Thursday, September 19, 2013

Quashing of F.I.R in sec.498-A-IPC when both parties agreed.


Quashing of F.I.R under section 498-A-IPC when parties settled their disputes mutually.



IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL No. 447 OF 2013
(Arising out of S.L.P. (Crl.) No. 6462 of 2012)
Jitendra Raghuvanshi & Ors. .... Appellant(s)
Versus
Babita Raghuvanshi & Anr. .... Respondent(s)
2
3
4
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) The important question that falls for determination in the instant appeal is about the ambit and scope of the inherent powers of the High Courts under Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”) in quashing of the criminal proceedings in non-compoundable offences relating to matrimonial disputes.
3) This appeal is directed against the final judgment and order dated 04.07.2012 passed by the High Court of Madhya Pradesh, Bench at Indore in M.CR.C. No. 2877 of 2012, whereby the High Court dismissed the petition filed by the appellants herein under Section 482 of the Code for quashing of proceedings in Criminal Case No. 4166 of 2011 pending in the Court of Judicial Magistrate Class I, Indore.
4) Brief facts:
a) The marriage of Jitendra Raghuvanshi (Appellant No. 1 herein) and Babita Raghuvanshi, respondent-wife, was solemnized on 22.02.2002 as per Hindu rites and rituals. After the marriage, the parties were residing together as husband and wife at District Baitul, M.P. On 05.03.2003, an FIR being No. 172 of 2003 was registered at P.S. Sarni, Dist. Baitul for the offences punishable under Sections 498A, 406 read with Section 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) at the instance of Babita Raghuvanshi – respondent-wife owing to the harassment and torture meted out to her in the matrimonial home by her husband and his relatives. A Criminal Case being No. 4166 of 2011 was also registered against the appellants herein for the offences punishable under Sections 498A and 406 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. b) During the pendency of the criminal proceedings, in the year 2012, with the help and intervention of family members, friends and well-wishers, the parties amicably settled their differences by way of mutual settlement. Pursuant to the same, on 03.04.2012, a compromise/settlement application was filed for dropping of the criminal proceedings in Criminal Case No. 4166 of 2011 and FIR No. 172 of 2003 dated 05.03.2003 before the trial Court. Respondent-wife also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants. However, by order dated 03.04.2012, learned trial Judge rejected the said application.
c) Being aggrieved by the order dated 03.04.2012, on 09.04.2012, the appellants herein filed an application being M.CR.C. No. 2877 of 2012 before the High Court invoking its inherent powers under Section 482 of the Code to quash the criminal proceedings launched against them. The High Court, by impugned order dated 04.07.2012, dismissed the application filed by the appellants herein stating that the court has no power to quash the criminal proceedings in respect of offences under Sections 498A and 406 of IPC since both are non-compoundable.
d) Aggrieved by the said order, the appellants have filed the present appeal by way of special leave.
5) Heard Ms. Preetika Dwivedi, learned counsel for the appellants and Mr. S.K. Dubey, learned senior counsel for Respondent No. 2 and Mr. Rahul, learned counsel for Respondent No.1.
6) The scope and ambit of power under Section 482 of the Code has been examined by this Court in a catena of earlier decisions. In the present case, we are concerned about interference by the High Court exercising jurisdiction under Section 482 in relation to matrimonial disputes. 7) It is not in dispute that matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498A and 406 of IPC not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498A and 406 of IPC, whether the prayer can be declined on the sole ground that since the offences are non-compoundable under Section 320 of the Code, it would be impermissible for the Court to quash the criminal proceedings or FIR or complaint.
8) It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498A and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, with the help and intervention of family members, friends and well-wishers, the parties concerned have amicably settled their differences and executed a compromise/settlement. Pursuant thereto, the appellants filed the said compromise before the trial Court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in addition to the mutual settlement arrived at by the parties, respondent-wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants that not only the trial Court rejected such prayer of the parties but also the High Court failed to exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498A and 406 of IPC which are non-compoundable in nature. 9) Learned counsel for the parties, by drawing our attention to the decision of this Court inB.S. Joshi and Others vs. State of Haryana and Another, (2003) 4 SCC 675, submitted that in an identical circumstance, this Court held that the High Court in exercise of its inherent powers under Section 482 can quash criminal proceedings in matrimonial disputes where the dispute is entirely private and the parties are willing to settle their disputes amicably. It is not in dispute that the facts in B.S. Joshi (supra) are identical and the nature of the offence and the question of law involved are almost similar to the one in hand. After considering the law laid down in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335 and explaining the decisions rendered in Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551, Surendra Nath Mohanty & Anr. vs. State of Orissa, (1999) 5 SCC 238 and Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors., (1998) 5 SCC 749, this Court held:
“8. … …. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.”
Considering matrimonial matters, this Court also held:
“12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.”
10) As stated earlier, it is not in dispute that after filing of a complaint in respect of the offences punishable under Sections 498A and 406 of IPC, the parties, in the instant case, arrived at a mutual settlement and the complainant also has sworn an affidavit supporting the stand of the appellants. That was the position before the trial Court as well as before the High Court in a petition filed under Section 482 of the Code. A perusal of the impugned order of the High Court shows that because the mutual settlement arrived at between the parties relate to non-compoundable offence, the court proceeded on a wrong premise that it cannot be compounded and dismissed the petition filed under Section 482. A perusal of the petition before the High Court shows that the application filed by the appellants was not for compounding of non-compoundable offences but for the purpose of quashing the criminal proceedings.
11) The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.
12) In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.
13) There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.
14) In the light of the above discussion, we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code. Under these circumstances, we set aside the impugned judgment of the High Court dated 04.07.2012 passed in M.CR.C. No. 2877 of 2012 and quash the proceedings in Criminal Case No. 4166 of 2011 pending on the file of Judicial Magistrate Class-I, Indore. 15) The appeal is allowed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
………….…………………………J.
(KURIAN JOSEPH)
NEW DELHI;
MARCH 15, 2013.

Saturday, February 23, 2013

Quashing of F.I.R on mutual settlement



The Honble Court held in the said matter.


