, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”

————————————————————————————————————————————————-

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1671 OF 2011

|RAMAIAH @ RAMA |…..APPELLANT(S) |
| | |
|VERSUS | |
|STATE OF KARNATAKA |…..RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.

Laxmi, since deceased, was 14 years of age when she was
married to the appellant on 18.11.1992. Within six months of her marriage
i.e. on 22.05.1993, she died an unfortunate unnatural death. Her body was
recovered on 22.05.1993 at 4 p.m. from a well. It was cremated on that
day. However, four days thereafter i.e. on 26.05.1993, at 8 p.m., Mr.
Mariyappa (PW-1), maternal uncle of the deceased, lodged the complaint with
the Police Station and the case was registered as Cr. No.160/93.

2. As per his statement, it is he and his wife (PW-2) who brought up
Laxmi. At the age of 14, appellant’s father asked for the hand of Laxmi in
marriage with the appellant which resulted in solemnization of marriage
between deceased Laxmi and the appellant on 18.11.1992. PW-1 also stated
in his complaint that at the time of her marriage, there were negotiations
wherein the appellant and her parents had demanded a cash of Rs.5,000/- and
certain gold ornaments. PW-1 could arrange Rs.2,000/- cash only at that
time which was given by him in dowry at the time of marriage alongwith
certain gold ornaments, clothes and other articles. However, since they
were not able to pay the balance of Rs.3,000/-, Laxmi was harassed and
tortured, mentally and physically, because of non-fulfillment of dowry
demand and was asked repeatedly to bring the balance of Rs.3,000/- which
was due towards dowry amount. Laxmi had intimated about this demand and
harassment to her to PW-1 and PW-2 whenever she visited her parental house.
In spite of their best efforts, they could not comply with the said
demand. Few days before the fateful day, when she had come to her parents
house, PW-1 and PW-2 sent her back to her matrimonial home by convincing
her that they would pay the requisite amount soon after harvest of the
crops. It was further alleged that five days before her death, Laxmi had
complained about ill-treatment and harassment to her at the hands of the
appellant and his parents. However, on 22.05.1993 between 10.00 a.m. to
12.30 p.m., the maternal uncle was informed of the death of the deceased
due to drowning in a well belonging to one Bylappa. Her parents were also
informed of the said unnatural death of the deceased. According to the
informant, they did not accept the theory of accidental fall into the well
when deceased went to wash the clothes, as set up by the appellant and that
the accused persons after doing away with her life, had thrown her into the
well. It was also alleged that before they could reach the village of
accused, the dead body of deceased Laxmi was cremated and they did not have
an opportunity of seeing her face before she was cremated.

3. On the basis of the aforesaid complaint, a case was registered
against the husband (appellant herein), father-in-law, mother-in-law and
brother-in-law of the deceased Laxmi. No doubt, the initial complaint by
Mariyappa (PW-1) was to the effect that the accused persons murdered Laxmi
and then threw her into the well and also led the evidence of such crime to
disappear by burning the dead body much prior to the approval of maternal
uncle and parents of the deceased. However, after investigation, the
chargesheet was filed only for offences punishable under Sections 498-A,
304-B, 201 and 176 of the Indian Penal Code (for short ‘IPC’) read with
Sections 3, 4 and 6 (2) of the Dowry Prohibition Act. During trial, mother-
in-law and father-in-law of the deceased passed away. Brother-in-law of
the deceased, being a minor, was sent to Juvenile Offenders’ Court. Thus,
only the appellant was tried for the aforesaid change.

4. The prosecution examined 9 witnesses and 4 exhibits were marked. The
appellant gave his statement under Section 313 of the Code of Criminal
Procedure (for short ‘Cr.P.C.’) and thereafter one Ramakrishnappa was
examined as DW-1. After the conclusion of trial, arguments were heard by
the learned Additional Sessions Judge who returned his verdict vide
judgment dated 24.08.2001 acquitting the appellant of the charges with the
findings that prosecution was not able to prove the guilt of the appellant
beyond reasonable doubt. The State challenged the judgment of acquittal by
filing the appeal under Section 378 of Cr.P.C. in the High Court of
Karnataka. After re-appreciating the entire evidence on record, the High
Court has come to the conclusion that the appellant was in fact guilty of
offence punishable under Sections 3 & 4 of Dowry Prohibition Act as well as
under Sections 498-A, 304-B, 201 and 176 IPC. The judgment and order of
acquittal of trial court is, thereby, set aside by the High Court
pronouncing the following sentences on the appellant under the aforesaid
provisions:

“Having regarding to the facts and circumstances of this case, we
impose a sentence of five year of rigorous imprisonment and also minimum
fine of Rs.15,000/- for the offence punishable u/s 3 of the Dowry
Prohibition Act, in default, to undergo rigorous imprisonment for a period
of six months.

So far as offence u/s 4 of the Dowry Prohibition Act is concerned,
the accused is sentenced to undergo rigorous imprisonment for a period of 6
months and fine of Rs.5000/-, in default to undergo rigorous imprisonment
for a period of three months.

So far as offence u/s 498-A IPC is concerned, the accused is
sentenced to undergo two years rigorous imprisonment and fine of Rs.2000/-,
in default, to undergo rigorous imprisonment for a period of two months.

So far as Sec.304-B IPC, the accused shall undergo minimum sentence
of seven years rigorous imprisonment.

As far as offence under Section 201 IPC is concerned, the accused
shall undergo sentence for a period of one year.

So far as offence under Section 176 IPC, the accused shall pay a fine
of Rs.1000/-.

As the substantive sentence is imposed for the offence punishable u/s
304-B of IPC, all other sentences shall run concurrently.

The accused shall have the benefit of Sec. 428 Cr.P.C.”

5. Before we proceed to discuss the tenability of the merits of this
appeal preferred by the accused, we would like to state certain admitted
facts appearing in the case and would also like to discuss the approach of
the trial court as well as the High Court in giving conflicting verdicts.

6. As mentioned above, deceased Laxmi was 14 years of age at the time of
marriage and was hardly 15 years old when she met an unnatural death.
Marriage between the appellant and Laxmi was solemnized on 18.11.1992 and
within six months of the marriage, she died on 22.05.1993. As per the
prosecution, Shri Mariyappa (PW-1) learnt about the unnatural death of
Laxmi through the message sent from the village of the appellant between
10.00 a.m. and 12.30 p.m. on 22.05.1993. It is not in dispute that the
unnatural death of Laxmi was not intimated to the Police by her in-laws.
Though the parents of the deceased were informed, it is also not in dispute
that no postmortem was sought on the dead body of the deceased. The
appellant has also accepted the fact that as per the prevalent custom in
the community of the appellant as well as the complainant, dead bodies are
buried. However, in the present case, deceased Laxmi was cremated.

7. There is, however, some dispute about the presence of the parents of
the deceased at the time of cremation. As per the prosecution, Laxmi was
cremated before the parents or maternal uncle/aunt of the deceased could
reach the place of the appellant. On the other hand, the appellant
maintains that they had reached well in time and she was not only cremated
in their presence but it was with their concurrence that the body was
cremated and not buried.
8. The persistent and consistent defence put up by the appellant was
that it was an accidental death which occurred when Laxmi had gone to the
well to wash the clothes at about 8.00 a.m. on 22.05.1993 as she fell into
the well accidentally. As per the defence due to this fall, the cause of
death was asphyxia as a result of drowning. It was also the defence of
the appellant that though, as per the customs in their community the dead
bodies are buried, it was decided to cremate Laxmi because of unnatural
death and this decision was taken on the persuasion of the parents of the
deceased themselves. The defence had also taken a stand that the
appellant and his family even wanted to inform the Police about the
incident but her parents did not agree to the same. In so far as
allegations of demand of dowry by the appellant and his family are
concerned, there was a complete denial on the part of the accused persons.

9. A perusal of the judgment of the learned trial court would reflect
that it framed the following questions which had arisen for consideration:

“(1) Whether the prosecutor has proved that, the accused No.1 while
marrying with deceased Lakshmamma has demanded dowry from her parents for a
sum of Rupees Five Thousand and the ornaments and accordingly they had
given ornaments and cash of Rupees Two thousand as dowry, but he has not
summoned the same either to Lakshmamma or to her parents and thus committed
an offence punishable under section 3, 4 and 6 of Dowry Prevention Act ?

