Section 10(3)(h) in The Passports Act, 1967
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
——————————————————————————————————————————————————————————————————-
Delhi High Court
Rajiv Tayal vs Union Of India (Uoi) And Ors. on 20 October, 2005
Equivalent citations: AIR 2006 Delhi 81, 124 (2005) DLT 502, 2005 (85) DRJ 146
Author: M Mudgal
Bench: M Mudgal, H Malhotra

JUDGMENT Mukul Mudgal, J.Page 1704

1. Rule DB. With the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition under Articles 226 and 227 of the Constitution of India challenges the Orders dated 23rd August, 2005 and 30th August, 2005 passed by the Vice Consul, Consulate General of India, New York, USA. This order was passed on the directions of the respondent No. 1, namely, the Ministry of External Affairs, New Delhi for impounding the passport of the petitioner. The other major prayer made in the writ petition challenges the Order dated 21st August, 2004 passed by the learned Metropolitan Magistrate in FIR No. 89/2003 under Section 406/498A IPC P.S. Subzi Mandi, Delhi declaring the Page 1705 petitioner as `Proclaimed Offender’. The petitioner inter alia challenges the vires of the Section 10(3)(e) & (h) of Passport Act, 1967 (hereinafter referred to as the `Act’) as well as the validity of Article 14, 19 and 21 of the Constitution of India.

3. The Section 10(3)(e) & (h) of the Act the validity of which is under challenge in this petition reads as follows:-

“10.Variation, impounding and revocation of passports and travel documents.

(e) if 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;

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.”

In the present case it is not in dispute that at present a complaint vide FIR No. 89/2003 under Section 406/498A IPC is pending against the petitioner and the chargesheet has been filed. The said complaint is pending before the Metropolitan Magistrate, Delhi wherein the petitioner has also been declared as `Proclaimed Offender’ by the order dated 21st August, 2004 impugned in this writ petition. It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner.

4. Mr. Phoolka, the learned senior counsel, appearing for the petitioner submits that this action of summoning the petitioner violates the Articles 14, 19 and 21 of the Constitution because the petitioner is a person who is abroad for gainful employment. The effect of the petitioner’s answering the summons would be to disrupt his employment in USA and may militate against the immigrant status sought by him. He submitted that insistence on his presence in the Court of the Metropolitan Magistrate violates his rights under Article 14, 19 and 21. We are unable to appreciate this plea. A person merely by going abroad cannot claim a status superior to that of a citizen of India. Since any citizen accused in India of a similar offence would also have to obey the summons and appear before the Magistrate, mere stationing of the petitioner in the USA cannot give him any rights superior to those of an Indian citizen. Thus there is no violation of Article 14. Even if the restriction which emanates from the effect of the summons by the Magistrate may affect the petitioner’s right to movement under Article 19(1)(d) such restriction certainly falls within Article 19(5) and is a reasonable restriction imposed by a law made by the State. Similarly even if the petitioner’s employment guaranteed by Article 19(1)(9) is affected by the impugned order under the Page 1706 Passport Act, such an order has been passed under the Passport Act which imposes a reasonable restriction on the petitioner’s right under Article 19(6) of the Constitution. Similarly the restrictions complained of in the writ petition emanate from a procedure established by law i.e., Passport Act & the IPC and Cr.P.C., and Article 21 thus cannot be said to be violated. There is thus no merit in the petitioner’s plea as to the invalidity of Section 10(e) & (h) of the Act as being violative of Articles 14, 19 and 21 of the Constitution and the plea of constitutional validity thus stands rejected.

5. In so far as the writ petition on merits is concerned, it seeks to quash the order of 21st August, 2004 passed by the learned Metropolitan Magistrate which reads as follows:-

“Present : I.O., S.I. Prahlad Singh. Heard. Perused. It is stated that there is no extradition treaty with U.S. Till the time the accused is declared P.O., or charge sheet is filed. It is also stated that the address of the accused at America is known to the victim or investigating agency. Whereas the accused has the knowledge of NBWs issued against him and he is in touch with his parents. Correspondence supporting the contention is also on record. Proceedings u/s 82/83 are complete on his last known address. In these circumstances I am satisfied that accused is absconding whereas publication in America is not practical unless the address of the accused is known. Hence I declare accused as P.O., in the matter.”

6. It is not in dispute that the petitioner is aware of this order. The petitioner’s parents’ Crl.M.(M) No. 1592/2003 was disposed of on 21st April, 2003 by the learned Single Judge of this Court when they moved for their anticipatory bail in respect of the aforesaid FIR No. 89/2003. The aforesaid order of 21st April, 2003 reads as follows:-

“Learned counsel for the complainant submits that the complainant’s husband who is in USA, may also be given protection but he should be asked to come to India, at least, once for sorting out the disputes with the complainant. He submits that in this case there is a fair chance that the couple may re-unite and as such efforts are required to be made for exploring the possibility of their re-union.

Learned counsel for the petitioners prays for some time so that the petitioners may contact their son in U.S.A. and ask him to come to India for some time so that the negotiations may start and the controversies are amicably resolved.

Till the next date, in the event of their arrest, the petitioners shall be released on bail upon their executing personal bonds in the sum of Rs. 30,000/- each with one surety each in the like amount to the satisfaction of the Arresting Officer. The petitioners shall, however, join investigation as and when required.

Application on behalf of the husband of the complainant may be moved in the meanwhile, if so desired.”

It is not in dispute that the petitioner is aware of this order though his strenuous plea is that only his parents were aware of the order passed in Crl.M.(M) No. 1592/2003 on 21st April, 2003.

Page 1707

7. The above order also shows that the petitioner’s parents were in touch with the petitioner and it is not possible to believe that the petitioner was not aware of the pending proceedings in the Court of Metropolitan Magistrate. This Court is informed that in spite of the above order the petitioner did not visit India to sort out the dispute. Even this Court made efforts to settle the dispute by suggesting a mutual settlement but the settlement fell through as the petitioner was not willing to accept the settlement suggested by this Court.

8. We have an interesting situation where the petitioner seeks to quash the order dated 21st August, 2004 and yet refuses to join the proceedings pending before the Metropolitan Magistrate largely on the ground that he is now residing in USA and subject him to the criminal process in India would be an unfair burden as is evident from the challenge raised earlier to the constitutional validity of the Passport Act and rejected by this Court. The petitioner also submits that he has not yet been served with the summons. The petitioner’s counsel has further submitted that the investigation in his case ought to be conducted by sending him a questionnaire and he should not be asked to join the investigation in India. The acceptance of such a plea would give a premium to the petitioner/accused who happens to travel abroad and it will thus be open to such an accused/petitioner to misuse the process of law to make a mockery of the Indian judicial system by asking for such a special procedure totally opposed to the principles of the criminal jurisprudence. The petitioner was repeatedly asked by this Court to join the proceedings before the Metropolitan Magistrate when the Court was prepared to provide him suitable protection against his arrest or any other penal consequences in respect of his passport, but the petitioner declined to do so and even today inter alia insists that the summons must be served on him before he is required to answer it. We cannot countenance the conduct of a party who while seeking to quash the order of the learned M.M., nevertheless declines to join proceedings on the hypertechnical plea of the summons not having been served on him notwithstanding the protection offered by this Court.

9. Accordingly we are of the view that in any event the petitioner’s conduct disentitles him for any discretionary relief under Article 226 of the Constitution even if a case for intervention was made out. Consequently the writ petition is dismissed. The order of status quo dated 5th September, 2005 stands vacated.

It is true that this is not the proper stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, this Court cannot throw its arms in the air and express its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. This Court is invested with the tremendous powers thereunder to pass any order in the interest of justice. However, the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but Court’s failing to use the power for advancement of justice can also lead to grave injustice. There is also no allegation of entrustment of any dowry article against the petitioners, therefore, I am of the considered view that no case under Section 498-A/406/34 IPC is made out against them.

Consequently, charge sheet filed against the petitioners is quashed with emanating proceedings thereunder.



