Supreme Court of India
Vishnu Kumar Tiwari vs The State Of Uttar Pradesh on 9 July, 2019
Author: K.M. Joseph
Bench: Sanjay Kishan Kaul, K.M. Joseph
                                                                    REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO. 1015 OF 2019
                           (Arising out of SLP (Crl.) No.9654 of 2017)


          VISHNU KUMAR TIWARI                            ...   APPELLANT(S)


                                              VERSUS

          STATE OF UTTAR PRADESH THROUGH
          SECRETARY HOME, CIVIL SECRETARIAT
          LUCKNOW AND ANOTHER                              ... RESPONDENT(S)


                                         J U D G M E N T

K.M. JOSEPH, J.

1. The second respondent, in this appeal generated by special leave, got registered a First Information Report which invoked Sections 201304B and 498A of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’ for short) and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Briefly, the contents of the complaint are as follows Signature Not Verified The appellant married the second respondent’s daughter Digitally signed by NEELAM GULATI Date: 2019.07.17 16:21:34 IST Reason:

on 22.04.2004. The father of the appellant made a demand for an Alto car and Rs. 2 lakhs for admission of Vishnu in B.Ed. He did not accept the demand for dowry, and even at the time of marriage, he made a demand of Rs. 4 lakhs. There is reference to his daughter informing her mother that her mother-in-law, father-in-law, husband, brother-in-law and sister-in-law used to beat her and torture her to bring dowry. There is reference to telephone call that his daughter was critical. It was made on 08.09.2010 and when they reached there, the daughter was not there. Upon insisting, the mother-in-law of second respondent’s daughter told them that they had taken her somewhere to some hospital. Search was made at many hospitals but the daughter could not be found. Thereafter, they found that the daughter had died. Reference was made to the demand for dowry by appellant and father-in-law, mother-in-law, brother-in-law and sister-in-law of the second respondent’s daughter and that they have killed his daughter. It would appear that on the basis of the same, Crime No. 721 of 2007 was registered. The Investigating Officer, however, on  the basis of the investigation, after taking the statements, filed a final report under Section 178 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.PC.’ for short).

2. The second respondent thereupon filed a protest petition. The Chief Judicial Magistrate passed an order concluding that the daughter of the second respondent/complainant, wife of the appellant, died due to her illness. It was further found that the accused persons had not caused any harassment or torture to her nor has committed dowry death. There was no prima facie case made out against the accused persons under Section 498A304B and 201of the IPC and Sections 3 and 4 of the Dowry Prohibition Act,1961. It was found that there is no sufficient ground made out for action and the protest petition was dismissed and final report accepted.

3. The second respondent thereupon lodged revision petition before the Additional Sessions Judge. The Additional Sessions Judge did not find merit and dismissed the criminal application. This led to a writ petition before the High Court at Allahabad. This petition was filed invoking Article 226 of the Constitution of India. A Writ of Certiorari was sought to quash the impugned order passed by the Additional Sessions Judge and the order passed by the Chief Judicial Magistrate. A further direction was sought to be passed to investigate the case by taking statements of victim’s family and other witnesses and submit a report before the Chief Judicial Magistrate. Direction was sought to the Chief Judicial Magistrate for looking into the matter afresh for taking cognizance against the accused persons in the case.

4. By the impugned judgment, the High Court set aside the orders passed by the Chief Judicial Magistrate and the Additional Sessions Judge. The Chief Judicial Magistrate was directed to consider the protest petition afresh in the light of the observations made therein. Feeling aggrieved by the said order, the special leave petition was filed, for which permission was sought and was granted by order dated 04.12.2017.

5. We have heard the learned Counsel for the parties and granted leave in the matter.

6. The learned Senior Counsel for the appellant would point out that the High Court has not noticed that the Chief Judicial Magistrate has in fact considered the protest petition. He makes the complaint in the light of the following findings recorded by the High Court:

“11. In the light of above law, I am of the opinion that, if the protest petition was submitted by the petitioner against the final report submitted by the police, then it was the duty of the learned Magistrate to go through the protest petition and if there was any substance in the protest petition then he may took cognizance under Section 190(1)(b) of Cr.P.C.

12. The perusal of the record of learned Magistrate disclose that he has not taken into consideration the protest petition of the petitioner. Since there was a protest petition that is why it was the pious duty of the learned CJM to consider the facts mentioned in the protest petition and to decide it according to law.”

7. The order passed by the Chief Judicial Magistrate shows that there is consideration of the protest petition. Neither the Chief Judicial Magistrate nor the Additional Sessions Judge have failed to apply the correct principles of law. In this regard, it is apposite to notice the following observations made in the impugned judgment of the High Court:

“10. In the case 2001 (43) ACC 1096 Pakhando & others Vs State of UP & another, it is opined by the Court that in the case of final report the Magistrate has four options:- (1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.

(2) He may take cognizance under Section 190(1)(b) Cr.P.C. and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.

(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.

(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) Cr.P.C. upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter whether complaint should be dismissed or process should be issued.”

8. He would emphasise that it is a case where the late wife of the appellant/daughter of the second respondent had died a natural death. There is a case for the appellant that the marriage was solemnized in the year 2004. It was after some time that the wife of the appellant conceived and the child was delivered. It is further the case of the appellant that unfortunately illness struck the daughter of the second respondent. Treatment was afforded and, as found by the Chief Judicial Magistrate, the complainant’s daughter died due to her illness. There was no case made out for interfering with the orders impugned before the High Court.

9. Per contra, the learned counsel appearing on behalf of the second respondent/complainant drew our attention to the death certificate issued by Priti Hospital:

“DEATH CERTIFICATE This is to certify that Patient Smt. Jaya Tiwari aged about 31 year, female W/o. Shri Vishnu Tiwari. R/o Village Saorai, Saifabad, Patti Pratapgarh U.P. Who was admitted in this Trust on 09.10.07 at 10.29 P.M. as a case of septicaemia c respiratory distress under Doctor A. Gupta has expired on 10.10.2007 at 8.00 A.M. due to cardio pulmonary arrest.”

10. He would point out that on the one hand, there is reference to the case of the daughter of the complainant being one of septicaemia c respiratory distress but it is also stated that the daughter of the second respondent/complainant died due to cardio pulmonary arrest. This raised questions which are not dealt with by the orders impugned before the High Court.

11. He also referred to the statements given by the witness to contend that there was material which should have persuaded the Chief Judicial Magistrate to treat the protest petition as a complaint and the matter should have been proceeded on the said basis.

12. The court put a question to the appellant as to why the Additional Sessions Judge has found that there is prima facie no case made under Section 304B and 201 of the IPC against the accused persons by the Chief Judicial Magistrate but why there is no reference to Section 498A of IPC. The learned counsel drew our attention to the order passed by the Additional Sessions Judge and contended that the second respondent/complainant did not press the case under Section 498A of the IPC. The contention was confined to Section 304Band 201 of the IPC.

A LOOK AT WHAT THIS COURT SPOKE IN THE MATTER

13. In Abhinandan Jha and others v. Dinesh Mishra 1 , the question arose as to whether when a report is submitted that there is no material that any case is made out for sending the accused for trial, the Magistrate can direct the police to submit a charge-sheet. This Court took the view that the Magistrate cannot compel the Police to change their opinion. However, it was held that the Magistrate is free to not accept such report and he may take suitable action. The Magistrate may direct further investigation under Section 156 (3) of the Code. It was further held that it would be in a case where the Magistrate feels that the investigation is unsatisfactory or incomplete. It may be also in a case where there is scope for further investigation.

1 AIR 1968 SC 117 / (1967) 3 SCR 668

14. It may not be inapposite that we refer to the following discussion by this Court in Abhinandan Jha (supra) as to what is a final report:

“13. It will be seen that the Code, as such, does not use the expression ‘charge-sheet’ or ‘final report’. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a ‘charge-sheet’. But in respect of the reports sent under Section 169 i.e. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either ‘referred charge’, ‘final report’, or ‘summary’.”

15. In H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) 2 , the Police submitted a final report. However, the Magistrate disagreed with the conclusion of the Police and directed issue of process upon taking cognizance of the case. A contention was taken that the Magistrate acted illegally in not recording statements on oath of the complainant and the witnesses under Section 200 of the Code and the Magistrate must, therefore, be treated as having taken cognizance upon the Police report for which he was not competent as it was not a report under Section 173, but a final report within the meaning of Section 169. It was contended that the Magistrate had only two options before him – (i) he could either order further investigation. (ii) He could also take cognizance as upon a complaint but for the same the statements of the complainant and witnesses had to be recorded.

16. This Court in the course of its judgment in H.S. Bains (supra), held as follows:

“6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200.

Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section

204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the 2 (1980) 4 SCC 631 purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 of the Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding  under Sections 200203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.” (Emphasis supplied)

17. Thus, when he proceeds to take action by way of cognizance by disagreeing with the conclusions arrived at in the police report, he would be taking cognizance on the basis of the police report and not on the complaint. And, therefore, the question of examining the complainant or his witnesses under Section 200 of the Code would not arise. This was the view clearly enunciated.

18. In Mahesh Chand v. B. Janardhan Reddy 3 , the appellant/complainant had lodged report alleging commission of offences by the respondent. Subsequently, being dissatisfied with the investigation, he filed a criminal complaint in the court of the Magistrate. In the meantime, the Investigating Officer filed a final report finding that the controversy was of a civil nature. The appellant filed a protest petition. The final report was accepted by the Magistrate. The complaint case filed by the appellant was also closed. It became final. The appellant filed a third complaint, as it were, under Section 200 of the Code. On summons being issued, it was successfully questioned before the High Court. We may notice the following discussion by this Court profitably.

“12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.

3   (2003) 1 SCC 734


      xxx           xxx           xxx

16. In Munilal Thakur case [1985 Cri LJ 437:1984 Pat LJR 774] the Division Bench of the Patna High Court was concerned with the question as to whether a Magistrate even after accepting final report filed by the police, can take cognizance of offence upon a complaint or the protest petition on same or similar allegations of fact; to which the answer was rendered in the affirmative.

17. The question which has arisen for consideration herein neither arose therein nor was canvassed.

18. In Jayashankar Mund case [1989 Cri LJ 1578 : (1989) 67 Cut LT 426] the Orissa High Court again did not have any occasion to consider the question raised herein. The Court held: (Cri LJ pp. 1582-83, para 6) “Even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation underSection 202 of the Code, thereby no illegality or prejudice was caused to the accused. If such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in  continuation and in respect of the case instituted and investigated by the vigilance police.”

19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case [AIR 1962 SC 876 : 1962 Supp (2) SCR 297 : (1962) 1 Cri LJ 770] second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not.” (Emphasis supplied)

19. In Gangadhar Janardan Mhatre v. State of Maharashtra4, this Court reiterated that Magistrate can, faced with a final report, independently apply his mind to the facts emerging from investigation and take cognizance under Section 190 (1)(b), and in this regard, is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance under Section 190(1)(b). It was, however, open to the Magistrate to do so.

20. In regard to the filing of protest petition by the informant who filed the First Information Report, it is important to notice the following discussion by this Court:

“6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537:1985 SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows: (SCC p. 542, para 4) 4 (2004) 7 SCC 768  “There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) ofSection 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.”

9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case  under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka[(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR 1989 SC 885] .] The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.” (Emphasis supplied)

21. This Court, in Gangadhar Janardan Mhatre (supra), also stressed on the need to issue notice to the informant in the following discussion:

“12. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] the right is conferred on the informant and none else.” (Emphasis supplied)

22. In Kishore Kumar Gyanchandani v. G.D. Mehrotra 5 , a First Information Report was lodged in respect of certain offences. The Police filed a final report which came to be accepted. Nearly three months thereafter, a protest petition was filed. The Magistrate directed the same to be considered as a complaint. He held an inquiry under Section 202 of the Code and proceeded to take cognizance. Paragraph 4 is relevant and it reads as follows:

“4. There is some controversy between the parties that before accepting the final form by the Magistrate on 27-1-1996 notice had been served on the complainant and the complainant did not file objections, whereas the case of the complainant is that he had not received any notice from the Court. Be that as it may, we are not entering into that 5(2011) 15 SCC 513  controversy for deciding the present case as in our view it is not material either way nor does it oust the jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the accused even if he had already accepted the final form, the same having been filed by the police.”

