Delhi High Court: While dealing with a case where seven persons were falsely implicated for committing rape on the prosecutrix by threatening her that they will kill her brother and display the photograph (in which she was being raped) in front of her house, a division bench on G.S. Sistani and S.D. Sehgal JJ.  held that no doubt the rape cases cause great distress and humiliation to the victims of rape, but at the same time false allegation of committing rape also causes humiliation and damage to the accused, as the accused also has right which has to be protected and the possibility of false implication has to be ruled out.

In the instant case, the testimony of the prosecutrix is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical, scientific and expert evidence. After rescanning the entire case in its right perspective, we are of the firm view if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The version of the prosecutrix has not been corroborated with medical evidence and has not disclosed the true genesis of the crime.

————————————————————-

 IN THE HIGH COURT OF DELHI AT NEW DELHI

     Judgment reserved on 22.05.2015
    Judgment delivered on 29.05.2015
+ Crl. A. 660/1999
ROHIT BANSAL                             ..... Appellant
                     Through : Mr. Rajeev Gaur Naseem, Advocate.
                      Versus
STATE                                             ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State


+ Crl. A. 661/1999
BALBIR @ BALLI                                    ..... Appellant
                Through : Mr. M. L. Yadav, Advocate.
                      Versus
STATE                        ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State


+ Crl. A. 677/1999
ANIL RAWAT & ORS.                                 ..... Appellants
                Through : Mr. M. L. Yadav, Advocate.
                      Versus
STATE                                             ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State


+ Crl. A. 678/1999
MUKESH @ BITTOO                                   ..... Appellants
                Through : Mr. Rajeev Gaur Naseem, Advocate.
                      Versus
STATE                        ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State




Crl. Appeal Nos. 660/1999, 661/1999, 677/1999, 678/1999 & 692/1999     Page 1 of 47
 + Crl. A. 692/1999
PARVEEN KUMAR                                                     ..... Appellant
                Through :                 Mr. Vikas Pahwa, Senior Advocate with
                                          Ms. Aeshna Dahiya, Advocate.
                                Versus
STATE                                     ..... Respondent
                       Through :          Mr. Feroz Khan Ghazi, APP for the State

  CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J.

1. Present appeals arise out of a common judgment dated 03.12.1999 and order on sentence dated 08.12.1999 passed by the learned Additional Sessions Judge, Delhi whereby the appellant Parveen was sentenced to undergo life imprisonment for an offence punishable under Section 376 (2) (g) of the Indian Penal Code with a fine of Rs.5,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. Other six appellants viz. Mukesh @ Bittoo, Ajay Singh, Sunil Sharma, Balbir @ Balli, Anil Rawat and Rohit Bansal were sentenced to undergo rigorous imprisonment for ten years for an offence punishable under Section 376 (2) (g) of the Indian Penal Code and a fine of Rs.5,000/- each and in default of payment of fine each of the appellant to undergo rigorous imprisonment for one year. Appellant Parveen was also sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 342 of the Indian Penal Code. Appellant Parveen, Bittoo, Anil Rawat and Sunil were further sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 506 (II) read with Section 34 of the Indian Penal Code. All the sentences were ordered to run concurrently.

2. Brief facts of the case, as noticed by the learned Trial Court, are as under:

“(i) The case of the prosecution is that on 7.9.94 Inspector Prithvi Singh, Inspector Raj Mohinder Singh alongwith ACP were called at the office of DCP Crime Branch. There DCP Crime Branch instructed them to meet one Sh. Nand Kishore Taneja at premises No. 148 Preet Vihar and proceed with the case if the facts reveal the commission of a cognizable offence.

(ii) These officers reached at the said house. There they recorded the statements of prosecutrix.

(iii) She stated that she was residing at the aforesaid address alongwith her parents and is doing a course of interior designing at South Delhi Polytechnique. As a routine she comes upto Laxmi Nagar in a rickshaw and from there she took U-Spl. for South Extension. She developed intimacy with one Parveen who was residing at premises No. A-137 Preet Vihar. One day said Parveen took her to Connaught Place on the house of his friend Bittoo. Then Parveen committed rape upon her after threatening her. Bittoo, friend of Parveen had also sexual intercourse with her against her consent. Parveen took her photograph while Bittoo was committing rape upon her. However, she came to know about it. Later on when Parveen showed her photograph to her on the same day, she became very much scared and asked Parveen to return photograph. Upon this, Parveen replied that only he knew about this secret and Bittoo was his friend. Parveen also promised to marry her at the earliest. So, she did not disclosed this fact to anybody.

(iv) Thereafter accused Parveen had been blackmailing her. Parveen had been telephoning her and that is why she had been meeting him openly. In the first week of April, 94, Parveen took her to under-construction flats of a Society near Patparganj Depot after alluring and threatening her. There Sunil, Anil Rawat @ Anni, Bittoo and one more boy (whom she did not know but can identify him) met her and had sexual intercourse with her against her consent. Those boys placed the negative of thesaid photograph before her and told her that if she wants the said negative back, she had to succumb to their advances. Even after committing rape, these persons did not return the negative to the complainant. When she asked for it, they threatened to kill her brother. Hence, she did not disclose anything at her house.

(v) On 17.7.94 Parveen called her, on the pretext of returning the negative to her, at Coffee House. Parveen took her on his motor cycle to Noida i.e. in an office in an under construction building. There Anil Rawat @ Anni, Bittoo and Sunil were already present. All these boys committed rape upon her. During the rape, two of the boys had caught her. She dis-engaged herself and started crying. Parveen became scared and made the other boys to stop this. She came to her house in a bus. She was threatened that her brother will be killed. Parveen had been threatening on telephone that he will get made the poster of her photograph and get the same sticked at South Extension and near her house.

(vi) On 5.9.97 Parveen met her at Bengal Sweets, South Extension and compelled her to accompany him after showing her the said photograph. Parveen sweared that this time he will return the photograph and negative to her and they will not do anything with her. So, she had to accompany Parveen. Parveen took her in an office at second floor of a building at Darya Ganj. There a revolver and an open knife were lying on the table. There, Rohit and one more boy (whom she could identify and who was the owner of the office) were already present. Parveen told her that this was the last time and they shall not trouble her again and they would return her photograph and negative. Then all these three boys committed rape upon her turn by turn and told her that in the evening her photograph and negative will be returned. Complainant threatened to commit suicide in case her negative and photograph are not returned. Parveen sweared that at that time he had no photograph and negative with him and shall return the same at 7.30 PM near Universal Public School. So, at the appointed time she reached there. There Parveen showed her photograph and negative and compelled her to have sex with him and one Balli @ Pappu (who was already there) Parveen also committed rape upon her. Still, Parveen did not return the photograph and negative to her. Both of them left the said place on motor cycle threatening that they will spoil her brother and sisters. She was so scared that she did not tell all this episode. As she was scared and weeping in the night, her mother asked her the reason for the same. As her mother asked repeatedly, she told everything to her. Her mother conveyed the same to her father. She could identify all those places where she was raped.

(vii) Upon the statement of the prosecutrix a case U/s 506/342/376/34 IPC was registered. The prosecutrix was medically examined at SDN Hospital. Her vaginal swab was seized. The prosecutrix also produced her salvar, shirt and underwear which were also sealed and seized.

(viii) I.O. recorded the statements of other witnesses. On the pointing out of complainant, accused persons Parveen, Mukesh @ Bittoo, Ajay Singh were arrested. Rest of the accused persons Sunil Sharma, Balbir, Anil Rawat were arrested on 10.9.94 from different places. All the accused persons were medically examined and their semen samples were taken. Their disclosure statements were also recorded.

(ix) On the pointing out of accused persons, one photograph wherein Mukesh @ Bittoo was committing rape upon the prosecutrix, was recovered from the house of Parveen. The same was seized. On the pointing out of accused Parveen again, a camera, vide which the said photograph was taken was also recovered. The exhibits of the case were sent to FSL, Chandigarh. Report of CFSL was not received till the filing of the challan.

(x) The statement of the prosecutrix was also recorded U/s 164 Cr.P.C. The accused persons also pointed out the places of committing rape. After completing necessary formalities, the challan was filed U/s 342/506/501/366/376/376 (2) (G)/120-B IPC.”

3. The prosecution, in the course of the trial, relied upon the testimonies of 13 witnesses and also placed on record several exhibits. After the prosecution evidence, the learned Trial Court examined the appellants under Section 313 of Code of Criminal Procedure.

Appellant Parveen stated that since Preeti started loitering with some other boys, he refused to marry her and for this reason she falsely named him in this case. He also stated that FIR against them was registered with the connivance Sh. Markandey Singh, Ex-LG, who was a friend of the grandfather of the prosecutrix.

Appellant Mukesh @ Bittoo claimed to be falsely implicated. He stated that he had not committed any crime and he was lifted from his house by the police. He further stated that he did not have any house in Connaught Place as alleged by the prosecution and he also denied his photograph. Moreover, he came to know the appellant Parveen in June, 1994, when he came to his workshop for getting his scooter repaired.

Appellant Ajay Kumar also pleaded innocence and stated that he had been falsely implicated in this case by the prosecutrix and her parents.

Appellant Balbir Singh pleaded innocence. He stated that on 09.09.94 at about 5/6 a.m., he was going to Sanjay Lake along with his friend for a morning walk and a car came there in which four persons were seated. They enquired from him about Flat No. 561, Mayur Vihar and he showed his ignorance on which they started abusing him and some altercation took place. One person alighted from the car and caught him by his collar and forcibly push him inside the car. Thereafter, they went to the house of Parveen from where he was also lifted and ultimately brought to Police Station Adarsh Nagar and falsely implicated in this case.

Appellant Anil Rawat stated that before the registration of this case, prosecutrix was residing in his neighbourhood at Mangal Bazar, Laxmi Nagar and she had affairs with one Gagan and Kapil. He further stated that prosecutrix also had an affair with Parveen and she suspected Anil that he had informed Parveen about her affairs with Gagan and Kapil and had a grudge for this and also named him in this case and got him falsely implicated.

Appellant Sunil Sharma and Rohit Bansal stated that they had been falsely implicated at the behest of the prosecutrix.

Two defence witnesses were got examined by the appellants.

4. Appellant Ajay Singh expired during the pendency of the appeal therefore his appeal stands abated.

5. Mr. Vikas Pahwa, Senior Advocate appearing for appellant Parveen Kumar has assailed the impugned judgment on several counts being that the prosecutrix was an unchaste woman, having illicit relationship with many boys and the court below erred in not appreciating properly the evidence of the defence witnesses examined by the appellant. Elaborating his arguments, Mr. Pahwa contends that the prosecutrix had been confronted on large number of issues/facts with her statement recorded under Section 161 of Code of Criminal Procedure and embellishments/improvements are of such a large magnitude that her statement itself becomes unreliable. It is further argued that the sole testimony of prosecutrix is totally unreliable as well as full of material contradictions, concealment, improvements, exaggerations, inconsistencies and thereby does not inspire confidence and creates a genuine doubt about her version. Mr. Pahwa further added that in a case where sole testimony of the prosecutrix does not inspire confidence and corroboration, it is to be read in its totality and if the same is found improbable, in such case her testimony becomes liable to be rejected. In support of his contention, counsel relied upon the case of Rai Sandeep @ Deepu Vs. State : (2012) 8 SCC 21, wherein it has been held that :

“15. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

Reliance has also been placed on Krishan Kumar Malik Vs. State : (2011) 7 SCC 130, where Hon’ble Supreme Court has held that :

“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences. Indeed there are several significant variations in material facts in her Section 164 statement, Section161 statement (Code of Criminal Procedure), FIR and deposition in Court.

32. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. Record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the Appellant.”

Similarly in the case of State of Rajasthan Vs. Babu Meen : (2013) 2 SCALE 479, it has been held :

“8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.

9. In the background of the aforesaid legal position, when we consider the case in hand we are of the opinion that the statement of the prosecutrix is not at all reliable or in other words wholly unreliable. No other evidence has been led to support the allegation of rape. Hence, it shall be unsafe to base the conviction on her sole testimony. In her evidence she had stated that she was subjected to rape at 12.00 noon when her sister Jitendra, the wife of the accused had gone to purchase milk. However, during the course of investigation she alleged that she was subjected to rape at 06.30 A.M. When confronted with the aforesaid contradiction in the cross-examination, she could not explain the aforesaid discrepancy. Her statement that she shouted for help when she was subjected to rape also does not find support from the evidence of Ramchandra Salvi (PW-11), the owner of the house where the incident is alleged to have taken place. Dr. Smt. Sushila (PW-12), has also not supported the allegation of rape as also the Forensic Science Laboratory Report. In the face of what we have observed above, the evidence of the prosecutrix cannot be said to be wholly reliable.

6. Secondly, Mr. Pahwa contended that there was delay in registration of FIR, which was registered on 07.09.1994 whereas the alleged first incident took place in January, 1994. It is argued that the unexplained inordinate delay of nine months in registration of the FIR raises a grave doubt in the highly belated version of the prosecutrix and the possibility of false implication cannot be ruled out. In support of his contention, Mr. Pahwa relied upon Surjan and Others Vs. State of M.P. : (2002) 10 SCC 214, wherein it has been held that :

“The inordinate delay in lodging the complaint before the police, i.e. 10 days, has not even been attempted to be explained. Even when she was examined as a witness in the Court, no question was put to her on that long delay. In a case where six indicated persons should be visited with a minimum sentence of 10 years’ RI, the Court cannot afford to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. When looked at the testimony of PW1 from all the different angles highlighted above, we are unable to hold that has testimony is wholly reliable. In such a situation, materials for corroborating the testimony of PW1 could not be obviated. But unfortunately there is none.”

In the case of Ram Dass and Others Vs. State of Maharashtra : (2007) 2 SCC 170, the Apex Court observed that :

“Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.”

7. Thirdly, Mr. Pahwa contended that the allegation made by the prosecutrix has been shattered and have fallen flat by the medical evidence which clearly indicates that there was no sign of external injury on the body of the prosecutrix. It is further contended that where the oral evidence of the prosecutrix is not supported by the medical evidence, moreover it is dangerous to punish the accused for rape solely on the basis of her oral evidence. In support of his contention, counsel relied upon the case of Pratap Mishra Vs. State of Orissa : (1977) 3 SCC 41, wherein it has been held :

“9. Another aspect of the matter is that where there has been any real resistance there is bound to be local injury and marks of violence on the body and the limbs of the victim. Taylor in his book Principles and Practice of Medical Jurisprudence, Vol. II, observes thus at p. 64:

Nevertheless, it is most likely that when there has been some real resistance, local injury will be apparent and probably also marks of violence on the body and limbs.

Although according to the prosecutrix, three persons raped her with great force and violence resulting in great pain to her and her breasts becoming swollen and red and other injuries, yet when she was examined by the Doctor P.W. 8 only after 16 to 17 hours of the occurrence, the Doctor found no marks of injuries on her body at all. In this connection P.W. .& has categorically stated thus:

I examined her (P.W. 1) at 5-15 p. m. on 20-4-1972. There was no injury or bruise mark on the breasts or chest There was no injury mark on the face, thighs and over the whole body.

If the story of the prosecutrix was true, then we should have expected an injury or bruise-mark on the breasts or chest or on the thighs or other part of the body. The learned Sessions Judge, with whom the High Court has agreed, seems to have brushed aside this important circumstance on the ground that as the prosecutrix was examined by the Doctor on April 20, 1972, at about 5 P. M about 17 hours after the occurrence injuries may have disappeared and has relied on an observation of Taylor at p. 66 of his book which runs as follows:

Injuries from rape may soon disappear or become obscure, especially in women who have been used to sexual intercourse.

The Sessions Judge explained that as the prosecutrix was habituated to sexual intercourse injuries may have disappeared. While referring to one part of the observation of Taylor, the learned Sessions Judge has completely lost sight of the other part which explains the real issue and which runs thus:

After 3 or 4 days, unless there has been unusual degree of violence, no traces may be found. Where there has been much violence, the signs may of course persist longer.

Thus, if such a serious violence was caused to the prosecutrix by the appellants, the injuries are not likely to have disappeared before 2 or 3 days and the signs were bound to persist at least when she was examined by the Doctor. The absence of injuries on the person of the appellants as also on the person of the prosecutrix is yet another factor to negative the allegation of rape and to show that the appellants had sexual intercourse with the prosecutrix with her tacit consent.”

8. Another contention raised by the counsel for the appellant is that as per the case of the prosecution, the appellant used to blackmail and commit rape on the prosecutrix by extending threats of exposing her photograph and making it public, which was allegedly clicked at the time of commission of rape by the appellant Mukesh @ Bittoo in the month of January, 1994. This does not inspire confidence and truthfulness as the alleged photograph does not show the face of the prosecutrix and thus there was no apprehension of same being misused. Moreso, the prosecution in her deposition has given different versions about the first incident when she came to know about the alleged photograph for the first time. Further, the fact that the negative was available with the photograph the original is in doubt. It is alleged that in fact the negative was prepared from the photograph in question.

9. It is next argued by the counsel that the presence and identity of the girl and the appellant Bittoo in the alleged photograph is highly doubtful as the face of the girl in the alleged photograph is covered with her hands whereas the person in the alleged photograph has been observed as appellant Bittoo from his hairstyle by the learned Trial Court and the same is totally bad in law and outside the purview of the Indian Evidence Act, 1872 and the appellants could not have been convicted in the absence of proper identification.

