harassment Archives

Kar HC | Teacher aged 55 years harassed a student on separate occasions, booked under POCSO, released on bail

Karnataka High Court: H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

The factual matrix of the case of the prosecution is that this petitioner is a PT teacher and he misbehaved with a student who is studying in 10th standard and he had indulged in the same act when she was in 8th and 9th standard also. When the victim girl was unable to tolerate the act of this petitioner, a complaint was given to the Principal of the school and pursuance of the said complaint, the Principal of the school had lodged the complaint and case has been registered under Sections 8 and 12 of POCSO Act. This petition is filed under Section 439 of CrPC. seeking regular bail of the petitioner in a crime registered at Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).

Counsel for the petitioner submitted that the petitioner is aged about 55 years and the complaint discloses that there was a delay in lodging the complaint and afterthought only a false complaint is lodged and no such complaint is filed earlier and investigation has already been completed and the petitioner has been in custody from last two months. The maximum punishment for the said offence is five years and hence he may be enlarged on bail subject to conditions.

Counsel for the respondent-State submitted that the complainant immediately has not lodged the complaint. When the victim girl brought to the notice of the friends, the friends told her to lodge a complaint with the Principal and accordingly the complaint is lodged and statement under Section 164 CrPC of the victim was also recorded before the Court wherein also she has reiterated the very act of the petitioner.

The Court observed that particularly the complaint given by the Principal, specific allegation is made against the petitioner that this petitioner had indulged in committing of the offence under Sections 8 and 12 of the POCSO Act and the fact that the victim girl is a student of this petitioner is not in dispute. However, having taken note of the punishment provided for the said offence is for a period of maximum five years and the petitioner is in custody from last two months and investigation has already been completed and charge-sheet is also filed, hence there is no need of custodial trial and the matter requires to be decided in trial.

The Court held “it is appropriate to exercise the powers under Section 439 of Cr.P.C. with conditions.” [N R Sugandaraju v. State of Karnataka, Criminal Petition No. 2917 of 2022, decided on 17-05-2022]

Appearances

For Petitioners- Mr. IS Pramod Chandra

For respondents- Mr. KS Abhijith and M Somashekhara

Arunima Bose, Editorial Assistant has reported this brief.

Case Briefs High Courts

Injuries found on person of deceased who was more than 6 months pregnant, but MM ignored postmortem report: Will onus be on husband to offer an explanation under S. 104 Evidence Act? Read to know

Delhi High Court: Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

Further, the Court also remarked that,

“…shifting of the focus only to the injection pricks and the damage to the ribs caused by attempts to resuscitate the deceased, was a complete non-application of mind, bordering on perversity.”

A petition was filed under Section 482 of the Criminal Procedure Code by an accused in FIR under Section 498A of the Penal Code, 1860.

When the petitioner’s wife conceived and was carrying twins, she was allegedly given an injection for iron due to which she developed complications and died.

Respondent 2, father of the petitioner’s wife registered an FIR for an offence under Section 498A IPC against the petitioner, who was arrested and subsequently granted bail. While hearing the arguments, MM concluded stating that no prima facie case had been made out for framing of charge against the petitioner.

On being aggrieved with the above, the State preferred a revision before the ASJ who considered the matter and was of the view that the documents of the accused could not have been considered at the time of arguments on the point of charge as has been held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

Analysis and Decision

High Court noted that the MM usurped the powers of the Sessions Court and concluded that the charge under Section 304B IPC could not be made out “by any stretch of imagination”, relying only on the first statements made to the SDM by the parents of the deceased and the observations in the postmortem report that in all probability the cause of death was natural due to some pathological state related to pregnancy rather than an unnatural external event. Hence, the Sessions Court rightly intervened to set aside the said conclusions.

The Bench observed that Section 304B IPC is attracted in cases where a woman dies under circumstances otherwise than normal, within 7 years of marriage, and was subjected, soon before her death, to cruelty or harassment.

With respect to the present matter, Court stated that the injuries were found on the person of the deceased who was more than 6 months pregnant with twins, during her residence with petitioner, and the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

In Court’s opinion, the conclusion drawn by the MM were wrong and the same had been corrected by the ASJ by a very well-reasoned order.

Hence, no perversity or miscarriage of justice was evident from the impugned order.[Jaikishan Datwani v. State, 2022 SCC OnLine Del 1380, decided on 9-5-2022]

Advocates before the Court:

For the Petitioner:

Mr Hitendra Kumar Nahata, Advocate.

For the Respondent:

Mr G.M. Farooqui, APP for State with SI Inder Veer Singh. Respondent No.2 in person.

Case Briefs High Courts

MP HC | Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Madhya Pradesh High Court: Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

The complainant (herein respondent 2) along with her brother made a written complaint stating therein, that her marriage was performed with the petitioner and her father had given sufficient dowry including spent of Rs.15 lac for her marriage and had given cash of Rs.15 lac at the time of ”Tika”. After some days of her marriage, her in-laws started demanding dowry and also, committed ”marpeet” and thereafter, turn out of her in-laws house. A complaint was also made in the conciliation centre but no fruitful purpose could be served. It was further alleged that petitioner 1, 2,3 and 4 were demanding Rs. 15 lac for purchase of a flat and if she did not fulfill the same, they could not keep her in house and would kill her.

Counsel appearing for the petitioners submitted that the entire allegations are completely false and FIR itself lodged with clear motive to harass and pressurize the petitioners. It was submitted that the complainant was a quarrelsome lady and used to quarrel with her in-laws as she has no interest to live peacefully with them and even she does not want to live with her husband. The attitude as well as conduct of complainant towards her in-laws is not good since the date of marriage. On account of conduct and behaviour of complainant petitioner 1 filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage before Family Court, petitioner 3 had also filed a complaint before the Court of AJCM under Sections 406, 504 of IPC against the complainant and her family and on the basis of counter-blast, the complainant had falsely lodged the present FIR against the petitioners.

The controversy involved in the present matter was as to whether impugned FIR has been lodged by complainant with a revengeful intent or only to wreck vengeance as against the petitioners or not?

The Court relied on the judgment of the Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 wherein it has been held that where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge, then criminal proceeding can be quashed exercising the inherent jurisdiction of the High Court under Section 482 of the Code. Similar judgment was also given by the Supreme Court in Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443.

The Court was of the view that allegations made against petitioners were general and omnibus, therefore, they cannot be prosecuted under Section 498A of IPC. It was further stated by the Court that in the case at hand, earlier a petition under Section 13 of Hindu Marriage Act was filed by husband of complainant and then a complaint was also filed by father-in-law of complainant where-after, the conciliation proceedings could not be succeeded due to difference of thoughts whatsoever between complainant and her husband. The Court believed that the FIR made by complainant was nothing, but only to wreck vengeance so also with a revengeful intent in order to pressurize and harass the petitioners.

The Court allowed the petition and held that the fact that respondent 2 had left her matrimonial home voluntarily without any rhyme and it was a fault on the part of the complainant to live separately prior to filing of the impugned FIR and in absence of specific allegation of demand of dowry or harassment, the impugned FIR deserves to be quashed.[Alok Lodhi v. State of M.P., 2022 SCC OnLine MP 750, decided on 07-04-2022]

Shri Prasun Maheshwari, counsel for petitioners.

Shri Nitin Goyal, Panel Lawyer for respondent 1/State.

Shri Suresh Agrawal, counsel for respondent 2.

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs District Court

Spanking on back of a woman without her consent, by a man would constitute an offence under Stalking as defined under S. 354D (1)(i) IPC? Court explains

Court of 30^th Additional Chief Metropolitan Magistrate, Bengaluru: I.P. Naik, 30^th ACMM, addressed a case wherein a pillion on a bike harassed a woman by spanking her on the back.

