Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.

Applicant was accused of the offences punishable under Sections 498-A, 323, 504, 506 of the Penal Code, 1860.

The above-stated crime came to be registered on the basis of the complaint lodged by respondent 2.

It was alleged in the complaint that after co-accused (husband of respondent 2) returned from Ireland and respondent 2 while checking his bag, found one packet on which present applicant’s name alleged to have been written along with her address. Thereafter, respondent 2 questioned about the same to her husband – co-accused, though he gave her some evasive answers. Thereafter again, the co-accused went to Ireland and returned to India in September 2016, however respondent 2 noted the substantial change in his behaviour.

Further, it was alleged that for no reason, the applicant Deepika made a phone call to her and abused her. The co-accused on being questioned explained to respondent 2 that he had given the status of wife to the applicant. By saying so he extended the beatings to respondent 2.

Analysis and Decision

On perusal of the charge sheet, it appeared that the applicant was not the relative of the co-accused, hence ingredients of Section 498-A IPC will not be attracted against the present applicant.

In the decision of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, in para 105 of the judgment, the Supreme Court, by referring the various cases on this point has formulated the categories of cases by way of illustration, wherein such powers under Section 482 of the Cr.P.C. could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

High Court stated that the allegations made and if accepted in their entirety, do not prima facie constitute any offence or make out a case against the applicant. Regarding the charge under Section 498-A IPC, in the case of U. Suvetha v. State, (2009) 6 SCC 757, Supreme Court observed that by no stretch of imagination, a girlfriend or even a concubine in an etymological sense would be a ‘relative’.

Further, no allegations were mentioned in the FIR with regard to Section 323, 504 and 506 of the IPC. There was a mere reference in the FIR that on one occasion, the applicant abused respondent 2/informant by making a phone call. However, there were no further details as to whether those abuses ultimately attracting the provisions of Section 504 of the Penal Code. Similarly, there were absolutely no allegations to attract the penal provisions of Section 506 of the Penal Code.

With regard to charge under Section 323 IPC, respondent 2 had made certain allegations. It was alleged that the applicant had been to her matrimonial home, joined the other co-accused persons and extended the beatings for the reason that she was not bringing the amount from her parents.

The Bench stated that, so far as allegations of demand and ill-treatment being extended to respondent 2 on account of non-fulfilment of demand is concerned, the allegations are made exclusively against the other co-accused persons. It is thus clear that these allegations have been made with mala fide and ulterior motives for wreaking vengeance against the present applicant.

Respondent 2 had a grudge against the applicant, hence the allegations were made with malafides and for wreaking vengeance against her.

Therefore, FIR and the criminal proceedings were quashed. [Deepika Hanmant Zanjurne v. State of Maharashtra, 2021 SCC OnLine Bom 6852, decided on 27-9-2021]


Advocates before the Court:

Mr Ashutosh S. Kulkarni, Advocate for applicant

Mr R.D. Sanap, A.P.P. for respondent no.1/State

Mr A.D. Aghav, Advocate for respondent no.2

Case BriefsHigh Courts

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 BriefsHigh Courts

Madhya Pradesh High Court: Sujoy Paul, J., held that the pendency of matrimonial cases alone cannot be a ground to decline the renewal of the passport.

In the present matter, the petitioner was a travel blogger and consultant who approached the Court a second time against the action of Regional Passport Authority, Bhopal in not issuing a regular passport for a period of ten years and on the contrary impounding his passport in utter violation of principles of natural justice.

What was the case of travel blogger?

Petitioner submitted that being a travel blogger by profession he was required to travel around the globe. Initially, he was issued the passport on 5-9-1997, got it renewed for a period of ten years on 2-6-2014 and a new passport valid till 1-6-2021 was issued.

The petitioner had matrimonial discord with his wife and due to which his wife took away the old passport of the petitioner with her. Later due to several disputes, a petition for divorce under Section 13 of the Hindu Marriage Act was filed and the same is still sub judice.

Petitioner’s wife had filed a crime against the petitioner and his family members alleging demand of dowry, for which the petitioner got bail with no bail conditions imposed upon him regarding his travel abroad.

Later in the year 2017, the petitioner made an application for re-issuance of his earlier passport that was taken away by the wife and also filed a petition under Section 482 of the Code of Criminal Procedure, 1973 for which Allahabad High Court protected the petitioner and referred the matter to mediation.

Analysis, Law and Decision

High Court referred to the decision of Navin Kumar Sonkar v. Union of India, ILR 2018 MP 677, wherein it was opined that mere pendency of criminal case cannot be a ground to initiate action by the passport officer. The pendency alone can also not be a ground for impounding the passport.

There is a need of application of mind by passport officer regarding the nature of the criminal case.

In Manish Kumar Mittal v. Chief Passport Officer, 2013 SCC OnLine Del 3007, the same principle was followed and it is expected that passport officer will apply mind while taking decision regarding impounding/revocation of passport.

Further, the Bombay High Court’s decision in Roshan Lawrence Menezes v. Union of India, WP (Lodging) No. 699 of 2020, makes it clear that various Division Benches of Bombay High Court have taken a consistent view that Gazette Notification dated 25.09.1993 is not an impediment for renewing the passport for a period of 10 years.

The Court stated that the petitioner was not afforded any pre or post decisional hearing before impounding his passport. Hence the impugned order cannot sustain judicial scrutiny.

The pendency of matrimonial cases alone cannot be a ground to decline renewal of passport. The gazette notification aforesaid cannot be a ground for not renewing the passport for a period of ten years or for impounding it or restricting it for a period of one year only.

Therefore, the action of respondents certainly affected the rights of livelihood of a travel blogger who keeps body and soul together by travelling abroad and earning his livelihood.