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


IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on :9th May, 2013
                                    Judgment delivered on: 22nd August,2013

+ CRL.M.C. No. 1604/2007 & Crl. M.A. No. 5582/2007 (for stay)
POONAM SINGH                                                  ..... Petitioner
                      Through:         Ms.      Malavika     Rajkotia and
                                       Mr.Chetanya Puri, Advocates with
                                       Petitioner in person.
               Versus

STATE & ORS.                                                ..... Respondents
               Through:          SHO Rajender Gautam, P.S. Alipur for
                                 Respondent No.1.
                                 Mr.V.K.Malik, Mr. Rahul Raj Malik and
                                 Mr. Rajeev Chauhan, Advocates.

                                 AND
+ CRL.M.C. No. 2751/2007 & Crl. M.A. No. 9723/07 (for stay)
NARENDER SINGH SALKAN                                         ..... Petitioner
                      Through:         Ms.      Malavika     Rajkotia and
                                       Mr.Chetanya Puri, Advocates with
                                       Petitioner in person.
               Versus

STATE & ORS.                                               ..... Respondents
         Through:                SHO Rajender Gautam, P.S. Alipur for
                                 Respondent No.1.
                                 Mr.V.K.Malik, Mr. Rahul Raj Malik and
                                 Mr. Rajeev Chauhan, Advocates.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT


Crl.M.C. Nos. 1604 & 2751/2007                               Page 1 of 29
 SURESH KAIT, J.

Crl. M.A. Nos. 18903 & 18904/2011 (both for adjournment) in CRL.M.C. Nos. 1604 & 2751 of 2007 Dismissed as infructuous.

Crl. M.A. No. 6584/2012 (for expeditious disposal) in CRL.M.C. No. 2751/2007 Vide the instant application, the applicant/petitioner has sought expeditious disposal of the instant petition.

As the aforementioned petitions are taken up for final disposal, the instant application stands disposed of.

CRL.M.C. Nos. 1604 & 2751 of 2007

1. The present petitions are filed by the father-in-law and sister-in- law of the complainant/respondent No.2 for quashing the charge sheet relating to FIR No. 127/03 under Sections 498-A/406/34 of the Indian Penal Code, 1860 („IPC‟), Police Station Alipur, Delhi.

2. As the facts and issues in both the petitions are same, therefore, this Court has decided to dispose of the aforesaid petitions by this common judgment.

3. Brief facts of the case are that the complainant/respondent No.2 Ms. Reema Singh married with Sh. Sumer Singh Salkan on 24.03.2002 according to Hindu rites and rituals. The said marriage was an arranged marriage and through a Newspaper advertisement. Though it is stated in the petitions that they knew the complainant‟s family as her elder sister was married in Meerut and thus, visited Meerut quite often. The son and brother (bridegroom) of the petitioners was working and residing in Canada and for the purpose of marriage he came to India and stayed only four days after his marriage. Finally, he left for Canada on 28th/29th March, 2002. On the same evening, the complainant/respondent No.2 left with her brother and sister after seeing off her husband from the Airport itself.

4. Admittedly, the complainant/respondent No.2, Smt. Reema Salkan did not accompany her husband as she did not have the requisite spouse visa and at that point of time there was no facility of converting tourist visa into a spouse visa in Canada.

5. The complainant/respondent No.2 was to join her husband after obtaining the passport and completing necessary formalities regarding her spouse visa, pursuant to her husband sponsoring her which was done by the husband from Canada.

6. In the first week of May, 2002, the complainant/respondent No.2 along with her father visited Meerut and spent few hours for the purposes of police verification. They both left after having lunch. Thereafter, the complainant/respondent No.2 visited her-in-laws at Meerut from 25.06.2002 to 14.07.2002 and finally from 08.08.2002 to 10.08.2002. Thus, her total stay with her-in-laws was for a period of around 20 days only after the departure of her husband to Canada, till 10.08.2002.

7. It is stated in the petitions that after the first four days of the marriage, i.e., after 28th/29th March, 2002, the petitioners had no occasion to meet the complainant/respondent No.2 as she continued to be with her parents.

8. It is pertinent to mention here that, subsequently, some differences have cropped-up between the complainant/respondent No.2 and her husband due to which the husband withdrew his request for sponsoring her as his wife from Canadian Embassy on 24.09.2002. They tried to pacify both of them but efforts for conciliation did not yield the desired results as the complainant/respondent No.2 as well as her husband was not prepared to listen to the advice of anyone.

9. The parents being aged were left with no option but to disown their son and daughter-in-law through a Newspaper publication on 25.10.2002 by stating that they had nothing to do with the matrimonial acrimony and did not desire any disturbance in their peaceful life, copy of the same is annexed as Annexure-C. On 20.12.2002, parents-in-law of the complainant/respondent No. 2 sent a legal notice through their lawyer to both of them, i.e., Sumer Singh and the complainant/respondent No.2, their son and daughter-in-law respectively. Copy of the legal notice is annexed as Annexure-D.

10. On 08.01.2003, Reema Salkan, respondent No. 2 sent a reply in response to the said legal notice through her Advocate and first time alleged harassment, cruelty and intimidation by her mother-in-law, obviously to give it colour of a dowry harassment case. Copy of the letter dated 08.01.2003 is annexed as Annexure-E.

11. The in-laws of the complainant/respondent No.2 also sent a reply dated 18.02.2003; same is annexed as Annexure-F. Thereafter, learned counsel for the complainant sent a reply to 06.03.2003 to the aforesaid counter-reply dated 18.02.2003 which is annexed as Annexure-G.

12. As stated in the petitions, till that time there were no allegations against the petitioner Poonam Singh as her name was not even mentioned in the said correspondences. The complainant made a complaint to the Crime Against Women Cell (for short “CAW Cell”) giving a complete different story. The said complaint could not be resolved, therefore, the police registered the FIR as mentioned above on 22.04.2003.

13. It is pertinent to mention the common grounds in both the petitions are that initially the name of the petitioners did not figure in any of the correspondence and their names have been added subsequently. The allegations are not specific on the basis of which the charge sheet has been filed. The same is a figment of the complainant‟s imagination. Even, a perusal of the statement, recorded under Section 161 Cr.P.C. in support of the charge sheet, clearly shows that the names of the petitioners have been introduced only with a view to falsely implicate them. The allegations in the complaint with CAW Cell are completely baseless and have been introduced for the first time only with a motive to harass the petitioners to settle the score with her husband.

14. The complainant/respondent No. 2 is a highly qualified woman with a post graduate degree and Diploma in Journalism with years of experience in Journalism since 1995. Her father is a Professor at Delhi University, mother is a Doctor and brother is an IPS Officer. Considering her educated background and her own qualifications, she would have reported the matter to the police and not suffered the atrocities, if any, in silence, for the whole year. The petitioners had no occasion to interact with the complainant/respondent No. 2 beyond the first four days immediately after the wedding. The complainant left for her parents‟ house on the intervening night of 28th /29th March, 2002 straight from the Airport itself when her husband left for Canada. There had been no physical contact between the petitioners and the complainant/ respondent No.2 which could have been resulted into the incident, as stated in the FIR.

15. Ms. Malvika Rajkotia, learned counsel for the petitioners, has submitted that the present petitions have been filed by the sister-in-law and father-in-law of the complainant/respondent No. 2 in 2007, six years have passed. Both the parties had agreed in the court of Shunali Gupta, Metropolitan Magistrate, Rohini, Delhi, as recorded in its order dated 24.05.2011 that the trial in the matter would not proceed until the present petitions are decided by this Court.

16. She further submitted that the main allegations in the FIR are against the mother-in-law and the husband. Both of them have not filed any petition for quashing of the FIR. Therefore, this Court has to restrict to the nature of the case and allegations made against the petitioners herein.

17. She submitted that in times when Section 498-A IPC is coming under criticism as a subject of misuse, it is important for this Court ought not to look at the FIR in a cursory manner but look at it in the context of the conduct of the parties as is apparent from the undisputed documents. Thus, it is not just the FIR but the surrounding documents to be read to go to the root of the controversy and to see whether the FIR is an afterthought of respondent No.2, only to harass her in-laws and extort huge financial settlement, after all the misuse of this provision is harassment. Thus, she has unnecessarily roped in the father-in-law and the sister-in-law (petitioners herein) when even in the FIR; she herself is unable to make out a cogent case against them except some bald averments.

18. Learned counsel submitted that in the present case some of the documents have to be looked into, which are discussed inter alia.

