tag:blogger.com,1999:blog-50175684923358535612024-03-13T13:54:51.040-07:00Quashing of FIR under section 498a/406/34 ipc
Quashing of FIR, Quashing under 498a IPC,Charge sheet quashing at High Court,quashed u/s 498A/406 IPC,Law of FIR Quashing,quashing Petition,criminal writ Petition for FIR quashing,section 482 of Crpc,quashing laws in India for FIR.Anticipatory Bail in Dowry Cases u/s 498a Ipc,Warrant of Arrest of Dowry Case FIR,LOC,Look Out Circular meaning,Bail in Dowry Cases,Judgments on quashing of FIR,
Read the blog and understand the Laws.V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-5017568492335853561.post-82874334253927799632019-04-30T21:56:00.000-07:002019-04-30T21:56:41.393-07:00Complaint u/s 498-A IPC (Dowry Demand) filed by father not maintainable.<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">"One of the submissions, which has been made by the
learned counsel for the appellant also needs to be considered. Learned counsel
for the appellant had submitted that complaint has not been filed by a
competent person. It is submitted that complaint is not made by Vanshika, but
has been filed only by father of Vanshika, hence it is not maintainable. The
above submission has been refuted by Shri Santosh Krishnan. He submits that it
is not necessary that a complaint under Section 498A should be filed only by
the victim of offence. He submits that complaint filed by father of the victim,
respondent No.2 was also fully maintainable. Section 498A provides as follows:-<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">“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.<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">Explanation.—For the purpose of this section,
“cruelty” means—<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">(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, <br clear="all" style="page-break-before: always;" />
<span style="mso-spacerun: yes;"> </span>limb or health (whether mental or
physical) of the woman; or<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand.”<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">30. Section 498A provides for an offence when
husband or the relative of the husband, subject her to cruelty. There is
nothing in Section 498A, which may indicate that when a woman is subjected to
cruelty, a complaint has to be filed necessarily by the women so subjected. A
perusal of Section 498A, as extracted above, indicates that the provision does
not contemplate that complaint for offence under Section 498A should be filed
only by women, who is subjected to cruelty by husband or his relative. We,
thus, are of the view that complaint filed by respondent No.2, the father of
Vanshika cannot be said to be not maintainable on this ground. We, thus, reject
the submission of the counsel <br clear="all" style="page-break-before: always;" />
for the appellant that complaint filed by respondent No.2 was not maintainable.<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 14.0pt; line-height: 115%;">31. In view of the
foregoing discussions, insofar as the offence under Section 498A and Section
3/4 of D.P. Act is concerned, we are of the view that present is a case, which
is covered by Category 7 as enumerated by State of Haryana Vs. Bhajan Lal
(supra) and the High Court erred in refusing to exercise under Section 482
Cr.P.C<o:p></o:p></span></div>
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<span style="color: black; font-family: "Times New Roman","serif"; font-size: 14.0pt; mso-fareast-font-family: "Times New Roman";">I</span><span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">N
THE SUPREME COURT OF INDIA<o:p></o:p></span></div>
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<span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">CRIMINAL APPELLATE JURISDICTION<o:p></o:p></span></div>
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<span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-spacerun: yes;"> </span>CRIMINAL APPEAL NO.594 of
2019<o:p></o:p></span></div>
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<span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">(arising out of SLP (Crl.) No.8103/2018)<o:p></o:p></span></div>
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<span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-spacerun: yes;"> </span>RASHMI CHOPRA<span style="mso-spacerun: yes;"> </span>...APPELLANT(S)<o:p></o:p></span></div>
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<span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>VERSUS<o:p></o:p></span></div>
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<span style="color: black; font-family: "Courier New"; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-spacerun: yes;"> </span>THE STATE OF UTTAR PRADESH
& ANR....RESPONDENT(S)<o:p></o:p></span></div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com2tag:blogger.com,1999:blog-5017568492335853561.post-79341346609691086092016-10-11T22:05:00.000-07:002016-10-11T22:05:57.381-07:00new guidelines on quashing of fir u/s 482 of Cr.P.C. by supreme court of india.<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<br />
The Hon"ble Supreme Court held that:-<br />
<br />
<br />
In the absence of such guidelines in India, Courts go by their<br />
own perception about the philosophy behind the prescription of certain<br />
specified penal consequences for particular nature of crime. For some<br />
deterrence and/or vengeance becomes more important whereas another<br />
Judge may be more influenced by rehabilitation or restoration as the<br />
goal of sentencing. Sometimes, it would be a combination of both<br />
which would weigh in the mind of the Court in awarding a particular<br />
sentence. However, that may be question of quantum.<br />
What follows from the discussion behind the purpose of sentencing is<br />
that if a particular crime is to be treated as crime against the<br />
society and/or heinous crime, then the deterrence theory as a<br />
rationale for punishing the offender becomes more relevant, to be<br />
applied in such cases. Therefore, in respect of such offences which<br />
are treated against the society, it becomes the duty of the State to<br />
punish the offender. Thus, even when there is a settlement between<br />
the offender and the victim, their will would not prevail as in such<br />
cases the matter is in public domain. Society demands that the<br />
individual offender should be punished in order to deter other<br />
effectively as it amounts to greatest good of the greatest number of<br />
persons in a society. It is in this context that we have to<br />
understand the scheme/philosophy behind Section 307 of the Code.<br />
<br />
We would like to expand this principle in some more detail. We<br />
find, in practice and in reality, after recording the conviction and<br />
while awarding the sentence/punishment the Court is generally governed<br />
by any or all or combination of the aforesaid factors. Sometimes, it<br />
is the deterrence theory which prevails in the minds of the Court,<br />
particularly in those cases where the crimes committed are heinous in<br />
nature or depicts depravity, or lack morality. At times it is to<br />
satisfy the element of “emotion” in law and retribution/vengeance<br />
becomes the guiding factor. In any case, it cannot be denied that the<br />
purpose of punishment by law is deterrence, constrained by<br />
considerations of justice. What, then, is the role of mercy,<br />
forgiveness and compassion in law? These are by no means comfortable<br />
questions and even the answers may not be comforting. There may be<br />
certain cases which are too obvious namely cases involving heinous<br />
crime with element of criminality against the society and not parties<br />
inter-se. In such cases, the deterrence as purpose of punishment<br />
becomes paramount and even if the victim or his relatives have shown<br />
the virtue and gentility, agreeing to forgive the culprit, compassion<br />
of that private party would not move the court in accepting the same<br />
as larger and more important public policy of showing the iron hand of<br />
law to the wrongdoers, to reduce the commission of such offences, is<br />
more important. Cases of murder, rape, or other sexual offences etc.<br />
would clearly fall in this category. After all, justice requires long<br />
term vision. On the other hand, there may be, offences falling in the<br />
category where “correctional” objective of criminal law would have to<br />
be given more weightage in contrast with “deterrence” philosophy.<br />
Punishment, whatever else may be, must be fair and conducive to good<br />
rather than further evil. If in a particular case the Court is of the<br />
opinion that the settlement between the parties would lead to more<br />
good; better relations between them; would prevent further occurrence<br />
of such encounters between the parties, it may hold settlement to be<br />
on a better pedestal. It is a delicate balance between the two<br />
inflicting interests which is to be achieved by the Court after<br />
examining all these parameters and then deciding as to which course of<br />
action it should take in a particular case.<br />
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<br />
<br />
[REPORTABLE]<br />
<br />
IN THE SUPREME COURT OF INDIA<br />
<br />
CRIMINAL APPELLATE JURISDICTION<br />
<br />
CRIMINAL APPEAL NO.686/2014<br />
<br />
(arising out of S.L.P.(Criminal) No.9547 of 2013)<br />
<br />
Narinder Singh & Ors. ……Appellants<br />
<br />
Vs.<br />
<br />
State of Punjab & Anr. …Respondents<br />
<br />
<br />
<br />
<br />
J U D G M E N T<br />
<br />
<br />
<br />
<br />
A.K.SIKRI,J.<br />
<br />
1. The present Special Leave Petition has been preferred against<br />
the impugned judgment/final order dated 8.10.2013 passed by the High<br />
Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous<br />
Petition No.27343/2013. It was a petition under Section 482 of the<br />
Code of Criminal Procedure (hereinafter referred to as the “Code”) for<br />
quashing of FIR No.121/14.7.2010 registered under Sections<br />
307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered<br />
into between the petitioners ( who are accused in the said FIR) and<br />
respondent No.2 (who is the complainant). The High Court has refused<br />
to exercise its extraordinary discretion invoking the provisions of<br />
Section 482 of the Code on the ground that four injuries were suffered<br />
by the complainant and as per the opinion of the Doctor, injury No.3<br />
were serious in nature. The High Court, thus, refused to accept the<br />
compromise entered into between the parties, the effect whereof would<br />
be that the petitioners would face trial in the said FIR.<br />
<br />
2. Leave granted.<br />
<br />
3. We have heard counsel for the parties at length.<br />
<br />
4. It may be stated at the outset that the petitioners herein, who<br />
are three in number, have been charged under various provisions of the<br />
IPC including for committing offence punishable under Section 307, IPC<br />
i.e. attempt to commit murder. FIR No.121/14.7.2010 was registered.<br />
In the aforesaid FIR, the allegations against the petitioners are that<br />
on 9.7.2010 at 7.00 A.M. while respondent No.2 was going on his<br />
motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder<br />
Singh both sons of Baldev Singh and Baldev Singh son of Lakha Singh<br />
attacked him and injured him. Respondent No.2 was admitted in Shri<br />
Guru Nanak Dev Hospital, Amritsar. After examination the doctor found<br />
four injuries on his person. Injury No.1 to 3 are with sharp edged<br />
weapons and injury No.4 is simple. From the statement of injured and<br />
MLR’s report, an FIR under sections 323/324/34 IPC was registered.<br />
After X-ray report relating to injury No.3, section 307 IPC was added<br />
in the FIR<br />
<br />
5. After the completion of investigation, challan has been<br />
presented in the Court against the petitioners and charges have also<br />
been framed. Now the case is pending before the Ld.Trial Court,<br />
Amritsar, for evidence.<br />
<br />
6. During the pendency of trial proceedings, the matter has been<br />
compromised between the petitioners as well as the private respondent<br />
with the intervention of the Panchayat on 12.07.2013. It is clear<br />
from the above that three years after the incident, the parties<br />
compromised the matter with intervention of the Panchayat of the<br />
village.<br />
<br />
7. It is on the basis of this compromise, the petitioners moved<br />
aforesaid criminal petition under section 482 of the Code for quashing<br />
of the said FIR. As per the petitioners, the parties have settled the<br />
matter, as they have decided to keep harmony between them to enable<br />
them to live with peace and love. The compromise records that they<br />
have no grudge against each other and the complainant has specifically<br />
agreed that he has no objection if the FIR in question is quashed.<br />
Further, both the parties have undertaken not to indulge in any<br />
litigation against each other and withdraw all the complaints pending<br />
between the parties before the court. As they do not intend to<br />
proceed with any criminal case against each other, on that basis the<br />
submission of the petitioners before the High Court was that the<br />
continuance of the criminal proceedings in the aforesaid FIR will be a<br />
futile exercise and mere wastage of precious time of the court as well<br />
as investigating agencies.<br />
<br />
8. The aforesaid submission, however, did not impress the High<br />
Court as the medical report depicts the injuries to be of grievous<br />
nature. The question for consideration, in these circumstances, is as<br />
to whether the court should have accepted the compromise arrived at<br />
between the parties and quash the FIR as well as criminal proceedings<br />
pending against the petitioner.<br />
<br />
9. The ld. counsel for the State has supported the aforesaid<br />
verdict of the High Court arguing that since offence under Section 307<br />
is non-compoundable, the respondents could not have been acquitted<br />
only because of the reason that there was a compromise/settlement<br />
between the parties. In support, the learned counsel for the<br />
respondent-State has relied upon the judgment of this Court in the<br />
case of Rajendra Harakchand Bhandari vs. State of Maharashtra (2011)<br />
13 SCC 311 wherein this Court held that since offence under Section<br />
307 is not compoundable, even when the parties had settled the matter,<br />
compounding of the offence was out of question. Said settlement along<br />
with other extenuating circumstances was only taken as the ground for<br />
reduction of the sentence in the following manner:<br />
<br />
“We must immediately state that the offence under Section<br />
307 is not compoundable in terms of Section 320(9) of the<br />
Code of Criminal Procedure, 1973 and, therefore, compounding<br />
of the offence in the present case is out of question.<br />
However, the circumstances pointed out by the learned Senior<br />
Counsel do persuade us for a lenient view in regard to the<br />
sentence. The incident occurred on 17.5.1991 and it is almost<br />
twenty years since then. The appellants are agriculturists by<br />
occupation and have no previous criminal background. There<br />
has been reconciliation amongst parties; the relations<br />
between the appellants and the victim have become cordial and<br />
prior to the appellants’ surrender, the parties have been<br />
living peacefully in the village. The appellants have already<br />
undergone the sentence of more than two-and-a half years.<br />
Having regard to those circumstances, we are satisfied that<br />
ends of justice will be met if the substantive sentence<br />
awarded to the appellants is reduced to the period already<br />
undergone while maintaining the amount of fine.<br />
<br />
Consequently, while confirming the conviction of the<br />
appellants for the offences punishable under Section 307 read<br />
with Section 34, Section 332 read with Section 34 and Section<br />
353 read with Section 34, the substantive sentence awarded to<br />
them by the High Court is reduced to the period already<br />
undergone. The fine amount and the default stipulation remain<br />
as it is.”<br />
<br />
<br />
<br />
<br />
10. The learned counsel for the appellant, on the other hand,<br />
submitted that merely because an offence is non-compoundable under<br />
Section 320 of the Code would not mean that the High Court is denuded<br />
of its power to quash the proceedings in exercising its jurisdiction<br />
under Section 482 of the Cr.P.C. He argued that Section 320(9) of the<br />
Code cannot limit or affect the power of the High Court under Section<br />
482 of the Cr.P.C. Such a power is recognized by the Supreme Court in<br />
catena of judgments. He further submitted that having regard to the<br />
circumstances in the present case where the fight had occurred on the<br />
spot in the heat of the moment inasmuch as both sides were verbally<br />
fighting when the petitioners had struck the victim, this assault was<br />
more of a crime against the individual than against the society at<br />
large. He further submitted that this Court in Dimpey Gujral v. Union<br />
Territory through Administrator 2012 AIR SCW 5333 had quashed the FIR<br />
registered under sections 147,148,149,323,307,452 and 506 of the IPC.<br />
<br />
<br />
<br />
11. We find that there are cases where the power of the High Court<br />
under Section 482 of the Code to quash the proceedings in those<br />
offences which are uncompoundable has been recognized. The only<br />
difference is that under Section 320(1) of the Code, no permission is<br />
required from the Court in those cases which are compoundable though<br />
the Court has discretionary power to refuse to compound the offence.<br />