"We, therefore, feel that though offence punishable under Section  498-
A of the IPC is not compoundable, in appropriate cases if  the  parties  are
willing and if it appears to the criminal court that  there  exist  elements
of settlement, it should direct the parties to explore  the  possibility  of
settlement through  mediation.   This  is,  obviously,  not  to  dilute  the
rigour, efficacy and purport of Section 498-A of  the  IPC,  but  to  locate
cases where the matrimonial dispute can be nipped in  bud  in  an  equitable
manner.  The judges, with their expertise, must ensure  that  this  exercise
does not lead to the erring spouse using mediation process  to  get  out  of
clutches of the law. During mediation, the  parties  can  either  decide  to
part company on mutually agreed terms or they may decide  to  patch  up  and
stay together.  In either case for  the  settlement  to  come  through,  the
complaint will have to be quashed.  In that event,  they  can  approach  the
High Court and get the complaint quashed.  If  however  they  chose  not  to
settle, they can proceed with the complaint.  In this exercise, there is  no
loss to anyone. If there is settlement, the parties will be saved  from  the
trials and tribulations of a criminal case and that will reduce  the  burden
on the courts which will be in the larger public interest".



IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of
2007)
K. SRINIVAS RAO … APPELLANT
Versus
D.A. DEEPA … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.

see the complete judgement (click here)


Friday, August 31, 2012

No Anticipatory Bail for person absconding



No Anticipatory Bail for Absconder.


 The Hon"ble supreme court has held that when a person has absconded from the proceeding and declared as a proclaimed offender u/s 82/83 crpc, then there is no question of granting him or her anticipatory bail. please see the judgment passed by the apex Court.

 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION 1 2
CRIMINAL APPEAL NO. 1331 OF 2012 3
 (Arising out of SLP (Crl.) No. 1961 of 2012 Lavesh …. Appellant(s) Versus State (NCT of Delhi) …. Respondent(s)
 J U D G M E N T P. Sathasivam, J.

 1) Leave granted. 2) This appeal is filed against the final order dated 05.12.2011 passed by the High Court of Delhi at New Delhi in Anticipatory Bail Application No. 1602 of 2011 whereby the High Court dismissed the application filed by the appellant herein. 3) Brief facts: (a) The appellant herein is the elder brother of the husband of the deceased – Vibha. The appellant is engaged in the business of cutting of diamonds and getting them manufactured as per the specifications of his clients. He is married for the last seven years and has two children. According to him, he resides with his wife and children in the separate portion of the house in Paschim Puri, New Delhi whereas one portion is occupied by his parents and one by his younger brother. (b) On 19.01.2010, younger brother of the appellant got married to Vibha (since deceased). He lived with his wife on the first floor of the same house. On 01.09.2011, Vibha, committed suicide. On the same day, the mother of the deceased lodged a complaint against the family members of the husband of the deceased with the Police Station at Punjabi Bagh, New Delhi. (c) On the basis of the complaint, an FIR was registered vide No. 259/11 at Punjabi Bagh Police Station. On the same day, the husband and mother-in- law of the deceased were arrested. The appellant herein moved an application for anticipatory bail. The Additional Sessions Judge, Delhi, by order dated 05.11.2011, dismissed the said application. (d) Against the said order, the appellant moved an application for anticipatory bail before the High Court. By the impugned order dated 05.12.2011, the High Court dismissed the said application. Aggrieved by the said order of the High Court, the appellant preferred this appeal by way of special leave petition. 4) Heard Dr. Sarbjit Sharma, learned counsel for the appellant and Mr. Sidharth Luthra, learned Additional Solicitor General for the respondent- State. 5) The only point for consideration in this appeal is whether the appellant, who is elder brother of the husband of the deceased, has made out a case for anticipatory bail in terms of Section 438 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”)? 6) Before considering the claim of the appellant, it is useful to refer Section 438 of the Code relating to grant of bail to a person who is apprehending arrest which reads as under: “438. Direction for grant of bail to person apprehending arrest – (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- i) the nature and gravity of the accusation; ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii) the possibility of the applicant to flee from justice; and iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. …….” It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall be released on bail. The belief that the applicant may be arrested must be founded on reasonable grounds. While considering such a request, the Court has to take into consideration the nature and the gravity of the accusation, antecedents, possibility of the applicant to flee from justice etc. Further, normally, the Court should not exercise its discretion to grant anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of the daughter-in- law at the house of her in-laws was still under investigation and the appropriate course to adopt was to allow the concerned Magistrate to deal with the same on the basis of the material before the Court. 7) It is seen that the deceased had allegedly committed suicide after one year and eight months of marriage and further she was pregnant at the time when she had taken her life. On the basis of the complaint filed by the mother of the deceased, an FIR was registered and during the course of the investigation, the police recorded the supplementary statements of Hira Lal, father of the deceased, the neighbour of the deceased near the matrimonial home as well as the complainant -mother of the deceased. 8) According to the prosecution, if we look into all the above particulars coupled with the supplementary statements, it has been clearly made out, particularly, insofar as the appellant is concerned, that there was a definite allegation against him. Further, the appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death. 9) By placing the relevant materials and two status reports submitted by the police, Mr. Sidharth Luthra, learned ASG submitted that the appellant was a Proclaimed Offender. To this effect, Mr. V. Ranganathan, Additional Commissioner of Police, West District, New Delhi, in his counter affidavit, filed in this Court on 25.06.2012, has stated that, “Efforts were made to arrest the petitioner but he absconded as such he was got declared a Proclaimed Offender. The case is pending trial.” The same has been reiterated in the status report filed by Mr. Virender Dalal, Station House Officer, P.S. Punjabi Bagh, New Delhi, before the High Court. 10) From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail. 11) On reading the FIR, statements of various persons including father and mother of the deceased, neighbours and supplementary statement of mother of the deceased clearly show that all the family members of the husband of the deceased including the appellant, who is elder brother of the husband of the deceased, subjected her to cruelty by demanding sizeable amount in order to settle the payment of Rs.5 lakhs of the allotted DDA flat. 12) Another circumstance against the appellant is that even though this Court on 23.03.2012, while ordering notice, granted interim protection, namely, not to arrest the appellant in connection with FIR No. 259/2011 registered at Police Station, Punjabi Bagh, New Delhi, it is the claim of the respondent-State that the appellant did not cooperate and visit the said police station. Though Dr. Sarbjit Sharma, learned counsel for the appellant, submitted that the appellant visited the police station on 23.03.2012, 20.07.2012, 24.07.2012 and 27.07.2012, it is brought to our notice that at the relevant period, viz., 07.04.2012, 01.05.2012 and 18.06.2012, he neither visited the police station nor contacted Mr. Narender Khatri, Inspector – Investigation, Punjabi Bagh Police Station. The last three dates are relevant since after getting the interim protection granted by this Court on 23.03.2012, the appellant did not care either to visit the police station or to the Investigation Officer concerned. The claim of his visit on later dates, particularly, in the month of July, 2012 have no relevance. Considering his conduct, not amenable for investigation and, moreover, declaring him as an absconder, there is no question of granting anticipatory bail. Thus, the conduct of the appellant does not entitle him to anticipatory bail as prescribed in Section 438 of the Code. 13) Taking note of all these aspects, in the light of the conditions prescribed in Section 438 of the Code and conduct of the appellant immediately after the incident as well as after the interim protection granted by this Court on 23.03.2012, we are of the view that the appellant has not made out a case for anticipatory bail. Unless free hand is given to the investigating agency, particularly, in the light of the allegations made against the appellant and his family members, the truth will not surface. 14) Under these circumstances, we are unable to accept the claim of the appellant. On the other hand, we agree with the contentions raised by the learned ASG and confirm the impugned order dated 05.12.2011 passed by the High Court in Bail Application No.1602/2011. 15) We make it clear that while upholding the rejection of the anticipatory bail, we have not expressed any opinion on the merits of the case. We also clarify that after surrender, the appellant is free to move bail application before the Court concerned which may be disposed of in accordance with law. 16) With the above observation, the appeal is dismissed and the interim protection granted by this Court on 23.03.2012 stands vacated. The appellant is directed to surrender within a period of one week from today. ……………….…………………………J. (P. SATHASIVAM) ..…….…………………………………J. (RANJAN GOGOI) NEW DELHI; AUGUST 31, 2012.