23. In fact, the case itself was decided by a Bench of three learned Judges of this Court in view of the divergence of opinion in the Court. The Court held as follows:

“6. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha[(1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final  form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.” (Emphasis supplied) This Court found that the High Court was in error in interfering with the cognizance taken by the Magistrate.

24. In Rakesh Kumar and another v. State of Uttar Pradesh and another6, on the basis of a First Information Report lodged by the Police after investigation, a final report came to be filed. The Magistrate accepted the final report. He, simultaneously, directed the case be proceeded with as a complaint case. Statements under Section 200 and 202 of the Code were recorded. The High Court turned down the plea of the accused to whom summons were issued. It was the contention of the accused that having accepted a negative final report, the court could not take action on the basis of the protest petition filed by the complainant. This Court refers to the judgment in H.S. Bains (supra). The principles of law laid down in paragraph 12 of Mahesh Chand (supra), 6 2014 (13) SCC 133 which we have also referred to earlier, came to be approved. The order of the High Court was approved.

25. This is a case where following the First Information Report, the Investigating Officer conducted an investigation. Statements were taken from the complainant, his wife and his son. This is apart from the statements which were taken from the Doctors who treated the daughter of the second respondent/complainant. The Investigation Officer concluded that there is no material which would warrant the accused being sent for trial. When such a report is filed before the court, it is beyond the shade of doubt that the Magistrate may still choose to reject the final report and proceed to take cognizance of the offences, which in his view, are seen committed. He may, on the other hand, after pondering over the materials, which would include the statements of witnesses collected by the Investigating Officer, decide to accept the final report. He may entertain the view that it is a case where further investigation by the Officer is warranted before a decision is taken as to whether cognizance is to be taken or not.

26. It is undoubtedly true that before a Magistrate proceeds to accept a final report under Section 173 and exonerate the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the Investigating Officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, finally decide the future course of action to be, whether to continue with the matter or to bring the curtains down.

27. In this case, the High Court proceeded on the basis, as we have noticed, that the Magistrate has not taken into consideration the protest petition and it was his pious duty to consider the facts mentioned in the petition. We have examined the order passed by the Magistrate. He does refer to the protest petition. The contents therein are undoubtedly noticed. Magistrate says that he has gone through the First Information Report. He finds that the complainant is not an eyewitness in regard to the death of his daughter. He recorded that he has gone through the statements of witnesses given under Section 161. We may notice that the following findings were entered in regard to the case of torture committed against the complainant’s daughter:

“… First of all I have gone through the statement of Sh Shiv Shankar Ojha who is complainant in this case. Although this witness has partly favoured the incident but here it is pertinent to mention that at the time of death of deceased Jaya, this witness was not present. When it was asked from this witness that whether after you received information of torture committed to you daughter, you had made any application anywhere or you had informed this through any relation etc. In reply to this question, he has stated that ‘no’. I have also duly gone through the statement of Smt. Shakuntala Devi mother of deceased. Mother of deceased has given statement to the investigating officer that my son in law is working in Haryana in a private job.”

28. Thereafter, he referred to the statement of the mother and brother of the deceased. He refers to the statements of the Doctors. The Doctors concluded that the deceased died due to her illness. One of the Doctors have stated that the mother of the patient Smt. Shakuntala had signed the admission form. The patient was examined. The patient had delivered a child two months ago by caesarean operation. She was suffering from fever. She was breathing rapidly. Her body was suffering from jaundice. She was in need of respiratory support machine. The disease of the patient was septic shock and multiple organ failure. She died on 08.10.2017. The death was found to be due to her illness.

29. The Chief Judicial Magistrate, in fact, proceeded to take the view that Magistrate has to take cognizance on the basis of the statements of the witnesses recorded by the Investigating Officer and materials collected. He further finds that if cognizance is taken on the basis of protest petition and documents annexed, that is illegal. It is after that it was found that the deceased died due to her illness and no prima facie case was made out against the accused persons.

30. We may notice that against the order of the Chief Judicial Magistrate and Additional Sessions Judge, the second respondent has invoked jurisdiction under Article 226 of the Constitution of India. The relief sought in the writ petition is one of certiorari to quash the orders. We may indicate that in Radhey Shyam & another v. Chhabi Nath & others7 , this Court, after overruling the judgment of this Court in Surya Dev Rai v. Ram Chander Rai & others8 in this regard, it has been laid down that a Writ of Certiorari will not lie to quash an order of a civil court. The High Court while exercising powers under Article 226 of the Constitution of India, at any rate, must bear in mind the limited nature of its jurisdiction when it deals with orders of subordinate courts.

31. In the facts of this case, the High Court concluded that the Magistrate has not considered the protest petition by the second respondent/complainant. Had it been the case where protest petition had not been considered at all, it may have been open to the court to came to the conclusion 7 (2015) 5 SCC 423 8 (2003)6 SCC 675 that an illegality had been committed in exercise of its jurisdiction to deal with the final report. But it is another matter when the Magistrate has undoubtedly considered the protest petition to direct the court again to consider the matter for action on the same, and for that purpose, to set aside the proceedings.

32. We would think that, as noticed by us, the High Court was in clear error in concluding that the protest petition was not considered. That the High Court may take one of the two views of the matter may be an unsafe premise for its interference with the orders passed by the Magistrate, as affirmed by the Additional Sessions Judge.

33. On the basis of the materials which include the statements of the Doctors and after adverting to the contentions of the protest petition, the Magistrate has come to the conclusion that it is not a fit case for being continued and the matter should end as the daughter of the second respondent/complainant died due to illness. It is a finding which is arrived at by the court with reference to the statements of the medical practitioners. Equally, in the circumstances which led to the unfortunate death of the daughter of the second respondent/complainant, it is found no case was made out under Section 201 of the IPC. It would appear that before the Sessions Judge, the aspect relating to Section 498A or in fact the provisions relating to Sections 3 and 4 of the Dowry Prohibition Act, 1961, was not pressed by the second respondent. That apart, we also notice that Magistrate has referred to the statement of the complainant that there was no complaint made about the torture apparently based on dowry demand as alleged.

34. We have also gone through the protest petition along with the counter affidavit. No doubt, in paragraph 2, there is a general reference to demands for property from the deceased and father of the deceased and torture. Paragraphs 3 to 15 thereafter relate to the circumstances relating to the death of the daughter of the second respondent. In the said paragraphs, the case is sought to be made out that forged documents were produced before the Investigating Officer. Affidavits of the mother and brother of the deceased, inter alia, were also filed to project the case of forgery. For instance, in the affidavit of the mother of the deceased, she claims that she has not gone to the hospital on the 9th and 10th of October, 2007, whereas, according to the statement under Section 161 of the Code, she is alleged to have stated that on 09.10.2007, the deceased was admitted at Priti Hospital by them which apparently includes the mother. We have noticed that in regard to that no doubt the Chief Judicial Magistrate has relied upon judgment in Mohammed Yusuf and others v. State of Uttar Pradesh and others 9 and taken the view that if cognizance is taken on the basis of the protest petition and the documents annexed with, that is illegal. He also took the view that the Magistrate has to take cognizance on the basis of statements of witnesses recorded by the Investigating Officer, in the case diary and the material collected during investigation.

35. A learned Single Judge of the High Court of Allahabad, in the aforesaid decision, had this to say in paragraph 11: 9 2008 CriLJ 493  “11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C. the impugned order is vitiated.” (Emphasis supplied)

36. The Chief Judicial Magistrate has adhered to the law laid down by the learned Single Judge. In fact, we may notice that in regard to this aspect, if the learned Single Judge, who has rendered the impugned judgment in this case, had a different view, he ought to have referred the matter to a larger Bench.

37. In H.S. Bains (supra), there was a private complaint within the meaning of Section 190(1)(a) of the Code. The matter was referred to the Police under Section 156(3). The Investigating Officer filed a final report. Therein, the court took the view that apart from the power of the Magistrate to take cognizance notwithstanding the final report, under Section 190(1)(b), he could also fall back upon the private complaint which was initially lodged but after examining the complainant and his witnesses, as contemplated under Sections 200 and 202 of the Code. In regard to taking cognizance under Section 190(1)(b) of the Code of a final report, undoubtedly, it is not necessary to examine the complainant or his witnesses though he may do so.

38. In Mahesh Chand (supra), no doubt the matter was commenced by a First Information Report and followed up by the complainant in the court under Section 190(1)(a) of the Code. On the First Information Report, after investigation, a final report was filed. The final report came to be accepted and it was closed. This is despite the fact that there was the protest petition. A third complaint, as it were, came to be filed by the complainant. This Court went on to hold that acceptance of the final report would not stand in the way of taking cognizance on a protest/complaint petition.

39. In Kishore Kumar Gyanchandani (supra), after the final report was accepted on a protest petition which was treated as a complaint, evidence was taken within the meaning of Section 200 of the Code.

40. In Rakesh Kumar (supra), the final report was filed which was accepted by the Magistrate but he simultaneously directed the case to be proceeded as a complaint case and statements under Sections 200 and 202 of the Code came to be recorded.

41. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements underSection 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.

42. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State10, a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim and others v. The State and others11, 10 AIR 1958 Ori. 11 11 1984 CrlLJ 1677 a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows:

“4. … In the case of Abhinandan Jha MANU/SC/0054/1967 (supra) also what was observed was ‘it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.’ This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made underSection 200 Cr.P.C. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate’s attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.”

43. We may also notice that in Veerappa and others v. Bhimareddappa12, the High Court of Karnataka observed as follows:

“9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200of the Cr. P.C., but, has approached the police only and where the police after investigation have filed the ‘B’ report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C. on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Cr. P.C., and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) of the Cr. P.C. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 of the Cr. P.C.”

44. Complaint is defined in Section 2(d) of the Code as follows:

“(d) ” complaint” means any allegation made orally or in writing to a Magistrate, with a 12 2002 CriLJ 2150 (Karnataka)  view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.

46. This brings us to one aspect of the matter which in fact was not argued at the Bar. The appeal is filed by the husband of the deceased, by special leave and permission. The allegations in the First Information Report are raised against the other relatives of the appellants, viz., his parents and in-laws and his siblings also. They have not challenged the order of the High Court. Allegations are made in respect of offences as committed by them also.

47. In this regard, we may notice, one facet. The Chief Judicial Magistrate accepted the final report and decided not to proceed against any of the accused including the appellant. This stood confirmed by the Additional Sessions Judge. Before the High court, neither the appellant nor any of his relatives were made parties. When the order was passed by the High Court accepting the report and directing reconsideration, was it necessary for the second respondent/complainant to implead the appellant and other relatives? Can we set aside the judgment of the High Court qua only the appellant, or can we in the facts in this case, also interfere with the order of the High Court against all the accused?

48. It may be true that till process is issued, the accused may not have the right to be heard (See the judgment of this court in Iris Computers Limited v. Askari Infotech Private Limitedand others13).

49. The High Court, in fact, at paragraph 11 of the impugned order, which we have extracted at paragraph 6 of our judgment, contemplated consideration of the protest petition so that cognizance may be taken under Section 190(1)(b) of the Code. This premise being without any basis even qua the other accused who are the relatives of the appellant, we would think that the impugned order must be set aside. Having regard to the nature of the allegations and in exercise of our powers also under Article 142 of the Constitution of India, we must set aside the Order of the High Court.

50. We would think that in the facts of this case, the High Court erred in intervening and that there was no 13 (2015) 14 SCC 399 justification in the facts for the High Court in setting aside the orders.

51. Resultantly, the appeal will stand allowed, the impugned order of the High Court will stand set aside. We, however, make it clear that this would be without prejudice to the rights of the second respondent to file a complaint as already noticed in the order of the Additional Sessions Judge.

………………J.

(SANJAY KISHAN KAUL) ………………J.

(K.M. JOSEPH) New Delhi, July 09, 2019.