However, compounding under Section 320(1) of the Code is permissible<br />
only in minor offences or in non-serious offences. Likewise, when the<br />
parties reach settlement in respect of offences enumerated in Section<br />
320(2) of the Code, compounding is permissible but it requires the<br />
approval of the Court. In so far as serious offences are concerned,<br />
quashing of criminal proceedings upon compromise is within the<br />
discretionary powers of the High Court. In such cases, the power is<br />
exercised under Section 482 of the Code and proceedings are quashed.<br />
Contours of these powers were described by this Court in B.S.Joshi vs.<br />
State of Haryana (2003) 4 SCC 675 which has been followed<br />
and further explained/elaborated in so many cases thereafter, which<br />
are taken note of in the discussion that follows hereinafter.<br />
<br />
<br />
<br />
12. At the same time, one has to keep in mind the subtle distinction<br />
between the power of compounding of offences given to Court under<br />
Section 320 of the Code and quashing of criminal proceedings by the<br />
High Court in exercise of its inherent jurisdiction conferred upon it<br />
under Section 482 of the Code. Once, it is found that compounding is<br />
permissible only if a particular offence is covered by the provisions<br />
of Section 320 of the Code and the Court in such cases is guided<br />
solitary and squarely by the compromise between the parties, in so far<br />
as power of quashing under Section 482 of the Code is concerned, it is<br />
guided by the material on record as to whether the ends of justice<br />
would justify such exercise of power, although the ultimate<br />
consequence may be acquittal or dismissal of indictment. Such a<br />
distinction is lucidly explained by a three-Judge Bench of this Court<br />
in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303. Justice<br />
Lodha, speaking for the Court, explained the difference between the<br />
two provisions in the following manner:<br />
<br />
“Quashing of offence or criminal proceedings on the ground<br />
of settlement between an offender and victim is not the same<br />
thing as compounding of offence. They are different and not<br />
interchangeable. Strictly speaking, the power of compounding of<br />
offences given to a court under Section 320 is materially<br />
different from the quashing of criminal proceedings by the High<br />
Court in exercise of its inherent jurisdiction. In compounding<br />
of offences, power of a criminal court is circumscribed by the<br />
provisions contained in Section 320 and the court is guided<br />
solely and squarely thereby while, on the other hand, the<br />
formation of opinion by the High Court for quashing a criminal<br />
offence or criminal proceeding or criminal complaint is guided<br />
by the material on record as to whether the ends of justice<br />
would justify such exercise of power although the ultimate<br />
consequence may be acquittal or dismissal of indictment.<br />
<br />
B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do<br />
illustrate the principle that the High Court may quash criminal<br />
proceedings or FIR or complaint in exercise of its inherent<br />
power under Section 482 of the Code and Section 320 does not<br />
limit or affect the powers of the High Court under Section 482.<br />
Can it be said that by quashing criminal proceedings in<br />
B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court<br />
has compounded the non-compoundable offences indirectly? We do<br />
not think so. There does exist the distinction between<br />
compounding of an offence under Section 320 and quashing of a<br />
criminal case by the High Court in exercise of inherent power<br />
under Section 482. The two powers are distinct and different<br />
although the ultimate consequence may be the same viz. acquittal<br />
of the accused or dismissal of indictment.”<br />
<br />
<br />
<br />
<br />
13. Apart from narrating the interplay of Section 320 and Section<br />
482 of the Code in the manner aforesaid, the Court also described the<br />
extent of power under Section 482 of the Code in quashing the criminal<br />
proceedings in those cases where the parties had settled the matter<br />
although the offences are not compoundable. In the first instance it<br />
was emphasized that the power under Sec. 482 of the Code is not to be<br />
resorted to, if there is specific provision in the Code for redressal<br />
of the grievance of an aggrieved party. It should be exercised very<br />
sparingly and should not be exercised as against the express bar of<br />
law engrafted in any other provision of the Code. The Court also<br />
highlighted that in different situations, the inherent power may be<br />
exercised in different ways to achieve its ultimate objective.<br />
Formation of opinion by the High Court before it exercises inherent<br />
power under Section 482 on either of the twin objectives, (i) to<br />
prevent abuse of the process of any court, or (ii) to secure the ends<br />
of justice, is a sine qua non.<br />
<br />
14. As to under what circumstances the criminal proceedings in a non-<br />
compoundable case be quashed when there is a settlement between the<br />
parties, the Court provided the following guidelines:<br />
<br />
“Where the High Court quashes a criminal proceeding having<br />
regard to the facts that the dispute between the offender and<br />
the victim has been settled although the offences are not<br />
compoundable, it does so as in its opinion, continuation of<br />
criminal proceedings will be an exercise in futility and<br />
justice in the case demands that the dispute between the<br />
parties is put to an end and peace is restored; securing the<br />
ends of justice being the ultimate guiding factor. No doubt,<br />
crimes are acts which have harmful effect on the public and<br />
consist in wrongdoing that seriously endangers and threatens<br />
the well-being of the society and it is not safe to leave the<br />
crime-doer only because he and the victim have settled the<br />
dispute amicably or that the victim has been paid<br />
compensation, yet certain crimes have been made compoundable<br />
in law, with or without the permission of the court. In<br />
respect of serious offences like murder, rape, dacoity, etc.<br />
or other offences of mental depravity under IPC or offences of<br />
moral turpitude under special statutes, like the Prevention of<br />
Corruption Act or the offences committed by public servants<br />
while working in that capacity, the settlement between the<br />
offender and the victim can have no legal sanction at all.<br />
However, certain offences which overwhelmingly and<br />
predominantly bear civil flavor having arisen out of civil,<br />
mercantile, commercial, financial, partnership or such like<br />
transactions or the offences arising out of matrimony,<br />
particularly relating to dowry, etc. or the family dispute,<br />
where the wrong is basically to the victim and the offender<br />
and the victim have settled all disputes between them<br />
amicably, irrespective of the fact that such offences have not<br />
been made compoundable, the High Court may within the<br />
framework of its inherent power, quash the criminal proceeding<br />
or criminal complaint or FIR if it is satisfied that on the<br />
face of such settlement, there is hardly any likelihood of the<br />
offender being convicted and by not quashing the criminal<br />
proceedings, justice shall be casualty and ends of justice<br />
shall be defeated. The above list is illustrative and not<br />
exhaustive. Each case will depend on its own facts and no hard-<br />
and-fast category can be prescribed.”<br />
<br />
<br />
<br />
<br />
Thereafter, the Court summed up the legal position in the following<br />
words:<br />
<br />
“The position that emerges from the above discussion can be<br />
summarized thus: the power of the High Court in quashing a<br />
criminal proceeding or FIR or complaint in exercise of its<br />
inherent jurisdiction is distinct and different from the power<br />
given to a criminal court for compounding the offences under<br />
Section 320 of the Code. Inherent power is of wide plentitude<br />
with no statutory limitation but it has to be exercised in<br />
accord with the guidelines engrafted in such power viz.: (i) to<br />
secure the ends of justice, or (ii) to prevent abuse f the<br />
process of any court. In what cases power to quash the criminal<br />
proceeding or complaint or FIR may be exercised where the<br />
offender and the victim have settled their dispute would depend<br />
on the facts and circumstances of each case and no category can<br />
be prescribed. However, before exercise of such power, the High<br />
Court must have due regard to the nature and gravity of the<br />
crime. Heinous and serious offences of mental depravity or<br />
offences like murder, rape, dacoity, etc. cannot be fittingly<br />
quashed even though the victim or victim’s family and the<br />
offender have settled the dispute. Such offences are not private<br />
in nature and have a serious impact on society. Similarly, any<br />
compromise between the victim and the offender in relation to<br />
the offences under special statutes like the Prevention of<br />
Corruption Act, or the offences committed by public servants<br />
while working in that capacity, etc.; cannot provide for any<br />
basis for quashing criminal proceedings involving such offences.<br />
But the criminal cases having overwhelmingly and predominatingly<br />
civil flavor stand on a different footing for the purposes of<br />
quashing, particularly the offences arising from commercial,<br />
financial, mercantile, civil, partnership or such like<br />
transactions or the offences arising out of matrimony relating<br />
to dowry, etc. or the family disputes where the wrong is<br />
basically private or personal in nature and the parties have<br />
resolved their entire dispute. In this category of cases, the<br />
High Court may quash the criminal proceedings if in its view,<br />
because of the compromise between the offender and the victim,<br />
the possibility of conviction is remote and bleak and<br />
continuation of the criminal case would put the accused to great<br />
oppression and prejudice and extreme injustice would be caused<br />
to him by not quashing the criminal case despite full and<br />
complete settlement and compromise with the victim. In other<br />
words, the High Court must consider whether it would be unfair<br />
or contrary to the interest of justice to continue with the<br />
criminal proceeding or continuation of the criminal proceeding<br />
or continuation of the criminal proceeding would tantamount to<br />
abuse of process of law despite settlement and compromise<br />
between the victim and the wrongdoer and whether to secure the<br />
ends of justice, it is appropriate that the criminal case is put<br />
to an end and if the answer to the above question(s) is in the<br />
affirmative, the High Court shall be well within its<br />
jurisdiction to quash the criminal proceeding.”<br />
<br />
<br />
<br />
<br />
15. The Court was categorical that in respect of serious offences or<br />
other offences of mental depravity or offence of merely dacoity under<br />
special statute, like the Prevention of Corruption Act or the offences<br />
committed by Public Servant while working in that capacity. The mere<br />
settlement between the parties would not be a ground to quash the<br />
proceedings by the High Court and inasmuch as settlement of such<br />
heinous crime cannot have imprimatur of the Court.<br />
<br />
16. The question is as to whether offence under Section 307 IPC<br />
falls within the aforesaid parameters. First limb of this question is<br />
to reflect on the nature of the offence. The charge against the<br />
accused in such cases is that he had attempted to take the life of<br />
another person (victim). On this touchstone, should we treat it a<br />
crime of serious nature so as to fall in the category of heinous<br />
crime, is the poser.<br />
<br />
17. Finding an answer to this question becomes imperative as the<br />
philosophy and jurisprudence of sentencing is based thereupon. If it<br />
is heinous crime of serious nature then it has to be treated as a<br />
crime against the society and not against the individual alone. Then<br />
it becomes the solemn duty of the State to punish the crime doer. Even<br />
if there is a settlement/compromise between the perpetrator of crime<br />
and the victim, that is of no consequence. Law prohibits certain acts<br />
and/or conduct and treats them as offences. Any person committing<br />
those acts is subject to penal consequences which may be of various<br />
kind. Mostly, punishment provided for committing offences is either<br />
imprisonment or monetary fine or both. Imprisonment can be rigorous<br />
or simple in nature. Why those persons who commit offences are<br />
subjected to such penal consequences? There are many philosophies<br />
behind such sentencing justifying these penal consequences. The<br />
philosophical/jurisprudential justification can be retribution,<br />
incapacitation, specific deterrence, general deterrence,<br />
rehabilitation, or restoration. Any of the above or a combination<br />
thereof can be the goal of sentencing. Whereas in various countries,<br />
sentencing guidelines are provided, statutorily or otherwise, which<br />
may guide Judges for awarding specific sentence, in India we do not<br />
have any such sentencing policy till date. The prevalence of such<br />
guidelines may not only aim at achieving consistencies in awarding<br />
sentences in different cases, such guidelines normally prescribe the<br />
sentencing policy as well namely whether the purpose of awarding<br />
punishment in a particular case is more of a deterrence or retribution<br />
or rehabilitation etc.<br />
<br />
18. In the absence of such guidelines in India, Courts go by their<br />
own perception about the philosophy behind the prescription of certain<br />
specified penal consequences for particular nature of crime. For some<br />
deterrence and/or vengeance becomes more important whereas another<br />
Judge may be more influenced by rehabilitation or restoration as the<br />
goal of sentencing. Sometimes, it would be a combination of both<br />
which would weigh in the mind of the Court in awarding a particular<br />
sentence. However, that may be question of quantum.<br />
What follows from the discussion behind the purpose of sentencing is<br />
that if a particular crime is to be treated as crime against the<br />
society and/or heinous crime, then the deterrence theory as a<br />
rationale for punishing the offender becomes more relevant, to be<br />
applied in such cases. Therefore, in respect of such offences which<br />
are treated against the society, it becomes the duty of the State to<br />
punish the offender. Thus, even when there is a settlement between<br />
the offender and the victim, their will would not prevail as in such<br />
cases the matter is in public domain. Society demands that the<br />
individual offender should be punished in order to deter other<br />
effectively as it amounts to greatest good of the greatest number of<br />
persons in a society. It is in this context that we have to<br />
understand the scheme/philosophy behind Section 307 of the Code.<br />
<br />
19. We would like to expand this principle in some more detail. We<br />
find, in practice and in reality, after recording the conviction and<br />
while awarding the sentence/punishment the Court is generally governed<br />
by any or all or combination of the aforesaid factors. Sometimes, it<br />
is the deterrence theory which prevails in the minds of the Court,<br />
particularly in those cases where the crimes committed are heinous in<br />
nature or depicts depravity, or lack morality. At times it is to<br />
satisfy the element of “emotion” in law and retribution/vengeance<br />
becomes the guiding factor. In any case, it cannot be denied that the<br />
purpose of punishment by law is deterrence, constrained by<br />
considerations of justice. What, then, is the role of mercy,<br />
forgiveness and compassion in law? These are by no means comfortable<br />
questions and even the answers may not be comforting. There may be<br />
certain cases which are too obvious namely cases involving heinous<br />
crime with element of criminality against the society and not parties<br />
inter-se. In such cases, the deterrence as purpose of punishment<br />
becomes paramount and even if the victim or his relatives have shown<br />
the virtue and gentility, agreeing to forgive the culprit, compassion<br />
of that private party would not move the court in accepting the same<br />
as larger and more important public policy of showing the iron hand of<br />
law to the wrongdoers, to reduce the commission of such offences, is<br />
more important. Cases of murder, rape, or other sexual offences etc.<br />
would clearly fall in this category. After all, justice requires long<br />
term vision. On the other hand, there may be, offences falling in the<br />
category where “correctional” objective of criminal law would have to<br />
be given more weightage in contrast with “deterrence” philosophy.<br />
Punishment, whatever else may be, must be fair and conducive to good<br />
rather than further evil. If in a particular case the Court is of the<br />
opinion that the settlement between the parties would lead to more<br />
good; better relations between them; would prevent further occurrence<br />
of such encounters between the parties, it may hold settlement to be<br />
on a better pedestal. It is a delicate balance between the two<br />
inflicting interests which is to be achieved by the Court after<br />
examining all these parameters and then deciding as to which course of<br />