10. The Counsel further argued that it is an admitted case of the prosecution that the prosecutrix had an affair with the appellant Parveen from 1989 to January, 1994. However, when the appellant Parveen refused to accept the marriage proposal of the prosecutrix as she was in relationship with other boys, the appellant Parveen was falsely implicated by the prosecutrix.

11. Lastly, counsel argued that the Investigating Officer has not been examined by the prosecution resulting deprival of opportunity to cross examine the Investigating Officer which caused serious prejudice to their defence. It is further argued that the prosecution has failed to bring any landlord/tenant or neighbour of the places of occurrence where prosecutrix was raped. Moreso, prosecutrix failed to identify and point out those places and no pointing out memo was prepared and placed on record.

12. In view of the aforesaid submissions, Mr. Vikas Pahwa, Senior Advocate prayed for an order of acquittal against the appellant Parveen Kumar.

13. Mr. Rajeev Gaur Naseem, Advocate appearing for the appellants Rohit Bansal and Mukesh Kumar @ Bittoo adopted the arguments advanced by Mr. Vikas Pahwa, Senior Advocate for the appellant Parveen Kumar.

14. Mr. M. L. Yadav, Advocate appearing for the respondents Balbir @ Balli and Anil Rawat also adopted the arguments advanced by Mr. Vikas Pahwa, Senior Advocate for the appellant Parveen Kumar.

15. Per contra, Mr. Feroz Khan Ghazi, Learned Counsel appearing for the State strongly refuted the submissions made by the counsel for the appellants and lent support to the judgment on conviction and order on sentence passed by the learned Trial Court. Counsel argued that theprosecution has proved their case beyond any shadow of doubt. The testimony of the sole witness so examined proves the guilt of the appellant and the findings so recorded by the learned Trial Court below do not warrant any interference. Thus, these appeals are liable to be dismissed.

16. We have heard the rival contentions of the parties and given our thoughtful consideration to the arguments advanced by them and have also perused the evidence as well as the exhibited documents carefully.

17. “Rape” or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. “Rape” not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of “Rape” is grave by its nature, which warrants a strong deterrent by judicial hand.

In Shyam Narian Vs. The State of NCT Delhi : (2013) 7 SCC 77, the Hon’ble Supeme Court has elaborately dealt the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr. : (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao : AIR 1996 SC 530 and State of Karnataka Vs. Krishnappa : (2000) 4 SCC 75 and has held that :

“It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed.”

and in Jugendra Singh Vs. State of UP : (2012) 6 SCC 297, Hon’ble Apex Court has held :

“Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law.”

In Lillu @ Rajesh & Ors. Vs. State of Haryana : (2013) 14 SCC 643, the Hon’ble Apex Court has observed that :

“11. In State of Punjab v. Ramdev Singh : AIR 2004 SC 1290, this Court dealt with the issue and held that rape is violative of victim’s fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.”

18. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the prosecutrix is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance to prudence under the given circumstances.

In Vijay @ Chinee v. State of Madhya Pradesh : (2010) 8 SCC 191, the Hon’ble Apex Court has dealt with the issue and held that :

“Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.”

19. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.

20. There are catena of judgments passed by the Hon’ble Apex Court wherein it has been held that only the deposition of the prosecution by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth. In Md. Ali Vs. State of UP : 2015 (3) SCALE 274, the Hon’ble Apex Court has held that “Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based.” and in Mohd. Iqbal v. State of Jharkhandreported in (2013) 14 SCC 481, the Hon’ble Apex Court has held that “There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.”

Testimony of Prosecutrix PW1 Billoo @ Preeti is not reliable

21. Coming to the facts of the present case, the moot point involved for consideration in these appeals is whether evidence adduced by the prosecution on rape, particularly testimony of prosecutrix PW1 Billoo @ Preeti is trustworthy, credible and worthy of reliance?

22. In order to test the veracity of the deposition of Prosecutrix PW1 Billoo @ Preeti, it needs to be discussed threadbare. She was examined on oath in Court during trial where she deposed that respondent Parveen was residing in her neighbourhood with whom she developed friendship and the same was objected by her father but they kept on meeting. She deposed that in the month of January 1994 respondent Parveen called her to Preet Vihar Bus Stop and asked her to go on a pleasure stroll and took her to Janpath at the house of respondent Bittoo. According to her, Bittoo offered her cold drink and after consuming it she felt giddiness and when she regained consciousness she saw that Parveen was raping her. Further she deposed that when she asked for her jeans from Parveen, he forced her to allow his friend Bittoo to repeat a similar act and when she refused the same, both Parveen and Bitto used force against her and Bittoo pressed her mouth and committed rape on her. She deposed that when Bittoo was raping her, she was weeping and had covered her face with her hands at that point of time she realised that Parveen had taken her photograph. She had a fight with Parveen, who promised to marry her and thereafter she returned home.

23. In her testimony, she further deposed the second incident of rape by stating that after few months of the previous incident, Parveen came to meet her and asked her to Nirman Vihar Bus Stand where Parveen apologized. She further stated that she demanded the negatives of the photograph from him and he took her to the house of his friend Sunil at Patparganj and made her to sit and left for some work. She again asked for negatives when Parveen returned on which Parveen sought her permission to have sex with her to which she refused but Parveen forcibly had sex with her and also gave beatings to her. She deposed that when she asked for her clothes from Parveen, he told her that the clothes would be returned to her, if respondent Anil was allowed to have sex with her. According to her, Anil, Bittoo, Sunil and Manish were brought by Parveen inside the room one by one and forced themselves upon her, gave her beatings and bit on her body and raped her one after the other without her consent. She deposed that lastly, Parveen threatened her that her brother would be killed in case she disclosed the same to anyone in connection with what has happened.

24. The prosecutrix PW1 while narrating the third instance deposed that on 17.07.1994, she received a phone call from Parveen who asked her to meet at the Nirman Vihar Bus Stop. She went there and Parveen again apologized to her and promised her to return her negative and photographs and took her on his motorcycle to an office which was under construction at Noida. She deposed that Bitoo, Sunil and Anil were already present there and Parveen threatened her as he was carrying a knife and a revolver. She futher stated that his friends who were standing there were laughing and all of them including Parveen forcibly had sex with her and threatened her with dire consequences, like killing of her brother and spoiling the future of her sister in case she disclosed the incident to anybody. She also deposed that she returned to her house and did not meet them for few months.

25. PW1 Billo @ Preeti disclosed that the last incident took place on 05.09.1994, she had gone to her college and as she had some free time she went to Bengali Restaurant to search for one of her friend. There, Parveen tried to talk to her but she did not respond and Parveen threatened her if she did listen to her, her photographs would be pasted outside her house and college. Parveen showed a knife to her and asked her to accompany him which she did and he took her to the house/office of his friend Ajay in Sita Ram Bazar. Ajay and one boy named Rohit with whom she was acquainted were also present there, she further deposed that she was taken to the second floor of office/house of Ajay and saw that two revolvers were lying on the table and glasses in which if water would be poured than obscene pictures would appear. According to her, Parveen, Ajay and Rohit raped her despite her resistance. She further deposed that she was beaten and Parveen had also threatened to tear her clothes if she would create scene and consequently she would not be in a position to return home. PW1 deposed that she again asked for her photographs and negatives from Parveen and he told her to return the same at 7:30 P.M. in the Gali near Universal Public School near my house, so she returned to her home.

26. On the same day at about 7:30 P.M., when she reached there, she found Parveen with his friend Balli and Parveen Kumar. There Balli forcibly had sex with her and when she asked for her negatives and photographs, they refused and she had a quarrel with Parveen and returned home. On that night, she wept bitterly and narrated each and everything to her mother on her insistence, who further brought the facts to the notice of the father of the prosecutrix and he lodged a report with the police on next day.

27. The prosecutrix was cross-examined at length. She admitted that she and Parveen were living in Preet Vihar since 1989 and the house of Parveen was at a distance of about 1/2 minutes walk from her house. She further deposed that she first met Parveen outside her house in 1989 and between 1989 and 1990. They used to meet frequently and mostly at the bus stop. She deposed that she used to meet Parveen after school hours in Park. She stated that their school timings of return from the school were almost the same. She stated that she never told anything to her parents regarding the above meetings. She further deposed that they used to like and love each other and she saw 2/3 movies with Parveen during 1989-90. She used to leave her house on the pretext of going to visit her friend Preeti, Sonia etc. as and when inquired by her mother. They used to see English movies between 11 a.m. and 1.00 p.m. and used to bunk their school. They enjoyed tea, coffee and snacks in picture hall. That sometimes they used to leave the picture hall and go outside for a stroll; that Parveen and his parents had shifted their house but she did not know if they had shifted to AGCR Complex, in Feb. 1990, in H. No. 278; that she used to write letters to Parveen in 1990 and 1991 and give them to Parveen when they used to meet me.

28. The prosecutrix had been confronted with her statements recorded under Section 161 and 164of the Code of Criminal Procedure on several issues /facts contrary to her deposition in court, wherein she admitted the following facts which have not been recorded in her statements underSection 161 and 164 of Code of Criminal Procedure.  I told the police that I and accused Parveen used to meet in park near my house and once my father had seen us and asked me not to meet him and rebuked me but still we kept on meeting (Confronted to Ex.PW1/A and Ex.PW1/DA not recorded.)  Accused Parveen had called me at the bus stop of Preet Vihar and asked me to go on some pleasure stroll. (Confronted with Ex.PW1/A where it is not so recorded)  I did not tell the police that the accused Parveen took me to Janpath, Connaught Place while we were talking to each other. (Confronted to Portion A to A of Ex.PW1/A so recorded)  I told the police that I asked for my jeans but the same was not given to me and I was compelled to allow Bittoo to have intercourse with me; on my refusal both of them used force against me, the accused Bittoo pressed my mouth and made me lie forcibly on the ground. (Confronted with Ex.PW1/A where it is not so recorded)  I do not remember if I had told the police about my second meeting with accused Parveen in May, 1994 in my FIR (Confronted to Ex.PW1/A wherein it is not so recorded).  I do not remember if I had stated that the second instance/ incident took place in April, 1994 in Ex.PW1/A vide portion C to C.

 I told the police that I was made to sit in the said room and Parveen told me to come after five minutes and I again demanded my negatives back from him and Parveen asked me to allow him to have sex once again and I refused for the same (Confronted with Ex.PW1/A where it is not so recorded).  I told the police that the accused Parveen forcibly had sex with me and gave beatings to me. Thereafter the accused Parveen brought accused Anil inside the room and I demanded back my clothes from Parveen but he kept the same in another room. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that Parveen had told me that I would get my clothes only if I allow Anil to fuck me and when I refused, Anil used force on me and beat to me and bitten on my body and committed sex with me. (Confronted with Ex.PW1/A wherein it is not so recorded)  I told the police that thereafter accused Parveen brought the accused Bittoo inside the room and he also committed sex with me without my consent. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that thereafter accused Parveen brought accused Sunil inside the room and Sunil forced me and committed sex without my consent. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that Parveen called me to bus stop Nirman Vihar over telephone on 17.07.94 and I went there. (Confronted with Ex.PW1/A where it is not so recorded)  I told the Police that one boy named Manish also had forcible sex with me without my consent and I did not know his name and when his father and he came to my house I knew his name as Manish. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that the Parveen again threatened me and sought to have intercourse with me and was having a knife in his one hand and revolver in other hand and all the other persons were standing and laughing there.

 I told the police and Metropolitan Magistrate that I was given much beatings. (Confronted with Ex.PW1/A and Ex.PW1/DA where it is not so recorded).

 I told the police that they had threatened me to spoil my sisters (Confronted with Ex.PW1/A where it is not so recorded).  I told the police that on 05.09.1994 I had gone to my college and there was ample time for my class to be held and thus I went to Bengali Restaurant to look for my friend and where the accused Parveen tried to talk but I did not talk and further Parveen told me that if I did not talk to him he would made the posters of my photographs and would paste the same outside my house and college. (Confronted with Ex.PW1/A where the making of the posters and photographs and their affixation is not recorded on 5.9.94 but is recorded immediately before 5.9.94)  I told the police that thereafter I talked to Parveen and he at the point of knife told me to go with him and I accompanied him. (Confronted with Ex.PW1/A where it is not so recorded)  I do not remember having told the police and the Metropolitan Magistrate that accused Rohit and Ajay were already present in the above office when I went there vide portion G to G of Ex.PW1/A (It is recorded in the above portion that two culprits were already present there).

 I told the Metropolitan Magistrate that two revolvers were lying there on a table. (Confronted with Ex.PW1/DA where it is not so recorded).

 I told the police and Metropolitan Magistrate that there were some glasses in which if the water would pour, the obscene photographs could appear in the glasses. (Confronted with Ex.PW1/A and Ex.PW1/DA where it is not so recorded).  I told the police that the accused Parveen had forced me and on my refusal he with his one hand caught hold of my hand from behind and with his other hand had opened my salwar. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that the Parveen again had sex with me forcibly.

(Confronted with Ex.PW1/A where it is not so recorded)  I told the police and Metropolitan Magistrate that I was given much beatings. (Confronted with Ex.PW1/A and Ex.PW1/DA where it is not so recorded).

 I told the police that Parveen had threatened to torn my clothes and I could not be in a position to go to my house and after doing the above act the above accused persons would have no connection with me. (Confronted with Ex.PW1/A where it is not so recorded)

29. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.

30. On careful analysis of the testimony of the prosecutrix, we find a large number of contradictions, inconsistencies, concealment, improvements and exaggerations in her statement which as noted above, which casts shadow of doubt and led us to find it difficult to rely upon her version. However, let us see whether any other evidence has been adduced by the prosecution on record to support the version of the prosecutrix.

Medical Evidence

31. Having discussed the testimony of the prosecutrix in detail, it is significant to examine whether the medical evidence adduced by the prosecution finds support from the oral testimony of the prosecutrix. Dr. Rajeev Grover examined the prosecturix on 07.09.1994, proved his report Ex.PW6/A and opined that she was not under the effect of any drug nor there was any external injury on her body and referred the case to Gynecologist for detailed examination. Dr. Ashiko Sazerou, General Hospital, Gynecologist examined the prosecutrix and she opined on the MLC (Ex-PW-6/A) that there were no external injury mark seen anywhere on the body. During the cross examination, Dr. Ashiko Sazerou, revealed certain new facts which were not mentioned in the MLC and relevant parts thereof stated by Dr. Ashiko Sazerou in her cross examination are recapitulated as under:-

“that I cannot comment on the fact that the prosecutrix P.T @ Bittoo was used to sexual intercourse because two finger could be inserted in her vagina. The reason being that some people are very relaxed and you can admit two finger so easily but the possibility of Billo @ Preeti being used to sexual intercourse cannot be rule out. I cannot say if I found in my examination that Preeti @ Billo has abortion few months prior to the examination. She did not tell me that she had an abortion. I had not found any bitting marks on the breast of the patient, on my examination.”

32. Learned Counsel for the appellants contended that as per the prosecutrix last rape was committed on 05.09.1994 at 07:30 pm in a “Kachi Gali” for half an hour to which she resisted and also sustained injuries on her body. It is submitted that the medical evidence does not support the version of the prosecutrix and contradicts the commission of the crime.

33. On perusal of the testimonies of Dr. Rajeev Grover and Dr. Ashiko Sazerou, General Hospital, Gynecologist, it has emerged that there were no biting marks on the breast of the prosecutrix nor any external injury was found on the other parts of her body. Moreso, the prosecutrix concealed the fact from the doctor conducting the MLC that she was being successively raped. Prosecution has failed to adduce any material/evidence on record in support of her aforesaid claim. Furthermore, as per the MLC possibility of prosecutrix being habitual to sexual intercourse could not be ruled out.

34. Let us now examine another significant piece of evidence which is the CFSL Report Ex.PX tendered by PW13 SI Mehak Singh in evidence. During investigation, two slides smeared with some biological secretion marked Bio/A, one white colored kameez with black polka dots on it and embroidery done extensively around the neck and the sleeves end Bio/B1, white colour salwar with black polka dots Bio/B2, a sky blue coloured ladies underwear Bio/B3 and pale white coloured fluid Bio/C to Bio/I were sent for detection of semen and its grouping to the Central Forensic Science Laboratory, Chandigarh for detection of semen and its grouping. In the report Ex.PX, Dr. Sanjeev, Senior Scientific Officer opined that no semen could be detected on Bio/BI and Bio/B2. No spermatozoa were detected, microscopically on Bio/A and eventually it was opined that no definite matching could be found out of Bio/A and Bio/3 (clothes of the prosecutrix) with Bio/C to Bio/I (Semen of the Accused). It is more than clear from MLC Ex.PW6/A and CFSL Report Ex.PX that the story of the prosecution is false and fabricated. If we believe the story of the prosecution to be true and if she was raped in a Kachhi Gali to which she resisted there is no reason that she would not have received injury. Also from the report Ex.PX, it is clear that none of the appellants got connected with the alleged crime as their semen was not detected/matched.

35. In Lalliram and Anr. v. State of Madhya Pradesh : 2008 (10) SCC 69 with regard to an offence of gang rape falling Under Section 376 (2) (g) this Court laid down the principles as under in paras 11 and 12:

11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix’s version is credible, then no corroboration is necessary. But if the prosecutrix’s version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana.)

12. As rightly contended by Learned Counsel for the Appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar case it was observed that aprosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter casethere is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial. (Emphasis added)

36. In view of the above, the reports of doctors, who have conducted medical examination of the prosecutrix as well as the CFSL report do not co-relate the version alleged and thus the prosecution has failed to discharge its onus to prove the rape on the prosecutrix.

