Allahabad High Court
Avdhesh vs State Of Up And Another on 19 April, 2019
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Case :- APPLICATION U/S 482 No. - 13583 of 2019
 
Applicant :- Avdhesh
 
Opposite Party :- State Of Up And Another
 
Counsel for Applicant :- B.N.Singh,Santosh Kumar Singh
 
Counsel for Opposite Party :- G.A.,Chandra Jeet Singh,Ran Jeet Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.	
 
1.

Present Application under section 482 Cr.P.C has been preferred assailing the charge sheet dated 21.12.2018 filed in case crime No 346 of 2018 under section 381 IPC, PS Talbehat, District Lalitpur in the court of Chief Judicial Magistrate and also the order of cognizance dated 1.3.2019, whereby applicant has been summoned.

2. Heard Shri B.N.Singh, learned counsel for the Applicant, Shri Ranjeet Kumar, learned counsel for the Opp. Party No 2 and the Government advocate for Opp. Party No 1 and perused the record. The Application is decided with the consent of Advocates appearing on behalf of the parties finally at the stage of admission itself.

3. To go over the facts briefly, Smt Neelam, Opp Party No 2 lodged a First Information Report registered at Case Crime No 346 of 2018 on 31.8.2018 at Police Station Talbehat, Distt Lalitpur, the contents of which were that she had opened a shop in the name and style “Kushwaha Bore Wales” at Laitpur for boring machine. Applicant Avadesh and Dinesh were employed to look after the shop and machine. On 29.8.2018 when the complainant (Opp Party No 2) came to her office, boring machine was found missing. After assiduous efforts, it was revealed that these persons had stolen the machines during night.

4. During investigation, statements of complainant ( Opp Party No 2) Smt Neelam, Ratan Singh (witness), Pappu Rekhwaar (witness), Dashi Kushwaha (witness), Veer Singh (Witness) and Toran Singh (witness) were recorded.

5. During investigation, the applicant and Dinesh had approached this Court by way of filing Criminal Misc Writ Petition No 27265 of 2018 for quashing of First Information report. The co-ordinate Bench of this Court disposed of the said writ petition with the direction that the petitioner therein shall not be arrested till the submission of the Police report under section 173 (2) Cr.P.C.

6. The Investigating officer after conducting investigation submitted impugned charge sheet only against the applicant herein and not against the Dinesh who was also named in the First Information Report under section 381 IPC on 21.12.2008. Later-on, learned Chief Judicial Magistrate, Laitpur took cognizance of the offence and summoned the applicant under order dated 1.3.2019 which is also impugned in the present Application.

7. Learned counsel appearing on behalf of the Applicant forcefully argued that-

(I) On the basis of First Information report, and statements recorded during investigation, no offence , even prima facie, is made out against the applicant.

(II) No recovery of the alleged stolen boring machine has been made out.

(III) Applicant is brother-in-law (Jeeja) of the husband of the Opp Party no 2 and as there were some dispute amongst them and after death of husband of the Opp Party No 2, the applicant has been falsely implicated and nominated as accused in the present case.

(IV) The Opp Party no 2 in her statement recorded during investigation has improved upon her case and added new facts such as, applicant and Dinesh were employed at shop during the life time of husband of Opp Party and after his death, boring machines were given to applicant and Dinesh on rent of Rs 50000/- per month and about a sum of Rs 75000/- was also paid to Opp Party no 2. On 29.8.2018 when she went to her shop neither the boring machine nor these persons were traceable. Accordingly the learned counsel for the applicant submitted that such improvements shows that the entire story is false. If the version of the Opp party No 2 is considered to be true, then it would be a case of contract which is purely a civil dispute.

(V) The other witnesses whose statements were recorded during investigation, allegedly stated that the applicant was carrying boring machine and going towards Jhansi on 29.8.2018. However, they denied involvement of Dinesh. In this regard, the learned counsel for the applicant submitted that these witnesses were wholly unreliable and are making false statements.

(VI) The learned counsel for the Applicant submitted that ingredients of Section 381 IPC are not discernible as the Applicant was neither a clerk or a servant nor employed in the caspacity of a clerk or servant and therefore the alleged theft of boring machine from the shop cannot be considered a theft from the possession of his master or employer. There is no relationship between the applicant and the Opposite Party no 2 as clerk or servant and master.

(VII) The Chief Judicial Magistrate has passed the order of cognizance dated 1.3.2019 without application of mind as the order is on an already printed proforma.

(VIII) The counsel further submitted that this Court in Ankit Vs State of U.P. and Another reported in J.I.C 2000 (1) 432, has held that such proforma orders cannot be upheld as the same are passed without application of judicial mind. The counsel further cited judgment passed by Apex Court in Pepsi Foods Limited Vs Special Judicial Magistrate (1997 LawSuit (S.C) 1340) wherein it has been held that summoning of an accused in a criminal matter is a serious business and order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto.

8. On the basis of these submissions, the learned counsel submitted that circumstances and facts of present case warrant interference of this Court under the inherent power provided under section 482 Cr.P.C, to quash the impugned charge sheet and impugned cognizance/summoning order.

9. Per contra, learned counsel for the Opp Party no 2 submitted that from the materials placed before the learned court below, prima facie case is made out against the applicant under section 381 IPC and the Court has rightly taken cognizance. Inherent power of the High Court should be exercised sparingly and only in exceptional circumstances. In the present case, accused was working as servant in the shop of husband of Opp Party no 2 and after the death of husband of Opp Party No 2, applicant continued to work as servant. However, he started paying money in lieu of work done by him and taking money from the clients as Opp Party being lady could not be able to take care of the shop on regular basis and as such ingredients of the offence under section 381 IPC are disclosed.

10. The learned counsel for the State further contends that prima facie offence is made out against the applicant and all submissions raised by applicant fall under the arena of disputed facts which cannot be decided under the proceeding of section 482 Cr.P.C

11. Considered the submissions raised on behalf of the rival parties and scanned the entire record.

Section 381 IPC being relevant is quoted below-

“381. Theft by clerk or servant of property in possession of master.–Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

From the above provision of section 381 IPC following three ingredients are discernible.

(a) The accused was employed in the capacity of clerk or servant.

(b) He committed theft in respect of alleged property.

(c ) Such property was in the possession of his employer.

12. Hon’ble Supreme Court in the matter of Fakhruddin Ahmad Vs State of Uttranchal and another reported in (2008) 17 SCC 157, discussed the expression “taking cognizance of an offence” by a Magistrate within contemplation of section 190 of the Cr.P.C and also discussed what must have been taken notice by the Magistrate while taking cognizance. Paras 13,14,15,16 and 17 being relevant are abstracted below.

“11.The next incidental question is as to what is meant by expression `taking cognizance of an offence’ by a Magistrate within the contemplation of Section 190 of the Code?

12.The expression `cognizance’ is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit Vs. State of West Bengal2, the word `cognizance’ has no esoteric or mystic significance in criminal law or procedure. It merely means–become aware 2 [1963] Supp. 1 S.C.R. 953 9 of and when used with reference to a Court or Judge, to take notice of judicially. Approving the observations of the Calcutta High Court in Emperor Vs. Sourindra Mohan Chuckerbutty3, the Court said that `taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.’