action it should take in a particular case.<br />
<br />
20. We may comment, at this stage, that in so far as the judgment in<br />
the case of Bhandari (supra) is concerned, undoubtedly this Court<br />
observed that since offence under Section 307 is not compoundable in<br />
terms of Section 320(9) of the Cr.P.C., compounding of the offence was<br />
out of question. However, apart from this observation, this aspect is<br />
not discussed in detail. Moreover, on reading para 12 of the said<br />
judgment, it is clear that one finds that counsel for the appellant in<br />
that case had not contested the conviction of the appellant for the<br />
offence under Section 307 IPC, but had mainly pleaded for reduction of<br />
sentence by projecting mitigating circumstances.<br />
<br />
21. However, we have some other cases decided by this Court<br />
commenting upon the nature of offence under Section 307 of IPC. In<br />
Dimpey Gujral case (supra), FIR was lodged under sections<br />
147,148,149,323,307,552 and 506 of the IPC. The matter was<br />
investigated and final report was presented to the Court under Section<br />
173 of the Cr.P.C. The trial court had even framed the charges. At<br />
that stage, settlement was arrived at between parties. The court<br />
accepted the settlement and quashed the proceedings, relying upon<br />
the earlier judgment of this Court in Gian Singh vs. State of Punjab &<br />
Anr. 2012 AIR SCW 5333 wherein the court had observed that inherent<br />
powers under section 482 of the Code are of wide plentitude with no<br />
statutory limitation and the guiding factors are: (1) to secure the<br />
needs of justice, or (2) to prevent abuse of process of the court.<br />
While doing so, commenting upon the offences stated in the FIR, the<br />
court observed:<br />
<br />
“Since the offences involved in this case are of a<br />
personal nature and are not offences against the society, we had<br />
enquired with learned counsel appearing for the parties whether<br />
there is any possibility of a settlement. We are happy to note<br />
that due to efforts made by learned counsel, parties have seen<br />
reason and have entered into a compromise.”<br />
<br />
<br />
<br />
<br />
This Court, thus, treated such offences including one under section<br />
307, IPC were of a personal nature and not offences against the<br />
society.<br />
<br />
22. On the other hand, we have few judgments wherein this Court<br />
refused to quash the proceedings in FIR registered under section 307<br />
IPC etc. on the ground that offence under section 307 was of serious<br />
nature and would fall in the category of heinous crime. In the case<br />
of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the Court quashed the<br />
proceedings relating to an offence under section 354 IPC with the<br />
following observations:<br />
<br />
“We have heard learned counsel for the parties and perused<br />
the impugned order. Section 320 of the Cr.P.C. enlists<br />
offences that are compoundable with the permission of the<br />
Court before whom the prosecution is pending and those that<br />
can be compounded even without such permission. An offence<br />
punishable under Section 354 of the IPC is in terms of<br />
Section 320(2) of the Code compoundable at the instance of<br />
the woman against whom the offence is committed. To that<br />
extent, therefore, there is no difficulty in either quashing<br />
the proceedings or compounding the offence under Section<br />
354, of which the appellants are accused, having regard to<br />
the fact that the alleged victim of the offence has settled<br />
the matter with the alleged assailants. An offence<br />
punishable under Section 394 IPC is not, however,<br />
compoundable with or without the permission of the Court<br />
concerned. The question is whether the High Court could and<br />
ought to have exercised its power under section 482 the said<br />
provision in the light of the compromise that the parties<br />
have arrived at.”<br />
<br />
23. In a recent judgment in the case of State of Rajasthan vs.<br />
Shambhu Kewat & Ors. 2013 (14) SCALE 235, this very Bench of the<br />
Court was faced with the situation where the High Court had accepted<br />
the settlement between the parties in an offence under Section 307<br />
read with Section 34 IPC and set the accused at large by acquitting<br />
them. The settlement was arrived at during the pendency of appeal<br />
before the High Court against the order of conviction and sentence of<br />
the Sessions Judge holding the accused persons guilty of the offence<br />
under Section307/34 IPC. Some earlier cases of compounding of offence<br />
under Section 307 IPC were taken note of, noticing under certain<br />
circumstances, the Court had approved the compounding whereas in<br />
certain other cases such a course of action was not accepted. In that<br />
case, this Court took the view that High Court was not justified in<br />
accepting the compromise and setting aside the conviction. While<br />
doing so, following discussion ensued:<br />
<br />
“We find, in this case, such a situation does not arise.<br />
In the instant case, the incident had occurred on 30.10.2008.<br />
The trial court held that the accused persons, with common<br />
intention, went to the shop of the injured Abdul Rashid on that<br />
day armed with iron rod and a strip of iron and, in furtherance<br />
of their common intention, had caused serious injuries on the<br />
body of Abdul Rashid, of which injury number 4 was on his head,<br />
which was of a serious nature.<br />
<br />
Dr.Rakesh Sharma, PW5, had stated that out of the injuries<br />
caused to Abdul Rashid, injury No.4 was an injury on the head<br />
and that injury was “grievous and fatal for life”. PW8, Dr. Uday<br />
Bhomik, also opined that a grievous injury was caused on the<br />
head of Abdul Rashid. DR. Uday conducted the operation on<br />
injuries of Abdul Rashid as a Neuro Surgeon and fully supported<br />
the opinion expressed by PW5 Dr. Rakesh Sharma that injury No.4<br />
was “grievous and fatal for life”.<br />
<br />
We notice that the gravity of the injuries was taken note<br />
of by the Sessions Court and it had awarded the sentence of 10<br />
years rigorous imprisonment for the offence punishable under<br />
Section 307 IPC, but not by the High Court. The High Court has<br />
completely overlooked the various principles laid down by this<br />
Court in Gian Singh (Supra), and has committed a mistake in<br />
taking the view that, the injuries were caused on the body of<br />
Abdul Rashid in a fight occurred at the spur and the heat of the<br />
moment. It has been categorically held by this Court in Gian<br />
Singh (supra) that the Court, while exercising the power under<br />
Section 482, must have “due regard to the nature and gravity of<br />
the crime” and “the social impact”. Both these aspects were<br />
completely overlooked by the High Court. The High Court in a<br />
cursory manner, without application of mind, blindly accepted<br />
the statement of the parties that they had settled their<br />
disputes and differences and took the view that it was a crime<br />
against “an individual”, rather than against “the society at<br />
large”.<br />
<br />
<br />
<br />
<br />
We are not prepared to say that the crime alleged to have<br />
been committed by the accused persons was a crime against an<br />
individual, on the other hand it was a crime against the society<br />
at large. Criminal law is designed as a mechanism for achieving<br />
social control and its purpose is the regulation of conduct and<br />
activities within the society. Why Section 307 IPC is held to be<br />
non-compoundable, because the Code has identified which conduct<br />
should be brought within the ambit of non-compoundable offences.<br />
Such provisions are not meant, just to protect the individual,<br />
but the society as a whole. High Court was not right in thinking<br />
that it was only an injury to the person and since the accused<br />
persons had received the monetary compensation and settled the<br />
matter, the crime as against them was wiped off. Criminal<br />
justice system has a larger objective to achieve, that is safety<br />
and protection of the people at large and it would be a lesson<br />
not only to the offender, but to the individuals at large so<br />
that such crimes would not be committed by any one and money<br />
would not be a substitute for the crime committed against the<br />
society. Taking a lenient view on a serious offence like the<br />
present, will leave a wrong impression about the criminal<br />
justice system and will encourage further criminal acts, which<br />
will endanger the peaceful co-existence and welfare of the<br />
society at large.”<br />
<br />
<br />
<br />
<br />
24. Thus, we find that in certain circumstances, this Court has<br />
approved the quashing of proceedings under section 307,IPC whereas in<br />
some other cases, it is held that as the offence is of serious nature<br />
such proceedings cannot be quashed. Though in each of the aforesaid<br />
cases the view taken by this Court may be justified on its own facts,<br />
at the same time this Court owes an explanation as to why two<br />
different approaches are adopted in various cases. The law declared<br />
by this Court in the form of judgments becomes binding precedent for<br />
the High Courts and the subordinate courts, to follow under Article<br />
141 of the Constitution of India. Stare Decisis is the fundamental<br />
principle of judicial decision making which requires ‘certainty’ too<br />
in law so that in a given set of facts the course of action which law<br />
shall take is discernable and predictable. Unless that is achieved,<br />
the very doctrine of stare decisis will lose its significance. The<br />
related objective of the doctrine of stare decisis is to put a curb on<br />
the personal preferences and priors of individual Judges. In a way,<br />
it achieves equality of treatment as well, inasmuch as two different<br />
persons faced with similar circumstances would be given identical<br />
treatment at the hands of law. It has, therefore, support from the<br />
human sense of justice as well. The force of precedent in the law is<br />
heightened, in the words of Karl Llewellyn, by “that curious, almost<br />
universal sense of justice which urges that all men are to be treated<br />
alike in like circumstances”.<br />
<br />
25. As there is a close relation between the equality and justice,<br />
it should be clearly discernible as to how the two prosecutions under<br />
Section 307 IPC are different in nature and therefore are given<br />
different treatment. With this ideal objective in mind, we are<br />
proceeding to discuss the subject at length. It is for this reason<br />
we deem it appropriate to lay down some distinct, definite and clear<br />
guidelines which can be kept in mind by the High Courts to take a view<br />
as to under what circumstances it should accept the settlement between<br />
the parties and quash the proceedings and under what circumstances it<br />
should refrain from doing so. We make it clear that though there<br />
would be a general discussion in this behalf as well, the matter is<br />
examined in the context of offences under Section 307 IPC.<br />
<br />
26. The two rival parties have amicably settled the disputes<br />
between themselves and buried the hatchet. Not only this, they say<br />
that since they are neighbours, they want to live like good neighbours<br />
and that was the reason for restoring friendly ties. In such a<br />
scenario, should the court give its imprimatur to such a settlement.<br />
The answer depends on various incidental aspects which need serious<br />
discourse.<br />
The Legislators has categorically recognized that those offences which<br />
are covered by the provisions of section 320 of the Code are<br />
concededly those not only do not fall within the category of heinous<br />
crime but also which are personal between the parties. Therefore, this<br />
provision recognizes whereas there is a compromise between the parties<br />
the Court is to act at the said compromise and quash the proceedings.<br />
However, even in respect of such offences not covered within the four<br />
corners of Section 320 of the Code, High Court is given power under<br />
Section 482 of the Code to accept the compromise between the parties<br />
and quash the proceedings. The guiding factor is as to whether the<br />
ends of justice would justify such exercise of power, both the<br />
ultimate consequences may be acquittal or dismissal of indictment.<br />
This is so recognized in various judgments taken note of above.<br />
<br />
27. In the case of Dimpey Gujral (supra), observations of<br />
this Court to the effect that offences involved in that case were not<br />
offences against the society. It included charge under Section 307 IPC<br />
as well. However, apart from stating so, there is no detained<br />
discussion on this aspect. Moreover, it is the other factors which<br />
prevailed with the Court to accept the settlement and compound he<br />
offence, as noted above while discussing this case. On the other hand,<br />
in Shambhu Kewat (supra), after referring to some other earlier<br />
judgments, this Court opined that commission of offence under Section<br />
307 IPC would be crime against the society at large, and not a crime<br />
against an individual only. We find that in most of the cases, this<br />
view is taken. Even on first principle, we find that an attempt to<br />
take the life of another person has to be treated as a heinous crime<br />
and against the society.<br />
<br />
28. Having said so, we would hasten to add that though it is a<br />
serious offence as the accused person(s) attempted to take the life of<br />
another person/victim, at the same time the court cannot be oblivious<br />
to hard realities that many times whenever there is a quarrel between<br />
the parties leading to physical commotion and sustaining of injury by<br />
either or both the parties, there is a tendency to give it a slant of<br />
an offence under Section 307 IPC as well. Therefore, only because<br />
FIR/Charge-sheet incorporates the provision of Section 307 IPC would<br />
not, by itself, be a ground to reject the petition under section 482<br />
of the Code and refuse to accept the settlement between the parties.<br />
We are, therefore, of the opinion that while taking a call as to<br />
whether compromise in such cases should be effected or not, the High<br />
Court should go by the nature of injury sustained, the portion of the<br />
bodies where the injuries were inflicted (namely whether injuries are<br />
caused at the vital/delicate parts of the body) and the nature of<br />
weapons used etc. On that basis, if it is found that there is a<br />
strong possibility of proving the charge under Section 307 IPC, once<br />
the evidence to that effect is led and injuries proved, the Court<br />
should not accept settlement between the parties. On the other hand,<br />
on the basis of prima facie assessment of the aforesaid circumstances,<br />
if the High Court forms an opinion that provisions of Section 307 IPC<br />
were unnecessary included in the charge sheet, the Court can accept<br />
the plea of compounding of the offence based on settlement between the<br />
parties.<br />
<br />
29. At this juncture, we would like also to add that the timing of<br />
settlement would also play a crucial role. If the settlement is<br />
arrived at immediately after the alleged commission of offence when<br />
the matter is still under investigation, the High Court may be<br />
somewhat liberal in accepting the settlement and quashing the<br />
proceedings/investigation. Of course, it would be after looking into<br />
the attendant circumstances as narrated in the previous para.<br />
Likewise, when challan is submitted but the charge has not been<br />
framed, the High Court may exercise its discretionary jurisdiction.<br />
However, at this stage, as mentioned above, since the report of the<br />
I.O. under Section 173,Cr.P.C. is also placed before the Court it<br />
would become the bounding duty of the Court to go into the said report<br />
and the evidence collected, particularly the medical evidence relating<br />
to injury etc. sustained by the victim. This aspect, however, would<br />
be examined along with another important consideration, namely, in<br />
view of settlement between the parties, whether it would be unfair or<br />
contrary to interest of justice to continue with the criminal<br />
proceedings and whether possibility of conviction is remote and bleak.<br />
If the Court finds the answer to this question in affirmative, then<br />
also such a case would be a fit case for the High Court to give its<br />
stamp of approval to the compromise arrived at between the parties,<br />
inasmuch as in such cases no useful purpose would be served in<br />
carrying out the criminal proceedings which in all likelihood would<br />
end in acquittal, in any case.<br />
<br />
30. We have found that in certain cases, the High Courts have<br />
accepted the compromise between the parties when the matter in appeal<br />
was pending before the High Court against the conviction recorded by<br />
the trial court. Obviously, such cases are those where the accused<br />
persons have been found guilty by the trial court, which means the<br />
serious charge of Section 307 IPC has been proved beyond reasonable<br />
doubt at the level of the trial court. There would not be any<br />
question of accepting compromise and acquitting the accused persons<br />
simply because the private parties have buried the hatchet.<br />
<br />
31. In view of the aforesaid discussion, we sum up and lay down the<br />
following principles by which the High Court would be guided in giving<br />
adequate treatment to the settlement between the parties and<br />