Authenticity of Photograph and negative

37. Mr. Pahwa, Senior Advocate argued that the photograph Ex-1/B and negative have been planted by the prosecution and the entire story of the prosecution that she was blackmailed as she was under a threat that the photograph and negative would be made public which have been clicked by Parveen when Bittoo was raping her in the month of January,1994 and that she gained further time to procure the photograph and negative is a false story.

38. In photograph Ex-PW1/B the girl has covered her face with her hands and when seen with a naked eye the girl who has covered her face cannot be identified. There appears to be no apprehension of photograph being misused as the face of the girl is not visible in Ex-PW1/B. Moreso, the recovery memo Ex-PW-10/A has not been signed by Appellant Parveen on 09.09.1994. The recovery of the photograph and the negative is doubtful. As per record the recovery of the photograph and the negative were made from Appellant Parveen on 09.09.1994 when he was arrested vide Ex-PW-10/A but does not bear his signature. The copy of the said recovery memo was given to appellant Parveen Kumar vide Ex-PW1/DA dated 07.09.1994 under the signatures of SI Ashok Rana. PW-3 ASI V.S. Nagar deposed that the photograph was recovered on 07.09.1994 and PW-13 Ashok Rana also confirmed that Parveen Kumar was arrested on 07.09.1994 at the same time there is a cutting under the signatures of Investigating Officer Prithvi Singh on Ex. PW-13/G which is recovery memo of negative dated 13.09.1994 and the signatures of Parveen Kumar appears to have been taken on a blank paper as they do not appear to be at the right place. The negative Ex. PW-1/D appears to be planted and the possibility of padding by changing the date in the recovery memo cannot be ruled out. It is also significant to note that the prosecutrix has given inconsistent versions as to when the alleged photograph was shown to her first time. The observations of the learned Trial Court “132. It is correct that I have found that there is a square border around the negative but it cannot be said with certainty that square border comes around the negatives only when the negative is made from the photograph. No photographer or expert has been produced by the defence side to elaborate this fact, so it cannot be said that the said negative was prepared from the photograph and the possibility cannot be ruled out that the film of the camera may be such which may give a square order on all the negative.

are unfounded. The learned trial Court has erroneously appreciated the evidence while observing that :

“133. I have seen accused Bittoo while appearing several times in the court. From his curly hairs, size of head and the structure, he can clearly be recognized in the photograph despite the fact that only his back is shown in the photograph. In daily routine, we can invariably recognize the persons (whom we know very well) by seeing their back or sometimes even by having a glimpse of the person.” Learned Senior Counsel has emphasized that the negatives have been prepared from the photograph in question and planted on the appellant.

39. As the learned Trial Court could not be a witness for identification of appellant Bittoo. Having said so, we are of the view that the photograph, identity of persons photographed and the genuineness of the negative have not been proved.

Delay in registration of FIR

40. It is urged on behalf of the appellants and the other respective counsel that the FIR in the present case has been lodged at a very belated stage i.e. on 07.09.1994, after about 9 months of the alleged incident which took place in January 1994. The delay has to be considered in the background of the facts and circumstances of each case and is a matter of appreciation of evidence. It is well settled that the delay in registering the FIR cannot be a ground to doubt the case of the prosecution. In cases of delay, the Courts are required to examine the evidence with a close scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the case of the prosecution cannot be dismissed merely on that ground. The disinclination to inform the family or report the matter to the police might be due to apprehension and attitude of the society towards the victim. Therefore, the delay in lodging the complaint in such cases does not necessarily indicate that her version is false.

41. In the present case, a series of rape committed on the prosecutrix which had started from January, 1994 and ended on 05.09.1994. In fact the prosecutrix was known to the appellant Parveen since 1989 and was having friendly relation with him and they used to meet on their way to school and also in the park. The prosecutrix as per her own Statment kept on meeting the appellant Parveen despite the opposition of her father. The prosecutrix alleged that during their friendship Parveen first raped her in January 1994 when she was served a cold drink, after consuming it she became unconscious and thereafter Parveen allowed his friend Bittoo to rape her and she was also photographed by Parveen on the basis of which he kept on blackmailing her. Finally, she disclosed this unfortunate story to her mother who further informed the same to complainant who got the FIR registered on 07.09.1994. The inordinate delay in registering the FIR casts a cloud of suspicion regarding credibility of the prosecution story when read with the testimony of prosecutrix, medical evidence and all other evidence led by the prosecution. The inordinate delay in registration of FIR and the time and opportunities which the prosecutrix had, to report the matter to the police or any other person by raising an alarm when she was forced to undergo the trauma of rape is unexplainable.

Non-examination of IO and malafide investigation

42. Mr. Pahwa, Learned Senior Counsel for the appellant Parveen and other counsel for other appellants have vehemently argued that the Investigating Officer Prithvi Singh has not stepped in the witness-box nor put to the test of cross examination and the prosecution has withheld the testimony of the most vital witness which has caused great prejudice to the appellants and his non examination is fatal to the case of prosecution. It is well settled law that the appellants can be convicted on the basis of sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. The prosecution explained that the Investigating Officer had not been examined as he has sustained injuries in his backbone and there was no likelihood of his recovery in the near future and the material documents pertaining to this case were tendered by PW-13 SI Mahak Singh of Crime Branch. Even otherwise, Investigating Officer is not a material witness for the purpose of establishing whether the appellants committed the offence for which they have been charged. Hence, non-examination of the Investigating Officer in the present case is inconsequential.

Malafide investigation

43. It has been strongly urged that the investigation in the present case is not fair but tainted as the same was under the direction of an very influential person who was a neighbour of the Grandfather of prosecutrix. From the material available on record, it is clear that the prosecutrix as well as Appellant Parveen were residents of same vicinity and the FIR was registered at Police Station, Preet Vihar. PW-3, ASI V.S. Nagar has testified that on 07.09.1994, Inspector Prithvi Singh gave him a „Tehrir‟ which was taken by him to the police station, Preet Vihar and thereafter FIR was registered in police station, Preet Vihar on the same day. PW7 HC Rakesh Kumar deposed in his statement that from 07.09.1994 he was a part of investigation team in the instant case. Though, there is nothing on record to suggest that the investigation was primarily conducted by Delhi Police and thereafter transferred to Crime Branch the same is evident from the testimonies of PW3 and PW7 that the FIR was registered in police station, Preet Vihar but from the inception i.e. from 07.09.1994, the case was formally in the hands of InvestigatingOfficer Prithvi Singh, who was posted in Crime Branch, Adarsh Nagar. This fact has also been recorded by learned Trial Court that on 07.09.1994, DCP, Crime Branch called the ACP along with Inspector Prithvi Singh, Inspector Raj Mohinder Singh of the Crime Branch in his office and instructed them to act on the complaint made by father of the prosecutrix without delay. Keeping in view the above material, we are of the opinion that the contention of learned counsel for the appellants with regard to influenced investigation cannot be ruled out.

False implication

44. The main thrust of argument as raised by Mr. Pahwa, learned Senior Counsel for appellant Parveen along with counsel for other appellants is that it is a false case in which Parveen and his friends were falsely implicated by the prosecutrix as the relationship between her and Parveen had turned sour when he came to know that prosecutrix was of easy virtue and was friendly with many other boys and refused to marry her bringing to an end the five years long relationship. It is further contended that thereafter, with the help of an influential person a false FIR was got registered and an objectionable photograph and negative, alleged to be that of prosecutrix with one of the appellant namely Bittoo, wherein the faces are not visible was planted by the Investigating Agency to implicate the appellants. It is argued that the testimony of the prosecutrix is not creditworthy and she cannot be called as a sterling witness whose version can be accepted by the court without any corroboration. The version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. In Rai Sandeep @ Deepu Vs State of NCT of Delhi : (2012) 8 SCC 21, the Hon’ble Apex Court has held that .

“To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

45. In Narender Kumar Vs. State (NCT of Delhi) : 2012 (7) SCC 171, it has been observed :

16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix is a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide:Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and Anr.: AIR 2003 SC 818; andVishnu v. State of Maharashtra : AIR 2006 SC 508).

17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence.”

46. The creditworthiness of the testimony of the prosecutrix has already been discussed in the earlier part of the judgment. The prosecutrix when put to the test as laid down in Rai Sandeep @ Deepu (Supra) fails the test of being sterling witness of a high quality and caliber whose version should therefore be unassailable and such quality should be in a position to accept it on face value without any hesitation. The prosecutrix when examined in court failed to disclose her relationship with Parveen but only when during cross examination confronted with her love letter admitted that she had been writing letters to Parveen and finally also written to him that she would leave him bitten. Moreso, her statement neither stood corroborated from medical evidence nor any other material on record and the photograph Ex.PW1/DX is not free from doubt. DW1 Gagan Mehtora also testified that the prosecutrix and Parveen were known to each other for long.

47. There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing a rape also causes humiliation and damage to the accused. An accused has also rights which are to be protected and the possibility of false implication has to be ruled out. The Supreme Court in Radhu vs. State of Madhya Pradeshreported in 2007 Cri. LJ 4704 had in this context noted as follows:

“The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.”

and in Abbas Ahmed Choudhary Vs. State of Assam : (2010) 12 SCC 115, the Hon’ble Supreme Court has held that:

“We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.”

48. In Raju v. State of Madhya Pradesh (2008) 15 SCC 133, the Hon’ble Supreme Court has held that testimony of the victim of a rape cannot be presumed to be a gospel truth and observed that false allegations of rape can cause equal distress, humiliation and damage to the accused as well, in para 11, the supreme Court echoed the sentiments as under:-

“11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

49. Keeping in mind the above cited judgments, the testimony of prosecutrix has to be consistent and natural in line with the case of the prosecution and free from infirmities which inspire confidence in the Court. It cannot be presumed that the statement of the prosecutrix is always true or without any embellishment.

50. In the instant case, the testimony of the prosecutrix is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical, scientific and expert evidence. After rescanning the entire case in its right perspective, we are of the firm view if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The version of the prosecutrix has not been corroborated with medical evidence and has not disclosed the true genesis of the crime.

51. In view of the above discussion, there is no scope to sustain conviction and sentence imposed on the appellants, resultantly, these appeals succeed and are hereby allowed. The judgment dated 03.12.1999 and order on sentence dated 08.12.1999 passed by the learned Trial Court convicting and sentencing the appellants for the offences punishable under Sections 376(2)(g)/ 342/506 (II) read with Section 34 of the Indian Penal Code, are set aside and the appellants, accordingly, acquitted of the charges framed against them. Their bail bonds shall stand discharged.

SANGITA DHINGRA SEHGAL, J.

G. S. SISTANI, J.

 

 

The bench of Justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. “On a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution,”
The SC held that the accused, Shamsher Singh Verma, had claimed during his examination that he had been implicated in the case due to a property dispute.
Though the SC refused to delve into the authenticity of the conversations,
“We are of the view that the courts below have erred in law in not allowing the application of the defence to play the compact disc relating to conversation between father of the victim and son and wife of the appellant (accused) regarding alleged property dispute.

————————————————————-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1525 OF 2015
(Arising out of S.L.P. (Crl.) No. 9151 of 2015)

Shamsher Singh Verma                         … Appellant

Versus

State of Haryana                             …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against order dated 25.8.2015, passed  by  the
High Court of Punjab and Haryana  at  Chandigarh,  whereby  said  Court  has
affirmed the order dated 21.2.2015, passed by the  Special  Judge,  Kaithal,
in Sessions Case No. 33  of  2014,  and  rejected  the  application  of  the
accused for getting exhibited the compact disc, filed in defence and to  get
the same proved from Forensic Science Laboratory.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

Briefly stated, a report was  lodged  against  the  appellant  (accused)  on
25.10.2013 at Police Station, Civil Lines, Kaithal, registered  as  FIR  No.
232 in respect of offence punishable under Section 354 of the  Indian  Penal
Code (IPC) and one relating to Protection of Children from  Sexual  Offences
Act, 2015 (POCSO) in which complainant Munish Verma alleged that  his  minor
niece was molested by the appellant.  It appears that  after  investigation,
a charge sheet is filed  against  the  appellant,  on  the  basis  of  which
Sessions Case No. 33 of 2014 was registered.  Special Judge, Kaithal,  after
hearing the parties, on 28.3.2014  framed  charge  in  respect  of  offences
punishable under Sections 354A and 376 IPC and also in  respect  of  offence
punishable under Sections 4/12 of POCSO.  Admittedly  prosecution  witnesses
have been examined in said case, whereafter statement  of  the  accused  was
recorded under Section 313 of the Code  of  Criminal  Procedure,  1973  (for
short “CrPC”).  In defence the accused has examined four witnesses,  and  an
application purported to have  been  moved  under  Section  294  CrPC  filed
before the trial court with following prayer: –

“In view of the submissions made above it is therefore prayed that the  said
gadgets may be got operated initially in the court for preserving a copy  of
the  text  contained  therein  for  further  communication  to  F.S.L.   for
establishing their authenticity.  It is further prayed  that  the  voice  of
Sandeep Verma may kindly be ordered to be taken by the experts at FSL to  be
further got matched with the recorded voice above mentioned.”

In said application dated 19.2.2015, it is alleged that there  is  recording
of conversation between Sandeep Verma (father of  the  victim)  and  Saurabh
(son  of  the  accused)  and  Meena  Kumari  (wife  of  the  accused).   The
application appears to have been opposed by the prosecution.   Consequently,
the trial court rejected the same vide order dated 21.2.2015  and  the  same
was affirmed, vide impugned order passed by the High Court.
Learned counsel for the appellant argued before us that the  accused  has  a
right to adduce the evidence in defence and the courts below have  erred  in
law in denying the right of defence.

On the other hand, learned counsel for the complainant and  learned  counsel
for the State contended that it is a case of sexual abuse of a female  child
aged nine years by his uncle, and the accused/appellant is trying to  linger
the trial.

In reply to this, learned counsel for the appellant pointed out  that  since
the accused/appellant is in jail, as such, there is no question on his  part
to protract the trial.  It is further submitted on behalf of  the  appellant
that the appellant was initially detained on  24.10.2013  illegally  by  the
police at the instance of the complainant, to settle  the  property  dispute
with the complainant and his brother.  On this Writ Petition (Criminal)  No.
1888 of 2013 was filed before the High Court for issuance of writ of  habeas
corpus.  It is further pointed out that  the  High  Court,  vide  its  order
dated 25.10.2013, appointed Warrant Officer, and the appellant was  released
on 25.10.2013 at  10.25  p.m.  Immediately  thereafter  FIR  No.  232  dated
25.10.2013 was registered at 10.35 p.m.  regarding  alleged  molestation  on
the basis of which Sessions Case is proceeding.  On behalf of the  appellant
it is also submitted that appellant’s wife Meena is sister of  Munish  Verma
(complainant) and Sandeep  Verma  (father  of  the  victim),  and  there  is
property dispute between the parties due to which  the  appellant  has  been
falsely implicated.

Mrs.  Mahalakshmi  Pawani,  learned  senior  counsel  for  the   complainant
vehemently argued that the alleged conversation  among  the  father  of  the
victim and son and wife of the appellant is subsequent to  the  incident  of
molestation and rape with a nine year old child, as  such  the  trial  court
has rightly rejected the application dated 19.2.2015.

However, at this stage we are not inclined to express any opinion as to  the
merits of the prosecution case  or  defence  version.   The  only  point  of
relevance at present is  whether  the  accused  has  been  denied  right  of
defence or not.

Section 294 CrPC reads as under: –

“294. No formal proof of certain documents. –  (1)  Where  any  document  is
filed before any Court by the prosecution or the  accused,  the  particulars
of every such document shall be included in a list and  the  prosecution  or
the accused, as the case may be, or the pleader for the prosecution  or  the
accused, if any, shall be called upon to admit or deny  the  genuineness  of
each such document.

(2) The list of documents shall be in such form as may  be  prescribed
by the State Government.

(3) Where the genuineness  of  any  document  is  not  disputed,  such
document may be read in evidence in any inquiry, trial or  other  proceeding
under this Code without proof of the signature of  the  person  to  whom  it
purports to be signed:

Provided  that  the  Court  may,  in  its  discretion,  require  such
signature to be proved.”

The object of Section 294 CrPC is to accelerate pace of  trial  by  avoiding
the time being wasted by the parties in recording the unnecessary  evidence.
Where genuineness of any document is  admitted,  or  its  formal  proof  is
dispensed with, the same may  be  read  in  evidence.   Word  “document”  is
defined in Section 3 of the Indian Evidence Act, 1872, as under: –
“ ‘Document’ means any matter expressed or described upon any  substance  by
means of letters, figures or marks, or by more  than  one  of  those  means,
intended to be used, or which may be used,  for  the  purpose  of  recording
that matter.

Illustration

A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.”

In R.M. Malkani vs. State of Maharashtra[1], this Court  has  observed  that
tape recorded conversation is admissible provided first the conversation  is
relevant to the matters in issue; secondly, there is identification  of  the
voice; and, thirdly, the accuracy  of  the  tape  recorded  conversation  is
proved by eliminating the possibility of erasing the tape record.

In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and  others[2],
it was held by this Court that tape-records of  speeches  were  “documents”,
as defined by Section 3 of the Evidence Act, which  stood  on  no  different
footing than photographs, and that  they  were  admissible  in  evidence  on
satisfying the following conditions:
“(a)  The  voice  of  the  person  alleged  to  be  speaking  must  be  duly
identified by the maker of the record or by others who know it.