Concluding the matter, Court set aside the impugned action of respondents impounding/cancelling the passport and hence respondents were directed to issue a regular passport for a period of 10 years to the petitioner. [Hardik Shah v. Union of India,  2021 SCC OnLine MP 2326, decided on 7-12-2021]

Know the Law:

The passport cannot be impounded merely because a case involving offence under Section 498-A etc. is pending or a red corner notice was issued. Impounding can take place if Investigating Officer has shown his satisfaction that accused may abscond which may disturb the routine legal proceedings. In absence thereof, as a routine, passport cannot be impounded.


Advocates before the Court:

Shri Prateek Maheshwari, learned counsel for the petitioner.

Shri Himanshu Joshi, learned Assistant Solicitor General for the respondent / Union of India

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., decided an issue with regard to the habeas corpus petition for custody of a minor.

Instant petition was filed to seek custody of petitioner 2 stated to be a minor of age about 5 years and 10 months by petitioner 1 who asserted to be his father.

Factual Background

It was stated that petitioner 2 was born in January 2014 and in May 2015 the mother of the corpus committed suicide at the petitioner’s home and thereafter an FIR was lodged against petitioner 1 and other family members under Section 498-A, 304-B of Penal Code, 1860 and 3/4 of Dowry Prohibition Act and petitioner 1 was sent to jail.

Respondent 4 filed a Habeas Corpus Writ Petition and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order granting custody of the minor child to the maternal grandfather, who was respondent 4 in the present case.

Analysis, Law and Decision

High Court opined that lower courts were duty-bound to consider the allegations against the respondent and pendency of criminal case for an offence punishable under Section 498-A IPC.

Further, the Court added that the court of law should consider the matter with regard to the “character” of the proposed guardian.

Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person.

In the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, where in almost similar circumstances the father was facing a charge under Section 498-A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

In Rachit Pandey (minor) v. State of U.P., Habeas Corpus Writ Petition No. 193 of 2020 this Court held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy, which may not be used to examine the question of custody of a child except wherein the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.

Senior Counsel appearing for the petitioners did not point out as to how, the custody of petitioner 2 with his maternal grandfather can be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.

Therefore, the petition was dismissed. [Awanish Pandey v. State of U.P., 2021 SCC OnLine All 751, decided on 27-9-2021]


Advocates before the Court:

Counsel for Petitioner: Sanjay Mani Tripathi, Adeel Ahmad Khan, Na

Counsel for Respondent: G.A., Anupama Tripathi, Rakesh Kumar Tripathi

Case BriefsSupreme Court

Supreme Court: A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

It was prosecution’s case that the accused husband constantly asked the deceased to bring Rs 25,000 from her father. On her failure to do so, the accused husband started frequently beating the deceased, and the accused mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor did any household work properly. The deceased committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months of her marriage.

The trial court convicted the appellants for offences punishable under Section 498-A (cruelty to women) and Section 306 (abetment of suicide) of the Penal Code, 1860. On appeal, the High Court confirmed the judgment of the trial court. Aggrieved, the appellants approached the Supreme Court.

At the outset, the Supreme Court noted that Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Section 113-A reads thus: “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”. Further, the Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A IPC.

Considering first the offence under Section 498-A IPC, the Court noted the consistent evidence of witnesses who were related to the deceased. The Court opined that most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness. It was observed:

“The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.”

The Court found that the witnesses (family members) though related to the deceased, were natural witnesses. Their evidence was consistent without any material contradiction and inspired confidence. Thus, from the evidence of prosecution witnesses, the Court concluded it was proved that the deceased was harassed with a view to meet unlawful demand of Rs 25,000. The Court held that the prosecution was successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC.

Next, the question that fell for consideration was that the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused could also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act.

The Court noted that the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused. Relying on its earlier order in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Court concluded that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the accused had subjected her to cruelty.

In the instant case, all the three conditions stood fulfilled. The deceased committed suicide within a period of seven years from the date of her marriage and accused had subjected her to cruelty, as it was confirmed that prosecution was successful in proving the charge of cruelty under Section 498-A IPC.

The Court said that it is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the presumption being drawn and the presumption is not an irrebuttable one. However, in the instant case, the evidence clearly established the offence of cruelty or harassment caused to the deceased and, thus, the foundation for the presumption existed. Admittedly, the appellants led no evidence to rebut the presumption.

In such view of the matter, the Supreme Court held that the trial court, as well as the High Court, committed no illegality in holding that the appellants abetted suicide of the deceased. The appeals were therefore dismissed. [Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660, decided on 3-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. agreed to reduce the sentence of the appellant−husband convicted for offence of cruelty to woman punishable under Section 498-A IPC, if he pays Rs 3 lakh as compensation to his wife and children. The Supreme Court observed that:

“The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 CrPC is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.”

Complainant was the second wife of the appellant. Two children were born to them from the wedlock. The complainant alleged that on instigation of the first wife, the appellant started mental and physical torture and made dowry demands. Consequently, the complainant had to go back to her parent’s house. A complaint was registered and the appellant was convicted by the trial court for the offence punishable under Section 498-A IPC. He was sentenced to three years rigorous imprisonment. Appeal filed by the appellant was dismissed by the first appellate court. Criminal revision preferred by the appellant before the High Court met the same fate. Aggrieved, the appellant approached the Supreme Court.

The appellant prayed for extension of benefit of Probation of Offenders Act, 1958 which was declined by the Supreme Court. However, the Court expressed that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to the complainant for herself and the children apart from whatever maintenance was being paid under Section 125 CrPC.

The appellant submitted that he was willing to pay a compensation of Rs 3 lakh to the complainant and the children. The complainant was agreeable to receive the compensation of Rs 3 lakh. Further, on compensation being paid, she had no objection if the sentence of the appellant is reduced and/or if he is granted the benefit of the Probation of Offenders Act. In such view of the matter, the Court said that:

“[K]eeping in mind the nature of the offence, we had declined the benefit of the Probation of Offenders Act to the appellant. However, if the petitioner/appellant is showing remorse and is willing to make arrangements for [the complainant] and his two children born out of the wedlock, we would not like to come in the way of such an arrangement, which should be beneficial to [the complainant] and her children.”