exercising its power under Section 482 of the Code while accepting the<br />
settlement and quashing the proceedings or refusing to accept the<br />
settlement with direction to continue with the criminal proceedings:<br />
<br />
(I) Power conferred under Section 482 of the Code is to be<br />
distinguished from the power which lies in the Court to compound the<br />
offences under Section 320 of the Code. No doubt, under Section 482 of<br />
the Code, the High Court has inherent power to quash the criminal<br />
proceedings even in those cases which are not compoundable, where the<br />
parties have settled the matter between themselves. However, this<br />
power is to be exercised sparingly and with caution.<br />
<br />
(II)When the parties have reached the settlement and on that<br />
basis petition for quashing the criminal proceedings is filed, the<br />
guiding factor in such cases would be to secure:<br />
<br />
(i) ends of justice, or<br />
<br />
(ii) to prevent abuse of the process of any Court.<br />
<br />
While exercising the power the High Court is to form an opinion on<br />
either of the aforesaid two objectives.<br />
<br />
(III) Such a power is not be exercised in those prosecutions<br />
which involve heinous and serious offences of mental depravity or<br />
offences like murder, rape, dacoity, etc. Such offences are not<br />
private in nature and have a serious impact on society. Similarly, for<br />
offences alleged to have been committed under special statute like the<br />
Prevention of Corruption Act or the offences committed by Public<br />
Servants while working in that capacity are not to be quashed merely<br />
on the basis of compromise between the victim and the offender.<br />
<br />
(IV) On the other, those criminal cases having overwhelmingly<br />
and pre-dominantly civil character, particularly those arising out of<br />
commercial transactions or arising out of matrimonial relationship or<br />
family disputes should be quashed when the parties have resolved their<br />
entire disputes among themselves.<br />
(V) While exercising its powers, the High Court is to examine as to<br />
whether the possibility of conviction is remote and bleak and<br />
continuation of criminal cases would put the accused to great<br />
oppression and prejudice and extreme injustice would be caused to him<br />
by not quashing the criminal cases.<br />
(VI) Offences under Section 307 IPC would fall in the<br />
category of heinous and serious offences and therefore is to be<br />
generally treated as crime against the society and not against the<br />
individual alone. However, the High Court would not rest its decision<br />
merely because there is a mention of Section 307 IPC in the FIR or the<br />
charge is framed under this provision. It would be open to the High<br />
Court to examine as to whether incorporation of Section 307 IPC is<br />
there for the sake of it or the prosecution has collected sufficient<br />
evidence, which if proved, would lead to proving the charge under<br />
Section 307 IPC. For this purpose, it would be open to the High Court<br />
to go by the nature of injury sustained, whether such injury is<br />
inflicted on the vital/delegate parts of the body, nature of weapons<br />
used etc. Medical report in respect of injuries suffered by the victim<br />
can generally be the guiding factor. On the basis of this prima facie<br />
analysis, the High Court can examine as to whether there is a strong<br />
possibility of conviction or the chances of conviction are remote and<br />
bleak. In the former case it can refuse to accept the settlement and<br />
quash the criminal proceedings whereas in the later case it would be<br />
permissible for the High Court to accept the plea compounding the<br />
offence based on complete settlement between the parties. At this<br />
stage, the Court can also be swayed by the fact that the settlement<br />
between the parties is going to result in harmony between them which<br />
may improve their future relationship.<br />
<br />
(VII) While deciding whether to exercise its power under Section<br />
482 of the Code or not, timings of settlement play a crucial role.<br />
Those cases where the settlement is arrived at immediately after the<br />
alleged commission of offence and the matter is still under<br />
investigation, the High Court may be liberal in accepting the<br />
settlement to quash the criminal proceedings/investigation. It is<br />
because of the reason that at this stage the investigation is still on<br />
and even the charge sheet has not been filed. Likewise, those cases<br />
where the charge is framed but the evidence is yet to start or the<br />
evidence is still at infancy stage, the High Court can show<br />
benevolence in exercising its powers favourably, but after prima facie<br />
assessment of the circumstances/material mentioned above. On the other<br />
hand, where the prosecution evidence is almost complete or after the<br />
conclusion of the evidence the matter is at the stage of argument,<br />
normally the High Court should refrain from exercising its power under<br />
Section 482 of the Code, as in such cases the trial court would be in<br />
a position to decide the case finally on merits and to come a<br />
conclusion as to whether the offence under Section 307 IPC is<br />
committed or not. Similarly, in those cases where the conviction is<br />
already recorded by the trial court and the matter is at the appellate<br />
stage before the High Court, mere compromise between the parties would<br />
not be a ground to accept the same resulting in acquittal of the<br />
offender who has already been convicted by the trial court. Here<br />
charge is proved under Section 307 IPC and conviction is already<br />
recorded of a heinous crime and, therefore, there is no question of<br />
sparing a convict found guilty of such a crime.<br />
<br />
32. After having clarified the legal position in the manner<br />
aforesaid, we proceed to discuss the case at hand.<br />
<br />
33. In the present case, FIR No.121 dated 14.7.2010 was registered<br />
under Section 307/324/323/34 IPC. Investigation was completed,<br />
whereafter challan was presented in the court against the petitioner<br />
herein. Charges have also been framed; the case is at the stage of<br />
recording of evidence. At this juncture, parties entered into<br />
compromise on the basis of which petition under Section 482 of the<br />
Code was filed by the petitioners namely the accused persons for<br />
quashing of the criminal proceedings under the said FIR. As per the<br />
copy of the settlement which was annexed along with the petition, the<br />
compromise took place between the parties on 12.7.2013 when<br />
respectable members of the Gram Panchayat held a meeting under the<br />
Chairmanship of Sarpanch. It is stated that on the intervention of<br />
the said persons/Panchayat, both the parties were agreed for<br />
compromise and have also decided to live with peace in future with<br />
each other. It was argued that since the parties have decided to keep<br />
harmony between the parties so that in future they are able to live<br />
with peace and love and they are the residents of the same village,<br />
the High Court should have accepted the said compromise and quash the<br />
proceedings.<br />
<br />
34. We find from the impugned order that the sole reason which<br />
weighed with the High Court in refusing to accept the settlement<br />
between the parties was the nature of injuries. If we go by that<br />
factor alone, normally we would tend to agree with the High Court’s<br />
approach. However, as pointed out hereinafter, some other attendant<br />
and inseparable circumstances also need to be kept in mind which<br />
compel us to take a different view.<br />
<br />
35. We have gone through the FIR as well which was recorded on the<br />
basis of statement of the complainant/victim. It gives an indication<br />
that the complainant was attacked allegedly by the accused persons<br />
because of some previous dispute between the parties, though nature of<br />
dispute etc. is not stated in detail. However, a very pertinent<br />
statement appears on record viz., “respectable persons have been<br />
trying for a compromise up till now, which could not be finalized”.<br />
This becomes an important aspect. It appears that there have been<br />
some disputes which led to the aforesaid purported attack by the<br />
accused on the complainant. In this context when we find that the<br />
elders of the village, including Sarpanch, intervened in the matter<br />
and the parties have not only buried their hatchet but have decided to<br />
live peacefully in future, this becomes an important consideration.<br />
The evidence is yet to be led in the Court. It has not even started.<br />
In view of compromise between parties, there is a minimal chance of<br />
the witnesses coming forward in support of the prosecution case. Even<br />
though nature of injuries can still be established by producing the<br />
doctor as witness who conducted medical examination, it may become<br />
difficult to prove as to who caused these injuries. The chances of<br />
conviction, therefore, appear to be remote. It would, therefore, be<br />
unnecessary to drag these proceedings. We, taking all these factors<br />
into consideration cumulatively, are of the opinion that the<br />
compromise between the parties be accepted and the criminal<br />
proceedings arising out of FIR No.121 dated 14.7.2010 registered with<br />
Police Station LOPOKE, District Amritsar Rural be quashed. We order<br />
accordingly.<br />
<br />
36. Appeal is allowed. No costs.<br />
<br />
………………………………J.<br />
(K.S.Radhakrishnan)<br />
<br />
<br />
<br />
<br />
<br />
<br />
………………………………J.<br />
(A.K.Sikri)<br />
New Delhi,<br />
March 27, 2014<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br /></div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com2tag:blogger.com,1999:blog-5017568492335853561.post-81758201177398215522013-09-19T21:07:00.000-07:002013-10-22T05:06:58.058-07:00Quashing of F.I.R in sec.498-A-IPC when both parties agreed.<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<b>Quashing of F.I.R under section 498-A-IPC when parties settled their disputes mutually</b>.<br />
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IN THE SUPREME COURT OF INDIA</div>
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CRIMINAL APPELLATE JURISDICTION</div>
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1 CRIMINAL APPEAL No. 447 OF 2013</div>
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(Arising out of S.L.P. (Crl.) No. 6462 of 2012)</div>
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Jitendra Raghuvanshi &amp; Ors. .... Appellant(s)</div>
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Versus</div>
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Babita Raghuvanshi &amp; Anr. .... Respondent(s)</div>
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2</div>
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3</div>
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4</div>
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J U D G M E N T</div>
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P.Sathasivam,J.</div>
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1) Leave granted.</div>
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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.</div>
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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.</div>
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4) Brief facts:</div>
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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.</div>
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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.</div>
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d) Aggrieved by the said order, the appellants have filed the present appeal by way of special leave.</div>
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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.</div>
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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.</div>
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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 in<a href="http://indiankanoon.org/doc/469138/" style="color: #1100cc;">B.S. Joshi and Others vs. State of Haryana and Another,</a> (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 <a href="http://indiankanoon.org/doc/1033637/" style="color: #1100cc;">State of Haryana vs. Bhajan Lal,</a> 1992 Supp (1) SCC 335 and explaining the decisions rendered in <a href="http://indiankanoon.org/doc/646292/" style="color: #1100cc;">Madhu Limaye vs. State of Maharashtra,</a> (1977) 4 SCC 551, Surendra Nath Mohanty &amp; Anr. vs. State of Orissa, (1999) 5 SCC 238 and Pepsi Foods Ltd. &amp; <a href="http://indiankanoon.org/doc/574884/" style="color: #1100cc;">Anr. vs. Special Judicial Magistrate &</a>amp; Ors., (1998) 5 SCC 749, this Court held:</div>
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“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.”</div>
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Considering matrimonial matters, this Court also held:</div>
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“12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.”</div>
<div style="background-color: white; font-family: georgia, sans-serif; font-size: 16px; line-height: 24.375px; text-align: justify;">
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.</div>
<div style="background-color: white; font-family: georgia, sans-serif; font-size: 16px; line-height: 24.375px; text-align: justify;">
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.</div>
<div style="background-color: white; font-family: georgia, sans-serif; font-size: 16px; line-height: 24.375px; text-align: justify;">
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.</div>
<div style="background-color: white; font-family: georgia, sans-serif; font-size: 16px; line-height: 24.375px; text-align: justify;">
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.</div>
<div style="background-color: white; font-family: georgia, sans-serif; font-size: 16px; line-height: 24.375px; text-align: justify;">
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.</div>
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………….…………………………J.</div>
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(P. SATHASIVAM)</div>
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………….…………………………J.</div>
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(JAGDISH SINGH KHEHAR)</div>
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………….…………………………J.</div>
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(KURIAN JOSEPH)</div>
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NEW DELHI;</div>
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MARCH 15, 2013.</div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-57151011816063131582013-02-23T20:22:00.001-08:002013-10-22T05:07:15.652-07:00Quashing of F.I.R on mutual settlement<div dir="ltr" style="text-align: left;" trbidi="on">
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The Honble Court held in the said matter.<br />
<br />
<br />
"We, therefore, feel that though offence punishable under Section 498-<br />
A of the IPC is not compoundable, in appropriate cases if the parties are<br />
willing and if it appears to the criminal court that there exist elements<br />
of settlement, it should direct the parties to explore the possibility of<br />
settlement through mediation. This is, obviously, not to dilute the<br />
rigour, efficacy and purport of Section 498-A of the IPC, but to locate<br />
cases where the matrimonial dispute can be nipped in bud in an equitable<br />
manner. The judges, with their expertise, must ensure that this exercise<br />
does not lead to the erring spouse using mediation process to get out of<br />
clutches of the law. During mediation, the parties can either decide to<br />
part company on mutually agreed terms or they may decide to patch up and<br />
stay together. In either case for the settlement to come through, the<br />
complaint will have to be quashed. In that event, they can approach the<br />
High Court and get the complaint quashed. If however they chose not to<br />
settle, they can proceed with the complaint. In this exercise, there is no<br />
loss to anyone. If there is settlement, the parties will be saved from the<br />
trials and tribulations of a criminal case and that will reduce the burden<br />
on the courts which will be in the larger public interest".<br />
<br />
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">IN THE SUPREME
COURT OF INDIA<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">CIVIL APPELLATE
JURISDICTION<o:p></o:p></span></div>
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<b><span style="font-family: DejaVuSans-Bold; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans-Bold;">CIVIL
APPEAL NO. 1794 OF 2013<o:p></o:p></span></b></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">(Arising out of
Special Leave Petition (Civil) No. 4782 of<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">2007)<o:p></o:p></span></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">K. SRINIVAS RAO …
APPELLANT<o:p></o:p></span></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">Versus<o:p></o:p></span></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">D.A. DEEPA …
RESPONDENT<o:p></o:p></span></div>
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<b><span style="font-family: DejaVuSans-Bold; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans-Bold;">JUDGMENT<o:p></o:p></span></b></div>
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<b><span style="font-family: DejaVuSans-Bold; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans-Bold;">(SMT.)