Vide legal notice dated 20.12.2002, issued by the complainant‟s parents-in-law, they disowned their son and daughter-in-law, i.e., the husband of the complainant and complainant herself. This document was necessitated when the complainant threatened her in-laws that they would be in serious trouble with the police if their son did not re- sponsor her immigration to Canada. Para 5 of this letter mentioned that a sum of Rs.1,00,000/- which was gifted in the engagementceremony was deposited in the personal Bank account of the complainant/respondent No. 2 in Punjab National Bank, Meerut by her father-in-law (petitioner in Crl. M.C. No.2751/2007) with the knowledge and consent of the complainant. Para 14 of this letter mentioned that the jewellery of the complainant/respondent No. 2 had been returned to her by her mother-in-law and also that the complainant had in fact visited the Bank with her mother-in-law, who operated the Bank locker.

19. The complainant/respondent No.2 replied through her counsel to this notice by her letter dated 08.01.2003, wherein contents of para 5 mentioning deposit of Rs.1,00,000/-, the sagan money is not disputed. With regard to the return of jewellery, the complainant not only stated but reaffirmed that her mother in-law only handed over the jewellery which was gifted to the complainant by her parents and not handed over her stree dhan, i.e., the jewellery given to her by her parents-in- law.

20. Learned counsel further submitted that the complainant/respondent No.2 nowhere alleged about beating by her father-in-law or sister-in-law or even the mother-in-law in her letter dated 08.01.2003. In fact, the name of the sister-in-law (petitioner in Crl. M.C. No.1604/2007), who was living in Mehrauli area and looking after her small school going children has not even been mentioned by the complainant anywhere in these letters. Nor she has mentioned in her letter dated 26.01.2003, which is a part of the FIR.

21. Learned counsel submitted that four pages hand written letter was sent by the complainant/respondent No.2 by registered post, which was written only five weeks before she filed a false complaint with the police on 06.03.2003. In the said letter, the complainant/respondent No. 2 has admitted that till 10.08.2002, all was well. She was receiving sweet greeting cards from her husband. Long after 10.08.2002, she was still in touch with her father-in-law. In the said letter, no complaint whatsoever was made against her husband or against any of her in-laws. In fact, name of her sister-in-law (one of the petitioners herein) was not even mentioned therein. This letter absolves her husband and her in-laws of all false allegations made by her before 11.08.2002, i.e., of her hair being pulled, beaten repeatedly, demand for lancer car, Rs.20 lakhs, Rs.10,000/- gold set and gold chain.

22. In her reply dated 08.01.2003, in paras 6 to 9, the complainant/respondent No. 2 has submitted that:-

“the contents of para 6, 7, 8 & 9 need to reply except to say that my clients visited her parents to complete her paper work for immigration to Canada and also to avoid bothering her father in law to accompany her to Delhi and Ghaziabad a number of times. Her stay in Delhi was also required to pay numerous visits to Canadian High Commission and even to get new Passport. It is wrong and denied that my clientess left for her parental home and did not stay with your clients despite requests by them.”Learned counsel submitted that this implies, as far as the complainant/respondent No. 2 was concerned, all was fine with the petitioners.

23. She further submitted that if a proper investigation has been carried out, these discrepancies would have been brought to the attention of the Investigating Officer, who would have either filed a closure report or at least would not have arrayed the petitioners as an accused.

24. It is pertinent to mention here that this Court in W.P. (Crl.) No. 1315/2008, titled Sumer Singh Salkan Vs. Asst. Director & Ors, filed by the husband of the complainant/respondent No.2, seeking quashing of the Red Corner Notice issued at the behest of the Delhi Police, on the basis of the complaint made by the complainant, has observed as under:-

” It is apparent that the LOC and RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is subjudiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner for issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.”

25. Learned counsel submitted that the present case is a sheer misuse of the provisions mentioned under Sections 498-A/406 IPC. The said provision was meant for the protection of women and it should not be used against the innocent persons and against the woman herself. One of the petitioners herein is a woman, who has nothing to do with the allegations as she is staying separately with her husband and children and looking after her family. The father-in-law (another petitioner) of the complainant/respondent No. 2 is a retired officer, leading a retired life and had no occasion to interact with the complainant/respondent No.2 and the allegations made in the complaint is an afterthought just to harass the petitioners and extort money from them.

26. She further submitted that in such eventuality, the charge sheet has to be quashed as this Court has power under Section 482 of the Code of Criminal Procedure.

27. To strengthen her arguments, learned counsel for the petitioners has relied upon a case of Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar & Anr. 2010 (11) Scale 59, wherein the Supreme Court has observed as under:-

“11. It was pointed out that the criminal revision against the issuance of summons was withdrawn. We were, therefore, taken to the High Court’s judgment, where the High Court has found itself to be powerless in view of the withdrawal of the criminal revision and had advised the parties to go back to the revisional Court and get it restored. We do not think that the High Court was justified in advising the appellant to go back to the Sessions Judge and to get the criminal revision revived without going into the question whether such revision could have been revived in law or not. We observe that the High Court was not powerless. The High Court itself was exercising its jurisdiction under Section 482 Cr.P.C., where the High Court could pass any order in the interests of justice. This power was available only to the High Court in contradistinction to the Sessions Judge who was only entertaining the revision application of the appellant under Section 397 Cr.P.C. The High Court should have, therefore, applied its mind to the fact situation. It should have been realized that the complaint was wholly covered under the 7th circumstance in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. (cited supra), which is as under:

“7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

It was also covered under 3rd circumstance in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. (cited supra), which suggests:

“3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.”

We reiterate that when the criminal Court looks into the complaint, it has to do so with the open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482 Cr.P.C.

12. In view of the fact, we ordinarily would have sent the matter back to the High Court, but there is no point now in remanding the matter back to the High Court in view of the pendency of this matter for last six years. In that view, we allow this appeal, set aside the order of the High Court and quash the criminal proceedings started by the respondent No. 1 vide criminal case No. 194 of 2005.”

28. In the case of Preeti Gupta and Anr. Vs. State of Jharkhand and Anr. (2010) 7 SCC 667, it has been held as under:

“18. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice.

19. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

xxx xxx xxx xxx

32. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.”

29. She also relied upon the case of Smt. Sangeeta Kalra Vs. State 2007 (2) JCC 881, wherein this Court has held as under:

“4. It seems that the complainant, who left the matrimonial home due to failure of physical relationship and resultant dissatisfaction, later on thought of implicating every member of the family in an anti-dowry and cruelty case. Initially, she made vague allegations against everybody and thereafter made a supplementary statement under Section 161 Cr. P.C. supplementing her earlier statement. In the supplementary statement it is stated that her father spent more than Rs. 22,00,000/- on her marriage while there was no such claim made by her father even in his own complaint made to the police on 24.6.1999.

5. It is true that while considering the quashing of criminal proceedings under Section 482 Cr. P.C, the Court should not embark upon an enquiry into the truthfulness of the allegations made by complainant but where the charges are framed by the lower court without considering the material, with closed mind and charges amount to gross misuse of criminal justice system and trial is an abuse, it becomes the duty of the High Court to intervene in such cases, under Section 482 Cr. P.C so that there is no miscarriage of justice and faith of people remains intact in the judicial system. In this case, charges have been framed against the petitioner, sister of the husband, without their being an iota of evidence of any cruelty or entrustment of any property by the complainant in the initial complaint or in the later complaint. Even in subsequent complaint made by the complainant herself there are no specific allegations and only vague allegations are there involving every family member.

xxx xxx xxx xxx

8. I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed. I, therefore, hereby quash criminal proceedings against the petitioner under Sections 498A/406/34 IPC, in FIR No. 518/2000 Police Station Shalimar Bagh, Delhi.”

30. In Onkar Nath Mishra & Ors. Vs. State (NCT of Delhi) & Anr. 2008 II AD (SC) 398, wherein it has been held as under:

“18. In the present case, from a plain reading of the complaint filed by the complainant on 8.11.1994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the Stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 I.P.C. It is manifestly clear from the afore- extracted complaint as also the relevant portion of the charge- sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. Furthermore, it is also noted in the charge-sheet itself that the complainant had refused to take articles back when this offer was made to her by the Investigating Officer. Therefore, in our opinion, the very pre- requisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 I.P.C. was made out.

xxx xxx xxx xxx

20. Consequently, we allow the appeal partly; quash the charge framed against all the appellants under Section 406 I.P.C.; quash the charge framed against appellant Nos. 1 and 2 under Section 498A I.P.C. and dismiss the appeal of appellant No. 3 against framing of charge under Section 498A I.P.C. Needless to add that the trial court shall now proceed with the trial untrammelled by any observation made by the Additional Sessions Judge and upheld by the High Court in the impugned order or by us in this judgment.”