13.Recently, this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors.4, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase `taking cognizance’ under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee5, which were approved by this Court in R. R. Chari Vs. State of U.P.6. The observations are:

3 (1910) I.L.R. 37 Calcutta 412 4 (2008) 2 SCC 492 5 A.I.R. (37) 1950 Calcutta 437 6 A.I.R. (38) 1951 SC 207 1 0 “7. … What is `taking cognizance’ has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

14.From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by `taking cognizance’. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.

15.Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence.” (Emphasis supplied)

12. This Court in the matter of Ankit Vs State of U.P. And another reported in JIC 2010 (1) page 432 has held that-

” Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4^) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind.”(Emphasis supplied)

14. Hon’ble Supreme Court in the matter of Vineet Kumar and others Vs State of Uttar Pradesh and another reported in (2017) 13 SCC, 369 while considering the issue of scope of section 482 Cr.P.C regarding quashing of criminal proceedings held in paras 22,23,24,25,26,27,28, and 29 as under:

“22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

“23. This Court time and again has examined scope of jurisdiction of High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three-Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699,held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 7 of the judgment following has been stated:

“7….In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

24. The judgment of this Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482Cr.P.C. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226 in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice.

25. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:

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

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

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

26. A three-Judge Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:

“6……All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” Further in paragraph 8 following was stated:

“8…..Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal.”

25. In Sunder Babu and others vs. State of Tamil Nadu, 2009 (14) SCC 244, this Court was considering the challenge to the order of the Madras High Court where Application was under Section 482 Cr.P.C. to quash criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case (supra) and held that the case fell within Category 7. Apex Court relying on Category 7 has held that Application under Section 482 deserved to be allowed and it quashed the proceedings.

25. In another case in Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as laid down in State of Haryana vs. Bhajan Lal(supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482Cr.P.C. to quash the proceedings under Section 494120-B and 109 IPC and Section 3 and 4 of Dowry Prohibition Act. After noticing the background facts and parameters for exercise of power under Section 482 Cr.P.C. following was stated in paragraphs 8 to 12:

“8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, the allegation is that the dowry torture was made sometime in 1992. It has not been explained as to why for more than two years no action was taken.

9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband’s mother’s sister, husband’s brother-in-law and Sunita’s father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6-12-1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1.

10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.

11. “19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.” [See Janata Dal v. H.S. ChowdharyRaghubir Saran (Dr.) v. State of Bihar and Minu Kumari v. State of Bihar, SCC p. 366, paras 19-20.]

12. The present case appears to be one where Category 7 of the illustrations given in State of Haryana v. Bhajan Lal is clearly applicable.

15. In the background of above mentioned facts and legal aspects, now I consider whether in the present set of facts prayer made by applicant for quashing of impugned charge sheet could be allowed or not.

16. The first issue is whether the Chief Judicial Magistrate has applied his mind before taking cognizance of the offence under section 381 Cr.P.C. The order of cognizance dated 1.3.2019 is annexed with the application as Annexure 6 and the same is quoted below.

 
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From a perusal of the above order it is evident that it is a typed proforma where only information of case no, name of accused, section, Police Station, date and next date is to be filled by Magistrate. This very practice has been depreciated by the court in the case of Ankit Vs State of U.P. (supra). Though no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and therefore, in the present case, cognizance order is passed without any application of mind as the same does not reflect that the Magistrate has applied his mind to materials available and also whether the materials are sufficient to proceed against the applicant/accused.

17. The second issue for consideration is whether on the basis of materials available ingredients of section 381 IPC is prima facie disclosed.

I have already enumerated the ingredients of section 381 IPC in para 10 of this judgment. Considering the materials available, there is no material to show that accused was employed in the caspacity of servant or clerk with the Opp Party no 2/complainant. Secondly, the machine was not in possession of the Opp Party no2. Therefore, the alleged theft is not from the possession of the Opp party no 2. Therefore, in the present case essential ingredients of section 381 IPC are absent. In this background it is difficult to arrive at a conclusion that in the present matter even prima facie case is made out against the applicant under section 381 IPC.

18. The last issue is whether in the facts and circumstances of the present case, the Court could quash the charge sheet under its inherent power under section 482 Cr.P.C.

There is no doubt that this Court could exercise its inherent jurisdiction under section 482Cr.P.C (I) to make such orders as may be necessary to give effect to any order under the code of criminal Procedure or (ii) to prevent abuse of the process of any court or (iii) otherwise to secure ends of justice.

19. In the present case, neither the concerned Magistrate has applied mind before taking cognizance of offence and rather passed an order in the form of proforma order, nor on the basis of materials available, even prima facie ingredients of section 381 IPC are disclosed and therefore, in my considered opinion, present case is squarely covered by category (c) of the judgment passed in the case of State of Haryana And Ors vs Ch. Bhajan Lal And Ors(supra), which states that-

“(c) where the uncontroverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;

20. In view of the above discussion to secure the ends of justice and to prevent abuse of the process of court below, present is a fit case to exercise the inherent jurisdiction of the court provided under section 482 Cr.P.C to prevent abuse of process of lower court as well as to secure ends of justice. For disposal of the present case para 34 of the judgment passed by Supreme Court in Anand Kumar Mohatta Vs State of NCT of Delhi 2018 SCC on-line 2447 is also very useful and the same is quoted hereinafter.

“34. It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others which read as follows: –

“7. …..In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is 6 1977 (2) SCC 699 14 designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice…..”

21. While exercising such power, the impugned charge sheet is quashed and the present application is allowed.

MH Dated April 19, 2019 (Saurabh Shyam Shamshery,J.)

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Patna High Court
Surendra Tiwary @ Surendra Tiwari vs The State Of Bihar on 9 May, 2019
          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.25389 of 2019
     Arising Out of PS. Case No.-810 Year-2014 Thana- VAISALI COMPLAINT CASE District-
                                             Vaishali
     ======================================================

1. Surendra Tiwary @ Surendra Tiwari Son of Late Ramnandan Tiwari Resident of Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.

2. Pankaj Tiwary Son of Surendra Tiwary @ Surendra Tiwari Resident of Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.

3. Chandan Tiwary Son of Surendra Tiwary @ Surendra Tiwari Resident of Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.

4. Ranjita Devi Wife of Pankaj Tiwari Resident of Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.

… … Petitioner/s Versus

1. The State of Bihar

2. Soni Kumari Wife of Prabhat Tiwari and daughter of Late Kamleshar Sharma Resident of Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur, at present residing at Village- Sambhopatti, P.S.- Mahua, District- Vaishali.

… … Opposite Party/s ====================================================== Appearance :

     For the Petitioner/s     :      Mr. Sanjeev Kumar
     For the Opposite Party/s :      Mr. Ashok Kumar Singh, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL ORAL JUDGMENT Date : 09-05-2019 Heard learned counsel for the petitioners and learned APP for the State.

2. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 13.03.2019 passed by Sub-Divisional Judicial Magistrate, Vaishali at Hajipur in Complaint Case no. 810(C) of 2014, whereby the learned Magistrate has rejected the discharge Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019 petition filed by the petitioners under Section 245 Cr.P.C.

3. Factual matrix of the case is that O.P. no. 2 Soni Kumari filed Complaint Case no. 810 of 2014 against the petitioners and four other accused persons as named in the complaint petition under Sections 147323504498A379 of the Indian Penal Code and Section 3/4of Dowry Prohibition Act with the allegation, in succinct, that marriage of the complainant (O.P. No. 2) was performed with the accused Prabhat Tiwari. After marriage, she went to her marital house, but the accused persons started subjecting her to various sorts of torture over demand of Rs. 5 lacs for doing business and finally they drove her out of her marital house snatching her belonging and thrashing her and extended threatening of dire consequences in case of regression to her marital house without taking money. Then she rushed to her maternal uncle and on call of her uncle, accused no. 1 to 4 of the complaint petition arrived at the house of her maternal uncle and put the aforesaid demand. On hectic persuasion made by her uncle, they refused to budge and even slated and assaulted her and her maternal uncle and extended threatening.