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Allahabad High Court
Babu Lal And 5 Others vs State Of U.P. And Another on 11 July, 2019
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 

 
Case :- CRIMINAL REVISION No. - 1033 of 2018
 

 
Revisionist :- Babu Lal And 5 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Manvendra Singh
 
Counsel for Opposite Party :- G.A.,Rajpal Singh
 

 
Hon'ble Ramesh Sinha,J.

Heard Sri Manvendra Singh, learned counsel for the revisionists, Sri Rajpal Singh, learned counsel for the opposite party and Sri Amrit Raj Chaurasiya, learned A.G.A. for the State.

The present revision has been preferred against the judgment and order dated 22.3.2018 passed by Additional Civil Judge (J.D.)/Judicial Magistrate, Court No. 13, Fatehpur in Complaint Case No. 222 of 2012, Manjoo Devi vs. Shiv Karan and others, under Sections 498-A323506 I.P.C. and Section 3/4 of D.P. Act.

Learned counsel for the revisionists submits that the husband of respondent No. 2 Shiv Karan is facing trial and so far as the applicant are concerned they are the family members of the husband of opposite party No. 2 and the discharge application has been filed against the applicants which was rejected by the Court below, hence, this revision. There are general allegations against the revisionists.

Learned counsel for the opposite party No. 2 opposed the prayer of the revisionists and states that the opposite party No. 2 was tortured by her husband and his family members.

After having very carefully examined, the submissions made by the learned counsel for the parties and perused the material brought on record, I find that so far as applicant no.1 and 2, namely, Babu Lal and Smt. Rajpati are concerned, there is no justification for quashing the impugned order and prosecution of the aforementioned case.

The prayer to that extent on behalf of applicant no. 1 and 2 is hereby refused.

So far as applicant nos. 2 to 6 are concerned, it has been contended by learned counsel for the applicants that they are the real unmarried, sisters, brother and cousin of applicant no.1 and the allegation levelled against them are wholly vague and no specific allegation has been levelled against them. Learned counsel for the applicant has placed reliance on the judgment of the Apex Court in the case of Geeta Mehrotra vs. State of U.P. and othersreported in 2012 (10) ADJ 464 and has drawn the attention of the Court towards paragraphs 17, 19, 20, 21 and 24 of the following judgments. The said paragraphs are quoted hereinbelow:-

“17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the Magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”

The view taken by the judges in this matter was that the courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.

24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

The learned A.G.A. as well as learned counsel for the complainant tried to justify the summoning order passed against the applicant nos.2 to 6 also but they could not dispute that only bald allegation have been levelled against them.

Considered the submissions of learned counsel for the parties.

From a perusal of the complaint as well as the statements of the complainant and its witnesses recorded under Sections 200 Cr.P.C. and 202 Cr.P.C., it is apparent that except bald allegation levelled against the applicant nos. 2 to 6, who are the family members of applicant no.1 and 2. There is no active participation of the aforesaid applicants in the harassing of the wife-opposite party no.2 for want of dowry.

The contention of the learned counsel for the applicants find support from the judgment of the Apex Court in the case of Geeta Mehrotra (Supra) that the applicant nos. 2 to 6 are being harassed by opposite party no.2 with malafide intention simply because they are the family members of her husband. Hence so far as applicant nos. 2 to 6, are concerned, the impugned order as far as it related to revisionist Nos. 2 to 6 is bad in the eyes of law and the same is hereby quashed with regard to revisionist No. 2 to 6 along with the proceeding of the aforesaid case is quashed against them.

The criminal revision stands partly allowed.

Order Date :- 11.7.2019 Kamarjahan

 

Supreme Court of India
Amir Hamza Shaikh vs The State Of Maharashtra on 7 August, 2019
Author: Hemant Gupta
Bench: L. Nageswara Rao, Hemant Gupta
                                                                  REPORTABLE

                          IN THE SUPREME COURT OF INDIA

                          CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO. 1217 OF 2019
           (ARISING OUT OF SLP (CRIMINAL) NO. 3202 OF 2019)


AMIR HAMZA SHAIKH & ORS.                                        .....APPELLANT(S)

                                            VERSUS

STATE OF MAHARASHTRA & ANR.                                   .....RESPONDENT(S)



                                JUDGMENT

HEMANT GUPTA, J.

1)       Leave granted.


2)       The challenge in the present appeal is to an order passed by the

High Court of judicature at Bombay on November 27, 2018 whereby an order passed by the Magistrate declining permission to respondent No. 2 to prosecute the appellants-accused for the offences punishable under Sections 498A406 read with Section 34 of Indian Penal Code, 18601, was allowed.

3) The respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 19732 for the aforesaid offences. The learned Magistrate declined permission without giving any reason but the 1 for short, ‘IPC’ 2 for short, ‘Code’.

High Court considered the judgments on the subject and granted permission to conduct prosecution only for the reason that the application has been made by an aggrieved party.

4) Learned counsel for the appellants argued that the High Court is not required to give permission to prosecute mechanically only for the reason that such permission is sought by an aggrieved party. It is contended that the prosecution is to be conducted by a Public Prosecutor who is an officer of the Court and required to assist the Court to do justice rather than to be vindictive and take side with any of the parties. If the party is allowed to proceed to take over the investigation, the avowed object of fairness in the criminal justice dispensation system shall be shaken.

5) The present Section 302 of the Code is similar to Section 495 of the Code of Criminal Procedure, 1898. Section 302 of the Code reads as under:

“Permission to conduct prosecution. – (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

6) It may be noticed that under Section 301 of the Code, the Public Prosecutor may appear and plead without any authority before any  Court in which that case is under inquiry, trial or appeal and any person may instruct a pleader who shall act under the directions of the Public Prosecutor and may with the permission of the Court submit written submissions.

7) A Division Bench of Kerala High Court in Babu v. State of Kerala3 examined as to when permission should be granted. The Court held as under:

“3. …In Subhash Chandran v. State of Kerala 1981 KLT Case No. 125 a learned Jude of this Court held:

Whether permission should be granted or not is a matter left to the discretion of the Court, the discretion being used in a judicial manner. It is true that the petitioner as the son of the deceased and as a person who has a right to make out that there was rashness and negligence on the part of the accused and claim damages from him may be interested in the prosecution. But that fact is not by itself a ground for permitting him to conduct the prosecution in the place of the Assistant Public Prosecutor who is in charge of the case. It is settled law that where a cognisable offence is committed and a prosecution is launched by the State it is for the Public Prosecutor to attend to the prosecution. The object of a criminal prosecution is not to vindicate the grievances of a private person.

4. Under Section 301, a Pleader engaged by a private person can assist the Public Prosecutor or the Assistant Public Prosecutor as the case may be in the conduct of the prosecution while under Section 302 the Magistrate may permit the prosecution itself to be conducted by any person or by a pleader instructed by him. The distinction is when permission under Section 302 is given the Public Prosecutor or the Assistant Public Prosecutor as the case may be disappears from the scene and the pleader engaged by the person who will invariably be the de facto complainant will be in full charge of the prosecution.………………This does not 3 1984 CriLJ 499  mean that permission cannot at all be granted under Section 302. Under very exceptional circumstances permission can be granted under Section 302.

Otherwise, there is no reason why the provision is there in the Code. But that is to be done only in cases where the circumstances are such that a denial of permission under Section 302 will stand in the way of meeting out, justice in the case. A mere apprehension of a party that the Public Prosecutor will not be serious in conducting the prosecution simply because a conviction or an acquittal in the case will affect another case pending will not by itself be enough. At the same time, if the apprehension of the party is going to materialise the court can pending the trial, grant permission under Section 302 even if a request for permission was rejected at the outset.”

8) This Court in Shiv Kumar v. Hukam Chand & Anr.4 has examined the distinction between the scope of Section 301 and 302 of the Code. It has been held that Section 302 of the Code is applicable in respect of the offences triable by Magistrate. It enables the Magistrate to permit any person to conduct the prosecution whereas in terms of Section 301 of the Code, any private person may instruct a pleader to act under the directions of the Public Prosecutor or Assistant Public Prosecutor in any trial before any court and to submit written arguments after the close of the evidence. This Court held as under:

“12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code.

Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words “any court” in Section

301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as 4 (1999) 7 SCC 467  applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub- section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution “under the directions of the Public Prosecutor”. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.

13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.”

9) In a three Judge Bench of this Court in J.K. International v. State (Govt. of NCT of Delhi) & Ors.5, where offences under Sections 420406 and 120-B IPC were investigated and charge sheet filed 5 (2001) 3 SCC 462 on the basis of complaint of the appellant, the accused filed a petition for quashing of the charges in which the complainant wanted to be heard. The Public Prosecutor filed an application before the Magistrate for amending the charge for incorporating two more offences which were exclusively triable by the Court of Sessions. The Magistrate dismissed the application but the said order was not challenged by the prosecution. It was held that the scheme in the Code indicates that the person who is aggrieved by the offence committed is not altogether wiped out from the scene of the trial merely because the investigation was taken over by the police. This Court while considering the provisions of sub-section (2) of Section 301 and Section 302, held as under:

“9. The scheme envisaged in the Code of Criminal Procedure indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. This can be discerned from Section 301(2) of the Code which reads thus:

“301. (2) If in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the court, submit written  arguments after the evidence is closed in the case.”

10. The said provision falls within the Chapter titled “General Provisions as to Inquiries and Trials”. When such a role is permitted to be played by a private person, though it is a limited role, even in the Sessions Courts, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal court merely because the case was charge-sheeted by the police. It has to be stated further, that the court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. If he submits any such written arguments the court has a duty to consider such arguments before taking a decision.

11. In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the court. In this context it is appropriate to mention that when the trial is before a Magistrate’s Court the scope of any other private person intending to participate in the conduct of the prosecution is still wider… xx xx xx

12. The private person who is permitted to conduct prosecution in the Magistrate’s Court can engage a counsel to do the needful in the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Of course, this wider amplitude is limited to Magistrates’ Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much  restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.”

10) Both the aforesaid judgments came up for consideration before this Court in Dhariwal Industries Limited v. Kishore Wadhwani & Ors.6 wherein the learned Magistrate had held that the complainant is not alien to the proceeding and, therefore, he has a right to be heard even at the stage of framing of charge. The High Court modified the order and permitted the counsel engaged by the complainant to act under the directions of the Public Prosecutor in charge of the case. The Court held as under:

“13. Having carefully perused both the decisions, we do not perceive any kind of anomaly either in the analysis or ultimate conclusion arrived at by the Court. We may note with profit that in Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277] , the Court was dealing with the ambit and sweep of Section 301 CrPC and in that context observed that Section 302 CrPC is intended only for the Magistrate’s Court. In J.K. International [J.K.

International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] from the passage we have quoted hereinbefore it is evident that the Court has expressed the view that a private person can be permitted to conduct the prosecution in the Magistrate’s Court and can engage a counsel to do the needful on his behalf. The further observation therein is that when permission is sought to conduct the 6 (2016) 10 SCC 378  prosecution by a private person, it is open to the court to consider his request. The Court has proceeded to state that the court has to form an opinion that cause of justice would be best subserved and it is better to grant such permission. And, it would generally grant such permission. Thus, there is no cleavage of opinion.”

11) In Mallikarjun Kodagali (Dead) represented through LRs v.

State of Karnataka & Ors. 7, three Judge Bench of this Court considered the victim’s right to file an appeal in terms of proviso to Section 372 inserted by Central Act No. 5 of 2009 w.e.f. December 31, 2009. This Court considered 154th Report of the Law Commission of India submitted on August 14, 1996; the Report of the Committee on Reforms of Criminal Justice System commonly known as the Report of the Justice Malimath Committee; Draft National Policy on Criminal Justice of July, 2007 known as the Professor Madhava Menon Committee and 221st Report of the Law Commission of India, April, 2009, and observed as under:

“5. Parliament also has been proactive in recognising the rights of victims of an offence. One such recognition is through the provisions of Chapter XXI-A CrPCwhich deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a non- compoundable case. Similarly, Parliament has amended CrPCintroducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372CrPC.

xx xx xx

8. The rights of victims, and indeed victimology, is an 7 (2019) 2 SCC 752  evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.”

