision in the case of S.Radhika Sameena Vs. Station House Officer, 1997 Criminal Law Journal 1655 and held that the decision of the Division Bench in Mavuri Rani Veera Bhadranna (supra) was holding the field with regard to competency of the police to file charge sheet and competency of the Magistrate to take cognizance of the offences punishable under Sections 494 and 495 IPC on the report filed by the police. The High Court further concluded that taking cognizance of the offences punishable under Sections 417, 420, 494 and 495 IPC was in accordance with law, but the victim i.e. the respondent no. 2 in the present case was second wife and therefore prima facie marriage between appellant and the second respondent was void and therefore, offence under Section 498A IPC was not made out against the appellant.
6. In view of the above mentioned conclusions, the learned Single Judge of the High Court by the impugned Judgment Reportable partly accepted the petition filed by the appellant under Section 482 of the Code of Criminal Procedure by quashing the proceedings in C.C.No. 820 of 1996 on the file of the learned Judicial Magistrate, First Class, West and South, Kothapet, R.R.District, insofar as offence punishable under Section 498A IPC is concerned, whereas the prayer made by the appellant to quash the proceedings insofar as the offences punishable under Sections 494, 495, 417 and 420 IPC, are concerned, is rejected, giving rise to the instant appeal.
7. The learned Counsel for the appellant argued that the learned Magistrate could not have taken cognizance of offences under Sections 494 and 495 IPC on the basis of the police report submitted by the Investigating Officer because though the State legislation amended the First Schedule to the Code of Criminal Procedure, 1973 by making the offences under Section 494 ad 495 IPC cognizable, the legislation made by the Parliament in respect of Section 198 of the Code of Criminal Procedure remained the same and in the event of Reportable any repugnancy between the two legislations, the legislation made by the Parliament would prevail. It was emphasized that Section 198 A inserted by Section 5 of the Act 46 of 1983 with effect from 25.12.83 provides that no Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code except upon a police report of facts which constitute such offences or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's, her mother's, brother or sister or with the leave of the Court by any other person related to her by blood, marriage or adoption, but no provision is made to enable a court to take cognizance of offences punishable under Sections 494 and 495 of the Indian Penal Code upon police report and therefore the proceedings pending before the learned Magistrate in respect of those offences should have been quashed. Referring to Section 198(1)(c) which inter alia provides that no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by a person aggrieved, where the person Reportable aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code, is the wife etc., it was pleaded that in the instant case no complaint was made to the Court but was made to the police and on the basis of charge sheet, the Magistrate had taken cognizance of the offences which is contrary to Section 198 of the Code and is illegal. What was asserted was that the High Court failed to notice that under Section 198(1)(c) of the Criminal Procedure Code only a legally wedded wife or someone on her behalf as mentioned in the said Section can make a complaint to Magistrate for the offences under Section 494 and 495 IPC and as admittedly the complaint was made by the respondent no. 2 who is claiming to be second wife of the appellant herein and that too to the police and not in the Court, the proceedings initiated for alleged commission of those offences should have been quashed. In support of above stated contentions, the learned Counsel for the petitioner placed reliance on the decision in Mavuri Rani Veera Bhadranna (Supra).
8. On the other hand, the learned Counsel for the respondents argued that by Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, the offences under Sections 494 and 495 have been made cognizable in the State of Andhra Pradesh, and therefore the respondent No. 2 who is aggrieved person so far as commission of offences punishable under Sections 494 and 495 IPC are concerned, was justified in lodging FIR with the police and the police after investigation, was justified in submitting charge sheet on the basis of which proceedings are pending before the learned Magistrate in respect of alleged commission of offences by the appellant under Section 494, 495, 417, 420 and 498A IPC. The contention by the learned Counsel for the respondents was that 198(1)(c) of the Code of Criminal Procedure will have to be read in the light of the amendment made in the Code by the State Legislature and therefore the learned Magistrate did not commit any error in taking cognizance of the offences on the basis of charge sheet submitted by the Investigating Officer.
Reportable
9. This Court has heard the learned Counsel for the parties at length and also considered the documents forming part of the appeal.
10. The contention that the respondent no. 2 is not an aggrieved person so far as commission of offences punishable under Sections 494 and 495 IPC is concerned, has no substance and cannot be accepted. Section 494 of IPC reads as under:-
"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Whereas Section 495 of the IPC is as follows:-
"Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Reportable As far as Section 494 IPC is concerned, the criminality attaches to the act of second marriage either by a husband or by a wife who has a living wife or husband, in a case in which second marriage is void by reason of its taking place during the life of such husband or wife. When a law, such as Section 11 of Hindu Marriage Act, 1955 declares that a second marriage by a husband, who has living wife, with another woman is void, for breach of Section 5(i) of the said Act, it brings/attaches several legal disabilities to the woman with whom second marriage is performed. Say for example, she would not be entitled to claim maintenance from her husband even if she is inhumanly treated, subjected to mental and physical cruelty of variety of kinds etc. and is not able to maintain herself. Law of inheritance would prejudicially operate against her. She herself would suffer outrageous, wrong and absurd social stigma of being another woman in the life of the male who contracts second marriage with her. The members of the cruel society including her kith and kin like parents, brother, sister etc. would look down upon her and she would be left in lurch by one and all.
Reportable When a Court of law declares second marriage to be void on a petition presented by husband who contracts the second marriage on the ground that he has a spouse living at the time of marriage, it only brings untold hardships and miseries in the life of the woman with whom second marriage is performed apart from shattering her ambition to live a comfortable life after marriage. Having noticed the agony, trauma etc. which would be suffered by the woman with whom second marriage is performed, if the marriage is declared to be void, let us make an attempt to ascertain the purpose of enacting Section 494 IPC. This Section introduces monogamy which is essentially voluntary union of life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. Polygamy was practiced in many sections of Hindu society in ancient times. It is not a matter of long past that in India, hypergamy brought forth wholesale polygamy and along with it misery, plight and ignominy to woman having no parallel in the world. In post vedic India a King could take and generally Reportable used to have more than one wife. Section 4, of Hindu Marriage Act nullifies and supersedes such practice all over India among the Hindus. Section 494 is intended to achieve laudable object of monogamy. This object can be achieved only by expanding the meaning of the phrase "aggrieved person". For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book. Having regard to the scope, purpose, context and object of enacting Section 494 IPC and also the prevailing practices in the society sought to be curbed by Section 494 IPC, there is no manner of doubt that the complainant should be an aggrieved person. Section 198(1)(c) of the Criminal Procedure Code, amongst other things, provides that where the person aggrieved by an offence under Section 494 or Section 495 IPC is the wife, Reportable complaint on her behalf may also be filed by her father, mother, sister, son, daughter etc. or with the leave of the Court, by any other person related to her by blood, marriage or adoption. In Gopal Lal Vs. State of Rajasthan (1979) 2 SCC 170 this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it contravenes the conditions specified in Clause (i) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared. Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purposeReportable of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband. Even otherwise, as explained earlier, she suffers several legal wrongs and/or legal injuries when second marriage is treated as a nullity by the husband arbitrarily, without recourse to the Court or where declaration sought is granted by a competent Court. The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant. Section 494 does not restrict right of filing complaint to the first wife and Reportable there is no reason to read the said Section in a restricted manner as is suggested by the learned Counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the
woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife. A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married with the respondent no. 2 herein by concealing from her the fact of former marriage and therefore her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is, maintainable and cannot be quashed on this ground. Reportable To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries would be height of perversity.
11. Section 495 IPC provides that if a person committing the offence defined in Section 494 IPC conceals from the person with whom subsequent marriage is contracted, the fact of the former marriage, the said person is liable to punished as provided therein. The offence mentioned in Section 495 IPC is an aggravated form of bigamy provided in Section 494 IPC. The circumstance of aggravation is the concealment of the fact of the former marriage to the person with whom the second marriage is contracted. Since the offence under Section 495 IPC is in essence bigamy, it follows that all the elements necessary to constitute that offence must be present here also. A married man who by passing himself off as unmarried induces an innocent woman to become, as she thinks his wife, but in reality his mistress, commits one of the grossest forms of frauds known to law Reportable and therefore severe punishment is provided in Section 495 IPC. Section 495 begins with the words "whoever commits the offence defined in the last preceding Section........" The reference to Section 494 IPC in Section 495 IPC makes it clear that Section 495 IPC is extension of Section 494 IPC and part and parcel of it. The concealment spoken of in Section 495 IPC would be from the woman with whom the subsequent marriage is performed. Therefore, the wife with whom the subsequent marriage is contracted after concealment of former marriage, would also be entitled to lodge complaint for commission of offence punishable under Section 495 IPC. Where second wife alleges that the accused husband had married her according to Hindu rites despite the fact that he was already married to another lady and the factum of the first marriage was concealed from her, the second wife would be an aggrieved person within the meaning of Section 198 Cr. P.C. If the woman with whom the second marriage is performed by concealment of former marriage is entitled to file a complaint for commission of offence under Section 495 IPC, there is no reason why she Reportable would not be entitled to file complaint under Section 494 IPC more particularly when Section 495 IPC is extension and part and parcel of Section 494 IPC. For all these reasons, it is held that the woman with whom second marriage is contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 IPC.
12. The argument that the learned Magistrate could not have taken cognizance of offence punishable under Sections 494 and 495 IPC on the basis of the police report i.e. charge sheet, as those offences are non- cognizable and therefore, the relief claimed in the petition filed before the High Court under Section 482 of the Code should have been granted is devoid of merits.
13. In this regard, it would be, relevant to notice the provisions of Article 246 of the Constitution. Article 246 deals with subject matter of laws made by the Parliament Reportable and by the legislatures of State. Clause (1) of Article 246 inter alia provides that notwithstanding anything contained in Clauses (2) and (3) of Article 246, the Parliament has exclusive power to make laws with respect to any of the maters enumerated in List 1 in the Seventh Schedule. Sub-Clause 2 of the said Article provides that notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the legislature of any State also have power to make laws with respect to any of the matters enumerated in List 3 in the Seventh Schedule, whereas, Clause (3) of Article 246 amongst
other things provides that subject to Clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 2 in the Seventh Schedule. Entry 2 in List 3 i.e. Concurrent List in the Seventh Schedule mentions "Criminal Procedure, including in matters included in the Code of "Criminal procedure, at the commencement of this Constitution". Thus there is no manner of doubt that Parliament and subject to Clause (1), the legislature of any State also has power to make laws with Reportable respect to Code of Criminal Procedure. Section 2(c) of the Code of Criminal Procedure, 1973 defines the phrase "Cognizable Offence" to mean an offence for which and "Cognizable Case" means a case in which, a Police Officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. Part I of the First Schedule to the Code of Criminal Procedure, 1973 relating to offences under the Indian Penal Code inter alia mentions that Section 494 and 495 are non- cognizable. Section 154 of the Criminal Procedure Code relates to information in cognizable cases and provides inter alia that 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 and be read over to the informant. Section 156 of the Code provides that any Officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over a local area within the limits of such station would have power to enquire into or try under provisions of Chapter XIII of Criminal Procedure Code.
Reportable As Sections 494 and 495 are made non-cognizable, a Police Officer would not have power to investigate those cases without the order of a Magistrate, having a power to try such cases or commit such cases for trial as provided under Section 155(2) of the Code. However, this Court finds that the Legislative Assembly of the State of Andhra Pradesh enacted the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. By the said Amending Act, the First Schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 came to be amended and against the entries relating to Section 494 in column 4 for the word "Ditto", the word "Cognizable" and in column 5 for the word "Bailable" the word "Non-bailable" were substituted. Similarly, against the entries relating to Section 495 in column 4, for the word "Ditto" the word "Cognizable" and in column 5 for the word "Ditto", the word "Non-bailable" were substituted. What is relevant to be noticed is that the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was reserved by the Governor of Andhra Pradesh on the 21st October, 1991 for Reportable consideration and assent of the President. The Presidential assent was received on 10th February, 1992 after which the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was published on the 15th February, 1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus there is no manner of doubt that Sections 494 and 495 IPC are cognizable offences so far as State of Andhra Pradesh is concerned.
14. Having noticed the amendment made by the Legislative Assembly of the State of Andhra Pradesh regarding Section 494 and 495 IPC, this Court proposes to consider the effect of assent given by the President on 10th February, 1992 to the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. Article 254 of the Constitution reads as under:-
"254 Inconsistency between laws made by Parliament and laws made by the Legislatures of States:-
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any Reportable provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law
made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has bee reserved for the consideration of the President and has received his assent, prevail in that State. Provided that nothing in this clause shall prevent Parliament from enacting a law adding to, amending, varying or repealing the law made by the legislature of the State".
There is no manner of doubt that Amending Act of 1992 is on the subject which is already in existence in the Code of Criminal Procedure, 1973. However, in view of Clause (2) of Article 254 of the Constitution, an undoubted power to legislate, of course subject to assent of the President on the Reportable subject already in existence, is available to the State Legislature. Clause (1) of Article 254 is operative subject to provisions of Clause (2). If a law passes a test of Clause (2), it will make Clause (1) inapplicable to it. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State Law which has been reserved for his consideration as required by Article 200, it will prevail notwithstanding its repugnancy to an earlier law of Union. Clause (2) provides for curing of repugnancy which would otherwise invalidate a State law which is inconsistent with a Central law or an existing law. The clause provides that where the State law has been reserved for the consideration of the President and has received his assent, the State law would prevail in the particular State notwithstanding its repugnancy to a Central law or an existing law. Clause (2) comes into play only when (1) the two laws in question deal with a matter in Concurrent List (2) the State law has been made with the consent of the President and
(3) the provision of law made by Parliament was earlier. When all these three conditions are satisfied, Reportable the law made by the State Legislature will prevail. Where there is inconsistency between laws made by Parliament and laws made by the State Legislature, the law made by the Parliament shall prevail. If the State makes law enumerated in Concurrent List which contains provisions repugnant to the provision of an earlier law made by the Parliament, the law so made by the State if it receives assent of President will prevail in the State. When the State Act prevails under Article 254(2) over a Central Act, the effect is merely to supersede the Central Act or to eclipse it by the State Act. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union Law relating to a concurrent subject would be that the State Act will prevail in that State and overrule the provisions of the Central Act, in that State. In view of the above settled legal position, this Court has no doubt that the amendment made in the First Schedule to the Code of Criminal Procedure, 1973 by the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, shall prevail in the State of Andhra Reportable Pradesh, notwithstanding the fact that in the Criminal Procedure Code, 1973 offences under Section 494 and 495 are treated as cognizable offences. The reasoning given by the Division Bench of High Court of Andhra Pradesh in Mavuri Rani Veera Bhadranna (supra) that though the State Legislation amended the Schedule making the offence under Section 494 IPC cognizable, the legislation made by the Parliament i.e. Section 198 of the Criminal Procedure Code remains and in the event of any repugnancy between the two legislations, the legislation made by the Parliament would prevail, because, Section 198 of the Criminal Procedure Code still holds the field despite the fact that the State Legislation made amendment to the Schedule of Criminal Procedure Code, with respect, is erroneous and contrary to all cannons of interpretation of statute. Once First Schedule to the Code of Criminal Procedure, 1973 stands amended and offences punishable under Sections 494 and 495 IPC are made cognizable offences, those offences will have to be regarded as cognizable offences for all purposes of the Code of Criminal Procedure, 1973 including for the Reportable purpose of Section 198 of the Criminal Procedure Code. Section 198(1)(c), after the Amendment made by the Code of Criminal Procedure(Andhra Pradesh Second Amendment) Act, 1992 cannot be interpreted in isolation without referring to the fact that offences under Sections 494 and 495 IPC have been made cognizable so far as the State of Andhra Pradesh is concerned. Therefore, the provision made in Section 198(1)(c) that no Court shall take cognizance of an offences punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved will have to be read subject to the amendment made by the Legislative Assembly of the State of Andhra Pradesh in 1992. Once, it is held that the offences under Section 494 and 495 IPC are cognizable offences, the bar imposed by operative part of sub-section 1 of Section 198 of the Criminal Procedure Code beginning with the words "No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence" gets lifted so far as offences punishable under Sections 494 and 495 IPC are concerned.
Reportable As those offences have been made cognizable offences in the State of Andhra Pradesh since 1992, the same will have to be dealt with as provided in the Section 156 which inter alia provides that any officer in charge of a Police Station, may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII. Even without the authorization under Section 155(2) or Section 156(3) of Criminal Penal Code, offences under Sections 494, 495 and 496 having been rendered cognizable and non- bailable by virtue of the Criminal Procedure Code (Amendment Act, 1992) can be investigated by the Police and no illegality is attached to the investigation of these offences by the police. If the Police Officer in charge of a Police Station is entitled to investigate offences punishable under Section 494 and 495 IPC, there is no manner of doubt that the competent Court would have all jurisdiction to take cognizance of the offences after receipt of report as contemplated under Section 173(2) of the Code. Thus, this Reportable Court finds that correct proposition of law was not laid down in Mavuri Rani Veera Bhadranna (supra) when the Division Bench of the Andhra Pradesh High Court in the said case held that as Section 198 of Criminal Procedure Code still holds the field despite the amendment made by State Legislature, the Court would have no jurisdiction to take cognizance of an offence punishable under Section 494 IPC on the basis of report submitted by the Investigating Officer. Even if it is assumed for the sake of argument that in view of Section 198(1)(c) of the Code of Criminal Procedure, the Magistrate is disentitled to take cognizance of the offences punishable under Sections 494 and 495 IPC despite the State amendment making those offences cognizable, this Court notices that in Mavuri Rani Veera Bhadranna (supra), the Division Bench has considered effect of Section 155(4) of the Criminal Procedure Code and thereafter held that the bar under Section 198 would not be applicable as complaint lodged before police for offence under Section 494 IPC also related to other cognizable offences and if police files a charge sheet, the Court can take cognizance also of offence Reportable under Section 494 along with other cognizable offences by virtue of Section 155 (4) of the Criminal Procedure Code.
15. Section 155(4) of the Code inter alia provides that:-
"Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable"
Here in this case in the charge sheet it is mentioned that the appellant has also committed offence punishable under Section 420 of the Indian Penal Code which is cognizable and therefore this is a case which relates to two or more offences of which at least one is cognizable and therefore the case must be deemed to be cognizable case notwithstanding that the other offences are non- cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495 IPC. The case of the respondent no. 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498A of the IPC. A question may arise as to Reportable what should be the procedure to be followed by a complainant when a case involves not only non- cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also alongwith non-cognizable offences it should not be treated as a non- cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate could not have taken cognizance of the offences punishable under Sections 494 and 495 IPC on the basis of submission of charge sheet, cannot be accepted and is hereby rejected.
Reportable
16. This Court finds that the High Court has quashed the proceedings pending before the learned Magistrate under Section 498A of IPC on the spacious ground that the marriage of the appellant with the respondent no. 2 is void and as respondent no. 2 is not the wife, she was not entitled to lodge first information report with the police for commission of offence u/s. 498A IPC and on the basis of police report, cognizance of the said offence against the appellant could not have been taken by the learned Magistrate. Such reasoning is quite contrary to the law declared by this Court in Reema Aggarwal Vs. Anupam and others (2004) 3 SCC 199. After examining the scope of Section 498A of the Indian Penal Code and holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise, this Court speaking through Hon'ble Mr. Justice Arijit Pasayat, has held as under:-
Reportable "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. The 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 the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the 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 coerces her in any manner or for any of the purposes Reportable 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 cohabit with such woman, in the purported exercise of their 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."
17. In view of firm and clear law laid down on the subject, this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the appellant under Section 498A of the Code on the ground that the respondent no. 2 was not wife within the meaning of Section 498A of the IPC and was not entitled to maintain complaint under the said provision. The question therefore which arises for consideration of the Court is whether the said finding recorded by the High Court can and should be set aside in the present appeal which is filed by Reportable the husband. It was argued by the learned Counsel for the appellant that quashing of proceedings with reference to offence punishable under Section 498A of Indian Penal Code is neither challenged by the State Government nor by the original complainant before this Court and the same having attained finality, the same cannot be disturbed in an appeal filed by the husband appellant in which grievance is made regarding non-grant of relief in full by the High Court.
18. This Court does not find any substance in the above mentioned argument of the learned Counsel for the appellant. The law declared by this Court in case of Reema Aggarwal (Supra) was binding on all Court including the learned Single Judge of High Court of A.P. who decided the present case in view of salutary provisions of Article 141 of the Constitution. The learned Single Judge of the High Court could not have afforded to ignore the law declared by this Court in Reema Aggarwal (Supra) while considering the question whether proceedings initiated by the respondent no. 2 for commission of offence punishable under Section 498A Reportable of IPC should be quashed or not. The High Court has completely misdirected itself in quashing the proceedings for the offence punishable under Section 498A of IPC. There is no manner of doubt that the finding recorded by the High Court that the respondent no. 2 is not the wife within the meaning of Section 498A of the Indian Penal Code runs contrary to law declared by this Court in case of Reema Aggarwal (Supra). There may be several reasons due to which the State might not have challenged that part of the Judgment of the learned Single Judge quashing the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal Code. So also because of several reasons such as want of funds, distance, non-availability of legal advice, etc. the original complainant might not have approached this Court to challenge that part of the judgment of the learned Single Judge which is quite contrary to the law declared by this Court. However, this Court while entertaining an appeal by grant of special leave has power to mould relief in favour of the respondents notwithstanding the fact that no appeal is filed by any of the respondents Reportable challenging that part of the order which is against them. To notice an obvious error of law committed by the High Court and thereafter not to do anything in the matter would be travesty of justice. This Court while disposing of an appeal arising out of grant of special leave can make any order which justice demands and one who has obtained illegal order would not be justified in contending before this Court that in absence of any appeal against illegal order passed by the High Court the relief should not be appropriately moulded by the Court or that the finding recorded should not be upset by this Court.
19. In Chandrakant Patil Vs. State (1998) 3SCC 38, even in absence of an appeal by Government specifically for that purpose and in absence of revisional power as is available to High Court and Sessions Court, under Criminal Procedure Code, this Court held that the Supreme Court has power under Article 142 read with Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 to enhance the sentence for doing complete justice in the matter that in Reportable the circumstances of the case appeared to it, to be too inadequate. In the said case it was contended that the Supreme Court has no power to enhance sentence in the absence of an appeal by the Government presented specifically for that purpose more so because Supreme Court has no revisional powers which the High Court and Court of Sessions are conferred with by the Criminal Procedure Code. While negativating the said contention this Court has firmly ruled that powers of the Supreme Court in appeals filed under Article 136 of the Constitution are not restricted by the appellate provisions enumerated under the Code of Criminal Procedure or any other statute. What is held as firm proposition of law is that when exercising appellate jurisdiction the Supreme Court has power to pass any order. The power under Article 136 is meant to supplement the existing legal frame work. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. Though challenge was not made by any of the two respondents to the finding recorded by the learned Single Judge that the complaint lodged by the Reportable respondent no. 2 for alleged commission of offence punishable under Section 498A of the Indian Penal Code is not maintainable because she is not a wife, this Court feels that absence of challenge either by State or by the original complainant should not persuade or prevent this Court from doing justice between the parties by restoring the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal Code on the file of the learned Magistrate. The conclusion arrived at by the High Court is such as to shake the conscience and sense of justice and therefore it is the duty of this Court to strike down the finding recorded with respect to the offence punishable under Section 498A, irrespective of technicalities. The judgment of the High Court quashing the proceedings initiated by the learned Magistrate for commission of offence punishable under Section 498A is tainted with serious legal infirmities and is founded on a legal construction which is wrong. So the technical plea advanced by the learned counsel for the appellant that in absence of appeal by any of the respondents, quashing of proceedings with respect to the offence punishable under Reportable Section 498A IPC, cannot be set aside, is hereby rejected. As held in Ramakant Rai Vs. Madan Rail (2003) 12 SCC 395 following Arunachalam Vs. P.S.R. Sadanatham (1979) 2 SCC 297 and P.S.R. Sadanatham Vs. Arunchalam (1980) 3 SCC 141, the appellate power vested in the Supreme Court under Article 136 is not to be confused with the ordinary appellate power exercised by appellate Courts and appellate Tribunals under specific statutes. It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice. Article 136 is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice, is the sky itself. Further, the powers under Article 136 can be exercised by the Supreme Court, in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist. Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well settled that illegality should not be allowed to be perpetuated and failure by this Court to Reportable interfere with the same would amount to allow illegality to be perpetuated. When an apparent irregularity is found by this Court in the order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it.
There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.
20. Therefore, that part of the impugned judgment by which the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal code is quashed by the High Court will have to be set aside while disposing the appeal filed by the appellant.
21. For the foregoing reasons, the appeal filed by the appellant fails and therefore the same is hereby dismissed. The impugned Judgment quashing the complaint filed by the respondent no. 2 for alleged commission of offence by the Reportable appellant under Section 498A IPC, is hereby set aside and the complaint lodged by the respondent no. 2 under Section 498A of the Indian Penal Code as well as charge sheet submitted by the Investigating Officer for the same shall stand restored/revived. Subject to above mentioned direction the appeal stands disposed of.
------
Supreme Court