(2) Whether the Prosecutor has proved that, after the marriage Lakshmamma
started marital life with 1st accused, the first accused demanding his wife
Lakshmamma to bring the remaining dowry amount of Rupees Three Thousand
from her parents and started giving pinpricks and thus committed an offence
punishable under section 498 (A) of Indian Penal Code?

(3) Whether the prosecutor has proved that, the 1st accused was giving
more pinpricks to his deceased wife and on that reason on 22.05.1993 she
has committed suicide. Hence he has committed an offence punishable under
section 304 (B) of Indian Penal Code?

(4) Whether the Prosecutor has proved that, the 1st accused with an
intention to destroy the evidence has removed the dead body of Lakshmamma
from the well and burn her body and thus committed an offence punishable
under section 201 of the Indian Penal Code?

(5) Whether the Prosecutor has proved that, the 1st accused intentionally
has not informed the matter to the concerned officers about the suicide
committed by his wife Lakshmamma and thus committed an offence punishable
under section 176 of the Indian Penal Code?

(6) What order?

10. Dealing with question No.1, which pertains to the allegation
regarding demand of dowry, the trial court concluded that allegation of
demand of dowry was not true and in arriving on this conclusion, it was
swayed by the following factors:

(1) No elders or seniors had come forward and given evidence even when it
was stated that dowry was given in their presence.

(2) Further, there was no written documents before the Court in this
regard.

(3) None of the villagers had led their evidence before the Court with
regard to demand and receiving of dowry.

(4) PW-1 in his complaint had stated that prior to the marriage,
discussions were held wherein accused No.1 (father of the appellant) had
demanded a sum of Rs.5,000/- cash and ornaments. However, PW-8, Police Sub-
Inspector who received the complaint, admitted in his cross-examination
that this fact was not mentioned in the complaint (Ex.P/1). He also
admitted that in the complaint, it was also not mentioned that PW-1 would
pay the remaining dowry after few days. He also admitted that the averment
of PW-1 that two days before the marriage he had given Rs.2,000/- and had
told that he would give remaining Rs.3,000/- at the time of Shivratri
festival was also not mentioned in Ex.P/1.

(5) The trial court disbelieved the statement of PW-1 regarding payment of
Rs.2,000/- and ornaments etc. because of the reason that he had stated in
his cross-examination that he had got 3 acres of land which is dry land and
he has to maintain his family from his income with no other source of
income. Therefore, he was not capable of giving the aforesaid money and
ornaments.

(6) The trial court further noted that as per PW-1 and PW-3, Laxmi was
very beautiful girl and that was the reason the appellant married Laxmi as
he got attracted by her beauty. PW-1 and PW-3 also admitted that the
accused persons had incurred the marriage expenses and the marriage was
also performed at the residence of the accused/appellant.

(7) The P.W.1 Mariyappa in his cross-examination stated that, he had given
cash and ornaments to the bride and bride groom as per the customs in their
community. In his examination-in-chief he stated that, the 2nd accused
Venkatappa demanded the dowry. The 2nd accused had died. He in his
examination-in-chief had not stated about dowry demand by the appellant.
To the same effect is the testimony of PW-2, wife of PW-1 who categorically
stated that there was a custom of giving silver and gold ornaments and
clothes; the ornaments given were got prepared much prior to the marriage
of Laxmi; the alleged demand of dowry was made by the parents of groom and
his brother i.e. accused Nos. 2 to 4 and did not state about the demand of
dowry by the appellant. Even, PW-3, natural mother of Laxmi deposed on the
identical lines in respect of the dowry demand.

11. On that basis, the trial court arrived at the conclusion that in the
absence of any evidence, oral or documentary, the chances are that whatever
cash, clothes or ornaments were given at the time of marriage, was as per
the prevailing customs in the community and it was not the result of any
demand made by the appellant.

12. In so far as question Nos.2 and 3 are concerned, they were taken up
together by the trial court. In the first instance, the trial court
pointed out that though the complainant got the information about the death
of Laxmi on 22nd May, 1993, he lodged delayed complaint on 26th May, 1993
i.e. four days thereafter. From the statement of PW-1 in the cross-
examination that Laxmi was staying in her matrimonial house and visited her
parental house 5-6 times alongwith her husband and even stayed there with
her husband for some days and also from the admission of PW-1 that even
they were visiting matrimonial house of Laxmi and had visited her house for
5-6 times within a span of six months, the trial court observed that it was
an indication that the relationship of husband and wife was cordial and
with mutual love towards each other. Even, PW-2 and PW-3 had admitted
these facts in their cross-examination. The trial court further observed
that when the giving of dowry on the demand of the accused persons was not
established, it was not possible to believe that they were demanding the
alleged remaining dowry amount of Rs.3,000/- and giving pinpricks to her
for not fulfilling the said demand. According to the trial court, it was
significant that PW-3 who is the natural mother of the deceased did not
even state that Laxmi was being harassed for not bringing the balance dowry
amount. She had rather admitted that her daughter was happy for the first
three months and also accepted in her cross-examination that she had not
told the Police about living peaceful life only for three months. She also
admitted that she never told the Police about giving of dowry of Rs.2,000/-
and demand of balance amount which remained unpaid. The trial court
analysed the testimony of PW-4, PW-5 and PW-6 on this aspect and pointed
out that the allegation of demand of dowry could not be proved from their
testimony either. The discussion on this aspect is concluded in the
following manner:

“(27) After the marriage during the period of 6 months it was not
mentioned in the complaint that the accused have assaulted Lakshmamma
physically and thrown out of the house nor stated the same before the
court. Neither the villagers wherein the accused are residing nor their
neighbors have given any evidence before the court about pinpricks meted
out to her. As against which D.W.1 Ramakrishnappa, aged 56 years, said
that, from the beginning till the death of Lakshamma the accused persons
looked after here well and not given any pinpricks to her, he further told
that on that day she came to well for washing the cloth and due to slip of
her leg she fell in the well and he came to know about the same. In his
cross-examination no other statement was given on behalf of prosecution.

(28) It is an arranged marriage in the presence of elders, in the event of
giving any pinpricks about dowry harassment, this matter would have been
brought to the notice of elders and convene a panchayath. But it never
revealed anywhere about conveying the panchayath. Hence it is hereby seen
that the accused or her husband had not given pinpricks either in the
matter of dowry or in any other matter. It cannot be said that she has
committed for the said reason. Hence I answer both the questions
Negatively.”

13. The aforesaid was the raison d’etre which led to the acquittal of the
appellant by the trial court. The High Court has, however, given a
different glance to the entire matter. According to it, the aforesaid
approach of the trial court was erroneous in law as well as in appreciation
of the evidence on record. After taking note of the fact that Laxmi died
within six months of her marriage and it was an unnatural death, the High
Court has lamented on the conduct of the appellant and has arrived at the
conclusion that it was the appellant who was responsible for the death of
Laxmi and found him guilty of offence under Section 304-B of IPC. The High
Court has also accepted the version of the prosecution that Laxmi was
harassed and humiliated on account of non fulfillment of the demand of
dowry made by the appellant and, therefore, presumption under Section 113-B
of the Evidence Act was attracted. As per the High Court, the appellant
has not been able to lead any satisfactory evidence to dislodge this
presumption. The infirmities found in the depositions of PW-1 to PW-5 by
the trial court have been brushed aside and discarded by the High Court as
irrelevant and perverse. The High Court held that it would be impossible
to expect any party to the marriage talks to keep a record of demand and
payment of dowry as if it was a commercial transaction and, therefore, the
absence of documentary evidence in this regard should not have weighed with
the trial court. The High Court also observed that there was no admission
made by PW-1 that even without the alleged demand of dowry, he would have
given customary articles like clothes and ornaments and no such customary
practice was indicated. The finding of the trial court that the case of
the prosecution regarding demand and payment of dowry was not proved in the
absence of anyone from the village of the accused is also brushed aside by
observing that such a demand and payment would not be made public inasmuch
as such talks would be within closed doors and would be within the
knowledge of the parties to the marriage and kith and kin of the bride and
bridegroom. Further, apart from PW-1 to PW-3, PW-4, who is the neighbour
of PW-1 and PW-2, supported the version of the demand of dowry and the
harassment of Laxmi at the hands of the appellant and his family members.