Noting that the appellant had undergone about seven months of imprisonment, the Court was inclined to reduce the sentence to the period already undergone in case he pays a sum of Rs 3 lakh to the complaint for her benefit and the children’s benefit. The Court however made it clear that if the amount is not paid, the appellant will have to undergo the remaining part of the three years’ sentence. [Samual Sk. v. State of Jharkhand, 2021 SCC OnLine SC 645, decided on 31-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Andhra Pradesh High Court, Amaravati: Cheekati Manavendranath Roy, J., addresses whether a girlfriend or concubine who is not connected by blood or marriage can be prosecuted under Section 498-A of Penal Code, 1860.

In the instant matter, it was stated that a case under Sections 498-A, 114 Penal Code, 1860 was registered against the petitioner along with other accused.

Allegation against the petitioner was that she was the girlfriend of A-1, who is the husband of de facto complainant and A-1 developed illegal intimacy with A-2.

Vide the present petition, petitioner sought quashing of the FIR mainly on the ground that only relative of the husband connected by blood or marriage alone was liable for prosecution under Section 498-A IPC and a girlfriend or concubine was not liable for prosecution under Section 498-A IPC as she was not relative either by blood or marriage to A-1, who is the husband of the de facto complainant.

High Court’s Decision

Bench stated it is well-settled law that only a relative of a husband by blood or marriage is liable for prosecution under Section 498-A IPC.

Girlfriend or concubine, being not connected by blood or marriage, is not a relative of the husband for the purpose of Section 498-A IPC.

High Court relied on the Supreme Court case in U. Suvetha v. State, (2009) 6 SCC 757, held that persons who can commit an offence under Section 498-A IPC are husband and relatives only. A girlfriend, being not a relative, cannot be charged under Section 498-A IPC.

Hence, in the instant matter, the petitioner made out a strong case and warranting interference of the Court under Section 482 CrPC to ascertain whether launching criminal prosecution under Section 498-A IPC is legally sustainable or not and whether the aforesaid FIR registered against her is liable to be quashed or not.

High Court stayed the proceedings pursuant to registration of FIR only in respect of petitioner A-2.[Anumala Aruna Deepika v. State of Andhra Pradesh, 2021 SCC OnLine AP 1934, decided on 12-07-2021]


Advocates before the Court:

Counsel for the Petitioners: Sri Naga Praveen Vankayalapati

Counsel for Respondent 1: Public Prosecutor

Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., refused to quash a subsequent complaint filed by the wife against her husband (and others), where a prior complaint alleging offence under Section 498-A Penal Code, 1860 was already pending.

Instant criminal petition was filed under Section 482 of the Criminal Procedure Code.

Petitioners were accused of offences under Sections 498-A, 494 and 506 of Penal Code, 1860 and Section 3 and 4 of the Dowry Prohibition Act.

Respondent 2 had registered a crime against petitioner 1/husband of respondent 2 for the offence under Section 498-A IPC.

Allegations against the petitioners were that during the subsistence of the marriage with petitioner 1 and respondent 2, petitioner 1 married petitioner 6 with the help of petitioner 2 to 5 and therefore, they committed the offence punishable under Section 494 IPC.

Petitioner submitted that during the pendency of the first complaint, registration of the second complaint with regard to the very same allegations between the very same parties is not maintainable. He has also placed reliance on the principle laid down by the Supreme Court in Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 12

Analysis, Law and Decision

Bench noted that in the first complaint, the allegation of respondent 2 was with regard to the harassment by petitioner 1 demanding additional dowry.

Whereas in the second complaint, allegation against the petitioners was that during the subsistence of marriage, petitioner 1 married petitioner 6 and petitioners 2 to 5 assisted them in getting the said marriage. Hence, they committed “bigamy” punishable under Section 494 IPC.

Considering the fact that there are matrimonial disputes pending between petitioner 1 and respondent 2, and also considering the punishment prescribed for the offences alleged against the petitioners, the criminal petition was disposed of directing the Investigating Officer to follow the procedure contemplated under Section 41-A CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[B. Vikram Singh v. State of Telangana, Criminal Petition No. 4130 of 2021, decided on 3-06-2021]

Case BriefsHigh Courts

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 BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Abhay Ahuja, JJ., reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Factual Matrix

Due to differences between the husband and wife, they sought a divorce and a petition was filed before the Family Court, Bandra which was later converted into mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955.

High Court stated that considering the fact that a matrimonial dispute which sought to be amicably resolved, the Court deemed it appropriate to seek guidance from the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it was observed that:

“…the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

Bench added that the present matter involved offences arising out of matrimony and was basically private in nature and the parties sought to resolve their entire dispute and due to the compromise between them, the possibility of conviction would be remote and bleak and continuation of criminal case would lead to great prejudice or injustice.

Therefore, in view of the above discussion, petition was allowed while allowing the below prayer clause:

“a. That this Hon’ble Court be pleased to quash and set aside the FIR No.256 of 2019, registered by Vikhroli Police Station at Mumbai, under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act dated 19.06.2019 and Criminal Case No.959/PW/2020 and pending before Ld. 31st Metropolitan Magistrate’s Court at Vikhroli, Mumbai, and further be pleased to discharge the Petitioners from C.C. No.256 of 2019 under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act.” 

Petition was disposed of in the above terms. [Yuvraj Raman Jadhav v. State of Maharashtra, 2021 SCC OnLine Bom 780, decided on 1-06-2021]


Advocates before the Court:

Ms. Anushka Shreshtha for the Petitioners.

Mr.J.P. Yagnik, APP for the Respondent-State.

Mr. Jayesh Bhosle for Respondent No.2.

Mr. Yuvraj R. Jadhav – Petitioner No.1 present through V.C.

Mrs. Madhuri Jadhav (maiden name–Madhuri Sawant)-Respondent No.2 present through V.C.

Case BriefsSupreme Court

Supreme Court: In a case relating to dowry death, where it was argued by the accused that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained, the 3-judge bench of NV Ramana, CJI and Surya Kant and Aniruddha Bose, JJ has rejected the contention and has explained,

“Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.”