Sunday, November 6, 2011

Interpol Red Corner Notices Meaning

Interpol Notices Meaning

An Interpol notice or international notice is issued by Interpol to share information between its members. There are seven types, six of which are known by their colour codes: Red, Blue, Green, Yellow, Black, Orange.

Red notice
Requests (provisional) arrest of wanted persons, with a view to extradition. An Interpol Red Notice is "the closest instrument to an international arrest warrant in use today."[3] (Interpol does not have the authority to issue arrest warrants in the formal sense of the word, as this is the domain of the sovereign member states.)
Yellow notice
Asks for help locating missing persons (usually minors) or identifying people who are unable to identify themselves.
Blue notice
Requests additional information about a person in relation to a crime
Black notice
Seeks information on unidentified bodies.
Green notice
To provide warnings and criminal intelligence about persons who have committed criminal offences and are likely to repeat these crimes in other countries
Orange notice
Warns police and other international organizations about potential threats from disguised weapons, parcel bombs, or other dangerous materials.
Purple notice
To provide information on modi operandi, procedures, objects, devices and hiding places used by criminals.


RED CORNER NOTICES BY INDIAN AUTHORITY

Interpol Notices

International notices are the main instruments of international police co-operation. These notices are usually published by the General Secretariat of the ICPO-Interpol at the request of a National Central Bureau. The General Secretariat may, however, publish blue or green notices on its own initiative. After publication these notices are circulated to all the NCBs. The purpose of these notices is to supply to the police services of member countries, through their NCBs, certain information about persons or objects.

A Series (Red) Notices

Top
The 'A' series notices also known as 'Wanted notices' are published in respect of offenders wanted at international level. This type of notice invariably ask that the subject may be arrested, at least in certain countries, with a view to subsequent extradition to the country where he is wanted.

The publication of an 'A' series notice should only be requested if all the following conditions are fulfilled:

- The person against whom the notice is to be published has committed an offence against ordinary criminal law.

- The offence is an "extraditable offence" under the Indian Extradition Act, 1962.

- A warrant of arrest has been issued for his/her arrest.

- Extradition will be requested, at least from certain countries.

If any of the above conditions is not satisfied, a 'B' series notice should probably be requested.

If a person whether an Indian or a foreigner has committed an offence in India and is subsequently believed to have absconded to a foreign country, a request can be made by the concerned police authorities etc. to the Interpol Wing of the CBI for publication of an 'A' series (red) notice against that person provided all the conditions are satisfied. At the time of making such a request efforts should be made to furnish maximum information as mentioned under:

- Complete personal particular of the person wanted i.e. full name, date and place of birth, parentage, family status, name of spouse, occupation, nationality, complete passport details, aliases and nicknames, address(es), etc.

- Descriptive particulars i.e. height, colour of eyes, colour of hair, beard, forehead , nose, chin, ears, face (shape), distinguishing identification marks (tattoos, scars, amputations, etc.).

- Three copies of photograph and fingerprints. Since photograph and fingerprints cannot be reproduced satisfactorily unless they are of high quality, original photograph and fingerprints should be sent wherever possible. These can be returned on request.

- Languages spoken.

- Previous convictions, if any.

- A short account of the circumstances of the case in which he/she is wanted including full details of the charge(s).

- The name of the court that issued the warrant, date and number of the warrant of arrest.

- An assurance that extradition will be requested ( if arrested anywhere in the world or at least in certain countries).

- The names of the countries from which extradition will be requested.


If the wanted person is found and/or arrested in India or if the extradition has taken place, the Interpol Wing should be immediately informed so that the General Secretariat can be requested to publish a cancellation notice, if the person is no longer wanted by the judicial authorities.

Interpol (Red) Notice subjects wanted by India









No red notices in dowry cases: Interpol


The Interpol, CBI and Interpol officials, dual criminality, ThuJun 30 2011, 00:12 hrs New Delhi: Source: Indian Express

The Interpol has refused to entertain issuing of red notices in cases of dowry and cruelty to a woman by her husband or relatives.