14. Due to the aforesaid divergent and conflicting outcome of the
proceedings in the two courts below, we have gone through the testimony of
these witnesses. After examining the record and going through the reasons
recorded by both the courts below, we are inclined to accept conclusions
reached by the trial court as we are of the view that the High Court
committed grave error in ignoring and glossing over various contradictions
in the testimonies of PW-1 to PW-5 which were pointed out by the trial
court.

15. At the outset, we may record that some of the comments of the High
Court deprecating few of the reasons recorded by the trial court in support
of its findings are fully justified. The High Court is correct in its
observation that it was not appropriate for the trial court to expect
documentary evidence regarding acceptance of dowry as generally such a
record would not be kept since it was not a commercial transaction. The
High Court also appears to be justified in its observation that non
production of the villagers to prove the dowry demand would not be fatal.
We have eschewed and discarded these reasons assigned by the trial court.
At the same time, it is necessary to find out as to whether the evidence of
these witnesses (PW-1 to PW-3) is worthy of credence, on this aspect. We
find that there are certain very glaring and weighty factors which compel
us to disbelieve the prosecution version on this account.

16. In the present case, it would be prudent to start the discussion by
taking note of the conduct of the maternal uncle (PW-1), his wife (PW-2)
and natural mother (PW-3) of the deceased. They accept that information
about the death of Laxmi was received by them between 10.00 a.m. to 12.30
p.m. on 22.05.1993. They also accept the fact that they had reached the
place of occurrence. Body of the deceased was cremated on 22.05.1993.
There is some dispute as to whether these persons were present at the time
of cremation. According to them, deceased was cremated before they reached
the village of the appellant. To falsify this position taken by the
prosecution through these witnesses, the learned counsel for the appellant
had taken us to the evidence of PW-8 who had drawn Mahazar near the well.
This Mahazar coupled with the statement of PW-8 is a very significant piece
of evidence which has considerable effect in denting the creditworthiness
of the testimony of these witnesses. As per PW-8 himself, when he had
reached the spot, it was the mother of the deceased who pointed out the
place where the dead body was lying. This assertion amply demonstrates
that mother of the deceased had known where the body was kept and she along
with PW-1 and PW-2 had reached the place of occurrence before the dead body
was cremated. Relying upon this evidence, the trial court has disbelieved
the story of the prosecution that Laxmi was cremated even before these
persons had reached the village of the appellant. Strangely, the High
Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz.
it was not an exhibited document before the Court, little realising that
this was the document produced by the prosecution itself and even without
formal proof thereto by the prosecution, it was always open for the defence
to seek reliance on such an evidence to falsify the prosecution version.
Moreover, PW-8 has specifically referred to this document in his evidence.
It is also a matter of record that a specific suggestion was made to PW-3
(mother of the deceased) in the cross-examination to the effect that it is
she who had pointed out the place of the dead body lying near the well to
the Police personnel. The version of PW-1 to PW-3 that they reached the
village of the appellant after Laxmi had already been cremated, does not
inspire confidence and appears to be mendacious.

17. In the aforesaid circumstances, we have to proceed on the basis that
PW-1 to PW-3, on coming to know of the death of Laxmi, had reached the
village of the appellant when the dead body was still lying near the well
from where it was extracted. If the body was cremated thereafter, and not
buried, it can clearly be inferred that same was done with consent, express
or implied, of the complainant namely maternal uncle and the mother of the
deceased. It can also be inferred that parties had decided at that time
that matter be not reported to the Police and body be cremated. To say it
otherwise, by accepting the version of the prosecution, would lead to some
absurdities. It would mean that when maternal uncle or aunt as well as
mother of Laxmi were present and had seen the dead body lying at the spot,
they objected to the body being cremated. They also wanted Police to be
informed. If it was so, why they did not put up any resistance? We have to
keep in mind that these family members of Laxmi have come out with the
allegation that Laxmi was harassed as well as mentally and physically
tortured because of non fulfillment of dowry demand. In such a scenario,
they would not have remained silent and mute spectators to the events that
followed even when they were not to their liking. Not only this conduct
belies their version, another weighty factor is that the complainant
remained silent about these happenings for a period of 4 days and lodged
the report with the Police only on 26.05.1993 when they came out with the
allegations of demand of dowry and harassment.

18. We are conscious of the fact that in such cases, sometimes there may
be delay in lodging the FIR for various valid reasons. However, it is
important that those reasons come on record. There is no explanation worth
the name given by the complainant as to why the complainant maintained
stoic silence. In this backdrop, the testimony of these witnesses alleging
dowry demand has to be tested more stringently and with some caution. On
that touchstone, when we analyse the statements, we find the contradictions
therein, as pointed out by the learned trial court, become very appealing
and meaningful.

19. With the aforesaid observations, we proceed to discuss the first
specific charge under Section 498-A of the IPC relating to the demand of
dowry. We have already stated the reasons which prevailed with the trial
court in not accepting the prosecution version of demand of dowry by the
appellant herein, as well as the reasons which influenced the High Court to
take a contrary view. After going through the evidence of PW-1 to PW-3 as
well as PW-4 to PW-6, we find that the trial court correctly appreciated
and analysed the evidence of these witnesses. In the first instance, it
needs to be recorded with due emphasis that none of the witnesses had made
any specific allegation for the demand of the dowry in so far as the
appellant is concerned. The prosecution also could not establish that any
dowry articles were given at the time of marriage. On the contrary, it is
accepted by these witnesses that the appellant had asked for the hand of
Laxmi because of her beauty by which he was attracted. We are not
suggesting that this reason, by itself, is sufficient to rule out the
possibility of demand of dowry. At the same time, this circumstance when
seen with all other attendant factors surfacing on the record of this case,
makes it somewhat difficult to swallow the prosecution version that there
would be a demand of dowry as a precondition for marriage. Other attendant
circumstances also negate the theory of demand. PW-1 and PW-3 have
themselves admitted that it is the accused persons who had incurred all the
marriage expenses and also admitted that marriage was performed at the
residence of the appellant. This would be because of the reason, as
pleaded by the appellant in support of which the appellant led evidence as
well, that the family members of Laxmi were poor persons and had not
sufficient means to even incur the expenditure on the wedding of Laxmi.
Even in respect of alleged demand of dowry, PW-1 Mariyappa stated that the
so-called demand was by the father of the appellant and did not at all
accuse the appellant in this behalf. To the same effect is the testimony
of PW-2.

20. When the demand of dowry and giving of dowry at the time of marriage
has not been proved, further version of the prosecution witnesses that
there was a demand for payment of remaining amount of Rs.3,000/- and
harassment of Laxmi on that account, also becomes doubtful. It has come on
record, and can be clearly discerned from the reading of the statements of
the material witnesses viz. the family members of Laxmi, that during this
short period of 6 months of the marriage, she had visited her matrimonial
house 5-6 times. Pertinently, her visits were alongwith her husband. The
couple had even stayed in the parental house of Laxmi for some days on few
occasions. This indicates that the relationship of husband and wife was
cordial. In this backdrop, evidence of PW-3, mother of the deceased Laxmi,
assumes great significance, who has not even stated that her daughter was
harassed for not bringing the alleged balance dowry amount. On the
contrary, she accepted that her daughter was happy for first 3 months. So
much so in her statement to the Police, she had not told the Police about
living peaceful life only for 3 months. She did not tell the Police about
giving of dowry of Rs.2,000/- and demand of balance amount coupled with
harassment because of death.

21. In addition to the aforesaid material aspects which are highlighted
from the evidence of the prosecution witnesses, most important feature
which is accepted by these witnesses is that in so far as the appellant
individually is concerned, there was no demand of dowry by him. In the
absence of any particular allegation against the appellant in this behalf,
would be improper to convict the appellant under Section 498-A IPC.

22. We find that the High Court has ignored the aforesaid features which
are elaborately discussed in the judgment of the trial court, culling from
the depositions of the prosecution witnesses. The High Court, while
accepting the version of the prosecution on this aspect, namely, Laxmi was
harassed and humiliated because of demand of dowry made by the appellant,
has embarked on the discussion which is general and non-specific in
nature. Even if there is little evidence, that is too infinitesimal to
convict the appellant, more so when that is not only self contradictory but
also surrounded by other weighty circumstances that go in favour of the
accused. Once we find that the demand of dowry and harassment on that
account is not proved beyond reasonable doubt, question of invocation of
Section 113 Evidence Act would not arise. We feel that the High Court has
been totally influenced by the fact that Laxmi had died within 6 months of
her marriage and it was an unnatural death.