Factual Background

Prosecution submitted that accused 2 a pillion rider on a motorcycle with accused 1 being the rider, spanked PW1 – Mrs Divya Chaitanya and harassed her.

Analysis, Law and Decision

Court noted antecedent enmity between the PW1 and accused persons.

“PW1 being a lady would be looked upon with honor.”

The Bench further, expressed that as per Indian culture and customs and as per the veda and puranas “Yathya Nari Poojyanthe, thatha Devatha Poojitha”. It means, wherever the female is looked upon with honour and respect, there, the almighty will be worshipped.”

Stating that without any consent, accused 2 spanked PW1 and harassed, hence there was no other ground to reject the testimony of PW1.

Common intention of accused 1 and 2

No clinching evidence was found in furtherance of the common intention any act was done by accused 1 in order to help the accused 2 at the time of the commission of the alleged offence.

Mere presence is not ground for common intention for proving the prior meeting of minds.

This Court relied on the Bombay High Court decision in Mahhub Shah v. Emperor, (1945) 47 Bom LR 941, wherein it was held that,

Para No.13:- In 1870, it was amended by the in section of the words “in furtherance of the common intention of all” after the word “persons” and befoe the word “each,” so as to make the object of the section clear, Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say “the common intention of all” nor does it say “an intention common to all”. Under the section, the presence of that liability is to be found in the existence of a common animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of fall, if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal cat was done in concert pursuant to the prearranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual, in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.

Bench opined that mere say of presence in respect of accused 1 itself would not constitute common intention as defined under Section 34 of the Penal code, 1860.

In the present matter, physical contact without consent amounted to sexual harassment as defined under Section 354-D(1)(I) of IPC. The alleged offence was covered under the meaning of Stalking.

Expressing that accused 2 was like a road Romeo he was not entitled to be released on P.O. Act. Bail bond executed by the accused stood cancelled. [State v. Harish, 9015 of 2019, decided on 5-1-2022]

Case Briefs High Courts

Constant quarrels between husband and wife: Bom HC observes while granting bail to husband accused of dowry and cruelty

Bombay High Court: Sarang V. Kotwal, J., on noting that the husband and wife cannot live together and there were constant quarrels between them, granted bail to the husband who was accused under the provisions of Dowry Prohibition Act and Penal Code, 1860.

The Bench remarked that,

Applicant’s custody will not really solve the issue. Even for the purpose of investigation his custodial interrogation is not necessary. He can be asked to co-operate with the investigating agency.

The applicant sought anticipatory bail for the offences registered under Sections 498-A, 323, 504, 406, 506(2) of the Penal Code, 1860 and under Sections 3 and 4 of the Dowry Prohibition Act.

Background

The applicant’s wife had lodged an FIR, wherein she submitted that the applicant’s family wanted gold coins each for their family members, but the informant and her family refused to give those. After the marriage, the in-laws uses to talk about their demands and used to cause harassment to the informant. Her sister-in-law and father-in-law used to instigate the applicant and thereafter the applicant used to insult and humiliate the informant.

There are allegations that the Applicant had inflicted some wounds on himself to show that the informant had assaulted him.

Due to the above, the informant left and started residing with her sister. Later the applicant demanded to see his child and made the false allegation to the police.

In view of the above said, the FIR was lodged.

Analysis, Law and Discussion

High noted that the FIR shows how the applicant and the informant just cannot live together. There were constant quarrels between them.

There are complaints filed by the Applicant and the informant against each other.

Therefore, Bench held that the applicant’s custody would not really solve the issue as there are allegations and counter-allegations, which can only be decided during the trial.

Order

Applicant to be released on bail on his furnishing PR bond in the sum of Rs 30,000 with one or two sureties in the like amount.
Applicant shall attend the Police Station concerned as and when called and shall cooperate with the investigation.
Application stood disposed of.

[Shivek Ramesh Dhar v. State of Maharashtra, 2022 SCC OnLine Bom 220, decided on 14-1-2022]

Advocates before the Court:

Resham I. Sahni, Advocate for the applicant

A.A. Takalkar, APP for the State/Respondent

Case Briefs High Courts

J&K HC | Dowry Prohibition Act vis-a-vis J&K Dowry Restraint Act; HC blurs the line between the two

Jammu and Kashmir High Court: In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

The instant petition had been filed by the mother of the deceased against the impugned order of the Trial Court by which the respondents were discharged of offence under section 304-B RPC and instead charges were framed for offences under sections 306 and 498-A/34 RPC.

Background

The allegations against the respondents were that they used to demand dowry and a car from the deceased and although the amount of two lakhs was paid by the petitioner, neither the atrocities against the deceased came to an end nor the demand for dowry. The allegation was levelled that the husband, father in law, mother in law and brother in law had started beating the deceased and they also snatched her phone which had compelled the deceased to take her own life and she committed suicide.

The grievance of the petitioner was that the Trial Court had altered the charge from 304-B RPC to 306 and 498-A/34 RPC despite the fact that there was abundant evidence on record for framing of charge under section 304-B RPC.

Question of Law

Whether the definition of the dowry as defined under the J&K Dowry Restraint Act 1960 is entirely different vis-a-vis dowry as defined under the Dowry Prohibition Act, 1961 that is applicable to the whole of the India excluding the then State of Jammu and Kashmir?

The controversy had arisen because the definition of the dowry as contained in the Dowry Restraint Act, 1960 as was applicable in the erstwhile State of J&K, was very restrictive in its application whereas the definition of a dowry as contained in the Dowry Prohibition Act, 1961 as applicable in rest of the India except the erstwhile State of Jammu and Kashmir was of wider amplitude.

Observations of the Trial Court

As per definition of dowry as defined under the Dowry Restraint Act, 1960, dowry means any property transferred or agreed to be transferred as a part of any betrothal, marriage, pre-betrothal, post-marriage ceremony and other ceremonies such as Thaka, Rophera, Duphera, Phirsal, Phersuzen and like ceremonies.

The section contemplates the transfer of a property or agreement for transfer of a property as a part of contract in connection with the ceremonies. The Trial Court discharged the respondents on the premise that there was no such contract between the parties as such offence under section 304-B RPC was not made out and further that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car soon before her death.

Analysis and Findings

Opining that the reasons furnished by the Trial Court for non-applicability of section 304-B RPC just because there was no contract within the meaning of section 2 of Dowry Restraint Act, 1960 were not convincing, the Bench clarified, the section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word “dowry” can contemplate other situations/persons as well.

If the interpretation of the trial court is accepted, then none other than the husband, his father and mother can be proceeded against under section 304-B RPC and it would do violence not only to the statue but also the legislative intent behind it.

Section 304-B RPC contemplates the death of woman with in the period of 7 years and also the persons who can be proceeded against under section 304-B i.e. husband and his relatives where as the section 2 of the Act 1960 contemplates persons to be proceeded against as party to the marriage or betrothal and father, mother and guardian of the party. The Bench expressed,

“Section 2 of the Dowry Restraint Act, 1960 begins with expression “In this Act unless the context otherwise requires” meaning thereby that the definition of “Dowry” used in the Act 1960, cannot be put in to straight jacket formula and if the Act of 1960 necessitates or requires, then the word ‘dowry’ can contemplate other situations/persons as well.”

Therefore, the Bench concluded that the definition of dowry under the Act, 1960 cannot be given stricter meaning so as to defeat the very purpose of the statute. On the issue, whether there was any evidence on record to justify framing of charge under section 304-B RPC with regard to the demand of dowry, the Bench cautioned that the court is not supposed to hold mini trial at this stage (framing of charges).