High Court Calcutta : Not Allowing wife to enter husband's House, 18 July 2008

2011-07-10T12:51:00.002+05:30

Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon’ble Mr. Justice Bhaskar Bhattacharya
And
The Hon’ble Mr. Justice Rudrendra Nath Banerjee
F.A. No. 96 of 2000
Sri Subhash Chandra Das Chowdhury
Versus
Smt. Sandhya Das Chowdhury
For the Appellant/Petitioner: Mr Dilip Kumar Mondal, Mr Sandip Roy Chowdhury,
Mr Gurudas Mitra.
For the Respondent/Opposite Party: Mr S.S. Mukherjee, Mr Siddheswar Chandra.
Heard on: 03.06.2008, 10.06.2008 &12.06.2008.
Judgment on: 18th July, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a husband in a suit for divorce on the
ground of cruelty and is directed against the judgment and decree dated 23rd
December, 1998 passed by the learned Additional District Judge, Fifth Court,
Alipore, in Matrimonial Suit No.66 of 1990 thereby dismissing the suit with a
specific finding that the appellant failed to prove cruelty alleged in the
application for divorce.
The case made out by the appellant in the pleading as amended may be summed
up thus:
(a) The parties were married on 7th March, 1988 according to the Hindu rites
and ceremonies at 1/15, Mall Road, Dum Dum. On the eighth day of the marriage,
at the time of visit to the wife’s house, the appellant was told by the mother
and the brother of the respondent that he was required to stay away from his
own family and start his life with his wife at the paternal house of the
respondent at Dum Dum as a domesticated son−in−law. The appellant, however, did
not agree with such proposal and such denial on his part annoyed the
respondent, her mother, brother and sister. (b) Thereafter, the appellant took
his wife to Puri on honeymoon and stayed there for about 10 days and after
returning from Puri, the wife stayed in the house of the appellant for a few
days and thereafter, left for her own house at Dum Dum on 17th April, 1988.
(c) On or about 2nd May, 1988, the appellant went to Dum Dum to take her back
but she refused to come back by asserting that the appellant should forget his
parents and sisters and must stay at Dum Dum in their family. Subsequently, the
appellant again on 12th May, 1988, 19th May, 1988 and 27th May, 1988 went to
his father−in−law’s house to bring his wife back but she did not come.
(d) On 12th June, 1988, the respondent made a false and baseless complaint to
the local Nagarik Committee; the office bearers of such Committee, after
hearing the parties and being satisfied that there was no truth in her
allegations, asked her to return to her matrimonial home but she did not come
back.
(e) On 27th July, 1988 at about 7 p.m., when the appellant was out of his
house, the respondent came along with her brother and some antisocial persons.
Although, the sisters of the appellant welcomed them, they, after going to the
first floor of the house, started abusing the members of the husband’s family
in filthy language. Her brother and his antisocial associates started beating
the appellant’s sisters and even did not spare the old father of the appellant
who was then aged about 76 years. One of the appellant’s sisters managed to
escape and informed the local people and apprehending the danger, those
antisocial associates of the respondent left the place and threatened that they
would come again. (f) The father of the appellant, therefore, lodged a G.D.
with the Behala Police Station on 27th July, 1988 narrating the incident. After
coming back, the appellant heard the whole incident and on the next day, he
lodged a written complaint before the local police station.
(g) During her first one−month stay in the appellant’s house, the wife removed
all her ornaments that she got as presentation to her father’s house and
thereafter, she approached the Nagarik Committee by making false complaint
against the husband. The Nagarik Committee initially refused to interfere in
the matter. However, for maintaining peace and with the hope of better days,
the appellant was forced to take a separate rented house at the instigation of
the respondent in her name at 48/2/1, Kabi Guru Sarani Road, P.S.−Behala and
shifted to that house on 20th August, 1988 leaving his paralytic mother and old
father and unmarried sisters. The appellant purchased the household utensils,
fan, etc. and stayed there up to March 1989.
(h) During his stay with the respondent at the rented house, the appellant
passed a very miserable life. The respondent used to come at about 9 p.m. in
the evening some time on bus, minibus and on occasions, in the cars of others.
On enquiry about her late coming, she used to answer in dirty language.
Sometimes at the dead of night, she used to turn the appellant out of bedroom
forcibly and for avoiding scandals, the appellant had to stay outside the room
sitting on the floor.
(i) During the stay at rented house, the respondent sometime kept the house
under lock and key for days together staying at her father’s residence. These
behaviours of the respondent amounted to cruelty and in view of misbehaviour of
the respondent, the appellant had lost his dignity and prestige before his
friends, neighbours and office colleagues. He could not sleep at night nor
could he mix with his friends, neighbours and office colleagues.
(j) The respondent also used to utter insulting language towards the appellant
and complain that the appellant had been living in adultery with his sisters.
Such false allegation gave great shock in the mind of the appellant. (k) On
25th March, 1989, the respondent did not allow the appellant to enter the house
shouting that he was in illicit connection with his sisters and that she would
not stay with him and drove him out on that ground. Since then, the appellant
had been residing at her mother’s house at 99, Agarwall Garden Road.
(l) On 19th April, 1989, the appellant’s mother died and in spite of giving
information, the respondent did not come to take part in funeral nor did she
take part in the Sradh Ceremony.
(m) On 25th May, 1989, the respondent came with her brother and some
associates in the house of the appellant and asked the appellant to send the
two sisters to any orphanage and the father to an old age home and only in
these circumstances, she agreed to come to the house of the appellant. The
respondent also used filthy language towards the appellant’s sisters and
father. Thereafter, they left the house. (n) After the filing of the suit, the
respondent with the help of the Nagarik Committee forcibly entered into the
house of the appellant and injured the inmates of the house. In view of such
incident, a General Diary was lodged in the local police station and
subsequently, the respondent lodged complaint under Section 498A of the Indian
Penal Code against the appellant and other members of the family. All of them
were arrested and subsequently, were released on bail. She forcibly occupied a
portion of the house of his father after the institution of the suit.
The respondent contested the suit by filing written statement thereby denying
the material allegations made in the plaint and the defence of the respondent
may be summed up thus:
(1) All the allegations made against the wife were false. On 8th April, 1988,
the appellant along with his divorced sister tried to set fire in her Sari as
the respondent told that there was no talk of giving dressing table at the time
of marriage. The appellant and his divorced sister began to beat her, as a
result, the respondent had fallen ill and ultimately, she left with her brother
to the respondent’s house at Dum Dum on 24th April, 1988. (2) On 27th May,
1988, the respondent went to the appellant’s house at Behala after being
recovered from illness but the appellant’s father and the divorced sister
forcibly drove her out from the house and threatened her with dire consequence
if the respondent came to the house of the appellant any further. The appellant
told the respondent that he would marry his previous girlfriend after divorcing
the respondent. The allegation that on 27th July, 1988, the wife and her
brother and other antisocial elements came to the house of the appellant and
abused the family−members was a false statement and the diary lodged was based
on false story. It was equally false that the respondent removed all her
ornaments and clothing to her father’s house.
(3) The appellant at the rented house, on several occasions, forced the wife to
stay outside the room and tortured her. It was absolutely a false allegation
that she used to come back at late night as alleged. The respondent was
attacked with Cholera in the rented house but at that time, the appellant left
the respondent and lived at his father’s house. The local people helped the
respondent from recovering from the illness. It was absolutely false to allege
that the wife ever asked the husband to send his two sisters in boarding house
and the father to an old age home.
(4) The husband had a love affair with a girl from the childhood, which was
disclosed by the husband after the marriage, and the appellant married the
respondent with an intention to grab the ornaments and the clothing of the
respondent, as she was a Central Government employee. The appellant used to
often beat the respondent. After returning from Puri, the appellant started
beating, slapping and torturing the respondent. However, the mother−in−law of
the respondent was very much kind towards the respondent and she advised the
appellant not to beat the respondent. The appellant made several General
Diaries before the local police station. Once the appellant and his divorced
sister tried to burn the respondent when she was asleep at the house of the
appellant. At the intervention of the well−wishers of the respondent, the
rented house was taken but after the appellant physically assaulted the
respondent, the members of the Mahila Samity helped the respondent to enter the
house of the appellant on 8th March, 1990 and from that date, the parties
started living as husband and wife in the same room sharing the same bed.
(5) The respondent is a service holder being an upper division clerk at A.G.
Bengal and wants to live with the appellant as husband and wife but the
intention of the appellant was to drive out the respondent with a motive to
marry another girl and to grab the ornaments of the respondents. Even after the
institution of the suit, the parties were leading conjugal life as a husband
and wife and therefore, the suit was liable to be dismissed. At the time of
hearing, five witnesses including the appellant gave evidence in support of the
case of the appellant while six witnesses including the respondent deposed in
opposing the claim.
As pointed out earlier, the learned Trial Judge by the judgment and decree
impugned herein has disbelieved the case of the appellant and, therefore,
dismissed the suit.
Being dissatisfied, the husband has come up with the present first appeal.
After hearing the learned counsel for the parties and after going through the
materials on record, we find that the parties were unhappy from the very
beginning of the marriage. The allegation of the husband in this regard was that
the wife wanted to make him a domesticated son−in−law and that is the cause of
all trouble, while the wife alleged that the two sisters of the husband made her
life miserable in the matrimonial home and they even tried to kill her by
setting fire on her wearing apparel. There is no dispute that the Nagarik
Committee and the local Mahila Samity intervened at the instance of the wife
and on their advice, a separate tenanted accommodation was taken in the name of
the wife in a nearby place. Such effort, however, was not found to be
successful. According to the husband, due to cruel treatment of the wife in the
rented accommodation, he was compelled to leave the said rented house and come
back to his father’s house, whereas, according to the wife, it was the husband
who misbehaved with her and left her in the said rented accommodation. The
wife, however, spoke high of her mother−in−law and stated that she used to
protect her from the misbehaviour of her son and daughters. The mother of the
husband died in the year 1989.
The suit was filed in the month of February 1990 when the wife was not
staying in the house of her father−in−law. During the pendency of the suit, the
wife with the help of the local people forcibly entered in the house of the
father of the husband and occupied one of the rooms and further trouble started
leading to the initiation of the criminal case under Section 498A of the Indian
Penal Code against all the members of his family and consequently, all of them
were arrested and subsequently released on bail. The said proceedings are still
pending after framing of charges. The wife in her deposition admitted that with
the help of the Mahila Samity, she got entry in the said house in the month of
March 1990 and she claimed that she had been staying in the said house with the
appellant as a husband and wife till the death of her father−in−law. There is
no dispute that one of the sisters of the husband has also died in the
meantime. The learned Trial Judge was of the view that initiation of the
criminal proceedings against the husband and the other members of the family
could not amount to cruelty as charge has already been framed and at that
stage, one could not presume innocence of the husband. Moreover, according to
the learned Trial Judge, the wife had every right to start criminal proceedings
if any crime was committed by the husband against her. We fully subscribe to
the aforesaid view taken by the learned Trial Judge. However, we, in this
matrimonial proceeding for divorce, cannot approve the action of the wife of
forcefully entering the house of the husband when a suit for divorce had
already been filed against her on the ground of cruelty. She had her rented
accommodation where she was staying and had also the paternal house at Dum Dum.
She is an employee of the Central Government and is not a helpless lady in that
sense of the term and not even dependant upon the husband in anyway. In our
view, once a matrimonial suit has been filed, the wife has no right to have a
force entry in the house of her husband against his will if she is provided
with maintenance by the husband. In the case before us, the respondent being an
employee of the Central Government, she is quite capable of maintaining herself
and thus, she had no right to enter the house of the husband by the help of the
local people. The sole object of the respondent was to frustrate the suit by
contending that she had been staying in the same room as husband and wife and
she has actually taken such plea in this proceeding. We, however, do not
believe such assertion of the wife after taking into consideration the fact
that the she has initiated proceedings under Section 498A of the Indian Penal
Code during the pendency of the suit and all the members of the family were
arrested. No reasonable person will believe the statement of the wife that the
husband is staying with her notwithstanding the pendency of the criminal case
where charge has been framed and he is an accused person along with other
members of the family. Such wrongful entry in the house with the help of local
people has definitely caused humiliation of the husband, an employee of the
defence service, in the estimation of the local people and in the facts of the
present case positively amounts to cruelty. We further find that the wife in
her written statements made specific allegation that the husband, in order to
marry his girlfriend and to misappropriate her ornaments, filed the suit for
divorce. In evidence, however, the respondent did not lead any evidence in
support of such allegation about the moral character of the husband and no
suggestion was even given in cross−examination of the husband that he had any
illicit relation with any girl. We, therefore, find that the wife has made
baseless allegation against the husband in the written statement about the
desire of the husband to marry any other lady and such act also amounts to
cruelty. Therefore, even if we hold that the husband has failed to prove
that the wife used to allege his illicit relation with his own sisters, we are
satisfied that the subsequent behaviours of the wife towards the husband
definitely amount to cruelty. It appears that on the pressure of the wife and
the members of the local Nagarik Committee, a separate rented accommodation was
taken and that too, in the name of the wife but in spite of such fact, the
parties could not live peacefully. No specific cause could be pointed out by
the wife showing the reason of the discord and the only defence taken in the
written statement as regards the desire to marry the girlfriend has not been
proved. In the rented house, the sisters of the husband were not there and
therefore, they could not be blamed for the unhappiness of the parties in that
rented accommodation. The husband, however, alleged that the respondent used to
come late at night and did not cook for the husband, which was denied by the
wife. The fact that the husband used to take lunch in his office canteen has
been admitted by the wife. We find from the deposition of the wife that she is
a pathological liar as would appear from various deliberate false statements
made in course of deposition. She stated that she came to know of the filing of
the suit on 12th August, 1990 whereas it appears from the order−sheet that she
entered appearance in the suit on 26th April, 1990 and repeatedly prayed for
time to file written statement. In her cross− examination, she stated that she
lodged complaint under Section 498A of the Indian Penal Code against her
father−in−law and the sisters−in−law and not against her husband although it
appears that the husband was one of the accused persons and was arrested. She
further stated in one place of her deposition that in the rented accommodation,
both of them were happy and there was no torture upon either of the parties.
(See: page 112 at the penultimate paragraph of the Paper Book). Such statement
is inconsistent with her other statements as regards the alleged misbehaviour
of the husband in the rented accommodation. She has alleged conspiracy of
killing her against the sisters of the husband and in the same breath,
expressed her desire to stay with her husband along with her sisters−in−law.
She specifically stated that she never created pressure to take any rented
house but the facts remain that the said tenancy was taken in her name and it
was not the husband who of his own took such tenancy in the name of his wife.
On consideration of the entire materials on record we, thus, find that
from the very beginning the wife and her family, took shelter under the local
organisations controlled by the political party and created pressure upon the
husband, first to become a domesticated son−in−law and then to take rented
accommodation for the purpose of living separately from the old parents and the
dependant sisters of the husband. Even thereafter, she could not be happy and
when, the suit was filed after the death of her mother−in−law, she with the help
of the local political party entered forcibly in the house of her husband and
started criminal proceedings against the husband and the members of his family.
However, in Court she took a stance that she was ready to live with her husband.
All these facts taken together will lead to the conclusion that she was
intolerant in her attitude and her aforesaid acts definitely amounted to
cruelty. We now propose to deal with the decisions cited on behalf of the
wife. In the case of Swapan Kumar Ganguly vs. Smt. Smiritikana Ganguly
reported in A.I.R. 2002 Cal 6, it was established from the evidence on record
that the husband was guilty of physical and mental cruelty, and in such
circumstances, it was held that there was cogent ground of the wife to stay away
from the husband and thus, the husband was found to be not entitled to get a
decree for divorce on the ground of desertion. The said decision, therefore,
does not help the wife in this case where she was found to be guilty of cruelty
towards her husband.
In the case of Chetan Dass vs. Kamla Devi reported in A.I.R. 2002 SC 1709,
the relief of divorce was claimed by the husband on the ground that the
marriage had been broken down irretrievably. It was found that the husband was
leading adulterous life and in such circumstances, it was held that the husband
could not take advantage of his own wrong. In the case before us, from the very
beginning, the wife refused to come back to the matrimonial home and when
separate rented residence was taken in her own name, she could not live
peacefully and ultimately, after filing of the suit for divorce, forcibly
entered into the matrimonial house with the help of the local people although
at that point of time, she was staying in her rented accommodation. Thus, from
the aforesaid fact, we are unable to conclude that the husband was taking
advantage of his own wrong.
In the case of Harish Kumar Ledwani vs. Smt. Anita Ledwani reported in A.I.R.
2003 M.P. 197, the husband neither specifically pleaded the particulars
regarding his allegation of cruelty with him by wife, nor did he lead any
satisfactory evidence in that regard. On the other hand, the evidence on record
indicated that it was the husband who was maltreating and assaulting wife and
was thus cruel to her. In such a situation, the Madhya Pradesh High Court was
of the view that the husband could not get a decree for divorce on the ground of
cruelty. In the case before us, the particulars of cruelty have been
specifically pleaded and the subsequent events were also incorporated by way of
amendment and wife admitted in her evidence that she took the help of the local
Mahila Samity for entering into the matrimonial home during the pendency of the
suit for divorce leading to the filing of the criminal proceedings. Therefore,
the principles laid down in the said decision cannot have any application to
the facts of the present case.
The decisions cited by the learned advocate for the respondent, therefore,
do not help his client in any way.
Although Mr Mukherjee as a last resort tried to impress upon us that the
divorce is a stigma on a woman in Indian society and thus, we should make
endeavour of preserving the marriage. In the case before us, the wife having
been found to be guilty of cruelty we do not find any reason to refuse the just
prayer of divorce. At this stage, we propose to rely upon the following
observations of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli
reported in A.I.R. 2006 SC 1675 in answer to the submission of Mr Mukherjee:
"Undoubtedly, it is the obligation of the Court and all concerned that the
marriage status should, as far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is totally dead, in that event,
nothing is gained by trying to keep the parties tied forever to a marriage which
in fact has ceased to exist. In the instant case, there has been total
disappearance of emotional substratum in the marriage. The course which has been
adopted by the High Court would encourage continuous bickering, perpetual
bitterness and may lead to immorality. In view of the fact that the parties
have been living separately for more than 10 years and a very large number of
aforementioned criminal and civil proceedings have been initiated by the
respondent against the appellant and some proceedings have been initiated by the
appellant against the respondent, the matrimonial bond between the parties is
beyond repair. A marriage between the parties is only in name. The marriage has
been wrecked beyond the hope of salvage, public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure
what is already defunct de facto. To keep the sham is obviously conducive to
immorality and potentially more prejudicial to the public interest than a
dissolution of the marriage bond."
This is a case where we have decided to grant decree for divorce after being
satisfied with the ground of cruelty and not on the mere ground that the
marriage tie has broken down forever.
The learned Trial Judge, as it appears from the judgment and decree impugned,
did not look into aforesaid misconduct of the wife pointed out by us and
erroneously held that there was no wrong on the part of the wife in forcing
entry into the house of the husband during the pendency of the suit for divorce
and pendency of the criminal case after filing of charge−sheet under Section
498A of the Indian Penal Code rather suggested that the husband was prima facie
not innocent.
We, therefore, set aside the judgment and decree passed by the learned Trial
Judge and hold that the husband has successfully proved that the wife was
guilty of cruelty and consequently, we pass a decree for divorce on such ground.
In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. )
I agree.
( Rudrendra Nath Banerjee, J. )
Indian Kanoon