12) The Court dealt with Justice Malimath Committee in the following manner:

“16. Thereafter, in the substantive Chapter on Justice to Victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows:

“6.3. Basically two types of rights are recognised in many jurisdictions, particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings.””

13) In J.K. International, it has been held that if the cause of justice would be better served by granting such permission, the Magistrate’s court would generally grant such permission. An aggrieved private person is not altogether eclipsed from the scenario when the criminal court take cognizance of the offences based on the report submitted by the police.

14) In Mallikarjun Kodagali, this Court approved the Justice Malimath Committee, wherein the victim’s right to participate in the criminal  proceedings which includes right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth had been recognised.

15) In view of such principles laid down, we find that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within its jurisdiction to grant of permission to the victim to take over the inquiry of the pendency before the Magistrate.

16) We find that the High Court has granted permission to the complainant to prosecute the trial without examining the parameters laid down hereinabove. Therefore, we set aside the order passed by the High Court and that of the Magistrate. The matter is remitted to the Magistrate to consider as to whether the complainant should be granted permission to prosecute the offences under Sections 498-A406 read with Section 34 IPC. The appeal is allowed.

………………………………………J.

(L. NAGESWARA RAO) ………………………………………J.

(HEMANT GUPTA) NEW DELHI;

AUGUST 07, 2019.

Calcutta High Court (Appellete Side)
Arif Ali vs The State Of West Bengal And Anr on 22 July, 2019
                       IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL REVISIONAL JURISDICTION
                                APELLATE SIDE

The Hon'ble JUSTICE SUVRA GHOSH

CRR 2389 of 2018 Arif Ali V/s.

The State of West Bengal and Anr.

For the Petitioner:                 Mr. Ayan Bhattacharjee, Adv.,
                                    Ms. Sharequl Haque, Adv.,
                                    Ms. Sujata Mitra, Adv.

For the Opposite Party No. 2:       Mr. Imtiaz Ahmed, Adv.,
                                    Mr. Ghazala Firdaus, Adv.,
                                    Ms. Smita Saha, Adv.,
                                    Ms. Shaila Afrin, Adv.,
                                    Sk. Saidullah, Adv.,
                                    Mr. Sibasish Banerjee, Adv.,
                                    Mr. Syed Murshid Alam, Adv.

For the State:                      Mr. S.G. Mukherjee, P.P.

Heard on: 16.07.2019
Date: 22.07.2019

SUVRA GHOSH, J. :-

1) In the present revisional application under Section 482 of the Code, the petitioner has prayed for quashing the Charge Sheet being Charge Sheet No. 212 of 2016 dated December 16, 2016 under Sections 498A/406/34 of the Penal Code, 1860, arising out of G.R. Case No. 2931 of 2016 pending before the learned Additional Chief Judicial Magistrate, Sealdah, 24 Parganas North.

2) The opposite party no. 2 lodged complaint before the officer-in-charge, Tangra Police Station, against the petitioner and others alleging commission of offence punishable under Sections 498A/406/34 of the Penal Code wherein she alleged that the petitioner, being her husband, subjected her to physical and mental cruelty after her marriage and finally drove her out of her matrimonial home after retaining her stridhan articles wrongfully. The case is pending before the trial court and charge-sheet has been submitted against the petitioner and others after completion of investigation.

3) Learned advocate for the petitioner submits that the allegations made in the complaint fall far short of the ingredients of offence under Section 498A of the Penal Code. Learned advocate refers to the copy of a document dated 28-02- 2016 giving detailed information of the marriage ceremony between the parties wherefrom it appears that there was neither any demand for dowry, nor any dowry given. Therefore, the alleged demand of dowry stated in the complaint is false and baseless. No specific case has been made out against the petitioner either in the complaint or in the charge-sheet. Hence the entire proceeding is required to be quashed.

4) Opposite party no. 2 who is the wife of the petitioner vehemently opposes the contention of the petitioner and submits that there is sufficient material in the complaint suggesting mental cruelty upon the opposite party by the petitioner. The document of marriage relied upon by the petitioner is not a Nikahnama and was executed prior to the marriage. The matter essentially involves disputed questions of fact which can only be decided at the time of trial, a prima facie case against the petitioner having been made out.

5) The State is represented and submits that whether there was any cruelty inflicted upon the opposite party can be assessed only on appreciation of evidence. At this stage, it shall not be justified to interdict the prosecution.

6) Reliance has been placed by the State on the authority in Rupali Devi v/s. State of Uttar Pradesh and others reported in 2019 (2) AICLR 360 (S.C.) wherein the Hon’ble Supreme Court has dealt with Section 498A of the Penal Code as well as the presumption under Section 113A of the Evidence Act. In dealing with the expression ‘cruelty’ the Hon’ble Court observed that “Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression cruelty appearing in Section 498A of the Indian Penal Code.”

7) In the complaint filed by the petitioner, the main thrust of the allegations is against the mother in law and other members of the matrimonial family. The mother in law is alleged to have retained all the jewellery and valuables of the opposite party in her custody and she along with other members of the family allegedly treated the petitioner as their maid-servant, showed disrespect towards her, rebuked her and engaged her in various menial jobs. The allegation against the petitioner in the written complaint is that he used to join the other members in such acts and insisted that the petitioner remained within the four walls of the house and performed the duties allotted to her. According to the opposite party, the petitioner wanted her to remain with her matrimonial family and objected to her speaking to her parents. The petitioner also insisted that the opposite party shared the bed with a domestic help while the petitioner remained in a different room.

8) Investigation was conducted by the investigating officer of the case which culminated in submission of charge-sheet. The investigating officer recorded statements of the brother, mother, father and the opposite party herself under Section 161 of the Code and of no other person who may have been acquainted with the families of both the parties or was in a position to co-operate with the investigation by enlightening the investigating officer regarding the facts, was examined. The parents and the brother of the opposite party shall invariably speak in tune with the opposite party and in absence of any prima facie material against the petitioner elicited in course of the investigation, it can be held that no prima facie case under Sections 498/406 of the Penal Code has been made out against him. The opposite party has relied upon a decision of a co-ordinate Bench of this Court in Tarit Sakar v/s. State of West Bengal reported in 2019 (1) E Cr. N (CAL) 693 wherein it is observed that in view of specific overt acts being attributed to the accused, the truth of such allegations could not be assessed before trial and the matter involved disputed questions of facts which could be decided only during trial. The Court dismissed the prayer of the petitioner therein for quashing of the proceedings against him.

9) The ratio of the said case can be distinguished from the factual matrix of the present case as in the present case, no prima facie case has been made out against the petitioner either in the complaint, or during investigation, nor any overt act attributed to him which would constitute an offence under Section 498A of the Penal Code.

10) It is needless to state that inherent jurisdiction of the High Court under Section 482 of the Code should be exercised with extreme care and caution and when a complaint is sought to be quashed, the court can look into the material on record to assess whether an offence is prima facie made out even if the allegations are accepted as they are.

11) The allegations levelled against the petitioner in the complaint do not constitute an offence under Section 498A/406 of the Penal Code. Besides the petitioner passively supporting the other accused persons, no other allegation has in fact been made out against him. The petitioner’s concern about the domestic help of the family also cannot be termed as cruelty within the ambit of Section 498A of the Penal Code.

12) Reliance has been placed on several authorities by the petitioner. In Bhaskar Lal Sharma and another v/s. Monica reported in (2009) 10 SCC 604, the Hon’ble Supreme Court has held that “For proving the offence under Section 498A IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any wilful conduct on the part of the accused 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.”

13) Similar proposition of law is enunciated in Preety Gupta and another v/s. State of Jharkhand and another reported in (2010) 7 SCC 667. In Chandralekha and others v/s. State of Rajasthan and another reported in (2013) 14 SCC 374, the Hon’ble Supreme Court has held that when the allegations are extremely general in nature and no specific role is attributed to the appellant the FIR deserves to be quashed. The same ratio is also reflected in Pritam Ashok Sadaphule and others v/s. State of Maharashtra and another reported in (2015) 11 Supreme Court Cases 769 and Rashmi Chopra v/s. State of U.P and another reported in 2019 (7) SCALE 152.

14) In the same vein, this court has held in Rejaul Islam and another v/s. State of West Bengal reported in 2010 (3) AICLR 553 that “Mere physical assault in absence of any unlawful demand as indicated hereinbefore would not construe the offence under Section 498A of the IPC. Similarly, there is no such material so as to suggest that there had been wilful conduct of such nature as was 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.”

15) In the present case, there is no allegation of physical torture upon the opposite party and also no prima facie material to suggest mental torture upon her.

16) Upon scrutiny of the complaint, statement of witnesses under Section 161 of the Code as well as the charge-sheet, it is evident that there is no prima facie material under Section 498A of the Penal Code against the petitioner. The allegations levelled against him do not constitute an offence under Section 498A of the Penal Code. There may have been certain misunderstandings and mal-adjustment between the couple which led to lodging of the complaint but such marital discord can under no stretch of imagination be termed as cruelty upon the opposite party. Allowing such proceeding to continue further shall result in abuse of the process of the court and as such, is required to be quashed, to secure the ends of justice.

17) Accordingly, the entire proceedings of G.R. Case No. 2931 of 2016 pending before the learned Additional Chief Judicial Magistrate, Sealdah, North 24 Parganas is quashed.

18) CRR 2389 of 2018 is allowed accordingly.

19) Case diary be returned.

20) Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)

 

Allahabad High Court
Mukesh vs State Of U.P. on 12 July, 2019
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED JUDGMENT 
 

 
Court No. - 82
 

 
Case :- CRIMINAL APPEAL No. - 5267 of 2018       
 
Appellant :- Mukesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Bal Ram Gupta
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. This criminal appeal has been preferred against the judgment and order dated 31.08.2018, passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 17 of 1997, arising out of Case Crime No. 80 of 1996, under Sections 302/201 IPC, Police Station Jaitpur, District Agra, whereby the accused-appellant has been convicted for the offence under Section 498A IPC for three years rigorous imprisonment along with fine of Rs. 5000/- and in default of fine three months additional rigorous imprisonment and under Section 304B IPC for ten years rigorous imprisonment along with fine of Rs. 25,000/- and in default of fine one year additional rigorous imprisonment.

2. The prosecution story is that the informant Raghuveer Singh gave a written report on 02.09.1996 at Police Station Jaitpur stating that he is resident of District Itawah. His daughter namely Baby Kumari @ Raju was married with Mukesh Singh son of Pooran Singh on 30.06.1993. His daughter told him one year before that she was being harassed for motorcycle and television and for this reason, the accused persons have committed murder of his daughter along with her one year child. He was informed by his nephew on 30.08.1996 at about 08:00 P.M. and he was told that the child was sick and he died in the hospital and because of the shock due to death of child his daughter also died. The informant reached there on 31.08.1996 and he was informed that both killed themselves by burnt themselves. At the time of incident Pooran Singh, father-in-law of the deceased, his wife, his daughter and his son Mukesh and Dharmendra were in the house and they all killed his daughter and her child and caused disappearance of the dead bodies.

3. On the basis of written report, the first information report was registered against the accused persons for the offences under Sections 498A304B302 and 201 IPC and it was investigated by police and thereafter charge sheet was submitted against the accused persons namely Mukesh, Bhupendra Brijpal and Shree Krishna for the offences under Sections 302/201 IPC. The learned trial court however framed charges under sections 304B/498A/201 IPC and in the alternative, under Section 302 IPC.

4. The prosecution examined PW-1 Raghuveer Singh, PW-2 Satish Singh, PW-3 Naresh Singh, PW-4 Jitendra Singh Chauhan, PW-5 S.I. R.K. Singh Yadav and PW-6 Constable Clerk Gajraj Singh.

5. The statements of accused persons were recorded under Section 313 Cr.P.C. wherein they have stated that the statements of the witnesses are false and the case has been falsely registered. They have stated that they never demanded any dowry nor they committed murder of the deceased. Accused Brijpal has stated that he has no relationship with accused-appellant Mukesh and he has no concern with the said crime. Similar is the statements of accused Bhupendra Singh and accused Shree Krishna. DW-1 Mukesh, the present accused-appellant and DW-2 Anita Devi were examined in defence.