23. No doubt, it was so. But only for this reason, the High Court could
not have convicted the appellant by finding him guilty of offence under
Section 304-B of IPC as well by primarily relying upon the provisions of
Section 113-B of the Evidence Act.

24. We are conscious of the fact that it was an unfortunate demise of
Laxmi who died within 6 months of the marriage. However, at the same time,
whether her death was accidental as claimed by the defence or it was a
suicide committed by Laxmi, is not clearly established. Had the
allegations of demand of dowry and harassment of Laxmi were established
thereby making it an offence under Section 498-A of IPC, things would not
have been different. However, when we do not find dowry demand and
harassment of Laxmi to be established, the inferences drawn by the High
Court taking the aid of Section 113-B of the Evidence Act also deserve to
be discarded. Section 113-B of the Evidence Act reads as under:

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

A plain reading of the aforesaid provision would demonstrate that to
attract the presumption as to dowry death stated in the aforesaid
provision, it is necessary to show that soon before her death, she had been
subjected by such persons to cruelty or harassment for, or in connection
with, any demand for dowry. When this essential ingredient has not been
established in the present case, the question of drawing any presumption by
invoking of the aforesaid provision would not arise.

25. In this backdrop, we revert back to the conduct of the mother of
Laxmi, as well as her maternal uncle and his wife (i.e. PW-1 and PW-2),
which becomes very crucial. As per our discussion above, it is clear that
they had reached the place of death, after receiving the information, much
before Laxmi was cremated. Once that is accepted, as it is established
from record and particularly Mahazar drawn by PW-8, further events happen
thereafter are to be analysed keeping in mind this fundamental aspect. In
fact, the entire time of thinking of the High Court proceeds on the premise
that Laxmi was cremated even before her parents and uncle/aunt reached the
appellant’s village. Entire edifice based on thereupon crumbles once this
finding is found to be erroneous. As we are of the opinion that the
finding of the trial court is correct thay they had reached the village
well in time and body was cremated in their presence, further sequence of
events has to seen in that hue. It was told by the accused persons that
Laxmi had died accidentally falling into the well with the active or
passive consent of PW-1 to PW-3, Laxmi was cremated. Her last rites were
performed in which these persons participated. They accepted the version
of the accused persons, at that time. It is only after a period of 3 days
that the complaint is filed with the allegations of demand of dowry by the
accused persons; harassment of Laxmi on account of alleged non-payment of
the balance dowry; and her unnatural death. We state at the cost of the
repetition that once it is established that the body of Laxmi was cremated
in the presence of these persons, it lends credence to the defence version
that there was an acceptance by them at that time that Laxmi had died due
to accidental slip in the well and all of them decided to cremate Laxmi and
not to report the matter to the Police. Otherwise it would baffle any
right minded person as to why they did not inform the Police or did not put
up any resistance.

26. Let us test the veracity of the version of these persons from another
angle. If there was harassment and cruel treatment given to Laxmi by her
in-laws, on reaching the place of the accused persons after receiving the
unnatural demise of Laxmi, they would have perceived the same to have
happen in mysterious circumstances. In such a situation, they would not
have kept quite and inform the Police immediately. They would have also
insisted on the postmortem of the body of Laxmi to find out the cause of
death. That would be the natural reaction of any such persons who believe
that their daughter had faced harassment on account of non-fulfillment of
the dowry demand and it would be fresh in their mind, if their version is
to be believed that just 5 days before the death, Laxmi had complained of
the cruel behaviour of her in-laws. No such thing happened, on the
contrary, body of Laxmi was cremated in their presence and after performing
the last rites, they turned back to their home quietly. It is 4 days
thereafter that they thought of lodging the complaint to the Police.

27. In the case of State of Andhra Pradesh v. M. Madhusudhan Rao, 2008
(14) SCALE 118, in similar circumstances, the Court termed such a delay as
‘embellishment and exaggeration’ though in that case, it was an abnormal
delay of 1 month. The principle stated therein was equally applied herein
as well which would be clear from the following observation herein:

“18. Having gone through the depositions of PW-1 and PW-3, to which
out attention was invited by learned Counsel for the State, we are
convinced that in the light of the overall evidence, analysed by the High
Court, the order of acquittal of the respondent is well merited and does
not call for interference, particularly when the First Information Report
was lodged by the complainant more than one month after the alleged
incident of forcible poisoning. Time and again, the object and importance
of prompt lodging of the First Information Report has been highlighted.
Delay in lodging the First Information Report, more often than not, results
in embellishment and exaggeration, which is a creature of an afterthought.
A delayed report not only gets bereft of the advantage of spontaneity, the
danger of the introduction of coloured version, exaggerated account of the
incident or a concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its veracity.
Therefore, it is essential that the delay in lodging the report should be
satisfactorily explained.

19. In the present case, as noted supra, First Information Report in
regard to the alleged occurrence on 19th April, 1996 was lodged on 22nd
May, 1996. Admittedly after her discharge from the hospital on 22nd April,
1996, the complainant went to her parents’ house and resided there. In her
testimony, the complainant has deposed that since no one from the family of
the accused came to enquire about her welfare, she decided to lodge the
First Information Report. No explanation worth the name for delay in
filing the complaint with the police has come on record. We are of the
opinion that this circumstance raises considerable doubt regarding the
genuineness of the complaint and the veracity of the evidence of the
complainant (PW-1) and her father (PW-3), rendering it unsafe to base the
conviction of the respondent upon it. Resultantly, when the substratum of
the evidence given by the complainant (PW-1) is found to be unreliable, the
prosecution case has to be rejected in its entirety.

28. We may hasten to add here that many times in such type of cases,
there can be reasons for keeping quite at the given time and not reporting
the matter immediately. Therefore, we are conscious of the legal position
that delay per se may not render prosecution case doubtful as there may be
various reasons for lodging the FIR with some delay (see Sahebrao and
another v. State of Maharashtra, (2006) 9 SCC 794. Thus, there is no hard
and fast rule that any delay in lodging the FIR would automatically render
the prosecution case doubtful. However, what is emphasised is that if that
was so, it was necessary for the prosecution to at least come forward with
the explanation as to why the complainant kept quite and why he did not
report the matter to the Police immediately. No such explanation is coming
forward in the present case. Moreover, in the instant case, the delay is
seen as fatal when examined in juxtaposition with other material that has
come on record and discussed above, which shakes the veracity of
prosecution case, bringing it within the four corners of doubtful
prosecution story.

29. We find that when going by all these considerations, the trial court
gave benefit of doubt to the appellant and acquitted him, in the case of
reversal of such a verdict of acquittal, the High Court should have
specifically dealt with the aforesaid circumstances weighing in favour of
the appellant and should have given suitable justification for overturning
the verdict of acquittal. The approach of the High Court, as the appellate
court, while dealing with the case of acquittal is stated by this Court in
the case of Harbans Singh v. State of Punjab, (1962) Supp. 1 SCR 104, in
the following manner:
“8. The question as regards the correct principles to be applied by a
Court hearing an appeal against acquittal of a person has engaged the
attention of this Court from the very beginning. In many cases, especially
the earlier ones, the Court has in laying down such principles emphasised
the necessity of interference with an order of acquittal being based only
on “compelling and substantial reasons” and has expressed the view that
unless such reasons are present an Appeal Court should not interfere with
an order of acquittal. (Vide Suraj Pal Singh v. The State (1952) SCR 194;
Ajmer Singh v. State of Punjab MANU/SC/0042/1952 : 1953CriLJ 521; Puran v.
State of Punjab MANU/SC/0090/1952 : AIR 1953 SC 459). The use of the words
“compelling reasons” embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and difficulties
occasionally arose as to what this Court had meant by the words “compelling
reasons”. In later years the Court has often avoided emphasis on
“compelling reasons” but nonetheless adhered to the view expressed earlier
that before interfering in appeal with an order of acquittal a Court must
examine not only questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which impelled the lower
courts to acquit the accused and should interfere only if satisfied after
such examination that the conclusion reached by the lower court that the
guilt of the person has not been proved is unreasonable. (Vide Chinta v.
The State of Madhya Pradesh (Criminal Appeal No. 178 of 1959 decided on 18-
11-60); Ashrafkha Haibatkha Pathan v. The State of Bombay (Criminal Appeal
No. 38 of 1960 decided on 14-12-60).