4. During the course of inquiry, O.P. no. 2 examined herself on S.A. and also examined three witnesses. Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019

5. Learned Magistrate after perusing the complaint petition, S.A., inquiry witnesses and finding making out prima facie case took cognizance of the offence under Sections 498A of the Indian Penal Code and Section 4 of D.P. Act against the petitioners. Later on, five witnesses were examined by the complainant before charge. Subsequently, Pushpa Devi and Kiran Devi, who happens to be married sister-in-law (Nanad) and Swati Priya Bhagni of the complainant filed discharge petition under Section 245 Cr.P.C and after considering the facts and circumstances of the case and materials available on record, the learned Magistrate allowed the discharge petition vide order dated 30.11.2018. Thereafter, the petitioners filed petition under Section 245 Cr.P.C. for their discharge on 11.01.2019. But, after hearing the parties, learned Magistrate vide impugned order dismissed the aforesaid discharge petition treating the said discharge petition as review petition and not maintainable on the premise that earlier while considering the discharge petition of the Pushpa Devi and Ors., entire facts and circumstances and all aspects of the case was considered and petitioners were directed to appear before the court for framing of charge.

6. It is submitted by learned counsel for the petitioners that the petitioner no. 1 happens to be father-in-law, Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019 petitioner no. 2 is the Bhaisur, petitioner no. 3 Dewar and petitioner no. 4 is the elder Gotni of the complainant. They have neither made any demand nor ever subjected the complainant to any sort of torture nor drove her out of her marital house over the said demand nor slated and assaulted and threatened the informant and her maternal uncle arriving at the house of her maternal uncle. They are living separately and have no concern with the affairs of the complainant and her husband. Allegation levelled against the petitioners is not specific rather general and omnibus in nature and on similar footing, Nanad and Bhagini of the complainant have been discharged by the learned Magistrate. But, the learned Magistrate rejected the discharge petition of these petitioners treating the same as review petition of its earlier order against the actual state of affairs. Hence, the said order is illegal and is liable to be quashed.

7. On the other hand, learned APP for the State opposed this quashing petition.

8. From perusal of record, it appears that earlier a discharge petition was filed by the Nanad and Bhagini of the complainant on 21.08.2018. The learned Magistrate considering the aforesaid discharge petition and facts and circumstances of the case and material Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019 available on record allowed the same vide order dated 30.11.2018. But, when these petitioners filed the discharge petition on 11.01.2019, the same was rejected by the court below finding it to be petition filed for review of its aforesaid earlier order with observation that the entire facts and circumstances and all aspects of the case was considered on earlier occasion and petitioners were directed to appear before the court for framing of charge. From perusal of the order dated 30.11.2018, passed by learned Magistrate, it appears that the evidence and facts and circumstances of the case was considered by the learned Magistrate only in re to the discharge petition filed by Nanad and Bhagini of the complainant, namely, Pushpa Devi, Kiran Devi and Swati Priya and not the case of the petitioners. Facts and circumstances of each case and in re to each accused depends upon its own merit and petitioners should also be given opportunity of hearing, but without giving them opportunity of hearing, the learned Magistrate turned down their discharge petition in utter violation of principle of natural justice. Moreover, from perusal Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019 of the order dated 30.11.2018, it appears that no where in the said order, the learned Magistrate has directed the petitioners to appear before him in person for framing charge turning down their prayer ever made by them.

9. Having regard to the facts and circumstances of the case, the order dated 13.03.2019 passed by Sub-Divisional Judicial Magistrate, Vaishali at Hajipur in Complaint Case no. 810(C) of 2014 is hereby quashed and the case is remitted back to the court below to pass fresh order, considering the facts and circumstances and material available on record in re to the said petitioners. accordingly this petition is allowed.

(Prakash Chandra Jaiswal, J) rohit/-

AFR/NAFR                AFR
CAV DATE                N.A.
Uploading Date          13.05.2019
Transmission Date       13.05.2019

498a quashed against unmarried sis in law

Punjab-Haryana High Court
Neha vs State Of Haryana & Anr on 10 May, 2019
203
            IN THE HIGH COURT OF PUNJAB & HARYANA AT
                       CHANDIGARH

                                          CRM-M-4790 of 2016.
                                          Decided on:- May 10, 2019.



Neha.
                                                           .........Petitioner.
                                Versus

State of Haryana and another

                                                        .........Respondents.

CORAM:      HON'BLE MR. JUSTICE HARI PAL VERMA.

            *****
Present:-   Mr. Sumit Sangwan, Advocate
            for the petitioner.

            Ms. Mahima Yashpal, A.A.G., Haryana.

            Mr. B.R. Gupta, Advocate
            for respondent No.2-complainant.

HARI PAL VERMA, J.

Petitioner Neha, who is an unmarried sister-in-law of the respondent No.2-complainant has filed this petition under Section 482 Cr.P.C. for quashing of FIR No.39 dated 23.10.2015 under Sections 498-A, 323, 506 and 406 read with Section 34 IPC as well as Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the SC/ST Act) registered at Women Police Station, Bhiwani and all subsequent proceedings arising therefrom.

The aforesaid FIR was registered at the behest of respondent No.2 Deepa, who was married with Abhinav Pal on 11.05.2014. The other co- accused, namely, Abhinav Pal is husband and Veenu is mother-in-law.

1 of 17 As per the FIR, father of the complainant spent sufficient amount on her betrothal and marriage ceremonies. She lived with her husband in Modern Housing Complex, Manimajra, Chandigarh. However, after the marriage, behaviour of her husband, mother-in-law and sister-in-law (present petitioner) was not good towards her. They raised demand of more dowry and started harassing her. She was subjected to cruelty for insufficient dowry. Her father gave cash of Rs.30,000/- and certain gifts on the occasion of Diwali festival. Again he gave cash amount of Rs.30,000/- and some gifts to her in- laws on the occasion of Lohri festival. The complainant belongs to Scheduled Caste (Chamar) community, whereas her father-in-law belongs to Backward (Kamboj) community. They also called her with bad names and used derogatory words against her father. Since she was consistently being harassed, she moved a complaint to the Superintendent of Police, Bhiwani on 19.10.2015 leading to registration of the present F.I.R.

Learned counsel for the petitioner has argued that, in fact, marriage between respondent No.2-complainant with Abhinav Pal was a love marriage. The complainant is well-qualified lady holding a gazetted post. She herself opted to get married with a boy, who is about 8 years younger to her. Since the complainant belongs to Scheduled Caste, whereas the petitioner belongs to Backward class, the provision of offence under Section 3 of the SC/ST Act has been misused. At the time of marriage, the complainant was posted as Assistant Professor in Government College, Panchkula and after marriage, she joined as Assistant Professor in Government College, Bawani Khera in July, 2015. The complainant got herself transferred from Panchkula 2 of 17 to Bawani Khera on 02.07.2015 on the ground of completing her service in rural areas in fulfilment of condition of the Government policy.