Considering that the deceased died because of suicide within the seven years of marriage and the presumption of dowry death was wrongly rejected by the Trial Court on the ground that there was no evidence that the deceased was subjected to cruelty by the accused in relation to the demand of the dowry or a car “soon before her death”, the Bench cited Satbir Singh v. State of Haryana, (2021) 6 SCC 1, to remind the Court that when the legislature used the words, “soon before” they did not mean “immediately before”.

Conclusion

In the light of above, the petition was allowed and the impugned order was set aside with the direction to the Trial Court to frame the charges for commission of offences under Section 304-B, 498-A/34 RPC against the respondent 2 to 4. [Shakuntla Devi v. Union Territory of J&K, 2021 SCC OnLine J&K 1002, decided on 10-12-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Ajay Bakshi, Advocate

For the UT of J&K: Aseem Sawhney, AAG

For Respondents: Satinder Gupta, Advocate

Case Briefs High Courts

Del HC | Husband, his family harass wife for dowry leading to her committing suicide. Can settlement between accused and wife’s father be accepted? Court decides

Delhi High Court: Mukta Gupta, J., decided whether a settlement of parties wherein an accused and his family members who subjected his wife to harassment due to which the wife committed suicide can be accepted or not?

By the present petition, 5 petitioners sought quashing of an FIR under Sections 498A, 304B, 34 Penal Code, 1860 on the ground that the parties have settled.

In the above-noted FIR, respondent 2 had stated that his daughter got married to petitioner 1 who was unemployed and this his parents used to bear the expenses. After the marriage, the in-laws of his daughter started demanding dowry though nothing was demanded at the time of the marriage and respondent 2 had performed the marriage as per his capacity.

Later the daughter was harassed by her husband, mother-in-law, brother-in-law and two nieces.

One day, respondent 2 got a phone call that his daughter had committed suicide.

During the pendency of the investigation, petitioners and respondent 2 entered into a memorandum of understanding and as per the terms of the settlement, the parties entered into a settlement without any coercion and without any transfer of money.

Even respondent 2 agreed that he had no claim and grievance against the petitioners and will cooperate in the quashing petition preferred before this Court as also make sincere efforts in getting the petitioners released on bail and that no grudges were left between the parties.

Analysis, Law and Decision

High Court cited the Supreme Court decision in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641, wherein it was clearly held that where serious and grave offences are involved, the quashing of FIR cannot be allowed on the basis of the compromise. Broad principles were also laid down in respect of the inherent power of the High Court to quash the first information report or the criminal proceedings.

Bench held that in the present case, a woman committed suicide within five months of her marriage due to harassment caused by the husband and his family members and the offences punishable under Section 304-B IPC were not only grave and heinous but an offence against the society actuated by the social evil of demand od dowry, therefore needs deterrence nad cannot be quashed on the basis of settlement arrived between the accused and complainant.

In view of the above discussion, the petition was dismissed. [Dalbir Singh v. State GNCT of Delhi, 2021 SCC OnLine Del 5449, decided on 17-12-2021]

Advocates before the Court:

For the Petitioner: Vikrant Chowdhary, Pradeep Chowdhary, Advocates (through VC)

For the Respondent: Kamna Vohra, ASC for the State with Inspector Hari Singh, P.S. Tilak Nagar

Case Briefs High Courts

Insisting to repair a car borrowed by a friend who met with an accident: Can this be intentionally aiding and abetting to suicide? Madras HC decides

Madras High Court: V Bharathidasan, J., held that,

Mere harassment without any mens rea which lead to the suicide would not amount to an offence under Section 306 Penal Code, 1860.

Petitioner, sole accused was charged for an offence under Section 306 of the Penal Code, 1860 sought to quash criminal proceedings.

Deceased, son of the second respondent was working in a private courier company with the petitioner/accused. Deceased borrowed the petitioner’s car and went to Puducherry, while he was returning back, the car met with an accident. Later, the deceased got the car repaired and handed it over to the petitioner/accused.

On not being satisfied with the repair, the petitioner/accused insisted the deceased get the car properly repaired.

In view of the above, the deceased committed suicide by hanging in his friend’s house and left two suicide notes alleging that due to the harassment of the petitioner he was committing suicide. Subsequently, the mother of the deceased filed a complaint.

Analysis, Law and Decision

High Court noted that the allegation against the petitioner was that, the deceased borrowed the petitioner’s car to go to Puducherry and on his way back, the car met with an accident, which was not properly repaired, which ultimately led the deceased committing suicide.

Bench on perusal of the suicide notes found no offence, much less an offence under Section 306 IPC was made out. In the suicide notes, there was nothing to suggest that the petitioner instigated the deceased to commit suicide. To bring the case within the ambit of Section 306 IPC, there must be materials to show that, the persons who is stated to have abetted the commission of suicide played an active role in instigating and facilitating the commission of suicide.

In the present matter, materials on record do not indicate that the petitioner intentionally abetted the deceased to commit suicide, and no prima facie offence under Section 306 IPC was made out.

Therefore, the criminal proceedings were liable to be quashed. [M. Maryson v. State, 2021 SCC OnLine Mad 5993, decided on 25-11-2021]

Advocates before the Court:

For Petitioner: Mr. R. Rajarathinam

For Respondent 1: Mr. C.E. Pratap, Government Advocate (Crl. Side)

For Respondent 2: No appearance

Case Briefs High Courts

Harassment to grab senior citizen’s property | 94-year old father approaches Court stating he doesn’t want his daughter even for one-minute longer: Read Bom HC’s decision

Bombay High Court: Noting in case after case, complaints from senior citizens that their own sons and daughters are harassing them, Division Bench of G.S. Patel and Madhav J Jamdar, JJ., expressed that,

“…the harassment is an attempt to somehow grab the senior citizen’s property in his or her lifetime without thought spared to the mental or physical health well-being or happiness of these seniors.”

Instant petition challenged an order passed by the Welfare Tribunal and Deputy Collector Mumbai City on a complaint made to that tribunal by 2^nd respondent (Mr Shetty). 2^nd respondent was the father of four daughters.

Mr Shetty stated that he does not want his daughter petitioner Shweta to remain, occupy or reside in Flat No. 2A, Giriraj CHSL, 11 Altamont Road, Mumbai.

Controversy

There was no doubt that Mr Shetty was the sole and absolute owner of the above-stated flat and Shweta has no right of any kind in the said flat. She has not even canvassed any independent right to the flat at all.

Background

Mr Shetty, aged 94 years old was a widower with several age-related health ailments and he was being continuously harassed and mistreated by Shweta.

He submitted that, Shweta contributed nothing to the house and was rude, aggressive and with time her conduct deteriorated. She began to badger Mr Shetty “for her share of the property” and said that she would leave the flat only after she was given “her share”. Shweta even caused physical distress to the domestic help and damaged the household as well.

In view of the above, Mr Shetty sought Shweta’s eviction from a Tribunal.

Analysis, Law and Decision

To constitute eviction, or to invoke any prohibition against eviction, it must be shown that some legally enforceable civil right of the appellant in the property itself has been determined and that the appellant has been denied that right. Removal of a person with no right in the premises is not eviction so as to attract any such prohibition.

Agreeing with the various decisions of the Courts, Bench expressed that,

“…it is our experience that in this city, and particularly or most especially amongst the wealthy of this city, senior citizens and elderly parents are being subjected to all kinds of harassment and deprivation in their twilight years.”

In the instant matter, the daughter has been demanding her share from her father’s property but what is her ‘share’ while he is alive? Well, none. As long as Mr Shetty is alive, Shweta has no ‘share’ in his property.

Bench added to the above that,

“…this is not an isolated experience at all. It is, in fact, a widely noticed trend and it is to address this evil – we will not even call it mischief – that the 2007 Act was brought into force.”