Supreme Court : It is neither advisable nor practicable to fix any time- limit for trial of offences. Justice A.Khanwilkar and P.D.Kode, 21.12.2010

2011-05-24T19:19:00.002+05:30

Bench: A Khanwilkar, P D Kode

1 wp.2129.08.sxw

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2129 OF 2008

Reshma Singh D/o.Late Achal

Bahadur Singh, Age 35 years,

permanently residing at Flat No.7,

Lilly Apartment, B-Wing,

St.John Baptist Road,

Bandra (West), Mumbai 400 050. ...Petitioner Versus

1.State of Maharashtra,

through the Public Prosecutor,

High Court (A.S.),

Mumbai.

2.The Senior Inspector of Police,

Anti Corruption Bureau,

having his office at

Madhuban Industrial Estate,

Mumbai 400 013. ...Respondents ......

Mr.Subhash Jha with Ms.Janki Doshi i/b M/s.Law Global for Petitioner. Mr.A.S.Gadkari, A.P.P. for State.

......

CORAM:- A.M.KHANWILKAR AND

P.D.KODE, JJ.

JUDGMENT RESERVED ON :- OCTOBER 26, 2010.

JUDGMENT PRONOUNCED ON :- DECEMBER 21, 2010.

2 wp.2129.08.sxw

JUDGMENT : (Per A.M. Khanwilkar, J.):

1. By this Petition under Article 226 of the Constitution of India, it is prayed that the Special Case No. 39/1999 pending in the Court of Special Judge for Greater Mumbai at Mumbai be quashed and set aside qua the Petitioner before this Court on the ground that continuation of the said proceedings against the Petitioner is violative of Article 21 of the Constitution of India.

2. The relevant facts which gave rise to the filing of the present Petition are as follows:-

a) The Petitioner alongwith her mother Smt. Mani Kaul and step brother Vikram Kaul and one Manjit Singh Kaur who was employed as Inspector of the State Excise Filing Squad are facing prosecution for offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109 of Indian Penal Code instituted in the Court of Sessions for Greater Mumbai at Mumbai being Special Case No. 39/1999.

b) The prosecution case against the said Manjit Singh Khera (accused 3 wp.2129.08.sxw

no. 1) is that the during the period from 1st January, 1980 to 13th October, 1992 he had ill-gotten wealth and properties which were disproportionate to his known source of income. Thus a discreet enquiry was undertaken by the Anti Corruption Bureau, Mumbai bearing VER No. 77/1987 against the said Manjit Singh Khera. That was commenced on 20th May, 1987. The said discreet enquiry was converted into an open enquiry with effect from 8th December, 1987. It was numbered as VER No. 31/1987. On the basis of the information gathered during the said enquiry raid was conducted. c) Thereafter, FIR came to be registered on 13th October, 1992 being C.R. No. 29/1992. The investigation was then handed over and after completion of investigation the chargesheet came to be filed in the concerned Court on 23rd September, 1999, after complying with the formalities of grant of sanction to prosecute the original accused no. 1 Mr. Manjit Singh Khera.

d) The Court after taking cognizance against the accused eventually framed charges on 3rd December, 2007. Whereas, the examination-in-chief of PW-1, ACP - Vilas Tupe commenced only on 12th November, 2009. 4 wp.2129.08.sxw e) After the charges were framed, the Petitioner rushed to this Court by way of present Writ Petition on 3rd October, 2008 praying for quashing of the criminal case pending against her on the ground that continuation thereof would infringe her fundamental right guaranteed under Article 21 of the Constitution of India.

3. The Respondents have resisted this Petition by filing two affidavits of Vijay D. Meru - Senior Inspector of Police dated 5th August, 2010 and 7th October, 2010 respectively. By these affidavits the allegation in the Petition to the effect that there has been unwarranted and oppressive delay in the matter of investigation or before the trial Court has been refuted. Insofar as delay in the progress of trial, it is specifically stated that it is attributable to the accused persons themselves as on most of the occasions, the matter was required to be adjourned at their instance.

4. The principal controversy that needs to be examined by us is whether in the fact situation of the present case there has been delay of such nature and magnitude, both at the stage of investigation and at the trial which would warrant quashing of the proceedings on the ground that it has violated fundamental right of the Petitioner guaranteed by Article 21 of the 5 wp.2129.08.sxw

Constitution of India.

5. Insofar as the grievance regarding unwarranted delay in the trial, it will have to be considered in two parts namely between the stage of filing of chargesheet and framing of charges and secondly post framing of charges till the institution of this Writ Petition. Insofar as no progress made before the trial Court after institution of the Writ Petition in October 2008 much less after recording of examination-in-chief of PW-1 on 12th November, 2009 is concerned, that is not a matter of serious debate since it is noticed that the accused including the Petitioner has taken adjournment from time to time on the ground of pendency of the Writ Petition before this Court.

6. Before we proceed to analyse the factual matrix of the case, it may be apposite and useful to refer to the legal position expounded by the Constitution Bench consisting of seven Judges of the Apex Court in the case of P. Ramachandra Rao v/s. State of Karnataka reported in 2002 4 SCC 578. This is an authoritative pronouncement on the mandate of Article 21 of the Constitution of India which guarantees right to speedy trial. The opening part of the Judgment makes it amply clear that speedy trial would encompass within its sweep all its stages including 6 wp.2129.08.sxw investigation, enquiry, trial, appeal, revision and re-trial. It is observed that everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an accusation. This decision has restated the legal position expounded in the case of Abdul Rehman Antulay v/s. R.S. Naik (1992) I SCC 225. In Paragraph 9, the Guidelines 8 11 of Antulay's case have been re-produced, which read thus:-

"(8) Ultimately, the court has to balance and weigh the several relevant factors 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has been denied in a given case.

(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case.

(10) It is neither advisable nor practicable to fix any time- limit for trial of offences. Any such rule is bound to be a qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint 7 wp.2129.08.sxw of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has

repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such

proceedings in High Court must, however, be disposed of on a priority basis."

These guidelines are still relevant. In Paragraph 20 of this decision the Court had occasion to observe thus:-

"20. Several cases coming to our notice while

hearing appeals, petitions and miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart from inadequate judge strength, other factors contributing to the delay at the trial. Generally speaking, these are : (I) absence of, or delay in appointment of, Public Prosecutors proportionate with the number of courts / cases; (ii) absence of or belated service of summons and warrants on the accused / witnesses; (iii) non-production of undertrial prisoners in the court; (iv) presiding Judges proceeding on leave, though the cases are fixed for trial (v) strikes by members of the Bar; and (vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience...."

The observations in Paragraph 21 of this decision are also useful to 8 wp.2129.08.sxw answer the controversy on hand. The same read thus:- "21. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every enquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Explanation 2 to Section 309 confers power on the court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the courts. Section 258, in Chapter XX Cr. P.C, on trial of summons cases, empowers the Magistrate trying summon cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused having effect of discharge. This provision is almost never used by the courts. In appropriate case, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reasons amounting to oppression or harassment in 9 wp.2129.08.sxw any trial, inquiry or proceedings. In appropriate cases, th High Courts have exercised their jurisdiction under Section 482 CrPC for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A. R. Antulay case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied)

7. From these observations it is amply clear that the trial Court itself has wide powers and if the same are judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, enquiry or proceedings. Secondly, the Court opined that even if the High Court can exercise jurisdiction under Section 482 of Criminal Procedure Code for quashing of First Information Report and investigation and terminating criminal proceedings, if it were to be a case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right guaranteed by Article 21 of the 10 wp.2129.08.sxw Constitution. Then, it will have to be shown that there has been undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted. Besides, quashing of criminal action is not the only order that ought to be passed. In a given case, the Court can pass appropriate orders so as to direct the trial Court to judiciously and consciously exercise powers bestowed in it by virtue of Section 309, 311 and 258. This view is reinforced by the exposition in Paragraph 28 of the same decision. After referring to the bars of limitation enacted in Common Cause (I) and common cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II), the Court went on to observe thus:-

".....It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trail has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and

unwarranted, as suggested in A. R. Antulay. In Kartar Singh case the Constitution Bench while recognizing the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state:

"92. Of course, no length of time is per se too long to 11 wp.2129.08.sxw pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay, (2) the justification of the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay." (SCC pp.639-40, para 92)." (emphasis supplied)

8. Thus, the test to be applied to examine the controversy on hand is whether the investigation or trial as the case may be, remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted. The Court has to adopt the balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceedings has been deprived of his right of having speedy trial with unreasonable delay.

In Paragraph 29 of the same decision the Court has recorded its conclusion in the following words:-

"29. For all the foregoing reasons, we are of the opinion that in Common Cause case (1) [as modified in Common Cause (II)[ and Raj Deo Sharma beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an 12 wp.2129.08.sxw order acquitting or discharging the accused. In conclusion we hold:

(1) The dictum in A. R. Antulay case is correct

and still holds the field.]

(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.

(3) The guidelines laid down in A. R. Antulay

case are not exhaustive but only illustrative. They are nor intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.

(4) It is neither advisable, nor feasible, nor

judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time- limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into

consideration the several relevant factors as pointed out in A. R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits 13 wp.2129.08.sxw cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatory obliging the court to terminate the same and acquit or discharge the accused.

(5) The criminal courts should exercise their

available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking

appropriate relief or suitable directions.

(6) This is an appropriate occasion to remind the Union of India and the State Governments to their constitutional obligation to strengthen the judiciary quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied)

9. Keeping the above guidelines in mind we shall now first advert to the grievance of the Petitioner that there has been undue and unwarranted delay at the stage of investigation itself which has infringed her right guaranteed under Article 21 of the Constitution of India. In this context, it is alleged that discreet enquiry was commenced on 20th May, 1987 against the accused no.1 Manjeet Singh khera. The said discreet enquiry was converted into open enquiry on 8th December, 1987 in relation to the ill gotten wealth and properties which were disproportionate to the known source of income of 14 wp.2129.08.sxw the accused no. 1. The period covered under investigation was from 1st January, 1980 to 13th October, 1992 in relation to properties worth around Rs. 43.54 lacs. On completion of the said enquiry FIR came to be registered on 13th October, 1992 and the investigation was completed and culminated with filing of final report or chargesheet before the concerned Court on 23rd September, 1999. The question is whether any explanation has been offered by the Respondents with regard to such long time spent from the stage of initiation of discreet enquiry on 20th May, 1987 till registration of FIR on 13th October, 1992. This aspect has been explained in Paraghraph 2 of the second affidavit. It is stated as under:- "2. I say that as per the record maintained by the Anti Corruption Bureau, the discreet enquiry with respect to the disproportionate asset and the properties gathered by the original Accused No. 1 Mr. Manjit Singh Khera started on 20.05.1987 bearing VE.R.No. 77 of 1987. I say that the said enquiry was conducted by ACP Shri. Shukla, then attached to the Anti Corruption Bureau. I say that on 08.12.1987 the said discreet enquiry was subsequently converted into open enquiry and the same was numbered as V.E.R. No. 31 of 1987. I say that ACP Shri. Tupe conducted the said open enquiry from

08.12.1987 to 09.10.1992 for the period from 01.01.1980 to 13.10.1992. I say that during the course of the said open enquiry, it was revealed that the said accused No. 1 Mr. Manjit Singh Khera, a public servant has purchased properties either in the names of his close relatives or in the name of co-accused in the present C. R. No. 29 of 1992. I say that after completion of the said open 15 wp.2129.08.sxw enquiry, ACP Shri. Tupe lodged FIR bearing C. R. No. 29 of 1992 on 09.10.1992 and it has been stated in the said First Information Report that at the initial stage of FIR the original Accused No. 1 Mr. Manjit Singh Khera was having disproportionate assets to the tune of Rs. 7,91,04.64 than his known sources of income."

10. We have no hesitation in taking the view that the time spent between 20th May, 1987 till 8th December, 1987 in the discreet enquiry conducted by the Anti Corruption Burueu, Mumbai, cannot be termed as unreasonable or unwarranted. Obviously, on the basis of the material gathered during such discreet enquiry, the authority thought it appropriate to convert the enquiry into open enquiry. Going by the dates mentioned by the Petitioner it may appear that the concerned officials took almost five years to complete the enquiry before registration of FIR on 13th October, 1992. No doubt the open enquiry commenced on 8th December, 1987 with registration of VER No. 31/1987. The ACP Tupe conducted the said open enquiry from 8th December, 1987 till 9th October, 1992. However, it cannot be overlooked that the open enquiry was in relation to disproportionate assets of accused no.1 which revealed that accused no. 1 purchased properties either in the names of his close relatives or in the names of co-accused. Having regard to the nature of enquiry, and due diligence, as the enquiry was required to be made with regard to circular transactions between the accused persons to 16 wp.2129.08.sxw

ascertain the extent of disproportionate assets belonging to the accused no.1, it was bound to take some time. On such enquiry, the conclusion arrived at by the officer was that the accused no. 1 possessed disproportionate assets to the tune of Rs. 7,91,04.64 than his known source of income. Only thereafter raid was conducted and FIR was registered on 13th October, 1992.

11. Considering the nature of enquiry undertaken and the material required to be gathered regarding the circular transactions during such enquiry, it is not possible to countenance the grievance of the Petitioner that the delay in the enquiry was of such nature that it was oppressive and unwarranted, that too qua the Petitioner who is one of the co-accused. It is also not possible for us to take the view that there was inordinate, unwarranted and oppressive delay during the enquiry as such. Accordingly, this challenge of the Petitioner cannot be sustained.