The move comes days after the CBI and Interpol officials met to rectify the recent goof-ups in the ‘most-wanted list’.

The extradition from any country can only be sought with the help of a red notice and the Interpol has told the CBI that it will seek legal opinion on the matter. Sources in the CBI said that since the offence does not come under ‘dual criminality’ in most of the member countries, the Interpol has expressed an inability to issue a red notice.

“The officials of Interpol told us that they cannot detain or stop a person under this law as it is not recognised by any of the 188 member counties,” said a CBI official. For red notices to be issued, which is done for ‘most wanted’, the offence should be recognised (dual criminality) in the country from where the extradition is being sought.

CBI officials said that since the misuse of dowry law is rampant, the international body is exercising caution in issuing the red notices. The families tend to misuse the same by getting a red notice issued restricting movements of the person against whom it is issued. Recently, the CBI was approached by a family from the US against whom red notices were issued.

Said a senior officer, without naming the person against whom the notice was issued, “The family told us that they have entered into a settlement with the girl’s family after which the complaint has been withdrawn against them. Despite that his name was not deleted from the ‘wanted’ list.”

The agency said there has not been a single case of extradition under the dowry law. “We have found that in a number cases in which red notices were issued through Interpol, families had entered into settlement and withdrawn their complaints,” said an officer, adding that in such cases many a times the complainant or the family had not informed the police. “In some cases, the police, even after receiving intimations, did not forward the same to the CBI due to which the international notices were not withdrawn. Such a scenario can lead to embarrassment for a person who is travelling and is caught by authorities for no fault of his,” explained an official.

.

Look Out Cerculars(LOC) Meaning

LOOK OUT CIRCULARS (LOC)
25.9 The Look Out Circulars are opened to trace the absconding criminals and also to prevent
and monitor effectively the entry or exit of persons who may be required by law enforcement
authorities.
25.9.1 The basic substantive guidelines regarding the publication of the LOCs in relation
to Indian citizens issued by the MHA enunciate the following four cardinal
principles:
25.9.2 The request for opening of LOC is required to be made to all immigration Checkposts
in the country in the Official Format prescribed by the MHA.
25.9.3 The request for opening of LOC must invariably be issued with the approval of an
Officer not below the rank of Deputy Secretary to the Government of India/Joint
Secretary in the State Government/ Superintendent of Police concerned at the
district level.
25.9.4 The originating agency must ensure that complete identifying personal particulars
of the person, in respect of whom the LOC is to be opened, are clearly mentioned
in the prescribed proforma. The LOC will not be opened for less than three
identity parameters other than name of the subject.
Page 3 of 5
25.9.5 An LOC is valid for a period of one year. However, in case the originating agency
wants to extend the validity beyond one year it can ask for the extension before
the expiry of the one year period. If no request is made for the extension of the
LOC within the stipulated period of one year, the Immigration Officer concerned is
authorized to suspend the LOC.


Procedure to quash the LOC:

if any who aggrieved by this proceeding and wants to quash the LOC can file a petition before the Ho:ble High Court under section 482 Crpc for quashing the proceeding.

advocate V.K.Singh
+91-9999318690

Wednesday, May 4, 2011

Stay of Arrest in section 498a/406/34 ipc

Stay of Arrest in sec.498a ipc


"The background to the filing of the aforementioned case is that FIR No. 356 of 2007 was registered against the Petitioner under Sections 406/498A/506 of the Crl Rev P 571/2008 Page 1 of 9 Indian Penal Code (IPC) at the instance of the Petitioners wife, pursuant to an application filed by her under Section 156 (3) CrPC. It is stated that pursuant to the registration of the said FIR the Petitioner filed an application for anticipatory bail which came to be dismissed by this Court on 14 th May 2008. Aggrieved by the said order the Petitioner filed a Special Leave Petition (Crl) No. 4222 of 2008. While directing notice to issue in the SLP the Supreme Court directed that the Petitioner will not be arrested."






IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.REV. P. No. 571 of 2008 & CRL M A 12229/2008

Reserved on: February 12, 2009

Date of decision: March 25, 2009

GOPAL KRISHAN DUA ..... Petitioner Through: Mr. Vijay Aggarwal with Mr. Vishal

Garg and Ms. Aanchal, Advocates

versus

STATE ..... Respondent Through: Mr. Asim Naeem, Advocate for the

complainant.

Mr. Jaideep Malik, APP for State.

CORAM:

HON'BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be

allowed to see the judgment? No

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

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

JUDGMENT

1. This revision petition under Section 397 read with Sections 401/482 and 483 of the Code of Criminal Procedure, 1973 (CrPC) and Article 227 of the Constitution of India is directed against the order dated 14th August 2008 passed by the learned Metropolitan Magistrate (MM), New Delhi rejecting the application filed by the Petitioner under Section 156 (3) CrPC.


2. The background to the filing of the aforementioned case is that FIR No. 356 of 2007 was registered against the Petitioner under Sections 406/498A/506 of the Crl Rev P 571/2008 Page 1 of 9 Indian Penal Code (IPC) at the instance of the Petitioners wife, pursuant to an application filed by her under Section 156 (3) CrPC. It is stated that pursuant to the registration of the said FIR the Petitioner filed an application for anticipatory bail which came to be dismissed by this Court on 14 th May 2008. Aggrieved by the said order the Petitioner filed a Special Leave Petition (Crl) No. 4222 of 2008. While directing notice to issue in the SLP the Supreme Court directed that the Petitioner will not be arrested.


3. According to the Petitioner, after the dismissal of the bail application by this Court he ceased to stay at the matrimonial home at W-108, Greater Kailash-II, New Delhi where his wife and two children were residing. The Petitioner states that on 29th May 2008 he reached the aforementioned premises at about 7.30 pm and was sitting in the lobby when his wife called the police asking the Petitioner to be arrested. Thereafter the Petitioner was taken to the police station. After the police was shown the stay order dated 27th May 2008 by the Petitioners lawyer, the Petitioner was released on the same day. When he returned to the premises at about 10.10 pm, he was restrained by his wife from entering the house. He immediately informed the police about this incident, but no action was taken. Thereafter on 17th June 2008 when he visited the house, he was shocked to see that all his belongings had already been removed by his wife. On the above averments the Petitioner filed a complaint with the police on 23rd July 2008. When no action was taken by the police the Petitioner filed a Complaint Case against his wife in the court of the learned MM under Section 200 CrPC together with an application under Section 156 (3) CrPC.