He has further argued that since the parties to the marriage could not pull well, a divorce petition was filed by Abhinav Pal against respondent No.2-complainant in District Court, Chandigarh on 15.10.2015. However, respondent No.2 moved an application before this Court seeking transfer of said petition to Bhiwani Court. Since it was a love marriage between the parties, no dowry articles were exchanged and as it was marriage of the liking of the parties, the petitioner, who is unmarried elder sister of Abhinav Pal, was not going to be benefitted with any dowry articles.

He has further contended that there is no specific allegation against the petitioner for demand of dowry or harassment caused to respondent No.2. The only allegation against the petitioner is that she was a party with the husband and mother-in-law in harassing the complainant.

As per the complainant, in the month of September, when parents-in-law of the complainant had gone to their native place Yamuna Nagar to attend a marriage in some close relations, the petitioner had cut the hair of the complainant and handed over the same to her mother-in-law. The allegation is that whenever the complainant used to come from her college and to take rest in a room, then the petitioner and mother-in-law of the complainant used to oust her from the room and used to say that the complainant does not belong to a royal family and, therefore, directed the complainant to do the household works. Without taking rest, the complainant used to fulfil the obligations as per the wishes of her in-laws.

3 of 17 Learned counsel for the petitioner has further argued that the petitioner is being victimized of prevalent syndrome of roping in every member of the family in such type of matrimonial criminal litigations. There is no legal evidence clearly or manifestly adduced by the complainant to substantiate the allegations. The allegations in the FIR, if taken at their face value, do not constitute the offence alleged qua the petitioner as she is unmarried sister of the husband of complainant. In case the petitioner is made to face the trial, it would prove a stigma on her life. The law should be vigil that no innocent person is made to suffer from the rigmarole of the trial. All allegations of cruelty and dowry demand were at Chandigarh in Manimajra, whereas the complainant in order to harass the petitioner and her family members had filed the complaint at Bhiwani at her own convenience. Moreover, she herself got transferred to Bawani Khera, District Bhiwani so as to complete rural service which is a condition of her service. No case is made out against the petitioner under Sections 498-A, 323, 506 and 406 read with Section 34 IPC as well as Section 3 of the SC/ST Act. In case the complainant was tortured from the very inception, there would not have been such an inordinate and unexplained delay in lodging the present FIR. It is the complainant who has committed cruelty upon the petitioner by implicating her in a false case. The complainant should not be permitted to take benefit of her own wrong. The marriage between Abhinav Pal and the complainant was love-marriage and hardly any dowry was exchanged, but in order to settle the score, the complainant has made false and baseless allegations against the petitioner and the whole family. The petitioner is working on contractual basis in GMCH, Sector-32, Chandigarh and the story propounded by the 4 of 17 complainant is concocted which is aimed at to humiliate and harass the whole family of the petitioner. Now-a-days, it has become a tendency to involve the whole family in the proceedings like the present one.

Learned State counsel while making reference to the reply submitted by way of affidavit of Vijay Deswal, HPS, DSP, Bhiwani has argued that the FIR was registered on the complaint submitted by the complainant and during investigation, accused Abhinav Pal (husband) was arrested. The Challan was presented against him before the trial Court on 22.11.2015. Thereafter, supplementary Challan has been presented prepared against the petitioner on 04.02.2016.

Learned counsel for respondent No.2-complainant has argued that marriage between Abhinav Pal and the complainant was solemnised on 11.05.2014 and after the marriage, her husband, mother-in-law and sister-in- law (petitioner herein) started harassing the complainant for demand of dowry. Since the complainant belongs to Scheduled Caste, she was named under the caste. The petitioner and her family used to say that as the complainant belongs to Scheduled Caste, they cannot eat the food cooked by her. Sometimes, the complainant had noticed that her clothes were found cut from different places. At the same time, the mother-in-law of the complainant used to spend three hours in worship in the room of the petitioner. On asking about such offending act, the mother-in-law of the complainant used to pull hair of the complainant, whereas the petitioner used to move her hair in the air. The accused used to perform “dian-jadu” on the complainant, which had bad/adverse effect on the mind and body of the complainant.

5 of 17 He has further argued that Challan against the petitioner has been presented before the trial Court. Therefore, the FIR cannot be quashed qua the petitioner. He has referred to Sazid Khan Versus State of Haryana and another 2018(3) RCR (Criminal) 992 to contend that after investigation, police found angle of conspiracy which involved the petitioner as well. Once the police has found material against the accused and had presented Challan against the petitioner, the FIR cannot be quashed. He has also placed reliance upon Smt. Ravinder Kaur Versus Central Bureau (CBI) 2015 (2) RCR (Criminal) 871 wherein this Court has held that the Court cannot quash the proceedings when the matter has been investigated and charge-sheet has been submitted. The documents have to be examined and tested during the proceedings pending before the trial Court.

On the strength of judgment of Hon’ble Bombay High Court in Satish Dharmu Rathod and others Versus The State of Maharashtra and another 2017(1) AIR Bom. R (Cri) 779, learned counsel for respondent No.2 has argued that when the allegations levelled in the FIR make out a prima- facie offences of mental and physical cruelty as well as unlawful demand of money, the proceedings cannot be quashed under Section 482 Cr.P.C. Reliance has also been placed upon Rahul Bhargava Versus State (NCT) of Delhi and another 2018(4) RCR (Criminal) 658, wherein Hon’ble Delhi High Court has held that the question as to whether the averments made by the complainant were the gospel truth or not can only be decided after the parties are relegated to trial. The Court, at this stage, cannot grant the prayers made in the petition and no case is made out for quashing either the complaint 6 of 17 or the FIR registered at the behest of the complainant under Sections 498-A and 406 read with Section 34 IPC.

Learned counsel for respondent No.2 has further relied upon Jeba Tabassum Versus Md. Khalil Ahmed @ M.K. Ahmed and others 2018 All SCR (Crl.) 644 to contend that when charge sheet is filed and there is material against the accused persons, proceedings against them cannot be quashed without giving cogent reasons. Reliance has also been placed upon State of Bihar and another Versus P.P. Sharma and another AIR 1991 Supreme Court 1260(1) to contend that when after completion of investigation in the FIR, a report has been submitted by the police to the Magistrate and a prima-facie case is made out against the accused, the High Court should not interfere at this stage while exercising its inherent powers under Section 482 Cr.PC. The quashing of charge-sheet before cognizance is taken by the criminal Court amounts to killing a still born child. The High Court cannot quash the proceedings by taking into consideration the affidavit and documents submitted by the accused and the High Court cannot convert itself to a trial Court in exercise of its inherent jurisdiction.

I have heard learned counsel for the parties.

The petitioner is an unmarried sister-in-law of the complainant and is working in GMCH, Sector-32, Chandigarh. The report reveals that marriage between the complainant and her husband was a love-cum- arranged marriage as before the marriage, the parties were known/close to each other. The age difference between the complainant and her husband Abhinav Pal further substantiates the fact that they were known to each other much before the marriage. At the relevant time, when the FIR in question was registered, 7 of 17 the complainant was not residing in Chandigarh, rather, she was posted as Assistant Professor in Bawani Khera, District Bhiwani, whereas the petitioner never shifted to Bawani Khera and was living at Manimajra i.e. in Chandigarh only.

There is no allegation of entrustment of any dowry article to the petitioner. The complainant has named the petitioner, who is her unmarried sister-in-law probably because she was under the influence of some superstitions and was giving its effect upon the complainant. The petitioner is already well-placed in service and was in no need of any financial help and, therefore, it is too unrealistic to allege that the petitioner ever harassed the complainant for demand of dowry.

