A husband/father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order. In the present case no reason has been mentioned justifying the grant of the stay order.

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IN THE    SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1399   OF 2019

(Arising out of SLP (Crl.) No.7203/2019)

Pratima Devi & Anr ……………………….APPLANT

VERSUS

Anand Prakash      ……………….Respondent

O R D E R

  1. Leave granted.
  2. Though served, no one appears for the respondent. The appellants, the wife and minor son of the respondent had filed a petition for grant of maintenance under Section 125of the Criminal Procedure Code before the Principal Judge, Family Court, Karkardooma Courts, Delhi. The Principal Judge by order dated 03.10.2017 passed an order granting maintenance @ Rs.20,000/- to the appellants, (Rs. 10,000/- to the wife and Rs. 10,000/- to the minor son). This order was passed ex-parte. The respondent filed an application for setting aside the Signature Not Verified ex-parte order which application was rejected on Digitally signed by CHARANJEET KAUR Date: 2019.09.17 17:03:02 IST Reason: 05.09.2018. Aggrieved, the respondent filed criminal revision No. 986 of 2018 before the High Court. Along with revision petition an application for stay was filed. The orders passed in the said petitions read as follows :

“Trial Court record be requisitioned. List on 25th November, 2019. in the meantime, execution proceedings be kept in abeyance.”

  1. We are constrained to observe that this order shows total non-application of mind on the part of the High court. This was a case where maintenance had been granted to a wife and to a minor son. The High Court without recording any reason whatsoever, has stayed the grant of maintenance both to the wife and to the minor son. This should not be done. A husband/father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order. In the present case no reason has been mentioned justifying the grant of the stay order.
  2. We, therefore, set aside the impugned order and direct the payment of maintenance as awarded by the Family Court. We, however, make it clear that the High Court after hearing the parties may pass an appropriate reasoned order. We make it clear that this order will not come in the way of the High Court confirming, modifying or vacating the order of the Family Court.
  3. The appeal is, accordingly disposed of.

……………..J.

[ DEEPAK GUPTA ] ……………….J.

[ ANIRUDDHA BOSE ]

 

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Further, the Division Bench of this Court in case of Vijaykumar Jagdishrai Chawla v. Reeta Vijaykumar Chawalareported in III (2011) DMC 687 while dealing with similar issue as to whether unmarried daughter is entitled to receive amount of of maintenance from her father or mother so long she is unable to maintain herself out of her own earnings. By referring to the provisions of Section 20 of the Hindu Adoption and Maintenance Act, 1956 the Division Bench of this Court was pleased to hold that the father cannot be extricated from his liability to maintain his unmarried daughter who is staying with his wife and he would be bound not only to maintain his unmarried daughter but also responsible to maintain until her marriage while dealing with the objection of the respondent as to whether a wife can seek relief of maintenance on behalf of her major daughter, the Division Bench held that the unmarried daughter is entitled to receive maintenance from her father and the mother is competent to pursue relief of maintenance for the daughters even if they have become major if the daughters are staying with her and if she was taking responsibility of their maintenance and education. At this stage, it is also relevant to refer to the judgment of the Apex Court in the case of Jagdish Jugtawat v. Manju Lata reported in (2002) 5 SCC 422, where the Apex Court held as follows:— “Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125, Code of Criminal Procedure and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated, we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment order of the High Court is called for.”

  1. From the aforestated position, it is clear that the unmarried daughter though attained majority is entitled to claim maintenance from the father.
  2. It is very clear from the above judgments that even though Section 125 restricts the payment of maintenance to the children till they attain majority, when it comes to the daughter, Courts have taken a consistent stand that even though the daughter has attained majority, she will be entitled for maintenance till she remains unmarried by virtue of Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In order to avoid multiplicity of proceedings, the Courts have taken a consistent stand that the petition under Section 125 of Cr.PC can be entertained without pushing her to file an independent petition seeking for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956.
  3. That apart, the Hon’ble Supreme Court has also held that mental injury is nothing but malice in law which can be gathered on the basis of violation of a legal right to claim maintenance vested under any law for the time being in force including Section 125 of Cr.PC. If the right to claim maintenance of the daughter is infringed, definitely it can be called as a injury which can very well be fit into the definition of mental injury.

 

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAMTHE HON’BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.No.15336 of 2019

R.KirubaKanmani                                   …Petitioner

-Vs

-L.Rajan                                        … Respondent

Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to set aside the order dated 02.04.2019 passed in MC SR.No.185 of 2019 on the file of Principal Judge, Family Court Chennai.               ORDER

This petition has been filed challenging the order of the Court below rejecting the petition filed by the petitioner under Section 125 of Cr.PC seeking for monthly maintenance from the respondent, who is the father of the petitioner.