6. After hearing both the parties, the learned trial court has convicted the accused-appellant for the offence under Sections 498A and 304B IPC. Bhupendra Brijpal and Shree Krishna have been acquittal from all charges whereas, accused-appellant has been acquitted under section 201 IPC.

7. Aggrieved by the impugned judgment, the accused-appellant has filed the present criminal appeal challenging the impugned judgment on the ground that the same is against the weight of evidence on record. There was material contradictions in the testimonies of the prosecution witnesses. The judgment has been passed on surmises and conjectures and awarded sentence is too severe. The conviction is bad in the eyes of law. The demand of dowry and harassment was not proved by the prosecution. The statements of defence witnesses have been ignored by the learned trial court, therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

8. Heard Sri Bal Ram Gupta, learned counsel for the appellant, Sri L.D. Rajbhar and Sri Prem Shanker Mishra, learned A.G.A. and perused the record.

9. From perusal of the record it appears that PW-1 Raghuveer Singh (informant) has stated on oath that he is father of the deceased Baby Kumari @ Raju. His daughter was married with Mukesh Singh son of Pooran Singh on 30.06.1993. According to capacity, he gave dowry but the accused-appellant and his family members were not satisfied and were demanding television and motorcycle and for that they started harassing and beating his daughter. Whenever the deceased came to her parental house, she used to tell about that. The informant tried to convince Pooran Singh the father-in-law of the deceased that he will give television and motorcycle on money being arranged but the accused persons were not convinced and they continued harassing the deceased. On 30.08.1996 at about 08:00 P.M., his nephew, Kalloo informed him that his daughter and her child have died. Then he reached there on 31.08.1996 but he did not get the dead body of the deceased. He tried to search her in the hospital as he was informed that the child of the deceased was admitted in the hospital and expired and in that shock his daughter also died. When he collected the information from the local villagers, he came to know that the accused persons caused the death of his daughter and her child both and removed their dead bodies.

10. PW-2 Satish Singh has been declared hostile as he stated ignorance about the incident.

11. PW-3 Naresh Singh has also been declared hostile who has further stated that he heard that the child of Mukesh was ill and due to illness the child died. After the death of the child, the wife of Mukesh also died.

12. PW-4 Jitendra Singh Chauhan is the brother of the deceased, who has supported the prosecution version and has stated that due to non fulfillment of demand of dowry, the accused persons used to harass the deceased and finally they killed her by setting her ablaze. The information of her death was given by Ram Karan.

13. PW-5 is S.I. R.K. Singh Yadav is IO who has proved site plan and charge sheet.

14. PW-6 is Constable Clerk Gajraj Singh of Police Station Jaitpur, who has proved chick FIR and GD.

15. The accused-appellant Mukesh has also got examined himself as defence witness DW-1, who has admitted the date of marriage with the deceased and has stated that after two years of marriage a son was born, who fell ill after his birth. After one year, due to illness, the child died in a hospital, whereas he was always under treatment. At the time of incident, he was working as tailor in Delhi and the brother of the deceased Jitendra was also working with him and learning tailoring. Because of the death of the son, the deceased came in shock and fell ill and after about one month, she also died. Her funeral took place publicly in the presence of local villagers. On the information of the death of his wife, he and the brother of the deceased Jitendra also came to the village from Delhi. Jitendra remained present in funeral. They never demanded motorcycle and television nor they caused any harassment to the deceased. She died due to illness but the informant lodged false FIR. Bhupendra, Brijpal and Shree Krishna are not his relatives but they are only local villagers.

16. Similarly, DW-2 Anita has stated that she knows Mukesh and his family. The deceased was her sister-in-law in relation. Her husband was mediator of the marriage of Mukesh and the deceased. Mukesh and his family are very courteous and civilized. Son of the deceased died in the age of one year due to illness and because of this shock, the deceased also died. The accused and his family members never demanded any dowry. The real brother of the deceased Jitendra was living with Mukesh in Delhi and was learning tailoring.

17. Learned counsel for the accused-appellant has submitted that there is no evidence that the death of the deceased took placed in an unnatural or abnormal circumstances. She died naturally due to shock because of the death of her son and a funeral took place in the village publicly.

18. On the contrary, learned A.G.A. has argued that the deceased was married with the accused-appellant just five years ago. The accused persons were demanding motorcycle and television and because of non fulfillment of demand of dowry, the deceased was physically and mentally harassed by the accused persons and for that reason they caused death of the deceased and the dead body was thrown in the river.

19. In V.K. Mishra Vs State of Uttarakhand, (2015) 9 SCC 588 and Panchanand Mandal Vs State of Jharkhand, (2013) 9 SCC 800, it has been held that before recording conviction of an accused u/s 304-B IPC, the following conditions must be proved-

1.That the death of woman was caused by burns or bodily injury or otherwise than under normal circumstances.

2.That such a death should have occurred within 7 years of marriage.

3.That the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4.That such cruelty or harassment should be for or in connection with demand for dowry.

5.That such cruelty or harassment is shown to have been meted out to the woman soon before her death.

20. In Shanti vs State of Haryana, AIR 1991 SC 1226, it has been held that for the application of the offence of dowry death under 304-B IPC, the death must occur by burn, bodily injury or otherwise than under normal circumstances and it covers all unnatural death, whether homicidal or suicidal.

21. In most of dowry death cases, direct evidence is hardly available as the death occurs within the confines of the matrimonial home. Therefore, such cases are proved by circumstantial evidence. It is why section 113-B of the Evidence Act enacts a rule of presumption which can be raised on proof of death of wife within within 7 years of marriage in suspicious circumstances and soon before her death, she was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. Section 113-B provides as follows:

“Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the court shall presume that such person had caused the dowry death.”

22. In Dinesh vs State of Haryana, 2014 (2) Crimes 197, it has been held that since the crimes of dowry death are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the Legislature has tried to strengthen the hands of prosecution by incorporating a presumption under section 113-B of the Evidence Act on proof of certain facts mentioned above.

Cruelty & Harassment

23. In Shivanand Mallappa Koti vs State of Karnataka, AIR 2007 SC 2314 and Rajendra vs State, AIR 2009 SC 855, it has been held that Explanation to section 498-A IPC defines cruelty and having regard to the background of the dowry death under section 304-B and 498-A IPC, the meaning of cruelty and harassment is same in both sections. Explanation to section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows:

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

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

24. In short, cruel treatment or harassment of wife by husband or his relative to force her to fulfil demand of dowry is the common element for the commission of offences under section 304-B and 498-A of the Indian Penal Code. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632, it has been held that meaning of the words “any relative of her husband” occurring in Section 304-B IPC & meaning of the words “relative of the husband” occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. A penal statute should be strictly construed. The expression “any relative of her husband” occurring in Section 304-B IPC should be limited to persons related by blood, marriage or adoption.

Soon Before Her Death

25. For the offence of dowry death, it should be shown that soon before her death, the wife was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. In Raja Lal Singh vs State of Jharkhand, AIR 2007 SC 2153, it was remarked that ‘soon before her death’ do not necessarily mean immediately before death. It is an elastic expression and cannot be defined in terms of specific period of days, a few weeks or months, but there should be perceptible nexus between the death of the deceased and dowry related harassment. In Surinder Singh vs State of Haryana, AIR 2014 SC 817, it has been held that where the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time.

26. It is admitted fact that both victim and accused got married about three years before from the date of incident. It needs to be examined whether the deceased died unnatural death in abnormal circumstances? Since the dead body was neither recovered nor put to postmortem, it could not be determined how she died or what was the cause of her death. For the constitution of the offence of dowry death, it must be proved that there was unnatural death in abnormal circumstances. In FIR, the informant has alleged that she was killed by accused persons because of non-fulfillment of demand of dowry and thereafter, the accused caused the dead body to disappearance.

27. In Madhu Vs. State of Karnataka, 2014 (84) ACC 329(SC), Ramjee Rai Vs. State of Bihar, 2007 (57) ACC 385 (SC) and Prithi Vs. State of Haryana,(2010) 8 SCC 536, law has been well settled that it is not at all necessary for conviction of an accused for murder that the corpus delicti (dead body) be found. Undoubtedly, in the absence of the corpus delecti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and the accused are the persons who committed the murder. Discovery of dead body is a rule of caution and not rule of law. Conviction can be recorded even in the absence of recovery of dead body. However, it is not essential to establish corpus delicti but fact of death of victim must be established by any other fact.

28. In Ram Gulam Chowdhary Vs. State of Bihar, 2001(2) JIC 986 (SC), it was held that when the dead body was not found but there was direct evidence of mother, sister and neighbored of deceased that the accused persons entered into the house of the deceased, dragged him out, dealt with blows with various weapons and took away the body of the deceased and thereafter body could not be recovered and therefore post mortem could not be done, then it has been held by the Supreme Court that it was for the accused to explain what they did with the body after they took away. Conviction recorded by trial court on the basis of direct evidence for the offences under Sections 302/149201 I.P.C. in the absence of recovery of dead body was upheld by the Supreme Court.

29. In this case, it is clear that the dead body was not recovered and could not be put to postmortem. Therefore, medically it is not established that the death was unnatural. But the prosecution is not absolved from the responsibility to prove that the death was unnatural and it happened pursuant to cruelty and harassment on account of non-fulfillment of demand of dowry. Therefore, it is to be seen what other evidence is available on record to show that the death occurred in suspicious circumstances.

30. The F.I.R. version in respect of cause of death appears to be inconsistent. The first version is that the accused committed murder and removed the dead body by throwing the same in the river. This has been negatived by the learned trial court itself as the accused has been acquitted from the charge under Sections 302/201 I.P.C.. The second version is about demand of dowry and harassment. The accused persons were demanding motorcycle and TV and the deceased told a year back that she was being harassed by accused persons. It is also admitted fact that a year before she gave birth to his son as, as per F.I.R., at the time of death of the deceased, the son was about one year old when he died. Therefore, it goes to show that till the birth of son, their married life was normal. It has been nowhere stated that after birth of son, the accused ever demanded dowry and harassed the deceased. PW-4 Jitendra is brother of the deceased and he has also stated similarly regarding dowry demand and harassment. There is no statement by him that after the birth of son, the deceased ever complained about dowry harassment. There is no evidence of any panchayat on this account between the parties nor there is any evidence that because of dowry demand and harassment, the deceased ever came to her parents and stayed there showing her unwillingness to go back, whereas these are common eventualities in such cases.

31. It is also important to note that PW-5 IO has stated that during investigation, he did not find any evidence regarding dowry demand and harassment. The learned trial court has criticized this this part of the statement on the basis that F.I.R. itself contains the allegation of dowry demand and harassment. But that allegation is based on what the deceased said to them one year before from her death. After the birth of son whether she made such complaint is no where on record. It has been nowhere stated by PW-1 and PW-4 that in the last one year, particularly after the birth of son she made such complaint.

32. Here, in this kind of situation, the delay in lodging FIR also becomes material. According to F.I.R., the informant got information of the death on 30.8.1996 at 8 P.M. The incident took place on 29.6.1996 in the night. The FIR has been lodged on 2.9.1996 at 7 PM. As per F.I.R., the informant reached there on 31.8.1996. Even then the F.I.R. was lodged on 2.9.1996 at 7 P.M. and it shows that from the date of incident , on the 5th day, and after information on 30.8.1996, on 4th day the F.I.R. was lodged. So, there is delay of 4 to 5 days in lodging the F.I.R., whereas, in the F.I.R., at the very out set, it has been stated that accused persons have killed the deceased and her son. There is no explanation of this delay, neither in F.I.R. nor in his statement. The delay in lodging F.I.R. is very vital as it gave opportunity for disposal/funeral of the dead body which led to a situation in which postmortem could not be conducted which was so necessary for the determination of cause of death. The consequence of this lapse will certainly effect the credibility of prosecution case.