RANJANA PRAKASH DESAI, J.<o:p></o:p></span></b></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">1. Leave
granted.<o:p></o:p></span></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;"><br /></span></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;">see the complete judgement (click here)</span></div>
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<span style="font-family: DejaVuSans; font-size: 14.0pt; mso-bidi-font-family: DejaVuSans;"><br /></span></div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-45346216644388290582012-08-31T21:14:00.000-07:002013-10-22T05:08:16.361-07:00No Anticipatory Bail for person absconding<div dir="ltr" style="text-align: left;" trbidi="on">
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No Anticipatory Bail for Absconder.<br />
<br />
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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.<br />
<br />
IN THE SUPREME COURT OF INDIA<br />
CRIMINAL APPELLATE JURISDICTION
1
2<br />
CRIMINAL APPEAL NO. 1331 OF 2012
3<br />
(Arising out of SLP (Crl.) No. 1961 of 2012
Lavesh …. Appellant(s)
Versus
State (NCT of Delhi) …. Respondent(s)<br />
J U D G M E N T
P. Sathasivam, J.<br />
<br />
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.
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com1tag:blogger.com,1999:blog-5017568492335853561.post-74701269783145723822011-11-06T20:54:00.000-08:002012-10-23T19:12:42.528-07:00Interpol Red Corner Notices MeaningInterpol Notices Meaning<br /><br />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.<br /><br />Red notice<br /> 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.)<br />Yellow notice<br /> Asks for help locating missing persons (usually minors) or identifying people who are unable to identify themselves.<br />Blue notice<br /> Requests additional information about a person in relation to a crime<br />Black notice<br /> Seeks information on unidentified bodies.<br />Green notice<br /> To provide warnings and criminal intelligence about persons who have committed criminal offences and are likely to repeat these crimes in other countries<br />Orange notice<br /> Warns police and other international organizations about potential threats from disguised weapons, parcel bombs, or other dangerous materials.<br />Purple notice<br /> To provide information on modi operandi, procedures, objects, devices and hiding places used by criminals.<br /><br /><br />RED CORNER NOTICES BY INDIAN AUTHORITY<br /><br />Interpol Notices<br /><br />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.<br /><br />A Series (Red) Notices<br /> <br />Top<br />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. <br /><br />The publication of an 'A' series notice should only be requested if all the following conditions are fulfilled:<br /><br />- The person against whom the notice is to be published has committed an offence against ordinary criminal law.<br /><br />- The offence is an "extraditable offence" under the Indian Extradition Act, 1962. <br /><br />- A warrant of arrest has been issued for his/her arrest.<br /><br />- Extradition will be requested, at least from certain countries.<br /><br />If any of the above conditions is not satisfied, a 'B' series notice should probably be requested.<br /><br />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:<br /><br />- 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.<br /><br />- 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.).<br /><br />- 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.<br /><br />- Languages spoken.<br /><br />- Previous convictions, if any.<br /><br />- A short account of the circumstances of the case in which he/she is wanted including full details of the charge(s).<br /><br />- The name of the court that issued the warrant, date and number of the warrant of arrest.<br /><br />- An assurance that extradition will be requested ( if arrested anywhere in the world or at least in certain countries).<br /><br />- The names of the countries from which extradition will be requested.<br /><br /><br />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.<br /><br />Interpol (Red) Notice subjects wanted by India<br /><br /><br /><br /><br /><br /><br /><br /><br /><br />No red notices in dowry cases: Interpol<br /><br /><br />The Interpol, CBI and Interpol officials, dual criminality, ThuJun 30 2011, 00:12 hrs New Delhi: Source: Indian Express<br /><br /> The Interpol has refused to entertain issuing of red notices in cases of dowry and cruelty to a woman by her husband or relatives.<br /><br />The move comes days after the CBI and Interpol officials met to rectify the recent goof-ups in the ‘most-wanted list’.<br /><br />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.<br /><br />“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.<br /><br />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.<br /><br />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.”<br /><br />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.<br /><br />.V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-32006143090163713562011-11-06T20:47:00.000-08:002012-10-23T19:14:32.853-07:00Look Out Cerculars(LOC) MeaningLOOK OUT CIRCULARS (LOC)<br />25.9 The Look Out Circulars are opened to trace the absconding criminals and also to prevent<br />and monitor effectively the entry or exit of persons who may be required by law enforcement<br />authorities.<br />25.9.1 The basic substantive guidelines regarding the publication of the LOCs in relation<br />to Indian citizens issued by the MHA enunciate the following four cardinal<br />principles:<br />25.9.2 The request for opening of LOC is required to be made to all immigration Checkposts<br />in the country in the Official Format prescribed by the MHA.<br />25.9.3 The request for opening of LOC must invariably be issued with the approval of an<br />Officer not below the rank of Deputy Secretary to the Government of India/Joint<br />Secretary in the State Government/ Superintendent of Police concerned at the<br />district level.<br />25.9.4 The originating agency must ensure that complete identifying personal particulars<br />of the person, in respect of whom the LOC is to be opened, are clearly mentioned<br />in the prescribed proforma. The LOC will not be opened for less than three<br />identity parameters other than name of the subject.<br />Page 3 of 5<br />25.9.5 An LOC is valid for a period of one year. However, in case the originating agency<br />wants to extend the validity beyond one year it can ask for the extension before<br />the expiry of the one year period. If no request is made for the extension of the<br />LOC within the stipulated period of one year, the Immigration Officer concerned is<br />authorized to suspend the LOC.<br /><br /><br /><span style="font-weight:bold;">Procedure to quash the LOC:</span><br /><br />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.<br /><br />advocate V.K.Singh<br />+91-9999318690V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-72528617464468904442011-05-04T22:56:00.000-07:002012-08-31T21:19:24.612-07:00Stay of Arrest in section 498a/406/34 ipc<strong>Stay of Arrest in sec.498a ipc</strong><br /><br /><br />"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."<br /><br /><br /><br /><br /><br /><br />IN THE HIGH COURT OF DELHI AT NEW DELHI<br /><br />CRL.REV. P. No. 571 of 2008 & CRL M A 12229/2008<br /><br />Reserved on: February 12, 2009<br /><br />Date of decision: March 25, 2009<br /><br />GOPAL KRISHAN DUA ..... Petitioner Through: Mr. Vijay Aggarwal with Mr. Vishal<br /><br />Garg and Ms. Aanchal, Advocates<br /><br />versus<br /><br />STATE ..... Respondent Through: Mr. Asim Naeem, Advocate for the<br /><br />complainant.<br /><br />Mr. Jaideep Malik, APP for State.<br /><br />CORAM:<br /><br />HON'BLE DR. JUSTICE S. MURALIDHAR<br /><br />1. Whether Reporters of local papers may be<br /><br />allowed to see the judgment? No<br /><br />2. To be referred to the Reporter or not? Yes<br /><br />3. Whether the judgment should be reported Yes in Digest?<br /><br />JUDGMENT<br /><br />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.<br /><br /><br />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.<br /><br /><br />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.<br /><br />Crl Rev P 571/2008 Page 2 of 9<br /><br />4. Dismissing the application under Section 156 (3) CrPC, the learned MM passed the following order on 14th August 2008:<br /><br />"14.08.2008<br /><br />Present: Complainant with counsel.<br /><br />SI K.P. Singh, PS C.R. Park present. He filed the status report. I have heard the argument on the application<br /><br />moved u/s 156 (3) CrPC.<br /><br />As per the status report the Accused No.1 Rajni Dua is<br /><br />not allowing her husband to enter into his own house.<br /><br />Having heard the submissions of the complainant, I<br /><br />observe that the allegations leveled against the accused are outcome of the matrimonial dispute arisen between<br /><br />the complainant and accused No.1. No specific<br /><br />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<br /><br />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.<br /><br />Matter is fixed for C.E. on 20.10.2008."<br /><br /><br />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. <br /><br />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. <br /><br />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.<br /><br /><br />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. <br /><br />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.<br /><br /><br />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):<br /><br />"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)<br /><br />"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."<br /><br />79. We are in agreement with the views, expressed by Mitter, J. and Mudholkar, J. in the above two decisions."<br /><br /><br />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.<br /><br /><br />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.<br /><br /><br />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.<br /><br /><br />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.<br /><br /><br />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.<br /><br />MARCH 25, 2009V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-88758182809462674092011-05-04T22:50:00.001-07:002012-12-16T07:11:21.533-08:00Quashing of FIR Under section 498a/406 IPC<div dir="ltr" style="text-align: left;" trbidi="on">
FIR QUASHED UNDER SECTION 498A/406 IPC<
<br />
<br />
<br />
<span style="color: red;">"There is no allegation that there is any such conduct on the part of the
</span><br />
<span style="color: red;"><br /></span>
<span style="color: red;">appellant which could be said to be amounting to cruelty of such a nature as is
</span><br />
<span style="color: red;"><br /></span>
<span style="color: red;">likely to cause the Respondent No. 2 to commit suicide or to cause any injury
</span><br />
<span style="color: red;"><br /></span>
<span style="color: red;">to her life. The ingredient to constitute an offence under explanation (a) of
</span><br />
<span style="color: red;"><br /></span>
<span style="color: red;">Section 498A IPC are not at all mentioned either in FIR or in charge sheet and
</span><br />
<span style="color: red;"><br /></span>
<span style="color: red;">in absence thereof, no case is made out. Therefore, explanation (a) as found
</span><br />
<span style="color: red;"><br /></span>
<span style="color: red;">in Section 498A IPC is clearly not attracted in the present case."
</span><br />
<br />
/strong>IN THE SUPREME COURT OF INDIA
<br />
<br />
CRIMINAL APPELLATE JURISDICTION
<br />
<br />
CRIMINAL APPEAL NO. 249 OF 2004
<br />
<br />
Shakson Belthissor .... Appellant
<br />
<br />
Versus
<br />
<br />
State of Kerala & Anr. .... Respondents
<br />
<br />
JUDGMENT
<br />
<br />
Dr. Mukundakam Sharma, J.
<br />
<br />
1. This appeal is directed against the judgment and order dated 28.10.2002
<br />
<br />
passed by the Kerala High Court rejecting the petition filed by the
<br />
<br />
appellant herein praying for quashing of the first information report (for
<br />
<br />
short `the FIR') and the charge sheet filed against him.
<br />
<br />
2. The Respondent No. 2 (Valsa) got married with the appellant on
<br />
<br />
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
<br />
<br />
aunt. Incidentally, the aforesaid marriage was the second marriage of
<br />
<br />
Respondent No. 2 as she was earlier married to one Mr. Varghese, who
<br />
<br />
died in the year 1995. Through the said marriage the Respondent No. 2
<br />
<br />
has two sons. However, it was the first marriage of the appellant. Out of
<br />
<br />
the wedlock between the appellant and Respondent No. 2, there is no
<br />
<br />
issue.
<br />
<br />
3. The appellant was working at the relevant time at Saudi Arabia. The
<br />
<br />
appellant got married to Respondent No. 2 when he came on leave for four
<br />
<br />
months. However, after the marriage there appears to be some dispute
<br />
<br />
between the parties. On 21.04.2002, Respondent No. 2 filed an FIR in the
<br />
<br />
Kottayam Police Station, District Kollam, Kerala alleging that the
<br />
<br />
appellant married her when he came on leave for 4 months and that after
<br />
<br />
the marriage he stayed in the house of the complainant - wife and that
<br />
<br />
after expiry of the period of leave, her husband - the appellant returned to
<br />
<br />
the Gulf. It was also alleged by Respondent No. 2 in the said FIR that
<br />
<br />
thereafter, for 2-3 months, the appellant used to send money for the
<br />
<br />
expenses in the house, talked to her over phone and also sent letters from
<br />
<br />
Saudi Arabia and also behaved with her very affectionately. It was also
<br />
<br />
alleged that the parents of Respondent No. 2 at the time of marriage had
<br />
<br />
2
<br />
<br />
given Rs. 5 lakhs and that the said money was utilized by the family of the
<br />
<br />
appellant for purchasing a house at Nediyazhikam and also a property at
<br />
<br />
Mukkam where they are residing. It was also alleged that thereafter they
<br />
<br />
started spreading wrong information regarding the conduct of the
<br />
<br />
Respondent No. 2 in the locality and also misled the appellant about her.
<br />
<br />
On believing his family members, the appellant also stopped sending
<br />
<br />
money from Saudi Arabia for her expenses and also stopped sending
<br />
<br />
letters to her. It was also alleged by the Respondent No. 2 in the said FIR
<br />
<br />
that when she called him on telephone, the appellant behaved without
<br />
<br />
affection towards her and disconnected the phone due to which she
<br />
<br />
became mentally weak. It was also alleged that subsequently whenever
<br />
<br />
the appellant came on leave, he never used to come to the house of
<br />
<br />
Respondent No. 2 and stayed in the house of his younger brother and when
<br />
<br />
Respondent No. 2 herself went to that house, she was turned out from that
<br />
<br />
house. It was also alleged that due to such treatment meted out to her, she
<br />
<br />
has been suffering both mentally and physically.