  1. The petitioner who is aged about 18 years is the  unmarried daughter of the respondent and she has sought for maintenance from the respondent father on the ground that she is not in a position to take care of the expenses incurred by her towards her education.
  2. The Court below has rejected the petition mainly on the ground that the petitioner is a major and that in terms of Section 125 (1) (b) and (c) of Cr.PC, the petitioner is not entitled for any maintenance and that she does not suffer from any physical or metal disablement.
  3. Mr.Sharath Chandran, learned counsel for the petitioner submitted that the Court below has completely misdirected itself in rejecting the petition and that the order of the Court below is opposed to settled principles of law. The learned counsel for the petitioner further submitted that a combined reading of Section 125 of Cr.PC and Section 20(3) of the Hindu Adoption and Maintenance Act makes it very clear that a father is under an obligation to maintain his unmarried daughter even if she has attained majority.

5. The learned counsel for the petitioner in order to substantiate his arguments cited the following judgments and the relevant portions of the judgments are also extracted hereunder :-[Noor Saba Khatoon Vs.Mohammed.Quasim] reported in 1997 6 SCC 323.

A short but interesting question involved in this appeal, by special leave, is whether the children of Muslim parents are entitled to grant of maintenance under Section 125 CrPC for the period till they attain majority or are able to maintain themselves whichever date is earlier or in the case of female children till they get married or is their right restricted to the grant of maintenance only for a period of two years prescribed under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 notwithstanding Section 125 CrPC.

Thus, both under the personal law and the statutory law (Section 125 CrPC) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.

Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125 CrPC for the period till they attain majority or are able to maintain themselves, whichever is earlier and in case of females, till they get married, and this right is not restricted, affected or controlled by the divorcee wife’s right to claim maintenance for maintaining the infant child/children in her custody for a period of two years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125 CrPC till they attain majority or are able to maintain themselves, or in the case of females, till they are married.

It, therefore, follows that the learned trial court was perfectly right in directing the payment of amount of maintenance to each of the three children as per the order dated 19-1-1993 and the learned 2nd Additional Sessions Judge also committed no error in dismissing the revision petition filed by the respondent. The High Court, on the other hand, fell in complete error http://www.judis.nic.in in holding that the right to claim maintenance of the children under Section 125 CrPC was taken away and superseded by Section 3(1)(b) of the 1986 Act and that maintenance was payable to the minor children of Muslim parents only for a period of two years from the date of the birth of the child concerned notwithstanding the provisions of Section 125 CrPC. The order of the High Court cannot, therefore, be sustained. It is accordingly set aside. The order of the trial court and the revisional court is restored. This appeal succeeds and is allowed but without any orders as to cost.

[Jagdish Jugtawat Vs.Manju Lata and others] reported in 2002 5 SCC 422

2……The learned Single Judge was persuaded to maintain the order of the Family Court with a view to avoid multiplicity of proceedings. The relevant portion of the judgment of the High Court is quoted here: “Thus, in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon’ble Supreme Court, the provisions of Section 125 CrPC are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon’ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the  provisions under Section 125CrPC on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub- section (3) of Section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference.”

  1. In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Quasim [(1997) 6 SCC 233 : 1997 SCC (Cri) 924 : AIR 1997 SC 3280] relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 CrPC does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl.
  2. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 CrPC and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for.

iii. [Mansi Vohra Vs. Ramesh Vohra] reported in 2012 SCC online Del 5835

  1. Present petition has been filed under Section 482 Cr. P.C. challenging the order dated 17th March, 2012 passed by the Additional Sessions Judge (‘ASJ’) in Criminal Revision Petition No. 147 of 2011 wherein it was held that the petition filed by a major unmarried daughter for maintenance was not maintainable under Section 125 Cr.P.C. The ASJ in the impugned order dated 17th March, 2012 has held as under:-

“8. I have bestowed my careful consideration to the rival submissions made by learned counsel for revisionist as well as learned counsel for respondent in the light of the relevant provisions of law as well as the cases relied upon in support of their respective submissions and I have come to the conclusion that u/s 125 Cr.P.C. a major unmarried daughter cannot claim maintenance from her father unless her case is covered u/s 125(1)(c) Cr.P.C. Admittedly, Mansi Vohra is major daughter of the revisionist Ramesh Vohra and she is not physically or mentally abnormal and as such her petition u/s 125 Cr. P.C. for claiming maintenance is not legally maintainable. I also agree with the submissions made by learned counsel for revisionist that a major daughter unable to maintain herself can claim maintenance from her father only u/s 20 of Hindu Adoptions and Maintenance Act, 1956. Keeping in view this well settled legal proposition of law, I am of the view that the impugned order passed by learned MM is not in accordance with law and accordingly it is set aside by holding that the maintenance petition filed by Mansi Vohra, the present respondent, for claiming maintenance from her father Ramesh Vohra, the present revisionist u/s 125 Cr. P.C. is not legally maintainable. With these observations, this revision petition stands disposed of.” (emphasis supplied)