33. Again, there is varying statement in respect of death of the deceased. The first allegation is that the accused person killed the deceased and her son. No witness examined by prosecution has established this fact nor any of them have seen accused persons causing death or murder. Another allegation is that the nephew of informant Kallu informed him about the death and informed that the son was ill and died in hospital and out of shock, his daughter also died. Kallu has not been examined though he was nephew of informant and has been shown in the list of witness in the charge-sheet. Thus prosecution has withheld a very important witness and adverse inference will be drawn against prosecution. The third allegation is that both died by burning themselves. The fourth allegation is that the accused persons killed both daughter and son and this has been further improved by informant in his on oath statement that they so did because of non-fulfillment of demand of dowry. This variation and inconsistency also adversely effects the credibility of the prosecution case.

34. On the contrary, the statement of PW-4 Jitendra also varies with F.I.R. version and the statement of PW-1. He says that the accused persons killed the deceased and her son by burning them on account of non-fulfillment of demand of dowry. In the F.I.R., one version is that both died by burning themselves but PW-1 has not supported it in his statement and has said that the accused persons killed them and caused disappearance of the dead bodies. He has stated that he did not see any accused burning them or killing them. In respect of death of son, PW-4 has stated that he does not know whether he was ill and died out of illness. He has not categorically denied it but has expressed his ignorance only. Regarding information of death, he has stated that they got information about death on 1.9.1996 when he and his father were in their village at District Itawa.. This is against F.I.R. version and statement of informant where it has been stated that he got the information on 30.8.1996. This is a very important contradiction and creates doubt on the credibility of both the witnesses.

35. PW-4 has further stated that he did not see any one killing his sister. They reached Police Station on 2.9.1996 at 11 A.M. and F.I.R. was lodged within one hour after reaching there in which it was written that the son of her sister died out of illness in hospital and his sister also died out of that shock. This contradicts the time of lodging F.I.R. which has been lodged at 7 P.M.. It appears that the learned trial court, for no reason recorded in the judgment, has ignored this material discrepancy and delay in lodging F.I.R. There is one more fact demonstrating that the relationship between him and appellant was very good which is not possible if his sister and accused were not happy with each other.

36. The accused in his statement as DW-1 has stated that Jitendra was living in Delhi with him and was learning tailoring with him. DW-2 Aneeta Devi has stated on oath that the brother of deceased, Jitendra (PW-1) was working with accused Mukesh in Delhi from the last two years from the date of death of her sister. DW-2 is sister in law of deceased and her husband settled the marriage of deceased with accused and she resides one and half km away from the house of the accused. PW-4 has stated that he lived in Delhi in 1994 prior to death of his sister and was learning tailoring. He and accused Mukesh were living there with his sister. After 15-20 days, Mukesh started doing some other work in Delhi. He has stated that Mukesh was working in Delhi till his sister died. This also shows that the relationship between the two was normal. This also shows that if the accused was living in Delhi there could be least opportunity for him to cause dowry harassment. When they all lived in Delhi, it has been nowhere stated by PW-4 that she was harassed by the accused. There is no evidence that the accused ever demanded dowry from or before PW-1 or PW-4. There is one more fact to be noticed that PW-4 has stated that he came to know that in the funeral of his sister, village people participated. This further demolishes the prosecution version that the accused caused the dead body to disappear. This also shows that the funeral took place publicly which is not possible if the death had been unnatural and in abnormal circumstances.

37. According to defence as stated by DW-1, after the death of her son out of illness, after about one and quarter month, the deceased died out of shock and illness. DW-2 has also stated the same thing. In Anil Sharma Vs. State of Jharkhand, (2004) 5 SCC 679, it has been held that an accused can examine himself u/s 315 Cr.P.C. as a defence witness and equal treatment should be given to the evidence of prosecution and defence. Standard and parameter for evaluation of evidence is the same whether it is a prosecution witness or defence witness. Unfortunately, the learned trial court has applied different yardstick for evaluation of defence witness and has expected that everything should be proved by defence by producing documentary evidence. When the accused himself as DW-1 and DW-2 have stated on oath that the son was sick and died out of illness more than a month before the death of deceased and in that shock the deceased fell ill and started suffering from fit attacks, the trial court has desired the same to be proved by treatment slip etc., whereas the F.I.R. contains the fact of death of son out of illness and thereafter death of deceased out of shock. There is no suggestion put by prosecution that the son did not die due to illness. In respect of treatment slip of wife (deceased), DW-1 has stated that the same was submitted in the High Court. There is no reason to disbelieve the witnesses on this point. No suggestion has been given to the witness on this point that no such treatment slip has been filed in the High Court.

38. It is admitted case of prosecution that none of the witnesses were present on spot at the time of death of the deceased or her son. PW-1 and PW-4 have admitted that they did not see the deceased dying and they cannot say who killed her or how she died. Prosecution version is not consistent regarding cause of death. The learned trial court has disbelieved the prosecution case on the point that the deceased was killed by accused and he caused the dead body to disappear. No witness who informed the informant or his family regarding death of deceased has been examined by the prosecution. There is no evidence that the death of deceased took place in unnatural circumstances. It is pertinent to mention that there is no presumption in law of unnatural death and there is always a presumption in favor of natural death unless those circumstances are established which lead to inference that death was unnatural and the victim died in abnormal circumstances. It has been stated by the informant that when he reached to the village of victim, he gathered information from the local people that they died by burning themselves. No such witness has been examined who gave such information to the informant. No sign have been found by I.O. during investigation of such burning in the house in terms of burn spot or consequent ashes or blackening nor it was shown by the complainant.

39. Moreover, two witnesses PW-2 and PW-3 who have been examined have not supported the prosecution case have turned hostile. PW-3 who happens to be Village Pradhan has stated that the son of accused was sick and died and in that shock his wife also died. He has further stated that he never heard about dowry demand and harassment by accused. PW-2 has also stated that Mukesh used to live in Delhi prior to his marriage and used to come to village sometimes. He heard that his wife died out of illness. Thus these to witnesses give support to defence version. It is true that in all cases it is not necessary that the dead body should be recovered and as such postmortem may not be possible. But in such kind of situation, evidence, direct or circumstantial, must be produced by prosecution which could lead to inference that some offence was committed in respect of dead person by accused. No witness who saw accused taking, handling or carrying the dead body in suspicious way has been examined to show that some offence was committed. There is variation in FIR version in respect of manner and cause of death and the statement of PW-1 and PW-4 on this point is based on hearsay, speculation and suspicion only. The fact that PW-4 was living with accused in Delhi and learning tailoring also shows normal relation. There is no evidence that accused ever demanded dowry from or before PW-1 and PW-4. It has been no where stated by witness that they were not informed about the death. It has been admitted by PW-4 that a public funeral took place and this fact has not been categorically denied by PW-1 when asked in cross-examination.

40. The delay of 4-5 days in lodging F.I.R. is very fatal in such case as it prevented the opportunity of postmortem which was so necessary for determination of cause of death. There is no evidence that the victim was put to cruelty and harassment soon before her death nor there is any evidence that dowry was demanded or cruelty was committed after the birth of son. The police did not find a case of dowry demand and dowry death and no charge-sheet was submitted for any such offence. On the basis of same evidence other accused persons have been already acquitted by the learned trial court. Where the basic ingredients of the offence of dowry death necessary for invoking presumption under section 113-B of the Evidence Act was not proved, it was not valid for the court to shift burden on accused-appellant or use section 106 of the Evidence Act to hold him guilty. In absence of any credible evidence, the conclusion of guilt against accused cannot be said to be justified under law.

41. On the basis of above discussion, I find that the impugned judgment is perverse and suffers from illegality and not sustainable under law and the impugned judgment and sentence is liable to be set aside.

42. The appeal is allowed. Judgment and order dated 31.08.2018, passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 17 of 1997, arising out of Case Crime No. 80 of 1996, convicting and sentencing the accused-appellant Mukesh under Sections 498A304BI.P.C., Police Station Jaitpur, District Agra, is set aside and the accused-appellant Mukesh is acquitted from the said charge under section 304-B/498-A IPC.

43. Accused-appellant Mukesh is directed to be released from jail forthwith.

44. The office is directed to transmit back the lower court record along with a copy of this judgment for information and necessary compliance.

Order Date :- 12.07.2019 sailesh (Hon’ble Pradeep Kumar Srivastava, J.)

 

Allahabad High Court
Mukesh vs State Of U.P. on 12 July, 2019
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED JUDGMENT 
 

 
Court No. - 82
 

 
Case :- CRIMINAL APPEAL No. - 5267 of 2018       
 
Appellant :- Mukesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Bal Ram Gupta
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. This criminal appeal has been preferred against the judgment and order dated 31.08.2018, passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 17 of 1997, arising out of Case Crime No. 80 of 1996, under Sections 302/201 IPC, Police Station Jaitpur, District Agra, whereby the accused-appellant has been convicted for the offence under Section 498A IPC for three years rigorous imprisonment along with fine of Rs. 5000/- and in default of fine three months additional rigorous imprisonment and under Section 304B IPC for ten years rigorous imprisonment along with fine of Rs. 25,000/- and in default of fine one year additional rigorous imprisonment.

2. The prosecution story is that the informant Raghuveer Singh gave a written report on 02.09.1996 at Police Station Jaitpur stating that he is resident of District Itawah. His daughter namely Baby Kumari @ Raju was married with Mukesh Singh son of Pooran Singh on 30.06.1993. His daughter told him one year before that she was being harassed for motorcycle and television and for this reason, the accused persons have committed murder of his daughter along with her one year child. He was informed by his nephew on 30.08.1996 at about 08:00 P.M. and he was told that the child was sick and he died in the hospital and because of the shock due to death of child his daughter also died. The informant reached there on 31.08.1996 and he was informed that both killed themselves by burnt themselves. At the time of incident Pooran Singh, father-in-law of the deceased, his wife, his daughter and his son Mukesh and Dharmendra were in the house and they all killed his daughter and her child and caused disappearance of the dead bodies.

3. On the basis of written report, the first information report was registered against the accused persons for the offences under Sections 498A304B302 and 201 IPC and it was investigated by police and thereafter charge sheet was submitted against the accused persons namely Mukesh, Bhupendra Brijpal and Shree Krishna for the offences under Sections 302/201 IPC. The learned trial court however framed charges under sections 304B/498A/201 IPC and in the alternative, under Section 302 IPC.

4. The prosecution examined PW-1 Raghuveer Singh, PW-2 Satish Singh, PW-3 Naresh Singh, PW-4 Jitendra Singh Chauhan, PW-5 S.I. R.K. Singh Yadav and PW-6 Constable Clerk Gajraj Singh.

5. The statements of accused persons were recorded under Section 313 Cr.P.C. wherein they have stated that the statements of the witnesses are false and the case has been falsely registered. They have stated that they never demanded any dowry nor they committed murder of the deceased. Accused Brijpal has stated that he has no relationship with accused-appellant Mukesh and he has no concern with the said crime. Similar is the statements of accused Bhupendra Singh and accused Shree Krishna. DW-1 Mukesh, the present accused-appellant and DW-2 Anita Devi were examined in defence.

6. After hearing both the parties, the learned trial court has convicted the accused-appellant for the offence under Sections 498A and 304B IPC. Bhupendra Brijpal and Shree Krishna have been acquittal from all charges whereas, accused-appellant has been acquitted under section 201 IPC.

7. Aggrieved by the impugned judgment, the accused-appellant has filed the present criminal appeal challenging the impugned judgment on the ground that the same is against the weight of evidence on record. There was material contradictions in the testimonies of the prosecution witnesses. The judgment has been passed on surmises and conjectures and awarded sentence is too severe. The conviction is bad in the eyes of law. The demand of dowry and harassment was not proved by the prosecution. The statements of defence witnesses have been ignored by the learned trial court, therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

8. Heard Sri Bal Ram Gupta, learned counsel for the appellant, Sri L.D. Rajbhar and Sri Prem Shanker Mishra, learned A.G.A. and perused the record.