Provisions in question

Section 304-B. Dowry death.—(1) Where the death of a woman is 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 for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 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.

Background

The deceased got married to the accused in November, 2004 and gave birth to child in 2006. The death of the deceased occurred in 2008 after she consumed poison in her matrimonial home.

Both, the trial court and the Punjab and Haryana High Court, convicted the husband under Section 304-B for dowry death.

The counsel appearing on behalf of the accused-appellant argued that “the Courts below have, as a matter of routine, applied the presumption u/s 113B of Evidence Act in the instant case wherein even the basic and essential ingredient of Section 304-B, IPC are not satisfied.”

It was submitted that just because the death of the deceased occurred within seven years of marriage, by no stretch of imagination can it be said that the deceased soon before her death was subjected to cruelty in connection with the demand of dowry.

“The fact that the deceased was happy with the appellant is clearly evident as she lived with him and bore his child, and never mentioned any harassment or cruelty being meted out by the appellant. Furthermore, the gifts received by the appellant-husband were voluntarily given by the complainant and his family.”

It was also argued that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained.

Analysis

Section 304-B(1), IPC defines ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of 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 demand for dowry.

Considering the aforementioned said law, the Court noted that since,

  • the marriage between the deceased and the accused-appellant took place on 23.11.2004, and
  • the death of the deceased occurred in 2008 after she consumed poison in her matrimonial home,

therefore, the first two ingredients as to death under otherwise than ‘normal circumstances’ within seven years of marriage stand satisfied.

Coming to the next ingredient necessary for establishing the existence of dowry demand i.e. “soon before her death”, the Court noticed that,

  • the deceased had expressed her unhappiness due to the constant harassment and dowry demands, to her father.
  • The father also stated as to how the families attempted to mediate the dispute themselves and on multiple occasions the father of deceased gave certain gifts to the accused and his family to ameliorate the situation.
  • Further, the mother of the deceased had informed the father 15-20 days prior to the incident about the continuing harassment of the deceased on account of dowry.
  • Finally, on 08.08.2008, the father-in-law of the deceased informed this witness about the consumption of poison by the deceased.

It is also important to note that both the Trial Court and the High Court found the above evidence of the father of the deceased to be reliable and consistent despite a thorough cross-examination. No evidence was produced by the appellant to disregard the aforesaid testimony.

On the defence of the accused is that his family and family of the deceased shared a cordial relationship, and in fact, the appellant had helped the mother of deceased in getting treatment of cancer, the Trial Court, after a thorough examination of the evidences- both oral and documentary, concluded that the accused-appellant, who was working as a technician in a hospital, has forged the hospital records to prove the existence of cordial relationship between the families of the deceased and the accused.

It was hence concluded that necessary ingredients under Section 304-B, IPC stood satisfied.

Explaining the difference between offences under Section 498-A and Section 304-B, IPC, the Court note of the judgment in Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388, wherein it was held,

“… Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.”

[Gurmeet Singh v. State of Punjab, 2021 SCC OnLine SC 403, decided on 28.05.2021]


Judgement by: CJI NV Ramana

Know Thy Judge| Justice N.V. Ramana

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., while setting aside a decree of divorce addressed the issue of granting maintenance to a widowed wife.

Present application was filed for modification of Court’s earlier order whereby the appellant wife’s appeal against the divorce decree granted to the husband was dismissed as withdrawn.

Factual Matrix

An appeal that was filed in the year 2009 challenged the decree of divorce passed in favour of the respondent-husband. The said appeal was pending for a period of 9 years.

The appeal came up before the Court on 12-04-2018, Court inquired from the appellant and counsel for the respondent-husband as to whether there was any chance of settlement between the parties, to which both parties agreed to live together.

Pursuant to that, both parties resumed cohabitation. The appellant wife requested for withdrawing her appeal as no dispute survived since both parties were now happily living together.

The High Court allowed the withdrawal of appeal, however, without interfering in the decree of divorce already granted in favour of the husband.

Subsequently, the respondent-husband passed away. The appellant wife now claimed maintenance under Hindu Adoption and Maintenance Act as his widowed wife. Consequently, she sought the modification of the Court’s earlier order dismissing her appeal as withdrawn without interfering in the decree of divorce passed by the trial court.

Analysis and Decision

In the present scenarios, except the son and the appellant, there was no one else to claim as the heir of the deceased respondent and hence the only legal heir entitled to inherit the estate of the deceased is the appellant and her son.

During the time period of 20 years of litigation, the wife never sought maintenance but now claimed the same under the Hindu Adoptions and Maintenance Act, 1956.

Bench cited the Supreme Court decision in Rohtas Singh v. Sant Ramendri, (2000) 3 SCC 180 and Swapan Kumar Banerjee v. State of West Bengal, 2019 SCC OnLine SC 1263, with respect to the status of the divorced wife.

High Court held that in view of the above-stated cases, the appellant would be entitled to the maintenance as per the Hindu Adoptions and Maintenance Act, 1956 as she was dependent on the deceased.

The Bench held that it cannot be said that the appellant was a divorced wife. Being a Hindu wife, the appellant has condoned all the misdeeds of the respondent and if her husband did not cohabit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of misdeeds, if any, both by the husband and the wife, the decree is liable to be set aside.

The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned misdeed of the appellant (wife), if any.
According to the Court, a case for setting aside the impugned decree of divorce was made out.

Hence the divorce decree was set aside. The earlier order of the High Court which was sought to be modified was also set aside.[Jyotsna Verma v. Ashok Kumar, First Appeal No. 432 of 2009, decided on 10-03-2021]


Advocates before the Court:

Counsel for Appellant:- In-Person, Ms. Jyotsna Verma (In Person)

Counsel for Respondent:- B. D. Mishra, Syed Fahim Ahmed

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and B.U. Debadwar, JJ., upheld the decision of Additional Sessions Judge wherein a woman committed suicide along with her infant daughter within 7 years of marriage and allegations were placed that she committed suicide on the pretext of cruelty and harassment, but same could not be proved.