  1. Learned Counsel for the petitioner argued that under Section 125 of the Code the child cannot be granted maintenance after he/she has attained the age  of majority in the absence of any physical or mental infirmity, even if he or she is unable to maintain herself, in terms of Clause (c) of Sub-section (1) of Section 125 of the Code…………
  2. The law laid down by the Supreme Court while dealing with entitlement of the children to claim maintenance from the Muslim parents under Section 125 of the Code till they attain majority or in case of females till they get married, is fully applicable to the facts at hand. It may be noted here that under Sub-section (3) of Section 20 of the Hindu Adoptions and Maintenance Act, 1956, obligation of a Hindu father includes the obligation to maintain his unmarried daughter not only for the purposes of her day-to-day expenses, but also in respect of the reasonable expenses of her marriage. It arises from the very existence of relationship.
  3. The above view finds support from the observations made by the Calcutta High Court in Bankim Ch. Banerjee v. Chinmoyee Banerjee, 2003 (1) Crimes
  4. The ratio of the two decisions cited by the learned Counsel for the petitioner are not applicable to the facts at hand in view of the law laid down by the Supreme Court in Noor Saba Khatoon (supra).
  5. For the foregoing reasons, I find no illegality or impropriety in the impugned order to warrant interference.
  6. This Court is also of the opinion that even in Jagdish Jugtawat (supra), the Supreme Court has held that maintenance petition filed by the major daughter even if she does not fall in one of the exceptions mentioned in Section 125(1)(c) Cr. P.C., would be still maintainable on a combined reading of both Sections 125 Cr.P.C. and Section 20(3) of Hindu Adoptions and Maintenance Act, 1956.
  7. Moreover, to ask the petitioner to now file an independent petition before the Family Court under Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 would not only cause her inconvenience but would also defeat her right to claim maintenance for the period Section 125 Cr.PC proceeding was pending before the Metropolitan Magistrate. Such an interpretation would, in certain cases where both sections clearly overlap, create multiplicity of litigation.
  8. [T.Vimala and others Vs. S.Rama krishnan ] reported in 2016 SCC Online Mad 12324
  9. No doubt, Section 125 Cr.P.C. is not happily worded, since it has prescribed certain riders for a daughter or son who has attained majority to claim maintenance from their father. They must establish that they are under physical disability or they are suffering out of injury. There may be cases, where a daughter or a son, even after having attained majority, may not have sufficient financial capacity to maintain themselves and they continue to need the support of their father. This is  a reality of the situation. But, the Court cannot simply put the blame on the draftsman. Court must interpret the law. It should advance the cause of justice. That will be march of law.
  10. In Jagdish Jugtawat v. Manju Lata [(2002) 5 SCC 422] exactly, as in our case, it was argued before the Hon’ble Supreme Court that the daughter having attained majority and as it has not been established that she is suffering out of any physical disability or injury, she is not entitled to maintenance from her father. The Hon’ble Supreme Court noticing the phraseology employed inSection 125 Cr.P.C. encountered a difficult situation. However, in its zeal to advance the scheme of social justice incorporated in Section 125 Cr.P.C. and to protect a daughter, who has attained majority, but who does not suffer any physical disability, the Hon’ble Supreme Court called in aid Section 20 of the Hindu Adoption and Maintenance Act and held that although in view of the rider attached to a daughter, who attained majority, she may not be eligible for maintenance under Section 125 Cr.P.C., yet she is eligible for maintenance under Section 20 of the Hindu Adoption and Maintenance Act from her father and thus maintained the maintenance order passed in her favour under Section 125 Cr.P.C.
  11. Exactly, similar is the situation before us. The said Apex decision was not brought to the notice of the learned Principal Sessions Judge, Dindigul. Had it was produced, the thinking of the learned Principal Sessions Judge, Dindigul would have been different. So, in such view of the matter, scraping of maintenance granted to the second daughter on account of her attaining majority and her inability to establish physical disability is to be set aside.
  12. [Agnes Lily Irudaya Vs. Irudaya Kani Arasan] reported in 2018 SCC Online Bom 617 The present petition is filed by the petitioner- mother claiming maintenance for her major daughter under section 125 of the Code of Criminal Procedure and the legal issue involved is whether a major daughter is entitled for maintenance under section 125 of the Code of Criminal Procedure (“the Cr.P.C.” for short) and another issue which arises out of the present proceedings, whether a mother is competent to file proceedings claiming maintenance on behalf of her major daughter.