9. It is clear that it emphasising in many cases the necessity of
“compelling reasons” to justify an interference with an order of acquittal
the Court did not in any way try to curtail the power bestowed on appellate
courts under s. 423 of the Code of Criminal Procedure when hearing appeals
against acquittal; but conscious of the intense dislike in our
jurisprudence of the conviction of innocent persons and of the facts that
in many systems of jurisprudence the law does not provide at all for any
appeal against an order of acquittal the Court was anxious to impress on
the appellate courts the importance of bestowing special care in the
sifting of evidence in appeal against acquittals. As has already been
pointed out less emphasis is being given in the more recent pronouncements
of this Court on “compelling reasons”. But, on close analysis, it is clear
that the principles laid down by the Court in this matter have remained the
same. What may be called the golden thread running through all these
decisions is the rule that in deciding appeals against acquittal the Court
of Appeal must examine the evidence with particular care, must examine also
the reasons on which the order of acquittal was based and should interfere
with the order only when satisfied that the view taken by the acquitting
Judge is clearly unreasonable. Once the appellate court comes to the
conclusion that the view taken by the lower court is clearly an
unreasonable one that itself is a “compelling reason” for interference.
For, it is a court’s duty to convict a guilty person when the guilt is
established beyond reasonable doubt, no less than it is its duty to acquit
the accused when such guilt is not so established.”

30. This very principle of law was formulated by the Court in M.
Madhusudhan Rao (supra) in the following manner:

“13. There is no embargo on the appellate court to review, reappreciate or
reconsider the evidence upon which the order of acquittal is founded. Yet,
generally, the order of acquittal is not interfered with because the
presumption of innocence, which is otherwise available to an accused under
the fundamental principles of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a court of
law, gets further reinforced and strengthened by his acquittal. It is also
trite that if two views are possible on the evidence adduced in the case
and the one favourable to the accused has been taken by the trial court, it
should not be disturbed. Nevertheless, where the approach of the lower
court in considering the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is such which by
some manifest illegality or the conclusion recorded by the court below is
such which could not have been possibly arrived at by any court acting
reasonably and judiciously and is, therefore, liable to the characterised
as perverse, then, to prevent miscarriage of justice, the appellate court
is obliged to interfere.

14. All these principles have been succinctly culled out by one of us
(C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka, (2007) 4
SCC 415.”

31. In Chandrappa (supra), which was followed in the aforesaid case, the
Court had observed:
“44. In our view, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”

32. We thus, find that there were no solid and weighty reasons to reverse
the verdict of acquittal and to convict the appellant under the given
circumstances. Accordingly, we allow this appeal and set aside the
judgment of the High Court, holding that the appellant is not guilty of the
charges foisted against him.

33. During the pendency of this appeal, the appellant was enlarged on
bail vide order dated 31.03.2014. The bail bonds and sureties given by the
appellant are hereby discharged.

…………………………………..J.
(J. Chelameswar)

…………………………………..J.
(A.K. Sikri)
New Delhi;
August 7, 2014.

 

 

The PSS Act, 2007 provides for the regulation and supervision of payment systems in India and designates the Reserve Bank of India (Reserve Bank) as the authority for that purpose and all related matters. The Reserve Bank is authorized under the Act to constitute a Committee of its Central Board known as the Board for Regulation and Supervision of Payment and Settlement Systems (BPSS), to exercise its powers and perform its functions and discharge its duties under this statute.  The Act also provides the legal basis for “netting” and “settlement finality”. This is of great importance, as in India, other than the Real Time Gross Settlement (RTGS) system all other payment systems function on a net settlement basis.

Section 2(1) (i) of the PSS Act 2007 defines a payment system to  mean a system that enables payment to be effected between a payer and a beneficiary, involving clearing, payment or settlement service or all of them, but does not include a stock exchange (Section 34 of the PSS Act 2007 states that its provisions will not apply to stock exchanges or clearing corporations set up under stock exchanges).  It is further stated by way of an explanation that a “payment system” includes the systems enabling credit card operations, debit card operations, smart card operations, money transfer operations or similar operations.
All systems (except stock exchanges and clearing corporations set up under stock exchanges) carrying out either clearing or settlement or payment operations or all of them are regarded as payment systems. All entities operating such systems will be known as system providers. Also all entities operating money transfer systems or card payment systems or similar systems fall within the definition of a system provider. To decide whether a particular entity operates the payment system, it must perform either the clearing or settlement or payment function or all of them.

Under the PSS Act, 2007, dishonor of an electronic fund transfer instruction due to insufficiency of funds in the account etc., is an offence punishable with imprisonment or with fine or both, similar to the  dishonor of a cheque under the Negotiable Instruments Act 1881. Subject to complying with the procedures laid down under the PSS Act, 2007, criminal prosecution of defaulter can be initiated in such cases. This provision was introduced to discourage dishonour of   electronic payment instructions. (Section 25 of the Act).

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(CRL) 696/2008

DELHI COMMISSION FOR WOMEN ——–Petitioner

Through Ms. Aparna Bhat, Ms. Madhulika Mohta,

Advocates

Versus

DELHI POLICE ——–Respondent

Through Ms. Mukta Gupta, Standing Counsel for the

Coram:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE NEERAJ KISHAN KAUL

O R D E R

  1. 4.2009

Pursuant to the order dated 10.9.2008, Delhi Commission for

Women has filed draft guidelines to enable the authorities to

effectively tackle sexual offences including incest and child sexual

abuse offences. The guidelines have been prepared in consultation

with all departments, police and the judges of Delhi Higher Judicial

Service. A modified draft has also been placed on record keeping in

view of the suggestions made by the State as well as the Registry of

the High Court. Having considered the modified draft and also the

submissions made at the Bar, we issue the following guidelines to

police, hospitals/ doctors, Child Welfare Committees, Sessions Court, Magistrate Courts, Prosecutors and other concerned authorities. The

guidelines enumerated hereinafter shall be read in the context of the

following definitions:

“a. “Crises Intervention Centre” means a recognized agency,

appointed by the Delhi Police and the Delhi Commission for Women for

responding to calls of sexual assault at t6he police station to provide

counseling and other support services to victims of rape;

b. “Expert” means a person who is qualified and has experience

in dealing with cases of sexual violence;

c. “Guardian” includes besides the natural guardian, support

person or any person appointed by the Child Welfare

Committee for a specified period to take care of the victim

during the pendency of the trial;

d. “Rape Crises Cell” means a cell established under the Delhi

Commission for Women to provide legal assistance in the

cases of sexual assault who would coordinate the Crises

Intervention Centres and provide legal support to the victim

and her family;

e. “Support Person” means a person working in the capacity of a

counselor working with a recognized and registered crises

intervention centres, approved by the Delhi Commission for

Women; f. The expression “offence for the purpose of these guidelines

shall mean and include offences of rape, attempt to rate and

unnatural offences.

1) POLICE

a. Every Police Station shall have available round the clock a lady

police official/ officer not below the rank of Head Constable.

b. As soon as a complaint of the offence is received, the duty

officer receiving the complaint/ information shall call the lady

police official/ officer present at the police station and make the

victim and her family comfortable.

c. The duty officer, immediately, upon receipt of the complaint/

information intimate to the “Rape Crises Cell” on its notified

helpline number.

d. After making preliminary inquiry/ investigation, the Investigation

Officer along with the lady police official/ officer available, escort

the victim for medical examination.

e. The Assistant Commissioner of Police shall personally supervise

all investigation into the office.

f. The statement of victim shall be recorded in private, however,

the presence of family members while recording statement may

be permitted with a view to make the victim comfortable. In incest cases where there is a suspicion of complicity of the family

members in the crime such family members should not be

g. The Investigating Officer shall bring the cases related to “child in

need of care and protection” and the child victim involving in

incest cases to the Child Welfare Committee.

h. The accused should not be brought in the presence of victim

except for identification

i. Except the offences which are reported during the night no

victim of sexual offence shall be called or made to stay in the

police station during night hours. The Social Welfare

Department of the Government of NCT of Delhi shall ensure that

Superintendents of the Foster Hose for Women will provide

necessary shelter till formal orders are secured from the

concerned authorities.

j. The Investigating Officer shall endeavor to complete the

Investigation at the earliest and he shall ensure that in no case

the accused gets the undue advantage of bail by default as per

the provisions of Section 167 Cr.P.C. It is desirable that in cases

of incest the report under Section 173 Cr.P.C. is filed within 30

days. k. Periodically training to deal with rape cases should be provided

to the police officers, juvenile police officers, Welfare Officers,

Probationary Officers and Support persons. A Training Module

be prepared in consultation with the Delhi judicial Academy.

l. The Police should provide information to the Rape Crisis Cell

regarding the case including the arrest and bail application of the

accused, the date of filling of the investigation report before the

Magistrate;

m. The Police should keep the permanent address of the victim in

their file in addition to the present address. They should advise

the victim to inform them about the change of address in future.

n. Subject to the outcome of the W.P.(C) 2596/2007 titled Rajeev

Mohan Vs. State, pending before this Hon’ble Court in cases

where the victim informs the police about any threats received

by the accused family, the concerned DCP should consider the

matter and fresh FIR must be registered under Section 506 of

the Indian Penal Code.