(b)   Accuracy of what was actually recorded had to be proved by  the  maker
of the record and satisfactory evidence, direct or  circumstantial,  had  to
be there so as to rule out possibilities of tampering with the record.

(c)   The subject-matter recorded had to be shown to be  relevant  according
to rules of relevancy found in the Evidence Act.”

In view of the definition of ‘document’ in Evidence Act, and  the  law  laid
down by this Court, as discussed above, we hold that  the  compact  disc  is
also a document.  It is not necessary for the court to obtain  admission  or
denial on a document under sub-section (1) to Section  294  CrPC  personally
from the  accused  or  complainant  or  the  witness.   The  endorsement  of
admission or denial made by the counsel for defence, on the  document  filed
by the prosecution or on the application/report with which  same  is  filed,
is sufficient compliance of Section  294  CrPC.   Similarly  on  a  document
filed by the defence, endorsement of  admission  or  denial  by  the  public
prosecutor is sufficient and defence will have to prove the document if  not
admitted by the prosecution.  In  case  it  is  admitted,  it  need  not  be
formally proved, and can be read in evidence. In a complaint  case  such  an
endorsement can be made by the counsel for the  complainant  in  respect  of
document filed by the defence.

On going through the order dated 21.2.2015, passed by the  trial  court,  we
find that all the prosecution witnesses, including  the  child  victim,  her
mother Harjinder Kaur, maternal grandmother Parajit Kaur  and  Munish  Verma
have been examined.  Sandeep Verma (father of the victim)  appears  to  have
been discharged by the prosecution, and the evidence was closed.   From  the
copy of the  statement  of  accused  Shamsher  Singh  Verma  recorded  under
Section 313 CrPC (annexed as Annexure P-11 to the petition), it  is  evident
that in reply to second last question, the accused has alleged that  he  has
been implicated due to property  dispute.   It  is  also  stated  that  some
conversation is in possession of his son.  From the record it also  reflects
that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer,  Praveen
Kumar, Clerk-cum-Cashier, State Bank of Patiala, and Saurabh Verma,  son  of
the appellant have been  examined  as  defence  witnesses  and  evidence  in
defence is in progress.

We are not inclined to go into the truthfulness of the  conversation  sought
to be proved by the defence but, in  the  facts  and  circumstances  of  the
case, as discussed above, we are of the view  that  the  courts  below  have
erred in law in not allowing the application of the defence  to  get  played
the compact disc relating to conversation between father of the  victim  and
son and wife of the appellant regarding alleged property  dispute.   In  our
opinion, the courts below have erred in law in rejecting the application  to
play the compact disc in question to enable the public prosecutor  to  admit
or deny, and to get it sent to  the  Forensic  Science  Laboratory,  by  the
defence.  The appellant is in jail and there appears to be no  intention  on
his  part  to  unnecessarily  linger  the  trial,  particularly   when   the
prosecution witnesses have been examined.

Therefore, without expressing any opinion as to  the  final  merits  of  the
case, this appeal is allowed, and the orders passed by the courts below  are
set aside.  The application dated 19.2.2015 shall stand  allowed.   However,
in the facts and  circumstances  of  the  case,  it  is  observed  that  the
accused/appellant shall not be entitled to seek bail on the ground of  delay
of trial.

……………………..…………J.
[Dipak Misra]

.………………….……………J.
[Prafulla C. Pant]
New Delhi;
November 24, 2015.

———————–
[1]    (1973) 1 SCC 471 : 1973 (2) SCR 417
[2]    (1976) 2 SCC 17 : 1975 (Supp) SCR 281

As per Hindu law, stridhan is whatever a women receives during her lifetime including all movable, immovable property, gifts etc received prior to marriage, at the time of marriage and during child birth.

A bench of Justices Dipak Misra and Prafulla C Pant quashed the order of a trial court and Tripura High Court which had held that a woman cannot claim her stridhan after separation from her husband and criminal proceedings cannot be initiated against husband and in-laws for not handing over the properties.

It pulled up the courts for dismissing the plea of a woman on the ground that she lost the right over stridhan after judicial separation with husband. The court said that the Protection of Women from Domestic Violence Act was meant to provide an effective protection to a woman and the court should adopt sensitive approach towards such complaints.

The bench clarified that separation under court order is different from divorce and the couple remains as husband and wife, although living separately. It said under judicial separation a couple can keep their status as wife and husband till their lifetime and a wife is entitled to invoke the Act during that period if her rights are violated.

“It is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped.

———————————————————————————————————–

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1545       OF 2015
(@ SLP(Crl) No. 10223 OF 2014)

Krishna Bhatacharjee                   …   Appellant

Versus

Sarathi Choudhury and Anr.             …   Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.    The appellant having lost the battle for  getting  her  Stridhan  back
from  her  husband,  the  first  respondent  herein,  before   the   learned
Magistrate on the ground that the claim preferred under Section  12  of  the
Protection of Women from Domestic Violence Act, 2005 (for short,  ‘the  2005
Act’) was not entertainable as she had ceased to be  an  “aggrieved  person”
under Section 2(a) of the 2005 Act and further that the claim as  put  forth
was barred by limitation; preferred an appeal before the learned  Additional
Sessions Judge  who  concurred  with  the  view  expressed  by  the  learned
Magistrate, and being determined to get her lawful claim, she,  despite  the
repeated non-success, approached the High  Court  of  Tripura,  Agartala  in
Criminal Revision No. 19 of 2014 with the hope that she will  be  victorious
in the war to get her own property, but the High Court, as  is  perceivable,
without much analysis, declined  to  interfere  by  passing  an  order  with
Spartan austerity possibly thinking lack of reasoning  is  equivalent  to  a
magnificent virtue and that had led  the  agonised  and  perturbed  wife  to
prefer the present appeal, by special leave.

3.    Prior to the narration of facts which are essential  for  adjudication
of this appeal, we may state that the 2005 Act has been legislated,  as  its
Preamble would reflect, to provide for  more  effective  protection  of  the
rights of the women guaranteed under the Constitution  who  are  victims  of
violence of any kind occurring within the family and for  matters  connected
therewith or incidental thereto.  The  2005  Act  is  a  detailed  Act.  The
dictionary clause of the 2005 Act, which we shall advert to  slightly  at  a
later  stage,  is  in  a  broader  spectrum.  The  definition  of  “domestic
violence” covers a range of violence which takes within its sweep  “economic
abuse” and the words “economic abuse”, as  the  provision  would  show,  has
many a facet.

4.    Regard being had to the nature of the legislation,  a  more  sensitive
approach is expected from the courts where under the 2005 Act no relief  can
be granted, it should never be conceived of but, before throwing a  petition
at the threshold on the ground  of  maintainability,  there  has  to  be  an
apposite discussion and thorough deliberation  on  the  issues  raised.   It
should be borne in mind that helpless and hapless “aggrieved  person”  under
the 2005 Act approaches the court under the compelling circumstances. It  is
the duty of the court to scrutinise the facts  from  all  angles  whether  a
plea advanced by the respondent to nullify the grievance  of  the  aggrieved
person is really legally sound and correct.  The principle “justice  to  the
cause is equivalent to the salt of ocean” should be kept in mind. The  court
of law is bound to uphold the truth which sparkles  when  justice  is  done.
Before throwing a petition at the threshold, it is obligatory  to  see  that
the person aggrieved under such a legislation is not faced with a  situation
of non-adjudication, for the 2005 Act as we have stated is a  beneficial  as
well as  assertively  affirmative  enactment  for  the  realisation  of  the
constitutional rights of women  and  to  ensure  that  they  do  not  become
victims of any kind of domestic violence.

5.    Presently to the narration of the  facts.  The  marriage  between  the
appellant and the respondent No. 1 was solemnised  on  27.11.2005  and  they
lived as husband and wife. As the allegations proceed, there was  demand  of
dowry by  the  husband  including  his  relatives  and,  demands  not  being
satisfied, the appellant was driven out from the matrimonial home.  However,
due to intervention of the elderly people of the locality,  there  was  some
kind of conciliation as a consequence of which  both  the  husband  and  the
wife stayed in a rented house for two months. With the efflux of  time,  the
husband filed a petition  seeking  judicial  separation  before  the  Family
Court and eventually the said prayer  was  granted  by  the  learned  Judge,
Family Court. After the judicial  separation,  on  22.5.2010  the  appellant
filed an application under Section 12 of  the  2005  Act  before  the  Child
Development Protection  Officer (CDPO), O/O the District  Inspector,  Social
Welfare & Social Education,  A.D.  Nagar,  Agartala,  Tripura  West  seeking
necessary help as per the provisions contained in the 2005 Act.  She  sought
seizure of Stridhan  articles  from  the  possession  of  the  husband.  The
application which was made  before  the  CDPO  was  forwarded  by  the  said
authority to the learned Chief Judicial  Magistrate,  Agartala  Sadar,  West
Tripura by letter dated 1.6.2010.  The learned Magistrate issued  notice  to
the respondent who filed his written objections on 14.2.2011.

6.    Before the learned Magistrate it was contended by the respondent  that
the application preferred by the wife was barred by limitation and that  she
could not have  raised  claim  as  regards  Stridhan  after  the  decree  of
judicial separation passed by the competent court.  The  learned  Magistrate
taking  into  consideration  the  admitted  fact  that  respondent  and  the
appellant had entered into wedlock treated her  as  an  “aggrieved  person”,
but opined that no “domestic relationship” as defined under Section 2(f)  of
the 2005 Act existed between  the  parties  and,  therefore,  wife  was  not
entitled to file the application under Section 12  of  the  2005  Act.   The
learned Magistrate came to  hold  that  though  the  parties  had  not  been
divorced but the decree of judicial separation would be  an  impediment  for
entertaining the application and being of  this  view,  he  opined  that  no
domestic relationship subsisted under the 2005  Act  and  hence,  no  relief
could be granted.  Be it stated here that  before  the  learned  Magistrate,
apart from herself, the appellant examined three witnesses and  the  husband
had examined himself as DW-1.  The learned  Magistrate  while  dealing  with
the maintainability of  the  petition  had  noted  the  contentions  of  the
parties as regards merits, but has really not recorded any finding  thereon.

7.    The aggrieved wife preferred criminal appeal No. 6(1)  of  2014  which
has  been  decided  by  the  learned  Additional  Sessions  Judge,  Agartala
holding, inter alia, that the object of the 2005 Act is  primarily  to  give
immediate relief to the victims; that as per the decision of this  Court  in
Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code  of
Criminal Procedure applies to  the  proceedings  under  the  2005  Act  and,
therefore, her application was barred by time.   Being  of  this  view,  the
appellate court dismissed the appeal.
8.    On a revision being preferred, the  High  Court,  as  is  demonstrable
from the impugned order, after referring to the decision in  Inderjit  Singh
Grewal (supra), has stated that the wife had filed  a  criminal  case  under
Section 498(A) IPC in the year 2006 and the husband had  obtained  a  decree
of judicial separation in 2008, and hence, the proceedings  under  the  2005
Act was barred by limitation.  That apart, it has also in  a  way  expressed
the view that the proceedings under the 2005 Act was not maintainable.
9.    In our prefatory note, we have stated  about  the  need  of  sensitive
approach to these kinds of cases. There can be erroneous perception of  law,
but as we find, neither the learned Magistrate nor the appellate  court  nor
the High Court has made any effort to understand and  appreciate  the  stand
of the appellant. Such type of cases and at such stage should not travel  to
this Court. We are compelled to say so as we are of the  considered  opinion
that had the appellate court and the High Court been more vigilant,  in  all
possibility, there could have been adjudication on merits.  Be  that  as  it
may.
10.   The facts that we have  enumerated  as  regards  the  “status  of  the
parties”, “judicial separation” and “the claim  for  Stridhan”  are  not  in
dispute.  Regard being had to the  undisputed  facts,  it  is  necessary  to
appreciate the scheme of the 2005  Act.   Section  2(a)  defines  “aggrieved
person”  which  means  any  woman  who  is,  or  has  been,  in  a  domestic
relationship with the respondent and who alleges to have been  subjected  to
any act of domestic  violence  by  the  respondent.   Section  2(f)  defines
“domestic relationship” which means a relationship between two  persons  who
live or have, at any point of time, lived together in  a  shared  household,
when they are related by consanguinity, marriage, or through a  relationship
in the nature of marriage, adoption or are family  members  living  together
as a joint family.  Section 2(g) defines the term “domestic violence”  which
has been assigned and given the  same  meaning  as  in  Section  3.     Sub-
section (iv) of Section 3 deals with “economic abuse”.  As in the  facts  at
hand, we are concerned with  the  “economic  abuse”,  we  reproduce  Section
3(iv) which reads as follows:-
“Section 3. Definition of domestic violence.
(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to  which  the
aggrieved person is entitled under any law or custom whether  payable  under
an order of a court or otherwise or which the aggrieved person requires  out
of necessity including, but not limited to, household  necessities  for  the
aggrieved person and her children, if any, stridhan,  property,  jointly  or
separately owned by the aggrieved person, payment of rental related  to  the
shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether  movable
or immovable, valuables, shares, securities, bonds and  the  like  or  other
property in which the aggrieved person has an interest  or  is  entitled  to
use by virtue of the  domestic  relationship  or  which  may  be  reasonably
required by the aggrieved person or her children  or  her  stridhan  or  any
other property jointly or separately held by the aggrieved person; and

(c)  prohibition  or  restriction  to  continued  access  to  resources   or
facilities which the aggrieved person is entitled to use or enjoy by  virtue
of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether  any  act,  omission,
commission or conduct of  the  respondent  constitutes  “domestic  violence”
under this section, the overall facts and circumstances of  the  case  shall
be taken into consideration.”

11.   Section 8(1) empowers the State Government to appoint such  number  of
Protection Officers in each district as it may consider necessary  and  also
to notify the  area  or  areas  within  which  a  Protection  Officer  shall
exercise the powers and perform the duties conferred on him by or under  the
2005 Act. The  provision,  as  is  manifest,  is  mandatory  and  the  State
Government  is  under  the  legal  obligation  to  appoint  such  Protection
Officers.  Section 12 deals with application  to  Magistrate.   Sub-sections
(1) and (2) being relevant are reproduced below:-
“Section 12.  Application  to  Magistrate.-(1)  An  aggrieved  person  or  a
Protection Officer or any other person on behalf  of  the  aggrieved  person
may present an application to the Magistrate seeking  one  or  more  reliefs
under this Act: Provided that before passing any order on such  application,
the Magistrate shall take into consideration any  domestic  incident  report
received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may  include  a  relief  for
issuance of  an  order  for  payment  of  compensation  or  damages  without
prejudice to the right of such person to institute a suit  for  compensation
or damages for  the  injuries  caused  by  the  acts  of  domestic  violence
committed by the respondent: Provided that where a decree for any amount  as
compensation or damages has been passed  by  any  court  in  favour  of  the
aggrieved person, the amount, if any, paid or payable in  pursuance  of  the
order made by the Magistrate under this Act shall be  set  off  against  the
amount payable under such  decree  and  the  decree  shall,  notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or  any
other law for the time  being  in  force,  be  executable  for  the  balance
amount, if any, left after such set off.”

12.   Section 18 deals with passing of protection orders by the  Magistrate.
Section 19 deals with  the  residence  orders  and  Section  20  deals  with
monetary reliefs.  Section 28 deals with procedure and stipulates  that  all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences  under
Section 31 shall be governed by the  provisions  of  the  Code  of  Criminal
Procedure, 1973. Section 36 lays down that the provisions of  the  2005  Act
shall be in addition to, and not in derogation  of  the  provisions  of  any
other law, for the time being in force.
13.   Having scanned the anatomy of the 2005 Act, we may now refer to a  few
decisions of this Courts that have dealt with the  provisions  of  the  2005
Act. In V.D. Bhanot  v. Savita Bhanot[2]  the  question  arose  whether  the
provisions of the 2005  Act  can  be  made  applicable  in  relation  to  an
incident that had occurred prior to the coming into force of the  said  Act.
Be it noted, the High  Court  had  rejected  the  stand  of  the  respondent
therein that the provisions of  the  2005  Act  cannot  be  invoked  if  the
occurrence had taken place prior to the coming into force of the  2005  Act.
This Court while dealing with the same referred to the decision rendered  in
the High Court which after considering the constitutional  safeguards  under
Article 21 of the Constitution vis-à-vis the provisions of Sections  31  and
33 of the 2005 Act and after examining the Statement of Objects and  Reasons
for the enactment of the 2005 Act, had held that it was  with  the  view  of
protecting the rights  of  women  under  Articles  14,  15  and  21  of  the
Constitution that Parliament enacted the 2005 Act in order  to  provide  for
some effective protection of rights guaranteed  under  the  Constitution  to
women, who are victims of any kind of violence occurring within  the  family
and matters connected therewith and incidental thereto, and  to  provide  an
efficient and expeditious civil remedy to them and further that  a  petition
under the provisions of the 2005 Act is maintainable even  if  the  acts  of
domestic violence had been committed prior to the coming into force  of  the
said Act, notwithstanding the fact that in the past she had  lived  together
with her husband in a shared household, but was no more living with him,  at
the time when the Act came into force. After analyzing the  verdict  of  the
High Court, the Court concurred with the view expressed by  the  High  Court
by stating thus:-
“We agree with the view expressed by the High Court that in looking  into  a
complaint under Section 12 of the PWD Act, 2005, the conduct of the  parties
even prior to the coming into force of the PWD  Act,  could  be  taken  into
consideration while passing an order under Sections 18, 19 and  20  thereof.
In our view, the Delhi High Court has also  rightly  held  that  even  if  a
wife, who had shared a household in the past, but was  no  longer  doing  so
when the Act came into force, would still be entitled to the  protection  of
the PWD Act, 2005.”