31. On the other hand, learned counsel for the complainant/respondent No. 2 has submitted that her NRI husband and his parents gave a rosy picture to the family of the complainant for her living comfortably with a well-placed husband which claims are discovered to be false. She was lured into marriage by assurance of arrangements for her to leave along with her husband. The said husband very conveniently left behind her on the pretext that she will be called when marriage visa will be sanctioned. This happened due to wilful and well-planned abandonment of the bride, which is the common punishment meted out as a consequence. This is more often done by preventing the bride from reaching her husband by preventing her from getting a visa, and eventually by obtaining ex parte decree of divorce in the host country. It is noteworthy that due to the case with which the perpetrators escape the consequences of their illegalities, this scourge has spread across all classes and regions irrespective of the educational, professional and financial status of the parties.

32. Learned counsel further submitted that the present respondent No. 2 after becoming a victim of marriage, fraud and torture was forced to initiate legal action against her NRI husband and in-laws after giving them one whole year to realize the futility of violence.

33. The entire stree dhan-including cash, wedding sarees, jewellery, silverware and numerous gifts- which were, in good faith, handed over by the complainant/respondent No. 2 to her in-laws for safe keeping as any bride unfamiliar with her new matrimonial home and its customs does, was misappropriated by the respondent‟s parents-in-law and sister-in-law, who was an active perpetrator of cruelty and torture and misappropriated her stree dhan and sarees given to her on engagement.

34. Learned counsel further submitted that on 25.06.2002 the complainant/respondent No. 2 returned to her matrimonial home in Meerut with Rs.15,000/- equivalent to $500 as demanded by the in- laws who claimed that the amount had been spent by their son on filing the migration papers on 12.06.2002. Even an account was opened in the name of the respondent with Rs.One Lakh in PNB, Meerut. This being the first pro-active attempt at creating false evidence by a family full of veteran and chronic litigants, just in case an educated daughter- in-law refuses to accept violence perpetrated on her for extracting more and more dowry. The cheque book and passbook were immediately taken away by the petitioners and were later seized by the police, which is recorded in the seizure memo dated 03.05.2003.

35. Learned counsel submitted that during the second stay at her matrimonial home, the complaint/respondent No. 2 faced unspeakable cruelty at hands of her father-in-law, mother-in-law and sister-in-law, who constantly visited Meerut. The respondent‟s dignity and confidence were shattered as she was hit on two occasions by all three for refusing to bring any further cash from her parents, besides the demand of Rs.20 lakhs.

36. It is pertinent to note that even out of sheer vengeance and frustration, the petitioner filed an application under Section 340 Cr.P.C. in May, 2005 against the complainant/respondent No. 2 in the Family Court, Meerut. This vindictive act was dismissed vide order dated 13.03.2007 as misuse of the process of law in order to satisfy his ego.

37. Learned counsel further submitted that although as per the settled law, evidence including legal notices exchanged between the parties cannot be looked into for the purpose of quashing the criminal proceedings, yet respondent has been forced to refer to the same in order to expose the bald falsehood being parroted by the petitioners herein.

38. To strengthen his arguments, learned counsel has relied upon a case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, wherein the Supreme Court has observed as under:-

“11. In State of Bihar v. Ramesh Singh,1977 CriLJ 1606 , considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether, there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.

12. In Superintendent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. 1979 CriLJ 139 , a three-judge Bench held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer (emphasis supplied). Though in this case the specific question whether an accused at the stage of framing of charge has a right to produce any material was not considered as such, but that seems implicit when it was held that the Magistrate had to consider material placed before it by the investigating police officer.

13. In State of Delhi v. Gyan Devi and Ors. (2000) 8 SCC 239, this Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.

14. In State of Madhya Pradesh v. S.B. Johari and Ors. (2000) 2 SCC 57, it was held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, cannot show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.

15. In State of Maharashtra v. Priya Sharan Maharaj and Ors. (1997) 4 SCC 393, it was held that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.”

39. He has also relied upon the case of Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS and Anr., 2006 CRL. L. J. 4050, wherein the Supreme Court has held as undere:-

“7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, conceder videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

8. In R.P. Kapur v. State of Punjab (AIR 1969 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.”

40. Learned counsel has submitted that the petitioners, his wife and accused husband of the complainant/respondent No. 2 chose not to apply for anticipatory bail until 2010 with the sole purpose of crushing the spirit of the isolated and abandoned respondent No.2 over a passage of time. The petitioners certainly cannot claim any benefit for filing an order passed in the writ petition filed by the husband of the complainant/respondent No.2.

41. Learned counsel further submitted that the matter has been enquired by the CAW Cell; they recommended the case to be registered against the petitioners; the investigating authority thoroughly investigated the case; recorded the statements of the witnesses; found the evidence against the petitioners and thereafter the charge sheet has been filed. This Court under Section 482 Cr.P.C. cannot sift the evidence and other material at the stage of charge, therefore, the only prima facie view has to be taken. The present case is pending for framing of charge and the learned Magistrate has taken the cognizance as charge sheet has been filed by the police and summons have been issued against the petitioners. If the petitioners have any document of a sterling quality, the same may be considered during the trial; however, the benefit of the same cannot be taken at this stage. Therefore, the present petitions are pre-mature.

42. Learned counsel also submitted that taking into consideration the fact that the present petitions involve questions of disputed facts and law, therefore, the proceeding pending before the Trial Court should not be stopped at this stage. In view of the settled law, the present petitions may be dismissed with heavy costs.

43. I have heard the learned counsel for the parties.

44. It is emerged that complainant/respondent No. 2, Ms. Reema Singh married with Sh. Sumer Singh Salkan on 24.03.2002 according to Hindu rites and rituals. The said marriage was an arranged marriage and through a Newspaper advertisement. Husband of the complainant was working and residing in Canada. For the purpose of marriage, he came to India and stayed only for four days after his marriage. He left for Canada on 28th/29th March, 2002. The complainant could not accompany him as she did not have the requisite spouse visa. On the same evening, i.e., 28th/29th March, 2002, the complainant left with her brother and sister after seeing off her husband from the Airport itself.

45. Thereafter, she along with her father visited Meerut, i.e., her matrimonial home in the first week of May, 2002 and spent few hours for the purposes of police verification for visa. After that, she visited her-in-laws at Meerut from 25.06.2002 to 14.07.2002 and finally from 08.08.2002 to 10.08.2002. Thus, her total stay with her-in-laws was for a period of around 20 days till 10.08.2002, after the departure of her husband to Canada.

46. It is further emerged that some differences had cropped-up between the complainant and her husband due to which the husband withdrew his request for sponsoring her as his wife from Canadian Embassy on 24.09.2002. However, it is not clear from any of the communications or FIR what had happened between the complainant and her husband.

47. On coming to know that request of sponsoring from Canadian Embassy has been withdrawn by the husband of the complainant, her parents-in-law tried to pacify the matter but to no avail. Therefore, having no option, they disowned their son and daughter-in-law through a Newspaper publication dated 25.10.2002 by stating that they had nothing to do with the matrimonial acrimony.

48. Thereafter, on 20.12.2002, parents-in-law of the complainant sent a legal notice through their lawyer to both of them, i.e., Sumer Singh and the complainant, to which complainant sent a reply through her Advocate and alleged harassment, cruelty and intimidation against her mother-in-law but not against the petitioners. However, communications continued between the parents-in-law and the complainant till the time, the complainant finally made a complaint to CAW, Cell, which later on was converted into FIR No. 127 dated 22.04.2003 under Sections 498-A/406/34 IPC at P.S. Alipur, Delhi.

49. Case of the petitioners before this Court is that the complainant stayed only for around 20 days with her-in-laws and in between nothing had happened between them, therefore, the allegations made in the complaint are an afterthought just to harass them to extort money and settle the score. Till date, they are not aware what had happened between the complainant and her husband, therefore, they are not at fault and no offence has been committed by them.