II) DOCTORS/ HOSPITALS/ HEALTH DEPARTMENT

a. Special rooms to be set up in all government hospitals for

victims to be examined and questioned in privacy. b. A sexual assault evidence collection kit or sexual assault

forensic evidence (SAFE) kit consisting of a set of items used by

medical personnel for gathering and preserving physical evidence

following a sexual assault should be available with all the

Government Hospitals. A sexual assault evidence collection kit

should contain commonly available examination tools such as:

  • Detailed instructions for the examiner
  • Forms for documentation
  • Tube for blood sample
  • Urine sample container
  • Paper bags for clothing collection
  • Large sheet of paper for patient to undress over
  • Cotton swabs for biological evidence collection
  • Sterile water
  • Glass slides
  • Unwaxed dental floss
  • Wooden stick for fingernail scrapings
  • Envelopes or boxes for individual evidence samples
  • Labels

Other items needed for a forensic/ medical exam and treatment

that may be included in the rape kit are: • Woods lamp

  • Toluidine blue dye
  • Drying rack for wet swabs and/or clothing
  • Patient gown, cover sheet, blanket, pillow
  • Needles/ syringes for blood drawing
  • Speculums
  • Post-it Notes used to collect trace evidence
  • Camera (35 mm, digital, or Polaroid) film, batteries.
  • Medscope and/ or colcoscope
  • Microscope
  • Surgilube
  • Acetic acid diluted spray
  • Medications
  • Clean clothing and shower/ hygiene items for the victims

use after the examination

c. A detailed description of “Assault/ Abuse History” be

mentioned by the attending doctor on the MLC of the victim;

The doctor must ensure that the complete narration of the

history of the case detailed by the victim and her escort is

d. After the examination is complete the victim should be

permitted to wash up using toiletries provided by the hospital. The hospital should also have clothing to put on if her own

clothing is taken as evidence.

e. All hospitals should co-operate with the police and preserve

the samples likely to putrefy in their pathological facility till

such time the police are able to complete their paper work for

dispatch to forensic lab test including DNA.

III) CHILD WELFARE COMMITTEE

a) In cases of incest and child in need of care and protection,

the Child Welfare Committee shall examine the victim to

ascertain the nature of support she is getting from her

family and initiate steps for ensuring best interest of the

child. In such cases the Child Welfare Committee shall

conduct a home study to assess and ensure the safety of

the victim;

b) In cases where the child is placed in the shelter, the

Committee shall monitor the condition of the victim

c) In cases of incest, while the victim stays in the foster

home the family members should be allowed to meet the

victim only in the presence of the support person and care

be taken by the staff of the home that the meeting be not used to pressurize/ influence the victim to change for

d) Child Welfare Committee shall ensure that rehabilitation

facilities are provided to the victim in appropriate cases.

In cases of a prolonged stay, the victim should be given

educational and vocational training in order to enable the

victim to support herself after she leaves the foster home.

The Social Welfare Department and Child Welfare

Committee will develop and implement Foster Care

Services within two months.

e) Before passing any order of restoration of custody of child

to the family, the Child Welfare Committee shall conduct

an inquiry to assess the suitability of the victim being

restored to the family. The custody of the child will be

altered by the Child Welfare Committee only after

consultation with the stakeholders;

f) Child Welfare Committee shall ensure that the victim Is

provided with necessary medical and psychological aid

during her stay in foster home for the purpose of her

rehabilitation; g) Child Welfare Committee shall maintain a list of all registered

Foster Homes providing residential support, special services and

rehabilitation facilities to the victim.

IV PROSECUTORS

a) In cases where the child is placed in a shelter following the

orders of the Child Welfare Committee or a Metropolitan Magistrate,

the application seeking custody of the child made by the

parents/relatives of the victim should not be acceded to till such time,

the Public Prosecutor gets the status of the applicants verified with the

Rape Crisis Cell and also call for the records of the Child Welfare

Committee if it is not available.

V) COURTS

a) The Magistrate unless there are compelling reasons shall record

the statement of the victim under Section 164 Cr.P.C. on the day on

which the application is moved by the Investigating Officer. The

Magistrate before proceeding to record the statement shall ensure that

the child is made comfortable and she is free from any extraneous

b) An endeavour shall be made to commit such cases of offence to

the Court of Sessions expeditiously and preferably within 15 days.

c) The Hon’ble Supreme Court in Delhi Domestic Working Women

Forum Vs Union of India, 1995 (1) SCC 14 and reiterated by this

Hon’ble Court in Khem Chand Vs State of Delhi 2008 (4) JCC 2 497

had directed that the victim be provided with a counsel. The existing

practice of the victims being represented by a counsel from Rape Crisis

Cell may continue. In cases where the victim has a private lawyer,

she may be allowed to retain the private lawyer.

d) That as far as possible chief examination and cross examination

of the victim must be conducted on the same day;

e) The Additional Session Judge/District Judge shall maintain a

panel of psychiatrists, psychologists and experts in sign language etc.,

who would assist in recording the statement of witnesses as and when

requested by the Sessions Courts.

f) If it is brought to the notice of the Court from a support

person/Rape Crisis Cell Advocate/victim, regarding threats received by

the victim or her family members to compromise the matter, the judge

shall immediately direct the ACP to look into the matter and provide an

action taken report before the Court within 2 days. The Court must

ensure that protection is provided to the victim and her family.

g) In cases in which the witness is sent back unexamined and is

bound down, the Court shall ensure that at least the traveling

expenses for coming to and from for attending the Court are paid.

VI) SUPPORT SERVICES

a) A 24 hour helpline that can be contacted by the victims, police or

any member of the public will be created. The Commission shall notify

and widely publish its existing telephone number and that number will

be used till such time a toll-free number is made available.

b) The Rape Crisis Cell will have with them accredited support

services for shelter, social workers, counselors, mental health

professional, lawyers;

c) The list of these accredited support services will be provided to

the Prosecution Branch, the Commissioner of Police as well as to the

Registrar of this Hon’ble Court;”

2. The Commission shall prepare a brochure which will contain

these guidelines along with summary and directions passed by the

Supreme Court and this Court in Delhi Domestic Working Women’s

Forum Vs Union of India 1995 (1) SCC 14, Sakshi Vs Union of India

(2004) 5 SCC 518, Chairman Railway Board Vs Chandrima Das

(2000) 2 SCC 465 Sheeba Abidi Vs State & Anr. 113 (2004) DLT

125, Khem Chand Vs State of Delhi, 2008 (4) JCC 2,497, X(Ms.) Vs

State of NCT and Anr 149 (2008) DLT 194. The brochure shall be

prepared in consultation with the Registrar General of this Court and

learned Standing Counsel for the State Government so that it may be

circulated to all the departments/police/courts/ Child Welfare Committees/Hospitals/doctors/prosecutors to enable effective

implementation of the guidelines.

3. The brochure shall be maintained and kept with all the agencies/

authorities dealing with the victims of sexual assault and the

guidelines contained therein shall be strictly followed and

4. A copy of this order shall be circulated to all the Delhi

Government hospitals/Central Government hospitals and MCD

hospitals for enforcement of the guidelines and directions contained in

part II of the guidelines. The concerned Medical Superintendents of

the respective hospitals shall submit an action taken report to the

Registrar General of this Court within a period of two months. In so

far as the Child Welfare Committees are concerned, they shall file

quarterly action taken report(s) to the juvenile Justice Committee of

Delhi High Court.