9. From perusal of the record it appears that PW-1 Raghuveer Singh (informant) has stated on oath that he is father of the deceased Baby Kumari @ Raju. His daughter was married with Mukesh Singh son of Pooran Singh on 30.06.1993. According to capacity, he gave dowry but the accused-appellant and his family members were not satisfied and were demanding television and motorcycle and for that they started harassing and beating his daughter. Whenever the deceased came to her parental house, she used to tell about that. The informant tried to convince Pooran Singh the father-in-law of the deceased that he will give television and motorcycle on money being arranged but the accused persons were not convinced and they continued harassing the deceased. On 30.08.1996 at about 08:00 P.M., his nephew, Kalloo informed him that his daughter and her child have died. Then he reached there on 31.08.1996 but he did not get the dead body of the deceased. He tried to search her in the hospital as he was informed that the child of the deceased was admitted in the hospital and expired and in that shock his daughter also died. When he collected the information from the local villagers, he came to know that the accused persons caused the death of his daughter and her child both and removed their dead bodies.

10. PW-2 Satish Singh has been declared hostile as he stated ignorance about the incident.

11. PW-3 Naresh Singh has also been declared hostile who has further stated that he heard that the child of Mukesh was ill and due to illness the child died. After the death of the child, the wife of Mukesh also died.

12. PW-4 Jitendra Singh Chauhan is the brother of the deceased, who has supported the prosecution version and has stated that due to non fulfillment of demand of dowry, the accused persons used to harass the deceased and finally they killed her by setting her ablaze. The information of her death was given by Ram Karan.

13. PW-5 is S.I. R.K. Singh Yadav is IO who has proved site plan and charge sheet.

14. PW-6 is Constable Clerk Gajraj Singh of Police Station Jaitpur, who has proved chick FIR and GD.

15. The accused-appellant Mukesh has also got examined himself as defence witness DW-1, who has admitted the date of marriage with the deceased and has stated that after two years of marriage a son was born, who fell ill after his birth. After one year, due to illness, the child died in a hospital, whereas he was always under treatment. At the time of incident, he was working as tailor in Delhi and the brother of the deceased Jitendra was also working with him and learning tailoring. Because of the death of the son, the deceased came in shock and fell ill and after about one month, she also died. Her funeral took place publicly in the presence of local villagers. On the information of the death of his wife, he and the brother of the deceased Jitendra also came to the village from Delhi. Jitendra remained present in funeral. They never demanded motorcycle and television nor they caused any harassment to the deceased. She died due to illness but the informant lodged false FIR. Bhupendra, Brijpal and Shree Krishna are not his relatives but they are only local villagers.

16. Similarly, DW-2 Anita has stated that she knows Mukesh and his family. The deceased was her sister-in-law in relation. Her husband was mediator of the marriage of Mukesh and the deceased. Mukesh and his family are very courteous and civilized. Son of the deceased died in the age of one year due to illness and because of this shock, the deceased also died. The accused and his family members never demanded any dowry. The real brother of the deceased Jitendra was living with Mukesh in Delhi and was learning tailoring.

17. Learned counsel for the accused-appellant has submitted that there is no evidence that the death of the deceased took placed in an unnatural or abnormal circumstances. She died naturally due to shock because of the death of her son and a funeral took place in the village publicly.

18. On the contrary, learned A.G.A. has argued that the deceased was married with the accused-appellant just five years ago. The accused persons were demanding motorcycle and television and because of non fulfillment of demand of dowry, the deceased was physically and mentally harassed by the accused persons and for that reason they caused death of the deceased and the dead body was thrown in the river.

19. In V.K. Mishra Vs State of Uttarakhand, (2015) 9 SCC 588 and Panchanand Mandal Vs State of Jharkhand, (2013) 9 SCC 800, it has been held that before recording conviction of an accused u/s 304-B IPC, the following conditions must be proved-

1.That the death of woman was caused by burns or bodily injury or otherwise than under normal circumstances.

2.That such a death should have occurred within 7 years of marriage.

3.That the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4.That such cruelty or harassment should be for or in connection with demand for dowry.

5.That such cruelty or harassment is shown to have been meted out to the woman soon before her death.

20. In Shanti vs State of Haryana, AIR 1991 SC 1226, it has been held that for the application of the offence of dowry death under 304-B IPC, the death must occur by burn, bodily injury or otherwise than under normal circumstances and it covers all unnatural death, whether homicidal or suicidal.

21. In most of dowry death cases, direct evidence is hardly available as the death occurs within the confines of the matrimonial home. Therefore, such cases are proved by circumstantial evidence. It is why section 113-B of the Evidence Act enacts a rule of presumption which can be raised on proof of death of wife within within 7 years of marriage in suspicious circumstances and soon before her death, she was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. Section 113-B provides as follows:

“Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the court shall presume that such person had caused the dowry death.”

22. In Dinesh vs State of Haryana, 2014 (2) Crimes 197, it has been held that since the crimes of dowry death are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the Legislature has tried to strengthen the hands of prosecution by incorporating a presumption under section 113-B of the Evidence Act on proof of certain facts mentioned above.

Cruelty & Harassment

23. In Shivanand Mallappa Koti vs State of Karnataka, AIR 2007 SC 2314 and Rajendra vs State, AIR 2009 SC 855, it has been held that Explanation to section 498-A IPC defines cruelty and having regard to the background of the dowry death under section 304-B and 498-A IPC, the meaning of cruelty and harassment is same in both sections. Explanation to section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows:

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

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

24. In short, cruel treatment or harassment of wife by husband or his relative to force her to fulfil demand of dowry is the common element for the commission of offences under section 304-B and 498-A of the Indian Penal Code. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632, it has been held that meaning of the words “any relative of her husband” occurring in Section 304-B IPC & meaning of the words “relative of the husband” occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. A penal statute should be strictly construed. The expression “any relative of her husband” occurring in Section 304-B IPC should be limited to persons related by blood, marriage or adoption.

Soon Before Her Death

25. For the offence of dowry death, it should be shown that soon before her death, the wife was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. In Raja Lal Singh vs State of Jharkhand, AIR 2007 SC 2153, it was remarked that ‘soon before her death’ do not necessarily mean immediately before death. It is an elastic expression and cannot be defined in terms of specific period of days, a few weeks or months, but there should be perceptible nexus between the death of the deceased and dowry related harassment. In Surinder Singh vs State of Haryana, AIR 2014 SC 817, it has been held that where the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time.

26. It is admitted fact that both victim and accused got married about three years before from the date of incident. It needs to be examined whether the deceased died unnatural death in abnormal circumstances? Since the dead body was neither recovered nor put to postmortem, it could not be determined how she died or what was the cause of her death. For the constitution of the offence of dowry death, it must be proved that there was unnatural death in abnormal circumstances. In FIR, the informant has alleged that she was killed by accused persons because of non-fulfillment of demand of dowry and thereafter, the accused caused the dead body to disappearance.

27. In Madhu Vs. State of Karnataka, 2014 (84) ACC 329(SC), Ramjee Rai Vs. State of Bihar, 2007 (57) ACC 385 (SC) and Prithi Vs. State of Haryana,(2010) 8 SCC 536, law has been well settled that it is not at all necessary for conviction of an accused for murder that the corpus delicti (dead body) be found. Undoubtedly, in the absence of the corpus delecti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and the accused are the persons who committed the murder. Discovery of dead body is a rule of caution and not rule of law. Conviction can be recorded even in the absence of recovery of dead body. However, it is not essential to establish corpus delicti but fact of death of victim must be established by any other fact.

28. In Ram Gulam Chowdhary Vs. State of Bihar, 2001(2) JIC 986 (SC), it was held that when the dead body was not found but there was direct evidence of mother, sister and neighbored of deceased that the accused persons entered into the house of the deceased, dragged him out, dealt with blows with various weapons and took away the body of the deceased and thereafter body could not be recovered and therefore post mortem could not be done, then it has been held by the Supreme Court that it was for the accused to explain what they did with the body after they took away. Conviction recorded by trial court on the basis of direct evidence for the offences under Sections 302/149201 I.P.C. in the absence of recovery of dead body was upheld by the Supreme Court.

29. In this case, it is clear that the dead body was not recovered and could not be put to postmortem. Therefore, medically it is not established that the death was unnatural. But the prosecution is not absolved from the responsibility to prove that the death was unnatural and it happened pursuant to cruelty and harassment on account of non-fulfillment of demand of dowry. Therefore, it is to be seen what other evidence is available on record to show that the death occurred in suspicious circumstances.

30. The F.I.R. version in respect of cause of death appears to be inconsistent. The first version is that the accused committed murder and removed the dead body by throwing the same in the river. This has been negatived by the learned trial court itself as the accused has been acquitted from the charge under Sections 302/201 I.P.C.. The second version is about demand of dowry and harassment. The accused persons were demanding motorcycle and TV and the deceased told a year back that she was being harassed by accused persons. It is also admitted fact that a year before she gave birth to his son as, as per F.I.R., at the time of death of the deceased, the son was about one year old when he died. Therefore, it goes to show that till the birth of son, their married life was normal. It has been nowhere stated that after birth of son, the accused ever demanded dowry and harassed the deceased. PW-4 Jitendra is brother of the deceased and he has also stated similarly regarding dowry demand and harassment. There is no statement by him that after the birth of son, the deceased ever complained about dowry harassment. There is no evidence of any panchayat on this account between the parties nor there is any evidence that because of dowry demand and harassment, the deceased ever came to her parents and stayed there showing her unwillingness to go back, whereas these are common eventualities in such cases.

31. It is also important to note that PW-5 IO has stated that during investigation, he did not find any evidence regarding dowry demand and harassment. The learned trial court has criticized this this part of the statement on the basis that F.I.R. itself contains the allegation of dowry demand and harassment. But that allegation is based on what the deceased said to them one year before from her death. After the birth of son whether she made such complaint is no where on record. It has been nowhere stated by PW-1 and PW-4 that in the last one year, particularly after the birth of son she made such complaint.

32. Here, in this kind of situation, the delay in lodging FIR also becomes material. According to F.I.R., the informant got information of the death on 30.8.1996 at 8 P.M. The incident took place on 29.6.1996 in the night. The FIR has been lodged on 2.9.1996 at 7 PM. As per F.I.R., the informant reached there on 31.8.1996. Even then the F.I.R. was lodged on 2.9.1996 at 7 P.M. and it shows that from the date of incident , on the 5th day, and after information on 30.8.1996, on 4th day the F.I.R. was lodged. So, there is delay of 4 to 5 days in lodging the F.I.R., whereas, in the F.I.R., at the very out set, it has been stated that accused persons have killed the deceased and her son. There is no explanation of this delay, neither in F.I.R. nor in his statement. The delay in lodging F.I.R. is very vital as it gave opportunity for disposal/funeral of the dead body which led to a situation in which postmortem could not be conducted which was so necessary for the determination of cause of death. The consequence of this lapse will certainly effect the credibility of prosecution case.

33. Again, there is varying statement in respect of death of the deceased. The first allegation is that the accused person killed the deceased and her son. No witness examined by prosecution has established this fact nor any of them have seen accused persons causing death or murder. Another allegation is that the nephew of informant Kallu informed him about the death and informed that the son was ill and died in hospital and out of shock, his daughter also died. Kallu has not been examined though he was nephew of informant and has been shown in the list of witness in the charge-sheet. Thus prosecution has withheld a very important witness and adverse inference will be drawn against prosecution. The third allegation is that both died by burning themselves. The fourth allegation is that the accused persons killed both daughter and son and this has been further improved by informant in his on oath statement that they so did because of non-fulfillment of demand of dowry. This variation and inconsistency also adversely effects the credibility of the prosecution case.

34. On the contrary, the statement of PW-4 Jitendra also varies with F.I.R. version and the statement of PW-1. He says that the accused persons killed the deceased and her son by burning them on account of non-fulfillment of demand of dowry. In the F.I.R., one version is that both died by burning themselves but PW-1 has not supported it in his statement and has said that the accused persons killed them and caused disappearance of the dead bodies. He has stated that he did not see any accused burning them or killing them. In respect of death of son, PW-4 has stated that he does not know whether he was ill and died out of illness. He has not categorically denied it but has expressed his ignorance only. Regarding information of death, he has stated that they got information about death on 1.9.1996 when he and his father were in their village at District Itawa.. This is against F.I.R. version and statement of informant where it has been stated that he got the information on 30.8.1996. This is a very important contradiction and creates doubt on the credibility of both the witnesses.