12. The next question is whether the time spent between registration of FIR on 13th October, 1992 till filing of charge sheet on 23rd September, 1999 can be said to be of such nature that it has infringed the fundamental right guaranteed under Article 21 of the Constitution of India of the Petitioner 17 wp.2129.08.sxw before us. Insofar as this delay is concerned, it will be useful to refer to the averments in the first affidavit in Paragraph 4 and 7, it is stated as under: "4. I say that initially the investigation of the aforesaid crime was being carried out by Shri. Pravin More, Police Inspector, Anti Corruption Bureau from 13.10.1992 to June 1994 and thereafter it was transferred to Shri. D. Y. Dal, Police Inspector, Anti Corruption Bureau. I say that the investigation with respect to the aforesaid crime was transferred to me on 12.01.1995 and after completion of the investigation, I submitted the final report with respect to the Competent Authority for according sanction in the matter in the Month of March, 1998. I say that on 16.07.1998 I was transferred from Anti Corruption Bureau and chargesheet in the aforesaid matter was filed by Shri. J. N. Ghadge, Assistant Commissioner of Police, Anti Corruption Bureau,

Maharashtra State on 23.09.1999, after getting the sanction from the competent authority with respect to the Orig. Accused No. 1 Shri Manjitsingh Khera."

"7. I say that the Petitioner has filed the present petition for quashing of the Special Case No. 39 of 1999 on the ground that the same is pending for more than 10 years. I say that as per the record it appears that the Petitioner or the other co-accused on various occasions has sought adjournments for one or the other pretext and therefore, the trial of the aforesaid Special Case has been delayed. I further say that the charge in the aforesaid Special Case No. 39 of 1999 has been framed on

03.12.2007. I further say that even after framing of the charge the petitioner and/or the other co-accused kept on seeking adjournments from the Hon'ble Special Court and the matter was protracted for no fault on the part of the prosecution. It further appears from the record that the Petitioner has filed the present petition in October 2008 and thereafter on the ground on pendency of the present petition, the Petitioner and/or the other co- 18 wp.2129.08.sxw accused sought adjournment in the matter. I say that as per the record the recording of the evidence of the complainant Shri. Vilas Tupe is in progress and the Hon'ble Special Court has fixed the matter for recording the further evidence of the complainant Shri. Vilas Tupe on 13.08.2010."

13. In the second reply affidavit, the Respondents have elaborated in the following manner:

"3. I say that after lodging of FIR on 09.10.1992 by ACP Shri. Tupe, the complainant, the case was transferred to PI Shri. More for investigation in the matter. I say that as per the record, it appears that PI Shri More conducted investigation of the said case till June, 1994. I say that in June, 1994 investigation of the said C. R. No. 29 of 1992 was transferred to PI Shri. D. Y. Dal and he conducted the investigation upto 12.01.1995.

4. I say that the investigation pertaining to C. R. No. 29 of 1992 was transferred to me on 12.01.1995 and I completed the investigation on 29.09.1997 and submitted my final report to the Additional Commissioner of Police, Anti Corruption Bureau, Mumbai for further action in the matter. I say that during the course of investigation on various dates, I established the link of disproportionate assets of original Accused No. 1 such as flat Nos. 1 and 2 situated at Shalimar Garden,

Aurangabad, the flat situated at Bandra, Mumbai, entries in the Bank accounts with respect to Fixed Deposits in the names of other co-accused involved in the present case, which was revealed during the course of open enquiry conducted by ACP Shri Tupe and other related and further aspects of the investigation. I say that as stated hereinabove after completion of investigation I submitted my final report to the Additional

Commissioner of Police, Anti Corruption Bureau on 29.09.1997.

19 wp.2129.08.sxw

5. I say that the Additional Deputy Commissioner of Police, Anti Corruption Bureau, Mumbai by his letter dated 02.03.1998 informed me to submit the papers with respect to the C. R. No. 29 of 1992 to the Competent Authority to get sanction from the said Competent Authority in the matter. I say that I was transferred on 17.07.1998 from Anti Corruption Bureau to the Mumbai Police and further investigation was thereafter handed over to ACP Shri Ghadge. I say that it further appears from the record that the Competent Authority granted sanction to prosecute the original Accused No. 1 Mr. Manjit Singh Khera on 12.02.1999 and the chargesheet in the present matter came to be filed on 23.09.1999 before the Hon'ble Special Court, Greater Mumbai. I say that the said chargesheet has culminated into the Special Case No. 39 of 1999."

14. It is thus noticed that after registration of FIR, investigation was handed over to PI Shri More. He conducted investigation till June 1994. The investigation was then transferred to PI Shri D.Y. Dal who conducted the same until 12th January, 1995. The investigation was then transferred to P.I. Shri V.D. Meru on 12th January, 1995 who in turn completed the same on 29th September, 1997. This investigation resulted in establishing the link of disproportionate assets of original accused no. 1 and the entries in the Bank Account with respect to the fixed deposits in the names of other accused involved in the case. The time spent for investigating matter of such nature, from 13th October, 1992 till 29th September, 1997, cannot be said to be oppressive or unwarranted qua the Petitioner. So long as the 20 wp.2129.08.sxw

financial transactions effected by the accused no.1 were not fully scrutinized and which enquiry or investigation would be dependent on the information to be furnished by the bankers and others associated in such transaction, no fault can be found with the Investigating Officer. All that the Investigating Officer is expected to do is to complete the investigation without unreasonable or unnecessary delay. There is no averment in the Petition that the Investigating Officer was biased or intentionally delayed the investigation and did not submit the final report even though the investigation was complete much earlier. It is noticed that as soon as the investigation was completed by the Investigating Officer, he submitted his final report to the Additional Commissioner of Police, Anti Corruption Bureau on 29th September, 1997. The said authority after examining the papers on 2nd March, 1998, informed the Investigating Officer to submit papers in respect of the case to the Competent Authority for sanction. Accordingly, the proposal was submitted to the Competent Authority for sanction soon thereafter. The Investigating Officer, however, was transferred on 17th July, 1998 and the investigation was handed over to ACP Shri Ghadge. Thereafter, the Competent Authority accorded sanction to prosecute the original accused no.1 Mr. Manjeet Singh Khera on 12th February, 1999. After the sanction was accorded, obviously, after 21 wp.2129.08.sxw

processing the papers, the Investigating Officer presented the chargesheet before the Special Court at Mumbai on 23rd September, 1999. The case was registered as Special Case No. 39/1999. The time spent for processing the final report submitted by the Investigating Officer on 29th September, 1997 initially to the Additional Commissioner of Police Anti Corruption Bureau and thereafter to the Competent Authority who in turn accorded sanction eventually on 12th February, 1999, the period so spent cannot be said to be unreasonable, unnecessary or unwarranted muchless being oppressive to the Petitioner. Similar grievance made has been negatived by the Apex Court on the reasoning that considering the voluminous documents involved in such cases, the approving authority or the competent authority granting sanction, cannot be expected to rush through the process. (See Seeta Hemchandra Shashittal vs. State of Maharashtra (2001) 4 SCC 525 paras 19 and 20). Suffice it to observe that the time spent between September 1997 till September 1999 also cannot be considered as undue or inordinate delay and more so being oppressive and unwarranted.

15. The next grievance is about inordinate delay in framing of the charge. In that, although the chargesheet was filed on 23rd September, 1999, the charge has been framed only on 3rd December, 2007. It means 22 wp.2129.08.sxw

that almost eight years period was spent in framing of the charge.

16. This challenge has been refuted by the Respondents in the two affidavits. Besides those affidavits, we may usefully place reliance on the Roznama of the trial Court which being record of the Court, the fact mentioned therein will have to be taken as it is and would be binding on the parties. The Roznama commences from 23rd September, 1999 when the charge sheet was presented and marked as Exhibit 1. The Court issued bailable warrants against the accused persons. We may give the gist of contents of the Roznama against the respective dates when the matter appeared before the Court on 28th October, 1999 until 3rd December, 2007 when the charges were eventually framed.

Date Gist of Particulars 28/10/1999 All four accused remained present. Formality regarding surety bond was required to be completed.

23/12/1999 M.A. No. 960/1999 was moved. P.P. took time to file say on the Application.

13/1/2000 M.A. No. 960/1999 rejected.

23 wp.2129.08.sxw

7/2/2000 All four accused present. Adjourned to 2nd May, 2000. 2/5/2000 A/1 and A/3 present. A/2 and A/4 exempted. Police papers handed over to all the accused. Acknowledgment given by A/1 on behalf of A/2 and A/4. Adjourned to 11th August, 2000 for attendance.

11/8/2000 All accused absent. Adjourned to 2nd December, 2000 for attendance.

2/12/2000 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 27th March, 2001 for attendance.

27/3/2001 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 18th July, 2001 for attendance.

18/7/2001 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 24th October, 2001.

24/10/2001 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 13th February, 2002 for attendance.

13/2/2002 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 10th July, 2002 for attendance.

10/7/2002 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 12th November, 2002 for attendance.

24 wp.2129.08.sxw 16/7/2002 M.A. No. 64/02 filed by accused for return of National Saving Certificate and for early hearing of the matter. Accused absent. Application was also on board on 15th July, 2002 when no one appeared. Court fixed the matter for framing of charge alongwith the said Application on 3rd August, 2002. 03/08/2002 Applicant-Accused present. M.A. No. 64/02 disposed of. Special case adjourned to 12th November, 2002.

12/11/2002 Accused 1, 2 and 3 absent. A/4 present. Later on A/1 appeared. Adjourned to 24th January, 2003 for attendance. 24/1/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 16th April, 2003 for attendance.

16/4/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 19th July, 2003 for attendance.

19/7/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 9th October, 2003 for attendance.

9/10/2003 Court is vacant. A/1 and 3 present. A/2 and A/4 exempted. Adjourned to 2nd January, 2004 for attendance.

25 wp.2129.08.sxw

2/1/2004 A/1 and A/3 present. A/2 and A/4 absent. Adjourned to 3rd May, 2004 with order of bailable warrant against accused 2 and 4. Later on Advocates for A/2 and A/4 appeared and applied for exemption. Order issuing bailable warrant recalled.

30/4/2004 Since 3rd May, 2004 declared public holiday. Board for 3rd May, 2004 discharged. Adjourned to 29th July, 2004. 29/7/2004 Court on leave. Board discharged. Adjourned to 7th October, 2004. It is noted that A/1 and A/4 absent. A/2 and A/3 present.

7/10/2004 A/2 and A/4 present. A/1 absent. Bailable warrant issued against A/1. Later on A/1 appeared. Order issuing bailable warrant recalled.

10/1/2005 A/1, A/2 and A/3 present. A/4 absent. Bailable warrant issued against A/4. Adjourned to 11th March, 2005. 12/1/2005 Cancellation of order of bailable warrant. M.A. No. 6/2005 filed by A/4 was allowed.

11/3/2005 A/1 present. A/2 to A/4 absent. Their Advocate also absent. Conditional bailable warrants issued if the said accused failed to appear in later session. Adjourned to 13th June, 2005. 26 wp.2129.08.sxw 13/6/2005 A/1 to A/3 present. A/4 absent. Exemption Application on his behalf filed. The same is allowed. A/4 exempted. Adjourned to 26th July, 2005 for framing of charge. 26/7/2005 A/1 to A/3 present. A/4 absent. Advocate for defence requested for keeping back. Later on Advocate for A/4 filed Application for exemption. That was granted. Adjourned to 30th September, 2005 for framing charge.

30/9/2005 All accused present. Kept back at the request of defence. Later on defence Advocate made Application for longer date for the grounds mentioned in the Application. Adjourned to 3rd December, 2005.

3/12/2005 All accused present. IO absent. Adjourned to 27th January, 2006 to keep IO present alongwith detail charge. 27/1/2006 Investigating Officer present. All accused present. At the request of IO adjourned to 5th April, 2006 for framing of charge.

5/4/2006 All accused present. Investigating Officer present. At the request of prosecution for framing of charge and considering the pending old assets cases of the earlier year, adjourned to 17th June, 2006.

27 wp.2129.08.sxw

17/6/2006 All four accused present. IO absent. Defence Advocate absent. Later on defence advocate appearing as regular PP attended the case and IO absent. Adjourned to 29th July, 2006 for framing of charge.

29/7/2006 All accused present. Defence advocate absent. IO absent. Since it is assets case and considering the pending old assets cases, FSI cases prior to year 1997 adjourned to 7th October, 2006.

7/10/2006 All accused present. Defence Advocate absent. Investigating Officer absent. It been assets case, considering the old assets cases, forgery cases and FSI cases prior to 1997, adjourned to 20th December, 2006.

20/12/2006 IO present. All accused present. As Court was busy in dictating Judgment in another case and considering the pending FSI and old assets cases of the year 1989, 1990 and 1992, adjourned to 17th March, 2007.

17/3/2007 A/1 to A/3 present. A/4 absent. Adjourned to 12th April, 2007 for charge.

12/4/2007 All accused present. Advocate for accused absent. Application for adjournment filed by accused Exhibit 8. Court records that the cases being old cases, last chance granted. Adjourned to 29th May, 2007 at the request of accused.

28 wp.2129.08.sxw 29/5/2007 All accused present. IO absent. At the request of prosecution, adjourned to 25th June, 2007.

25/6/2007 All accused absent. Finally adjourned to 2nd July, 2007. Later on all accused present. Advocate for accused absent. Time given to prosecution to reply to M.A. No. 333/2007. Adjourned to 2nd July, 2007.

2/7/2007 Accused No. 4 absent. Exemption granted. Time given to State to file reply to the Applications. Adjourned to 16th July, 2007.

16/7/2007 All accused present. IO present. At the request of Advocate for accused adjourned to 30th July, 2007 for hearing on M.A. 30/7/2007 All accused present. IO present. Adjourned to 10th August, 2007.

10/8/2007 All accused present. Advocate for accused absent. IO absent. APP directed to file draft charge. Accused directed to keep their Advocate present on the next date. Adjourned to 27th August, 2007.

27/8/2007 All accused present. IO absent. Head Constable Ghag attached to ACB present. APP directed to file draft charge before 28th September, 2007.

29 wp.2129.08.sxw 28/9/2007 All accused present. IO absent. HC Ghag attached to ACB present. Advocate informed Court that Application for discharge filed by accused no.2 is pending before the Court. Hearing on the said Application kept on 4th October, 2007. No further adjournment.

4/10/2007 All accused present. IO present. As advocate for accused not present, kept back. Later on Application for discharge partly heard. Kept on 15th October, 2007 for further hearing. 15/10/2007 All accused present. IO absent till 1.20 p.m. At the request of APP hearing on discharge application adjourned to 23/10/2007.

23/10/2007 Accused 2-4 present. IO present. Hearing on discharge Application proceeded. Adjourned to 31st October, 2007 for hearing on citation.

31/10/2007 All accused present. Discharge Application is dismissed. Case adjourned for framing charge to 12th November, 2007. 12/11/2007 All accused present. Time to file draft charges extended till 3rd December, 2007.

3/12/2007 All accused present. Charge framed against all accused. Adjourned to 13th December, 2007. (emphasis supplied)

17. Considering the movement of the case before the trial Court as is 30 wp.2129.08.sxw

reflected from the Roznama, it is unfathomable that the prosecution can be said to be responsible for the delay in framing of charge. The time taken for framing of charge after filing of chargesheet on 23rd September, 1999 till the charge was framed on 3rd December, 2007, the matter was adjourned mostly because of the absence of one or the other accused. Besides, it was adjourned also because the Court felt that there were other older cases than the present case to be dealt with by that Court. Out of several adjournments, the number of adjournments caused on account of non- appearance of Investigating Officer or at the instance of prosecution are quite insignificant. Even if the prosecution is to be blamed for taking those adjournments, it is not possible to take the view that the delay caused on account of such adjournments was such that it can be legitimately called as oppressive and unwarranted qua the accused or the Petitioner before us. It is certainly not unreasonable delay and there is good justification for the time spent till the charges were framed by the Court.

18. To get over this position, it was argued that insofar as the present Petitioner is concerned, she cannot be penalised for the adjournments caused on account of non-appearance of co-accused. The present Petitioner is accused no. 4. The gist of roznama as is elaborately referred 31 wp.2129.08.sxw

to, it is not as if the Petitioner was present on all the occasions. The Petitioner being accused no. 4, did not remain present on several occasions. Indeed, she was exempted by the Court on Application made in that behalf. The prosecution cannot be blamed for the adjournments caused on account of the absence of the Petitioner as well. Suffice it to observe that on analysing the contents of the Roznama between 23rd September, 1999 until 3rd December, 2007 it is not possible for us to take the view that in the present case the length of time is such that it is inordinate delay and can be legitimately called as oppressive and unwarranted qua the accused muchless the Petitioner before us. In any case, mere delay, by itself, cannot be the basis to quash the proceedings. The Court can exercise judicious discretion and pass such other appropriate order including to direct the trial Court to exercise powers conferred on it by virtue of provisions amongst others Sections 309, 311 and 258 of the Code. It is certainly not a matter for quashing of prosecution as such.

19. The next grievance of the Petitioner is that although charge has been framed as back as on 3rd December, 2007, the trial did not make any semblance of progress. As noticed earlier, this Writ Petition has been filed on 3rd October 2008. In other words, the grievance of the Petitioner 32 wp.2129.08.sxw regarding no progress made in the trial will have to be considered for the period between 3rd December, 2007 and 3rd October, 2008. Once again, we will have to revert back to the Roznama. The same spells out the manner in which the trial progressed from 3rd December, 2007. As aforesaid, the charge was framed on 3rd December, 2007 and the case was adjourned to 13th December, 2007. We would now refer to the events which unfolded after 13th December, 2007 as can be culled out from the Roznama. Date Gist of Particulars 13/12/2007 A/1, 3 and 4 present. A/2 absent. Advocate for all accused absent. IO present. Medical Certificate of A/2 submitted by A/3. A/2 exempted from personal appearance for a day. A/2 directed to remain present on the next date. Case adjourned to 10th January, 2008.

10/1/2008 A/1, 3, 4 present. A/2 absent. APP applied for further time to comply with earlier directions as Office was on sick leave. Time granted till 28th January, 2008. Case adjourned to 28th January 2008.

28/1/2008 All accused present. Kept back till 2.30 p.m. Again till 3.00 p.m. IO held up in Sewri Court. Time to comply earlier direction extended till 4th February, 2008.

4/2/2008 A/1 and 3 present. A/2 and 4 absent. Advocate for accused 33 wp.2129.08.sxw absent. IO present. APP filed list of witnesses. Witness summons issued. List of documents taken on record. Application filed by APP under Section 294 Cr.P.C. Defence Advocates called upon to admit or deny the documents before 25/2/2008. APP filed application along with the list of original. Case adjourned to 3rd March, 2008 on the application of accused as Advocate has gone abroad. 3/3/2008 All accused present. IO absent. Summons issued to IO. Returnable 10th March, 2008.

10/3/2008 A/1 and 3 present. A/2 and 4 absent. IO absent. APP applied for issuance of bailable warrant against IO. Adjourned 24th March, 2008.

24/3/2008 A/1, 2 and 4 present. A/3 absent. IO present. APP filed list of articles. Prosecution permitted to produce articles during the stage of recording of evidence. Accused told to engage Advocates and keep them present on the next date without fail. Adjourned to 7th April, 2008.

7/4/2008 All accused present. Case adjourned to 13th May, 2008. Last chance given to accused to keep their Advocate present. 29/4/2008 Writ from High Court in Criminal Application placed before the Judge noted and sent back to the Department. 13/5/2008 Court is on leave. All accused present. IO present. Case adjourned to 16th June, 2008.

16/6/2008 Court is vacant. All accused present. Case adjourned to 5th 34 wp.2129.08.sxw July 2008.

5/7/2008 All accused present. Advocate for accused absent. Witnesses absent. Adjourned to 1st August, 2008 for evidence. 1/8/2008 All accused present. Advocate for accused absent. At the request of A/1 to 4, adjourned to 6th October, 2008. (emphasis supplied)

20. Going by the contents of the Roznama for the relevant period between 3rd December, 2007 and 3rd October, 2008 when the present Writ Petition came to be filed, it is not possible to take the view that it is a case of inordinate delay at any stage, muchless which is oppressive and unwarranted qua the Petitioner. It is not in dispute that the recording of evidence has commenced with the examination-in-chief of PW 1 on 12th November, 2009. But because of the pendency of the present proceedings, it is the Petitioner who has been taking adjournments before the Trial Court, which fact, is conceded by the Petitioner in the rejoinder affidavit.