14.   In Saraswathy  v.  Babu[3]  a two-Judge Bench, after referring to  the
decision in V.D. Bhanot   (supra), reiterated the  principle.  It  has  been
held therein:-
“We are of the view that the act of the respondent  husband  squarely  comes
within the ambit of Section 3 of the  DVA,  2005,  which  defines  “domestic
violence” in wide terms. The High Court made an apparent  error  in  holding
that the conduct of the parties prior to the coming into force of  the  DVA,
2005 cannot be taken into consideration while passing an order.  This  is  a
case where the respondent husband  has  not  complied  with  the  order  and
direction passed by the  trial  court  and  the  appellate  court.  He  also
misleads the Court by giving wrong statement before the High  Court  in  the
contempt petition filed by the appellant wife.  The  appellant  wife  having
being harassed since 2000 is entitled for  protection  order  and  residence
order under Sections 18 and 19 of the DVA, 2005 along with  the  maintenance
as allowed by the trial court under  Section  20(1)(d)  of  the  DVA,  2005.
Apart from these reliefs, she is also entitled for compensation and  damages
for the injuries, including mental torture and  emotional  distress,  caused
by the acts of  domestic  violence  committed  by  the  respondent  husband.
Therefore, in addition to the reliefs granted by the courts  below,  we  are
of the view that the appellant wife should be compensated by the  respondent
husband. Hence, the respondent is hereby directed to  pay  compensation  and
damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15.   In the instant case, as has been indicated earlier, the  courts  below
as well as the High Court have referred to the decision  in  Inderjit  Singh
Grewal (supra).  The said case has to be understood regard being had to  the
factual exposè therein.  The Court  had  referred  to  the  decision  in  D.
Velusamy v.  D.  Patchaiammal[4]  wherein  this  Court  had  considered  the
expression “domestic  relationship”  under  Section  2(f)  of  the  Act  and
judgment  in  Savitaben  Somabhai  Bhatiya  v.  State  of   Gujarat[5]   and
distinguished  the  said  judgments  as  those  cases  related  to   live-in
relationship without marriage.  The Court analyzing  the  earlier  judgments
opined that the couple must hold themselves out to society as being akin  to
spouses in addition to fulfilling  all  other  requisite  conditions  for  a
valid marriage. The said judgments were  distinguished  on  facts  as  those
cases related to live-in relationship without marriage.   The  Court  opined
that the parties therein had got married and the decree of the  civil  court
for divorce  subsisted and that apart a suit to declare  the  said  judgment
and  decree  as  a  nullity  was  still  pending  consideration  before  the
competent court.  In that background, the Court ruled that:-
“In the facts and circumstances of the case, the submission made  on  behalf
of Respondent 2 that the judgment and  decree  of  a  civil  court  granting
divorce is null and void and they continued to  be  the  husband  and  wife,
cannot be taken note of at this stage unless the suit filed by Respondent  2
to declare the said judgment and decree dated 20-3-2008 is  decided  in  her
favour. In view thereof,  the  evidence  adduced  by  her  particularly  the
record of the telephone calls, photographs attending a wedding together  and
her  signatures  in  school  diary  of  the  child  cannot  be  taken   into
consideration so long  as  the  judgment  and  decree  of  the  civil  court
subsists. On a similar footing, the contention advanced by her counsel  that
even after the decree  of  divorce,  they  continued  to  live  together  as
husband and  wife  and  therefore  the  complaint  under  the  2005  Act  is
maintainable, is not worth acceptance at this stage.”
[Emphasis supplied]

16.   It may be noted that a  submission  was  advanced  by  the  wife  with
regard to the applicability of Section 468 CrPC.   While  dealing  with  the
submission on the issue of limitation, the Court opined:-

“…… in view of the provisions of Section 468 CrPC,  that  the  complaint
could be filed only within a period  of  one  year  from  the  date  of  the
incident seem to be preponderous in view of the provisions  of  Sections  28
and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women  from
Domestic Violence Rules, 2006 which make the provisions of  CrPC  applicable
and stand fortified by the judgments  of  this  Court  in  Japani  Sahoo  v.
Chandra Sekhar Mohanty, (2007) 7 SCC 394,  and NOIDA Entrepreneurs Assn.  v.
NOIDA,  (2011) 6 SCC 508.”

17.   As it appears, the High Court has referred to the same  but  the  same
has really not been adverted.  In fact, it is not  necessary  to  advert  to
the said aspect in the present case.
18.   The core issue that is  requisite  to  be  addressed  is  whether  the
appellant has ceased to be an “aggrieved person” because of  the  decree  of
judicial separation.  Once the decree of divorce is passed,  the  status  of
the parties becomes different, but that is not so when  there  is  a  decree
for judicial separation. A three-Judge Bench in Jeet Singh  and  Others  Vs.
State of U.P. and Others[6] though in a different context, adverted  to  the
concept of judicial  separation  and  ruled  that  the  judicial  separation
creates  rights  and  obligations.  A  decree  or  an  order  for   judicial
separation permits the parties to live apart. There would be  no  obligation
for either party to cohabit with the other. Mutual  rights  and  obligations
arising out of a marriage are suspended. The decree however, does not  sever
or dissolve the marriage. It affords an opportunity for  reconciliation  and
adjustment. Though judicial separation after a certain period may  become  a
ground for divorce, it is not necessary and the parties  are  not  bound  to
have recourse to that remedy and the parties can live keeping  their  status
as wife and husband till their lifetime.
19.   In this regard, we may fruitfully refer to the authority in  Hirachand
Srinivas Managaonkar  v.   Sunanda[7]  wherein  the  issue  that  arose  for
determination was whether the husband  who  had  filed  a  petition  seeking
dissolution of the marriage by a decree of divorce under Section  13(1-A)(i)
of the Hindu  Marriage Act, 1955 can be declined relief on the  ground  that
he had failed to pay maintenance for his wife and daughter despite an  order
of the court. The husband was appellant before this Court and had  filed  an
application under Section 10 of the Hindu Marriage  Act,  1955  for  seeking
judicial separation on the ground of adultery on the part of the  appellant.
Thereafter,  the  appellant  presented  the  petition  for  dissolution   of
marriage by decree  of  divorce  on  the  ground  that  there  has  been  no
resumption of cohabitation as between the parties  to  the  marriage  for  a
period of more than one year  after  passing  of  the  decree  for  judicial
separation. The stand of the wife was that the appellant  having  failed  to
pay the maintenance as ordered by the court, the petition for divorce  filed
by the husband was liable to be rejected  inasmuch  he  was  trying  to  get
advantage of his  own  wrong  for  getting  the  relief.    The  High  Court
accepted the plea of the wife  and  refused  to  grant  the  prayer  of  the
appellant seeking divorce. It was contended before this Court that the  only
condition  for  getting  divorce  under  Section  13(1-A)(i)  of  the  Hindu
Marriage Act, 1955 is that there has  been  no  resumption  of  cohabitation
between the parties to the marriage for a period  of  one  year  or  upwards
after the passing of the decree for judicial separation in a  proceeding  to
which both the  spouses  are  parties.   It  was  urged  that  if  the  said
condition is satisfied the court is required to pass a  decree  of  divorce.
On behalf of the wife, the said submissions were resisted on the score  that
the husband had been living in continuous adultery  even  after  passing  of
the decree of judicial separation and had reasonably failed to maintain  the
wife and daughter.  The Court proceeded to analyse Section             13(1-
A)(i) of the Hindu Marriage Act, 1955. Analysing the  provisions  at  length
and speaking about judicial separation, it expressed that after  the  decree
for judicial separation was passed on the petition filed by the wife it  was
the duty of both the spouses to do their part for cohabitation. The  husband
was expected to act as a dutiful husband towards the wife and the  wife  was
to act as a devoted wife towards the husband. If this concept  of  both  the
spouses  making  sincere  contribution  for  the   purpose   of   successful
cohabitation after a judicial separation is ordered then it  can  reasonably
be said that in the facts and circumstances  of  the  case  the  husband  in
refusing to pay maintenance to the wife failed to act as a husband.  Thereby
he committed a “wrong”  within  the  meaning  of  Section  23  of  the  Act.
Therefore, the High Court was justified in declining to allow the prayer  of
the husband for dissolution of the marriage by divorce under  Section  13(1-
A) of the Act.
20.   And, the Court further stated thus:-
“… The effect of the decree is that certain mutual rights and  obligations
arising from the marriage are as  it  were  suspended  and  the  rights  and
duties prescribed in the decree are substituted  therefor.  The  decree  for
judicial separation does not  sever  or  dissolve  the  marriage  tie  which
continues  to  subsist.  It  affords  an  opportunity  to  the  spouse   for
reconciliation and readjustment. The decree may fall by  a  conciliation  of
the parties in which case the rights of the respective parties  which  float
from the marriage and were suspended are restored. Therefore the  impression
that Section 10(2) vests a right in the petitioner  to  get  the  decree  of
divorce notwithstanding the fact that  he  has  not  made  any  attempt  for
cohabitation with the respondent and has even acted in a  manner  to  thwart
any move for cohabitation does not flow from a reasonable interpretation  of
the statutory provisions. At the cost of repetition it may  be  stated  here
that the  object  and  purpose  of  the  Act  is  to  maintain  the  marital
relationship between the spouses and  not  to  encourage  snapping  of  such
relationship.”

21.   It is interesting to note that  an  issue  arose  whether  matrimonial
offence of adultery had  exhausted  itself  when  the  decree  for  judicial
separation was granted and, therefore, it cannot be said that it  is  a  new
fact or circumstance amounting to wrong which will stand as an  obstacle  in
the way of the husband to obtain the relief which he claims in  the  divorce
proceedings.  Be it stated that reliance  was  placed  on  the  decision  of
Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8].  This  Court  did
not accept the contention by holding that living in adultery on the part  of
the husband is a continuing matrimonial offence, and it does not get  frozen
or wiped out merely on passing of a decree  for  judicial  separation  which
merely suspends certain duties and obligations of the spouses in  connection
with their marriage and does not snap the matrimonial tie. The  Court  ruled
that the decision of the Gujarat High Court does not lay  down  the  correct
position of law. The Court approved the principle stated by the Madras  High
Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in  which  a
Single Judge had taken the view that the husband who continued  to  live  in
adultery even after decree at the instance of the wife could not succeed  in
a petition seeking decree for divorce and that Section 23(1)(a)  barred  the
relief.
22.   In view of the aforesaid pronouncement, it is quite clear  that  there
is a distinction between  a  decree  for  divorce  and  decree  of  judicial
separation; in the former, there is a severance of status  and  the  parties
do not remain as husband and wife, whereas in the  later,  the  relationship
between husband and wife continues and the legal relationship  continues  as
it has not been snapped.  Thus  understood,  the  finding  recorded  by  the
courts below which have been concurred by the High Court  that  the  parties
having been judicial separated, the appellant  wife  has  ceased  to  be  an
“aggrieved person” is wholly unsustainable.
23.   The  next  issue  that  arises  for  consideration  is  the  issue  of
limitation. In the application preferred by the wife, she  was  claiming  to
get back her stridhan.  Stridhan has been  described  as  saudayika  by  Sir
Gooroodas Banerjee in “Hindu Law of  Marriage  and  Stridhan”  which  is  as
follows:-
“First, take the case of property obtained by gift.  Gifts  of  affectionate
kindred, which are known by the name of  saudayika  stridhan,  constitute  a
woman’s absolute property, which she has at all times independent  power  to
alienate, and over which her husband has only  a  qualified  right,  namely,
the right of use in times of distress.”

24.   The said passage, be it noted, has been quoted Pratibha Rani v.  Suraj
Kumar and Another[10]. In the  said  case,  the  majority  referred  to  the
stridhan as described in “Hindu Law” by   N.R.  Raghavachariar  and  Maine’s
“Treatise on Hindu Law”. The  Court  after  analyzing  the  classical  texts
opined that:-
”It is, therefore, manifest  that  the  position  of  stridhan  of  a  Hindu
married  woman’s  property  during  coverture  is   absolutely   clear   and
unambiguous; she is the absolute owner of such property and  can  deal  with
it in any manner she likes — she may spend the whole of it or give  it  away
at her own pleasure by gift or will without any reference  to  her  husband.
Ordinarily, the husband has no  right  or  interest  in  it  with  the  sole
exception that in times of extreme distress, as in famine,  illness  or  the
like, the husband can utilise it but he is morally bound to  restore  it  or
its value when he is able to do so. It may be further noted that this  right
is purely personal to the husband and the property so  received  by  him  in
marriage cannot be proceeded against even  in  execution  of  a  decree  for
debt.”

25.   In the said case, the Court ruled:-
“… a pure and simple entrustment of stridhan without creating  any  rights
in the husband excepting putting the articles in  his  possession  does  not
entitle him to use the same  to  the  detriment  of  his  wife  without  her
consent. The husband  has  no  justification  for  not  returning  the  said
articles as and when demanded by the wife nor can he burden her with  losses
of business by using the said property  which  was  never  intended  by  her
while  entrusting  possession  of  stridhan.  On  the  allegations  in   the
complaint, the husband is no more  and  no  less  than  a  pure  and  simple
custodian acting on behalf of his wife  and  if  he  diverts  the  entrusted
property elsewhere or for different  purposes  he  takes  a  clear  risk  of
prosecution under Section 406 of the IPC. On a parity of  reasoning,  it  is
manifest that the husband, being only a custodian of  the  stridhan  of  his
wife, cannot be said to be in joint possession thereof and  thus  acquire  a
joint interest in the property.”

26.   The decision rendered in the said case was referred for a  fresh  look
by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt)  v.  Mahesh
Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her  husband’s  control,  is
not confined to saudayika but extends to other properties  as  well.  Devala
says: “A  woman’s  maintenance  (vritti),  ornaments,  perquisites  (sulka),
gains (labha), are her stridhana. She herself has  the  exclusive  right  to
enjoy it. Her husband has no right to use it except in distress….”  In  N.R.
Raghavachariar’s Hindu Law — Principles and Precedents,  (8th  Edn.)  edited
by Prof. S. Venkataraman, one of the renowned Professors of Hindu  Law  para
468 deals with “Definition of Stridhana”. In para 469 dealing with  “Sources
of acquisition” it is stated that the sources of acquisition of property  in
a woman’s possession  are:  gifts  before  marriage,  wedding  gifts,  gifts
subsequent to marriage etc. Para 470 deals with “Gifts to  a  maiden”.  Para
471 deals with “Wedding gifts” and it  is  stated  therein  that  properties
gifted at the time of  marriage  to  the  bride,  whether  by  relations  or
strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana.  In
para 481 at page 426, it is stated that ornaments presented to the bride  by
her husband or  father  constitute  her  Stridhana  property.  In  para  487
dealing with “powers during coverture” it is stated that  saudayika  meaning
the gift of affectionate kindred, includes both Yautaka  or  gifts  received
at the time of marriage as well as its  negative  Ayautaka.  In  respect  of
such property, whether given by gift or will she is the absolute  owner  and
can deal with it in any way she likes. She may spend, sell or give  it  away
at her own pleasure.

10. It is thus clear that the properties gifted to her before the  marriage,
at the time of marriage or at the time of giving farewell or thereafter  are
her stridhana properties. It is her absolute property  with  all  rights  to
dispose at her own pleasure. He has no control over her stridhana  property.
Husband may use it during the time of his distress but nonetheless he has  a
moral obligation to restore the same or its value to  his  wife.  Therefore,
stridhana property does not become a joint property  of  the  wife  and  the
husband and the husband has  no  title  or  independent  dominion  over  the
property as owner thereof.”

27.   After so stating the Court proceeded to rule that  stridhana  property
is the exclusive property of the  wife  on  proof  that  she  entrusted  the
property or dominion over the stridhana  property  to  her  husband  or  any
other member of the family, there  is  no  need  to  establish  any  further
special agreement to establish that the property was given  to  the  husband
or other member of the family.  Further,  the  Court  observed  that  it  is
always a question of fact in each case as to how the  property  came  to  be
entrusted to the husband or any other member of the family by the wife  when
she left the matrimonial home or was driven out therefrom.  Thereafter,  the
Court adverted to the concept of entrustment and eventually  concurred  with
the view in the case of Pratibha Rani (supra). It is necessary to note  here
that the question  had  arisen  whether  it  is  a  continuing  offence  and
limitation could begin to run everyday lost its relevance in the said  case,
for the Court on scrutiny came to hold that the complaint preferred  by  the
complainant for the  commission  of  the  criminal  breach  of  trust  under
Section 406 of the Indian Penal Code was within limitation.
28.   Having appreciated the concept of Stridhan, we shall  now  proceed  to
deal with the meaning of “continuing  cause  of  action”.   In  Raja  Bhadur
Singh v. Provident Fund Inspector and Others[12]  the  Court  while  dealing
with the continuous offence opined that the expression “continuing  offence”
is not defined in the Code but that is because the expressions which do  not
have a fixed connotation or a static import are difficult to  define.    The
Court referred to the  earlier  decision  in  State  of  Bihar  v.  Deokaran
Nenshi[13] and reproduced a passage from the same which is to the  following
effect:-
“A continuing offence is one which is  susceptible  of  continuance  and  is
distinguishable from the one which is committed once and for all. It is  one
of those offences which arises out of a failure to obey  or  comply  with  a
rule or its requirement and which involves  a  penalty,  the  liability  for
which continues until the rule or its  requirement  is  obeyed  or  complied
with. On every occasion that such disobedience or non-compliance occurs  and
reoccurs, there is the offence committed. The distinction  between  the  two
kinds of offences is  between  an  act  or  omission  which  constitutes  an
offence once and for all  and  an  act  or  omission  which  continues,  and
therefore, constitutes a fresh offence every time or occasion  on  which  it
continues.  In  the  case  of  a  continuing  offence,  there  is  thus  the
ingredient of continuance of the offence which is absent in the case  of  an
offence which takes place when an act or omission is committed once and  for
all.”