Crl Rev P 571/2008 Page 2 of 9

4. Dismissing the application under Section 156 (3) CrPC, the learned MM passed the following order on 14th August 2008:

"14.08.2008

Present: Complainant with counsel.

SI K.P. Singh, PS C.R. Park present. He filed the status report. I have heard the argument on the application

moved u/s 156 (3) CrPC.

As per the status report the Accused No.1 Rajni Dua is

not allowing her husband to enter into his own house.

Having heard the submissions of the complainant, I

observe that the allegations leveled against the accused are outcome of the matrimonial dispute arisen between

the complainant and accused No.1. No specific

allegations have been leveled against the accused No.2. Matter seems to be purely of civil nature. Already several complaints are pending for and against the

parties. I am of the considered view that no investigation is required to be conducted in this case. No recovery is to be effected. Therefore, I feel that there is no need to pass an order for registration of F.I.R. under Section 156 (3). Hence the application is dismissed.

Matter is fixed for C.E. on 20.10.2008."


5. During the pendency of this petition, a status report was filed by the police in this Court on 24th November 2008 which it was stated that during the investigation in FIR No. 356 of 2007 under Sections 498-A/406/506 IPC the wife remained in the same house with two kids. However, the petitioner absconded with a view to Crl Rev P 571/2008 Page 3 of 9 avoiding arrest. He returned after the order staying his arrest was passed by the Supreme Court but was taken away by the police at the instance of the wife. The status report recorded that the complainant has thereafter been residing in a guest house and that his wife Respondent was not allowing him to enter the house.

6. It appears that subsequently the wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act 2005 (PWDV Act) alleging that she and the two children had been forcibly dispossessed of the house in question by the Petitioner along with 6 or 7 persons. This Court has been shown a copy of an order dated 14th January 2009 passed by the learned MM in the said petition directing that the wife and the two children should be given "safe re-entry and repossession" of the house by the SHO, Chittaranjan Park and directing removal of all persons, other than the Petitioner herein, from the said house.

7. Mr. Vijay Aggarwal, learned counsel appearing for the Petitioner submits that given the nature of the allegations made by the petitioner in his complaint, an order ought to have been passed under Section 156 (3) CrPC by the learned MM directing the police to register a case and investigate the crime. It is pointed out that the learned MM erred in observing that no recovery is to be effected since there are specific allegations in the complaint that the Petitioner found his personal belongings missing when he went back to the matrimonial home. Reliance is placed upon the judgments of the Supreme Court in Suresh Chand v. State of Madhya Pradesh (2001) 1 AD (Crl) SC 34, Chitra Narain v. M/s. NDTV 2004 Crl LJ 2818, Anil Bhardwaj v. The State 1985 Crl L J 613 and Ram Babu Gupta Crl Rev P 571/2008 Page 4 of 9 v. State of Uttar Pradesh 2001 Crl L J 3363 to contend that it is obligatory on the police to investigate cognizable offences. The gist of the above decisions is this. When the Magistrate receives a complaint and the facts alleged therein disclose the commission of an offence, the learned MM is not always bound to take cognizance. He may either take cognizance under Section 190 or may forward the complaint under Section 156 (3) to the police for investigation. If on a reading of the complaint the Magistrate finds that the allegations therein disclose the commission of a cognizable offence, he should forward the complaint under Section 156 (3) CrPC to the police for investigation as that will be conducive to justice and the valuable time of Magistrate will be saved in inquiring into the matter.


8. It is further submitted that in Ram Babu Gupta it was held by the Supreme Court that the power to order investigation under Section 156 (3) is different from the power under Section 202 (1) CrPC to direct investigation. The two operate in distinct spheres and at different stages. The power under Section 156 (3) is exercisable at a pre-cognizance stage whereas the power under Section 202 (1) CrPC is at the post-cognizance stage. Once the Magistrate has taken cognizance of the offence, it is not within his competence to revert to the pre-cognizance stage and invoke Section 156 (3) CrPC. It is therefore submitted that it would be no answer to the complainant that the learned MM can always invoke the powers under Section 202 CrPC if he requires any inquiry to be undertaken by the police at the post-cognizance stage. It is further submitted that the accused cannot be compelled to make any statement at even the post-cognizance stage which is self- Crl Rev P 571/2008 Page 5 of 9 incriminating. It is submitted that given the nature of the complaint, the recovery of the stolen goods will not be possible unless the FIR is registered, the respondent is made an accused and subject to custodial interrogation.

9. The submissions of learned counsel for the Petitioner have been considered. The background to the present case reveals that the Petitioner is facing criminal proceedings instituted against him by his wife for the offences under Sections 498A/406/506 IPC. The Supreme Court granted a stay of arrest of the Petitioner by its order dated 27th May 2008. The incident leading to the present complaint by the husband took place two days thereafter. It is plain that given the fact that the parties were already at loggerheads, there were bound to be conflicting versions of the incident of 29th May 2008 as well as the subsequent events. The police therefore understandably stayed their hands at that stage. Although in the status report filed before this Court it is mentioned that the wife was not permitting the petitioner to enter the house in question, the orders passed by the learned MM in the petition filed by the wife under Section 12 PWDV Act shows that, according to her, she and the children were forcibly from the house by the Petitioner and some other persons. While this Court is not pronouncing on the correctness of either version, since in any event that would be subject matter of the proceedings under the PWDV Act, the reluctant of the police to immediately register an FIR in the matter is understandable.