Present appeal was filed under Section 378(1) of the Code of Criminal Procedure, 1973 against the Judgment and Order passed by Additional Sessions Judge, whereby the five accused were acquitted for the offences under Sections 498-A, 304-B and 306 read with Section 34 of the Penal Code, 1860.

Factual Matrix

Respondent 2 and 3 are the husband and wife, whereas respondent 1 and 5 are the son and daughter of the said respondents 2 and 3.

Deceased ‘Jyoti’ was the daughter of Haribhau Laxman Karkhile and Shakuntala Haribhau Karkhile.

Further, it was stated that, with the intervention of close relatives of both the families, the marriage of deceased Jyoti with respondent 1 Vijay was settled.

At the time of settlement of marriage, respondents had expressed their desire that marriage should be solemnized in a grand manner. Respondents did not demand any gift or dowry. Haribhau and his family members agreed to the performance of marriage of deceased Jyoti and accused 1 Vijay at Kedgaon in the best of possible manner.

Matrimonial life of deceased Jyoti was normal for about 10 months after marriage. Thereafter, husband and father-in-law started insisting on her for bringing balance dowry amount of Rs 25,000 and subjecting her to cruelty for that, in the form of beating and starving her.

Deceased Jyoti used to disclose about harassment and ill-treatment meted out by husband and in-laws on account of remainder dowry amount of Rs 25,000 to her parents and brothers, whenever she visited her parental house.

In the meanwhile, Jyoti became pregnant and gave birth to a girl child but as afraid to return back to matrimonial house without the remainder of dowry. However, after some time she returned to her matrimonial house and assured her husband/accused that Haribhau would soon arrange the money and requested not to harass her.

Though Haribhau failed to arrange the money and deceased was constantly harassed and the same was disclosed to her parents.

Later, Jyoti and her daughter were both found dead by a fisherman in decomposed condition under the shrubs in the Ghod river.

Haribhau lodged report narrating over all conduct of the accused and the crime was registered for the offences punishable under Section 498-A, 304-B and 306 read with Section 34 IPC.

Additional Sessions Judge on conducting trial found that the prosecution failed to provide demand of dowry and harassment of Jyoti by the accused of non-fulfilment of remainder dowry amount. Being aggrieved of the same, State preferred the present appeal.

Crux of the matter lies in the following issues:

  1. Whether Jyoti committed suicide, along with tender aged daughter Kranti, by drowning into Ghod river;
  2. Whether, soon before the death, Jyoti was subjected to cruelty or harassment by the accused in connection with demand of dowry;

OR

(iii) Whether, by their willful conduct, accused had driven Jyoti to commit suicide along with daughter Kranti.

Bench on taking into consideration the evidence on record, gathered that Jyoti along with Kranti committed suicide by drowning in Ghod river, hence resulting in suicidal death.

Court ruled out the possibility of accused getting annoyed when Jyoti gave birth to a daughter and started harassing Jyoti more, on the contrary, in light of the evidence placed, it was found that they were happy.

PW5 Shakuntala did not tell any relative that accused were ill-treating Jyoti for insisting her to fulfil their demand of remainder dowry amount of Rs 25,000. This conduct of PW5 Shakuntala cannot be lost sight of. In the normal course, every mother shares such aspects with kith and kin or relatives.

Evidence of PW5 Shakuntala was not worthy of credence.

Further, High Court added that when Haribhau, Deepak, Shakuntala and Sudam were well aware about the fact that since more than one year accused were harassing Jyoti, on account of non-payment of remainder dowry of Rs 25,000, in normal course it was expected on their part to disclose the same to police immediately, however, they did not disclose anything about the aforesaid conduct of the accused.

During the course of recording the statement under Section 313 of CrPC, accused 1 not only stated that after birth of daughter Kranti he deposited Rs 50,000 in the Bank of Maharashtra, in the name of Kranti in fixed deposit account, but also produced on record xerox copy of the said fixed deposit receipt. The said conduct of the accused in taking care of future of Kranti, immediately after her birth, by way of depositing substantial amount in her name in bank, creates every doubt about the case set out in the FIR and deposed by PW2 Deepak, PW5 Shakuntala and PW7 Sudam that after the birth of Kranti gravity of harassment of Jyoti by accused increased.

High Court found the allegations of harassment of Jyoti by accused vague and omnibus.

In view of the facts and circumstances of the case, Bench found that Jyoti committed suicide within 7 years of marriage with accused 1 Vijay, accused cannot be held guilty, either for the offence punishable under Sections 498-A, 304-B or 306 read with Section 34 of IPC, as evidence on the aspect of subjecting her to cruelty by accused persons on account of remainder demand of dowry of Rs 25,000/- soon before her death or driving her to commit suicide by their willful conduct, is doubtful for various reasons.

Presumption contemplated in Section 113A or Section 113B of the Evidence Act would not support the prosecution, since Jyoti being subjected to cruelty on account of dowry demand was found to be doubtful.

The reason alone that Jyoti committed suicide, cannot be a ground to hold the accused guilty for offences punishable under Sections 498-A, 304-B or 306 read with Section 34 IPC on suspicion, when the evidence as to the demand of dowry and harassment of Jyoti by accused of the same, adduced by the prosecution was doubtful and not worthy of credence.

On re-appreciating the evidence, High Court did not find the view taken by the Additional Sessions Judge to be incorrect or improbable.

Hence the Bench concurred with the lower court’s view and dismissed the appeal. [State of Maharashtra v. Vijay Dattatraya Kolhe, 2021 SCC OnLine Bom 338, decided on 11-03-2021]


Advocates before the Court:

APP for Appellant – State: Shri R. V. Dasalkar

Advocate for Respondents No. 1, 2, 4 & 5 — Shri Amol Joshi

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., addressed a petition wherein petitioner is an accused of the offences lodged under Sections 498-A, 304-B Penal Code, 1860 and 3/4 of Dowry Prohibition Act, 1961 seeking custody of his children from their maternal grandparents.