<br />
<br />
4. On the basis of the said FIR a criminal case was registered and on
<br />
<br />
completion of the investigation made by the police, a charge sheet was
<br />
<br />
submitted by the police alleging, inter alia, that in the investigation it is
<br />
<br />
established that it is only the appellant, who has committed the offence. It
<br />
<br />
3
<br />
<br />
was also stated in the said charge sheet that investigation as per Section
<br />
<br />
498A of the Indian Penal Code (in short "the IPC") is being continued
<br />
<br />
after dropping the provision of Section 34 IPC since it was revealed that
<br />
<br />
no offence was committed by any of the family members of the appellant
<br />
<br />
under Section 34 IPC. It was also stated in the charge sheet that since the
<br />
<br />
appellant has been in Gulf, arrest could not be made and therefore police
<br />
<br />
requested the court to issue a warrant of arrest for production of the
<br />
<br />
accused-appellant.
<br />
<br />
5. Both the FIR and the charge sheet, which were submitted by the police,
<br />
<br />
became the bone of contention so far as the appellant is concerned, and
<br />
<br />
therefore, he filed a Criminal Miscellaneous Case No. 9376 of 2002 under
<br />
<br />
Section 482 of the Criminal Procedure Code (in short "the CrPC) before
<br />
<br />
the High Court of Kerala at Ernakulam praying for quashing of both the
<br />
<br />
FIR as also the charge sheet on the ground that no case for prosecution
<br />
<br />
under Section 498 A IPC is made out against him. The High Court,
<br />
<br />
however, without issuing any notice on the said petition rejected the
<br />
<br />
petition holding that by no stretch of imagination it can be said that the
<br />
<br />
FIR and the charge sheet do not disclose the commission of the offence
<br />
<br />
alleged against the appellant.
<br />
<br />
4
<br />
<br />
6. Being aggrieved by the said order passed by the learned Single Judge of
<br />
<br />
the High Court, the present appeal was filed on which notice was issued
<br />
<br />
and further proceedings before the trial court were stayed by this Court.
<br />
<br />
7. Now, the appeal is listed before us for hearing and we heard the learned
<br />
<br />
counsels appearing for the parties. In order to fairly appreciate the
<br />
<br />
contents of the submissions made by the counsel appearing for the parties,
<br />
<br />
it is necessary to extract relevant portion of the FIR and the charge sheet.
<br />
<br />
8. The relevant part of the FIR is as under:
<br />
<br />
"......On last 23rd October, 1997, Shakson Belthissor of Nediyazhikam House, Mukkam, Mayyanad married me
<br />
<br />
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
<br />
<br />
5
<br />
<br />
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..."
<br />
<br />
Relevant part of the charge sheet is as under:
<br />
<br />
"... 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
<br />
<br />
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."
<br />
<br />
Report
<br />
<br />
".....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
<br />
<br />
identification of the full name and address of the accused No. 1.
<br />
<br />
Report has been submitted before the Court
<br />
<br />
regarding continuation of the investigation as per Section 498A IPC after reducing Section 34 IPC, since it was
<br />
<br />
6
<br />
<br />
revealed that no offence was committed under Section 34 IPC.
<br />
<br />
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."
<br />
<br />
9. The scope and power of quashing a first information report and charge
<br />
<br />
sheet under Section 482 of the CrPC is well settled. The said power is
<br />
<br />
exercised by the court to prevent abuse of the process of law and court but
<br />
<br />
such a power could be exercised only when the complaint filed by the
<br />
<br />
complainant or the charge sheet filed by the police did not disclose any
<br />
<br />
offence or when the said complaint is found to be frivolous, vexatious or
<br />
<br />
oppressive. A number of decisions have been rendered by this Court on the
<br />
<br />
aforesaid issue wherein the law relating to quashing of a complaint has
<br />
<br />
been succinctly laid down.
<br />
<br />
10.In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it
<br />
<br />
was held that the Magistrate while issuing process against the accused
<br />
<br />
should satisfy himself as to whether the allegations made in the complaint,
<br />
<br />
if proved, would ultimately end in the conviction of the accused. It was
<br />
<br />
held that the order of Magistrate for issuing process against the accused
<br />
<br />
could be quashed under the following circumstances: (SCC p. 741, para 5)
<br />
<br />
7
<br />
<br />
"(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;
<br />
<br />
(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
<br />
<br />
(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."
<br />
<br />
11. In the case of Drugs Inspector v. Dr. B.K. Krishna [1981 (2) SCC
<br />
<br />
454] it was held by this Court that in a quashing proceeding, the High Court
<br />
<br />
has to see whether the allegations made in the complaint petition, if proved,
<br />
<br />
make out a prima facie offence and that the accused has prima facie
<br />
<br />
committed the offence. In the said decision this Court refused the prayer for
<br />
<br />
quashing of the complaint on the ground that there were sufficient allegations
<br />
<br />
in the complaint to make out a case that the accused persons were responsible
<br />
<br />
for the management and conduct of the firm and, therefore, the extent of their
<br />
<br />
liability could be and should be established during trial.
<br />
<br />
12. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi [1983
<br />
<br />
(1) SCC 1] it was held that when on the allegation made in the complaint, a
<br />
<br />
8
<br />
<br />
clear case was made out against all the respondents (accused persons), the
<br />
<br />
High Court ought not to have quashed the proceedings on the ground that the
<br />
<br />
complaint did not disclose any offence. In Municipal Corporation of Delhi
<br />
<br />
(supra), this Court observed as follows in para 8:
<br />
<br />
"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]
<br />
<br />
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:
<br />
<br />
(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;
<br />
<br />
(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;
<br />
<br />
(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
<br />
<br />
(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.
<br />
<br />
9
<br />
<br />
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
<br />
<br />
13. In State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335, a
<br />
<br />
question came up for consideration as to whether quashing of the FIR filed
<br />
<br />
against the respondent Bhajan Lal for the offences under Sections 161 and
<br />
<br />
165 IPC and Section 5(2) of the Prevention of Corruption Act was proper
<br />
<br />
and legal. Reversing the order passed by the High Court, this Court
<br />
<br />
explained the circumstances under which such power could be exercised.
<br />
<br />
Apart from reiterating the earlier norms laid down by this Court, it was
<br />
<br />
further explained that such power could be exercised where the allegations
<br />
<br />
made in the FIR or complaint are so absurd and inherently improbable on
<br />
<br />
the basis of which no prudent person can ever reach a just conclusion that
<br />
<br />
there is sufficient ground for proceeding against the accused. It observed as
<br />
<br />
follows in para 102:
<br />
<br />
"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.
<br />
<br />
10
<br />
<br />
(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.
<br />
<br />
(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.
<br />
<br />
(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.
<br />
<br />
(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."
<br />
<br />
14. However, in paragraph 108 of the said judgment, this Court referred to
<br />
<br />
and relied upon it earlier judgment in Sheonandan Paswan vs. State of
<br />
<br />
Bihar; AIR SC 877 wherein it has been held as under:
<br />
<br />
"It is a well established proposition of law that a criminal prosecution, it otherwise justifiable and based upon adequate
<br />
<br />
11
<br />
<br />
evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."
<br />
<br />
Thus, in such circumstances, the issue of malafice becomes irrelevant.
<br />
<br />
15. The above decision was followed by this Court in Pepsi Foods Ltd.
<br />
<br />
and Anr. Vs. Special Judicial Magistrate and Others [1998 (5) SCC 749].
<br />
<br />
In paragraph 28 of the said judgment this Court held thus :
<br />
<br />
"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."
<br />
<br />
16. Further, this Court observed in S. W. Palanikar v. State of Bihar
<br />
<br />
[2002 (1) SCC 241] that every breach of trust may not result in a penal
<br />
<br />
12
<br />
<br />
offence of criminal breach of trust unless there is evidence of a mental act of
<br />
<br />
fraudulent misappropriation. It observed as follows:
<br />
<br />
"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.
<br />
<br />
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.
<br />
<br />
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.
<br />
<br />
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)
<br />
<br />
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
<br />
<br />
13
<br />
<br />
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."
<br />
<br />
(emphasis supplied)
<br />
<br />
17. This Court in the case of Indian Oil Corpn. v. NEPC India
<br />
<br />
Ltd.,(2006) 6 SCC 736, at page 747 has observed as under :
<br />
<br />
"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.
<br />
<br />
(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
<br />
<br />
14
<br />
<br />
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.
<br />
<br />
(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.
<br />
<br />
(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."
<br />
<br />
18. This Court has recently in R. Kalyani v. Janak C. Mehta and
<br />
<br />
Others, (2009) 1 SCC 516, observed as follows:
<br />
<br />
"15. Propositions of law which emerge from the said decisions are:
<br />
<br />
(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.
<br />
<br />
15
<br />
<br />
(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.
<br />
<br />
(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.
<br />
<br />
(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.
<br />
<br />
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."
<br />
<br />
19. The same view has been taken by this Court in Chunduru Siva Ram
<br />
<br />
Krishna & Anr. v. Peddi Ravindra Babu & Anr., SLP (Crl.) No. 2991 of
<br />
<br />
2007; and V. V. S. Rama Sharma & Ors. v. State of U.P. & Ors., SLP
<br />
<br />
(Crl.) No. 1529 of 2007.
<br />
<br />
20. It was fairly agreed at bar that the aforesaid FIR was filed by
<br />
<br />
Respondent No. 2 with the intention of making out a prima facie case of
<br />
<br />
offence under Section 498A of the Indian Penal Code. The charge sheet,
<br />
<br />
which was filed by the police was under Section 498A of the Indian Penal
<br />
<br />
16
<br />
<br />
Code. As to whether or not in the FIR filed and in the charge sheet a case of
<br />
<br />
Section 498A IPC is made out or not is an issue, which is required to be
<br />
<br />
answered in this appeal. Section 498A of the IPC reads as follows:
<br />
<br />
"498A. Husband or relative of husband of a woman subjecting her to cruelty.
<br />
<br />
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.
<br />
<br />
Explanation-For the purpose of this section, "cruelty" means-
<br />
<br />
(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
<br />
<br />
(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
<br />
<br />
valuable security or is on account of failure by her or any person related to her meet such demand".
<br />
<br />
21. In the light of the aforesaid language used in the Section, the provision
<br />
<br />
would be applicable only to such a case where the husband or the relative of
<br />
<br />
the husband of a woman subjects the said woman to cruelty. When the
<br />
<br />
ingredients of the aforesaid Section are present in a particular case, in that
<br />
<br />
event the person concerned against whom the offence is alleged would be
<br />
<br />
17
<br />
<br />
tried in accordance with law in a trial instituted against him and if found guilty
<br />
<br />
the accused would be punished with imprisonment for a term which may
<br />
<br />
extend to three years and shall also be liable to fine. The said section contains
<br />
<br />
an explanation, which defines "cruelty" as understood under Section 498A
<br />
<br />
IPC. In order to understand the meaning of the expression `cruelty' as
<br />
<br />
envisaged under Section 498A, there must be such a conduct on the part of the
<br />
<br />
husband or relatives of the husband of woman which is of such a nature as to
<br />
<br />
cause the woman to commit suicide or to cause grave injury or danger to life,
<br />
<br />
limb or health whether mental or physical of the woman.
<br />
<br />
22. When we examine the facts of the present case particularly the FIR and
<br />
<br />
the charge sheet we find that there is no such allegation either in the FIR or in
<br />
<br />
the charge sheet making out a prima facie case as narrated under explanation
<br />
<br />
(a). There is no allegation that there is any such conduct on the part of the
<br />
<br />
appellant which could be said to be amounting to cruelty of such a nature as is
<br />
<br />
likely to cause the Respondent No. 2 to commit suicide or to cause any injury
<br />
<br />
to her life. The ingredient to constitute an offence under explanation (a) of
<br />
<br />
Section 498A IPC are not at all mentioned either in FIR or in charge sheet and
<br />
<br />
in absence thereof, no case is made out. Therefore, explanation (a) as found
<br />
<br />
in Section 498A IPC is clearly not attracted in the present case.
<br />
<br />
18
<br />
<br />
23. We, therefore, now proceed to examine as to whether the case would
<br />
<br />
fall under explanation (b) of Section 498A of IPC constituting cruelty of the
<br />
<br />
nature as mentioned in explanation (b). In order to constitute cruelty under
<br />
<br />
the said provision there has to be harassment of the woman with a view to
<br />
<br />
coercing her or any person related to her to meet any unlawful demand for any
<br />
<br />
property or valuable security or a case is to be made out to the effect that there
<br />
<br />
is a failure by her or any person related to her to meet such demand. When
<br />
<br />
the allegation made in the FIR and charge sheet is examined in the present
<br />
<br />
case in the light of the aforesaid provision, we find that no prima facie case
<br />
<br />
even under the aforesaid provision is made out to attract a case of cruelty.
<br />
<br />
24. The marriage between the appellant and Respondent No. 2 was
<br />
<br />
performed on 23.10.1997 when it is alleged that Rs. 5 lakhs was given by the
<br />
<br />
parents of Respondent No. 2 to the family of appellant as dowry. The FIR
<br />
<br />
was filed in the month of April, 2002 and in the said FIR there is no allegation
<br />
<br />
that subsequent thereto any harassment was made by the appellant with a view
<br />
<br />
to coercing her or any person related to Respondent No. 2 to meet any
<br />
<br />
unlawful demand or any property.
<br />
<br />
25. In that view of the matter neither explanation (a) nor explanation (b) of
<br />
<br />
Section 498 A of IPC is attracted in the present case. It is crystal clear that
<br />
<br />
19
<br />
<br />
neither in the FIR nor in the charge sheet there is any ingredient of Section
<br />
<br />
498A IPC, which could prima facie constitute a case of cruelty as defined in
<br />
<br />
that Section.
<br />
<br />
26. It is thus established that on a reading of the FIR as also the charge
<br />
<br />
sheet filed against the appellant no case under Section 498A is made out on
<br />
<br />
the face of the record, and therefore, both the FIR as also the charge sheet are
<br />
<br />
liable to be quashed in exercise of the powers under Section 482 of the CrPC.