10. The contention of learned counsel for the Petitioner that it was obligatory for the police to straightaway register an FIR and thereafter investigate the cognizable Crl Rev P 571/2008 Page 6 of 9 offence, does not account for the decisions of the Supreme Court which permit to the police to conduct a preliminary inquiry before proceeding to register an FIR. The observations of the Supreme Court, in the context of complaints against public servants, in P.Sirajuddin v. State of Madras (1970) 1 SCC 595 (at p.602) was cited with approval in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335. Further the Supreme Court referred to an earlier decision with approval in the following passage in Bhajan Lal (SCC, p.371):

"Mudholkar, J. in a separate judgment in State of Uttar Pradesh v. Bhagwant Kishore Joshi (1964)3 SCR 71 at p. 86 while agreeing with the conclusion of Subba Rao, J. (as he then was) has expressed his opinion stating: (SCR pp. 86- 87)

"In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it."

79. We are in agreement with the views, expressed by Mitter, J. and Mudholkar, J. in the above two decisions."


11. Particularly in the context of matrimonial disputes, it is an accepted practice for the police to conduct a preliminary inquiry before proceeding to register an FIR. The Crimes Against Women Cell (CAW) does precisely that. Although the offences are cognizable in nature, it is only after a stage is reached when either no reconciliation is possible or it is not possible to make any headway due to non- cooperation of the party against whom the complaint has been made that an FIR is registered.


12. The decision of the learned MM in the present case declining to issue a Crl Rev P 571/2008 Page 7 of 9 direction to the police under Section 156 (3) CrPC and instead fixing the case for the recording of the complainants evidence, reflects the cautious approach that is necessary in matrimonial disputes. The judgments cited by learned counsel for the Petitioner in fact require the learned MM to be cautions while taking proceeding to take cognizance of an offence on a complaint. The learned MM had the discretion to either forward the complaint to the police for registering an FIR or decide to direct the complainants evidence to be recorded. The decision of the learned MM to opt for the latter course cannot, in the facts of the present case, be held to be erroneous or illegal.


13. Learned counsel for the Petitioner repeatedly urged that given the allegations of theft and criminal misappropriation by the wife of the husbands goods the coercive process of law required to be invoked. Shorn the legal nicety, the purport of this submission was that the wife should be arrested and subjected to custodial interrogation for recovering the husbands goods. Given the background of the case, if the learned MM in his discretion decided not to permit the husband to use the coercive process of the criminal law to get back at his wife, it cannot be said that his decision was illegal.


14. It is needless to state that if the learned MM after considering the pre- summoning evidence, proceeds to take cognisance, and at the post-cognizance stage considers it necessary to require further investigation or inquiry to be undertaken before issuing process to the accused, it would be open to the learned MM to invoke the powers under Section 202 CrPC. However, since the instant Crl Rev P 571/2008 Page 8 of 9 case is still at the pre-cognizance stage it is premature to speculate about the course that the learned MM should adopt.


15. For the aforementioned reasons this Court finds no illegality in the impugned order dated 14th August 2008 passed by the learned MM. The petition is, accordingly, dismissed. The pending application also stands dismissed. S. MURALIDHAR, J.

MARCH 25, 2009

Quashing of FIR Under section 498a/406 IPC

FIR QUASHED UNDER SECTION 498A/406 IPC<


"There is no allegation that there is any such conduct on the part of the

appellant which could be said to be amounting to cruelty of such a nature as is

likely to cause the Respondent No. 2 to commit suicide or to cause any injury

to her life. The ingredient to constitute an offence under explanation (a) of

Section 498A IPC are not at all mentioned either in FIR or in charge sheet and

in absence thereof, no case is made out. Therefore, explanation (a) as found

in Section 498A IPC is clearly not attracted in the present case."

/strong>IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 249 OF 2004

Shakson Belthissor .... Appellant

Versus

State of Kerala & Anr. .... Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order dated 28.10.2002

passed by the Kerala High Court rejecting the petition filed by the

appellant herein praying for quashing of the first information report (for

short `the FIR') and the charge sheet filed against him.

2. The Respondent No. 2 (Valsa) got married with the appellant on

23.10.1997. Even otherwise they are related to each other, the Respondent No. 2 being the daughter of the appellant's maternal uncle and paternal

aunt. Incidentally, the aforesaid marriage was the second marriage of

Respondent No. 2 as she was earlier married to one Mr. Varghese, who

died in the year 1995. Through the said marriage the Respondent No. 2

has two sons. However, it was the first marriage of the appellant. Out of

the wedlock between the appellant and Respondent No. 2, there is no

issue.

3. The appellant was working at the relevant time at Saudi Arabia. The

appellant got married to Respondent No. 2 when he came on leave for four

months. However, after the marriage there appears to be some dispute

between the parties. On 21.04.2002, Respondent No. 2 filed an FIR in the

Kottayam Police Station, District Kollam, Kerala alleging that the

appellant married her when he came on leave for 4 months and that after

the marriage he stayed in the house of the complainant - wife and that

after expiry of the period of leave, her husband - the appellant returned to

the Gulf. It was also alleged by Respondent No. 2 in the said FIR that

thereafter, for 2-3 months, the appellant used to send money for the

expenses in the house, talked to her over phone and also sent letters from

Saudi Arabia and also behaved with her very affectionately. It was also

alleged that the parents of Respondent No. 2 at the time of marriage had

2

given Rs. 5 lakhs and that the said money was utilized by the family of the

appellant for purchasing a house at Nediyazhikam and also a property at

Mukkam where they are residing. It was also alleged that thereafter they

started spreading wrong information regarding the conduct of the

Respondent No. 2 in the locality and also misled the appellant about her.

On believing his family members, the appellant also stopped sending

money from Saudi Arabia for her expenses and also stopped sending

letters to her. It was also alleged by the Respondent No. 2 in the said FIR

that when she called him on telephone, the appellant behaved without

affection towards her and disconnected the phone due to which she

became mentally weak. It was also alleged that subsequently whenever

the appellant came on leave, he never used to come to the house of

Respondent No. 2 and stayed in the house of his younger brother and when

Respondent No. 2 herself went to that house, she was turned out from that

house. It was also alleged that due to such treatment meted out to her, she

has been suffering both mentally and physically.