5. Women’s Commission shall prepare a training module for

training of police officers, juvenile police officers, welfare officers,

probationary officers and support persons in consultation with the

Delhi Judicial Academy. The Principal, Police Training College, Delhi

shall hold periodical training programmes and ensure that all

concerned persons undergo training/sensitization programme in one

6. Learned Standing Counsel for the State Ms. Mukta Gupta states

that the draft rules for the foster care services have been prepared

and the rules will be notified within a period of two months from today. 7. We are informed by the counsel for Delhi Women Commission

that pursuant to the directions issued by the Supreme Court in Delhi

Domestic Working Women’s Forum Vs Union of India (Supra)

the Commission has submitted a draft scheme to the Delhi

Government for payment of compensation to victims of rape which is

under consideration of the State Government. The State Government

is directed to consider the draft scheme submitted by the Commission

and file a status report in this Court within a period of two months.

List on 29th July, 2009 for further directions.

CHIEF JUSTICE

 

NEERAJ KISHAN KAUL, J

APRIL 23, 2009

Flagging the issue in a judgment on Saturday, Justice Kailash Gambhir said rape cases are being used as “a weapon for vengeance and vendetta” to harass and even force a boy to marry.

While granting anticipatory bail to a man facing rape charges from a woman claiming to be his wife, HC added that in many cases woman first has consensual sex but later files rape case against her boyfriend when the relationship breaks up in order to force him to get married, making not only “mockery” of the marriage but also inflating the statistics of rape cases.

“Many of the cases are being reported by those women  who have consensual physical relationship with a man but when the relationship breaks due to one reason or the other, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her,” HC said advocating extreme caution to judges who should “cautiously examine the intentions of the girl to find out whether the rape complaint is genuine or has malafide motives”.

Earlier this week, Justice G P Mittal and Justice Suresh Kait in separate judgments quashed FIR’s relating to rape of a minor and gang-rape of a private executive respectively, after they found too many discrepancies or contradictions in victims’ statements. The common theme in all three judgments was the advice to courts not to get swayed by mere allegations of rape, howsoever heinous, but sift through evidence before convicting anyone.

Justice Gambhir, while dealing with the anticipatory bail plea pointed out that for a period of more than two years, the woman enjoyed physical intimacy with the boy. She lodged an FIR alleging rape only when he spurned her offer of marriage when she took help of the police to forcibly marry him even though the marriage was never consummated, as per the FIR.

In her complaint, she justified the delay on the grounds she was threatened and blackmailed by the boy and his kin to keep quiet otherwise she might have been killed. Being the victim of such a reprehensible crime, one should lodge a complaint immediately, or within a reasonable period of time unless there are sufficient reasons to explain the long delay, the court said.

“Delay in lodging an FIR, in such like cases can ultimately diminish the chances of conviction, as due to such delay, the medical evidence and the other circumstantial evidence may rarely be available to support the case of prosecution,” it said.

While acknowledging there is a manifold increase in the crime concerning rapes, HC said all the rape cases which are filed have their “own individual story and factual matrix”. It agreed most of the cases may be genuine, wherein the girl is a victim of the horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl “but there may be cases where both persons out of their own will and choice, develop a physical relationship”.

 

Sources: http://timesofindia.indiatimes.com/india/Women-using-rape-laws-for-vengeance-Delhi-high-court-says/articleshow/20267501.cms

 

For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case ofoffences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify thecases and say that in particular classes bail may be granted but not in others. Not only in the caseof economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.”

———————————————————————————————————————————————————————————————————

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 1770/2013

Date of Decision: 21st October, 2013

PARAMJEET ….. Petitioner Through Mr. Tanveer Ahmad Mir, Advocate

versus

STATE OF NCT OF DELHI ….. Respondent Through Ms. Asha Tiwari, APP for the State with SI Ashok Kumar, Crime Branch.

CORAM:

HON’BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J.

1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 filed by the petitioner for grant of bail in case FIR No.152/2013, under Section 419/420/467/468/471/120-B IPC PS Crime Branch.

2. As per the allegations in the FIR, secret information was received in SOS office that Pradeep and Devender were recruiting drivers and conductors on the basis of fake conductors’ licence-cum-badge and fake driving licence after charging huge amount. On this information, a raid was conducted. Decoy customers were deputed for being recruited as drivers and conductors. A trap was laid. Pradeep and Devender demanded Rs. 70,000/- for Bail.Appln.1770/2013 Page 1 of 8 conductor’s post in cluster bus service and Rs.40,000/- were demanded for the driver’s post and as per deal, part payment was made to Pradeep as advance money. Devender handed over fake conductor’s licence and first aid certificate to the decoy customer and Pradeep handed over the fake driving license to the second decoy customer. On signal from decoy customers, Pradeep and Devender were apprehended and fake documents handed over by them to decoy customers were seized. The numbered notes were also recovered from the possession of Devender and Pradeep. During the course of investigation, the above stated accused Devender disclosed that he got prepared the fake driving license, conductor and first aid certificate from one Amarjeet. Accused Pradeep disclosed that he got prepared driving license from one Chandra. Amarjeet was arrested. Accused Pradeep and Devender also disclosed about the involvement of applicant/accused Paramjeet @ Sanjay Dahiya. They disclosed that accused Paramjeet @ Sanjay Dahiya charged Rs. 36,500/- per recruitment of conductor and that more than 85 conductors were recruited through applicant/accused and as per disclosure statement, about 40 conductors were recruited on fake conductor’s license cum badge and first aid certificates.

3. It is further the case of the prosecution that the accused was Assistant Director in M/s Prehari Protection System (P) Ltd. and responsible for the recruitment and verification of conductors and the documents produced by the candidates. The accused and his associates have recruited more than two Bail.Appln.1770/2013 Page 2 of 8 thousand conductors.

4. It is submitted by learned counsel for the accused that the accused has been arrested only on the basis of disclosure statement of co-accused, which is inadmissible in evidence. Vide letter of award dated 28th March 2011, M/s Prehari Protection System (P) Ltd. was selected as a successful bidder by Delhi Integrated Multi Modal Transit System Limited (DIMTS) for providing fare collection and related services in operation of private stage carriage buses and the main job of the company was to provide the conductors to the said DIMTS. The applicant is not the Assistant Director but as per the letter of appointment, he is only Assistant Manager. He was never involved in the recruitment of conductors of DIMTS and in fact the applicants applied for the post of conductor on the prescribed format and they were selected as per the requirement of DIMTS. He is in custody since 09 th September 2013. Nothing has been recovered from the possession of the applicant. He has been falsely implicated in this case as such he be released on bail. Reliance was placed on Anil Mahajan vs. Commissioner of Custom, 2000 (84) DLT 854 wherein the legal position regarding grant of bail was summarised. The main emphasis was placed on c, d and n.

5. The bail application is vehemently opposed by learned Public Prosecutor for the State on the ground that it is a big racket which is recruiting drivers and conductors on the basis of fake document after taking huge amount from the customers. It was submitted that on receipt of secret Bail.Appln.1770/2013 Page 3 of 8 information, raid was conducted. Two customers were deputed and trap was laid; co-accused Pradeep and Devender were arrested. During investigation, accused Devender disclosed that he got prepared fake driving licenses, conductor and first aid certificate from one Mr. Amarjeet while accused Pradeep disclosed that he got prepared driving licenses from one Chandra. Amarjeet was arrested. Accused Pradeep and Devender also disclosed about the involvement of applicant Paramjeet @ Sanjay Dahiya. It was submitted that fake conductors’ license cum badge, I-card, receipt books and visiting cards have been recovered from applicant Paramjeet which shows his complicity in the crime. Statement of Inder Singh, s/o Ishwar Singh, R/o 4336, Defence Colony, Jind, Haryana and Rajesh Kumar s/o Rajender Singh r/o V.P.O. Hassangarh, District Rohtak, Haryana were recorded under Section 161 Cr.PC wherein they have stated that they were recruited by Paramjeet @ Sanjay Dahiya without having any conductor license/badge and first aid certificate and for this purpose they paid Rs.65,000/- each to Paramjeet and his associates. On interrogation, Paramjeet disclosed that he has so far appointed more than 2000 conductors with the help of Devender and Pradeep and some other associates out of which a number of candidates were appointed on the basis of forged document. The particulars of the conductors working on public transport cluster post are being verified from the concerned transport authorities. The verification report regarding five driving license of drivers appointed by this illegal racket has been received from ARDO Bail.Appln.1770/2013 Page 4 of 8 /Kanpur/U.P. which are reportedly found fake. Verification report regarding five First Aid Certificates recovered from accused person has also been received from St. John Ambulance Aassociation, Red cross Bhawan, New Delhi, which was also found fake. Keeping in view, the magnitude and primary stage of investigation coupled with the fact that other associates of this organisation are yet to be identified, it is submitted that if the accused is released on bail at this stage he may influence the witnesses, destroy/tamper the evidence.