21. Suffice it to observe that neither the prosecution nor the Court can be said to be responsible for the situation after the framing of charge on 3 rd December, 2007 until the filing of the present Petition. 35 wp.2129.08.sxw

22. As is noticed earlier, before filing this Petition, the accused filed three Miscellaneous Applications for discharge which kept the Trial Court engaged. The recording of evidence obviously could not proceed on account of pendency of those Applications. In any case, it is not possible to countenance the grievance of the Petitioner that the time spent between 3rd December, 2007 till 3rd October, 2008 was so unreasonable or unnecessary that it had the effect of causing oppression to the Petitioner. There is good justification for the time spent between this period. Neither the prosecution nor the Court, can be blamed for this situation. Assuming that it was a case of resulting in oppression to the Petitioner, that by itself, cannot be the basis to straight away quash the proceedings. The Court has to exercise judicious discretion on case-to-case basis and after taking into account totality of circumstances, instead, can issue appropriate directions or make appropriate order requiring the Trial Court to ensure that the trial proceeds expeditiously.

23. Although, the Petitioner has not amended the present Writ Petition so as to assert that even during the pendency of the present Petition since 3rd October, 2008, the fundamental right of the Petitioner guaranteed under Article 21 of the Constitution has been infringed, however, feeble attempt 36 wp.2129.08.sxw

was made by the Counsel for the Petitioner to persuade us to take the view that even time spent in this Court in pursuing the present matter may be reckoned in deciding the controversy on hand. As is noticed earlier, the Petition has been filed on 3rd October, 2008. The same came up for admission on 18th November, 2008 and the Court after hearing the arguments, admitted the matter but declined to grant any interim relief. Against refusal to grant interim relief, the Petitioner carried the matter before the Apex Court by way of SLP (Cri.) 11/2009, which however, was disposed of on 6th April, 2009 with request to the High Court to dispose of the Writ Petition expeditiously. No doubt, soon thereafter, the Petitioner moved Criminal Application before this Court for early hearing of the Writ Petition which was disposed of on 15th April, 2009 with direction to place the Writ Petition for final hearing on 23rd April, 2009. Since the matter did not reach for hearing, it was once again circulated on 22nd June, 2009. Petitioner's request for taking up the Writ Petition for hearing was acceded to. The Petition was taken up for hearing on 24th June, 2009, but was required to be adjourned to 9th July, 2009 to enable the State to file reply affidavit. Thereafter, since the matter could not be taken up for hearing, the Petitioner did make attempt to circulate it from time to time. The matter was taken up for hearing on 21st January, 2010 but was adjourned to 27th 37 wp.2129.08.sxw

January, 2010 and compilation filed by the Petitioner was taken on record. When the matter thereafter reached for hearing on 30th March, 2010, none appeared for the Petitioner. Even though Rule was already granted, the Court directed it to be placed under caption admission on 13 th April, 2010. It appears that the Petitioner caused the matter to be circulated and on 8 th April, 2010, the Court ordered that the matter be placed for final hearing in the week commencing from 26th April, 2010. Thereafter, the matter was taken up for hearing on 19th July, 2010 when the Court thought it appropriate to call for the certified copy of the Roznama of the Trial Court for the relevant period. Accordingly, the hearing was deferred to 11th August, 2010 and thereafter, to 26th August, 2010.

24. On 26th August, 2010, when the matter appeared before our Bench for the first time, we were informed that the Advocate for the Petitioner is busy with some other case before the Apex Court and request for adjournment was made. Accordingly, the matter was adjourned to 9th September, 2010. However, on 2nd September, 2010, the matter was got produced before us with request to adjourn the matter beyond 9th September, 2010 on the ground that the Counsel for the Petitioner was in personal difficulty on 9th September, 2010. Accordingly, the hearing was deferred to 27th September, 38 wp.2129.08.sxw

2010, which was the available date. On 27th September, 2010, after hearing the Counsel for the parties, in deference to the observation made by the Court, the learned A.P.P. sought time to file further affidavit. That liberty was given by us. The matter then appeared on 8th October, 2010 and was ordered to be placed for hearing on 26th October, 2010 after the additional affidavit was filed in the Registry. Accordingly, the matter proceeded for hearing on 26th October, 2010 and was closed for orders. The Counsel appearing for the parties asked for time to file written submissions until 30th October, 2010 which request was accepted.

25. Even going by these dates, it is unfathomable that the prosecution or for that matter the Court can be blamed for the delay in the final disposal of the Writ Petition. As aforesaid, the Petitioner has not chosen to amend the Writ Petition to make out such ground. Even if we were to consider this grievance, we would straight away reject the argument of the Petitioner that the delay occurred on account of pendency of Writ Petition from 3rd October, 2008 has resulted in infringement of her fundamental right guaranteed under Article 21 of the Constitution. As noticed earlier, citing the pendency of Writ Petition in this Court, the Petitioner has been successful in taking adjournments before the Trial Court during all this 39 wp.2129.08.sxw

period. Suffice it to observe that the grievance of the Petitioner of any prejudice caused to the Petitioner during the pendency of the Writ Petition, to say the least, is after thought and untenable.

26. We shall now refer to the other decisions on which reliance was placed by the Petitioner to persuade us to quash the prosecution pending against the Petitioner. Reliance was placed on the decision in the case of Moti Lal Saraf vs. State of Jammu & Kashmir & Anr. reported in (2006) 10 SCC 560. Indeed, in this case, the Court proceeded to quash the criminal proceedings pending against the Petitioner therein. However, on fair reading of this Judgment, there is no manner of doubt that the said conclusion is based on the fact situation of that case. In that case, the Petitioner was prosecuted for offence in connection with challan filed under Section 173 of the Cr.P.C. on 30th April, 1981. The same was challenged by the Petitioner by way of Criminal Petition before the High Court on the ground that that Court had no jurisdiction to try the case for want of sanction. The High Court agreed with the said challenge of the Petitioner. Thereafter, the Respondents filed another challan against the Petitioner on the same set of facts in the Court of Special Judge, Anti-Corruption, Srinagar on 25th July, 1986. The Petitioner in the first place, got the said 40 wp.2129.08.sxw case transferred from Srinagar to Jammu. Thereafter, he filed application for quashing of trial on the ground that he was prosecuted without sanction. According to the Petitioner, the successive criminal case registered against the Petitioner was gross abuse of process of law. The High Court, however, rejected his Petition on this occasion. It was the grievance of the Petitioner that he was being persecuted by filing repeated challans by the Respondents without any sanction which had caused immense mental, physical and emotional stress and harassment for more than 26 years. The Apex Court accepting the challenge of the Petitioner, proceeded to quash the criminal prosecution against the said Petitioner. In other words, in the fact situation of the said case, the Apex Court entertained the said grievance of the Appellant before it and ordered quashing of criminal prosecution, since the same was abuse of the process of law. Indeed, the Apex Court has adverted to all the relevant decisions on the point including the decision of seven Judges' Bench in P.Ramchandra Rao (supra). In our opinion, this decision is of no avail to the Petitioner, unless the Petitioner is able to show that it was a case of inordinate delay at any stage and which can be legitimately called oppressive and unwarranted.

27. Reliance is also placed on another decision of the Apex Court in the 41 wp.2129.08.sxw

case of Pankaj Kumar vs. State of Maharashtra & Ors. reported in AIR 2008 SCC 3077. In this case, the Apex Court quashed the criminal proceedings pending against the said Petitioner on the ground of inordinate delay which had the effect of infringing the fundamental rights guaranteed to the Petitioner under Article 21 of the Constitution. Even this decision is on the fact situation of that case. The main grievance of the Appellant before the Supreme Court was that he was minor at the time of transaction in question in the year 1981 and he could not be proceeded against for the said offence. Further, the charge-sheet did not disclose any offence against him and his mother. The investigation dragged on for over three years before filing of the charge-sheet. The Apex Court analysed the facts of that case and found that it was common ground that the FIR was recorded on 12th May, 1998 for the offence allegedly committed in 1981 and after unwarranted prolonged investigation, charge-sheet was submitted in Court on 22nd February, 1991. Further, nothing happened till 1999 until filing of the Writ Petition seeking quashing of proceedings before the Trial Court. The Apex Court then went on to record the "concession of the Counsel for the State" who had fairly stated before the Court that he had no explanation to offer for the delay in investigation and the reason why the trial did not commence for eight long years. Thus, the said decision primarily rests on 42 wp.2129.08.sxw

the concession of the Counsel for the State. In addition, the Court has found that nothing could be pointed out to show that the delay was in any way attributable to the Appellant before it. Having said this, the Court then proceeded to observe that continuation of criminal action against the Appellant who was a young boy of 18 years in the year 1981 when the acts of commission and omission were allegedly committed by the concerns managed by his parents, who have already died, it would result in extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of damocles hanging perilously over his head for over 15 years must have wrecked his entire career. In other words, the order passed by the Apex Court of quashing of criminal action in that case was essentially on the basis of the fact situation of that case.

28. Counsel for the Petitioner in his written submissions has then adverted to the decision in Seeta Hemchandra Shashittal (supra). We fail to understand as to how this decision will be of any avail to the Petitioner. Even in this case, the main ground urged in the Writ Petition was that there was gross delay of 11 years in filing the charge-sheet and that such delay violates Article 21 of the Constitution. That delay had caused unbearable mental trauma, fear psychosis and tension to the Appellants as well as to 43 wp.2129.08.sxw

other members of the family, besides tremendous humiliation and defamation heaped on them. Further, the abnormal delay had caused colossal financial losses to the Appellants and the impact of it had shattered the prospects of personal, professional and business development of the members of the family. In view of the finding recorded by us in the earlier part of this Judgment rejecting the Petitioner's contention that there has been inordinate delay in filing of the charge-sheet after registration of F.I.R., it would necessarily follow that the Petitioner is not entitled for the relief as claimed. Significantly, the dictum in Paragraph Nos.19 and 20 of this decision would go against the Petitioner. The Court has rejected the grievance of the Appellant in that case that there was unreasonable delay in grant of sanction, considering the fact that the sanction was applied for on 6th April, 1991 and the Government accorded sanction on 21st February, 1993. More or less, similar contention has been raised before us which we have already negatived for the same reason. The Apex Court observed that two years time taken for grant of sanction cannot be said to be unreasonable, considering the number of Desks over which the matter has to be passed and the voluminous record to be studied at all levels.

29. Reliance is then placed on another decision of the Apex Court in the 44 wp.2129.08.sxw

case of Vakil Prasad Singh vs. State of Bihar reported in (2009) 3 SCC

355. In that case, the offence was allegedly committed on 8th April 1981 of demanding a sum of Rs.1,000/- (Rupees One Thousand) as illegal gratification for release of payment for the civil work executed by the Petitioner. The charge-sheet was filed on 28th February 1982. The Magistrate took cognizance on 9th December, 1982. Nothing substantial happened till 6th July, 1987. The Appellant filed Petition under Section 482 of Cr.P.C. on the ground that the "concerned Court had no jurisdiction to take cognizance." The High Court accepted that plea with a direction to prosecution to complete the investigation within a period of three months from receipt of the order by an Officer of a rank of Deputy Superintendent of Police or any other Officer duly authorised in this behalf. No further progress was made in the case until in year 1988. The Petitioner, therefore, filed yet "another Petition" under Section 482 of Cr.P.C. for quashing of the entire investigation. After dismissal of the said Writ Petition, the Appellant took the matter in appeal before the Supreme Court which was admitted for hearing on 20th November, 1998 and was called out for final hearing after almost nine years, on 11th May, 2007, when the Counsel for the Vigilance Department sought time to seek instructions regarding the status of the investigation. The Apex Court noted that the High Court had acknowledged 45 wp.2129.08.sxw

the fact that there has been substantial delay in conclusion of the proceedings against the Appellant and some prejudice has been caused to the Appellant in his professional career on account of continuance of the criminal case against him as he was deprived of the promotion in the meantime. Inspite of such finding, the High Court rejected the Petition. Correctness of that view was put in issue before the Apex Court. On the facts of that case, the Apex Court agreed with the challenge of the Appellant therein that there was inordinate delay which can be legitimately termed as oppressive and unwarranted and having infringed the fundamental right of the Appellant guaranteed under Article 21 of the Constitution. Suffice it to observe that even this decision is of no avail considering the fact situation of the present case. More so, in view of the conclusion reached by us mentioned hitherto that it is not a case of inordinate delay as such and that it cannot be termed as oppressive and unwarranted or having caused any prejudice to the Petitioner. Indeed, the Petitioner has asserted that on account of pendency of the proceedings, she has suffered immense mental agony and also affected her profession, but going by her own averment in the Writ Petition as well as the rejoinder affidavit, it seems that the Petitioner before us has all along engaged herself in gainful activities inspite of the pendency of the criminal proceedings 46 wp.2129.08.sxw

against her. The grievance of the Petitioner that the prosecution has made false and untenable allegation that she is the daughter of accused No.1, does not take the matter any further. That contention will have no relevance to answer the question as to whether the delay in proceeding with the criminal action pending against the Petitioner can be said to be inordinate delay and having the effect so as to term it as oppressive and unwarranted.

30. Reliance was then placed on the decision of the Apex Court in T.J.Stephen & Ors. vs. M/s.Parle Bottling Co. (P) Ltd. & Ors. reported in 1988 (Supp) SCC 458. Even this Judgment is on the facts of that case. We fail to understand how this Judgment will be of any avail to the Petitioner to answer the issue under consideration. In that case, the Court was considering the application made to the Trial Court to discharge the Managing Director, Respondent No.2 in exercise of inherent powers. In the first place, the Court accepted the challenge that the matter could not have proceeded against Respondent No.2. It also went on to observe that the Respondent No.2 has no equity in his favour and the delay after the complaint had been filed has been mostly on account of his mala fide move. The benefit given to the Respondent No.2 is not on the principle of Article 21 of the Constitution as such.

47 wp.2129.08.sxw

31. Insofar as the decisions in the case of Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar, Patna reported in AIR 1979 SC 1360 and of Abdul Rehman Antulay (supra), we need not burden this Judgment with the same as it has been analysed by the seven Judges' Bench of the Apex Court in the case of P.Ramchandra Rao (supra) to which we have already alluded to in detail. Besides, reliance placed on the decision in the case of Moreshwar D. Save & anr. v/s. State of Maharashtra (CDJ 2008 BHC 1309) and in the case of M. Balan v/s. T. N. Water Supply and Drainage Board and anr. (CDJ 2009 MHC 163) are of no avail. The view taken therein is on the basis of fact situation of those cases.

32. Reliance was then placed on the decision of the Apex Court in the case of Suganthi Suresh Kumar vs. Jagdeeshan reported in (2002) 2 SCC 420, in particular, Paragraph 9 thereof. The Apex Court has held that it is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. Further, the High Court cannot question the correctness of decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme 48 wp.2129.08.sxw

Court. We fail to understand how this decision is of any avail to the Petitioner. Insofar as the decisions on which the Petitioner has placed reliance, we have already considered those decisions and found that the same have no application to the fact situation of the present case. We are not even remotely suggesting that any of those decisions are incorrect or have overlooked any relevant point. Moreover, we have placed reliance on the decision of the Constitution Bench of the Apex Court in support, which reinforces the conclusion reached by us.

33. Considering the above, we have no hesitation in taking the view that the grievance made by the Petitioner about infringement of her fundamental right guaranteed under Article 21 of the Constitution of India is devoid of merits in the fact situation of the present case. Accordingly, that challenge should fail. Nevertheless, we think it apposite to direct the Trial Court to proceed with the trial and take it to its logical end expeditiously. As observed by the Apex Court in the case of P.Ramchandra Rao (supra), the Trial Court has ample power to control the situation by invoking the provisions such as Sections 309, 311, 258 of Cr.P.C., so that, the trial is concluded expeditiously. Having regard to the fact that it pertains to year 49 wp.2129.08.sxw

1999, the Trial Court shall proceed with the Special Case No.39 of 1999 as far as possible on day-to-day basis for early conclusion thereof.

34. The Writ Petition is accordingly disposed of on the above terms. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)

Bombay High Court : Husbands illecite affair is cruelty u/s498a, CrlApl No. 131/97, 04.05.2011, Justice A.R.Joshi