50. I note, the dowry articles have been returned to the complainant, but as per the allegations made in the FIR, jewellery gifted from the parents-in-law side is still with them. On perusal of the statement of the complainant and the FIR together, it is emerged that the main allegations, i.e., of cruelty and misappropriation of dowry arties, are against the mother-in-law and husband of the complainant, not against the petitioners.

51. I have gone through the communications exchanged between the parents-in-law and the complainant, there are no specific allegations against the petitioners herein as the same are against the mother-in-law and husband of the complainant. There were no allegations against the petitioner Poonam Singh as her name was not even mentioned in the said correspondences. Her name emerged first time when complainant made a complaint to the CAW Cell.

52. Therefore, it is emerged that till the complainant made a complaint dated 06.03.2003 to the CAW Cell, there were no allegations against the petitioners whereas the marriage took place on 24.03.2002. The allegations fire up only in communication dated 07.01.2003 alleging harassment, cruelty and intimidation against her mother-in-law. Thereafter, even in reply dated 06.03.2003 to the counter-reply dated 18.02.2003; no specific allegations were made against the petitioners. More particularly, name of the petitioner Poonam Singh was not even mentioned in the said correspondences and her name was only added when the complainant made a complaint before the CAW, Cell.

53. Moreover, in the complaint dated 06.03.2003, complainant has admitted that till 10.08.2002 all was well. She was receiving sweet greeting cards from her husband. In the said letter, no complaint whatsoever was made against her husband or against any of her in-

laws. It establishes that all allegations made by her were after 11.08.2002, i.e., of her hair being pulled, beaten repeatedly, demand for lancer car, Rs.20 lakhs, Rs.10,000/- gold set and gold chain.

54. The provisions under Sections 498-A/406 IPC are meant for the protection of women and should be used against the culprits. Poonam Singh, one of the petitioners is a woman, who has nothing to do with the allegations as she is staying separately with her husband and children and looking after her family. The father-in-law (another petitioner) of the complainant/respondent No. 2 is a retired officer, leading a retired life and had hardly any occasion to interact with the complainant/respondent No.2. The allegations made in the complaint are an afterthought just to harass the petitioners.

55. It is pertinent to mention here that there are four accused in the charge sheet; two of them, i.e., mother-in-law and husband of the complainant are not before this Court as they have not challenged the same and preferred to face the trial. Therefore, this Court has not given any opinion on the offences committed by them.

56. Section 482 Cr.P.C. confers powers to this Court to pass any order in the interest of justice. While exercising the said power, this Court has to realise that the complaint was wholly covered under the 7th circumstance in the case of State of Haryana and Ors. Vs. Bhajan Lal and Ors. , 1992 AIR 604.

57. It is true that this is not the proper stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, this Court cannot throw its arms in the air and express its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. This Court is invested with the tremendous powers thereunder to pass any order in the interest of justice. However, the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but Court’s failing to use the power for advancement of justice can also lead to grave injustice. There is also no allegation of entrustment of any dowry article against the petitioners, therefore, I am of the considered view that no case under Section 498-A/406/34 IPC is made out against them.

58. Consequently, charge sheet filed against the petitioners is quashed with emanating proceedings thereunder.

Crl. M.A. No. 5582/2007 in CRL.M.C. No. 1604/2007 & Crl. M.A. No. 9723/07 & Crl. M.A. No. 9723/07 in CRL.M.C. No. 2751/2007 (both for stay) With the disposal of the aforesaid petitions, both these applications have become infructuous. The same are accordingly dismissed.

SURESH KAIT, J.

AUGUST 22, 2013

“even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.”

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Supreme Court of India
Suresh Nanda vs C.B.I on 24 January, 2008
Bench: P.P. Naolekar, Markandey Katju
           CASE NO.:
Appeal (crl.)  179 of 2008

PETITIONER:
SURESH NANDA

RESPONDENT:
C.B.I.

DATE OF JUDGMENT: 24/01/2008

BENCH:
P.P. NAOLEKAR & MARKANDEY KATJU

JUDGMENT:

JUDGMENT O R D E R [ ARISING OUT OF S.L.P.(CRL.) 3408 OF 2007 ]

1. Leave granted.

2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an F.I.R. dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the C.B.I. officials. An application was moved by the appellant before the Special Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, reversed the order of the learned Special Judge and refused to release the passport to the appellant. Aggrieved against the order of the High Court, present appeal, by special leave, has been preferred by the appellant.

3. Learned senior counsel appearing for the appellant submitted that the power and jurisdiction to impound the passport of any individual has to be exercised under the Passports Act, 1967 (hereinafter referred to as The Act). He specifically referred to sub-section (3)(e) of Section 10 of the Act which reads as under: (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document –

(e) if 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: Reference was also made to Section 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001.

4. Learned senior counsel for the appellant also placed reliance on the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 wherein in para 31, it was held as under:

31: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right.

5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein at page 280, it was held as under:

….Now, it has been held by this Court in Satwant Singh’s case (supra) that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh’s case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means ‘enacted law’ or ‘State law’ (Vide A.K. Gopalan’s case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure…..

6. On the other hand, learned Additional Solicitor General appearing for the respondent submitted that the passport was seized and impounded by exercising the powers under Section 102 read with Sections 165 and 104 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.). He further contended that the power to retain and impound the passport has been rightly exercised by the respondent as there is an order dated 3.11.2006 passed by the learned Special Judge for C.B.I. exercising the power under Section 104 of Cr.P.C.

7. Sub-section (3)(e) of Section 10 of the Act provides for impounding of a passport if 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. Thus, the Passport Authority has the power to impound the passport under the Act. Section 102 of Cr.P.C. gives powers to the police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Sub-section (5) of Section 165 of Cr.P.C. provides that the copies of record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence whereas Section 104 of Cr.P.C. authorizes the court to impound any document or thing produced before it under the Code. Section 165 of Cr.P.C. does not speak about the passport which has been searched and seized as in the present case. It does not speak about the documents found in search, but copies of the records prepared under sub-section (1) and sub-section (3). Impound means to keep in custody of the law. There must be some distinct action which will show that documents or things have been impounded. According to the Oxford Dictionary impound means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the date it has been seized by the CBI. When we read Section 104 of Cr.P.C. and Section 10 of the Act together, under Cr.P.C., the Court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport.

8. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that general provision should yield to the specific provision is to be applied. See : Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125].

9. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport.

10. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act.

11. Learned Additional Solicitor General has submitted that the police has power to seize a passport in view of Section 102(1) of the Cr.P.C. which states: Power of police officer to seize certain property:(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

In our opinion, while the police may have the power to seize a passport under Section 102(1) Cr.P.C, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967.

12. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. In the Law Lexicon by P. Ramanatha Aiyar (2nd Edition), the word impound has been defined to mean to take possession of a document or thing for being held in custody in accordance with law. Thus, the word impounding really means retention of possession of a good or a document which has been seized.

13. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269].

14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3).

15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.

16. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law.

17. We, however, make it clear that we are not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail.

18. The appeal stands disposed of accordingly.

Cr.P.C. Section 125(3) – The amount of maintenance became due by virtue of the trial Court’s order passed on 20.1.1993 and in order to seek recovery of the amount due by issuance of warrant, application is to be made within a period of one year from the date the amount became due. The bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of Sessions Judge. Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. (AIR 2005 SC 2410)

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Shantha @ Ushadevi & Anr vs B.G.Shivananjappa on 6 May, 2005
Author: A Mathur
Bench: P V Reddi, A Mathur

CASE NO.:

Appeal (crl.) 673 of 2005

PETITIONER:

Shantha @ Ushadevi & Anr.

RESPONDENT:

B.G.Shivananjappa

DATE OF JUDGMENT: 06/05/2005

BENCH:

P. VENKATARAMA REDDI & A.K. MATHUR

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P.(Crl.)No.5723 of 2004)

A.K. MATHUR, J.

Leave granted.