The instant petition was filed for a writ of habeas corpus with an assertion that petitioner 2 and 3 (minor children of petitioner 1 age about 8 years and 3 years, respectively) were detained by respondents 4 and 5 (maternal grandparents of the minor children).

Petitioner 1 was sent to jail for being the primary accused in respect of an incident relating to the death of the wife of petitioner 1 i.e. mother of the children, whose custody was being sought.

Additional Advocate General submitted that since petitioner 1 was the principal accused in the above-stated criminal case, granting him the custody of children would be detrimental to their interests.

In Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, it was held that:

 the paramount consideration in such matters would be the welfare of the child, and the court, exercising ‘parens patriae’ jurisdiction, must give due weightage to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor’s mother, was a relevant factor required to be considered before an appropriate order could be passed.

 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, it was held that:

though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

Petitioner could not demonstrate as to how the custody of minor children with their maternal grandparents could be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus.

Hence, petitioner withdrew the petition stating that he would pursue other remedies available under the law with regard to the custodial rights.[Pankaj v. State of U.P.,  2021 SCC OnLine All 116, decided on 20-01-2021]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., inter alia, reversed the conviction of the second wife (of the husband of the complainant-first wife) for abetting the offence under Section 494 IPC.

Criminal Appeal was preferred against the Judgment of conviction and order of sentence passed by the Judicial Magistrate, 1st Class.

Prosecution case was based on a complaint petition wherein it was alleged inter alia that the marriage of the complainant was solemnized with the petitioner and after the marriage, she went to her matrimonial house. Complainant’s mother-in-law and her husband were not happy with the articles demanded due to which they tortured the complainant physically and mentally adding to this, she was also not provided with food.

Petitioner solemnized second marriage with Deoki Devi, thereafter also the complainant stayed at the matrimonial house and gave birth to a son. Complainant’s son was snatched away from her along with all her ornaments and thrown out of the house. Complainant came to her parental house after which the Chief Judicial Magistrate took cognizance.

Prima Facie case under Section 498-A Penal Code, 1860 was made out against the petitioners and further prima facie case under Section 494 of IPC against Mohan Mahto (Complainant’s Husband) was made out.

Court’s Analysis

Bench found that the Lower Appellate Court wrongly recorded that the trial court had convicted Mohan Mahto, Chundri Devi and Deoki Devi for offence under Section 498 A and 323 IPC. Trial Court’s judgment reflected that the learned trial court had convicted Mohan Mahto and Chundri Devi under Section 498A and 323 IPC but Deoki Devi was not convicted under Section 498A of IPC.

Bench noted that there has been consistent evidence on record against the present petitioners who happen to be the husband, and in-laws of the complainant and petitioner Deoki Devi who is the second wife of the petitioner Mohan Mahto regarding physical and mental torture along with demand of dowry, she was thrown out of her matrimonial house with her only son.

Court in view of the above-stated facts and circumstances stated that the family members of the complainant from the side of the in-laws of the complainant have been rightly convicted by the trial court under Section 498A/323 IPC. Petitioner – Deoki Devi has rightly not been convicted under Section 323 IPC only as she was the second wife of the petitioner.

Since the petitioner solemnized to second marriage during the lifetime of his first wife, the complainant, his conviction under Section 494 IPC was upheld.

So far as the conviction of Deoki Devi was concerned under Section 494/109 IPC, Court found that the Complainant Witnesses did not speak a word regarding her role in abetting the offence of second marriage. Though allegations in abetment of second marriage were made against the mother-in-law, father-in-law as well as the father and brother of Deoki Devi, but nothing was said about the role of Deoki Devi nor has imparted any knowledge on the part of Deoki Devi prior to her marriage with Mohan Mahto, that Mohan Mahto was already married.

Court held that the essential ingredient to instigate the petitioner-Mohan Mahto to solemnize second marriage with petitioner -Deoki Devi on her part is wholly lacking in the records of the case. Thus, the finding of the trial court, upheld by the appellate court, holding that Deoki Devi knowingly married the accused Mohan Mahto who was already married, and consequent conviction of petitioner -Deoki Devi for abetment of offence under Section 494 IPC committed by Mohan Mahto, is ex facie perverse, based on no evidence against Deoki Devi.

Further, the Bench found that the Complaint case was filed in the year 2009 and the petitioners namely, Deoki Devi and Chundri Devi have faced the rigours of the trial for 11 years and they have no criminal antecedents and both are females having children

Considering the aforesaid facts and circumstances of the case, this Court is of the view that the ends of justice would be served, if the sentences of the petitioner — Chundri Devi is modified to the period already undergone by her. [Chundri Devi v. State of Jharkhand,  2021 SCC OnLine Jhar 20, decided on 04-01-2021]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Gautam Chowdhary, JJ., gave certain directions to be followed by the police officers before making arrests in cases registered under Section 498-A of Penal Code, 1860.

Factual Matrix

The marriage of respondent 4’s daughter was fixed with petitioner 1 and Rupees 6.5 lakhs were given to the petitioners by respondent 4. Petitioners had also demanded a Creta Car and stated that if said demand could not be fulfilled then they would not solemnize the marriage.

Petitioners Counsel submitted that the marriage of daughter of respondent 4 was fixed with the petitioner 1 and after the ring ceremony, respondent 4 with the ulterior motive, demanded money from the petitioners for solemnizing the marriage and stated that if the same was not fulfilled then petitioners would be falsely dragged in a criminal case.

Under provisions of Sections 204, 41(1)(b), 41(1)(b)(ii)(e), 41(a) of the CrPC, police cannot arrest the petitioners without giving notice and without collecting any credible evidence against the petitioners.

Decision

Bench explained the import and meaning of the amended provisions Section 41(I)(b) and 41 A CrPC.

Police still routinely in many cases proceeds to arrest the accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of Section 41 (I)(b) or 41 A CrPC.