2011-05-12T20:23:00.000+05:30

1
Judgment apeal-131-97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 131 OF 1997
WITH
CRIMINAL BAIL APPLICATION No. 464 of 2011.
IN
CRIMINAL APPEAL NO. 131 OF 1997
Ratan Laxman Jagzap, ]
Age 25 years, residing at ]
Nashik City, Hanumanwadi, ]
Panchawati, Taluka and District ]
Nashik ]
.. APPELLANT.
Versus
The State of Maharashtra ] ..RESPONDENT.
Mr. Z.M. Avhad with C.T.Chandratre, Advocate for the Appellant.
Mrs P.P. Bhosale,A.P.P. for the State.
....
CORAM : A. R. JOSHI, J.
DATE OF RESERVING
THE JUDGMENT : 14th April, 2011
DATE OF PRONOUNCING
THE JUDGMENT: 4th May, 2011.
JUDGMENT:1.
Heard rival submissions at length on this appeal preferred by original
accused No.1 challenging the judgment and order dated 31.1.1997 passed
by Additional Sessions Judge, Nashik in Sessions Case No. 172 of 1996.
2. Originally four accused, including the present appellantaccused
No.
2
Judgment apeal-131-97
1, were charged for the offence punishable under Sections 498A
and 306 of
the Indian Penal Code read with Section 34 of the I.P.C.
3. By the impugned judgment and order, original Accused Nos. 2,3 and
4 were acquitted of all the charges. Present appellant Accused No.1 was
also acquitted of the offence punishable under Section 306 read with section
34 of the I.P.C. However, he is convicted only for the offence punishable
under Section 498A
of I.P.C. and was sentenced to suffer rigorous
imprisonment for six months and to pay a fine of Rs.500/in
default of fine
to undergo imprisonment for one month.
4. Being aggrieved by the said judgment and order, the appellant
Accused No.1 preferred the present appeal. During the pendency of the
present appeal, he was released on bail. However, when the matter was
taken for final hearing before this Bench, he did not remain present, so also
his Advocate was not present. Hence, sometime in January, 2011, initially
bailable warrant was issued against the appellant and subsequently nonbailable
warrant was issued in February, 2011 and thereafter present
appellant was taken in custody and presently he is in jail. As such he had
preferred Criminal Application No. 464 of 2011 for bail. However, it was
thought fit under the circumstances of the case, considering the pendency of
the appeal since the year 1997, to decide the appeal itself on merits instead
of deciding the application for bail. Hence, the present order.
5. Certain factual position, as emerged out from the material available
before the learned Sessions Court, is required to be narrated in order to
3
Judgment apeal-131-97
have the proper perspective of the matter and in order to appreciate the
arguments advanced on behalf of the appellantaccused
No.1. Such position
is as under:(
i) All the four accused were charged for the
offence punishable under Section 498A
and 306 of
I.P.C.read with Section 34 of I.P.C. for treating the
deceased Chandrakala wife of the appellant with
cruelty and subjected her to such harassment of such
a nature and to such an extent and was likely to
drive her to commit suicide.
(ii) Inspite of the charge for offence punishable
under Sections 498A
and 306 read with Section 34
of I.P.C.,charge under section 306 of I.P.C.was not
established against all the accused.
(iii) Charge of 498A
of I.P.C.was also not
established against accused Nos. 2 to 4 who are the
relatives of accused No.1. Only charge established
against the appellantaccused
is punishable under
Section 498A
of I.P.C.
(iv) Total eight prosecution witnesses were
examined during the trial and out of them material
witnesses are PW No. 1, father of the deceased PW
No.6, mother of the deceased and one Rajmal – PW
4
Judgment apeal-131-97
No.4, the husband of one Smt. Ujawala, mistress of
the present appellantaccused
No.1. P.W.No.2 is the
Medical Officer whose evidence is on the aspect of
performing postpostmortem
report of 11th
November, 1995 on the dead body of the victim Smt
Chandrakala wife of present appellant.
(v) P.W.No.7 is brother in law of Accused No.1.
However, he did not support the case of the
prosecution and turned hostile. P.W.No.3 is one Smt
Kalpana, who is a tenant of the premises at Dhule
who deposed about the joint stay of the appellant
along with his mistress Ujawala staying in a house
along with brother of Ujawala and one son each of
the appellant and said Smt Ujawala. P.w.No.5 is
maternal uncle of deceawsed Chandrakala who
deposed as to – at one occasion the appellant
demaning Rs.500/from
him for repair of the motor
jeep purchased by the appellant. The last
prosecution witness No.8 is the Investigating Officer.
6. This Court has gone through the substantive evidence of above
prosecution witnesses, and mainly the evidence of P.W.Nos. 1 and 6.
According to them, their daughter Chandrakala used to tell them regarding
the illtreatment
meted out to her by present appellant – her husband.
5
Judgment apeal-131-97
7. Prior to discussing the evidence of said prosecution witnesses as to
applicability or otherwise of Section 498A
of the I.P.C., it must be said that
suicidal death of Chandrakala is not a disputable question and from the
evidence of medical witness P.W.No.2 this fact has been amply proved. Now,
the only question is, whether there was a cruelty practiced to Chandrakala.
On this aspect, what is contemplated by Section 498A
of I.P.C.is required to
be construed – Section 498A
reads :S.
498A.
Whoever, being the husband or the
relative of the husband of a woman, subjects such
woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation.For
the purposes of this section,
‘cruelty’ means (
a) any 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 is on account of
failure by her or any person related to her to meet
such demand.
8. There are two modes of cruelty mentioned in the Section. Apparently,
the present case was considered by the trial Court as establishment of a
6
Judgment apeal-131-97
mental cruelty on the wife i.e. deceased Chandrakala due to the actions on
the part of the present appellant – accused No.1 and this is more so in view
of he having extra marital relations with one Smt Ujawala wife of P.W.No.4 –
Rajmal. The trial Court has discussed this aspect in detail and which is also
the case of the prosecution, inasmuch as the appellant – accused No.1
developed a love affair with one Ujawala, a married woman who was the
wife of P.W.No.4 Rajmal. Said love affair was started on account of the
business transactions between P.W.No.4 Rajmal and the present appellant.
Rajmal P.W.No.4 was using the transport services of the present appellant for
the purpose of transporting the goods manufactured in the factory of Rajmal
and for that purpose initially the appellant had hired one tempo and
subsequently purchased his own jeep. In such business relation the
appellant came in contact with Ujawala, wife of Rajmal, and as such
subsequently Ujawala left her matrimonial house and went to Dhule and
started residing along with the appellant accused
No.1 in one house along
with son of the appellant and also the son of Ujawala from her marriage
with Rajmal. This extra marital relation of the appellant was known to the
deceased Chandrakala and she tried to divert the mind of the appellant
when he used to visit his house. Deceased Chandrakala tried to stop her
husband having illicit relations with Ujawala but in vain. This conduct of
the appellantaccused
is considered as mainly cruelty to his wife deceased
Chandrakala and for this reason punishment was awarded against the
appellant for the offence punishable under Section 498A
of I.P.C. But,
considering the material deficient of bringing home the charge for the
7
Judgment apeal-131-97
offence punishable under Section 306 of the I.P.C., the Trial Court acquitted
appellant Accused No.1 for the said charge.
9. On carefully examining the substantive evidence of P.W.No.4 –
husband of Smt Ujawala, it transpires that the deceased Chandrakala had
been to the house of said witness for making enquiry regarding her husband
– the appellant having extra marital relations with the wife of P.W.No.4.
Further the evidence of P.W.No.4 reveals that his wife Ujawala had left the
matrimonial house and initially went to her parents at Pune and
subsequently left Pune and instead coming back to matrimonial home went
at some other place and subsequently found at Dhule where she was staying
with present appellant along with her son from her marriage with P.W.No.4.
Said stay of the appellant with Ujawala at Dhule is fortified by the
substantive evidence of P.W. No.3 Kalpana, who was neighbour of the
accused appellant, residing at Dhule. Substantive evidence of said P.W.No.3
reveals that once Smt Ujawala had told her in casual talk that the appellant
was her husband. Said P.W. No.3 Kalpana had identified the appellant
during her substantive evidence of the trial Court. Nothing was extracted
from her crossexamination
as to doubt her evidence as to accused No.1 and
Smt Ujawala staying as husband and wife at Dhule.
10. Considering the substantive evidence of these witnesses, Rajmal and
Kalpana, trial Court came to the conclusion regarding the truth in the
complaint of Chandrakala, made in November, 1995 prior to the incident of
she committing suicide, such complaint was made to her parents that the
appellant was living with his mistress in Dhule and he intends to marry with
8
Judgment apeal-131-97
her.
11. Apart from the above, trial Court has also discussed the another
circumstance as to substantive evidence of Rajmal that Chandrakala had
been to his place inquiring regarding her husband. Trial Court has also
placed reliance on the factual position as to the evidence of Kamalbai that
accused No.1 returned back to his house only a couple of days prior to the
occurrence of the incident which took place on 11th November, 1995 when
she consumed insecticide and committed suicide. In the opinion of this
Court, the trial Court has rightly appreciated the evidence of prosecution
witnesses and mainly that of Rajmal P.W.No.4, Kalpanabai P.W.No.3 and also
of the parents of deceased Chandrakala, inasmuch as the proof of the
offence under Section 498A
is concerned regarding mental cruelty due to
illicit relations of the appellant with another woman and this fact was
known to the victim. However, the trial Court did not take into consideration
the mental cruelty as sufficient for Smt Chandrakala to end her life by
consuming poison mentioning that Chandrakala became over sentimental
after knowing that her husband had kept a mistress and out of desperation
she had taken extreme steps of committing suicide. In the opinion of this
Court, in the absence of any appeal against the acquittal of the appellantaccused
No.1 for the offence punishable under Section 306 of the I.P.C. what
is construed is whether the conviction for the offence punishable under
Section 498A
of I.P.C. is sustainable or not.
12. In view of the above discussion and the merit of the substantive
evidence of the witnesses mentioned above, in the opinion of this Court,
9
Judgment apeal-131-97
there is nothing to interfere with the impugned judgment and order
regarding conviction of the appellant for the offence punishable under
Section 498A
of I.P.C. more so, considering the quantum of punishment
inflicted i.e. for six months and fine of Rs.500/.
In the result, there is no
substance in the present criminal appeal. Hence, same is disposed of with
the following order.
: O R D E R :
(i) Criminal Appeal No. 131 of 1997 is dismissed.
ii) In view of disposal of the main appeal, Criminal
Application No. 464 of 2011 does not survive and same is
disposed of accordingly.

(A. R. JOSHI, J.)

Khap panchayats' diktats must be ruthlessly stamped out: Apex court

2011-04-21T01:44:00.001+05:30

Khap panchayats' diktats must be ruthlessly stamped out: Apex court

By Indo Asian News Service | IANS – Tue, Apr 19, 2011 8:14 PM IST

http://in.news.yahoo.com/khap-panchayats-diktats-must-ruthlessly-stamped-apex-court-144458220.html

{This Judgment is in the "Judgment" section of this blog}

New Delhi, April 19 (IANS) The Supreme Court Tuesday held that diktats by 'khap panchayats' (caste councils) -- aimed at coercing or committing atrocities on young boys and girls who wish to marry inter-caste/religion -- were wholly illegal and should be ruthlessly stamped out.

'We have, in recent years, heard of 'Khap Panchayats' (katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or otherwise interfere with the personal lives of people,' said the apex court bench of Justice Markandey Katju and Justice Gyan Sudha Misra.

'We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out,' said Justice Katju speaking for the bench.

The court directed the registry to send the copy of the judgment to all chief secretaries, home secretaries and director generals of police in all states and union territories for circulation to all officers up to the level of district magistrates and senior superintendents of police/superintendents of police for strict compliance.

In the event of the official's failure to take necessary steps for preventing such incidents from taking place, they should be placed under suspension and proceeded against departmentally, the judgment said.

Copy will also be sent to the registrar generals/registrars of all high courts who will circulate it to all judges of the court, the judgment said.

Referring to the earlier judgments of the apex court, the judgment said that there was 'nothing honourable in honour killing or other atrocities' and in fact, it was 'nothing but barbaric and shameful murder'.

'Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality,' the judgment said.

It further said that these acts of taking law into their own hands amounts to kangaroo courts, which are wholly illegal.

Justice Katju started the judgment with a couplet from Firaq Gorakhpur: 'Har zarre par ek qaifiyat-e-neemshabi hai/Ai saaki-e-dauraan yeh gunahon ki ghadi hai (Every particle has a condition of half-darkness/Oh cupbearer of the era, it is the time of crime).'

The court's strong direction for 'ruthlessly stamping' out such tendencies and diktats of the khap panchayats came while upholding the conviction of Ajit Kumar, Arumugam Servai and others for assaulting Panneeselvam and Mahami during a temple festival, over differences on the method of tying bullocks in the Jallikattu.

Both Panneeselvam and Mahami were not only assaulted but even described as 'pallapayal' and eaters of meat of dead cows. Mahami suffered head injury, which doctors described was inflicted with a deadly intent.

The accused belong to the 'servai' caste, which is a backward caste, whereas the complainants belong to the 'pallan' caste, which is a Scheduled Caste in Tamil Nadu.

The appellants in the present case have behaved like uncivilized savages, and hence deserve no mercy, the judgment read.

Supreme Court : Khap panchayats' diktats must be ruthlessly stamped out, 19.04.11, Justice Markandey Katju & Justice Gyan Sudha Misra

2011-04-21T01:41:00.002+05:30

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._958__of 2011
[Arising out of SLP(Criminal) No. 8084 of 2009]
Arumugam Servai .. Appellant (s)
-versus-
State of Tamil Nadu .. Respondent
WITH
CRIMINAL APPEAL NO. 959 of 2011
[Arising out of SLP (Criminal) No. 8428 of 2009]
Ajit Kumar and others .. Appellant (s)
-versus-
State of Tamil Nadu .. Respondent
J U D G M E N T
MARKANDEY KATJU, J.
“Har zarre par ek qaifiyat-e-neemshabi hai
Ai saaki-e-dauraan yeh gunahon ki ghadi hai”
- Firaq Gorakhpuri
“We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their creator by certain inalienable rights, that among these are life,
liberty, and the pursuit of happiness”
- American Declaration of Independence, 1776
1. Over two centuries have passed since Thomas Jefferson wrote those
memorable words, which are still ringing in history, but a large section of Indian
society still regard a section of their own countrymen as inferior. This mental attitude
is simply unacceptable in the modern age, and it is one of the main causes holding up
the country’s progress.
2. Leave granted.
3. These appeals have been filed against the common judgment and order of the
Madras High Court dated 25.1.2008 in Criminal Appeal Nos. 536-37 of 2001
upholding the judgment of the Leaned 4th Additional District and Sessions Judge,
Madurai.
4. The allegation against the appellants is that on 1.7.1999, there was an
altercation between the appellants and the complainants PW1 Panneerselvam and
PW2 Mahamani in a Temple Festival regarding the method of tying bullocks in the
Jallikattu. The appellant Arumugam Servai then insulted PW1 by saying “you are a
pallapayal and eating deadly cow beef”. Then accused 1, 7 and 9 attacked PW1 with
sticks causing him injuries on his left shoulder. When PW2 Mahamani intervened he
was attacked by the accused with sticks, and he sustained a fracture on his head, on
which there was a lacerated wound.
5. Apart from the two injured eye-witnesses, there are 3 other eye-witnesses to
the occurrence. The doctor has testified to the injuries. The head fracture on
Mahamani indicates the deadly intent of the accused.
6. Both the Courts below have believed the prosecution case, and we see no
reason to differ. We have carefully perused the testimony of the witnesses, and we see
no reason to disbelieve them.
7. The accused belong to the ‘servai’ caste which is a backward caste, whereas
the complainants belong to the ‘pallan’ caste which is a Scheduled Caste in
Tamilnadu.
8. The word ‘pallan’ no doubt denotes a specific caste, but it is also a word
used in a derogatory sense to insult someone (just as in North India the word ‘chamar’
denotes a specific caste, but it is also used in a derogatory sense to insult someone).
Even calling a person a ‘pallan’, if used with intent to insult a member of the
Scheduled Caste, is, in our opinion, an offence under Section 3(1)(x) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter referred
to as the ‘SC/ST Act’). To call a person as a ‘pallapayal’ in Tamilnadu is even more
insulting, and hence is even more an offence.
9. Similarly, in Tamilnadu there is a caste called ‘parayan’ but the word
‘parayan’ is also used in a derogatory sense. The word ‘paraparayan’ is even more
derogatory.
10. In our opinion uses of the words ‘pallan’, ‘pallapayal’ ‘parayan’ or
‘paraparayan’ with intent to insult is highly objectionable and is also an offence under
the SC/ST Act. It is just unacceptable in the modern age, just as the words ‘Nigger’ or
‘Negro’ are unacceptable for African-Americans today (even if they were acceptable
50 years ago).
11. In the present case, it is obvious that the word ‘pallapayal’ was used by
accused No. 1 to insult Paneerselvam. Hence, it was clearly an offence under the
SC/ST Act.
12. In the modern age nobody’s feelings should be hurt. In particular in a
country like India with so much diversity (see in this connection the decision of this
Court in Kailas vs. State of Maharashtra in Crl. Appeal No. 11/2011 decided on
5.1.2011) we must take care not to insult anyone’s feelings on account of his caste,
religion, tribe, language, etc. Only then can we keep our country united and strong.
13. In Swaran Singh & Ors. vs. S tate thr’ Standing Counsel & Anr. (2008)
12 SCR 132, this Court observed (vide paras 21 to 24) as under:
“21. Today the word `Chamar' is often used by people belonging to the socalled
upper castes or even by OBCs as a word of insult, abuse and derision.
Calling a person `Chamar' today is nowadays an abusive language and is
highly offensive. In fact, the word `Chamar' when used today is not
normally used to denote a caste but to intentionally insult and humiliate
someone.
22. It may be mentioned that when we interpret section 3(1)(x) of the Act
we have to see the purpose for which the Act was enacted. It was obviously
made to prevent indignities, humiliation and harassment to the members of
SC/ST community, as is evident from the Statement of Objects & Reasons
of the Act. Hence, while interpreting section 3(1)(x) of the Act, we have to
take into account the popular meaning of the word `Chamar' which it has
acquired by usage, and not the etymological meaning. If we go by the
etymological meaning, we may frustrate the very object of the Act, and
hence that would not be a correct manner of interpretation.
23. This is the age of democracy and equality. No people or community
should be today insulted or looked down upon, and nobody's feelings
should be hurt. This is also the spirit of our Constitution and is part of its
basic features. Hence, in our opinion, the so-called upper castes and OBCs
should not use the word `Chamar' when addressing a member of the
Scheduled Caste, even if that person in fact belongs to the `Chamar' caste,
because use of such a word will hurt his feelings. In such a country like ours
with so much diversity - so many religions, castes, ethnic and lingual
groups, etc. - all communities and groups must be treated with respect, and
no one should be looked down upon as an inferior. That is the only way we
can keep our country united.
24. In our opinion, calling a member of the Scheduled Caste `Chamar'
with intent to insult or humiliate him in a place within public view is
certainly an offence under section 3(1)(x) of the Act. Whether there was
intent to insult or humiliate by using the word `Chamar' will of course
depend on the context in which it was used”.
14. We would also like to mention the highly objectionable two tumbler system
prevalent in many parts of Tamilnadu. This system is that in many tea shops and
restaurants there are separate tumblers for serving tea or other drinks to Scheduled
Caste persons and non-Scheduled Caste persons. In our opinion, this is highly
objectionable, and is an offence under the SC/ST Act, and hence those practicing it
must be criminally proceeded against and given harsh punishment if found guilty. All
administrative and police officers will be accountable and departmentally proceeded
against if, despite having knowledge of any such practice in the area under their
jurisdiction they do not launch criminal proceedings against the culprits.
15. In L ata Singh vs. S tate of U .P. & Anr (2006) 5 SCC 475, this Court
observed (vide paras 14 to 18) as under:
“14. This case reveals a shocking state of affairs. There is no dispute that
the petitioner is a major and was at all relevant times a major. Hence she is
free to marry anyone she likes or live with anyone she likes. There is no bar
to an inter-caste marriage under the Hindu Marriage Act or any other law.
Hence, we cannot see what offence was committed by the petitioner, her
husband or her husband's relatives.
15. We are of the opinion that no offence was committed by any of the
accused (the couple who had an inter caste marriage) and the whole criminal
case in question is an abuse of the process of the Court as well as of the
administrative machinery at the instance of the petitioner's brothers who
were only furious because the petitioner married outside her caste. We are
distressed to note that instead of taking action against the petitioner's
brothers for their unlawful and high-handed acts (details of which have been
set out above) the police has instead proceeded against the petitioner's
husband and his relatives.
16. Since several such instances are coming to our knowledge of
harassment, threats and violence against young men and women who marry
outside their caste, we feel it necessary to make some general comments on
the matter. The nation is passing through a crucial transitional period in our
history, and this Court cannot remain silent in matters of great public
concern, such as the present one.
17. The caste system is a curse on the nation and the sooner it is
destroyed the better. In fact, it is dividing the nation at a time when we have
to be united to face the challenges before the nation unitedly. Hence, intercaste
marriages are in fact in the national interest as they will result in
destroying the caste system. However, disturbing news are coming from
several parts of the country that young men and women who undergo intercaste
marriage, are threatened with violence, or violence is actually
committed on them. In our opinion, such acts of violence or threats or
harassment are wholly illegal and those who commit them must be severely
punished. This is a free and democratic country, and once a person becomes
a major he or she can marry whosoever he/she likes. If the parents of the
boy or girl do not approve of such inter-caste or inter-religious marriage the
maximum they can do is that they can cut off social relations with the son or
the daughter, but they cannot give threats or commit or instigate acts of
violence and cannot harass the person who undergoes such inter-caste or
inter- religious marriage. We, therefore, direct that the administration/police
authorities throughout the country will see to it that if any boy or girl who is
a major undergoes inter-caste or inter-religious marriage with a woman or
man who is a major, the couple are not harassed by any one nor subjected to
threats or acts of violence, and any one who gives such threats or harasses
or commits acts of violence either himself or at his instigation, is taken to
task by instituting criminal proceedings by the police against such persons
and further stern action is taken against such persons as provided by law.
18. We sometimes hear of `honour' killings of such persons who undergo
inter-caste or inter-religious marriage of their own free will. There is
nothing honourable in such killings, and in fact they are nothing but
barbaric and shameful acts of murder committed by brutal, feudal minded
persons who deserve harsh punishment. Only in this way can we stamp out
such acts of barbarism”.
16. We have in recent years heard of ‘Khap Panchayats’ (known as katta
panchayats in Tamil Nadu) which often decree or encourage honour killings or other
atrocities in an institutionalized way on boys and girls of different castes and religion,
who wish to get married or have been married, or interfere with the personal lives of
people. We are of the opinion that this is wholly illegal and has to be ruthlessly
stamped out. As already stated in Lata Singh’s case (supra), there is nothing
honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric
and shameful murder. Other atrocities in respect of personal lives of people committed
by brutal, feudal minded persons deserve harsh punishment. Only in this way can we
stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the
law into their own hands, and amount to kangaroo courts, which are wholly illegal.
17. Hence, we direct the administrative and police officials to take strong
measures to prevent such atrocious acts. If any such incidents happen, apart from
instituting criminal proceedings against those responsible for such atrocities, the State
Government is directed to immediately suspend the District Magistrate/Collector and
SSP/SPs of the district as well as other officials concerned and chargesheet them and
proceed against them departmentally if they do not (1) prevent the incident if it has
not already occurred but they have knowledge of it in advance, or (2) if it has
occurred, they do not promptly apprehend the culprits and others involved and
institute criminal proceedings against them, as in our opinion they will be deemed to
be directly or indirectly accountable in this connection.
18. The appellants in the present case have behaved like uncivilized savages, and
hence deserve no mercy. With these observations the appeals are dismissed.
19. Copy of this judgment shall be sent to all Chief Secretaries, Home
Secretaries and Director Generals of Police in all States and Union Territories of India
with the direction that it should be circulated to all officers up to the level of District
Magistrates and S.S.P./S.P. for strict compliance. Copy will also be sent to the
Registrar Generals/Registrars of all High Courts who will circulate it to all Hon’ble
Judges of the Court.
……. …………………….…J.
(Markandey Katju)
………………………………J.
(Gyan Sudha Misra)
New Delhi;
19th April, 2011