The argument of learned counsel for respondent No.2- complainant that once the report has been submitted to the Magistrate and a prima-facie case is made out from the FIR and charge-sheet is issued, the High Court should not interfere at this stage and quash the FIR in exercise of its inherent powers, has been considered by the Apex Court in Satish Mehra Versus State of N.C.T. of Delhi and another 2013(2) RCR (Criminal) 883 wherein the Apex Court has held that the High Court in its inherent powers can quash such proceedings. The relevant paragraph No.15 of the said judgment reads as under:

“15. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal 8 of 17 proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.”

Similarly, the Apex Court in Geeta Mehrotra and another Versus State of U.P. and another 2012(4) RCR (Criminal) 812 has held that in criminal cases arising out of a matrimonial dispute, a fact borne out of experience cannot be overlooked that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute.

9 of 17 Merely because the charge-sheet has been framed against the petitioner is no ground to decline the relief to the petitioner. There are bald allegations against the petitioner which suggest the anxiety of the informant to rope in as many as relatives of the husband as possible. The FIR is based on with self-imposed motives and was lodged against the petitioner, who was undisputedly not living with the complainant at Bawani Khera at the time when the FIR was registered and, therefore, the petitioner should not be made to suffer the ordeal of trial. Petitioner is unmarried sister-in-law of the complainant and, if trial against her is allowed to proceed in the matter, it shall bound to have adverse effect on her marriage prospect.

Coming to the facts of the case when the contents of the FIR are perused, it is apparent that there is no specific allegation against the petitioner for demand of dowry and it shows that she has been named/included in the FIR but for the reason that she is the unmarried sister of husband of the complainant. In Geeta Mehrotra and another’s case (supra), Hon’ble Supreme Court, while quashing the FIR against the family members of the husband has made following observations in paragraph Nos.21 to 24 of the judgment:

“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 10 of 17 dowry. But if the proceedings are initiated by the wife underSection 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.

22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side- tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.

23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters 11 of 17 arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.

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 cognisance 12 of 17 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.”

Merely by making general allegations that the petitioner was also involved in physical and mental torture of respondent No.2-complainant, without mentioning even a single incident against the petitioner as also the fact as to how she could be motivated to demand dowry when she is only related as sister of complainant’s husband, this Court finds that the criminal proceedings initiated against the petitioner are liable to be set aside being a total abuse of process of law.

Similar view was taken by Hon’ble Supreme Court in Preeti Gupta and another Versus State of Jharkhand and another 2010(4) RCR (Criminal) 45, wherein it has been held that in dowry harassment cases, a large number of complaints are not bona fide and a majority of complaints are 13 of 17 filed on advice with exaggerated versions. The relevant paragraphs No.28 to 31 of the said judgment are reproduced as under:

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, “cruelty’ means:

(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.”

14 of 17

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.”

The judgment in Sazid Khan’s case (supra) cited by learned counsel for respondent No.2-complainant has no applicability in the facts and circumstances of the present case as the said judgment relates to the offence under Sections 420, 406 and 120-B IPC as well as Section 138 of the Negotiable Instruments Act, 1881. Similarly, another judgment cited by learned counsel for respondent No.2-complainant in Smt. Ravinder Kaur’s case (supra) relates to the offence under the Prevention of Corruption Act, 1988.

15 of 17 This Court has reason to look into the judgment cited by learned counsel for respondent No.2-complainant in Satish Dharmu Rathod and others’ case (supra) and finds that the said case was in the background of territorial jurisdiction.

This Court, no doubt, is conscious of the fact that it is settled principle of law that for exercise of inherent powers under Section 482 Cr.PC, it is essential to proceed entirely on the basis of allegations made in the complaint or documents accompanied with it per se, but the Court has no jurisdiction to examine the correctness or otherwise of the allegations. The Apex Court in the matter of State of Haryana Versus Bhajanlal and others AIR 1992 SC 604 has delineated the guidelines in paragraph No.109 of the judgment, which reads as under:

“109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”

But at the same time, in the case in hand, this Court finds that no motive is established on the part of the petitioner to demand any dowry and as observed in the earlier part of this judgment, the complainant is probably influenced with a superstition. Moreover, the FIR in question was registered at Bawani Khera, District Bhiwani, whereas the petitioner, who is unmarried sister-in-law of the complainant, is residing in Chandigarh and is working in 16 of 17 GMCH, Sector-32, Chandigarh. At no point of time, petitioner ever stayed in Bawani Khera.

Therefore, having recourse to the provisions of Section 482 Cr.P.C., this Court finds that registration of the FIR against the petitioner is a total misuse of the process of law on the part of the complainant.

Accordingly, the present petition is allowed and the FIR No.39 dated 23.10.2015 under Sections 498-A, 323, 506 and 406 read with Section 34 IPC as well as Section 3 of the SC/ST Act registered at Women Police Station, Bhiwani and all consequential proceedings arising therefrom qua the petitioner are quashed.

                                                  (HARI PAL VERMA)
May 10, 2019                                           JUDGE
Yag Dutt




Whether speaking/reasoned:                  Yes

Whether Reportable:                         No

 

498a quash against mother in law

EXCERPT:  The most important material that has to be considered by this Court is the statement of LW1 in this case, who is the defacto complainant. The only allegation made against the petitioner is that this petitioner and the sister-in-law used to give ill-advice to the husband of the defacto complainant. The other allegations made against this petitioner does not satisfy the requirements of the term ‘cruelty’ found in Section 498A of IPC. The section itself makes it clear that the cruelty must be of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or or danger to life, limb or health (whether mental or physical) of the woman. Even though mental cruelty also falls as a component to attract the offence under section 498A of IPC, not every Act will satisfy the requirement, unless the mental cruelty is to such an extent as to cause grave injury to the victim wife.
Madras High Court
M.S.Parvatham vs State Rep By on 6 June, 2019
                                                            1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 06.06.2019

                                                         CORAM

                              THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                               CRL.OP.No.1500 of 2015
                                           and Crl.M.P.Nos.1, 2 and 3 of 2015


                      M.S.Parvatham                                                 ...Petitioner

                                                           Vs.


                      State rep by
                      The Inspector of Police,
                      W-22, All Women Police Station,
                      Mylapore, Chennai-4                                         ....Respondent



                      PRAYER: Criminal Original Petition filed under Section 482 of Criminal
                      Procedure Code, to call for the records relating to the order dated 07.10.2014
                      in Crl.R.C.No. 10 of 2013 on the file of III Additional Sessions Judge, Chennai
                      City confirming the order dated 18.01.2013 in Crl.M.P.No. 241 of 2013 on the
                      file of 18th Metropolitan Magistrate, Saidapet and set aside the same and
                      discharge the petitioner herein in C.C.No.3341 of 2011 on the file of
                      respondent police.


                                   For Petitioner       : Mr.AR.L.Sundaresan
                                                          Senior Counsel
                                   For Respondent       : Mr.C.Raghavan
                                                          Government Advocate




http://www.judis.nic.in
                                                              2

                                                    ORDER

This petition has been filed challenging the order passed in Crl.R.C.No.10 of 2013 confirming the dismissal of the discharge petition made in Crl.M.P.No. 241 of 2013.

2. It is seen from records that the petitioner has been added as A4 in the final report and she is the mother-in-law of the defacto complainant. The Final Report has been filed for the offences under Section 498A, 506 (ii) of IPC r/w section 34 of IPC.