High Court also referred to the Supreme Court decision in Social Action Forum for Manav Adhikar v. Union of India, Writ Petition (Civil) No. 73 of 2015 with Criminal Appeal No. 1265 of 2017 Writ Petition (Criminal) No. 156 of 2017.

 Further, the Court was pained to note that regularly petitions are filed where the offence committed would be for lesser period than 7 years or maximum punishment would be 7 years and they routinely bring by way of writ petition scrap of being arrested.

The provision of Section 41-A were incorporated of this purpose only that concerned who is not charged with heinous crime does not require and whose custody is not required may not face arrest.

Bench gave the following directions:

  • The State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41-A of CrPC 1973.
  • All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
  • The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
  • The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention
  • Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing.

[Vimal Kumar v. State of U.P.,  2021 SCC OnLine All 83, decided on 28-01-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Arvind Singh Chandel J., allowed the appeal and reduced the sentence to the period already undergone by the petitioner for an offence punishable under Section 498-A Penal Code, 1860.

The facts of the case are such that about 1 ½ year prior to the date of incident marriage of the present Appellant was solemnized with the deceased Anuradha Mishra. After marriage, Appellant, as well as his relatives, used to torture the deceased on account of demand of dowry, due to which she committed suicide on 19-12-2002 and thereafter morgue was lodged consequent to which offence was registered. After completion of the trial, Trial Court acquitted the co-accused and present Appellant for the charges under Section 304- B of Penal Code, 1860 i.e. IPC however, Trial Court convicted the Appellant for the offence punishable under Section 498-A IPC and sentenced him. Aggrieved by the same, the present appeal was filed.

Counsel for the appellant submitted that Appellant has already undergone about 13 months out of total jail sentence of 03 years, he has no criminal antecedent and he is facing the lis since 2002, i.e., for about 18 years. Therefore, the jail sentence awarded to the Appellant may be reduced to the period already undergone by him.

Counsel for the respondents submitted that opposed the appeal and supported the impugned judgment.

In view of the facts and submissions the Court held that “out of total jail sentence of 03 years, the Appellant has undergone about 13 months, he is facing the lis since 2002 and there is no criminal antecedent against him, I am of the view that the ends of justice would be met if, while upholding the conviction imposed upon the Appellant, the jail sentence awarded to him is reduced to the period already undergone by him.”

 In view of the above, appeal was allowed.[Rajesh Mishra v. State Of Chhattisgarh, 2020 SCC OnLine Chh 1303, decided on 14-01-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of B. Amit Sthalekar and Shekhar Kumar Yadav, JJ., held that dying declaration can be acted upon without any corroboration when the Court feels convinced about its trustworthiness.

Appellants filed the instant criminal appeal against the order passed by Additional Sessions Judge whereby appellants have been convicted under Section 302/34 of Penal Code, 1860.

All the appellants except appellant Kamal were convicted under Section 498-A IPC and sentenced to three years rigorous imprisonment along with fine with default stipulation. Further, all the appellants except appellant Kamal were convicted under Section 3 of the Dowry Prohibition Act and sentenced to three years rigorous imprisonment along with fine with default stipulation.

Adding to the above, all the appellants except appellant Kamal were convicted under Section 4 of the Dowry Prohibition Act and sentenced to two years imprisonment along with fine with default stipulation.

Appellant filed the instant bail applications in light of the above-stated.

The factual matrix of the instant case shows that informant alleged that the marriage of his niece was solemnised with accused-appellant Raju son of Jaiprakash. Raju, his mother and father, sister and his friend were continuously torturing and harassing the niece of informant for bringing less dowry and for not giving vehicle in the marriage, and these torturous acts of appellants/applicants were regularly complained to the informant’s side by his niece and for which a case of dowry was also registered and pending between the parties.

It was further added to the allegations that the appellants/applicants took the niece of the informant to her matrimonial home, thereafter, she has been continuously harassed and maltreated again for bringing less dowry, which was also complained by her to the informant and the family members.

It was alleged that the appellants set ablaze the informant’s niece with the intention to kill her and when the informant and his family members got the said information, they took her to the hospital and on enquiry by the informant she narrated that all the appellants set her at ablaze with an intention to kill her.

During the treatment, informant’s niece lost her life.

Appellants Counsel submitted that the dying declaration is not trustworthy because, in the dying declaration, it has not been recorded that the deceased was in a fit state of mind to make the said dying declaration.

AGA for the State placed reliance on the dying declaration recorded by the Executive Magistrate to contend that there is no contradiction or inconsistency in the dying declaration so as to disbelieve the same. It was further submitted that Executive Magistrate in his deposition stated that before recording the dying declaration, he enquired about the mental status of the victim from the Doctor and on being satisfied regarding the fit mental status of the deceased, he proceeded to record the dying declaration and it is not the requirement of law that the Executive Magistrate was under an obligation to record his satisfaction that the deceased was in a fit state of mind to make the dying declaration.

AGA also placed reliance on the Supreme court decision in Laxman v. State of Maharashtra, (2002) 6 SCC 710, wherein it was explained that medical certification is not a sine qua non for accepting the Dying Declaration.

Decision

Bench on prima facie reading of dying declaration noted that the deceased gave the dying declaration before the Executive Magistrate, who after having been satisfied that she was in a fit state of mind in giving the statement, recorded her dying declaration.

In the dying declaration, deceased categorically stated the manner in which she was burnt by the appellants.

It is trite law that the court should not be too technical when it feels convinced about the trustworthiness of the dying declaration, which inspires confidence, can be acted upon, without any corroboration.

Bench found a case against the appellants and hence bail was rejected.[Babli v. State of U.P., 2020 SCC OnLine All 1461, decided on 09-12-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., while addressing the instant matter, observed that:

The wife and children of a personnel of the Air Force who has sworn to put his life in peril deserve a treatment different from that of a civilian who has no obligation to sacrifice his life for the country.