When the Court spoke to Mr Shetty he was completely unambiguous and indeed emphatic in his statement to the Court that he did not want Shweta in his house for one minute longer. He repeatedly asked that she be made to leave his flat and that he be left in peace.

With respect to the argument of Mr Thorat that the Act does not contemplate the removal of any person from immovable property, Court found the said proposition to be incorrect.

Court agreed with the views of this Court in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246 along with the decision of Delhi High Court in Sunny Paul v. State of NCT of Delhi, 2018 SCC OnLine Del 11640.

Bench lastly, added that if the Delhi rules provide for eviction of a person with no right in the property to protect the interests and welfare of a senior citizen, this necessarily means that the right to order removal of a claimant exists in the statute itself.

In view of the above petition was rejected. [Shweta Shetty v. State of Maharashtra, 2021 SCC OnLine Bom 4575, decided on 25-11-2021]

Advocates before the Court:

For the Petitioner: Mr Pradeep Thorat, i/b Manoj Agiwal.

For the Respondent 2: Dr Sujay Kantawala, with Aditya Iyer.

For Respondents 3,4 and 5: Ms Aishwarya Kantawala.

For the State: Mr Kedar Dighe, AGP.

Case Briefs High Courts

Ker HC | “Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Kerala High Court: Mohammed Nias C.P., J., quashed the proceedings against the petitioner for obstructing a police officer from performing his duty. Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Facts of the Case

The petitioner was accused of committing offence under Sections 283, 294 (b) of Penal Code, 1860 and under Section 117 (e) and 120 (b) of the Kerala Police Act, 2011. The allegation against the petitioner was that while one Unnikrishnan, Civil Police Officer was pasting a sticker on a car which was parked near the “No Parking Board” as a part of his traffic duty, as the car was causing obstruction to the movement of the vehicles, a man in white shirt came and pushed him, angrily shouted him and threatened the CPO and swirled abuses on another Civil Police Officer, one Madhu who was with him.

It was alleged that the complainant was doing his official duty of affixing stickers on the Car and the petitioner caused obstruction to his duty and insulted the Police officer in public.

The petitioner challenged the final report and all proceedings on the ground that it had been submitted by the Assistant Commissioner of Police (Special Branch) before the Kerala States Human Rights Commission that there was a lapse on the part of the police which resulted in the petitioner acting against the officer, as the Civil Police Officer Madhu was in plain clothes and not in his uniform and he was posting sticker on his car. The petitioner contended that not aware of the fact that it was a civil police officer, he had bonafidely questioned the authority of the person.

Opinion and Analysis

Section 117 (a) of the Act, 2011 speaks of threat, obstruction or assault against the police officer with the manifest intention of preventing such officer from discharging his duties.

Noticing that it was undisputed that the Civil Police Officer was not in his uniform, the Bench opined that there was no question of the petitioner knowing that he was a police officer and as a sequel since there was no such knowledge, there could not be any intention for preventing the police officer from discharging his duties. Hence, the Bench held that no offence was made out under Section 117(e) of the Police Act. With regard to the offences alleged under section 283 IPC as well as 120(b) of the Kerala Police Act, both of which deals with penalty for causing nuisance or obstruction to public by any person in charge of the vehicle, the Bench held that since the petitioner had already remitted the fine imposed for parking the car in a “No Parking Area” no further penalty or punishment was warranted.

Abusive Words v/s Obscenity

Noticeably, the complaint, statements and the final report did not mention exactly as to the words or statement uttered by the petitioner so as to warrant attracting ingredients of offence under Section 294 (b) of the Penal Code, 1860. Hence, the Bench held that absence of words which would involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294 (b). As none of the records disclosed the alleged words used by the accused, the Bench stated that mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294 (b) Penal Code, 1860.

Mandatory for Police Officials to be in Uniform

Emphasising on the necessity of the police force to wear the uniform while in duty, the Bench stated that the uniform of a police man is his direct identification as a policeman in uniform is visible and a citizen immediately knows that he is a police man which will inform that the said individual is in charge of his protection and prevention of offences.

Considering the instances where the Court itself had to remind the police officers to appear in the Court in full uniform in the course of their official duty, the Bench stated that the requirement of the police officer to wear uniform while in duty is to be enforced without exception in compliance with Sections 43 and 44 of the Kerala Police Act which states that the uniform or the vehicles used by the police that it has to be distinctive, exclusive and easily identifiable.

Conclusion and Directions

Opining that the continuance of the proceedings will be a sheer abuse of the process of the court, as no purpose will be served by a trial in the aforesaid circumstances and to secure the ends of justice, the Bench quashed the final report along with the proceedings.

Additionally, the Bench directed the State Police Chief to look into the matter and issue appropriate directions to ensure that the police officers comply with the relevant statutory provisions/guidelines making it mandatory to wear the uniform while on duty except when it is permissible under law to deviate from the said mandatory requirement. The Registry was directed to send a copy the judgment to the State Police Chief for necessary and further to submit an action taken report before the Registry within four months. [Avinash v. State of Kerala, 2021 SCC OnLine Ker 4155, decided on 05-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate Thiyyannoor Ramakrishnan, Advocate Arun Kumar.P and Advocate Ambika Radhakrishnan

For the State of Kerala: Public Prosecutors, A.S. Dheeraj & Smt. Maya M.N.

Case Briefs Supreme Court

Reprimand for indiscipline does not amount to abetment of suicide of a “hypersensitive” student: SC

Supreme Court: In a case where a 14-year-old had committed suicide after his PTI Teacher had allegedly “harassed and insulted him in the presence of everyone”, the bench of SA Nazeer and Krishna Murari*, JJ has held that the suicide note suggested that it was a rhetoric document, penned down by an immature mind and that it was the hypersensitive temperament of the deceased which led him to take such an extraordinary step. The Court said that the action of the teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.

The Court explained that,

“A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.”

What was the case about?

The FIR Stated that the boy, a class 9 student, was under deep mental pressure because the appellant (the GEO, PTI Sir) had harassed and insulted him in the presence of everyone and he was not willing to go to school on 25.04.2018 but was persuaded to go to school by his parents.
The boy was informed that the parents have been called to school next day and this brought him under further severe pressure and tension.
In the FIR and as also the statement of the complainant recorded by the police, no reasons or cause for the appellant to harass and insult the victim were spelled out nor there are any details with respect to any action on the part of the appellant by which the deceased boy might have felt being harassed and insulted.
The PT Teacher, apart from imparting Physical Training to the students, was also charged with the duty of maintaining discipline in the school which included keeping a watch upon students and oversee that they are attending the classes instead of bunking the same and moving around in the school premises without permission.
It was alleged that the boy generally used to bunk his classes and was warned by the appellant and other school staff a number of times.
On 14 19.04.2018, he was caught by the appellant bunking classes and moving around the school campus without any cause or permission and a warning was given to him.
On 25.04.2018, he was caught bunking classes and again the appellant issued him a warning and on account of persistent act of bunking classes, reported the same to the Principal of the School, who informed the parents of the boy to come to the school.
The boy committed suicide on 26.04.2018.

What did the Supreme Court say?

Abetment of suicide

What is required to constitute an alleged abetment of suicide under Section 306 IPC is there must be an allegation of either direct or indirect act of incitement to the commission of offence of suicide and mere allegations of harassment of the deceased by another person would not be sufficient in itself, unless, there are allegations of such actions on the part of the accused which compelled the commission of suicide.