  13. Under Section 125 of the Cr.P.C. it is only the minor child who is entitled to claim maintenance if such child is not able to maintain itself. A child who has attained majority is held entitled for claiming maintenance, on account of physical or mental abnormality or injury he is unable to maintain himself. There is no any specific provision contained in Section 125 for grant of maintenance to a daughter who is major. However, perusal of the judgment of the Hon’ble Apex Court in the case of Noor Saba Khatoon v. Mohd. Quasim (supra)  where the Hon’ble Apex Court had an opportunity to deal with the issue as to whether children of Muslim parents are entitled to grant maintenance under Section 125 of the Cr.P.C. after they attain majority, the Hon’ble Apex Court by making a reference to Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 observed thus:—
  14. Thus, both under the personal law and the statutory law (Sec. 125. Cr.P.C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.
  15. Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125, Cr.P.C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married, and this right is not restricted, affected or controlled by divorcee wife’s right to claim maintenance for maintaining the infant child/children in her custody for a period of two years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section  125, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married.
  16. Further, the Division Bench of this Court in case of Vijaykumar Jagdishrai Chawla v. Reeta Vijaykumar Chawalareported in III (2011) DMC 687 while dealing with similar issue as to whether unmarried daughter is entitled to receive amount of of maintenance from her father or mother so long she is unable to maintain herself out of her own earnings. By referring to the provisions of Section 20 of the Hindu Adoption and Maintenance Act, 1956 the Division Bench of this Court was pleased to hold that the father cannot be extricated from his liability to maintain his unmarried daughter who is staying with his wife and he would be bound not only to maintain his unmarried daughter but also responsible to maintain until her marriage while dealing with the objection of the respondent as to whether a wife can seek relief of maintenance on behalf of her major daughter, the Division Bench held that the unmarried daughter is entitled to receive maintenance from her father and the mother is competent to pursue relief of maintenance for the daughters even if they have become major if the daughters are staying with her and if she was taking responsibility of their maintenance and education. At this stage, it is also relevant to refer to the judgment of the Apex Court in the case of Jagdish Jugtawat v. Manju Lata reported in (2002) 5 SCC 422, where the Apex Court held as follows:— “Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125, Code of Criminal Procedure and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated, we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment order of the High Court is called for.”
  17. From the aforestated position, it is clear that the unmarried daughter though attained majority is entitled to claim maintenance from the father.
  18. It is very clear from the above judgments that even though Section 125 restricts the payment of maintenance to the children till they attain majority, when it comes to the daughter, Courts have taken a consistent stand that even though the daughter has attained majority, she will be entitled for maintenance till she remains unmarried by virtue of Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In order to avoid multiplicity of proceedings, the Courts have taken a consistent stand that the petition under Section 125 of Cr.PC can be entertained without pushing her to file an independent petition seeking for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956.
  19. That apart, the Hon’ble Supreme Court has also held that mental injury is nothing but malice in law which can be gathered on the basis of violation of a legal right to claim maintenance vested under any law for the time being in force including Section 125 of Cr.PC. If the right to claim maintenance of the daughter is infringed, definitely it can be called as a injury which can very well be fit into the definition of mental injury.
  20. The Court below has not taken into consideration the march of law that has taken place by virtue of the above judgments and had committed an error by rejecting the petition at the threshold on the ground of maintainability and the same requires interference by this Court in exercise of its jurisdiction under Section 482 of Cr.Pc.
  21. This Criminal Original Petition is allowed and the order passed by the Court below dated 02.04.2019 is hereby set aside. The  petitioner is directed to re-present the petition before the Court below and the Court below shall proceed to number the petition and thereafter deal with the same in accordance with law. The Registry is directed to handover the original maintenance petition filed before this Court to the learned counsel for the petitioner by retaining the copy of the same in order to enable the petitioner to re-present the petition before the Court below.