3. Mr.AR L.Sundaresan, the learned senior counsel appearing on behalf of the petitioner submitted that there are totally four accused persons in this case and the petitioner, who is the mother-in-law was added as A4 in the Final Report. The learned senior counsel further submitted that a perusal of the statement recorded from the defacto complainant would make it clear that there are no allegations to substantiate the offence under section 498A, 506 (ii) of IPC r/w section 34 of IPC as against this petitioner. The learned senior counsel further submitted that the entire proceedings is an abuse of process of court insofar as this petitioner is concerned.

4. The learned Government Advocate appearing on behalf of the respondent submitted that at the stage of framing of charges, a strong http://www.judis.nic.in suspicion is enough and the material that is available on record makes a strong suspicion against the petitioner and therefore, the petitioner has to necessarily face the trial and establish her defence.

5. This Court has carefully considered the submissions made on either side and also the materials available on record.

6. The most important material that has to be considered by this Court is the statement of LW1 in this case, who is the defacto complainant. The only allegation made against the petitioner is that this petitioner and the sister-in-law used to give ill-advice to the husband of the defacto complainant. The other allegations made against this petitioner does not satisfy the requirements of the term ‘cruelty’ found in Section 498A of IPC. The section itself makes it clear that the cruelty must be of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or or danger to life, limb or health (whether mental or physical) of the woman. Even though mental cruelty also falls as a component to attract the offence under section 498A of IPC, not every Act will satisfy the requirement, unless the mental cruelty is to such an extent as to cause grave injury to the victim wife.

http://www.judis.nic.in

7. The materials available on record does not satisfy these requirements and therefore, the proceedings against the petitioner who is the mother-in-law is an abuse of process of Court and the same requires interference by this Court in exercise of its Jurisdiction under section 482 of Cr.P.C.

8. In the result, the proceedings as against the petitioner in C.C.No. 3341 of 2011 is hereby quashed and this Criminal Original Petition is allowed. The Court below is directed to complete the proceedings in C.C.No. 3341 of 2011 as against the other accused persons within a period of three months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petitions are closed.

06.06.2019 Index: Yes/No Internet: Yes/No mpa/uma http://www.judis.nic.in To

1. The III Additional Sessions Judge, Chennai.

2. The XVIII Metropolitan Magistrate, Saidapet.

3. The Inspector of Police W-22, All Women Police Station, Mylapore, Chennai-4.

http://www.judis.nic.in N.ANAND VENKATESH.J, mpa/uma CRL.OP.No.1500 of 2015 and Crl.M.P.Nos.1, 2 and 3 of 2015 06.06.2019 http://www.judis.nic.in

Supreme Court of India
Rasheed Beg And Ors. vs State Of Madhya Pradesh on 20 November, 1973
Equivalent citations: AIR 1974 SC 332, 1974 CriLJ 361, (1974) 4 SCC 264, 1974 (6) UJ 68 SC
Author: Dwivedi
Bench: S Dwivedi, Y Chandrachud

JUDGMENT Dwivedi, J.

1. The appellants along with six more were tried by the Additional Sessions Judge, Shahjahanpur, for various offences including the offence under Section 302 read with Section 149 I.P.C. He convicted nine persons and acquitted one of them, Noorbeg. Majeedbeg was sentenced to death, and the rest to life imprisonment for the offence under Section 302 read with Section 149 I.P.C. They were also awarded different sentences for other offences.

2. All the nine persons appealed to the High Court from the judgment of the Sessions Judge. The High Court acquitted four of them and maintained the conviction of the remaining five. The sentence of death awarded to Majeedbeg, appellant, was, however, converted into imprisonment for life. The sentences of the remaining four appellants; namely, Azizbeg, Waheedbeg, Maseedbeg and Rashidbeg were affirmed. They have now filed this appeal from the judgment of the High Court. They were jointly tried in two sessions trials numbers 104 and 105 of 1969 for the murder of two persons Chitubeg and Arifbeg. Briefly stated, the prosecution case was this: Azizbeg, the appellant, used to tease Saheb Noor, a daughter of Chitubeg. So there was bad blood between Chitubeg and Noorbeg, father of Azizbeg. On 16-7-1969 Chitubeg had invited the wife of Noorbeg to his house for tea and there had given her a beating. A report was lodged of the incident in the police station. On the same day, at about 3 or 4 p.m. Chitubeg with his son Arifbeg was going towards his field. When they reached near Munirbeg’s field, Majeedbeg, appellant, fired a gun shot. The shot hit, Chitubeg. Azizbeg, appellant, fired another gun shot. This shot hit Arifbeg on his left thigh. Both Chitubeg and Arifbeg fell down on the ground. Thereafter Azizbeg, Rasheedbeg and Majeedbeg, inflicted lathi and farshi injuries on them. Chitubeg died on the spot. The shrieks of Arifbeg were heard by his uncle Sardarbeg, who was working in a nearby field. He rushed to the spot. Rasheedbeg, aimed his gun at him. Sardarbeg raised an alarm, and the accused fled away. It is said that the rest of the five accused were armed with guns, farshis and axes. Arifbeg succumbed to his injuries on 24-8-1969.

3. All the accused pleaded not guilty. They further said that they have falsely implicated due to enmity.

4. The only direct evidence is that of Sardarbeg, uncle of Arifbeg. As regards the murder of Arifbeg there is an additional evidence. It consists of four dying declarations of Arifbeg. Two of them are oral, and the remaining two in writing. The oral dying declarations were made to Majeed Khan and Sardarbeg. The written dying declarations were made to L.N. Dubey, Investigating Officer, and Dr. S.P. Jain in the Sujalpur hospital. The dying declaration recorded by the Investigating Officer is Ex. P. 10 and the one recorded by Dr, S.P. Jain is Ex. P. 5. Ex. P. 10 was recorded earlier in time then Ex. P. 5.

5. The Sessions Judge does not appear to have relied on the oral dying declaration said to have been made to Majeed Khan, the brother-in-law of the deceased Chitubeg. He has relied on the oral evidence of Sardarbeg, the oral declaration made to him and the two written dying declarations of Arifbeg. So he held all the accused except Noorbeg guilty of the murder or Chitubeg and Arifbeg.

6. The High Court has disbelieved Sardarbeg for various reasons. The High Court has said : “Therefore about the actual incident the statement of Sardarbeg should be omitted altogether.” In the result, there was no legal evidence of the guilt of the nine persons convicted by the Sessions Judge for the murder of Chitubeg. The High Court said : “The conclusion therefore is that so far as the murder of Chitubeg is concerned, after discarding of Sardarbeg’s evidence there is no evidence about the actual killing of Chitubeg.” Accordingly the High Court acquitted all the nine persons of the murder of Chitubeg.

7. The High Court then proceeded to discuss the evidence in regard to the murder of Arifbeg. The oral evidence of Sardarbeg has already been discarded. So there remained only three dying declarations, one oral made to Sardarbeg, and two written made to the Investigating officer and Dr. S.P. Jain. The High Court says: “In this case there have been dying declarations and in fact the prosecution case depends only on dying declarations.” As it has disbelieved the oral evidence of Sardarbeg, naturally it has discarded the dying declaration said to have been made to him by Arifbeg. The High Court said : “The dying declaration as stated by him should be discarded as we do not believe him.”

8. After the two oral dying declarations have been discarded, there survived only the two written dying declarations, one made to the Investigating Officer and the other to Dr. S.P. Jain.