Further, if the person committing suicide is hypersensitive and the allegations attributed to the accused is otherwise not ordinarily expected to induce a similarly situated person to take the extreme step of committing suicide, it would be unsafe to hold the accused guilty of abetment of suicide. Thus, what is required is an examination of every case on its own facts and circumstances and keeping in consideration the surrounding circumstances as well, which may have bearing on the alleged action of the accused and the psyche of the deceased.

Can reprimand by teacher amount to abetment of suicide?

The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason.

“‘Spare the rod and spoil the child’ an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school authorities have to shut their eyes to any indiscipline act of a student. It is not only a moral duty of a teacher but one of the legally assigned duty under Section 24 (e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child.”

Hence, if, a student is simply reprimanded by a teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, the said teacher cannot be held liable for the same and charged and tried for the offence of abetment of suicide under section 306 IPC.

Absence of any specific allegation or material on record

In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the deceased in such circumstances that there was no option available to him except to commit suicide.
In the absence of any specific allegation and material of definite nature, not imaginary or inferential one, it would be travesty of justice, to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience and the appellant who is a teacher would certainly suffer great prejudice, if he has to face prosecution on absurd allegations of irrelevant nature.

Rhetoric Suicide note

It was a note consisting of three pages with following written on each separate paper :-

01st page – ‘MY ALL THINGS GOES TO MY DEAR BRO KAIRN EVEN MY LOVE BYE BUDDY & SORRY’

02nd page – ‘NEEDED JUSTICE’

03rd page – ‘THANKS GEO (PTI) OF MY SCHOOL’

The Court noticed that the suicide note was rhetoric document, penned down by an immature mind.

“A reading of the same also suggests the hypersensitive temperament of the deceased which led him to take such an extraordinary step, as the alleged reprimand by the accused, who was his teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.”

[Geo Varghese v. State of Rajasthan, 2021 SCC OnLine SC 873, decided on 05.10.2021]

____________________________________________________________________________________

Counsels:

For appellant: Advocate Abhishek Gupta

For respondents: Advocates Dr. Manish Singhvi and Aditya Kumar Chaudhary

*Judgment by: Justice Krishna Murari

Know Thy Judge| Justice Krishna Murari

Case Briefs Supreme Court

Real test is to check whether the act was directly concerned with official duty: SC quashes criminal proceedings against clerk accused of conspiring with superiors, for want of S. 197 CrPC sanction

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ. upheld Rajasthan High Court’s order whereby it had directed that criminal proceedings against the accused−Lower Division Clerk be quashed, for want of requisite sanction under Section 197 CrPC.

The Court held that in cases where a question of requirement of sanction under Section 197 arises, the real test is to check whether the act committed by the public servant was directly concerned with the official duty.

Factual Matrix

The appellant−complainant had filed an FIR wherein she made allegations of cheating, forgery and criminal conspiracy against the accused. The accused was a Lower Division Clerk in the Municipality concerned.

It was the complainant’s case that she and her husband purchased two plots in District Barmer. Out of these, one plot was sold to one Meghram. Further, in the plot purchased in her husband’s name, a residential house and shops were constructed. It was alleged that Meghram tempered with and fabricated the agreement with intention to defraud. Dimensions of the plot which was sold to Meghram were enlarged with intention to grab the land and house occupied by the complainant and her husband. The khasra number was also changed. This was alleged to have been done in collusion with the Executive Officer of the Municipality, a Junior Engineer, and the accused−Lower Division Clerk. The police made investigation made into the FIR and charge sheet was filed.

Appeal

Before the trial court, the accused stated that he was a public servant and what he did in respect of allotment of lease that was executed in favour of Megharam, was done during the course of his official duty. He assailed the charge sheet as the same was filed without obtaining sanction of the competent authority under Section 197 CrPC. This application was dismissed by the trial court. The accused assailed this order before Rajasthan High Court by filing a petition under Section 482 CrPC, which was allowed. Aggrieved, the complainant approached the Supreme Court.

Contentions

The complainant contended that the accused conspired with his superior officers in dishonestly concealing the forgery, and intentionally omitting mentioning the date of the proceedings on the order sheet. Such action of forging documents would not be considered as an act conducted in the course of his official duties and, thus, Section 197 CrPC would not give protection to the accused.

Per contra, the accused submitted that the co-accused officials had already been granted protection, petition filed by them under Section 482 CrPC have been allowed by the High Court and those orders have not been challenged by the complainant or the State. It was argued that two key people involved in entire process have already been granted protection and, thus, the accused who was merely a Lower Division Clerk could not be denied similar relief.

Analysis and Observations

At the outset, the Court noted that Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority.

Relying on Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, the Court observed that:

“Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance.“

The Court recorded that the alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty”. Placing reliance on State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339, the Court stated that:

“In order to find out whether the alleged offence is committed ‘while acting or purporting to act in the discharge of his official duty’, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties.“

The real question therefore was whether the act committed was directly concerned with the official duty. Applying this test, the Court considered the role assigned to the accused in the alleged conspiracy with his superiors. It was noted that the work assigned to the accused pertained to subject matter of allotment, regularisation, conversion of agricultural land, which fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed inspection which was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file.

The Court also noted that the co-accused Executive Officer and Junior Engineer had already been granted protection. The result was that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, was denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers.

Decision

The Court found itself unable to appreciate why a similar protection ought not to be granted to the accused as was done in the case of other two officials. The sanction from competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers.

In such a view of the matter, the Supreme Court upheld the order of the High Court quashing proceedings against the accused. The appeal was dismissed. [Indra Devi v. State of Rajasthan, 2021 SCC OnLine SC 487, decided on 23-7-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case Briefs High Courts

Ker HC | Harassment, abuse and torture of wife within seven months of marriage; HC denies anticipatory bail to doctor

Kerala High Court: Shircy V., J., rejected the bail application of a doctor and his family accused of dowry demand and cruelty against his wife within seven months of marriage. Calling ‘matrimonial homes the most dangerous place to live’ due to harassment, abuse and torture, the Bench remarked that the number of cases of attack towards married women in our country is alarming, though stringent laws are there and the same has to be stopped for ever.

Apprehending arrest in connection with offences punishable under Sections 294(b), 341, 323, 324, 325, 498(A) r/w 34, the applicant had approached the Court to seek pre-arrest bail. The facts of the case were such that the applicant had been married to the defacto complainant. The complainant contended that she was gifted with gold ornaments, a car, money, as well landed property by her parents; but she was subjected to physical and mental torture as the applicants were demanding more money.

The complainant contended that even her mother-in-law had assaulted her while she was residing in her matrimonial home. When the physical and mental torture became unbearable she contacted her parents so as to return to her paternal house. However, it was the case of the complainant that when her father and brother had come to her matrimonial house to take her, the applicants had wrongfully restrained and assaulted them. Moreover, the complainant was also attacked and sustained fracture when she intervened to rescue them. Her father had sustained severe injuries on his head and spinal cord. Her brother also sustained fracture in the brutal attack.

The applicant argued before the Court that he was a doctor who joined Government service only on 03-05-2021 and that he had been falsely implicated in the case at the instance of the defacto complainant as she wants to shift her residence and to set up a separate residence for herself and her husband-applicant 1.

After pursuing the medical records of the complainant as well as of her father and brother, the Bench stated that all these documents would reveal that they had sustained physical assault and serious injuries from the hands of the applicants. Noticing that the complainant was also a young doctor was manhandled by the applicants within seven months of her marriage and the allegations levelled against the applicants were grave and serious in nature, the Bench stated,

“Harassment, abuse and torture both mental and physical towards married ladies are increasing day by day in our country to pressurize them to bring more wealth to the family of the bridegroom to improve their financial situation. Though so many cases are being registered against husbands and in laws there is no change in the attitude of the society towards married women and family members.”