6. I have given my considerable thoughts to the respective submissions of learned counsel for the parties. In Anil Mahajan (supra), this Court summarised the legal position regarding grant/refusal of bail. Learned counsel for the petitioner laid special emphasis on points c, d and n for submitting that the object of bail is to secure the attendance of the accused at the trial. Bail is not to be withheld as a punishment. Since accused has roots in the society, as such there is no chance of his absconding. Even in case of economic offences, the accused is to be granted bail. Points c, d and n relied upon by learned counsel for the petitioner are reproduced as under:- “(c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the vent of the Court punishing him with imprisonment.

(d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the Bail.Appln.1770/2013 Page 5 of 8 accused person before he is convicted.

(n) For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.”

7. However the other parameters laid down in (h), (i), (k) and (l) also cannot be ignored which are reproduced as under:-

“(H) There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstances cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. (I) While exercising the discretion to grant or refuse bail the Court will have to take into account various consideration like the nature and seriousness of the offence; the circumstances in which the offence was committed; the character of the evidence; the

Bail.Appln.1770/2013 Page 6 of 8 circumstances which are peculiar to the accused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage if investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be exhaustively set out. However, the two paramount considerations are (i) the likelihood of the accused fleeing from justice, and (ii) the likelihood of the accused tampering with prosecution evidence. These two consideration in fact relate to ensuring a fair trial of the case in a court of justice and hence it is essential that due and proper weight should be bestowed on these two factors.

(K) If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation, bail can be refused in order to ensure a proper and fair investigation.

(L) If there are sufficient reasons to have a reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be refused bail in order to ensure a fair trial of the case.”

8. In the light of the principles stated above, the facts and circumstances of the present case have to be considered. It is the case of prosecution that it is an organised racket which is recruiting drivers and conductors on the basis of forged documents. Statement of two witnesses have also been recorded u/s 161 Cr.P.C who have stated that they were recruited by the applicant without having any conductor’s licence/badge and first aid certificate and a sum of Rs.65,000/- each was paid to the accused and his associates. The Bail.Appln.1770/2013 Page 7 of 8 investigation further reveals that 5 driving licences of drivers and five first aid certificates were also found to be fake. The case is at primary stage of investigation. Larger interest of public is involved. Accused is one of the persons in the entire chain and in case he is released on bail, apprehension of the prosecution that he may influence the witness and may tamper with evidence cannot be ruled out.

9. Under the circumstances, keeping in view the magnitude of the crime and the primary stage of investigation, at this stage, accused is not entitled to be released on bail.

The application is accordingly dismissed.

SUNITA GUPTA, J

OCTOBER 21, 2013

“There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent
it a dubious place of pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act
with oblique motive.”



 

—————————————————————————————————————————————————————————————————-

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of
the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of
the Dowry Prohibition Act, 1961. The maximum sentence provided under
Section 498-A IPC is imprisonment for a term which may extend to three
years and fine whereas the maximum sentence provided under Section 4 of the
Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran.
The marriage between them was solemnized on 1st July, 2007. His attempt to
secure anticipatory bail has failed and hence he has knocked the door of
this Court by way of this Special Leave Petition.

 

Leave granted.

 

In sum and substance, allegation levelled by the wife against the
appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and
father-in-law and when this fact was brought to the appellant’s notice, he
supported his mother and threatened to marry another woman. It has been
alleged that she was driven out of the matrimonial home due to non-
fulfilment of the demand of dowry.

 

Denying these allegations, the appellant preferred an application for
anticipatory bail which was earlier rejected by the learned Sessions Judge
and thereafter by the High Court.

 

There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent
it a dubious place of pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act
with oblique motive.

Law Commissions, Police Commissions and this Court in a large number
of judgments emphasized the need to maintain a balance between individual
liberty and societal order while exercising the power of arrest. Police
officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever,
we feel differently. We believe that no arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is
one thing, the justification for the exercise of it is quite another. Apart
from power to arrest, the police officers must be able to justify the
reasons thereof. No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be
prudent and wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as to the
genuineness of the allegation. Despite this legal position, the Legislature
did not find any improvement. Numbers of arrest have not decreased.
Ultimately, the Parliament had to intervene and on the recommendation of
the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present
form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality
permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of
imprisonment which may extend to seven years and fine, Section 41(1)(b),
Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years
whether with or without fine, if the following conditions are satisfied,
namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or

to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or

as unless such person is arrested, his presence in the Court whenever
required cannot be ensured,

 

and the police officer shall record while making such arrest, his reasons
in writing:

Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.

 

X x x x x x

 

From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.

 

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

 

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:

“41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.

 

(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.

 

(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.”

 

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:

All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;

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 filed 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;

The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC 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;

Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

 

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years; whether with or without fine.

 

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

 

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

 

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

 

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

 

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 

NEW DELHI,
July 2, 2014.

 
———————–
21

 

 

 

 

 

Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating office

——————————————————————————————————————————————————————————————–

Gujarat High Court
Gujarat High Court
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965
Equivalent citations: AIR 1966 Guj 217, 1966 CriLJ 990, (1966) 0 GLR 829
Author: N Shelat
Bench: N Shelat, A Sarela
JUDGMENT
N.G. Shelat, J.
1. to 8. xx xx xx
9. With regard to the evidence of Gulabrai, it was urged by Mr. Mankad, the learned advocate appearing for
respondent No. 1, that his statement recorded by the investigating officer in the case was not supplied to the
accused as is required under Section 173 Sub-section (4) of the Criminal Procedure Code and that
consequently the probative value of his evidence would be materially affected. Sub-section (4) of Section 173
of the Criminal Procedure Code provides as under.-
After forwarding a report under this Section, the officer in charge of the police station shall, before the
commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of
the report for-worded under Sub-section (1) and of the first information report recorded under Section 184 and
of all other documents or relevant extract thereof, on which the prosecution proposes to rely, including the
statements and confessions, if any recorded under Section 164 and the statements recorded under Sub-section
(3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating officer. The Chapter XVIII of the Criminal
Procedure Code relates to the procedure to be followed by the Magistrate in inquiries preparatory to
commitment, in respect of proceedings instituted on a police report received by him under Section 173 of the
Criminal Procedure Code. Sub-section (3) of Section 207A of the Criminal Procedure Code then provides that
-
“At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before
him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and If he
finds that the accused has not been furnished with such documents or any of them, he shall cause the same to
be so furnished.”
A similar provision is contained in Section 251A of the Criminal Procedure Code, laying down procedure to
be adopted in the trial of warrant cases instituted on a police report, by the Magistrate. If appears from these
provisions that the obligation is cast on the Magistrate to satisfy himself that the documents referred to in
Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with
such documents or any of them he shall cause the same to be so furnished In light of these provisions the
grievance of the accused as urged by Mr. K. N. Mankad for the respondent No. 1, has to be examined. Now it
is not suggested, much less said that the committing Magistrate had not made inquiry from the accused and
not satisfied in that respect. It has to be taken that the procedure as required in law was followed by him and
he had satisfied himself that the accused had recited all such statements as contemplated under Section 173(4)
read with Section 207A, Sub-section (3) of the Criminal Procedure Code The charge-sheet submitted by the
police in the case described the name of the witness Gulabrai as one of the witnesses to be examined for
prosecution in the case. When that was so, and if the accused had in fact not received the police statement of
witness Gulabrai. it was necessary for the accused to move the committing Magistrate before committal of the
accused to the Court of Sessions, that they have not received such a statement, and if they failed to do so then,
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965

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