Supreme Court : Police cannot use custodial violence, 29.03.2011, Justice M. Katju, Justice Gyan S Misra

2011-04-20T21:15:00.002+05:30

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1511 OF 2003
Mehboob Batcha & Ors. .. Appellant(s)
-versus-
State Rep. by Supdt. of Police .. Respondent
J U D G M E N T
MARKANDEY KATJU, J.
“Bane hain ahal-e-hawas muddai bhi
munsif bhi
Kise vakeel karein kisse munsifi
chaahen”
-- Faiz Ahmed Faiz
1. If ever there was a case which cried out for death penalty it is this one,
but it is deeply regrettable that not only was no such penalty imposed but not
even a charge under Section 302 IPC was framed against the accused by the
Courts below.
2. Heard learned counsel for the parties.
3. The facts in detail have been stated in the impugned judgment of the
High Court as well as of the trial court and hence we are not repeating the
same here, except where necessary.
4. The appellants are policemen who wrongfully confined one
Nandagopal in police custody in Police Station Annamalai Nagar on
suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to death there
with lathis, and also gang raped his wife Padmini in a barbaric manner. The
accused also confined several other persons (who were witnesses) and beat
them in the police station with lathis.
5. Both the trial Court and the High Court have found the appellants
guilty and we see no reason to disagree with their verdict. To prove the
charges the prosecution examined as many as 37 witnesses, and they have
proved the guilt of the accused beyond reasonable doubt.
6. PW1 Padmini has given her evidence in great detail and we see no
reason to disbelieve the same. We have read her evidence which discloses
2
the inhuman and savage manner in which the accused, who were police
personnel, treated Nandagopal and Padmini. We may quote just parts of her
testimony which are as follows :
…….“on Sunday at about 1.00 p.m. two policemen came
in an auto to my house. They are A3, A6 and A8. All of
them beat me by lathis on my buttocks. A3 caught hold
of my leg and pulled me saying get into the auto. I ran
outside. Two autos came and in one auto Subramaniam
and Nandagopal were sitting with handcuffs jointly.
Unable to bear pain I sat by their side. The auto went to
Annamalai Nagar police station and they asked me to go
inside and I went inside. A6 beat me up. I was
surrounded by 4, 5 persons who were beating me. At that
time my jacket (blouse) was torn. Some one tore off my
jacket and I do not remember as to who tore off that
jacket. They said ‘you will not bear any more and go and
sit’ I sat in the corner where the Head constable was
sitting earlier. Some time afterwards two women police
came there. Thinking that I would be let off, I stated to
them that I took oleander seeds, for that the women
police gave me water mixed with tamarind and soap and
asked me to drink it. That night myself and the women
police were lying down in the room where the Sub
Inspector of Police was sitting and in the early morning
the women police went out. My husband’s sister’s
daughter by name Priya gave coffee. I could talk
anything. I ate idly. My husband told me why you are
coming here, I am being tortured by them. I told him that
they would not do anything and they would let you free.
At that time a policeman came and told ‘what are you
talking to her’, and saying so he kicked him and pushed
him down. A6, beat my husband and kept him in the
lock up. Subramani, Kolanchi and Subramaniam were
also in the lock up. Then I was given good meals and my
husband was given waste food. Therefore I gave my
food to Nandagopal. For that A1 said you should take
that food and be good and why did you give it him, by
3
saying so he beat me by lathi. In the evening all of them
jointly discussed with themselves saying that each one of
them should give Rs.50/- for giving a party. One police
man asked for what purpose you are giving a party and
one police man whispered some thing in his ear. On
hearing that, he asked were you not born with your
sisters, and saying so he left that place. On Monday at
about 8.00 pm night, Nandagopal was brought out from
the lock up. A6 told that he should see some one has to
remove my saree. He called the accused Kolanchi from
the lock up and asked him to remove my saree. He was
holding my palla, but I was holding it tightly without
leaving it. The said Kolanchi told that he should not pull
it. Immediately the first accused beat him with a lathi.
Then after beating him, he asked him to get to the side of
the open court yard. Immediately A3 came to remove
my saree. A3 removed the entire saree of mine. At that
time I was wearing petty coat and jacket. A1, A3, A6,
A8 and A10 removed my jacket and petty coat and made
me nude. They asked me to run through the court yard
and beat me and I fell down. All the five accused person
one by one embarrassed me and kissed me. Then I fell
down. At that time one said ‘your private part is big in
size, cannot you bear this pain’. I cried and asked him to
stop beating. At that time some one came there in
connection with a case. They said not to say this to
anyone outside. I wrapped the saree over the body and
sat. At that time two women police came there. I stated
to them what had happened. They said that no one will
beat you hereafter, and I went to lie down along with
them in a room. In the early morning on Tuesday one
Senthil came and brought coffee. Senthil is the son of
my husband’s sister. On that evening my husband was
taken outside and brought to the police station along with
Rani, Dandapani. Rani is the younger sister of
Nandagopal. Dandapani is the husband of Rani. When
Dandapani was asked about the tape recorder, he showed
a bill of a shop where he purchased it. For that the police
said ‘why are you telling a lie’. Yesterday we have
removed the saree of the wife of Nandagopal and saw,
4
and it would be proper if we remove the saree of your
wife. At that time there were bleeding injuries on the
back, leg and shoulder of Nandagopal and blood was
oozing out in strips. Police stated like that. My husband
sustained injury on account of beatings by the police A1,
A3, A6, A8 and A10 beat my husband. Then the police
asked Rani and Dandapani to go to their house. On
Tuesday night two women police came to the police
station. They were talking with each other as to whether
any clothes have been brought for staying in the night.
Along with them one male police came and asked
whether they had seen Tamil picture ‘Sembaruthi’. I
asked them not to leave me alone and asked them to take
me along with them. They said they would not do
anything, by saying so those two women police went out.
I cannot identify those police properly and I do not
remember their names. On Tuesday at about 10.30 pm
my husband Nandagopal was brought to the open court
yard from the lock up. Myself and Nandagopal were
brought to a room opposite to the open court yard. My
husband was kept in a standing position on the wall and
beaten up by them. A6 Dhass pulled out my saree. A10
removed my jacket and petty coat and made me to
become nude and I was beaten and pushed down. My leg
had stuck into a bench and I could not remove it. At that
time the 2nd accused Sub-Inspector of police came to
Annamalai Nagar police station. He said that he would
go first. At that time he used rubber loop at the genital
organ and committed rape on me. A2, A3, A6, A8 and
A10 also raped me forcibly. All of them have used
rubber loop. All of them raped me in the presence of my
husband. At that time my husband Nandagopal requested
them not to do harm to my wife, and leave her. At that
time A6 beat Nandagopal with lathi on his genital part.
He fell down. He asked water by gesture. At that time
after wrapping the saree over my body I took water from
the pot. At that time the said five police men surrounded
me and said if you want to give water to Nandagopal,
you should give a kiss to everyone. Then I gave kisses to
all the five. When I went to take water to my husband,
5
they threw it away. That fell down. With an intention to
spoil me again, they pulled me and I said I cannot come
and leave me, by saying so I sat down. When A6 came
and tried to force me, I fell on his leg and bit. On
account of the sexual intercourse, I sustained bleeding
injuries on the breast and genital organ and then I fell
unconscious. When I woke up after regaining
consciousness, the clothes were wrapped halfly. I said I
wanted to see my husband. I was brought outside saying
that my husband was sent to court. One of the policemen
asked me to get into the van. I was kept at Chidambaram
police station. They offered me idli and coffee. I ate it.
One lady police was with me. All the other policemen
went out with lathis. The woman police who was with
me stated that there was students’ agitation and some one
was done to death at Annamalai Nagar Police Station. I
wept and then I was left out. I asked the auto man at
Mariamman temple to take me in the auto. He asked me
whether I am the wife of Nandagopal, I said yes. He said
that Nandagopal was done to death by the police and
asked me not to go there. Then I went to court in the
auto. This occurrence was talked in court. Then I went
to Tahsildar’s office immediately. I stated what had
happened there. The Officers have gone to take action
and they asked me to be here. I was sitting there. I went
to Annamalai Nagar police station in a Jeep. There was a
crowd there. I cried saying that not only I was raped by
five persons but they also assaulted my husband and done
him to death. One of the police men who raped me was
standing there. I beat him with a chappal. He is A10.
R.D.O. was there. He asked me what had happened and I
said what had happened. I fell down unconscious. Then
I was taken to the hospital. At about 1.00 pm one male
doctor examined me. Then I came to the police station at
Annamalai Nagar and gave my statement. That was
recorded by them. Ex.P.1 is the statement typed by
R.D.O. and obtained my signature therein. Then I went
to the house of my mother in law. Nandagopal was lying
dead. I was weeping. At that time Balakrishnan,
Jankirani and politicians came there. I stated to them
6
what had happened. Balakrishnan is the District
Secretary of Communist Party, Janki Rani is the
President of All Indian Madhar Sangam at Chidambaram.
Janki Rani is the wife of Balakrishnan. I gave a petition
to the R.D.O. to send me to the hospital that is Ex.P.2. I
was admitted in the hospital at about 11.00 pm in the
night. On the next day at about 7 or 7.30 am I was
examined by a lady doctor. After coming from the
hospital, on Thursday evening my husband was buried.
On 5.6.1992 I sent a petition to the District
Superintendent of Police. After I came to my house, a
police officer came to my house. I have stated to him
what had happened.”………
7. Padmini also stated :
………..“The two police asked me to come to the rest
room. Then at the same time three police without any
uniform came inside. Then I cried in front of the lock up
where my husband was kept inside saying that are calling
me, but no one to help me. My husband was brought
from the lock to the open court yard with handcuff. I
cried to the police by kneeling down. At that time
Subramaniam asked them not to do anything to my sister
and not to beat my friend. Then they removed the jacket
and saree and made me to become nude in the open yard
and squeezed my breast and bit and the old aged police
hit against my private part with a stick saying that it is
very big and I have to see how long it would go.……..
……..Five police men came smelling of Brandy in their
mouth. My husband was beaten while he was taken from
the lock up and myself and my husband were kept in a
room where the rice bags were kept. I was made to
become nude. My husband cried to the police with
handcuff to release him. The police kicked my husband
on his chest. You would be alive only tonight and if you
want you can enjoy. By saying so they hit him with gun.
At that time Sub-Inspector stated that others can do only
7
if I say because I am the officer here and so I will do first
and other can afterwards, and by saying so he raped me.
I raised a noise saying I am having much pain and asked
him to leave me and the other police men were beating
my husband. My husband asked them to remove the
handcuff put on him. They did not do so. After finishing
the work, Sub Inspector went away and asked others to
do the same and he would see whether anybody is
coming and asked them to finish the work. I was asked
to lie facing up, one of them was holding my leg and
another one was holding the hand and another one was
lying on me and had intercourse with me. Like that all
the five persons spoiled me.”……….
8. We see no reason to disbelieve Padmini’s evidence. Ordinarily no
self respecting woman would come forward in Court to falsely make such a
humiliating statement against her honour.
9. The learned counsel for the accused referred to some discrepancies in
her evidence, but it is well settled that minor discrepancies cannot demolish
the veracity of the prosecution case. In our opinion there is no major
discrepancy in the prosecution case, which is supported by the evidence of a
large number of witnesses, including injured witnesses, apart from the
testimony of Padmini, who identified the accused in the identification parade
held on 13.8.1992 in Central Jail, Cuddalore. Although A10 was not
identified by her, the High Court has given good reasons for holding him
guilty too, and we agree with the same.
8
10. The Medical Officer who examined Padmini found multiple nail
scratches on her breasts. She complained of severe pain in her private parts.
There were multiple abrasions on her vagina and cervix with discharge of
foul smelling fluids. The chemical analysis of her vaginal smear showed
plenty of pus cells and epithetical cells. The doctors also examined
Subramaniam and Chidambaranathan who were beaten by the accused
policemen with lathis.
11. We have held in Satya Narain Tiwari @ Jolly & Anr. vs. State of
U.P., JT 2010(12) SC 154 and in Sukhdev Singh vs. State of Punjab, SLP
(Criminal) No.8917 of 2010 decided on 12.11.2010 that crimes against
women are not ordinary crimes committed in a fit of anger or for property.
They are social crimes. They disrupt the entire social fabric, and hence they
call for harsh punishment.
12. The horrendous manner in which Padmini was treated by policemen
was shocking and atrocious, and calls for no mercy.
13. The post-mortem report of Nandagopal shows the following injuries :
“I. A rope like ligature mark centre of neck encircling
obliquely upwards. M Right to left neck with knot like
mark on right neck. (Size about “1/2 in width O Rope
9
mark). Middle lateral aspect. Underlying skin dry
parchment in colour.
II. An abrasion 1 x 1 cm left cheek.
III. An abrasion 3 x 1 cm right hip anterior.
IV. An abrasion 2 x 1 cm left leg middle anterior.
V. An abrasion 3 x 1 cm right leg middle anterior.
VI. An abrasion 2 x 1 cm left arm shoulder posterior
lower.
VII. An abrasion 2 x 1 cm right arm shoulder posterior
lower.
VIII. An abrasion 2 x 1 cm left elbow antero-medical.
IX. An abrasion 2 x 1 cm right elbow posterior lower.
X. An abrasion 2 x 1 cm right scrotum lower anterolateral.
No underneath haemotoma injuries are
ante-mortem in nature.
XI. Tongue bitten in between the teeth partially
protruded outside.
The post-mortem certificate contains the final opinion of
the doctor that Nandagopal died on asphyxial death due
to atypical hanging about 10 to 24 hours prior to postmortem.”
14. The above injuries show the horrible manner in which Nandagopal
was beaten and killed in police custody. In her evidence Padmini stated that
on the evening of Sunday, “Four policemen beat my husband with sticks.
They kicked my husband with boots on his chest.” She also stated “At that
time there were bleeding injuries on back leg and shoulder (of Nandagopal)
and blood was oozing out and found in strip form”. Even when she was
being raped by the policemen Nandagopal was beaten.
1
15. We are surprised that the accused were not charged under Section 302
IPC and instead the Courts below treated the death of Nandagopal as
suicide. In fact they should have been charged under that provision and
awarded death sentence, as murder by policemen in police custody is in our
opinion in the category of rarest of rare cases deserving death sentence, but
surprisingly no charge under Section 302 IPC was framed against any of the
accused. We are constrained to say that both the trial Court and High Court
have failed in their duty in this connection.
16. The entire incident took place within the premises of Annamalai
Nagar police station and the accused deserve no mercy.
17. In this appeal the appellant no.1 has been given the sentence of 3
years rigorous imprisonment and a fine, while the other appellants have been
given sentence of 10 years rigorous imprisonment with a fine.
18. In the normal course, we could have issued notice of enhancement of
sentence, but as no charge under Section 302 IPC was framed, we cannot
straightaway record conviction under that provision and enhance the
punishment.
19. For the reasons given above this appeal is dismissed.
1
20. Before parting with this case, we once again reiterate that custodial
violence in police custody is in violation of this Court’s directive in D.K.
Basu vs. State of West Bengal 1997(1) SCC 416 and we give a warning to
all policemen in the country that this will not be tolerated. The graphic
description of the barbaric conduct of the accused in this case shocks our
conscience. Policemen must learn how to behave as public servants in a
democratic country, and not as oppressors of the people.
21. In D.K. Basu’s case this Court observed :
..........“Custodial violence, including torture and death in
the lock-ups, strikes a blow at the rule of law, which
demands that the powers of the executive should not only
be derived from law but also that the same should be
limited by law. Custodial violence is a matter of concern.
It is aggravated by the fact that it is committed by
persons who are supposed to be the protectors of the
citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up,
the victim being totally helpless. The protection of an
individual from torture and abuse by the police and other
law-enforcing officers is a matter of deep concern in a
free society.
In spite of the constitutional and statutory
provisions aimed at safeguarding the personal liberty and
life of a citizen, growing incidence of torture and deaths
in police custody has been a disturbing factor. Experience
shows that worst violations of human rights take place
during the course of investigation, when the police with a
1
view to secure evidence or confession often resorts to
third-degree methods including torture and adopts
techniques of screening arrest by either not recording the
arrest or describing the deprivation of liberty merely as a
prolonged interrogation. A reading of the morning
newspapers almost everyday carrying reports of
dehumanising torture, assault, rape and death in custody
of police or other governmental agencies is indeed
depressing. The increasing incidence of torture and death
in custody has assumed such alarming proportions that it
is affecting the credibility of the rule of law and the
administration of criminal justice system. The
community rightly feels perturbed. Society’s cry for
justice becomes louder.
Custodial death is perhaps one of the worst crimes
in a civilized society governed by the rule of law. 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 civilized 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’.”…………..
(emphasis supplied)
22. Let a copy of this order be sent to Home Secretary and Director
General of Police of all States and Union Territories, who shall circulate the
1
same to all police officers up to the level of S.H.O. with a directive that they
must follow the directions given by this Court in D.K. Basu’s case (supra),
and that custodial violence shall entail harsh punishment.
……….…………………….J.
(Markandey Katju)
…………………………….J.
(Gyan Sudha Misra)
New Delhi:
March 29, 2011
1

Delhi High Court : Maid living as Wife is eligible for Maintenance u/s 125 Crpc, Justice Hima Kohli, 01.04.2011, Mahender Vs Asha Laxmi & Oths