Hence, the Bench opined that if anticipatory bail is granted to such wrong doers definitely, that will give a ‘wrong message’ to society. The Court stated,

“Even though the applicant 1 is a doctor just started his service in the Government sector and is engaged with Covid duties, I do not think that this is a fit case in which pre-arrest bail can be granted to him.”

In the light of the above, and considering the fact that prima facie, the applicant’s brother and parents also joined to commit the alleged offences, the Bench held that they did not deserve pre-arrest bail as requested. Accordingly, the bail application was rejected with the liberty to the applicants to surrender before the jurisdictional Magistrate and seek regular bail.[Sijo Rajan R v. State Of Kerala, 2021 SCC OnLine Ker 2920, decided on 14-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicants: Adv. K.Saneesh Kumar

For the Complainants: Advs. Thomas J.Anakkallunkal and Maria Paul

For the State: P.P. Ajith Murali

Case Briefs High Courts

S. 304-B IPC and S. 113-B of Evidence Act are decisive provisions to ascertain unnatural death as dowry death: Allahabad HC explains

Allahabad High Court: Dinesh Pathak, J., addressed a matter of dowry death and upheld the lower court’s decision.

Factual Matrix

An FIR was filed by the informant (PW-1) with regard to the dowry death of his daughter who was allegedly killed by her in-laws.

Accused was married to the informant’s daughter and at the time of marriage, he had received Rs 1 lakh cash as well as goods worth Rs 1 lakh. That apart, he had given one golden chain and golden ring to the groom, but in-laws of his daughter were not satisfied with the dowry.

Due to non-fulfilment of dowry demand, in-laws of the informant’s daughter attempted several times to kill her and later kicked her out of their house. She was subjected to cruelty and later in June, 2015 the police informed her about the death of the daughter.

Analysis, Law and Decision

High Court noted that the present matter pertained to the dowry death of the lady who had been allegedly hanged by her in-laws.

Bench stated that the case is of circumstantial evidence. Trial Court concluded that demand for dowry was the root cause and drew the victim to take a drastic step of ending her life.

Section 304-B IPC and Section 113-B of Evidence Act are decisive provisions to ascertain the unnatural death as dowry death.

Conjoint reading of Section 304-B IPC and presumptive provision of Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, is that the woman must have been soon before her death subjected to cruelty and harassment for or in connection with demand of dowry. On the proof of essentials as mentioned in the aforesaid sections, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.

“…it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.”

Supreme Court expounded the legal presumption qua dowry death in Sher Singh v. State of Haryana, (2015) 3 SCC 724.

It was expressed in the present matter that in case of dowry death initial burden lies upon the prosecution to prove the ingredients of Section 304-B IPC by a preponderance of probability.

In the matter in hand, prosecution witnesses of fact i.e. PWs-1, 2 and 3 were consistent in their depositions qua cruel attitude of husband and his family member in connection with demand of dowry.

Main ingredients of dowry death are harassment and cruelty for the demand of dowry.

Main Question:

Whether the victim had died otherwise than under normal circumstances and it was shown that soon before her death, she was subjected to cruelty and harassment by her husband or his relatives for, or in connection with, any demand of dowry.

Matter in hand relates to dowry death of victim, which is obviously a case of death other than under normal circumstances.

Bench noted that it may be a matter of dispute as to whether she had been forcibly hanged to death or hanged herself to death but there was no doubt that she had ended her life under extreme pressure created by her on laws.

After careful consideration of evidences of prosecution witnesses and defence witnesses, Trial Court has taken a pragmatic view that involvement of parents of husband (i.e. appellant herein) is not made out on the facts and circumstances of the present case, who were living separately from their son but the involvement of husband cannot be ruled out.

Adding to the above analysis, it was stated that from the evidence on record it is proved that appellant was living with his wife, therefore, his claim for acquittal on the ground of acquittal of his relatives (i.e. parents) was not sustainable and being cohabitant with his wife, his complicity in the commission of a crime could easily be inferred.

High Court concluded that there was persistent demand of dowry made by the accused from the victim who was subjected to cruelty and harassment and ultimately she had ended her life in suspicious circumstances wherein injury inflicted on her forehead suggested some violence soon before her death.

Prosecution successfully discharged its duty and it is obligatory on the Court to raise a presumption that the accused caused the dowry death.

Hence, the present appeal was dismissed and the decision of the lower court was upheld. [Deepak v. State of U.P., 2021 SCC OnLine All 190, decided on 3-03-2021]

Advocates before the Court:

Counsel for Appellant:- Ashok Kumar Yadav, Rakesh Dube

Counsel for Respondent :- A.G.A.

Case Briefs High Courts

Tel HC | Can cousin of a husband who was accused of offence under S. 498-A IPC be also roped in on grounds of instigating and supporting husband? Read on

Telangana High Court: K. Lakshman, J., allowed a criminal petition and quashed a criminal case filed against the petitioner-accused as the ingredients of the alleged offence were lacking in the contents of the charge sheet.

Present criminal petition was filed under Section 482 of the Code of Criminal Procedure, 1973. Petitioner was accused of offences under Section 498-A Penal Code, 1860 and Sections 4 and 6 of the Dowry Prohibition Act, 1961.

The only allegation against accused 4 was that he stayed with the daughter of respondent 1/victim along with accused 1, cousin of the petitioner and during that period, accused 4 supported and instigated the accused and abused daughter of respondent 1, though he was in no way concerned.

It was submitted that petitioner/accused 4 was unnecessarily implicated as he had nothing to do with the matrimonial life of the victim and accused 1.

Supreme Court in the decision of Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, dealt with Section 498-A IPC as to social responsibility and obligations to maintain social fibre of family life.

In another decision, Supreme Court in Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741, it was held that mere casual reference of names of family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specifically if it happens soon after the wedding. It is further held that even if there are allegations of overt act indicating the complicity of the members of the family named in the First Information Report in a given case, cognizance would be unjustified but if the First Information Report does not disclose specific allegation against the accused more so, against the co-accused specifically in a matter arising out of matrimonial bickering, it would be a clear abuse of the legal and judicial process to mechanically send the named accused in the First Information Report to undergo the trial unless of course, the First Information Report discloses specific allegations which would persuade the Court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife.

In Rajesh Sharma v. State of Uttar Pradesh, (2018) 10 SCC 472, the Supreme Court, considering the misuse of Section 498-A IPC and remedial measures etc., gave certain directions.

Bench stated that in view of the above-stated law laid down by the Supreme Court, the name of the petitioner/A4 was not there in the complaint. In the Charge Sheet, there was no mention of the basis on which the name of the petitioner was shown.

Court stated that the only allegation against the petitioner was that he stayed with accused 1 and victim in a flat and had supported and instigated accused and also abused victim, even though he was in no way concerned.

Hence, there was no mention of the alleged harassment of the victim by the petitioner/accused 4.

Petitioner/A.4 stayed for about 1 ½ year and during that period he used to support and instigate A.1 to abuse the victim. Thus, even in the statement of victim, there was no mention of the alleged harassment of the victim by the petitioner/A.4.

In view of the above discussion, ingredients of Section 498-A IPC and Sections 4 and 6 of the DP Act were lacking in the contents of the charge sheet. Therefore, Court opined that proceedings against petitioner/A4 cannot be continued and were liable to be quashed. [Gundapaneni Rakesh v. Thatiparthi Jithender, 2021 SCC OnLine TS 677, decided on 01-06-2021]

Advocates before the Court:

For Petitioner: K. Venu Madhav

For Respondent 1: A. Prabhakar Rao

For Respondent 2: Assistant Public Prosecutor

Case Briefs High Courts

Del HC | Is it within Court’s power to direct for further investigation on finding defects in the same? Death caused by suicide, Allegations of Dowry Death | Why FIR was registered after 10 months of deceased’s death? [Detailed Report]

Delhi High Court: Subramonium Prasad, J., expressed that:

“Courts must not close its eyes to the fact that it is the victim who knocks the doors of the Court and seeks justice must not left high and dry with the feeling that the accused have escaped due to the perfunctory/faulty/defective investigation.”