29.    The Court further observed :-
“This passage shows that apart from saying that a continuing offence is  one
which continues and a non-continuing offence is one which is committed  once
and for all, the Court found it difficult to explain as to when  an  offence
can be described as a continuing offence. Seeing that difficulty, the  Court
observed that  a  few  illustrative  cases  would  help  to  bring  out  the
distinction between a continuing offence and a non-continuing  offence.  The
illustrative cases referred to by the Court  are  three  from  England,  two
from Bombay and one from Bihar.”

30.    Thereafter, the Court referred to the  authorities  and  adverted  to
Deokaran Nenshi (supra) and eventually held:-
“The question whether a particular offence  is  a  continuing  offence  must
necessarily depend upon the language  of  the  statute  which  creates  that
offence, the nature of the offence and, above  all,  the  purpose  which  is
intended  to  be  achieved  by  constituting  the  particular  act   as   an
offence…”

31.   Regard being had to the aforesaid statement of law,  we  have  to  see
whether retention of stridhan by the husband or any other family members  is
a continuing offence or not.  There can be no dispute that wife can  file  a
suit for realization of the stridhan but it does not debar her  to  lodge  a
criminal complaint for criminal breach of trust.  We  must  state  that  was
the situation before the 2005 Act came into force.  In  the  2005  Act,  the
definition of “aggrieved person” clearly postulates about the status of  any
woman who has been subjected to domestic violence as defined  under  Section
3 of the said Act.  “Economic abuse” as  it  has  been  defined  in  Section
3(iv) of the said Act has a large canvass.  Section 12, relevant portion  of
which  have  been  reproduced  hereinbefore,  provides  for  procedure   for
obtaining orders of reliefs.  It has been  held  in  Inderjit  Singh  Grewal
(supra) that Section 498 of the Code of Criminal Procedure  applies  to  the
said case under the 2005 Act as envisaged under Sections 28 and  32  of  the
said Act read with Rule 15(6) of  the  Protection  of  Women  from  Domestic
Violence Rules, 2006.   We need not advert to the same  as  we  are  of  the
considered opinion that as long  as  the  status  of  the  aggrieved  person
remains and stridhan remains in the custody of the  husband,  the  wife  can
always put forth her claim  under  Section  12  of  the  2005  Act.  We  are
disposed to think so as the  status  between  the  parties  is  not  severed
because  of  the  decree  of  dissolution  of  marriage.  The   concept   of
“continuing  offence”  gets  attracted  from  the  date  of  deprivation  of
stridhan, for neither the husband nor any other family members can have  any
right over the stridhan and they remain the custodians.  For the purpose  of
the 2005 Act, she can submit an application to the  Protection  Officer  for
one or more of the reliefs under the 2005 Act.  In  the  present  case,  the
wife had submitted the application on 22.05.2010 and the said authority  had
forwarded  the  same  on  01.06.2010.  In  the  application,  the  wife  had
mentioned that the husband had stopped payment of monthly  maintenance  from
January 2010 and, therefore, she had been compelled to file the  application
for stridhan. Regard being had to the said concept of  “continuing  offence”
and the demands made, we are disposed to think that the application was  not
barred by limitation and the courts below as well  as  the  High  Court  had
fallen into a grave error by dismissing  the  application  being  barred  by
limitation.
32.   Consequently, the appeal is allowed and the orders passed by the  High
Court and the courts below are set aside.  The matter  is  remitted  to  the
learned Magistrate to proceed with the application under Section 12  of  the
2005 Act on merits.

………………………..J.
[Dipak Misra]

………………………, J.
[Prafulla C. Pant]
New Delhi
November 20, 2015

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE

CRL.M.C. 83/2012

Date of Decision:20.03.2012

G.Vetrivel Sami @ Swami …… Petitioner Through: Mr.Aman Mehta, Advocate.

Versus

CBI …..Respondent Through: Ms.Sonia Mathur & Mr.Sushil Dubey, Advocates.

CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J.

1. Vide this petition under Section 482 CrPC, the petitioner seeks to modify the bail order dated 03rd June, 2006 of Special Judge, CBI and the order dated 08.12.2011 of ASJ dismissing his application seeking modification of the said bail order dated 03rd June, 2006.

2. The petitioner is facing prosecution in CBI case under Sections 255/258/259/260/420/471/120B IPC. He was granted bail by the then Special Judge on 03rd June, 2006 subject to the following conditions: “(i) That accused shall not leave India without permission of the Court. (ii) That he shall surrender his passport, if any to the CBI. (iii) That he shall not tamper with the evidence. (iv) That he shall not have contact with any of the prosecution witnesses. (v) Further, if the trial is delayed on the account of dilatory tactics adopted by the accused, that itself can be treated as a ground for cancellation of bail”.

3. The petitioner was granted permission to go abroad by the Trial Court for specific periods as many as four times. Every time, the permission was granted by the Court for specific period subject to the petitioner furnishing FDR of Rs. 1 lakh and NOC from both the sureties as also the itinerary and contact numbers of his travel period. On two occasions i.e. 25th February, 2009 and 04th March, 2009, his permission to travel abroad was declined by the Trial Court.

4. The petitioner filed an application for modification of the bail order dated 03rd June, 2006, which came to be dismissed by the ASJ vide the impugned order dated 08th December, 2011. While dismissing the application, the learned ASJ reasoned as under: “I have considered the rival submissions. The allegations against the applicant are serious in nature. There are allegations that he was involved in fake stamp network of accused Abdul Karim Telgi. There are allegations that he was actively involved in the sale of counterfeit stamps. The applicant was granted bail in the year 2006. Since 2006, the applicant has travelled only thrice to CIS countries on 16.10.2010, 14.02.2011 and 08.07.2011. He is not a frequent visitor. The Spl. PP for CBI has submitted that whenever permission is applied by applicant to go abroad, the CBI verifies the fact whether petitioner is actually required to go abroad or not? If the conditions are modified, there will be no check on the petitioner and he can misuse the liberty. In my opinion, the conditions imposed upon the applicant are not unjustified. Ld. ASJ Sh. V.B.Gupta (as his Lordship then was) while granting bail had imposed the conditions keeping in mind the serious nature of offence and role of the accused. In my opinion there are no grounds to modify the same”.

5. The petitioner has assailed the said order dated 08th December, 2011 of ASJ and sought modification of the aforesaid conditions of the bail order dated 03rd June, 2006. It is submitted that the petitioner was earlier engaged in travel agency business and was required to travel abroad and since the permission was declined by the Trial Court on two occasions and he could not travel, he had to ultimately close his said travel and tour business. It is further submitted that the petitioner is now engaged in consultancy of drugs and medicines for CIS countries and his business requires travelling to these countries. It is submitted that the procedure for seeking permission from the Trial Court for going abroad was cumbersome inasmuch as every time, he was to furnish FDR and also obtain NOCs from two sureties which takes considerable time. It is submitted that the petitioner has his permanent residence and business at Delhi and his wife, who is one of his sureties is also employed in a permanent Government service in Delhi for the past 19 years. It is next submitted that the petitioner has already gone abroad four times with the permission of the Trial Court and has never violated or misused the liberty granted to him.

6. Per contra, it was submitted by the learned Standing Counsel for CBI that the petitioner is involved in the offence of counterfeiting the stamps to different countries, which was an offence against the society at large and that, the case being at the trial stage for recording of the prosecution evidence, the blanket permission would impact and delay the trial of the case. It is submitted that the petitioner has only travelled thrice in the last five years and there does not appear to be any need for blanket permission. It was next submitted that seeking of the permission from the Trial Court for the purpose of going abroad, in any way, cannot be said to cause any inconvenience to the petitioner.

7. There is no dispute that the petitioner is facing trial in a serious nonbailable offence and that, the Court while exercising discretion to enlarge the accused on bail could impose such conditions as may be deemed fit and appropriate in the given facts and circumstances. The petitioner at the time of his release on bail on 3rd June, 2006 was engaged in travel and tour business in different countries. The court while exercising its discretion in granting bail imposed the aforesaid conditions. Invariably, the courts do impose some conditions with the objective to ensure not only the fair investigation and trial, but that the accused does not flee from the process of law or tamper with the evidence. It is towards this that in appropriate cases, the accused is also directed to surrender his passport or not to undertake travel abroad without the permission of the court. While imposing any condition at the time of grant of bail, the courts are guided by various factors such as the nature of offence, the status of the accused, his financial condition, his roots in society, his frequency of travelling, his proximity with the witnesses, his contacts here and abroad and propensity to commit offences etc. These are only illustrative and list of such guiding factors cannot be exhaustive. At the same time, the court has to be mindful of the fact that any such condition has to be imposed keeping in view the fundamental right of personal liberty of a person. The conditions which should be imposed must be workable, practical and reasonable and should not be harsh, vindictive and undue infringing personal liberty of a person. The overall object of the imposing such condition has to be kept in mind that is to ensure the submission of the accused to the process of law and not to try to cause any hindrance in the fair trial. It is reiterated that this will all depend upon the wisdom of the judge and the facts and circumstances of each case. There cannot be any straight jacket guideline in this regard.

8. In the given facts and circumstances, when the petitioner has already travelled abroad several times, now the mere fact of the seriousness or the gravity of the offence alone may not be enough to decline permission to travel abroad. In the present case, the accused was permitted to travel abroad four times and every time, he complied with the conditions imposed by the Trial Court. Of course, he was also denied to travel abroad on two occasions as the Trial Judge did not think it appropriate to exercise discretion at that point of time. It is not that the discretion exercised at that time was arbitrary or non-judicious. The time at which such a discretion is sought to be exercised is also an important factor of relevance. It is noticed that every time, when permission was granted to the petitioner to travel abroad, he submitted FDR of Rs. 1 lakh to be kept alive during the travel period and also NOCs from the sureties. One of his surety is none else but his wife, who is a permanent employee of Delhi Government for the last 19 years. Furnishing FDR and obtaining NOCs at every time on the occasion of visit abroad may be reasonable at one point of time, but then, the same can become onerous and harsh at another point of time. In the given set of system, it may also involve mental torture and running around.

9. The petitioner stated having started his consultancy business with CIS countries and so, he would be required to travel abroad frequently. Though, he has travelled abroad only about four times in five years, but, that was presumably because of onerous conditions and the reason of petitioner having stopped his business of travel and tours. In the given facts and circumstances, I am of the view that the petitioner is now entitled to enjoy personal liberty without seeking permission from the court every time under onerous and harsh conditions. In the entire factual matrix, I am inclined to modify the conditions of bail so as to ensure the fair trial and also submission of the petitioner to the process of law. Accordingly, the first and second conditions imposed vide order dated 03rd June, 2006 are modified and substituted as under: (1) The petitioner shall not leave the country without informing the Trial Court a week in advance of his visiting abroad and shall furnish the complete itinerary stating the country/countries, which he intends to visit and the period of his stay as also the addresses where he would be staying and his contact numbers. He shall also inform the Trial Court in writing about his return to India within a week thereof. Further, he shall not travel abroad during the period when the case is listed for evidence and his presence is required, unless already dispensed. (2) While intending to go abroad, he shall furnish a bank guarantee or FDR of Rs. 5 lakhs in the Trial Court, which shall be kept alive till the period he returns and informs the court.

10. Rest of the conditions of the order dated 03rd June, 2006 shall remain unaltered. The liberty is also granted to the respondent/CBI to get this order revoked in the event of the petitioner failing to comply with these modified conditions at any point of time during the trial. Copy of this order be circulated amongst judicial officers of District Judiciary.

11. The petition stands disposed of with the above directions and observations.

Sd/- M.L. MEHTA, J. MARCH 20, 2012

criminal-law.jpg

The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2014 passed by High Court of Judicature at Gujarat cancelling the anticipatory bail which was granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court.

Before coming to the factual narrative of a long drawn event that has taken place in respect of criminal trial pending against the appellant, we would like to state, in capsiculated manner, the circumstances under which the matter has landed up in this Court.

The appellant and respondent No.2 (hereinafter referred to as the ‘prosecutrix’) were neighbours at the relevant time and known to each other. On 29.05.2001, the prosecutrix wrote a complaint to the Assistant Police Commissioner, Crime Branch, Gaekwad Haveli, Ahmedabad City alleging the harassment that was meted out to her by the appellant over a period of time. Allegations of rape, emotional blackmail and threats were levelled against the appellant therein. After two days i.e. on 31.05.2001, her statement was recorded by a Police officer of the concerned Police Station wherein she again levelled the allegations of maltreatment, blackmail etc. However, in this statement of hers, which was recorded by the Investigating Officer (I.O.), allegations of rape were conspiciously missing. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has not made much headway for number of years. In the year 2010, the prosecutrix made an application for addition of charge under Section 376 IPC as well. The Metropolitan Magistrate held that the said application should be taken into consideration only after chief examination of the complainant. The prosecutrix challenged the said order before the Court of City Session Judge at Ahmedabad. The matter was remanded back to the Metropolitan Magistrate with a direction that the application shall be heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 376 IPC was also made out. In view of addition of charge under Section 376 IPC, the Magistrate passed the order on 25.04.2013 for committal of proceedings to the Sessions Court and taking the appellant into custody. However, execution of this order for taking the appellant into custody was stayed till 07.05.2013. During this period, the appellant moved the City Sessions Court No.16 at Ahmedabad for grant of anticipatory bail which was ultimately granted on 18.05.2013. Against this order of grant of anticipatory bail, the prosecutrix filed criminal revision petition which has been allowed by the High Court vide impugned order dated 18.07.2014 cancelling the anticipatory bail granted to the appellant. As pointed out above, it is the justification and legality of this order which is in question before us in the instant appeals.

The following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

Having regard to the facts of this case which have already been highlighted above, we feel that no purpose would be served in compelling the appellant to go behind bars, as an undertrial, by refusing the anticipatory bail in respect of alleged incident which is 17 years old and for which the charge is framed only in the year 2014.

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

                     IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS. 1134-1135 OF 2015
    [arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]


|BHADRESH BIPINBHAI SHETH                   |.....APPELLANT(S)           |
|VERSUS                                     |                            |
|STATE OF GUJARAT & ANOTHER                 |.....RESPONDENT(S)          |


                               J U D G M E N T

A.K. SIKRI, J.

Leave granted.

The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2014 passed by High Court of Judicature at Gujarat cancelling the anticipatory bail which was granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court.

Before coming to the factual narrative of a long drawn event that has taken place in respect of criminal trial pending against the appellant, we would like to state, in capsiculated manner, the circumstances under which the matter has landed up in this Court.

The appellant and respondent No.2 (hereinafter referred to as the ‘prosecutrix’) were neighbours at the relevant time and known to each other. On 29.05.2001, the prosecutrix wrote a complaint to the Assistant Police Commissioner, Crime Branch, Gaekwad Haveli, Ahmedabad City alleging the harassment that was meted out to her by the appellant over a period of time. Allegations of rape, emotional blackmail and threats were levelled against the appellant therein. After two days i.e. on 31.05.2001, her statement was recorded by a Police officer of the concerned Police Station wherein she again levelled the allegations of maltreatment, blackmail etc. However, in this statement of hers, which was recorded by the Investigating Officer (I.O.), allegations of rape were conspiciously missing. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has not made much headway for number of years. In the year 2010, the prosecutrix made an application for addition of charge under Section 376 IPC as well. The Metropolitan Magistrate held that the said application should be taken into consideration only after chief examination of the complainant. The prosecutrix challenged the said order before the Court of City Session Judge at Ahmedabad. The matter was remanded back to the Metropolitan Magistrate with a direction that the application shall be heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 376 IPC was also made out. In view of addition of charge under Section 376 IPC, the Magistrate passed the order on 25.04.2013 for committal of proceedings to the Sessions Court and taking the appellant into custody. However, execution of this order for taking the appellant into custody was stayed till 07.05.2013. During this period, the appellant moved the City Sessions Court No.16 at Ahmedabad for grant of anticipatory bail which was ultimately granted on 18.05.2013. Against this order of grant of anticipatory bail, the prosecutrix filed criminal revision petition which has been allowed by the High Court vide impugned order dated 18.07.2014 cancelling the anticipatory bail granted to the appellant. As pointed out above, it is the justification and legality of this order which is in question before us in the instant appeals.