4. On the basis of the said FIR a criminal case was registered and on

completion of the investigation made by the police, a charge sheet was

submitted by the police alleging, inter alia, that in the investigation it is

established that it is only the appellant, who has committed the offence. It

3

was also stated in the said charge sheet that investigation as per Section

498A of the Indian Penal Code (in short "the IPC") is being continued

after dropping the provision of Section 34 IPC since it was revealed that

no offence was committed by any of the family members of the appellant

under Section 34 IPC. It was also stated in the charge sheet that since the

appellant has been in Gulf, arrest could not be made and therefore police

requested the court to issue a warrant of arrest for production of the

accused-appellant.

5. Both the FIR and the charge sheet, which were submitted by the police,

became the bone of contention so far as the appellant is concerned, and

therefore, he filed a Criminal Miscellaneous Case No. 9376 of 2002 under

Section 482 of the Criminal Procedure Code (in short "the CrPC) before

the High Court of Kerala at Ernakulam praying for quashing of both the

FIR as also the charge sheet on the ground that no case for prosecution

under Section 498 A IPC is made out against him. The High Court,

however, without issuing any notice on the said petition rejected the

petition holding that by no stretch of imagination it can be said that the

FIR and the charge sheet do not disclose the commission of the offence

alleged against the appellant.

4

6. Being aggrieved by the said order passed by the learned Single Judge of

the High Court, the present appeal was filed on which notice was issued

and further proceedings before the trial court were stayed by this Court.

7. Now, the appeal is listed before us for hearing and we heard the learned

counsels appearing for the parties. In order to fairly appreciate the

contents of the submissions made by the counsel appearing for the parties,

it is necessary to extract relevant portion of the FIR and the charge sheet.

8. The relevant part of the FIR is as under:

"......On last 23rd October, 1997, Shakson Belthissor of Nediyazhikam House, Mukkam, Mayyanad married me

at the Iyyathu Church at Kollam in accordance with the religious rites and custom. Husband is called by the name Raju. Husband has been working in Saudi Arabia as Business Executive. He married me at the time when he came on leave for 4 months. After the marriage, after wedded life had been in my house. On expiry of the period of leave, husband returned to Gulf. Thereafter, for 2-3 months, it was used to send money for the expenses in the house, to talk over phone, to send letters and to behave with very affection towards me. At the time of the marriage, my parents had given Rs. 5 lakhs as dowry. Using that amount with the consent of husband, Jose Major (younger brother of husband), wife Jessilet Manoj, their mother Jain Franco purchased Nediyazhikam house and property at Mukkam and resided therein. Thereafter, they spread in the locality unnecessary matters regarding me and informed husband and misled him. Husband, who believed their words, later stopped sending money for my expenses or sending letters. When I called him over phone, he would behave without affection towards

5

me and cut off the phone. Due to this behaviour from the part of husband and the aforesaid relatives, I was mentally weakened. While being so, husband came back on leave. Without coming to my house, went to the house of the younger brother. Learning about it, I went to there. Then, the younger brother, wife and wife's mother closed the door of the house after sending me out. From that event and onwards, I had been suffering from physical and mental torturing..."

Relevant part of the charge sheet is as under:

"... While leading family life in Vivek Bhawan having number 11 in Ward VII along the west side of the Panchayath Road going from Cheriyil Pullichira Post Office Junction towards Devalakuzhi and other places, the accused spent off some amount from the Rs 5 lakhs which had been given as dowry at the time of marriage and after buying property with the balance amount he left for Gulf, and thereafter without giving for the

maintenance of the witness No. 1 or looking after the family affairs, the witness No. 1 was tortured through letters and over phone and when he came on leave, he spread unnecessary matter about the witness No. 1 and tortured mentally and thus committed the offence under the above provision - regarding."

Report

".....On getting it revealed during the investigation of the case that only the accused No. 1 has committed the offence, report has been submitted before the Court for reducing the number from 2 to 4 regarding the

identification of the full name and address of the accused No. 1.

Report has been submitted before the Court

regarding continuation of the investigation as per Section 498A IPC after reducing Section 34 IPC, since it was

6

revealed that no offence was committed under Section 34 IPC.

Since the accused in this case has been in Gulf, arrest could not be made and the Hon'ble Court may be pleased to issue warrant to arrest and produce the accused."

9. The scope and power of quashing a first information report and charge

sheet under Section 482 of the CrPC is well settled. The said power is

exercised by the court to prevent abuse of the process of law and court but

such a power could be exercised only when the complaint filed by the

complainant or the charge sheet filed by the police did not disclose any

offence or when the said complaint is found to be frivolous, vexatious or

oppressive. A number of decisions have been rendered by this Court on the

aforesaid issue wherein the law relating to quashing of a complaint has

been succinctly laid down.

10.In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it

was held that the Magistrate while issuing process against the accused

should satisfy himself as to whether the allegations made in the complaint,

if proved, would ultimately end in the conviction of the accused. It was

held that the order of Magistrate for issuing process against the accused

could be quashed under the following circumstances: (SCC p. 741, para 5)

7

"(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

11. In the case of Drugs Inspector v. Dr. B.K. Krishna [1981 (2) SCC

454] it was held by this Court that in a quashing proceeding, the High Court

has to see whether the allegations made in the complaint petition, if proved,

make out a prima facie offence and that the accused has prima facie

committed the offence. In the said decision this Court refused the prayer for

quashing of the complaint on the ground that there were sufficient allegations

in the complaint to make out a case that the accused persons were responsible

for the management and conduct of the firm and, therefore, the extent of their

liability could be and should be established during trial.

12. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi [1983

(1) SCC 1] it was held that when on the allegation made in the complaint, a

8

clear case was made out against all the respondents (accused persons), the

High Court ought not to have quashed the proceedings on the ground that the

complaint did not disclose any offence. In Municipal Corporation of Delhi

(supra), this Court observed as follows in para 8:

"8. Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Smt Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 where the scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC para 5, p. 741 : SCC (Cri) pp. 511-12]

Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence, which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

9

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

13. In State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335, a

question came up for consideration as to whether quashing of the FIR filed

against the respondent Bhajan Lal for the offences under Sections 161 and

165 IPC and Section 5(2) of the Prevention of Corruption Act was proper

and legal. Reversing the order passed by the High Court, this Court

explained the circumstances under which such power could be exercised.