Instant petition as directed against the decision of Additional Sessions Judge that discharged the respondent 4 and 5 for the offences under Sections 306/34 of the Penal Code, 1860.

Petitioners are the parents of the deceased who was married to respondent 3. The deceased was found hanging by the neck from the ceiling fan in her matrimonial house within two and a half years of her marriage.

Statements before the SDM

Petitioner 1 i.e. the mother of the deceased stated that the deceased was not happy in her marriage and her mother-in-law and sister-in-law were responsible for the suicide. Though the deceased’s father said that he did not have any grievances or any complaints against any persons and that no one was responsible for the death of the deceased.

No FIR was registered against respondent 4 and 5.

After about 10 months of the death of the deceased, an FIR was registered under Sections 306/34 IPC.

Additional Sessions Judge found that the statements of parents before the SDM did not bear any stamp and that they were also not signed by the petitioners. Prima Facie no material was found to proceed against the accused persons for charges under Sections 306/34 IPC, hence the accused were discharged.

Though the Additional Sessions Judge found investigational lapses that required due probe and further directed for a copy of the order to be sent to the Screening Committee for appropriate action.

The above-said order has been challenged in the present petition.

Analysis, Law and Decision

“…charge-sheet in the instant case bleeds of wounds inflicted by the Police.”

No explanation on why FIR was registered after 10 months of the death

Bench noted that the investigation was oriented in order to give a closure report. And filing of FIR after ten months of the incident was contrary to law.

Petitioner 1 stated that the respondent 4 and 5 demanded dowry, hence there was no reason, whatsoever, not to lodge an FIR for an offence under Section 304B IPC.

It was also stated that IO told the petitioners to give statements as per his will and suggestions and threatened her. Petitioner 1’s letter to the Commissioner of police revealed that IO was forcing the parents of the deceased to enter into a compromise with the respondents.

To construe an offence under Section 304 B i.e. dowry death, the death of the women could have been caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with, any demand for dowry.

Ingredients for constituting Section 304 B were made out but surprisingly no FIR was registered.

In the instant matter, the death occurred within 7 years of marriage and allegations of dowry death were also present against the respondent 4 and 5. Deceased died by committing suicide.

Bench expressed that unfortunately neither the Magistrate nor the ASJ orders a further investigation after commenting on glaring loopholes with the investigation.

Sufficient material on record was placed stating that the deceased was subjected to cruelty/harassment with the demand of dowry by respondent 4 and 5 and hence presumption under Section 113(b) of the Indian Evidence Act will apply.

Defective Investigation

It is well settled that where there has been negligence on the part of the investigating agencies or omissions either negligently or with a design to favour the accused, then it becomes the obligation of the Court to ensure that proper investigation is carried out.

Supreme Court’s decision in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 were relied upon by the Court.

In the present matter, investigation was conducted in an extremely shoddy manner.

High Court elaborating more on the present matter stated that the ASJ while passing the impugned judgment on noticing the glaring inconsistencies should have ordered for further investigation.

Hence, impugned Judgment was set aside. High Court directed police to conduct an investigation on the basis of petitioners’ statements and the same to be conducted by a different investigation officer. [Saroj Bhola v. State of NCT of Delhi, 2021 SCC OnLine Del 1497, decided on 05-04-2021]

Advocates before the Court:

For the Petitioners: Chanan Parwani, Advocate

For the Respondents: Kusum Dhalla, APP for the State and respondent 2

Charanjeet Singh, Advocate for respondents 3 to 6

Case Briefs Supreme Court

Man roped in in the dowry death of his brother’s wife freed after 2 decades as SC finds allegations against him vague

Supreme Court: The bench of NV Ramana* and Surya Kant, JJ has acquitted a man convicted under Section 498A read with Section 34 IPC for the death of his brother’s wife after it was found that the case against him was not proved beyond doubt.

Allegedly, after several instances of abuse at her matrimonial home, the deceased went to live with her parents. On the fateful day, her husband came to visit her and took her for a walk but came back alone and hurriedly packed his belongings to leave. When confronted about the whereabouts of the deceased, he said that the deceased was attending the call of nature and would be back soon. He left thereafter. When the deceased did not return after an hour, the complainant started searching for her and she was ultimately found dead, near a canal with strangulation marks on her neck.

Deceased’s husband, Brother-in-law (the appellant herein) and Father-in-law were convicted under Section 498-A read with Section 34 IPC.

In the present appeal, the deceased’s brother-in-law contended that the prosecution story comprises of vague allegations, unsubstantiated by evidence and that the entire family has been roped in this case. Thus, the conviction of the appellant cannot be sustained.

The prosecution had alleged that the appellant in the present case, had, along with his brother and father, demanded dowry of Rs. 10,000 from the family of the deceased at the time of the vidai ceremony and had continued to harass her for the non-payment of the same.

On perusal of the testimonies of the witnesses, the Court noticed that deceased’s father had named the appellant-accused in the same breath along with other accused persons and their family members accusing them of troubling the deceased for demand of dowry of Rs. 10,000/-.

However, apart from the vague allegations, no specific instance of hostile attitude or persistent demands of dowry have been pointed out by any of the witnesses. All other independent witnesses have turned hostile and have not supported the prosecution story. Also, the paternal uncle of the deceased and a witness named in the FIR, has not supported the prosecution story.

The Court, hence, concluded that on consideration of the oral testimonies of the witnesses, the ingredients of Section 498-A IPC have not been proved against the appellant by the prosecution at the standard of beyond reasonable doubt and, hence, acquitted the appellant.

The Court also discharged the bail bonds of the appellant who is out on bail since September, 2010.

[Nimay Sah v. State of Jharkhand, 2020 SCC OnLine SC 982, 02.12.2020]

*Justice NV Ramana has penned this judgment. Read more about him here.

Case Briefs High Courts

[Triple Talaq] Bom HC | Bail denied to Muslim Man accused of giving divorce illegally in violation of The Muslim Women (Protection of Rights on Marriage) Act, 2019

Bombay High Court: Sarang V. Kotwal, J., while denied bail on the light of giving divorce in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Applicant sought anticipatory bail for cases registered under Sections 377, 498 A, 323, 504, 506 of Penal Code, 1860, Section 67 of the Information Technology Act and Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The victim in her FIR stated that the applicant had married twice earlier and had 5 children from his first wife. On obtaining a divorce from the first wife, he got married to the second wife.

When informant got married to the applicant, her mother’s gold was to her and Rs 3,50,000 were spent during the marriage. Further, the applicant gave some intoxicating drink to the first informant and in that situation took some photographs and recorded video fo the informant.

In the FIR, it was mentioned that the applicant had sex with her in October 2018. The applicant had inserted aluminium rod causing bleeding in her private parts as he didn’t want a child from this marriage.

It was also alleged that the applicant used to harass the victim and used to ask her to bring money from her parental house. On one particular day, the applicant told the first informant to do all the work in the house, which the informant refused to do so and hence she was assaulted by the applicant. On the same day itself, the applicant gave her talaq.

Informant was later left at her parental house and was threatened that all he would make all the videos and photographs viral.

In view of the above, FIR was lodged.

Misbaah Solkar, Counsel for the applicant, R.M. Pethe, APP for the State and Adil Khatri, Counsel for the complainant.

Decision

Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which reads as follows:

“no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person”.