Brief facts giving rise to this appeal are that the appellant, Shantha @ Ushadevi and Kusuma, a minor represented by her mother-guardian filed a petition under Section 125 of the Code of Criminal Procedure being Criminal Petition No.2 of 1991 before the trial Court against respondent claiming for maintenance. The said criminal petition was allowed by the trial court by its order dated January 20, 1993 awarding a sum of Rs.500/- to the appellant, the wife of the respondent and a sum of Rs.300/- to Kusuma, the daughter for maintenance. The appellant filed Criminal Miscellaneous Petition No.47 of 1993 under Section 125(3) of the Code of Criminal Procedure claiming an amount of Rs.5,365/- as arrear maintenance calculated from January 20, 1993 (i.e. the date of the trial court’s order granting maintenance) to August 31, 1993. Respondent filed a criminal revision before the Sessions Judge, Tumkur being Crl. Revision Petition No.35 of 1993 against the order passed by the trial court. This revision petition was dismissed by the Sessions Judge by its order dated June 26, 1997 affirming the order passed by the trial court. Thereafter, the respondent took up the matter before the High Court of Karnataka at Bangalore by filing a criminal revision petition being Cr.R.P.No.2297 of 1997 against the order passed by the Sessions Judge, Tumkur on June 26, 1997. The said revision petition was dismissed by the High Court. After the affirmation of the order by the High Court, an interim application being I.A.1 was filed in Criminal Misc. Petition No.47 of 1993 claiming arrears of maintenance for the period from January 20, 1993 i.e. the date of the trial court’s order till the date of filing the I.A. 1. i.e., 16th June, 1998 for a sum of Rs. 46,000/-. The respondent deposited a sum of Rs.5,365/- towards the maintenance from January 20,1993 till August 31, 1993. However, IA-1 filed by the appellant for arrears of maintenance in Crl. Misc. Petition No.47 of 1993 claiming maintenance of Rs.46, 000/- was objected by the respondent contending that the appellant cannot claim arrears of maintenance beyond a period of one year under first proviso to Section 125(3) of the Code of Criminal Procedure being barred by limitation. The trial court by its order dated July 13, 2000 dismissed the IA-1 being barred by limitation. The appellant thereafter filed a criminal revision which came to be registered as Criminal Revision Petition No.194/ 2000 before the learned Sessions Judge, Tumkur. The said criminal revision petition was allowed by the learned Sessions Judge by its order dated November 23, 2002 and the matter was remanded back to the trial court. Learned Sessions Judge observed that there was no need of filing a fresh petition during the pendency of the application under Section 125(3) Cr. P .C. for maintenance which has fallen due for the period post application and it is implicit in the powers of the court to make an order directing the husband to make payment of arrears of maintenance up to the decision while disposing of the application for recovery of arrears of maintenance. The learned Sessions Judge further observed that it is not required to file a fresh application which may lead to multiplicity of litigations. Learned Sessions Judge further held that the I.A.1 filed in Criminal Misc. Petition No.47 of 1993 claiming maintenance was within limitation. Aggrieved against this order of the learned Sessions Judge, respondent filed criminal revision being Crl. R .P. No.753 of 2003 before the High Court of Karnataka at Bangalore. The High Court allowed the criminal revision and set aside the order of the learned Sessions Judge holding that the said application was barred by limitation. Aggrieved against this order of the High Court passed in Criminal Revision Petition No.753 of 2003 on March 11, 2004 the present Special Leave Petition was filed by the appellants.

Brief

It was submitted before the learned Single Judge of the High Court that under proviso to sub-section (3) of Section 125 of the Code of Criminal Procedure no warrant can be issued to levy the amount due beyond a period of one year. Therefore, the application i.e. I.A.No.1 filed in Crl. Misc. Petition No.47 of 1993 is barred by limitation. However, Crl. Misc. Petition No.47 of 1993 for recovery of the amount of arrears was allowed to the extent of Rs.5600/- for the period from January 20, 1993 to August 31, 1993 i.e. for a period of eight months. Subsequently, I.A.1 was filed on 16th June, 1998 for recovery of arrears from January 20, 1993 till the date of its filing, i.e. 16th June, 1998. This was objected to by the respondent-husband. Learned Single Judge of the High Court after considering the matter took the view that the arrears from September 1, 1993 to June 16, 1998 was barred by limitation and therefore, reversed the judgment of the learned Sessions Judge who had opined that there was no need for the appellants to file I.A.1 during the pendency of the Criminal Miscellaneous petition No.47 of 1993 as the appellants were entitled to the arrears of maintenance right from the date the Magistrate passed the order.

We have heard learned counsel for the parties and perused the records. The facts that emerge are that by an order dated 20th January, 1993, passed by the Judicial Magistrate of Class I, Gubbi, the appellant No.1 was granted maintenance at the rate of Rs.500/- per month for herself and Rs.300/- for her minor daughter. This order of grant of maintenance was affirmed by the High Court when the revision petition filed against this order was dismissed by the High Court on December 18, 1997.

In order to recover the amount, as per the order of the Judicial Magistrate, the appellant filed Crl. Misc. Petition No. 47 of 1993 on 1.9.1993 showing the arrears of maintenance for the period of eight months. During the pendency of revision petition in the Sessions Court and the High Court, the respondent did not pay any amount nor did the Magistrate issue a warrant in terms of section 125(3). After the disposal of the matter by the High Court, the appellant filed an I.A. being I.A. No. 1 in Crl. Misc. Petition No. 47 of 1993 seeking recovery of an amount of Rs. 46,700/- being arrears due after the date of filing the petition, being the arrears due from the Trial Court’s Order (20th January, 1993) till the date of filing the I.A., i.e., 16th June, 1998. After the filing of the said I.A., the respondent deposited an amount of Rs. 5,365/- towards arrears due for a period of eight months, i.e., from 20th January, 1993 to 31st August, 1993. The respondent-husband took the stand that no further amount was payable as the I.A. filed on 1st July, 1998 was barred by limitation under the first proviso to Section 125(3) Cr.P.C. According to the respondent, the arrears of maintenance for the said period of eight months only were recoverable under Section 125(3), in view of the Crl. Misc. Petition No. 476 of 1993 filed on 1.9. 1993 wherein the issuance of warrant was sought for recovery of a sum of Rs. 5,365/- due for about eight months. As already noticed, the learned Magistrate dismissed I.A.1 of 1998 on the ground of limitation. However, the learned Sessions Judge having held that the bar of limitation did not apply, remitted the matter to the Trial Court for fresh disposal on a revision filed in the High Court by the husband, the present impugned order was passed allowing the revision and restoring the order of the Trial Court.

To appreciate the question whether the bar of limitation under the proviso to Section 125(3) is attracted in the light of the facts of the present case, a reference to the said provision is necessary:

“If any person so ordered fails without

sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, ) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

xx xx xx . ”

It is true that the amount of maintenance became due by virtue of the Magistrate’s order passed on 20th January, 1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl. Misc. Petition No. 47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed I.A. 1 in Crl. Misc. Petition No. 47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125 (3). Thus, I.A. 1 was filed even when Crl. Misc. Petition 47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl. Misc. Petition of 47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending althrough. The purpose of filing I.A. on 1st September, 1998 was only to mention the amount due upto date. The fact that the additional amount was specified in the I.A. does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent I.A. in 1998 was only to specify the exact amount which accrued due upto that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs. 5,365/- representing the arrears of eight months was mentioned therein does not curtail the scope of Crl. Misc. Petition filed in 1993 more so when no action was taken thereon and it remained pending.

We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of Sessions Judge. It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. For the above reasons, we set aside the impugned order of the High Court and restore the order passed by the Additional District Judge, Tumkur in Crl. R.P. No. 194 of 2000. The learned Magistrate shall take appropriate steps under Section 125 (3) in case the arrears of maintenance is not paid within three months.

Although no rash or negligent act is noticed on the part of the
respondents, the fact remains that the deceased-Ammini was doing the
household work for the respondents No.1 & 2 and working as per the
instructions of the respondents at the relevant time. As the death of the
deceased was caused on account of the operation of the washing machine, the
respondents No.1 & 2, who engaged Ammini for the said work are liable to
compensate the deceased. It is to be noted that the object of providing
compensation in this case is to help the family of the deceased. Learned
counsel for the State of Kerala has produced a letter No.
16770/J2/2015/Home dated 20.03.2015 from Home (J) Department of Government
of Kerala for our perusal, as per which the State Government has decided to
sanction an amount of Rs.1,00,000/- to the appellant from Chief Minister’s
Distress Relief Fund. The deceased belonged to a lower strata of the
society, in the interest of justice, in exercise of our extra ordinary
jurisdiction under Article 142 of the Constitution of India, we deem it
appropriate to direct the respondents No.1 & 2 also to pay compensation to
the appellant.