 

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

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

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

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1217 OF 2019

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

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

VS

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

 

JUDGMENT

HEMANT GUPTA, J.

1)       Leave granted.

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

High Court of judicature at Bombay on November 27, 2018 whereby an order passed by the Magistrate declining permission to respondent No. 2 to prosecute the appellants-accused for the offences punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, 18601, was allowed.

3) The respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 19732 for the aforesaid offences. The learned Magistrate declined permission without giving any reason but the 1 for short, ‘IPC’ 2 for short, ‘Code’. High Court considered the judgments on the subject and granted permission to conduct prosecution only for the reason that the application has been made by an aggrieved party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2)must be understood as 4 (1999) 7 SCC 467
    applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub- section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution “under the directions of the Public Prosecutor”. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.
  2. From the schemeof the Codethe legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.”

9) In a three Judge Bench of this Court in J.K. International v. State (Govt. of NCT of Delhi) & Ors.5, where offences under Sections 420, 406 and 120-B IPC were investigated and charge sheet filed 5 (2001) 3 SCC 462
on the basis of complaint of the appellant, the accused filed a petition for quashing of the charges in which the complainant wanted to be heard. The Public Prosecutor filed an application before the Magistrate for amending the charge for incorporating two more offences which were exclusively triable by the Court of Sessions. The Magistrate dismissed the application but the said order was not challenged by the prosecution. It was held that the scheme in the Code indicates that the person who is aggrieved by the offence committed is not altogether wiped out from the scene of the trial merely because the investigation was taken over by the police. This Court while considering the provisions of sub-section (2) of Section 301 and Section 302, held as under:

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

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

  1. The said provision falls within the Chapter titled “General Provisions as to Inquiries and Trials”. When such a role is permitted to be played by a private person, though it is a limited role, even in the Sessions Courts, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal court merely because the case was charge-sheeted by the police. It has to be stated further, that the court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. If he submits any such written arguments the court has a duty to consider such arguments before taking a decision.
  2. In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the court. In this context it is appropriate to mention that when the trial is before a Magistrate’s Court the scope of any other private person intending to participate in the conduct of the prosecution is still wider… xx xx xx
  3. The private person who is permitted to conduct prosecution in the Magistrate’s Court can engage a counsel to do the needful in the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Of course, this wider amplitude is limited to Magistrates’ Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much
    restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.”

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

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

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

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

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

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

xx xx xx

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

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

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

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

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

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

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

16) We find that the High Court has granted permission to the complainant to prosecute the trial without examining the parameters laid down hereinabove. Therefore, we set aside the order passed by the High Court and that of the Magistrate. The matter is remitted to the Magistrate to consider as to whether the complainant should be granted permission to prosecute the offences under Sections 498-A, 406 read with Section 34 IPC. The appeal is allowed.

………………………………………J.

(L. NAGESWARA RAO) ………………………………………J.

(HEMANT GUPTA) NEW DELHI;

 

.” We have heard the learned counsel appearing on behalf of the parties at length. We have also considered the material on record.

4. Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by respondent No. 1 – original complainant is nothing but an abuse of the process of law for settling a civil dispute.

4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.”

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

The Commissioner of Police & Ors. Vs. Devender Anand & Ors.

[Criminal Appeal No. 834 of 2017]

  1. R. Shah, J.
  2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13.01.2017 passed by the High Court of Delhi in Writ Petition (Crl.) No. 299 of 2016, the original respondents – appellants – Commissioner of Police and Others have preferred the present appeal.
  3. That respondent No. 1 herein – original complainant entered into an agreement to sell in respect of house situated at WZ1179, Plot No. 11, Rani Bagh, Shakur Basti, Delhi with respondent Nos. 2 to 3 herein for a consideration of Rs.54 lakhs. That the agreement to sell, general power of attorney etc. were executed and the entire amount of consideration of Rs.54 lakhs was paid to the agreement sellers. According to respondent No. 1 – original complainant, subsequently on 31.07.2013, he learnt that the said property had been mortgaged to Andhra Bank when a notice by the said bank was affixed on the property. According to respondent No. 1 – original complainant, thereafter he was compelled to settle the claim of Andhra Bank to the tune of Rs.16,93,059/- for release of the mortgaged documents.

Respondent No. 1 – original complainant also paid the registration charges of Rs,7,81,941/for registration of the sale deed in his favour. That, thereafter he lodged a complaint with the Karol Bagh police station against respondent Nos. 2 and 3 herein for the offence under Section 420/34 of the Indian Penal Code alleging, inter alia, that though the property was put as a mortgage with the Andhra Bank, the same was not disclosed to him and without disclosing the same the property in question was sold. Therefore, it was the case of respondent No. 1 – original complaint that he was cheated by respondent Nos. 2 and 3 herein. That a preliminary inquiry was conducted on the said 3 complaint by the SubInspector of the Police posted at the Karol Bagh police station. According to the complainant, on 20.05.2015, the SubInspector submitted his report that a prima facie offence under Section 420/34 IPC is made out.

He sought permission to register a case under Section 420/34 IPC for further investigation. According to the complainant, the SHO concurred with the aforesaid conclusion in his noting dated 21.05.2015 and put up the matter before the ACP concerned. According to the complainant, the ACP also concurred with the said conclusion in his noting dated 25.05.2015. According to the complainant, despite the above, the FIR was not registered and the same SubInspector Yogender Kumar of Karol Bagh police station started a fresh process of preliminary inquiry on the same set of facts. He concluded that since the complainant had given his consent to the registration of the sale deed and discharge of the liability of the bank, even though the said mortgage as revealed to him on 31.07.2013, therefore, no police action is required.

The said file noting was concurred by the SHO with the diametrically opposite view taken by the SubInspector Yogender Kumar earlier. The ACP also concurred 4 with the view that only a dispute of civil nature has arisen and that a complaint be filed. It appears that thereafter the matter was placed before the Additional DCP who also concurred with the subsequent view that no case is made out against the accused, vide his noting dated 07.08.2015.