Bench found no reasonable ground for granting anticipatory bail to the present applicant. Informant’s counsel that she endured all the harassment over some period to save her marriage was also not improbable.

Considering the allegations, the applicant does not deserve the protection of anticipatory bail. The fact that the applicant was left at her parental house and her number was blocked, all of this corroborates to the allegations that, he had divorced informant illegally in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Allegations of inserting a rod in informant’s private parts and capturing indecent photos and videos require custodial interrogation.

Hence no anticipation bail was granted. [Ebrahim Mohd. Iqbal Lakdawala v. State of Maharashtra, Anticipatory Bail Application (ST) No. 2224 of 2020, decided on 21-10-2020]

Case Briefs High Courts

Bom HC | Abuse of S. 498-A IPC by making vague allegations and roping in family members of husband: Courts to carefully scrutinize allegations

Bombay High Court: A Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while allowing the present criminal application filed under Section 482 of Criminal Procedure Code, 1973 observed the tendency in the society wherein the relatives of husband are also roped in with vague allegations under Section 498-A of Penal Code, 1860.

In the instant matter, both husband and wife started living separately from sister-in-law and brother-in-law of the husband after their marriage.

Due to quarrels between the non-applicant 2 and her husband, non-applicant 2 filed an FIR with Police Station, which was compromised. On a later date, non-applicant 2 again lodged a complaint with the Women Cell.

Further, the husband of non-applicant 2 filed a complained alleging harassment caused by parents and brother of non-applicant 2.

Non-applicant 2 approached the Judicial Magistrate and filed an application under Section 156(3) of Criminal Procedure Code, 1973 and, then the non-applicant 1 lodged FIR against the applicants. The said FIR has been challenged in the present application.

Women Cell i.e. non-applicant 1 submitted that the investigation was complete and there is a prima facie case against the applicants.

Wife i.e. non-applicant 2 contended that the applicants along with her husband harassed her for dowry and there were several complaints filed by her with the Police Station as and when harassment was caused.

Senior Advocate, Anil S. Mardikar along with S.G. Joshi, Advocate, represented the applicants; M.K. Pathan Additional Public Prosecutor for the non-applicant 1 –State and M.N. Ali, Advocate for the non-applicant 2.

Analysis & Decision

In light of adjudicating the present issue, bench considered it necessary to refer Section 498-A of Penal Code, 1860:

“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 purpose of this section, “cruelty” means-

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

(b) Harassment of the women 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.”

Cruelty perpetuated to the woman may be physical or mental.

Bench stated that saying, “we are also serving in the police and we have connections with the higher Authorities, or the husband of the non-applicant 2 got no benefit of the education of the non-applicant 2” cannot be stated to be cruelty to the woman.

Nowadays, it has become a tendency to make vague and omnibus allegations, against every member of the family of the husband, implicating everybody under Section 498-A of the Penal Code.

It is necessary for the Courts to carefully scrutinize the allegations and to find out if the allegations made really constitute an offence and meet the requirements of the law at least prima facie.

Bench further cited the following decision of the Supreme Court:

G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, wherein it was observed that the criminal proceedings should not be allowed to be resorted to as shortcut to settle the score.

Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, in this case, Supreme Court deprecated the tendency of using the criminal justice system as a tool of arm twisting and to settle the score, and laid down that the High Court can intervene where the criminal justice system is used as a tool.

Kailash Chandra Agrawal v. State of U.P., (2014) 16 SCC 551, an observation was made that tendency, which has been developed for roping in all relations of the in-laws by the wife in the matter of dowry deaths or such type of similar offences in an over-enthusiasm and anxiety to seek conviction needs to be deprecated.

In the present case, sisters-in-law and brother-in-law were arraigned as accused without there being specific allegation as regards the nature of cruelty, as contemplated by Section 498-A IPC against them.

In view of the impugned FIR and charge-sheet, Court opined that no allegations against the applicants constitute offences alleged.

Therefore, the criminal application was allowed in view of the above-stated.[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 1752, decided on 15-10-2020]

Case Briefs Tribunals/Commissions/Regulatory Bodies

Gang Rape & brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP: NHRC takes suo motu cognizance

National Human Rights Commission, India takes suo motu cognizance of the matter over reported gang rape and brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP.

According to media reports that a 19 year old woman belonging to Scheduled Caste went missing on 14.09.2020. She was found in a badly injured condition on 22.09.2020 and she was subjected to gang rape and brutality in Hathras District of Uttar Pradesh two weeks ago. She was shifted from the Aligarh Muslim University’s Jawaharlal Lal Nehru Medical College and Hospital on 28.09.2020 when her condition deteriorated and there were no signs of improvement in her health condition. The victim has reportedly died at Safdarjung Hospital in New Delhi on 29.09.2020.

The District Magistrate, Hathras, Uttar Pradesh has reportedly stated that the accused have also been booked under the SC/ST(POA) Act and the family of the victim has been given compensation of Rs 10 Lakhs. He has also mentioned that a Fast Track Court will be set up to hear the case to punish the culprits at the earliest.

The Supdt. of Police, Hathras, U.P. has reportedly stated that the woman had suffered spinal injuries and he has denied the reports that the tongue of the victim was slit.

He has also mentioned in his statement the In-charge of the Hathras Kotwali PS has been removed for the alleged inaction in the case and the four accused have been arrested who will be booked for the murder. Further, he added that the first one Sandeep Singh was arrested the day when the woman was subjected to rape and later three more accused Lovkush Sikarwar, Ramu and Ravi were arrested when the woman named them in their statement before the Magistrate, on 22-09-2020.

The perpetrators reportedly tried to strangulate the victim when she tried to resist their attempts to rape her.

Another media report reveals that the family of the victim woman has alleged that the body of the deceased was forcibly taken away for cremation by the police personnel.

The body of the deceased had reportedly reached her village around mid-night and the cremation was done by 3.00 A.M., on 30.09.2020. It is mentioned in the news report that the villagers wanted to take the body of the woman to her house but the administration pressurized for cremation at the earliest.

The police authorities have however denied the allegation. It is reportedly stated by the SP, Hathras, that the cremation was done as usual, after the body reached Boolgarhi village in Hathras. He has also stated that the situation is calm and heavy police force has been deployed in the village.

The Commission has gone through the contents of the media reports which are very painful. A young woman belonging to SC community has been subjected to sexual harassment and brutality. It is apparent that the police was not able to take timely action to trace and save the victim girl due to which the young woman could not be saved from being subjected to grave cruelty. The way the perpetrators have acted shows that they had no fear of law in their mind. The family has suffered an irrevocable loss. A young and a precious human life has been lost.

Not only this, but there are also allegations made by the family that the police forcibly took away the body of the deceased for cremation have been revealed by the media. The incident has raised many questions about the law and order situation in the State. Many such incidents have occurred in the State of Uttar Pradesh where the members of the Scheduled Community have been subjected to discrimination and harassment by the people belonging to the upper caste. There have been a number of instances of leveling allegations of inaction against the police authorities and the administration. This is a serious issue of violation of human rights.

The Commission has further directed to the State Govt. to provide adequate protection to the family of the deceased keeping in view the gravity of the matter and aspect of the witness protection as there is an apparent rift between the two communities and there may be a danger to the family of the deceased.

The DGP, U.P. is expected to look personally into the matter to ensure a speedy trial so that the culprits could be punished by the competent court without any further delay. In the current scenario, it is necessary that the family of the deceased as well as other members of the SC Community residing in the village are provided proper protection by the police.

Both the authorities are expected to submit their report, within the stipulated time.

The Commission is expected the responses from the State Authorities within four weeks.

NHRC

Press Release dt. 30-09-2020

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