<br />
<br />
Clearly, the High Court failed to appreciate the facts in proper perspective,
<br />
<br />
and therefore, committed an error on the face of the record.
<br />
<br />
27. We, therefore, allow this appeal and quash the proceedings initiated
<br />
<br />
against the appellant under Section 498A of the IPC.
<br />
<br />
28. The appeal is allowed to the aforesaid extent.
<br />
<br />
..............................J.
<br />
<br />
(Dr. Mukundakam Sharma)
<br />
<br />
...............................J.
<br />
<br />
(Dr. B.S. Chauhan)
<br />
<br />
New Delhi,
<br />
<br />
July 6, 2009
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br /></div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-47275632189731059612011-04-19T21:27:00.000-07:002012-12-16T07:07:46.487-08:00FIR under 498a ipc Lodged after Divorce in USA-Quashed<div dir="ltr" style="text-align: left;" trbidi="on">
Hon"ble High Court Held That:<br />
<br />
<span style="color: red;">it is a rarest of rare case, where the Court</span><br />
<span style="color: red;">should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.</span><br />
<br />
<br />
IN THE HIGH COURT OF DELHI AT NEW DELHI<br />
W.P.(Crl.) No. 957/2003<br />
Reserved on: 22.08.2007<br />
12.09.2007<br />
Date of Decision: 12.09.2007<br />
Kanchan Gulati and Anr.<br />
.......Petitioners<br />
Through : Mr. S.S.Gandhi,<br />
Sr.Advocate<br />
with Mr. Vishal Gosain, Advocate<br />
versus<br />
The State and Ors. .........<br />
Respondents<br />
Through : Ms. Mukta Gupta, Advocate for<br />
State<br />
Mr. Rahul Goyal, Advocate for R-4<br />
CORAM:<br />
JUSTICE SHIV NARAYAN DHINGRA<br />
1. Whether reporters of local papers may be allowed to see the judgment? Yes.<br />
2.To be referred to the Reporter or not? Yes.<br />
3.Whether the judgment should be reported Yes.<br />
in the Digest?<br />
JUDGMENT<br />
This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant). 2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs.2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs.1,46,000/- and an amount of Rs.4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.<br />
3. On 06.5.1997 her husband filed a divorce petition in the Circuit<br />
Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the<br />
decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.<br />
4. Quashing of this FIR has been prayed for by the petitioners. It<br />
is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.<br />
5. The complainant has not disputed about her contesting divorce<br />
petition and filing an appeal before the US Court. The orders of the US Court<br />
have been placed on record. The decree passed by the USA Court has not been<br />
challenged. The order of the US Court shows that the complainant had taken up<br />
all grounds like withholding her property, dowry etc. by her husband. The US<br />
Court directed the parties to exchange articles and passed following order:<br />
A. That the bonds of matrimony now existing between the petitioner,<br />
ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.<br />
B. That the marital home located at 1258 S. Pleasant Hill Gate,<br />
Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.<br />
C. That each party shall receive his or her own vehicles and each shall<br />
execute any documents necessary to transfer the title of the vehicle to the other.<br />
D. That each party shall receive his or her own personal property<br />
currently in his or her possession. That the Husband shall receive the<br />
following personal property as his sole property which shall be delivered to him<br />
by the Wife on March 21, 1999:<br />
Sharp TV<br />
Bed (with frame, and box spring)<br />
Sharp Microwave<br />
Small fridge<br />
Cooking Utensils and accessories<br />
Spices<br />
Square side table (brown, wood)<br />
3 Chairs ( wood frame and brown leather seat)<br />
Dining Table and Chairs<br />
2 Chairs (steel frame, leather seat)<br />
Glass top tables<br />
Comforter from aunt<br />
Utensils, spices and other stuff from my relatives.<br />
E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.<br />
F. That the Husband shall receive his stock options as his sole property.<br />
G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.<br />
H. That each party is barred from any maintenance from the other.<br />
I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife's interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.<br />
J. That the parties shall exchange their dowry items within 60 days of the<br />
entry of this Judgment for Dissolution of marriage. The Wife shall give to the<br />
Husband all the items on the attached list:<br />
One gold chain with pendant<br />
One gold ?krishna murti? pendant with diamonds.<br />
One diamond ring<br />
one pair of big earrings (mina wale)<br />
2 pair of earrings<br />
one gold ring ( given on Kwar-dhoti)<br />
one pair of silver paizeb<br />
one long mangal-sutra (mina wala)<br />
Bangles<br />
One (1) Golden Challa (sister-in-law)<br />
The Husband shall give to the Wife all items on the attached list:<br />
One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings)<br />
One Sitarami Necklace (Necklace only)<br />
One Gold Chain given to me<br />
One Gold and Diamond engagement ring<br />
One Gold wedding band<br />
One Gold coin (guenea)<br />
One Double gold chain given to my mother<br />
One Gold chain given to my sister-in-law<br />
Two gold rings (1 for my father, 1 for my brother)<br />
Two silver trays (rectangular)<br />
One silver tray (circular)<br />
One silver small bowl (katori)<br />
One wedding saree<br />
One luggage carrier (foldable cart)<br />
Check book for bank account in Anuja's name<br />
6. The appellate order passed by the appeal court would show that<br />
appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfilling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.<br />
7. Quashing of FIR in exercise of writ jurisdiction is a discretion<br />
of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.<br />
8. I consider that it is a rarest of rare case, where the Court<br />
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.<br />
SHIV NARAYAN DHINGRA,J.<br />
September 12, 2007<br />
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Another Judgment:Reportable<br />
IN THE SUPREME COURT OF INDIA<br />
CRIMINAL APPELLATE JURISDICTION<br />
CRIMINAL APPEAL NO.2122 OF 2009<br />
(Arising out of SLP(Crl.) No. 5910/2006)<br />
Pashaura Singh …Appellant<br />
Versus<br />
State of Punjab & Anr. …Respondents<br />
JUDGEMENT<br />
R.M. Lodha, J.<br />
Leave granted.<br />
2. In this appeal by special leave, the appellant has<br />
challenged the order dated May 24, 2006 passed by the High<br />
Court of Punjab and Haryana. By the said order, the petition<br />
filed by the appellant under Section 482 of Code of Criminal<br />
Procedure for quashing F.I.R. No. 9 dated January 21, 2002<br />
registered at Police Station Sehna under Sections 498-A, 494,<br />
506/34, IPC has been dismissed.<br />
3. Kamaljeet Kaur is a landed immigrant of Canada.<br />
On May 7, 1997, she married Pashaura Singh Sidhu –<br />
appellant – at village Ghall Kalan, District Moga, Punjab. She<br />
left for Canada on May 15, 1997. She sponsored her husband<br />
and, accordingly, Pashaura Singh went to Canada in 1998.<br />
They stayed together for few months and then relations<br />
between them became strained. Kamaljeet, thereafter, started<br />
living separately in Ontario. Pashaura Singh applied for<br />
divorce and dissolution of marriage before the Supreme Court<br />
of British Columbia and a divorce judgment was passed in his<br />
favour and their marriage stood dissolved with effect from<br />
February 8, 2001. After the dissolution of marriage, Pashaura<br />
Singh came to India and remarried on January 2, 2002.<br />
Pashaura Singh went back to Canada with his newly wedded<br />
wife and both of them have been residing there.<br />
4. On January 21, 2002, Kamaljeet’s brother Balwant<br />
Singh lodged a first information report being F.I.R. No. 9 at<br />
Police Station Sehna against Pashaura Singh, Hakam Singh<br />
(father of Pashaura Singh), Randhir Singh (brother of Pashaura<br />
Singh), Charanjit Kaur (wife of Randhir Singh) and Harbans<br />
Kaur (mother of Pashaura Singh) alleging therein that on May<br />
7, 1997 he performed his sister Kamaljeet Kaur’s marriage with<br />
2<br />
Pashaura Singh; that at the time of marriage, according to his<br />
status, he gave rupees four lacs in cash, gold jewelry, utensils,<br />
almirah, fifty-one suits, five bags etc. but the accused started<br />
harassing his sister Kamaljeet Kaur and threatened to kill her if<br />
she did not bring car, electronic items etc. and that he has now<br />
come to know that Pashaura Singh has entered into second<br />
marriage in the first week of January, 2002. A case under<br />
Sections 498-A, 494, 506/34, IPC was registered against the<br />
accused persons and it appears that the police submitted<br />
challan against them in the court of Judicial Magistrate First<br />
Class, Barnala.<br />
5. Randhir Singh, Charanjit Kaur (Rajinder Kaur),<br />
Hakam Singh and Harbans Kaur filed a petition under Section<br />
482 of the Code of Criminal Procedure for quashing the F.I.R.<br />
No. 9 and criminal prosecution against them. Vide order dated<br />
April 29, 2004, the High Court allowed the petition and quashed<br />
F.I.R. No. 9 dated January 21, 2002 registered against them<br />
and all subsequent proceedings.<br />
6. Pashaura Singh by a separate petition under<br />
Section 482 of the Code prayed for quashing F.I.R. No. 9/2002<br />
3<br />
and the subsequent criminal proceedings against him but, as<br />
noticed above, the High Court by its order dated May 24, 2006<br />
dismissed his petition. The High Court in its cryptic order, while<br />
dismissing the petition, observed that Pashaura Singh has<br />
married second time on January 2, 2002 while he was already<br />
married with Kamaljeet Kaur and the aforesaid marriage has<br />
not been dissolved.<br />
7. Having heard the learned Counsel for the parties<br />
and upon careful perusal of the materials placed before us, in<br />
our judgment, the order of High Court cannot be sustained for<br />
more than one reason. In the first place, the High Court gravely<br />
erred in observing that Pashaura Singh married second time on<br />
January 2, 2002 while he was already married with Kamaljeet<br />
Kaur and the aforesaid marriage has not been dissolved. The<br />
certificate of divorce dated February 26, 2001 issued by the<br />
New Westminster Registry, Supreme Court of British Columbia<br />
shows that the marriage of Pashaura Singh and Kamaljeet Kaur<br />
stood dissolved on February 8, 2001. As a matter of fact, this<br />
fact is noticed in the order dated April 29, 2004 whereby the<br />
High Court quashed F.I.R. No. 9 and the subsequent criminal<br />
4<br />
proceedings against the family members of Pashaura Singh. In<br />
the affidavit filed by Gurmail Singh, Deputy Superintendent of<br />
Police in response to the petition filed by the appellant under<br />
Section 482 before the High Court, it has been admitted that<br />
during investigation on March 14, 2002 Hakam Singh had<br />
produced photocopy of divorce certificate purporting to have<br />
been issued by the Supreme Court of British Columbia. The<br />
observation of the High Court, thus, that Pashaura Singh<br />
married second time, although his marriage has not been<br />
dissolved, is ex-facie contrary to record.<br />
8. Section 494, IPC, inter-alia, requires the following<br />
ingredients to be satisfied, namely, (i) the accused must have<br />
contracted first marriage; (ii) he must have married again; (iii)<br />
the first marriage must be subsisting and (iv) the spouse must<br />
be living. Insofar as present case is concerned the appellant’s<br />
marriage with Kamaljeet Kaur was not subsisting on January 2,<br />
2002 when he is said to have married second time. Pertinently<br />
before the High Court, along with reply, the complainant<br />
Balwant Singh annexed copy of an affidavit filed by Kamaljeet<br />
Kaur which states that she was not aware of the divorce<br />
5<br />
proceedings filed by her husband Pashaura Singh. However,<br />
from this affidavit, it is apparent that her husband has obtained<br />
a divorce judgment. There is nothing in the affidavit that divorce<br />
judgment has been stayed or set aside. On the face of the<br />
allegations made in the first information report, therefore,<br />
ingredients of the offence under Section 494, IPC are not<br />
satisfied.<br />
9. Insofar as offence under Section 498-A is<br />
concerned, the High Court in its earlier order dated April 29,<br />
2004 in the petition filed by the family members, observed thus:<br />
“I have perused the First Information Report<br />
registered against the petitioners.<br />
The only allegation against the petitioner is that they<br />
started harassing Kamaljeet Kaur Gill for not bringing more<br />
dowry. No demand of dowry has been made by the<br />
petitioners, nor is there any specific entrustment, as alleged<br />
in the First Information Report of dowry articles to the<br />
petitioners. Parties have divorced each other, as per the<br />
order of the Supreme Court of British Columbia (Annexure<br />
P-1). Order is dated February 25, 2001. It is after this divorce<br />
that Pishora Singh got married in India on January 2, 2002.”<br />
10. Moreover, in the affidavit of Kamaljeet Kaur referred<br />
to hereinabove, there is not a word about demand of dowry or<br />
harassment on account of dowry by the appellant.<br />
6<br />
11. We have no hesitation in holding that the first<br />
information report lodged by Balwant Singh is manifestly<br />
attended with malafides and actuated with ulterior motive. The<br />
prosecution of the appellant is not at all legitimate, rather it is<br />
frivolous, vexatious, unwarranted and abuse of process. The<br />
appellant has made out a case for quashing the first information<br />
report and all subsequent proceedings pursuant thereto.<br />
12. For the reasons indicated above, appeal is allowed<br />
and order dated May 24, 2006 passed by the High court of<br />
Punjab and Haryana is set aside. Resultantly, F.I.R. No. 9<br />
dated January 21, 2002 registered at Police Station Sehna and<br />
all subsequent proceedings pursuant thereto stand quashed<br />
and set aside.<br />
13. The pending applications stand disposed of.<br />
……………………J<br />
(Tarun Chatterjee)<br />
…….……………..J<br />