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 582 OF 2015
(Arising out of S.L.P. (Crl.) No. 1632/2014)

RAJAN …Appellant

Versus

JOSEPH & ORS. ..Respondents

J U D G M E N T
R. BANUMATHI, J.

Leave granted.
2. This appeal by way of special appeal arises out of judgment
dated 20.3.2013, passed by the High Court of Kerala at Ernakulam in Crl. M.
C. No.1325 of 2007, allowing the application filed u/s 482 Cr.P.C. and
quashing the proceeding initiated against the respondents in C.C. No.994 of
2006 u/s 304A IPC, pending before Judicial First Class Magistrate,
Kodungallur, Thrissur District, Kerala.
3. Brief facts which led to the filing of this appeal are as
under:- The appellant herein is the husband of the deceased-Ammini, who
was working as a maid for more than five years in the house of the
respondents No.1 & 2. Ammini died on 15.4.2005 due to electric shock
allegedly sustained by her while working on washing machine in the house of
the respondents No. 1 & 2. Initially, the case was registered by the
Mathilakam Police as “unnatural death” u/s 174 Cr.P.C, but after
investigation ‘refer report’ was filed, stating that it was “accidental
death”. The appellant filed a private complaint before the JMFC and the
Magistrate took cognizance of the case u/s 304A IPC and issued summons to
the respondents. The respondents approached the High Court, praying for
quashing the case pending before JMFC. High Court allowed the application
thereby quashing the proceedings initiated against respondents under
Section 304A IPC. In this appeal, appellant assails the correctness of
the said order.
4. We have heard the learned counsels for the appellant and the
respondents.
5. The appellant alleged that due to rash and negligent act of the
respondents No.1 & 2, deceased-Ammini died. It is undisputed that deceased
was working as a maid for the last five years in the house of respondents.
On 15.4.2005, the deceased died due to electric shock in the washing
machine while working in the house of the respondents No. 1 & 2. To prove
the charge under Section 304A IPC, it is necessary to establish the guilt
of respondents No.1 & 2 i.e. the accused, acted in a negligent manner in
not taking reasonable care of their washing machine and caused the death of
deceased-Ammini due to electric shock.
6. After due enquiry, the Electric Inspector has given his report
dated 23.02.2006, in which he has reported that there is a single phase
current connection in the house of the respondents No.1 & 2. He has
further reported that although body of the washing machine was eleven years
old but when the insulation value was taken, it was found that there is no
possibility of current leakage in the washing machine. It was also
reported that by mistake deceased might have tried to turn on and off the
switch with wet hands and at that time she might have come into contact
with the live portion behind the plug and died due to electric shock. As
seen from the certificate issued from Modern Hospital, Kodungallur, the
respondents immediately rushed to the hospital to save the life of the
deceased and she was declared dead by the Doctor-CW3. Considering the
materials on record, we concur with the views expressed by the High Court
that no offence under Section 304A IPC is made out and in our view, the
High Court has rightly quashed the proceedings initiated before JMFC.
7. Although no rash or negligent act is noticed on the part of the
respondents, the fact remains that the deceased-Ammini was doing the
household work for the respondents No.1 & 2 and working as per the
instructions of the respondents at the relevant time. As the death of the
deceased was caused on account of the operation of the washing machine, the
respondents No.1 & 2, who engaged Ammini for the said work are liable to
compensate the deceased. It is to be noted that the object of providing
compensation in this case is to help the family of the deceased. Learned
counsel for the State of Kerala has produced a letter No.
16770/J2/2015/Home dated 20.03.2015 from Home (J) Department of Government
of Kerala for our perusal, as per which the State Government has decided to
sanction an amount of Rs.1,00,000/- to the appellant from Chief Minister’s
Distress Relief Fund. The deceased belonged to a lower strata of the
society, in the interest of justice, in exercise of our extra ordinary
jurisdiction under Article 142 of the Constitution of India, we deem it
appropriate to direct the respondents No.1 & 2 also to pay compensation to
the appellant.
8. As decided by the State Government, the third respondent-State
of Kerala shall pay an amount of Rs.1,00,000/- from Chief Minister’s
Distress Relief Fund to the appellant. Additionally, the respondents No.
1 & 2 shall pay a compensation of Rs.1,00,000/- to the appellant within a
period of four weeks from today. With the above direction, this appeal is
disposed of.

………………….J.
(T.S. Thakur)

………………….J.
(Kurian Joseph)

………………….J.
(R. Banumathi)

A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should have deceived the woman,
to believe the existence of matrimonial ties with her. And based on the
aforesaid belief, the man should have cohabited with her. The question to
be determined on the basis of the factual position, as has been noticed
hereinabove, is whether in the facts and circumstances of this case, it is
possible to accept such deceit, at the hands of the respondent, even if it
is accepted for the sake of arguments, that cohabitation continued between
the parties between 08.01.1994 till 23.06.1994, i.e., from the date when
the respondent was granted an ex-parte decree of divorce (by the Additional
District Judge, Chandigarh), till the date when the respondent married
Sunita Rani. We are of the considered view, that with the setting aside of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996), it cannot
be accepted, that there was any break in the matrimonial relationship
between the parties. Even the complaint filed by the appellant under
Section 376 of the Indian Penal Code was not entertained (and the
respondent was discharged), because it came to be concluded, that the
matrimonial ties between the appellant and the respondent were restored,
with the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance therefore,
consequent upon the passing of the order dated 19.02.1996 (whereby the
Additional District Judge, Chandigarh, set aside the ex-parte decree dated
08.01.1994), the matrimonial ties between the appellant and the respondent,
will be deemed to have subsisted during the entire period under reference
(08.01.1994 to 23.06.1994). In fact, the accusation of the appellant, on
the aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code) was not
entertained, and the respondent was discharged, just because of the above
inference. For exactly the same reason, we are satisfied that the charge
against the respondent is not made out, under Section 493 of the Indian
Penal, because the respondent could not have deceived the appellant of the
existence of a “lawful marriage”, when a lawful marriage indeed existed
between the parties, during the period under reference.
———————————————————————————————————————–
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.457 OF 2008

RAVINDER KAUR …….APPELLANT

VERSUS

ANIL KUMAR …….RESPONDENT

J U D G M E N T

J.S.KHEHAR, J.