Apart from reiterating the earlier norms laid down by this Court, it was

further explained that such power could be exercised where the allegations

made in the FIR or complaint are so absurd and inherently improbable on

the basis of which no prudent person can ever reach a just conclusion that

there is sufficient ground for proceeding against the accused. It observed as

follows in para 102:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

10

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

14. However, in paragraph 108 of the said judgment, this Court referred to

and relied upon it earlier judgment in Sheonandan Paswan vs. State of

Bihar; AIR SC 877 wherein it has been held as under:

"It is a well established proposition of law that a criminal prosecution, it otherwise justifiable and based upon adequate

11

evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."

Thus, in such circumstances, the issue of malafice becomes irrelevant.

15. The above decision was followed by this Court in Pepsi Foods Ltd.

and Anr. Vs. Special Judicial Magistrate and Others [1998 (5) SCC 749].

In paragraph 28 of the said judgment this Court held thus :

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

16. Further, this Court observed in S. W. Palanikar v. State of Bihar

[2002 (1) SCC 241] that every breach of trust may not result in a penal

12

offence of criminal breach of trust unless there is evidence of a mental act of

fraudulent misappropriation. It observed as follows:

"8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.

9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 on facts of that case, has expressed thus: (SCC p. 177, para 15)

15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time

13

when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

(emphasis supplied)

17. This Court in the case of Indian Oil Corpn. v. NEPC India

Ltd.,(2006) 6 SCC 736, at page 747 has observed as under :

"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-- Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque.. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is

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found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

18. This Court has recently in R. Kalyani v. Janak C. Mehta and

Others, (2009) 1 SCC 516, observed as follows:

"15. Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

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(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint."

19. The same view has been taken by this Court in Chunduru Siva Ram

Krishna & Anr. v. Peddi Ravindra Babu & Anr., SLP (Crl.) No. 2991 of

2007; and V. V. S. Rama Sharma & Ors. v. State of U.P. & Ors., SLP

(Crl.) No. 1529 of 2007.

20. It was fairly agreed at bar that the aforesaid FIR was filed by

Respondent No. 2 with the intention of making out a prima facie case of

offence under Section 498A of the Indian Penal Code. The charge sheet,

which was filed by the police was under Section 498A of the Indian Penal

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Code. As to whether or not in the FIR filed and in the charge sheet a case of

Section 498A IPC is made out or not is an issue, which is required to be

answered in this appeal. Section 498A of the IPC reads as follows:

"498A. Husband or relative of husband of a woman subjecting her to cruelty.

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

Explanation-For the purpose of this section, "cruelty" means-

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

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or

valuable security or is on account of failure by her or any person related to her meet such demand".

21. In the light of the aforesaid language used in the Section, the provision

would be applicable only to such a case where the husband or the relative of

the husband of a woman subjects the said woman to cruelty. When the

ingredients of the aforesaid Section are present in a particular case, in that

event the person concerned against whom the offence is alleged would be

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tried in accordance with law in a trial instituted against him and if found guilty

the accused would be punished with imprisonment for a term which may

extend to three years and shall also be liable to fine. The said section contains

an explanation, which defines "cruelty" as understood under Section 498A

IPC. In order to understand the meaning of the expression `cruelty' as

envisaged under Section 498A, there must be such a conduct on the part of the

husband or relatives of the husband of woman which is of such a nature as to

cause the woman to commit suicide or to cause grave injury or danger to life,

limb or health whether mental or physical of the woman.

22. When we examine the facts of the present case particularly the FIR and

the charge sheet we find that there is no such allegation either in the FIR or in

the charge sheet making out a prima facie case as narrated under explanation

(a). There is no allegation that there is any such conduct on the part of the

appellant which could be said to be amounting to cruelty of such a nature as is

likely to cause the Respondent No. 2 to commit suicide or to cause any injury

to her life. The ingredient to constitute an offence under explanation (a) of

Section 498A IPC are not at all mentioned either in FIR or in charge sheet and

in absence thereof, no case is made out. Therefore, explanation (a) as found

in Section 498A IPC is clearly not attracted in the present case.

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23. We, therefore, now proceed to examine as to whether the case would

fall under explanation (b) of Section 498A of IPC constituting cruelty of the

nature as mentioned in explanation (b). In order to constitute cruelty under

the said provision there has to be harassment of the woman with a view to

coercing her or any person related to her to meet any unlawful demand for any

property or valuable security or a case is to be made out to the effect that there

is a failure by her or any person related to her to meet such demand. When

the allegation made in the FIR and charge sheet is examined in the present

case in the light of the aforesaid provision, we find that no prima facie case

even under the aforesaid provision is made out to attract a case of cruelty.

24. The marriage between the appellant and Respondent No. 2 was

performed on 23.10.1997 when it is alleged that Rs. 5 lakhs was given by the

parents of Respondent No. 2 to the family of appellant as dowry. The FIR

was filed in the month of April, 2002 and in the said FIR there is no allegation

that subsequent thereto any harassment was made by the appellant with a view

to coercing her or any person related to Respondent No. 2 to meet any

unlawful demand or any property.

25. In that view of the matter neither explanation (a) nor explanation (b) of

Section 498 A of IPC is attracted in the present case. It is crystal clear that

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neither in the FIR nor in the charge sheet there is any ingredient of Section

498A IPC, which could prima facie constitute a case of cruelty as defined in

that Section.

26. It is thus established that on a reading of the FIR as also the charge

sheet filed against the appellant no case under Section 498A is made out on

the face of the record, and therefore, both the FIR as also the charge sheet are

liable to be quashed in exercise of the powers under Section 482 of the CrPC.

Clearly, the High Court failed to appreciate the facts in proper perspective,

and therefore, committed an error on the face of the record.

27. We, therefore, allow this appeal and quash the proceedings initiated

against the appellant under Section 498A of the IPC.

28. The appeal is allowed to the aforesaid extent.

..............................J.

(Dr. Mukundakam Sharma)

...............................J.

(Dr. B.S. Chauhan)

New Delhi,

July 6, 2009