The aforesaid brief resume depicts that the charge was framed against the appellant initially in the year 2001 only under Section 506(2) of IPC. Insofar as charge under Section 376 of IPC is concerned, it is added only in the year 2014. Further, the original charge was framed underSection 506(2) IPC on the basis of the statement recorded on 31.05.2001 which was treated as FIR and which did not contain the allegation of rape. If one has to go by these facts, coupled with the fact that allegation of rape is of the year 1997-98, one may not find fault with the order of the Additional Session Judge granting anticipatory bail. However, the impugned order passed by the High Court whereby the anticipatory bail order of the Additional Session Judge is cancelled, does not take the matter in such a simplistic manner and, therefore, a detailed discussion on the issue has become imperative.

The High Court took note of the circumstances which led to the addition of charge under Section 376 IPC at a belated stage. Thus, it would be necessary to take stock of those detailed events and thereafter decide as to whether the order of the High Court is sustainable or not. These facts are recapitulated with elaboration which is absolutely necessary for our purposes, as under:

As mentioned above, before registration of the FIR on 31.05.2001 on the basis of the statement, the prosecutrix had filed a complaint on 29.05.2001 before the Assistant Commissioner of Police, Crime Branch. In this complaint, she stated that she is a housewife and had been residing at 1, Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for 1½ years. She further mentioned that prior to shifting to this place, she was residing with her in-laws at Sanand for 10 years. She was married, with three children, and her husband was a Jeweller. She alleged in the complaint that about 2½-3 years prior thereto, she had gone to C.N. Vidhyalaya where her daugher Devel was studying. To return home, she was to catch a Bus. When she was standing at the Bus Stand, the appellant, who was her neighbour, passed through that place in his car and on seeing the prosecutrix, he asked her to sit in the car as he was also going home. Though, she initially refused but thereafter she sat in the car being unaware of his malafide intentions. Thereafter, he took the car to some uninhabited place near Telav Village, beat her and forcefully raped her. He also threatened her not to narrate the above incident to anybody. Being scared of these threats, she did not tell the incident to anybody. Taking benefit of the circumstances, after one month he repeated the act of rape by giving the threat that if the prosecutrix did not agree, he would tell her husband and others. He took her to Hotel Ellis Town and raped her against her wishes. After that, he threatened her of dire consequences saying that he had taken her photographs. This way he continued to keep relations with the prosecutrix. This complaint further states that she shifted to Ahmedabad but even after coming to Ahmedabad, he started sending letters with the threat to defame her. At that stage, she told her husband and in-laws. She went to Jyoti Sangh, a NGO and encouraged by their support, she lodged the complaint of continuous harassment on the part of the appellant.

On 31.05.2001, her statement was recorded in the Police Station by the IO in which the allegations of misbehaviour by the appellant are contained and the entire statement reads as under:

“The plaintiff Manishaben dictates that though the complaint is lodged against the defendant Bhadresh, he is not impoved till today. Our condition is becoming worst day by day. In these two days, Bhadresh is making horrible face reading while our access and is doing abusive and filthy behaviour. Yesterday, during the night hours at about 8.15 hours, mother of Bhadresh was speaking in a very loud tone in a way that I can hear the same as they are residing in front of us that we will pay maintenance and Bhadresh himself was speaking like this and telling me to live as his KEPT is also speaking like this. He is laughing in a satire manner in front of my house and he is also behaving with my husband in a abusive manner which could not be borne or disclosed. At this time, when we left from Sanand to come to Ahmedabad, workman of Bhadresh was chasing us and was behind us for about 3 to 4 km and I do not know if any other associates were of him or not going ahead, but his associates are remaining present surrounding me in a manner that he was keeping our watch chasing us even though I myself or my husband were not speaking anything. Now, I am worried about my daughter who is growing and becoming young because Bhadresh is also looking to her with bad intention. His intention appears to be mal.

I have dictated the above statement in full sound state of mind and without any undue pressure.

Before me                   Sd/- Manish K Mehta
Vandana Patva               Date: 31.05.2001
31.05.2001”


During preliminary inquiries, the Police recorded the statements of counsellors of Jyoti Sangh who confirmed that the prosecutrix had made the statement to them regarding alleged rape by the appellant. Be that as it may, the FIR was registered only under Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II. 3009/2001 and on that basis, charge was framed only under the aforesaid Section on 25.06.2001. Further for one reason or the other, the prosecution case even under the said charge did not make any substantial progress.

On 07.12.2010, an application was moved by the prosecutrix for amending the charge by including the offence under Section 376 IPC as well on the basis of complaint dated 29.05.2001 and treating the same as FIR. Initially, the Metropolitan Magistrate did not agree with this request and passed an order to the effect that till the examination-in-chief of the prosecutrix was recorded, it was not justifiable to amend/alter the charge. However, in the revision petition filed against that order, the Sessions Court remanded the case for fresh consideration. After remand, the order dated 31.03.2012 was passed by the Metropolitan Magistrate directing further investigation underSection 173(8) of the Code implying thereby that the necessity of framing of such charge would depend upon the investigation carried out by the Police. Without stating the details, it suffices to mention that the matter was taken by all the parties to the Sessions Court and then to the High Court. Thereafter, the prosecutrix even came up to this Court by way of SLP (Crl.) No.636/2013 against the order dated 23.10.2012 passed by the High Court which had upheld the order of the Magistrate who had already ordered further investigation. Said SLP (Crl.) No.636/2013 was disposed of on 04.02.2013 taking note of the fact that though the Metropolitan Magistrate had ordered further inquiry by the Police on 31.03.2012 with direction to submit the report within four weeks, no such report had been submitted till that date. On that basis, following order was passed: “We are informed that till today the police has not submitted the final report pursuant to the order passed by the Magistrate. If that is so, we are both surprised and pain at the inaction of the police and we direct the Investigating Officer of Criminal Case No. 51 of 2011, pending before the Metropolitan Magistrate, as directed by the Magistrate, and submit the final report within four weeks from the date of receipt/production of a copy of this order before him.

In view of the above direction, the petitioner does not wish to press this special leave petition any longer. It is dismissed as not pressed.” Thereafter, the Police completed the investigation and submitted the report. The Police filed the chargesheet adding Section 376 of the IPC against the appellant and on that basis, an order was passed by the Additional Chief Metropolitan Magistrate on 25.04.2013 thereby committing the case to the Sessions Court and further directing that the appellant be taken into judicial custody, cancelling the bail bond. It is in these circumstances the appellant moved an application for grant of anticipatory bail to the said Sessions Court which was granted on 18.05.2013. As already noted above, the order granting bail to the appellant/accused has been cancelled by the High Court.

Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel appearing for the appellant took us through the material on record on the basis of which it was sought to be argued that there was acquaintance between the appellant and the prosecutrix and the circumstances indicate that the physical relationship, if any, was consensual. It was also submitted that in her statement recorded before the IO on 31.05.2001, there was no allegation of rape; even when the charge was framed under Section 506(2) IPC the prosecutrix did not object to the framing of the said charge simplicitor or insist upon addition of charge under Section 376 of IPC as well; after a gap of more than 9 years from the framing of charge, application was moved for this purpose; in the fresh chargesheet filed by the IO, the IO clearly observed that no other circumstantial evidence could be collected regarding the rape as alleged by the complainant except her statement. It was also submitted that in the complaint made to Jyoti Sangh, NGO, at the end of the complaint which was given by the prosecutrix, there was a noting that no action be taken on the said complaint as the parties were trying to arrive at amicable settlement. The noting reads as under:

“This case file be kept pending and whenever we want, only then, you do contest this case again and it is the wish of both of them, this case is kept pending.

Before me              Sd/- Manisha K. Mehta
Vandana Patva               29.03.2001
29.03.2001.”

It was also pointed out that between 2001 and 2010, the prosecutrix did not appear to give her statement. However, the statement of one Vandana Patva, counsel in the said NGO was recorded. Mr. Dave referred to the cross-examination of the said witness wherein this witness had admitted that in the statement dated 31.05.2001 recorded by the Police, no fact regarding rape was stated. It was also not mentioned as to at which place and at what time, incident of rape had taken place. The learned senior counsel, thus, submitted that in these circumstances the learned Additional Session Judge rightly granted anticipatory bail. The reasons adopted by the High Court in cancelling the bail were commented upon by the learned counsel as not based on record, particularly, the observations of the High Court that the prosecutrix had to run a marathon for getting her complaint registered as a FIR and more particularly for addition of charge underSection 376 of IPC. They further submitted that the High Court wrongly recorded that the Sessions Court had failed to assign proper reasons for grant of anticipatory bail. It was pointed out that the move on the part of the appellant in filing criminal cases against the husband of the prosecutrix, in which the prosecutrix husband was acquitted, is treated by the High Court as tampering with the evidence by disturbing the witnesses and on that basis, it is observed by the High Court that the appellant was not entitled to the benefit of anticipatory bail. Submission in this behalf was that even if the complaint or cases lodged by the appellant against the husband of the prosecutrix are presumed to be false, they had nothing to do with the instant case and, therefore, such acts on the part of the appellant could never be treated as tampering with the evidence.

The prosecutrix appeared in person and argued her case. She extensively took us through the counter affidavit filed by her in opposition to the present proceedings on the basis of which she hammered the following aspects:

(a) The prosecutrix was harrased by the appellant. First act of sexual intercourse was against her wishes and was clearly a rape. After committing this rape, the appellant threatened her and started blackmailing her. On that basis, he took undue advantage of the hapless condition of the prosecutrix in which she was placed and committed subsequent acts of intercourse against her wishes which were nothing but commission of offences under Section 376 of IPC.

(b) Various letters were written by the appellant not only to the prosecutrix but to her other family members as well, which showed his continued harassment to the prosecutrix and her family members.

(c) The appellant was even having an evil eye on the prosecutrix’s daughter who was of growing age and wanted to blackmail the prosecutrix in this behalf as well.

(d) In order to harass the prosecutrix, the appellant even foisted false cases on the husband of the prosecutrix in order to pressurize the prosecutrix to withdraw the case in question.

(e) She also submitted that not only in the complaint made to Jyoti Sangh on 19.03.2001, she had levelled allegations of rape, but such allegations were also made in her complaint to the ACP on 29.05.2001. According to her, in fact, the statement which was recorded on 31.05.2001 by the IO was not correctly recorded who intentionally omitted her statement concerning her rape by the appellant, though specifically stated. It is because of this reason that she had to file the application in the trial court for inclusion of charge under Section 376IPC with the prayer that complaint dated 29.05.2001 before the ACP should be treated as the FIR and not the statement dated 31.05.2001 recorded by the IO.

(f) She also submitted that she had to come up to this Court to have the charge for offence underSection 376 of IPC framed against the appellant.

Ms. Hemantika Wahi, learned counsel appearing for the State, supported the plea of the prosecutrix. Her submission was that once the charge under Section 376 IPC has been added which was a serious charge and the offence being non-bailable, the proper course of action was to direct the appellant to surrender before the trial court and apply for regular bail. Her submission was that having regard to the seriousness of this charge, it was not a case of anticipatory bail.

We have given our thoughtful and serious consideration to the aforesaid submissions on the charges, particularly, keeping in mind that there is a charge of rape against the appellant and the case projected by the prosecutrix is that as a helpless and weak soul, she has been immensely harrassed, physically abused and mentally tortured by the appellant.

In the first place, it is necessary to remind ourselves that in the present proceedings, this Court is concerned not about the feasibility of framing of the charge under Section 376 IPC or merit thereof but to the grant of anticipatory bail to the appellant. Therefore, the arguments of the prosecutrix that such a charge is rightly framed and the submissions on behalf of the appellant attempting to find the loopholes and the weakness in the prosecution case, would not be of much relevance to the issue involved. At this stage, it cannot be said as to whether there was any physical relationship between the appellant and the prosecutrix and, if so, whether it was consensual and, therefore, no charge of rape was made out. The fact remains that a charge of rape has been framed. It would ultimately be for the trial court to arrive at the findings as to whether such a charge stands proved or not, on the basis of evidence that would be produced by the prosecution in support of this charge. With these preliminary remarks, we advert to the core issue, namely, whether in the circumstances of this case, appellant was entitled to anticipatory bail or not and whether the High Court was justified in cancelling the anticipatory bail.

For this purpose, we would first highlight the admitted position which runs as follows:

The allegations of rape go back to the years 1997-1998. No doubt, in the statement dated 19.03.2001 given to NGO Jyoti Sangh by the prosecutrix, she had levelled the allegations of rape. Equally, no doubt, she had repeated these allegations in her complaint to ACP on 29.05.2001 as well. However, for some curious reasons, the allegations of rape did not find mention in her statement recorded by the IO on 31.05.2001 on the basis of which FIR was registered. This possibility cannot be ruled out that the IO did not record the statement correctly and intentionally omitted to mention about the allegations of rape. Whether this, in fact, happened would be tested during trial. However, the fact remains that when the FIR was registered on the basis of statement recorded on 31.05.2001 and the chargesheet was filed making out a prima facie case only under Section 506(2) of IPC, the prosecutrix did not say anything at that time. There was no protest even when charge was framed by the concerned Magistrate only under Section 506(2) IPC. The objection in this regard was raised for the first time in the year 2008 i.e. almost 7 years after the framing of the charge and application was filed in the year 2010 for including the charge underSection 376 IPC as well on the ground that her complaint to the ACP given on 29.05.2001 be treated as FIR. The prosecutrix may have valid reasons for this delay. However, it is not for us to go into the same at this stage inasmuch as that is again a matter of trial and it would be for the Sessions Court to ultimately adjudge as to whether such delay was suitably explained and/or has any bearing on the merits of the charge. It is reiterated at the cost of repetition that we have to simply decide the question of feasibility of grant of anticipatory bail.

In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed underSection 376 IPC in the year 2001, and even the prosecutrix did not take any steps for almost 9 years and the charge under Section 376 IPC is added only in the year 2014, we see no reason why the appellant should not be given the benefit of anticipatory bail. Merely because the charge under Section 376 IPC, which is a serious charge, is now added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long period of time and inaction of the prosecutrix is also a contributory factor. The High Court has remarked that the complainant had to run a marathon for getting her complaint registered as an FIR and more particularly for addition of charge under Section 376 IPC. In view of what we have mentioned above, these observations are not correct. Further, the High Court has also wrongly mentioned that the Sessions Court has not assigned proper reasons for grant of anticipatory bail. In fact, the reasons which have persuaded us and recorded above, are precisely the reasons given by the Sessions Court itself while granting anticipatory bail to the appellant. The High Court has also wrongly observed that it is the appellant who was able to drag the matter for a decade before the complaint was registered under proper Sections. The record of the case does not support this observation of the High Court. As far as the discussion in the impugned order commenting upon the conduct of the appellant in filing false complaints and cases against the husband of the prosecutrix is concerned, we find that the High Court has made contradictory remarks on this aspect. At one place, such a move on the part of the appellant is condemned as amounting to disturbing the witness and is treated as tampering with evidence. However, at another place, the High Court itself remarked that the complainant or the prosecutrix cannot get the anticipatory bail cancelled on this basis and the ground of misusing the order of bail after its grant is not made out. As per the High Court, the order of grant of bail by the Session Court itself was improper and that is the basis for cancelling the order passed by the Session Court.

Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab[1]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined inSection 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the ‘touch’ or confinement contemplated bySection 46 of the Code. The essence of this provision is brought out in the following manner: “26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict. The Court stresses that any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. After clarifying this position, the Court discussed the inferences of anticipatory bail in the following manner:

“31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which, though, was a case under the old Section 498 which corresponds to the presentSection 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” It is pertinent to note that while interpreting the expression “may, if it thinks fit” occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”. The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.

Another case to which we would like to refer is the judgment of a Division Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others[2]. This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh’s case. In the very first para, the Court highlighted the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not, as is clear from the following observations:

“1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual’s personal liberty and the society’s interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.” The principles which can be culled out, for the purposes of the instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned inSection 437 CrPC. The plentitude of Section 438must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.

(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

Having regard to the facts of this case which have already been highlighted above, we feel that no purpose would be served in compelling the appellant to go behind bars, as an undertrial, by refusing the anticipatory bail in respect of alleged incident which is 17 years old and for which the charge is framed only in the year 2014. The investigation is complete and there is no allegation that the appellant may flee the course of justice. The FIR was registered and the trial commenced in the year 2001; albeit with the charge framed under Section 506(2) IPC, and during all these periods, the appellant has participated in the proceedings. There is no allegation that during this period he had tried to influence the witnesses. In the aforesaid circumstances, even when there is a serious charge levelled against the appellant, that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view other factors enumerated above.

The prosecutrix has moved an application in these proceedings for perusing new evidence on the basis of which she claims that the appellant has committed breach of conditions of anticipatory bail and regular bail. It is not necessary for us to go into the allegations made in this application. She would be at liberty to make such an application before the trial court for cancellation of bail. We may clarify that we have not gone through the merits of this application, and as and when such an application is made, the trial court would be free to examine the same and pass the order as the trial court deems fit in accordance with law.

Before we part, in order to balance the equities, we are of the view that the trial in this case may be expeditiously conducted and the trial court should endeavour to complete the same within one year.

As a result, we set aside the impugned judgment and restore the order dated 18.05.2013 of the learned Additional Sessions Judge granting anticipatory bail to the appellant on the conditions mentioned in the said order. Appeals are allowed in the aforesaid terms.

………………………………………J.

(A.K. SIKRI) ………………………………………J.

(ROHINTON FALI NARIMAN) NEW DELHI;

SEPTEMBER 01, 2015.

The complainant appeared before the Magistrate in support of his complaint and examined himself. Two other witnesses were also examined on his behalf. Certain documents were also placed before the Magistrate.