That the said view was carried by the DCP/C and JCP/CR as well.

2.1 As the FIR was not registered against the accused for the offence under Section 420/34 IPC as alleged, respondent No. 1 herein approached the High Court by way of writ petition and prayed for the following reliefs:

“1. Pass appropriate writ/order/direction thereby ordering appropriate action to be taken against the erring police officers, including but not limited respondents No. 2 to 5, who are responsible for nonregistration of the FIR in spite of a preliminary enquiry dated 20.5.2015 clearly submitting a finding that a cognizable offence under Section 420/34 of IPC was made out against respondents no. 6 and 7.

  1. Pass appropriate writ/order/direction thereby quashing and declaring to be null and void the socalled second/subsequent undated report of preliminary enquiry, and the subsequent endorsements of the SHO, PS Karol Bagh dated 16 July 2015, the undated 5 endorsement of the ACP (Karol Bagh SubDivision) and the endorsement of DCP (Central) dated 7 August 2015 as the same are without any legal sanctity and have been created and brought into existence against the settled provisions of law and without following due process of law and without following due process of law and in contravention of the procedure laid down by the Hon’ble Supreme Court in its judgment ‘Lalita Kumari vs. Government of U.P.
  2. xxx xxx xxx
  3. Pass appropriate writ/order/direction thereby calling upon the office of the Commissioner of Police, New Delhi, to submit a report with respect to the relevant provisions of law under which his office has empowered the area ACP and DCP to approve registration of FIR, and upon submission of such a report, the vires and legality of the same be scrutinised as the same is in violation of the provisions of the Code of Criminal Procedure and the procedural guidelines laid down by the Hon’ble Supreme Court in the case ‘Lalita Kumar vs. Government of U.P.
  4. Pass appropriate writ/order/direction thereby directing the respondent no. 1 to hold an appropriate enquiry/investigation into the said circumstances under which the illegal and uncalled for second line of preliminary enquiry was initiated and carried out by the same officers, on the same facts and he may further be directed to submit a report of the said enquiry before this 6 Hon’ble Court and take appropriate action by way of registration of cases, if required, and take all other necessary and proper actions in the mater against the officials found guilty in the matter.”

2.2 That the aforesaid prayers/reliefs were opposed by the appellants herein and respondent Nos. 2 and 3 herein. It was submitted that the original complainant had earlier preferred an application under Section 156(3) of the Cr.P.C. which came to be rejected by the learned Magistrate, vide order dated 27.03.2015 and that the said order was not assailed by the complainant and thereafter a fresh private complaint under Section 200 Cr.P.C. has been preferred which is pending before the learned Magistrate. It was also submitted on behalf of the original accused that the dispute is of a civil nature which is tried to be converted into criminal, which is nothing but an abuse of the process of law. It was submitted that despite having the knowledge of the mortgage of the property with the Andhra Bank, thereafter the complainant himself had paid the mortgage money to the Andhra Bank and even got the sale deed executed in his favour. It was submitted that if the complainant was aggrieved, 7 in that case, he would not have got the sale deed executed in his favour.

2.3 That, by the impugned judgment and order, the High Court has allowed the said writ petition and has directed that the case be placed before the Commissioner of Police for taking an action against respondent Nos. 3 to 5 therein (who are appellant Nos. 3 to 5 herein) for taking a diametrically opposite view. The High Court has also directed that the Commissioner of Police would be well advised to resort to course correction by directing that the earlier preliminary inquiry be taken to its logical conclusion and the steps in that regard by taken within two weeks. The High Court has also observed that the complainant shall also be entitled to costs quantified at Rs.25,000/to be paid by the State.

  1. We have heard the learned counsel appearing on behalf of the parties at length. We have also considered the material on record.
  2. Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by respondent No. 1 – original complainant is nothing but an abuse of the process of law for settling a civil dispute.

4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.

4.2 It is required to be noted that after having come to know that the property was mortgaged with the Andhra Bank, the original complainant himself paid the mortgage money and got the mortgage redeemed. Not only that, thereafter, he got the sale deed executed in his name. Thereafter also, he filed the complaint with the learned Magistrate, being an application under Section 156(3) of the Cr.P.C., which came to be rejected by the learned Magistrate, vide order dated 27.03.2015. The said order was not assailed by the complainant. It appears that thereafter he filed a private complaint under Section 200 Cr.P.C. which was pending before the learned Magistrate. Despite the above, he filed a writ petition before the High Court, which is nothing but an abuse of the process of law.