2011-04-20T21:10:00.003+05:30

CRL.REV.P.153/2011 Page 1 of 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 153/2011 and CRL.M.A. 3979-3980/2011 Decided on: 01.04.2011 IN THE MATTER OF : MAHENDER ..... Petitioner Through: Mr. P.K. Dash, Advocate with petitioner in person. versus ASHA @ LAXMI & ORS. ..... Respondents Through: None CORAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may No be allowed to see the Judgment? 2. To be referred to the Reporter or not? No 3. Whether the judgment should be No reported in the Digest? HIMA KOHLI, J. (Oral) 1. The present petition is filed by the petitioner under Sections 397/401 read with Section 482 of the Cr.PC praying inter alia for setting aside order dated 4.2.2011 passed by the learned Additional Principal Judge, Family Courts, Rohini and for quashing of the petition under Section 125 Cr.P.C. for maintenance as also the application for interim maintenance preferred by the respondents herein, who are the wife of the petitioner and their three minor children.
2. By the order dated 4.2.2011, the learned Addl. Principal Judge, Family Courts had granted interim maintenance of Rs. 3000/- per month to the respondents from the date of the application and had directed the
CRL.REV.P.153/2011 Page 2 of 4
petitioner to clear the arrears of maintenance within a period of 6 months and to pay the monthly maintenance amount regularly by 10th of each month. 3. Counsel for the petitioner states in the first place that the petition under Section 125 Cr.P.C. preferred by the respondents is not maintainable and should be dismissed, as there exists no valid marriage between the petitioner and respondent no. 1. He submits that the petitioner is a man of 65 years whereas respondent no. 1 is 30 years of age, and it seems improbable that a marriage would have taken place between them. He further states that respondent no. 1 was a maid servant in the house of the petitioner and that she was a widow who had three children from her previous marriage, who are respondents no. 2 to 4 herein. He further argues that payment of interim maintenance of Rs. 3000/- per month is highly onerous as the petitioner is a poor man, with insufficient resources. In the light of these submissions, counsel for the petitioner prays that the aforesaid order dated 4.2.2011 should be set aside, as it is wholly erroneous and contrary to law.
4. The issue as to whether there exists a valid marriage between the petitioner and respondent no. 1 was raised before the learned Addl. Principal Judge, Family Courts and has been discussed in detail in the impugned order. The trial court has on a prima facie view of the matter reached the conclusion that as per settled legal principles, in proceedings under Section 125 Cr.P.C., the standard of proof required to prove the
CRL.REV.P.153/2011 Page 3 of 4
validity of a marriage is not very stringent, and if it can be shown that the parties living as husband and wife, were being treated as married, then the same would be considered a valid marriage, sufficient to award interim maintenance to the dependants. This Court finds no illegality, arbitrariness or infirmity in the aforesaid finding reached by the trial court. Further, this Court is inclined to agree with the trial court that the determination of the validity of a marriage can only be made in the course of the trial, after evidence has been led by both the parties. In this view of the matter, the submission of the petitioner that as he is not married to respondent No.2, he is not liable to pay any maintenance, is turned down. 5. As for the contention of the counsel for the petitioner that the petitioner does not have sufficient monthly income to pay the maintenance, the same cannot be accepted, as the sum of Rs. 3000/- per month is a paltry amount, especially in light of the fact that the petitioner has allegedly removed the respondents from his house and they are now forced to live with their other relations. Having regard to the fact that the petitioner has not been able to place on record any document to show that the respondent No.1 is gainfully employed, the finding of the court below that respondent no. 1 has no source of income to support herself and her children, deserves no interference by this Court at this stage.
6. It may be noted that the power of revision vested in the High Court under Sections 397 and 401 is a limited power to be exercised only under exceptional circumstances, when some patent illegality, arbitrariness
CRL.REV.P.153/2011 Page 4 of 4
or infirmity, can be shown on the face of the record, which deserves interference by this Court. No such illegality, arbitrariness or infirmity has been found in the impugned order herein. Further, having regard to the fact that the impugned order is only interim in nature and that the petitioner would be at liberty to adduce evidence and advance all his pleas during trial, the relief sought by the petitioner is declined. 7. The petition is accordingly dismissed as being devoid of merits alongwith the pending applications. (HIMA KOHLI) APRIL 1, 2011 JUDGE pm

Bombay HC Locking out spouse from home is desertion 2nd Dec 09

2009-12-25T12:20:00.000+05:30

1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
FAMILY COURT APPEAL NO.204 OF 2007
Mrs. X : Appellant
Vs.
Mr. Y : Respondent
...
Mr. M. P. Vashi with Ms. Prachi Khandke i/b M. P. Vashi & Associates for
Appellant.
Mr. Vivek Kantawala for Respondent.
CORAM: S. A. BOBDE &
S. J. KATHAWALLA, JJ.
DATED: DECEMBER 02, 2009.
ORAL JUDGMENT (Per S. A. Bobde, J.)
1. This as an appeal filed by the wife against the Judgment of the Vth Family Court,
Mumbai, decided on 28th September 2007, decreeing the petition for divorce filed
by the Respondent (Petition No. A – 1804 of 2003), under sections 13 (1) (ia) and
2
13 (1) (ib) of the Hindu Marriage Act, 1955, on the grounds of cruelty and
desertion. The brief facts are that the parties got married on 1st May 1987. It
appears that soon thereafter on 25th January 1989, the appellant wife left the
company of the respondent husband, but later she filed a petition for restitution of
conjugal rights (Petition No. 789/89), which was decreed on 11th April 1990. She
resumed cohabitation with the respondent after he paid her a sum of Rs. 24,500/-.
The parties apparently lived together for the period between 1st July 1993 and 15th
January 1994. On 7th April 1994, she left the company of the respondent again.
She returned the next day and lodged a criminal complaint against him for
harassment, which she ultimately withdrew on being paid Rs. 10,000/- by the
respondent. According to the respondent, on 1st August 1996, he was transferred
to Valsad, but she refused to accompany him there as she was working and
giving tuitions at Surat at the time. On 12th January 1997, when he visited her at
Surat, she threw him out of the very premises, which he had rented for her to live
in and further threatened him of dire consequences if he entered again. Since this
incident, the parties have not cohabited till the date of filing of the divorce
petition on 8th October 2003 and thereafter.
2. There is little dispute between the parties about the period over which they have
lived together. Rather, the dispute is about who is the cause for their being unable
to cohabit. The learned Family Court has in fact observed that the parties have
been married for a period of 20 years and have been litigating against each other
3
for a period of 18 years. Having considered the evidence on record, the Learned
Family Court has decreed the petition for divorce both on the ground of cruelty
and desertion.
3. We have heard the Learned Counsel for both parties and also perused the
evidence before us. We find that the evidence is insufficient to grant a decree of
divorce on the ground of cruelty. As defined by the Hon’ble Apex Court in
Dastane v. Dastane [(1975) 2 SCC 326] and reiterated in several decisions
thereafter:
“The enquiry has to be whether the conduct charged as cruelty is of
such character as to cause in the mind of the petitioner, a reasonable
apprehension that it will be harmful or injurious for him to live with the
respondent...”
As opined by a Full Bench of this Court in Keshaorao v. Nisha [AIR 1984
Bom 413 (FB)]], the ‘cruelty’ contemplated is a conduct of such type that the
affected party cannot be reasonably expected to live with the other party. Each
case is to be decided on its own merits. At the same time, we bear in mind the
caveat laid down by the Hon’ble Apex Court in Savitri Pandey v. Prem
Chandra Pandey [AIR 2002 SC 591], that there is a difference between cruelty
and the ordinary wear and tear of married life. Petty quarrels and troubles, caused
by differences in the temperament of the parties cannot be cruelty. Notably, in the
4
case of J. L. Nanda v. Veena Nanda [AIR 1988 SC 407], the Hon’ble Apex
Court held that it is not cruelty if petty quarrels result because the temperament of
spouses is not conducive to each other, even if these quarrels might result in
physical or mental ailments. The Madhya Pradesh High Court too, in the case of
Indira Gangele v. Shailendra Kumar Gangele [AIR 1993 MP 59] held that the
unruly temper or whimsical nature of a spouse is not sufficient to establish
cruelty. We examine the present facts in the light of these legal principles. The
respondent deposed before the Learned Trial Court that the appellant used to lose
her temper on trivial matters, which was insulting and humiliating for him, as a
result of which he could not sleep peacefully, and this in turn disturbed his work.
We find that this is a temperamental problem, which the appellant may have had
and by itself is insufficient to establish cruelty towards the respondent,
particularly in the absence of any specific instances from which it could have been
inferred that this temperamental flaw was so disturbing, that it would constitute
cruelty towards the respondent in itself.
4. We now proceed to the contention of desertion of the respondent by the appellant.
Section 13 (1) (ib) of the Hindu Marriage Act, provides that a decree of divorce
may be granted on the ground that the other party has deserted the petitioner for a
continuous period of not less than two years immediately preceding the
presentation of the petition. The Explanation to the section reads as follows:
5
“Explanation – In this sub-section, the expression “desertion” means
the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish
of such party, and includes the wilful neglect of the petitioner by the
other party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.”
As has been laid down in several cases, including the landmark case of
Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176], the
question of desertion is a matter of inference to be drawn from the facts and
circumstances of each case. Both factum of physical separation and animus
deserendi i.e. the intention to end cohabitation, must be proved to establish
desertion. Moreover, as laid down in the aforementioned Explanation, there must
be absence of consent of the other party and absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the
intention to leave. Importantly, Bipinchandra’s case [supra], among others, has
made it clear that it is not necessary for the deserting spouse to leave the home in
order to constitute desertion. If one spouse by his or her words compels the other
side to leave the matrimonial home or stay away therefrom, without reasonable
cause, the former would be guilty of desertion, though it is the latter who is
seemingly separated from the other. The ejection of the other spouse from the
6
home with the intention not to cohabit equally constitutes desertion. This is the
principle of ‘Constructive Desertion.’
5. In the present case, we find that the respondent has established and in fact, the
appellant has not denied, that she did not allow the respondent to cohabit with her
at the house in Surat, when he visited on 12th January 1997. She threw him out of
the very house, which he had rented for her to live in, and threatened him with dire
consequences if he dared to enter. This incident occurred over and above the fact
that she herself had refused to travel and reside with him at Valsad, after he was
posted there on 1st August 1996, ostensibly because she was teaching and giving
tuitions at the time in Surat. The Learned Family Court has observed that there is
no challenge by the appellant to the evidence of the respondent that she was not
interested in cohabiting with him at Valsad. In any case, we find that merely
because the respondent had moved to Valsad, due to his transfer, it cannot be
considered to be reasonable cause for the appellant refusing to cohabit with him
when he visited her in Surat, and in fact constitutes wilful neglect on her part. Her
conduct on the whole, is evidence of animus deserdendi. The incident at Surat
clearly compelled the respondent to leave and stay away from the matrimonial
home. There is no dispute as to the factum of separation i.e. that the parties did not
reside together from the date of the incident at Surat i.e. 12th January 1997, until
this petition was presented on 8th October 2003 and thereafter.
7
6. At this stage, we may note that the Learned Family Court has not passed any
orders as regards maintenance, as no prayer for such orders was made by the
appellant. However, Mr. Vashi, the learned advocate for the appellant has
submitted that the appellant has preferred an application for maintenance before
this Court. It would be proper if this application is heard and decided by the
Family Court itself. Accordingly, the learned advocate for the appellant seeks
leave to withdraw the application and present it, in accordance with the law,
before the Family Court. The said application is allowed to be withdrawn.
7. In the result, the divorce decree is upheld under section 13 (1) (ib) against the
appellant on the ground of desertion. The appeal is hence dismissed. No order as
to costs.
8. At this stage, the learned advocate for the appellant seeks a stay of this order to
enable the appellant to approach the Hon’ble Supreme Court. We see no reason to
grant such a prayer. However, we consider it appropriate to continue with the
injunction, already passed against the respondent pending final decision of this
appeal, which restrains him from remarrying, for a period of eight weeks from
today.
Order Accordingly.
(S. A. BOBDE, J.)
(S. J. KATHAWALLA, J.)

Delhi High Court : 498A,Passport impound and exempt from court

2009-10-17T21:56:00.001+05:30

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA

Date of Decision : 20th October, 2005

W.P.(C) 16976/2005 & CMS 10945-46/2005(Exemption/stay)

RAJIV TAYAL … Petitioner

Through S/Sh. H.S. Phoolka, Senior
Advocate with Israel Ali & S.S. Ray, Advocates

VERSUS

UOI & ORS. Respondents
Through Mr. Kailash Gambhir with
Mr. Gaurav Sharma for respondent No.1.
Ms. Sujata Kashyap with
Mr. Neeraj Kumar for respondent Nos.2-3.
Mr. Arvind Kr. Gupta for respondent No.4.

CORAM:

HON’BLE MR. JUSTICE MUKUL MUDGAL
HON’BLE MR. JUSTICE H.R. MALHOTRA

MUKUL MUDGAL J.(ORAL)

1. Rule DB. With the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition under Articles 226 and 227 of the Constitution of India challenges the Orders dated 23rd August, 2005 and 30th August, 2005 passed by the Vice Consul, Consulate General of India, New York, USA. This order was passed on the directions of the respondent No.1, namely, the Ministry of External Affairs, New Delhi for impounding the passport of the petitioner. The other major prayer made in the writ petition challenges the Order dated 21st August, 2004 passed by the learned Metropolitan Magistrate in FIR No.89/2003 under Section 406/498A IPC P.S. Subzi Mandi, Delhi declaring the petitioner as `Proclaimed Offender’. The petitioner inter alia challenges the vires of the Section 10 (3)(e) & (h) of Passport Act, 1967(hereinafter referred to as the `Act’) as well as the validity of Article 14, 19 and 21 of the Constitution of India.

3. The Section 10 (3)(e) & (h) of the Act the validity of which is under challenge in this petition reads as follows:-

“10.Variation, impounding and revocation of passports and travel documents._

x x x x x x

x x x x x x

(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;

x x x x x x

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.”

In the present case it is not in dispute that at present a complaint vide FIR No.89/2003 under Section 406/498A IPC is pending against the petitioner and the chargesheet has been filed. The said complaint is pending before the Metropolitan Magistrate, Delhi wherein the petitioner has also been declared as `Proclaimed Offender’ by the order dated 21st August, 2004 impugned in this writ petition. It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner.

4. Mr. Phoolka, the learned senior counsel, appearing for the petitioner submits that this action of summoning the petitioner violates the Articles 14, 19 and 21 of the Constitution because the petitioner is a person who is abroad for gainful employment. The effect of the petitioner’s answering the summons would be to disrupt his employment in USA and may militate against the immigrant status sought by him. He submitted that insistence on his presence in the Court of the Metropolitan Magistrate violates his rights under Article 14, 19 and 21. We are unable to appreciate this plea. A person merely by going abroad cannot claim a status superior to that of a citizen of India. Since any citizen accused in India of a similar offence would also have to obey the summons and appear before the Magistrate, mere stationing of the petitioner in the USA cannot give him any rights superior to those of an Indian citizen. Thus there is no violation of Article 14. Even if the restriction which emanates from the effect of the summons by the Magistrate may affect the petitioner’s right to movement under Article 19(1)(d) such restriction certainly falls within Article 19(5) and is a reasonable restriction imposed by a law made by the State. Similarly even if the petitioner’s employment guaranteed by Article 19 (1)(9) is affected by the impugned order under the Passport Act, such an order has been passed under the Passport Act which imposes a reasonable restriction on the petitioner’s right under Article 19(6) of the Constitution. Similarly the restrictions complained of in the writ petition emanate from a procedure established by law i.e., Passport Act & the IPC and Cr.P.C., and Article 21 thus cannot be said to be violated. There is thus no merit in the petitioner’s plea as to the invalidity of Section 10(e) & (h) of the Act as being violative of Articles 14, 19 and 21 of the Constitution and the plea of constitutional validity thus stands rejected.

5. In so far as the writ petition on merits is concerned, it seeks to quash the order of 21st August, 2004 passed by the learned Metropolitan Magistrate which reads as follows:-

Present : I.O., S.I. Prahlad Singh. Heard. Perused. It is stated that there is no extradition treaty with U.S. Till the time the accused is declared P.O., or charge sheet is filed. It is also stated that the address of the accused at America is known to the victim or investigating agency. Whereas the accused has the knowledge of NBWs issued against him and he is in touch with his parents. Correspondence supporting the contention is also on record. Proceedings u/s 82/83 are complete on his last known address. In these circumstances I am satisfied that accused is absconding whereas publication in America is not practical unless the address of the accused is known. Hence I declare accused as P.O., in the matter.

6. It is not in dispute that the petitioner is aware of this order. The petitioner’s parents’ Crl.M.(M) No.1592/2003 was disposed of on 21st April, 2003 by the learned Single Judge of this Court when they moved for their anticipatory bail in respect of the aforesaid FIR No.89/2003. The aforesaid order of 21st April, 2003 reads as follows:-

Learned counsel for the complainant submits that the complainant’s husband who is in USA, may also be given protection but he should be asked to come to India, at least, once for sorting out the disputes with the complainant. He submits that in this case there is a fair chance that the couple may re-unite and as such efforts are required to be made for exploring the possibility of their re-union.

Learned counsel for the petitioners

prays for some time so that the petitioners may contact their son in U.S.A. and ask him to come to India for some time so that the negotiations may start and the controversies are amicably resolved.

Till the next date, in the event of their arrest, the petitioners shall be released on bail upon their executing personal bonds in the sum of Rs.30,000/- each with one surety each in the like amount to the satisfaction of the Arresting Officer. The petitioners shall, however, join investigation as and when required.

Application on behalf of the husband of the complainant may be moved in the meanwhile, if so desired.”

It is not in dispute that the petitioner is aware of this order though his strenuous plea is that only his parents were aware of the order passed in Crl.M.(M) No.1592/2003 on 21st April, 2003.

7. The above order also shows that the petitioner’s parents were in touch with the petitioner and it is not possible to believe that the petitioner was not aware of the pending proceedings in the Court of Metropolitan Magistrate. This Court is informed that in spite of the above order the petitioner did not visit India to sort out the dispute. Even this Court made efforts to settle the dispute by suggesting a mutual settlement but the settlement fell through as the petitioner was not willing to accept the settlement suggested by this Court.

8. We have an interesting situation where the petitioner seeks to quash the order dated 21st August, 2004 and yet refuses to join the proceedings pending before the Metropolitan Magistrate largely on the ground that he is now residing in USA and subject him to the criminal process in India would be an unfair burden as is evident from the challenge raised earlier to the constitutional validity of the Passport Act and rejected by this Court. The petitioner also submits that he has not yet been served with the summons. The petitioner’s counsel has further submitted that the investigation in his case ought to be conducted by sending him a questionnaire and he should not be asked to join the investigation in India. The acceptance of such a plea would give a premium to the petitioner/accused who happens to travel abroad and it will thus be open to such an accused/petitioner to misuse the process of law to make a mockery of the Indian judicial system by asking for such a special procedure totally opposed to the principles of the criminal jurisprudence. The petitioner was repeatedly asked by this Court to join the proceedings before the Metropolitan Magistrate when the Court was prepared to provide him suitable protection against his arrest or any other penal consequences in respect of his passport, but the petitioner declined to do so and even today inter alia insists that the summons must be served on him before he is required to answer it. We cannot countenance the conduct of a party who while seeking to quash the order of the learned M.M., nevertheless declines to join proceedings on the hypertechnical plea of the summons not having been served on him notwithstanding the protection offered by this Court.

9. Accordingly we are of the view that in any event the petitioner’s conduct disentitles him for any discretionary relief under Article 226 of the Constitution even if a case for intervention was made out. Consequently the writ petition is dismissed. The order of status quo dated 5th September, 2005 stands vacated.
Sd/- MUKUL MUDGAL, J