The Magistrate vide order dated June 2, 2001 found that sufficient grounds existed to proceed against respondent No. 2 to be summoned to stand trial under Sections 420, 406 and 161 IPC.

The respondent No. 2 challenged the summoning order in Criminal Revision before the Sessions Judge, Gurgaon which was finally heard and disposed of by the Additional Sessions Judge, Gurgaon on February 1, 2002. The Additional Sessions Judge, inter alia, held that in the absence of sanction by the competent authority, the summoning order could not have been issued. The Additional Sessions Judge, accordingly, vide order dated February 1, 2002 set aside the summoning order.

. As noted above, the complainant challenged the order of the Additional Sessions Judge before the High Court but was not successful there.

 The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (one) whether Criminal Revision Petition against the order of summoning is maintainable, and (two) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is required.

 In view of the above legal position, the Additional Sessions Judge and the High Court were not right in holding that for prosecuting the respondent No. 2 for the offences for which thesummoning order has been issued, the sanction of the competent authority under Section 197 Cr.P.C. is required. The view of the Additional Sessions Judge and the High Court is bad in law being contrary to the law laid down by this Court in Prakash Singh Badal case (supra). The second question is answered in the negative and in favour of the appellant.

  As a result of the above discussion, the Appeal is allowed. The order dated May 17, 2007 of the Punjab and Haryana High Court and theorder dated February 1, 2002 of the Additional Sessions Judge, Gurgaon are set aside. The order dated June 2, 2001 passed by the Judicial Magistrate, First Class, Gurgaon in the criminal complaint filed by the present appellant is restored. Trial court shall now proceed against the respondent No. 2 as per the summoning order.

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

                  IN THE SUPREME COURT OF INDIA

                  CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO.  464      OF 2012
       (arising out of S.L.P. (Crl) No). 6908 of 2008)

OM KR. DHANKAR                               Appellant (s)

                             VERSUS

STATE  OF HARYANA & ANR.                     Respondent(s)

                      J  U  D  G  M  E  N  T

R.M. LODHA, J.

Leave granted.

2. The complainant is in appeal, by special leave, aggrieved by the order dated May 17, 2007 of the High Court of Punjab and Haryana whereby the single Judge of that Court dismissed the Criminal Revision Petition filed by the appellant and affirmed the order dated February 1, 2002 passed by the Additional Sessions Judge, Gurgaon. The Additional Sessions Judge by his order allowed the Criminal Revision filed by the present respondent No. 2 and quashed the order dated June 2, 2001 passed by the Judicial Magistrate, First Class, Gurgaon, summoning him to face trial under Sections 420, 406 and 161 of the Indian Penal Code (IPC).

3. The appellant (hereinafter referred to as ‘the complainant’) filed a criminal complaint against the respondent No. 2 in the court of duty Magistrate, Gurgaon. In his complaint, the complainant stated that he was a transporter and operating buses on the contract basis in the name of M/s Chaudhary Bus Service. On May 1, 2000, his two buses bearing registration Nos. DL-1P-7077 and DL-1PA-3927 were impounded. On that date, the third bus bearing registration No. DL-1PA-4007 belonging to the complainant was also impounded. The respondent No. 2 at the relevant time was working as Deputy Excise and Taxation Commissioner, Gurgaon. The complainant visited his office and enquired about the impounding of his three buses. He was told that he (complainant) had not paid the passenger taxes in respect of these three buses. The respondent No. 2 told the complainant that Rs. 2 Lakhs were due towards the passenger taxes in relation to these three buses and asked the complainant to deposit that amount at his residence if he wanted the buses to be released. The complainant arranged Rs. 1,50,000/- and paid this amount to respondent No. 2 at his residence at about 1.45 p.m. on May 1, 2000. The respondent No. 2, according to the complainant, promised him to issue receipts from the office. The complainant visited the office of the accused at about 4 p.m., but there was no one in the office except one office clerk who told him that two buses have been released and the third bus would be released on payment of Rs. 50,000/- at the residence of the respondent No. 2. The complainant paid Rs. 50,000/- at about 9.30 p.m. at the residence of the respondent No. 2 and the third bus was also released. In the complaint, the complainant alleged that the respondent No. 2 had cheated him and the public money has been embezzled and the accused also received illegal gratification; the intention of the respondent No. 2 was malafide while issuing directions to Inspector posted at different tax collection points not to accept passengers tax at tax collection points. It was thus alleged that the accused had committed offences under Sections 420, 409 and 427 IPC and Section 13(1)(d) of the Prevention of Corruption Act, 1988.

4. The complainant appeared before the Magistrate in support of his complaint and examined himself. Two other witnesses were also examined on his behalf. Certain documents were also placed before the Magistrate.

5. The Magistrate vide order dated June 2, 2001 found that sufficient grounds existed to proceed against respondent No. 2 to be summoned to stand trial under Sections 420, 406 and 161 IPC.

6. The respondent No. 2 challenged the summoning order in Criminal Revision before the Sessions Judge, Gurgaon which was finally heard and disposed of by the Additional Sessions Judge, Gurgaon on February 1, 2002. The Additional Sessions Judge, inter alia, held that in the absence of sanction by the competent authority, the summoning order could not have been issued. The Additional Sessions Judge, accordingly, vide order dated February 1, 2002 set aside the summoning order.

7. As noted above, the complainant challenged the order of the Additional Sessions Judge before the High Court but was not successful there.

8. The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (one) whether Criminal Revision Petition against the order of summoning is maintainable, and (two) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is required.

9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in the case of Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another1. In Rajendra Kumar Sitaram Pande case (supra) this Court considered earlier decisions of this Court in the cases of Madhu Limaye Vs. State of Maharashtra2, V.C. Shukla Vs. State3, Amar Nath Vs. State of Haryana4 and K.M. Mathew Vs. State of Kerala5 and it was held as under :-

“6… This being the position of law, it would not 1 (1999) 3 SCC 134 2 (1977) 4 SCC 551 3 1980 Supp. SCC 92 4 (1977) 4 SCC 137 5 (1992) 1 SCC 217 be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction underSection 397 could be exercised against the same….”

10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction underSection 397 Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly.

11. The second question, is whether sanction under Section 197 Cr.P.C. is mandatorily required for the prosecution of respondent No. 2 for the offences under Sections 420, 406 and 161 IPC as he happened to be Deputy Excise and Taxation Commissioner at the time of incident.

12. Mr. Anis Ahmed Khan, learned counsel for the respondent No. 2, heavily relied upon the decision of this Court in Rakesh Kumar Mishra Vs. State of Bihar6 while supporting the view of the High Court.

13. In our view, the controversy with regard to the second question is concluded by the decision of this Court in Prakash Singh Badal and Another Vs. State of Punjab and Others7. Rakesh Kumar Mishra case (supra) was 6 (2006) 1 SCC 557 7 (2007) 1 SCC 1 considered in Prakash Singh Badal case (supra) in para 49 of the report. This Court thus held that the offence of cheating underSection 420 or for that matter offences relateable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. This Court stated in paragraphs 49 and 50 of the report thus:

“49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to the offences punishable underSections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

50. The offence of cheating under Section 420 or for that matter offences relatable toSections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.”

14. In view of the above legal position, the Additional Sessions Judge and the High Court were not right in holding that for prosecuting the respondent No. 2 for the offences for which the summoning order has been issued, the sanction of the competent authority under Section 197 Cr.P.C. is required. The view of the Additional Sessions Judge and the High Court is bad in law being contrary to the law laid down by this Court in Prakash Singh Badal case (supra). The second question is answered in the negative and in favour of the appellant.

15. As a result of the above discussion, the Appeal is allowed. The order dated May 17, 2007 of the Punjab and Haryana High Court and the order dated February 1, 2002 of the Additional Sessions Judge, Gurgaon are set aside. The order dated June 2, 2001 passed by the Judicial Magistrate, First Class, Gurgaon in the criminal complaint filed by the present appellant is restored. Trial court shall now proceed against the respondent No. 2 as per the summoning order.

……………………J.

(R.M. LODHA) NEW DELHI;

"The petitioner before this Court is facing trial under Section 498A and 406 of IPC pursuant to a complaint made by his wife, which was registered vide FIR No.1010/2006 at Police Station Dwarka, New Delhi. The petitioner was issued a passport bearing No.G-4905048 on 26th September, 2007 and, according to him, while applying for the passport he had filed an affidavit disclosing the registration of the aforesaid FIR against him. In the above referred case registered against the petitioner, anticipatory bail was granted to him, vide order dated 19 th November, 2009 and regular bail, vide order dated 8th June, 2010. The bail order, according to the petitioner, did not require him not to leave the country at all or not to leave country without prior permission of the Court. It ` appears that a complaint was made against the petitioner by his father-in- law, seeking cancellation of his passport on the ground that the passport had been obtained by the petitioner by concealing the pendency of the criminal case against him. Vide communication dated 27th October, 2010, the Regional Passport Officer directed the petitioner to surrender the aforesaid passport. The petitioner made a representation against the aforesaid communication dated 27th October, 2010 and informed that before issue of the passport, he had disclosed the pendency of the criminal case against him. Vide communication dated 1 st March, 2011, he was again asked to surrender his passport. He again represented to the Regional Passport Officer. Vide communications dated 14th March, 2011 and 25th March, 2011, he was yet again directed to surrender his passport. Ultimately, the passport was submitted by the petitioner to the Regional Passport Officer on 4th April, 2011. Since the petitioner was required by his employer to travel to USA, he sought release of the passport. Simultaneously, he also filed an application under RTI Act, seeking information with respect to the order passed on his application for release of the passport. On receipt of the documents under RTI Act, the petitioner discovered that no order has been passed on the aforesaid application. He also preferred an appeal to the Chief Passport Officer. However, the appeal filed by the petitioner has been dismissed, vide order dated 16 th May, 2013. Being aggrieved from dismissal of his appeal, the petitioner is before this Court."

A perusal of the appellate order would show that the Chief Passport Officer was of the view that since a criminal case under Section ` 498A/406/34 IPC is pending against the petitioner and he is out on bail, the passport can be restored after he is acquitted of the said charge. It appears from a perusal of the documents filed by the petitioner that the passport of the petitioner was impounded under Section 10(3) of the Passport Act, which, to the extent it is relevant, provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document, if the proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.


------------------------------------------------------------------------------------------------------

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on   : 31.07.2013
 Judgment pronounced on : 05.08.2013

+      W.P.(C) 4835/2013

       MANISH KUMAR MITTAL                           ...... Petitioner

                          Through: Petitioner-in-person.

                          versus

       CHIEF PASSPORT OFFICER & ANR                 ..... Respondents

                          Through: Mr Neeraj Chaudhary, Adv. for
                          respondents 1 and 2

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

The petitioner before this Court is facing trial under Section 498A and 406 of IPC pursuant to a complaint made by his wife, which was registered vide FIR No.1010/2006 at Police Station Dwarka, New Delhi. The petitioner was issued a passport bearing No.G-4905048 on 26th September, 2007 and, according to him, while applying for the passport he had filed an affidavit disclosing the registration of the aforesaid FIR against him. In the above referred case registered against the petitioner, anticipatory bail was granted to him, vide order dated 19 th November, 2009 and regular bail, vide order dated 8th June, 2010. The bail order, according to the petitioner, did not require him not to leave the country at all or not to leave country without prior permission of the Court. It ` appears that a complaint was made against the petitioner by his father-in- law, seeking cancellation of his passport on the ground that the passport had been obtained by the petitioner by concealing the pendency of the criminal case against him. Vide communication dated 27th October, 2010, the Regional Passport Officer directed the petitioner to surrender the aforesaid passport. The petitioner made a representation against the aforesaid communication dated 27th October, 2010 and informed that before issue of the passport, he had disclosed the pendency of the criminal case against him. Vide communication dated 1 st March, 2011, he was again asked to surrender his passport. He again represented to the Regional Passport Officer. Vide communications dated 14th March, 2011 and 25th March, 2011, he was yet again directed to surrender his passport. Ultimately, the passport was submitted by the petitioner to the Regional Passport Officer on 4th April, 2011. Since the petitioner was required by his employer to travel to USA, he sought release of the passport. Simultaneously, he also filed an application under RTI Act, seeking information with respect to the order passed on his application for release of the passport. On receipt of the documents under RTI Act, the petitioner discovered that no order has been passed on the aforesaid application. He also preferred an appeal to the Chief Passport Officer. However, the appeal filed by the petitioner has been dismissed, vide order dated 16 th May, 2013. Being aggrieved from dismissal of his appeal, the petitioner is before this Court.

2. A perusal of the appellate order would show that the Chief Passport Officer was of the view that since a criminal case under Section ` 498A/406/34 IPC is pending against the petitioner and he is out on bail, the passport can be restored after he is acquitted of the said charge. It appears from a perusal of the documents filed by the petitioner that the passport of the petitioner was impounded under Section 10(3) of the Passport Act, which, to the extent it is relevant, provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document, if the proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.

3. Sub-section (5) of Section 10 of the Act, to the extent it is relevant, provides that when the passport authority makes an order impounding or revoking a passport or travel documents under Sub-section 3, it shall record, in writing, a brief statement of the reasons for making such an order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy.

4. It appears from the record, including the documents supplied to the petitioner, under RTI Actand the order passed by the Appellate Authority that no speaking order in terms of Sub-section (5) of Section 10 was passed by the Regional Passport Officer while impounding/revoking the passport of the petitioner. In fact, not even a show cause notice was ` given to the petitioner requiring him to explain as to why his passport should not be revoked/or impounded. He was simply asked to surrender his passport without passing a speaking order in terms of Sub-section (5) of Section 10. The order passed by the Regional Passport Officer, therefore was wholly in contravention of the statutory requirement of Sub-section (5) of Section 10.

5. In the celebrated case Smt.Maneka Gandhi v. Union of India and Another AIR 1978 Supreme Court 597, the passport of the petitioner was impounded in the public interest and the Govt. of India declined, `in the interests of the general public’ to furnish the reasons in its decision. The reasons, however, were disclosed in the counter affidavit filed in the Supreme Court. She filed a writ petition challenging the Constitution of validity of Section 10(3)(c) of the Passports Act to the extent it authorized the passport authority impounding a passport in the interests of general public, on the ground that the said provision was violative of Article 14 of the Constitution, since it conferred vague and undefined power on the passport authority and did not provide for an hearing to the holder of the passport before the passport was impounded. It was also challenged on the ground of being violative of Article 21 of the Constitution since it did not prescribe the procedure within the meaning of that Article. It was also submitted by the petitioner before the Supreme Court that if it is held that a procedure has been prescribed in the aforesaid section, that is arbitrary and unreasonable. The Court observed that even if there are no positive words in the statute requiring that the party shall be heard, the principle of audi alteram partem mandates that no one shall be ` condemned unheard being is a part of the rules of natural justice and the said doctrine applies not only to quasi judicial functions but also to the administrative functions, the aim of both being to arrive at a just decision. The following view taken by the Court in the aforesaid judgment is pertinent:-

“62. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in Sub- section (3) of Section 10and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by Sub- section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by Section 11, and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi- judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak’s case. The same ` result must follow in view of the decision in A. K. Kraipak’s case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.”

It was contended by the learned Attorney General that audi alteram partem rule must be held to be excluded in such cases because if notice were to be given to the holder of a passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. Rejecting the contention, the Apex Court, inter alia, held as under:-

“63. ……It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, ` because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in thePassports Act, 1967. If such a provision were held to’ be incorporated in the Passports- Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure ‘established’ by thePassports Act, 1967 for impounding a passport is in conformity with the requirement of Article21 and does not fall foul of that article.”

However, in the case before this Court, even a post-decision of hearing was not given to the petitioner, as a result of which he was denied an opportunity to convince the RPO that despite pendency of a criminal case against him, he was not likely to flee from justice and therefore the order impounding/ revoking his passport should be recalled.

`

6. Though the petitioner did prefer an appeal, that would be of no consequence since in the absence of the reasons for impounding/revoking his passport could not have effectively assailed the order passed by the Regional Passport Officer. In any case, even the said order shows no application of mind by the Appellate Authority to the question as to whether it was really necessary to impound/ revoke the passport of the petitioner.

Even if a criminal case is pending against a person that by itself does not require the Regional Passport Officer to impound/revoke the passport in every case. It is only in appropriate cases and for adequate and cogent reasons that such an order can be passed.

7. For the reasons stated hereinabove, the order passed by the Regional Passport Officer directing the petitioner to surrender his passport as well as the order passed by the Appellate Authority are, hereby, set aside. The respondents are directed to release the passport of the petitioner to him forthwith. This order, however, shall not come in the way of the Regional Passport Officer passing an appropriate order in terms of Section 10 Sub-section (5) of the Passports Act 1967. He may, in his discretion give either pre-decisional or post-decisional hearing to him. Such an order will be passed within eight weeks of receiving a copy of this order. If the Regional Passport Officer decides to revoke/impound the passport of the petitioner, he will have to pass a speaking order in terms of Sub-section (5) of Section 10 and supply a copy of the said order to the petitioner. However, in order to ensure that, in the meanwhile, the petitioner, on getting passport from the Regional Passport Officer, ` does not flee the country and continues to attend the criminal trial pending against him, it is directed that till a fresh order under Section 10 Sub-section (3) of thePassport Act is passed, in terms of this order, he shall not leave the country without prior permission of the Court in which the criminal trial against him is pending. The petition stands disposed of.

V.K.JAIN, J AUGUST 05, 2013

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