The criminal proceedings have been initiated by the original complainant to settle the civil dispute. Therefore, in the facts and circumstances of the case, the Investigating Officer and other police officers were justified in not registering the FIR and in coming to the conclusion that the complaint be filed. The earlier opinion on preliminary inquiry was never placed before the DCP. Thereafter, on thorough investigation/inquiry and considering the facts and circumstances of the case narrated hereinabove, when it was opined that the dispute between the parties is of a civil nature, the High Court ought not to have issued further directions. The High Court ought to have closed the proceedings. Not only the High Court has issued further directions, but even has imposed costs and an action against the appellants 3 to 5 herein which, in the facts and circumstances of the case, is not sustainable.

4.3 In view of the above and for the reasons stated above and as observed hereinabove, the initiation of the criminal proceedings by the original complainant is nothing but an abuse of the process of law, we not only quash and set aside the impugned judgment and order, but also quash the criminal proceedings  pending before the learned Magistrate in respect of the transaction in question. Consequently, the present appeal is allowed, the impugned judgment and order dated 13.01.2017 passed by the High Court is hereby quashed and set aside. Even the criminal proceedings initiated by the original complainant pending before the learned Magistrate in respect of the transaction in question are hereby quashed and set aside.

…………………………….J. (ARUN MISHRA)

…………………………….J. (S. ABDUL NAZEER)

…………………………….J. (M. R. SHAH)

 

V.K.Singh

Advocate at Supreme Court of India.

www.vksnco.com

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

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. That, the prosecutrix has alleged that she met with accused when she get the invitation of attending the seminar on 13.12.2016 is also unbelievable as date 13.12.2016 was gazette holiday on the occasion of Milad-Un-Nabi (Birthday of Prophet Mohammad). Moreover, the RTI reply of the IIM, Noida which was filed during arguments on bail by ld. Defence counsel also reflects that no seminar / conference was held on 13.12.2016 at IIM, Noida, U.P. as it was gazette holiday nor any invitation letter issued from IIM, Noida to the prosecutrix has been placed on record nor the same was handed over by the prosecutrix to the I.O. at the time of the investigation of the present case FIR.

  1. … this witness has admitted that the entrance of the hotel is manned by security guard 24 hours and no one can enter in the hotel without permission of the guard and there are guidelines of Delhi Police not to allot any room to local resident of Delhi and they had checked the IDs of the guests before allotting them room and retained their copies and as the prosecutrix has supplied her I.D. proof and as per I.D. proof, she was not resident of Delhi and was allotted Room no.224 for one night and room no.223 was booked for 2 nights and they did not receive any complaint from any guest of the aforesaid rooms during their stay. .. she could have brought the incident to the notice to the guard of that hotel or could have make a call to the police or to inform the manager or to the waiter or could have easily come out from the hotel room to make a call to the police or raised an alarm but she did not make any call nor bring the notice of hotel staff or to any one of the alleged incident of rape.

.. There is delay of 32 days to report the matter to the police and the prosecutrix is not been able to explain the delay to lodge the complaint to the police for the alleged offence of rape….

xxx xxx xxx

  1. That, there is no evidence in respect of intoxicated substance allegedly given by the accused to the prosecutrix in a coffee and there is no medical report in this regard and the prosecution is not able to prove the same against the accused.
  2. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charges of the offence u/s328/376(2)(n)/343/506 IPCagainst the accused beyond reasonable doubt and hence, accused XXXXXXX  is hereby acquitted from the charges punishable u/s 328/376(2)(n)/343/506 IPC.”

(emphasis supplied)

The appellant-prosecutrix submits that the Trial Court had failed to appreciate that there is a presumption under Section 114A of the Indian Evidence Act, 1872, as to absence of consent in a case for prosecution of the offence under Section 376IPC and consequently the onus to prove that he had not committed the offence under Section 376(2)(n) IPC had shifted to the accused-respondent no. 2.

The appellant-prosecutrix further contends that the Trial Court had erred in not appreciating the fact that the appellant- prosecutrix is a chronic asthmatic patient, cannot do regular activities without medication, has a physical deformity in her left leg and is also suffering from cerebral palsy due to which it is difficult for her to raise her voice even in an emergency situation.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

In the present case, it is noteworthy that the appellant-prosecutrix had refused internal medical examination.

Further this Court is in agreement with the view of the Trial Court that testimony of the appellant-prosecutrix is ‘highly unreliable’, ‘untrustworthy’ and ‘inspires no confidence’ for the following reasons:-

  1. The appellant-prosecutrix alleged that she had received an invitation to attend a seminar on 13th December, 2016 at IIM, Noida. However, 13th December, 2016 was a gazetted holiday on the occasion of Milad- Un-Nabi (Birthday of Mohammad). Furthermore, the RTI reply sent by IIM, Noida stated that on account of the gazetted holiday, there was no seminar scheduled for 13th December, 2016 and they had not sent any invitation to the appellant-prosecutrix. B. There is a major contradiction in the statement of the appellant-

prosecutrix inasmuch as, in the written complaint dated 05th January, 2017 made to the DCP, Dwarka, and the complaint dated 17th January, 2017 to the SHO PS Pahar Ganj, the appellant-prosecutrix had not mentioned that she had come in contact with the accused-respondent no. 2 through LinkedIn for the purpose of research work. However, she has mentioned the aforesaid fact in her statement before the Court.