Petitioner, a sergeant in the Indian Air Force (IAF) filed the petition in regard to the following:

  • impugning the Air Force Order issued by respondent 2 Chief of Air Staff
  • impugning the administrative order issued by the Chief of Air Staff, sanctioning maintenance claim against the petitioner.
  • Seeking maintenance, directing respondent 2 Chief of Air Staff to refund the amount of maintenance granted under the administrative order, to the son of the petitioner and payable to the respondent 5 i.e. wife of the petitioner.

What the petitioner alleged?

Petitioner’s wife left matrimonial home along with her son and refused to join the petitioner in spite of repeated efforts of the petitioner. Petitioner approached the family court for dissolution of marriage and further initiated custody proceedings for his son.

As a counterblast, wife of the petitioner initiated proceedings under Section 125 of the Criminal Procedure Code, 1973 for maintenance and also approached the Court under Section 156(3) CrPC for registration of a case under Sections 141, 149, 363, 504 & 506 of the Penal Code, 1860 against the petitioner and his parents.

Wife of the petitioner also filed a false and fabricated case under Section 498A of the IPC against the petitioner and his parents but the proceedings in the criminal complaint, as well as the case under Section 498A of the IPC, were stayed by the Allahabad High Court.

Analysis and Decision

Petitioner’s counsel drew the Court’s attention to Sections 190, 191 and 191A of the Air Force Act, 1950 empowering the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 189 and requiring the regulations so made to be published in the Gazette and to be laid before the Parliament.

Section 91(i), in exercise of powers whereunder the impugned AFO No. 03/2013 has been issued, shows the same as authorising deduction from pay and allowances of an officer of any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

Petitioner being a sergeant, the above-stated section would not apply to him.

Section 92(i) authorises deduction from the pay and allowances of an airman, of any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

The Court opined that once (a) there is a specific provision in the Air Force Act i.e. in Sections 91(i) and 92(i) thereof and to which there is no challenge, qua deduction from the pay and allowances, for payment of maintenance; (b) Rule 162, to which also there is no challenge, defines the ‘prescribed officer’ within the meaning of Section 92(i); and, (c) the Air Force Regulations in Regulation 917, to which also there is no challenge, provides that Air Force orders will be issued by the Chief of Air Staff, the impugned order has been issued in compliance of all the said provisions and there was no the need for the said order to be laid before the Parliament or to be notified/ratified इन accordance with Sections 190, 191 and 191A of the Act.

Just like the Courts draw their power to pass orders/decrees for payment of maintenance, from the statutes mentioned hereinabove, so does the Central Government and/or the prescribed officer draw power to award maintenance to wife and children of Air Force personnel from the provisions of the Air Force Act.

Next plea in the petition that was considered was, of the Air Force personnel being discriminated against vis-a-vis civilians, orders for payment of maintenance to wife and children whereagainst can be passed only by the Courts and not by the Central Government or the prescribed officer.

Regarding this, the Bench observed that:

Certainly it is not open to Air Force personnel, to have the privileges not available to civilians and reject the obligations, also not imposed on the civilians. The counsel for the petitioner also forgets that while the civilians can be punished only by the Courts of the land, the Air Force personnel can be tried and punished also by the Authorities under the Air Force Act. What is evident therefrom is, that personnel of the Air Force, form a class by themselves, distinct from the civilians.

Additional observations of the Court:

Sections 16 and 17 of the Air Force Act provides for all persons, enrolled as combatants, selected to hold a non- commissioned rank and subject to the Air Force Act, to be attested and which attestation is in the form of administration of oath containing a promise inter alia to obey all commands of any officer set over him, even to the peril of his life.

The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.

Bench found no merit in the challenge by petitioner to AFO No. 3 of 2013. The said AFO did not make any legislative change and only guided the exercise of discretion and power vested by Sections 91(i) and 92(i) in the Central Government and the prescribed officer to make deductions from the salary and allowance for payment of maintenance to wife and children.

In Suneel v. Union of India 2003 SCC OnLine Del 810, question in the context of Army Act was considered and it was held that in view of the statutory provisions, the Authorities under the Army Act could not be debarred from making an order of maintenance in favour of wife and children of an Army personnel.[Sergeant Ajit Kumar Shukla v. Union of India,  2020 SCC OnLine Del 1590, decided on 10-11-2020]

Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., addressed an issue in the criminal petition in light of Section 41-A of the Criminal Procedure Code, 1973 and the essence of quashing criminal proceedings was thrown light upon by citing the Supreme Court decision in Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350.

The present application sought to quash proceedings pending against the petitioners wherein they were accused of the offences alleged under Sections 498-A, 406 and 420 read with Section 34 of Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

Petitioners Counsel submitted that petitioner 1 and daughter of respondent 2 — de facto complainant married in the USA and registered their marriage. Petitioner 2 is the father of petitioner 1. Petitioner 3 is the mother of petitioner 1.

It has been stated that the de facto complainant implicated the petitioners herein in this false case due to matrimonial disputes between his daughter and accused 1. 

Adding to the above, counsel stated that the punishment prescribed for the offences alleged against the petitioners is seven years and below seven years and the police without following the procedure laid down under Section 41-A of CrPC, is trying to apprehend the petitioners. In the said course of action, the police have been calling petitioners 2 and 3 who are other aged parents of petitioner 1-accused 1, suffering from various old-age ailments.

In view of the above, petitioners sought to quash the same.

In Supreme Court’s decision of Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, it was held that:

“…quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.”

“It was further held in the very same judgment that on perusal of the complaint, if discloses prima facie offences that are alleged against the respondents, it is sufficient. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process, it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused.”

Bench stated that in the present case, certain aspects need to be investigated by the investigating officer.

It is trite to note that the punishment prescribed for the offences alleged against the petitioners is imprisonment of seven years or below seven years.

Court disposed of the criminal petition directing the Station House Officer to follow the procedure laid down under Section 41-A of the CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.[Prudhvi Nallamanikaluva v. State of Telangana, 2020 SCC OnLine TS 1291, decided on 19-10-2020]