9. As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the Investigating officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbeg’s condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So the Tahsildar-Magistrate was called for record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S.P. Jain, however, recorded his dying declaration a little after the Tahsildar had gone back. The High Court has also noted another disconcerting circumstance. Majeed Khan, brother in law of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S.P. Jain. While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg, Azizbeg, Rasheedbeg, Waheedbeg & Maseedbeg, in his dying declaration to Dr. S.P. Jain he has implicated Azizbeg, Waheedbeg, Basheerbeg, Majeedbeg, ‘Maseed Beg, Noorbeg & Rasheedbeg. In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence. The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said : “Whatever the condition of Arifbeg may be whether there was some improvement or not the condition when the Sub-Inspector took the declaration was not very good as also the condition when the doctor himself recorded the same. It may be that he gained consciousness. We feel that it will be safe to accept the names of the accused persons common in the dying declarations made to these two persons-Sub-Inspector and Medical Officer to hold that they took part in the assault on Arifbeg.” The word “feel” has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants. Accordingly the appeal is allowed and the order of the High Court convicting the appellants is set aside. They shall be released forthwith if not required in any other case.

Kake Singh Alias Surendra Singh vs State Of Madhya Pradesh

 

Supreme Court of India
Kake Singh Alias Surendra Singh vs State Of Madhya Pradesh on 2 April, 1981
Equivalent citations: AIR 1982 SC 1021, 1982 CriLJ 986, 1981 Supp SCC 25
Author: S M Ali
Bench: A Varadarajan, S M Ali

JUDGMENT S. Murtaza Fazal Ali, J.

1. This appeal by certificate is directed against a judgment of the Madhya Pradesh High Court by which the appellant Kake Singh alias Surendra Singh was convicted under Section 304, Part II I.P.C. and sentenced to 10 years rigorous imprisonment. The trial Court had convicted the appellant under Section 302, I.P.C. and sentenced him to death.

2. The solitary evidence against the appellant consists of the dying declaration alleged to have been made, by the deceased Tulsi Baba before Head Constable D. N. Verma (P.W. 8). We have gone through the dying declaration and we find that the dying declaration presents suspicious features. In the first place, Tulsi Baba had himself lodged a complaint before the police against the accused that there was some dispute about the house which Kake wanted Tulsi Baba to vacate and had given threats that he would, come to serious harm if he does not vacate the house. Despite this threat, according to the dying declaration, the deceased readily agreed to take a round in the jeep along with Kake and two others. Indeed, in view of the enmity it is hard to believe that the deceased would trust the accused and go with him at a late part of the night and invite trouble for himself. Another important circumstance that throws doubt on the dying declaration is that Tulsi Baba was alleged to have been missing from Jan. 30, 1975, as would appear from the report made before the police station by P.W. 3. The doctor who held the autopsy of the deceased in his statement has not categorically stated that at the time when the deceased was burnt he was conscious or could give any coherent statement. The deceased was burnt and a good part of the brain was also burnt and therefore the possibility is that he must have become unconscious. This is intrinsically supported by another important factor. The doctor found not only burns on the body of the deceased but also other injuries which could have been inflicted on him by lat his which had caused lacerations and haematoma. In his statement the deceased makes no mention at all of any such injuries although one of the injuries caused to him resulted in fracture of sternum. There is no reference at all to the manner in which the deceased could have got the fracture of the sternum. The cumulative effect of these circumstances therefore leads to the irresistible conclusion that the deceased was unconscious and never made any such statement. Once the dying declaration is disbelieved, then there remains no legal evidence on the basis of which the appellant could be convicted.

3. The High Court had given the certificate mainly on the ground that having regard to the statement of the deceased, the only offence that could have been made out would foe one under Section 326 and not that under Section 304, Part II, I.P.C., if the charge under Section 302 failed. It is not necessary for us to go into this question because in view of the fact that the dying declaration cannot be accepted, the appellant is entitled to an acquittal.

4. The appeal is accordingly allowed, the judgment of the High Court is set aside and the appellant is acquitted of the charges framed against him. The appellant is discharged from his bail-bonds and need not surrender.

Supreme Court of India
Ram Manorath vs State Of U.P on 10 March, 1981
Equivalent citations: 1981 SCR (3) 195, 1981 SCC (2) 654
Author: Y Chandrachud
Bench: Chandrachud, Y.V. ((Cj)
           PETITIONER:
RAM MANORATH

	Vs.

RESPONDENT:
STATE OF U.P.

DATE OF JUDGMENT10/03/1981

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SEN, A.P. (J)

CITATION:
 1981 SCR  (3) 195	  1981 SCC  (2) 654
 1981 SCALE  (1)527


ACT:
     Indian  Penal   Code  1860,  Ss.  302  and	 149-Murders
committed by  members of  an unlawful  assembly-Acquittal of
some-Effect on	prosecution of	remaining-Death sentence for
two and life sentence for others-Propriety of.



HEADNOTE:
     Out of  twelve persons, charged with the offences under
section 302  read with	section 149 I.P.C. and various other
charges, eight	were convicted.	 Two of	 them, C  and R were
sentenced to  death  while  the	 others	 were  sentenced  to
imprisonment for  life. The  High  Court  upheld  the  death
sentence of  two accused,  acquitted one  and confirmed	 the
conviction of others.
     The case  of the prosecution was that on the day of the
occurrence at  about sun-set C shot dead two of the deceased
while two  others were	shot by R. The prosecution relied on
the dying  declaration of  one of  the deceased and examined
four eye witnesses.
     In appeals	 to this Court it was contended on behalf of
the appellants	that the  fact that  the trial court did not
find  it   safe	 to  accept  the  prosecution  evidence	 and
acquitted five out of twelve persons mentioned in the F.I.R.
at one	stage or  the other  should be sufficient to discard
the prosecution	 case in  respect of  the other	 accused  as
well.
     Allowing the appeals in part,
^
     HELD: 1(i).  It is difficult to hold that the witnesses
had made  out an  entirely false  or concocted story against
the appellants.	 The circumstance  that three  of  the	four
prosecution witnesses  had been injured during the course of
the incident affords a strong guarantee of their presence at
the scene of the occurrence. There is also no reason why the
four eye  witnesses should falsely implicate persons against
whom they had no grouse. [197 F-G]
     (ii). The reason why the trial court and the High Court
acquitted some	of the	accused was that in the case of some
of them	 there was a possibility of mistaken identity while,
in regard  to some  others, the	 evidence was  not of such a
nature or  character as	 to justify  the acceptance of their
complexity beyond a reasonable doubt. [197 H]
     2. One  of the  accused J	must be	 acquitted  for	 the
reason that  though his	 name was  mentioned  alongwith	 the
names  of   eleven  others   at	 the  outset  of  the  First
Information  Report,  the  text	 of  that  report  does	 not
attribute any part to him at all. His name had been included
in an  omnibus manner,	by saying  that he along with others
wielded his lathi. [198 C-D]
196
     3. It  is unsafe  to sentence  C and R to death. One of
the deceased  implicated R  in his  dying declaration as the
person, who  shot at  him but  as pointed  out by  the Trial
Court itself,  the dying  declaration suffers  from  several
infirmities and, it cannot therefore, be relied upon for the
purposes of  holding that  it was this accused, who shot the
deceased. Secondly,  the occurrence took place an hour after
sun-set and it is hardly likely that if a large group of ten
or twelve  persons had	formed	an  unlawful  assembly,	 the
witnesses would	 be in a position to identify minute details
of the	incident.  The	prosecution  version  in  regard  to
specific overt	acts that  C and  R fired shots resulting in
the fatal injuries to the two deceased seems exaggerated. No
distinction can	 be made  in the  case of the other accused,
who have been sentenced to life imprisonment and the case of
these two accused. The sentence of death imposed on them is,
therefore, set aside. They are sentenced to imprisonment for
life. [198 E-G, 199 B-D]
     4.	 The   conviction  and	sentence  of  the  remaining
appellants are confirmed. [199 E]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 345 & 346 of 1978.