  1. The appellant-prosecutrix had submitted her I.D. proof to the hotel and in the same she had mentioned her address of Aligarh, UP as Delhi Police Guidelines do not permit the hotel to allot a room to a local Delhi resident.
  2. The entrance of the hotel room is manned by security guards 24 hours and no one can enter the hotel without the permission of the guard. The appellant-prosecutrix could have easily come out of the hotel room to make a call to the police or raise an alarm or could have requested any of the hotel staff to make a call. The appellant- prosecutrix is mobile and does not suffer from such a serious disability that she could not have raised an alarm.

Appellant-prosecutrix had made 529 calls to accused-respondent no.2 between 16th December, 2016 (after the date of rape) to 29th January, 2017 (before filing of the complaint). Her act of making so many repeated calls is not consistent with her allegations.

Keeping in view the aforesaid cumulative findings, this Court is of the view that the testimony of the appellant-prosecutrix is unreliable and inspires no confidence and there are compelling reasons for rejecting of her testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not attracted as the factum of sexual intercourse is not proved. There are also various lacunae in the case of the prosecution and the benefit of doubt will have to enure to the benefit of the accused-respondent no. 2. Consequently, the present appeal being bereft of merits, is dismissed.

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

IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 626/2019 & CRL.M.As. 10219-10221/2019

XXXXXXXXXXXXX             ….. Appellant

versus

STATE AND ANR.                ….. Respondents

 

 

in view of the judgment of the Allahabad High Court in Sukhwasi v. State of Uttar Pradesh [2007 (59) ACC 739], a petition under Section 156(3) CrPC could well be considered to be a complaint and proceeded with on that basis.

In the judgment of the Supreme Court in Tapinder Singh v. State of Punjab AIR 1970 SC 1566 to contend that no enquiry or investigation can be undertaken by the police without the prior registration of an FIR.

In the judgment in Madhu Bala v. Suresh Kumar (1997) 8 SCC 476, it was submitted that the application under Section 156(3) CrPC could be treated as a complaint. If the learned MM differed with the view expressed by the police in the status report, he could proceed to record the complainant‟s evidence. It is further contended that under Section 460 CrPC, the irregularity in the magistrate taking cognizance under Section 190(1)(a) or (b) is a curable one and the criminal proceedings do not get vitiated on that score.

Although the Supreme Court  in P.Sirajuddin v. State of Madras AIR 1970 SC 520 held that it is permissible for the police to conduct a preliminary enquiry even before the registration of an FIR, those observations were not in the context of the order passed by the a Magistrate while exercising powers under Section 156 (3) CrPC. That section makes it clear that the only option available thereunder to the Magistrate is to order “an investigation.” There is nothing in Section 156 (3) CrPC to suggest that a Magistrate can ask for a „status report‟ from the police which is not meant to be a report of investigation in terms of Section 173 (1) CrPC. Even if the Magistrate does not expressly pass an order to that effect, when pursuant to an application under Section 156 (3) CrPC he asks for a report from the police, the police has to register an FIR and submit a report of investigation. Even if no FIR is formally registered but a detailed investigation is carried out and a report submitted, the learned Magistrate is bound to apply his mind to such report and discuss its contents before proceeding to the next stage.

. In Madhu Bala v. Suresh Kumar, the Supreme Court in para 10 observed as under:

“From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking, the police to ‘register a case’ makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to Investigate into a cognizable ‘case’ and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be ‘to register a case at the police station treating the complaint as the First Information Report and investigate into the same.” (emphasis supplied).

The Supreme Court in H.S. Bains v. U.T. of Chandigarh (supra). There the Supreme Court explained the courses open to the learned MM to follow upon receipt of such report by the police as under (SCC @ p. 634-35):

“It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”

In Hemant Dhasmana v. CBI (supra) the Supreme Court revisited the law on the topic and in para 15, it was observed as under (SCC @ p. 542-43):

“15. When the report is filed under the Sub-section the magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offence were also detected, the Court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person it is open to the Court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the Court feels, on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contract conclusions made by the investigating officer in the final report. Then it is open to the Court to independently apply its mind to the facts emerging there from and can even take cognizance of the offences which appear to him to have been committed, in exercise of his power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code.”

A reference was made to the judgment of the three-Judge Bench in Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537 where again the three options open to the court on a receipt of the report under Section 173(2) CrPC were discussed. Those three options read as under (SCC @ p.543

“(1) The court may accept the report and drop the proceedings; or (2) the court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (3) the court may direct further investigation to be made by the police.”