(R. M. Lodha</div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-51986879496688778202011-04-19T21:08:00.000-07:002012-08-31T21:22:27.132-07:00FIR u/s 498a ipc Quashed against relative of Husband<p>IN THE SUPREME COURT OF INDIA</p> <p>CRIMINAL APPELLATE JURISDICTION</p> <p>CRIMINAL APPEAL NO. 1745 OF 2010</p> <p>(@ SPECIAL LEAVE PETITION(CRL.) No.4758 of 2009) SUNITA JHA … APPELLANT Vs.</p> <p>STATE OF JHARKHAND & ANR. … RESPONDENTS J U D G M E N T</p> <p>ALTAMAS KABIR, J.</p> <p> </p> <p>1. Leave granted.</p> <p> </p> <p>2. This Appeal is directed against the judgment and order dated 29th April, 2009, passed by a learned Single Judge of the Jharkhand High Court in Criminal Revision No.410 of 2007 dismissing the same and affirming the order of the Trial Court rejecting the prayer of the Appellant for being discharged from the case.</p> <p> </p> <p>3. One Asha Rani Pal, the Respondent No.2 herein, filed a complaint case against her husband, Mukund Chandra Pandit, and the Appellant herein, being Complaint Case No.404 of 2005, before the Sub-Divisional Judicial Magistrate, Dumka, Jharkhand, under Section 498A IPC. The learned Magistrate by his order dated 6th February, 2006, took cognizance against the Appellant and other accused and issued process for the accused to appear before him on 5th April, 2006. Pursuant to the said order, the Appellant appeared before the learned Magistrate on 10th July, 2006, when the prosecution examined two witnesses, namely, PW.1 Kanhai Pal, father of the Respondent No.2 and PW.2 Mukti Pal. No further evidence was led by the complainant/Respondent No.2 and on 13th November, 2006, the learned Magistrate closed the pre-charge evidence and posted the case for arguments on framing of charge.</p> <p> </p> <p>4. On 9th March, 2007, the Appellant filed an application for discharge, inter alia, on the ground that the complainant had not been examined as a witness in the case. During the arguments on the said application, it was contended that the Appellant could not be made an accused under Section 498A IPC since she was not a relative of Mukund Chandra Pandit and that the allegations made against her did not make out a case of cruelty under the aforesaid Section. However, by his order dated 9th March, 2007, the learned Magistrate rejected the Appellant’s application for discharge on the ground that there was prima facie evidence for framing of charge against the accused, including the Appellant, under Section 498A IPC.</p> <p>5. Aggrieved by the said order, the Appellant moved the Jharkhand High Court at Ranchi by way of Criminal Revision No.410 of 2007. As indicated hereinabove, a learned Single Judge of the High Court by his order dated 29th April, 2009, dismissed the Revision Application on the ground that since the Appellant was living with the accused husband of the complainant, she must be deemed to have become a family member of Mukund Chandra Pandit for the purpose of Section 498A IPC.</p> <p> </p> <p>6. The case of the Appellant before us is that the High Court erred in law in holding that the Appellant became a member of the family of Mukund Chandra Pandit merely because she was living with him in his house allegedly as his wife. Mr. Gaurav Agrawal, Advocate, appearing for the Appellant, contended that Section 498A IPC was very clear as to who could be charged under the said Section. For the sake of convenience, the said Section is reproduced hereinbelow :- “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</p> <p>which may extend to three years and shall also be liable to fine.</p> <p>Explanation. – For the purpose of this section, “cruelty” means-</p> <p>(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</p> <p>(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”</p> <p>7. It will be seen from the aforesaid provisions that it is either the husband or the relative of a husband of a woman who subjects her to cruelty, who could be charged under the said Section. Such provision could not apply to a person who was not a relation of the husband when the alleged offence is said to have been committed. It was contended that the Appellant was in no way related to the husband and was not his wife as held by the High Court so as to bring her within the ambit of Section 498A IPC and the charge framed against her was, accordingly, invalid and liable to be quashed. Reliance was placed by Mr. Agrawal on the decision of this Court in U. Suvetha v. State [(2009) 6 SCC 757], wherein the aforesaid question was directly in issue. This Court took up for consideration the question as to the persons who could be charged under Section 498A IPC having particular regard to the phrase “relative of the husband” occurring in the said Section. This Court categorically held that neither a girlfriend nor a concubine is a relative of the husband within the meaning of Section 498A IPC, since they were not connected by blood or marriage to the husband.</p> <p>8. The other question which fell for determination was if a husband was living with another woman besides his wife, whether the same would amount to “cruelty” within the meaning of Section 498A. It was held that if such other woman was not connected to the husband by blood or marriage, the same would not attract the provisions of Section 498A I.P.C., although it could be an act of cruelty for the purpose of judicial separation or dissolution of marriage under the marriage laws, but could not be stretched to amount to “cruelty” under Section 498A IPC.</p> <p>9. While construing the provisions of Section 498A IPC in the given circumstances, this Court observed that Section 498A being a penal provision deserved strict construction and by no stretch of imagination would a girlfriend or even a concubine be a “relative”, which status could be conferred either by blood connection or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.</p> <p>10. Mr. Agrawal urged that the High Court had misconstrued the provisions of Section 498A vis- `-vis the Appellant in relation to the said Section and the impugned order of the High Court was, therefore, liable to be set aside along with the order of the learned Sub-Divisional Judicial Magistrate rejecting the Appellant’s prayer for discharge from the complaint case filed by Asha Rani Pal.</p> <p>11. An attempt was made on behalf of the complainant, Asha Rani Pal, to justify the order passed by the learned Magistrate as also the High Court on the ground that the Appellant must be deemed to have acquired the status of wife of Mukund Chandra Pandit by her conduct and the fact that they had been living together as husband and wife.</p> <p> </p> <p>12. We have considered the submissions made on behalf of the Appellant and the complainant wife. It may be indicated that the husband Mukund Chandra Pandit has not been made a party to these proceedings. However, having regard to the view which we are taking, his presence is not necessary for disposing of the present appeal.</p> <p>13. Section 498A IPC, as extracted hereinabove, is clear and unambiguous that only the husband or his relative could be proceeded against under the said Section for subjecting the wife to “cruelty”, which has been specially 1</p> <p>defined in the said Section in the explanation thereto. The question as to who would be a relative of the husband for the purpose of Section 498A has been considered in detail in U. Suvetha’s case (supra). We are entirely in agreement with the views expressed in the said case and we agree with the submissions made on behalf of the Appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit’s family. The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the Appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U. Suvetha’s case (supra), the same would enable the Respondent No.2 to proceed against her husband under Section 498A I.P.C. and also against the Appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C.</p> <p>14. The Appeal, therefore, succeeds and is allowed. The judgment of the learned Single Judge of the Jharkhand High Court impugned in this Appeal is set aside and the cognizance taken against the Appellant on 6th February, 2006, by the learned Sub-Divisional Judicial Magistrate, Dumka, under Section 498A IPC, is hereby quashed. …………………………………………J. (ALTAMAS KABIR)</p> <p>…………………………………………J. (A.K. PATNAIK)</p><p>www.divorce-lawyers-india.com</p><p>Email: info@divorce-lawyers-india.com<br /></p>V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-5017568492335853561.post-28998347495615246622011-04-19T20:53:00.000-07:002012-08-31T21:23:56.543-07:00Quashing of FIR under section 498a/406/34 IPCQuashing of FIR under section 498a/406/34 IPC: Supreme Court of India:<br /><br /><br />Finding of Judgment:<!--[if gte mso 9]><xml> <w:worddocument> <w:view>Normal</w:View> <w:zoom>0</w:Zoom> <w:punctuationkerning/> <w:validateagainstschemas/> <w:saveifxmlinvalid>false</w:SaveIfXMLInvalid> <w:ignoremixedcontent>false</w:IgnoreMixedContent> <w:alwaysshowplaceholdertext>false</w:AlwaysShowPlaceholderText> <w:compatibility> <w:breakwrappedtables/> <w:snaptogridincell/> <w:wraptextwithpunct/> <w:useasianbreakrules/> <w:dontgrowautofit/> </w:Compatibility> <w:browserlevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:latentstyles deflockedstate="false" latentstylecount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--><span style="font-size: 12pt; font-family: "Times New Roman"; color: red;" lang="EN">Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.<br /><br /><br /></span><!--[if gte mso 9]><xml> <w:worddocument> <w:view>Normal</w:View> <w:zoom>0</w:Zoom> <w:punctuationkerning/> <w:validateagainstschemas/> <w:saveifxmlinvalid>false</w:SaveIfXMLInvalid> <w:ignoremixedcontent>false</w:IgnoreMixedContent> <w:alwaysshowplaceholdertext>false</w:AlwaysShowPlaceholderText> <w:compatibility> <w:breakwrappedtables/> <w:snaptogridincell/> <w:wraptextwithpunct/> <w:useasianbreakrules/> <w:dontgrowautofit/> </w:Compatibility> <w:browserlevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:latentstyles deflockedstate="false" latentstylecount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--> <p><span style="" lang="EN"><span style=""> </span>It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.</span></p> <span style="font-size: 12pt; font-family: "Times New Roman";" lang="EN"><br /><br /></span><!--[if gte mso 9]><xml> <w:worddocument> <w:view>Normal</w:View> <w:zoom>0</w:Zoom> <w:punctuationkerning/> <w:validateagainstschemas/> <w:saveifxmlinvalid>false</w:SaveIfXMLInvalid> <w:ignoremixedcontent>false</w:IgnoreMixedContent> <w:alwaysshowplaceholdertext>false</w:AlwaysShowPlaceholderText> <w:compatibility> <w:breakwrappedtables/> <w:snaptogridincell/> <w:wraptextwithpunct/> <w:useasianbreakrules/> <w:dontgrowautofit/> </w:Compatibility> <w:browserlevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:latentstyles deflockedstate="false" latentstylecount="156"> </w:LatentStyles> </xml><![endif]--><!--[if !mso]><object classid="clsid:38481807-CA0E-42D2-BF39-B33AF135CC4D" id="ieooui"></object> <style> st1\:*{behavior:url(#ieooui) } </style> <![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--> <p class="MsoNormal"><span style="" lang="EN">Supreme Court of India</span></p> <p class="MsoNormal"><strong><span style="" lang="EN">Bench:</span></strong><span style="" lang="EN"> G Singhvi, A K Ganguly</span></p> <p><span style="" lang="EN">IN THE SUPREME COURT OF INDIA</span></p> <p><span style="" lang="EN">CRIMINAL APPELLATE JURISDICTION</span></p> <p><span style="" lang="EN">CRIMINAL APPEAL NO. 1512 OF 2010</span></p> <p><span style="" lang="EN">(Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus</span></p> <p><span style="" lang="EN">State of Jharkhand & Another ….Respondents JUDGMENT</span></p> <p><span style="" lang="EN">Dalveer Bhandari, J.</span></p> <p><span style="" lang="EN">1. Leave granted.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:</span></p> <p><span style="" lang="EN">The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.</span></p> <p><span style="" lang="EN">4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.</span></p> <p><span style="" lang="EN">6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.</span></p> <p><span style="" lang="EN">7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.</span></p> <p><span style="" lang="EN">8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offence could be made out against them.</span></p> <p><span style="" lang="EN">9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:</span></p> <p><span style="" lang="EN">“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”</span></p> <p><span style="" lang="EN">10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.</span></p> <p><span style="" lang="EN">11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.</span></p> <p><span style="" lang="EN">12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.</span></p> <p><span style="" lang="EN">13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their re- settlement may not be impossible.</span></p> <p><span style="" lang="EN">14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?</span></p> <p><span style="" lang="EN">15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.</span></p> <p><span style="" lang="EN">16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">17. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.</span></p> <p><span style="" lang="EN">18. This court had occasion to examine the legal position in a large number of cases. <a href="http://indiankanoon.org/doc/173865/">In R.P. Kapur v. State of Punjab AIR</a> 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:</span></p> <p><span style="" lang="EN">(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;</span></p> <p><span style="" lang="EN">(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;</span></p> <p><span style="" lang="EN">(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.</span></p> <p><span style="" lang="EN">19. This court in <a href="http://indiankanoon.org/doc/548497/">State of Karnataka v. L. Muniswamy &</a>amp; Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.</span></p> <p><span style="" lang="EN">20. <a href="http://indiankanoon.org/doc/646292/">In Madhu Limaye v. The State of Maharashtra</a> (1977) 4 SCC 551, a three-Judge Bench of this court held as under:- “…..In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:</span></p> <p><span style="" lang="EN">“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”</span></p> <p><span style="" lang="EN">22. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) 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 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that 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 to myriad kinds of cases wherein such power should be exercised:</span></p> <p><span style="" lang="EN">“(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.</span></p> <p><span style="" lang="EN">(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.</span></p> <p><span style="" lang="EN">(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.</span></p> <p><span style="" lang="EN">(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.</span></p> <p><span style="" lang="EN">(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.</span></p> <p><span style="" lang="EN">(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.</span></p> <p><span style="" lang="EN">(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.”</span></p> <p><span style="" lang="EN">23. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.</span></p> <p><span style="" lang="EN">24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-</span></p> <p><span style="" lang="EN">“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”</span></p> <p><span style="" lang="EN">25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in <a href="http://indiankanoon.org/doc/693610/">Inder Mohan Goswami and Another v. State of Uttaranchal &</a>amp; Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-</span></p> <p><span style="" lang="EN">“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”</span></p> <p><span style="" lang="EN">26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.</span></p> <p><span style="" lang="EN">27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband.<span style="color: red;"> Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.</span></span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.</span></p> <p><span style="" lang="EN">29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-</span></p> <p><span style="" lang="EN">“498-A. 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 purposes of this section, `cruelty’ means:-</span></p> <p><span style="" lang="EN">(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</span></p> <p><span style="" lang="EN">(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”</span></p> <p><span style="" lang="EN">30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.</span></p> <p><span style="" lang="EN">31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.</span></p> <p><span style="" lang="EN">32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.</span></p> <p><span style="" lang="EN">33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.</span></p> <p><span style="" lang="EN">35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. <span style="color: red;">It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.</span></span></p> <p><span style="" lang="EN">36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.</span></p> <p><span style="" lang="EN">……………………………J.</span></p> <p><span style="" lang="EN">(Dalveer Bhandari)</span></p> <p><span style="" lang="EN">……………………………J.</span></p> <p><span style="" lang="EN">(K.S. Radhakrishnan)</span></p> <p><span style="" lang="EN">New Delhi</span><span style="" lang="EN">;</span></p> <p><span style="" lang="EN">August 13, 2010</span></p> <p class="MsoNormal"> </p> www.divorce-lawyers-india.com<br />Email : info@divorce-lawyers-india.com<br />Phone : +91-11-22022079<br /><span style="font-size: 12pt; font-family: "Times New Roman";" lang="EN"><br /></span>V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0