35. PW-4 has further stated that he did not see any one killing his sister. They reached Police Station on 2.9.1996 at 11 A.M. and F.I.R. was lodged within one hour after reaching there in which it was written that the son of her sister died out of illness in hospital and his sister also died out of that shock. This contradicts the time of lodging F.I.R. which has been lodged at 7 P.M.. It appears that the learned trial court, for no reason recorded in the judgment, has ignored this material discrepancy and delay in lodging F.I.R. There is one more fact demonstrating that the relationship between him and appellant was very good which is not possible if his sister and accused were not happy with each other.

36. The accused in his statement as DW-1 has stated that Jitendra was living in Delhi with him and was learning tailoring with him. DW-2 Aneeta Devi has stated on oath that the brother of deceased, Jitendra (PW-1) was working with accused Mukesh in Delhi from the last two years from the date of death of her sister. DW-2 is sister in law of deceased and her husband settled the marriage of deceased with accused and she resides one and half km away from the house of the accused. PW-4 has stated that he lived in Delhi in 1994 prior to death of his sister and was learning tailoring. He and accused Mukesh were living there with his sister. After 15-20 days, Mukesh started doing some other work in Delhi. He has stated that Mukesh was working in Delhi till his sister died. This also shows that the relationship between the two was normal. This also shows that if the accused was living in Delhi there could be least opportunity for him to cause dowry harassment. When they all lived in Delhi, it has been nowhere stated by PW-4 that she was harassed by the accused. There is no evidence that the accused ever demanded dowry from or before PW-1 or PW-4. There is one more fact to be noticed that PW-4 has stated that he came to know that in the funeral of his sister, village people participated. This further demolishes the prosecution version that the accused caused the dead body to disappear. This also shows that the funeral took place publicly which is not possible if the death had been unnatural and in abnormal circumstances.

37. According to defence as stated by DW-1, after the death of her son out of illness, after about one and quarter month, the deceased died out of shock and illness. DW-2 has also stated the same thing. In Anil Sharma Vs. State of Jharkhand, (2004) 5 SCC 679, it has been held that an accused can examine himself u/s 315 Cr.P.C. as a defence witness and equal treatment should be given to the evidence of prosecution and defence. Standard and parameter for evaluation of evidence is the same whether it is a prosecution witness or defence witness. Unfortunately, the learned trial court has applied different yardstick for evaluation of defence witness and has expected that everything should be proved by defence by producing documentary evidence. When the accused himself as DW-1 and DW-2 have stated on oath that the son was sick and died out of illness more than a month before the death of deceased and in that shock the deceased fell ill and started suffering from fit attacks, the trial court has desired the same to be proved by treatment slip etc., whereas the F.I.R. contains the fact of death of son out of illness and thereafter death of deceased out of shock. There is no suggestion put by prosecution that the son did not die due to illness. In respect of treatment slip of wife (deceased), DW-1 has stated that the same was submitted in the High Court. There is no reason to disbelieve the witnesses on this point. No suggestion has been given to the witness on this point that no such treatment slip has been filed in the High Court.

38. It is admitted case of prosecution that none of the witnesses were present on spot at the time of death of the deceased or her son. PW-1 and PW-4 have admitted that they did not see the deceased dying and they cannot say who killed her or how she died. Prosecution version is not consistent regarding cause of death. The learned trial court has disbelieved the prosecution case on the point that the deceased was killed by accused and he caused the dead body to disappear. No witness who informed the informant or his family regarding death of deceased has been examined by the prosecution. There is no evidence that the death of deceased took place in unnatural circumstances. It is pertinent to mention that there is no presumption in law of unnatural death and there is always a presumption in favor of natural death unless those circumstances are established which lead to inference that death was unnatural and the victim died in abnormal circumstances. It has been stated by the informant that when he reached to the village of victim, he gathered information from the local people that they died by burning themselves. No such witness has been examined who gave such information to the informant. No sign have been found by I.O. during investigation of such burning in the house in terms of burn spot or consequent ashes or blackening nor it was shown by the complainant.

39. Moreover, two witnesses PW-2 and PW-3 who have been examined have not supported the prosecution case have turned hostile. PW-3 who happens to be Village Pradhan has stated that the son of accused was sick and died and in that shock his wife also died. He has further stated that he never heard about dowry demand and harassment by accused. PW-2 has also stated that Mukesh used to live in Delhi prior to his marriage and used to come to village sometimes. He heard that his wife died out of illness. Thus these to witnesses give support to defence version. It is true that in all cases it is not necessary that the dead body should be recovered and as such postmortem may not be possible. But in such kind of situation, evidence, direct or circumstantial, must be produced by prosecution which could lead to inference that some offence was committed in respect of dead person by accused. No witness who saw accused taking, handling or carrying the dead body in suspicious way has been examined to show that some offence was committed. There is variation in FIR version in respect of manner and cause of death and the statement of PW-1 and PW-4 on this point is based on hearsay, speculation and suspicion only. The fact that PW-4 was living with accused in Delhi and learning tailoring also shows normal relation. There is no evidence that accused ever demanded dowry from or before PW-1 and PW-4. It has been no where stated by witness that they were not informed about the death. It has been admitted by PW-4 that a public funeral took place and this fact has not been categorically denied by PW-1 when asked in cross-examination.

40. The delay of 4-5 days in lodging F.I.R. is very fatal in such case as it prevented the opportunity of postmortem which was so necessary for determination of cause of death. There is no evidence that the victim was put to cruelty and harassment soon before her death nor there is any evidence that dowry was demanded or cruelty was committed after the birth of son. The police did not find a case of dowry demand and dowry death and no charge-sheet was submitted for any such offence. On the basis of same evidence other accused persons have been already acquitted by the learned trial court. Where the basic ingredients of the offence of dowry death necessary for invoking presumption under section 113-B of the Evidence Act was not proved, it was not valid for the court to shift burden on accused-appellant or use section 106 of the Evidence Act to hold him guilty. In absence of any credible evidence, the conclusion of guilt against accused cannot be said to be justified under law.

41. On the basis of above discussion, I find that the impugned judgment is perverse and suffers from illegality and not sustainable under law and the impugned judgment and sentence is liable to be set aside.

42. The appeal is allowed. Judgment and order dated 31.08.2018, passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 17 of 1997, arising out of Case Crime No. 80 of 1996, convicting and sentencing the accused-appellant Mukesh under Sections 498A304BI.P.C., Police Station Jaitpur, District Agra, is set aside and the accused-appellant Mukesh is acquitted from the said charge under section 304-B/498-A IPC.

43. Accused-appellant Mukesh is directed to be released from jail forthwith.

44. The office is directed to transmit back the lower court record along with a copy of this judgment for information and necessary compliance.

Order Date :- 12.07.2019 sailesh (Hon’ble Pradeep Kumar Srivastava, J.)

 

Allahabad High Court
Sattar Ali vs The State Of U.P Thru Secy., Home … on 28 May, 2015
Bench: Ajai Lamba, Akhtar Husain Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- MISC. BENCH No. - 4555 of 2015
 

 
Petitioner :- Sattar Ali
 
Respondent :- The State Of U.P Thru Secy., Home Deptt., Lucknow And Ors.
 
Counsel for Petitioner :- J.N Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Lamba,J.

Hon’ble Akhtar Husain Khan,J.

                                                          (Oral)

1.  This petition seeks issuance of a writ in the nature of certiorari quashing First Information Report lodged as Case Crime  No. 2306 of 2014, under Sections 376506 I.P.C., P.S. Kotwali Dehat, district Bahraich (Annexure-1).

2.  Contention of learned counsel for the petitioner is that the prosecutrix has given her statement under Section 164 CrPC during the course of investigation, according to which, it has been made evident that the petitioner did not commit offence of rape.  It is on this premise, the petitioner seeks quashing of the First Information Report.

3.  We have considered the contention of learned counsel in context of other facts and circumstances emanating from the pleadings.

4.  Perusal of First Information Report indicates that respondent No.3, the alleged victim/prosecutrix approached the police authorities with the allegation that on 17.4.2014, she was alone at home when the petitioner entered the house and committed rape.  When father of the prosecutrix returned home, the entire incident was reported.  The police authorities were approached the next day morning, however, no action was taken.  Thereafter, the prosecutrix approached Human Rights Commission.  On the intervention of the Human Rights Commission, impugned criminal proceedings have been initiated.

5.   This case raises a very important issue.  The Courts these days are coming across a large number of cases, in which false allegation of rape and other similar cases of violation of a female is made by girls.  Ordinarily, such allegations are not supported by medical evidence indicating receipt of injury during forcible sexual intercourse or other injuries received in the process of resisting commission of rape, however, going by the law, statement of the prosecutrix is accepted to prosecute the accused named by the prosecutrix.  This Court has also noticed that in a large number of cases, prosecutrix resiles from her statement, while appearing as prosecution witness.

6.  In a case of rape and other cases of this nature, the victim/ prosecutrix is the best witness.  Serious credence is attached to the statement of such a witness, by a Court of law on the trust that the victim having been violated in a crime by passion will not concoct a false story so as to falsely implicate an accused.

7.   Court is conscious of the fact that on implication of an accused, the accused has to stand protracted trial through various stages, initially through investigation and arrest and thereafter, framing of charge and recording of statement of witnesses.  Court is also mindful of the fact that the police authorities are involved in investigation of such cases. Large number of public servants are engaged in the process.  Already heavily burdened Courts of law are further burdened with such cases.  Such cases are also taken up on priority basis considering such offences as crime against society at large.

8.     This Court is also cognizant of the ground reality that after allegation of rape is made against a person, the social and family life of such person is torn down.  If such a person has applied for a job in private or public sector, employment is denied for the reason that criminal proceedings involving moral turpitude are pending.  The rights of such accused in the course of trial are limited.  Subsequent discharge or acquittal of a person implicated on false allegations cannot repair the damage already caused.

9.   In the present case, a specific allegation has been made by the prosecutrix that offence of rape was committed on 17.4.2014.  Possibly, the police authorities had suspicion on the story set up by the prosecutrix and therefore, did not register First Information Report.  The prosecutrix pursued her case by way of approaching Human Rights Commission, on whose intervention, impugned proceedings have been initiated.

10.   During the course of investigation, the Investigating Officer bound by the provisions of Sub Section 5A(a) and 5A(b) of Section 164 CrPC sponsored the prosecutrix for recording of her statement under the said provision.  The provisions of Sub Section 5A(a) and 5A(b) are as under :

“164. Recording of confessions and statements.-

(1)……….

(2)………

(3)…….

(4)……..

(5)……………

[(5A)(a)   In cases punishable under section 354section 354Asection 354Bsection 354Csection 354D, sub-section (1) or sub-section (2) of section 376section 376Asection 376Bsection 376Csection 376Dsection 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police;

     Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement;

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.

(b)  A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872)  such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.]”

11.   The said provision was inserted in the Code book with effect from 3.2.2013.

12.  Be that as it may, in the statement given under Section 164 CrPC, the prosecutrix has denied the fact that offence of rape had been committed on her.  The excuse given therefor is that she had made allegations on the asking of some other persons, and also that she is an illiterate person.

13.  For reporting an offence of rape, literacy of a victim is not relevant.  Perusal of the First Information Report itself indicates that it is not a vague statement; rather specific allegations have been made.

14.    By virtue of the allegations made in the First Information Report, the petitioner has been adversely affected.  This Court, under the circumstances, would like to see the investigation reach its logical end.

15.   Considering totality of facts and circumstances of the case, this Court would not like to exercise extraordinary writ jurisdiction while relying on the statement of the prosecutrix who has been approbating and reprobating within a span of months.

16.   Petition is accordingly dismissed.

17.  The investigating agency is directed to investigate the case and file a police report.  In case it is found that the prosecutrix had given information to a public servant which she knew to be false, intending thereby to cause such public servant to use the lawful power to injure the accused, the relevant provisions of the Indian Penal Code and Code of Criminal Procedure shall be invoked so as to prosecute the prosecutrix.

18.   Superintendent of Police, Bahraich is directed to ensure that needful is done at the earliest so that a strong message is sent to the public at large that false implication would not be tolerated by the criminal justice delivery system.

Let a copy of the order be also conveyed to Deputy Inspector General of Police, Devi Patan Mandal.

Order Date :- 28.5.2015 kkb/