Appeals by special leave from the Judgment and Order dated 14.1.1978 of the Allahabad High Court (Lucknow Bench) in Criminal Appeals Nos. 496, 508 and 542 of 1977.

Frank Anthony and Sushil Kumar for the Appellant. H.R. Bhardwaj, G. S, Narayanan and R. K. Bhatt for the Respondent.

The Judgment of the Court was delivered by CHANDRACHUD, C. J. Twelve persons were put up for trial before the learned Additional Sessions Judge, Bahraich on various charges, the principal charge being under section 302 read with section 149 of the Penal Code. The learned Judge acquitted four persons and convicted the remaining eight of the offences of which they were charged. Two out of those eight persons namely, Chhotey and Ram Manorath were sentenced to death while the remaining six were sentenced to imprisonment for life. The sentences awarded for the other offences were directed to run concurrently with that sentence. The High Court of Allahabad acquitted one more person and convicted the remaining seven. The High Court also upheld the death sentence awarded to Chhotey and Ram Manorath. From out of the seven persons convicted by the High Court, only six are before us since one of them, Baijnath, who was awarded life imprisonment has not appealed from the judgment of the High Court.

The incident out of which these proceedings arise took place at about sunset time on December 5, 1973 in a village called Bhawanipur. Four persons died during the course of that incident, namely, Guley, Abbas, Wali Mohammad and Nankau. Guley and Abbas are alleged to have been shot dead by Chhotey while the other two are alleged to have been shot by Ram Manorath. Guley and Abbas died instantaneously, Nankau a little later and Wali Mohammad about a week later.

In support of its case the prosecution examined four eye witnesses: Noor Mohammad, P. W. 1, Shaukat Ali, P. W. 2, Nafees, P. W. 4 and Naeem, P. W. 5. The prosecution also relied on the dying declaration of Wali Mohammad which was recorded by a Magistrate. The evidence of these four witnesses as also the dying declaration have been accepted by both the Courts.

Shri Frank Anthony, who appears on behalf of five out of the six appellants before us, has drawn our attention to various circumstances which according to him render the entire prosecution case suspect and unacceptable. It is urged by the learned counsel that a large number of persons were roped in on mere suspicion which is shown by the very fact that five out of the 12 persons who were mentioned in the First Information Report were acquitted at one stage or the other for the reason that it would not be safe to accept the evidence led by the prosecution against those persons. The same test, according to the learned counsel, must apply to the cases of the remaining accused also. Having considered this submission and the other submissions made by the learned counsel, we find it difficult to hold that the witnesses have made out an entirely false or concocted case against all the appellants. Out of the four eye witnesses examined by the prosecution, Noor Mohammad, Shaukat Ali and Nafees were indisputably injured during the course of the incident in question and that circumstance affords a strong guarantee of their presence at the scene of offence. Counsel himself urged that there was no motive for the offence. If that be so, we are unable to understand why the four eye witnesses should falsely implicate persons against whom they have no grouse. The reason for the acquittal of some of the accused by the Trial Court and the High Court is that there was, in the case of some of them, a possibility of mistaken identity while, in regard to some others, the evidence was not of such a nature or character as to justify the acceptance of their complicity beyond a reasonable doubt. The injuries received by Shaukat Ali, P. W. 2 are quite serious. P.W. 4, Nafees was not concerned with the incident in any other manner because he was engaged as a mere labourer by the deceased, Wali Mohammad. In so far as the remaining two witnesses namely, P.W.1 and 5 are concerned, their presence was virtually admitted on behalf of the principal accused Baijnath who has not chosen to file any appeal before us.

Though this is the true position, we do not consider it proper to accept wholly the evidence led by the prosecution without examining the case of each one of the accused. In that process we find that the appellant Jaisee ought to be acquitted. It is undoubtedly true as contended by Shri Bhardwaj, who appears on behalf of the State of Uttar Pradesh, that Jaisee’s name is mentioned in the F.I.R. and that he has been implicated by all the four prosecution witnesses. But the difficulty which we find in accepting the case of the prosecution against this accused is that though his name is mentioned along with the names of eleven other persons at the outset of the First Information Report, the text of that report does not attribute any part to him at all. His name has been included in the text of the report in an omnibus manner by saying that he, along with others, apart from Chhotey and Ram Manorath who were armed with guns, wielded his lathi.

There is one more aspect of the matter which merits serious attention, and that is whether the death sentence imposed on Chhotey and Ram Manorath must be confirmed. Having given our anxious consideration to this question, especially since four persons were done to death, we find it unsafe to sentence these two accused to the extreme penalty of law. In so far as Ram Manorath is concerned, he is alleged to have shot at Wali Mohammad and Nankau. Wali Mohammad has implicated Ram Manorath in his dying declaration as the person who shot at him but, Shri Sushil Kumar, who appears for Ram Manorath, has very tellingly demonstrated how unsafe it will be to accept the dying declaration. The learned Trial Judge has himself pointed out in paragraph 104 of his judgment the various infirmities from which the dying declaration suffers. We are quite clear that the learned counsel is right in cautioning the Court against the acceptance of the dying declaration which suffers from the infirmities pointed out by the Trial Court. We cannot, therefore, rely on the dying declaration for the purpose of holding that it was Ram Manorath who shot at Wali Mohammad. But then Shri Bhardwaj relies on the evidence of the four witnesses and contends that the part played by Ram Manorath is established on that evidence. On that aspect of the matter, we have a serious difficulty in accepting as its face value the evidence of these witnesses in so far as they say that they saw Chhotey and Ram Manorath firing shots at Guley, Abbas, Wali Mohammad and Nankau. It may be recalled that the incident occurred on December 5, 1973 and the almanac shows that the time of the sunset on that day was 5.13 p.m. The incident happened nearly an hour after the sunset and it is hardly likely that if a large group of ten or twelve persons had formed an unlawful assembly, the witnesses would be in a position to identify minute details of the incident. There is not the slightest doubt that the four persons, who died during the course of the incident in question, were done to death by persons who were members of the unlawful assembly, some of whom have been convicted by the trial court and the High Court. But we are unable to accept the prosecution version which, in regard to specific overt acts seems exaggerated, that Chhotey and Ram Manorath fired the shots which resulted in the fatal injuries. No distinction can, therefore, be made in the cases of the other persons who have been sentenced to life imprisonment and the cases of these two persons. We must, therefore, set aside the death sentence imposed upon them.

The result is that the appeals are partly allowed. The appellant Jaisee is acquitted of all the offences of which he was charged and he shall be released so far is the present case is concerned. The conviction of appellants Chhotey and Ram Manorath for the various offences is confirmed but the sentence of death imposed upon them is set aside. We sentence them to imprisonment for life. The conviction and sentence of the remaining appellants are confirmed.

N.V.K.				     Appeals partly allowed.