The appellant (Ravinder Kaur) and the respondent (Anil
Kumar) got married on 14.08.1991. Soon thereafter, the respondent preferred
a petition seeking divorce from the appellant before the Additional
District Judge, Ropar. Having received summons in the above-mentioned
case, the appellant entered appearance before the Additional District
Judge, Ropar, on 08.10.1992. On the following day, i.e., on 09.10.1992,
the respondent withdrew the petition filed by him under Section 13 of the
Hindu Marriage Act, 1955.
The respondent filed a second divorce petition on
30.04.1993, under Section 13 of the Hindu Marriage Act, 1955, on the same
factual premise and grounds (as the earlier petition), before the
Additional District Judge, Chandigarh. Proceedings were conducted in the
second divorce petition, in the absence of the appellant, and an ex-parte
decree of divorce was granted to the respondent, on 08.01.1994. It was the
case of the appellant before this Court, that the respondent did not inform
her, that the matrimonial ties between the parties had come to an end, by
the decree of divorce dated 08.01.1994. And under the impression, that the
marriage was subsisting, he continued his conjugal relationship with the
appellant, as her husband, by deception.
It was also the case of the appellant, that on 23.06.1994
the respondent married Sunita Rani. It was, thereupon, that the appellant
became aware (on 23.06.1994 i.e., on the occasion of his marriage with
Sunita Rani) about the fact, that the respondent had been granted an ex-
parte decree of divorce on 08.01.1994 (by the Additional District Judge,
Chandigarh). Within six days, of her coming to know, about the above ex-
parte decree of divorce, the appellant preferred an application, for
setting aside the said ex-parte decree, on 29.06.1994. The same was
allowed by the Additional District Judge, Chandigarh, on 19.02.1996. In
sum and substance, therefore, the matrimonial ties between the appellant
and the respondent came to be restored, as if the marital relationship had
never ceased.
Based on the fact, that the respondent had continued the
sexual relationship with the appellant, for the period from 08.01.1994
(when the ex-parte decree of divorce was passed) till he married Sunita
Rani on 23.06.1994, the appellant preferred a complaint before the Judicial
Magistrate 1st Class, Kharar, under Section 376 of the Indian Penal Code.
It is not a matter of dispute, that the respondent was discharged from the
above proceedings. In fact, no trial came to be conducted in furtherance of
the above complaint made by the appellant. The above order of discharge,
was assailed by the appellant, before the High Court of Punjab and Haryana,
at Chandigarh (hereinafter referred to as `the High Court’). The High
Court affirmed the order of discharge, on 10.07.1997. Dissatisfied with
the order of discharge, as also, the order passed by the High Court, the
appellant approached this Court. This Court declined to interfere with the
above orders.
On the same factual premise, as has been noticed in the
foregoing paragraphs (wherein the appellant had filed a complaint for
initiation of proceedings under Section 376 of the Indian Penal Code), the
appellant filed a second complaint, this time accusing the respondent of
offences under Sections 493, 494, 495, 496, 420, 506 read with Section 120-
B of the Indian Penal Code. The Judicial Magistrate 1st Class, Kharar, did
not entertain the aforementioned complaint filed by the appellant, and
dismissed the same vide an order dated 27.11.2002. Dissatisfied with the
aforesaid order, the appellant preferred a revision petition, assailing the
above order dated 27.11.2002, before the Sessions Judge, Roopnanagr. The
aforesaid revision petition was dismissed on 04.09.2003. The order dated
04.09.2003 was assailed by the appellant before the High Court, through
Criminal Misc.No.50496-M of 2003. The aforesaid Criminal Miscellaneous
Petition, was dismissed by the High Court on 10.01.2007. The order passed
by the High Court on 10.01.2007 is a subject matter of challenge through
the instant appeal.

During the course of hearing, learned counsel for the
appellant very fairly asserted, that the claim raised by the appellant in
the complaint, which is a subject matter of the present consideration, can
be pressed against the respondent, only with reference to the accusations
levelled by the appellant, under Sections 493 and 494 of the Indian Penal
Code. It was, therefore, that the instant controversy will be examined by
us, limited to the allegations made by the appellant, under Sections 493
and 494 of the Indian Penal Code only.
Learned counsel for the respondent, while opposing the
prayer made on behalf of the appellant vehemently contended, that the
present proceedings were not maintainable against the respondent, in the
light of Section 300 of the Criminal Procedure Code. In this behalf, it
was the submission of the learned counsel for the respondent, that it was
not open to the appellant to raise a claim against the respondent, so as to
subject the respondent to a trial again, on the same facts as in the
earlier complaint, even for an offence, other than the one, with reference
to which the earlier compalint was filed (under Section 376 of the Indian
Penal Code). To examine the veracity of the contention raised by the
learned counsel for the respondent, Section 300 of the Code of Criminal
Procedure is being extracted hereunder:
“300. Person once convicted or acquitted not to be tried for same
offence.

(1) A person who has once been tried by a Court of competent jurisdiction
for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again
for the same offence, nor on the same facts for any other offence for which
a different charge from the one made against him might have been made under
sub- section (1) of section 221, or for which he might have been convicted
under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried,
with the consent of the State Government, for any distinct offence for
which a separate charge might have been made against him at the former
trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened, or were not known
to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts
may, notwithstanding such acquittal or conviction, be subsequently charged
with, and tried for, any other offence constituted by the same acts which
he may have committed if the Court by which he was first tried was not
competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the
same offence except with the consent of the Court by which he was
discharged or of any other Court to which the first- mentioned Court is
subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of
the General Clauses Act, 1897, (10 of 1897 ) or of section 188 of this
Code.
Explanation.- The dismissal of a complaint, or the discharge of the
accused, is not an acquittal for the purposes of this section.”

Having perused Section 300, we are satisfied, that the
submission advanced at the hands of the learned counsel for the respondent,
namely, that Section 300 of the Criminal Procedure Code, will be an embargo
to obstruct the right of the appellant to file a second complaint against
the respondent, is not justified. Our above determination is based on the
fact, that the respondent had not been tried, in furtherance of the
previous complaint made by the appellant, under Section 376 of the Indian
Penal Code. The contention of the learned counsel for the appellant, that
the respondent had been discharged in furtherance of the complaint made by
the appellant, without any trial having been conducted against him (the
respondent), was not disputed. Based on the above factual contention,
learned counsel for the appellant had placed emphatic reliance, on the
explanation under Section 300 of the Criminal Procedure Code. The
explanation relied upon, clearly mandates that the dismissal of a
complaint, or the discharge of an accused, would not be construed as an
acquittal, for the purposes of this Section. In this view of the matter, we
are in agreement with the contention advanced at the hands of the learned
counsel for the appellant. We are of the considered view, that proceedings
in the second complaint would not be barred, because no trial had been
conducted against the respondent, in furtherance of the first complaint.
Having so concluded, it emerges that it is open to the appellant, to press
the accusations levelled by her, through her second complaint, referred to
above.
It is, therefore, that we shall now examine the present
controversy, with reference to Sections 493 and 494 of the Indian Penal
Code, which admittedly survive. The contention of the learned counsel for
the respondent, with reference to Section 493 of the Indian Penal Code was,
that the ingredients of the offence under Section 493 were not made out,
even if the factual position, as has been asserted by the appellant, is
accepted. Section 493 of the Indian Penal Code is being extracted
hereunder:
“493. Cohabitation caused by a man deceitfully inducing a belief of lawful
marriage.-Every man who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully married to him and to
cohabit or have sexual intercourse with him in that belief, shall be
punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”

A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should have deceived the woman,
to believe the existence of matrimonial ties with her. And based on the
aforesaid belief, the man should have cohabited with her. The question to
be determined on the basis of the factual position, as has been noticed
hereinabove, is whether in the facts and circumstances of this case, it is
possible to accept such deceit, at the hands of the respondent, even if it
is accepted for the sake of arguments, that cohabitation continued between
the parties between 08.01.1994 till 23.06.1994, i.e., from the date when
the respondent was granted an ex-parte decree of divorce (by the Additional
District Judge, Chandigarh), till the date when the respondent married
Sunita Rani. We are of the considered view, that with the setting aside of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996), it cannot
be accepted, that there was any break in the matrimonial relationship
between the parties. Even the complaint filed by the appellant under
Section 376 of the Indian Penal Code was not entertained (and the
respondent was discharged), because it came to be concluded, that the
matrimonial ties between the appellant and the respondent were restored,
with the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance therefore,
consequent upon the passing of the order dated 19.02.1996 (whereby the
Additional District Judge, Chandigarh, set aside the ex-parte decree dated
08.01.1994), the matrimonial ties between the appellant and the respondent,
will be deemed to have subsisted during the entire period under reference
(08.01.1994 to 23.06.1994). In fact, the accusation of the appellant, on
the aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code) was not
entertained, and the respondent was discharged, just because of the above
inference. For exactly the same reason, we are satisfied that the charge
against the respondent is not made out, under Section 493 of the Indian
Penal, because the respondent could not have deceived the appellant of the
existence of a “lawful marriage”, when a lawful marriage indeed existed
between the parties, during the period under reference.
So far as the surviving provision, namely, Section 494 of
the Indian Penal Code is concerned, the same is compoundable. During the
course of hearing, on 08.04.2015, we enquired from the learned counsel for
the appellant, whether the appellant was interested in compounding the
cause, since we were made aware of the fact, that the respondent in the
meantime had fathered two children, from Sunita Rani. This proposal was
made by the Court on an oral assertion made at the behest of the learned
counsel representing the respondent, that the appellant had also re-married
in the meantime, and that, she had also begotten one son out of her second
marriage.
Having obtained instructions, learned counsel for the
appellant very fairly acknowledged, the second marriage of the appellant.
He also acknowledged, the factum of the appellant having begotten a son,
from her second marriage. In the changed scenario, learned counsel for the
appellant informed this Court, that the appellant had instructed him, that
a request may be made to the Court, that the appellant would have no
objection to the compounding of the offence under Section 494 of the Indian
Penal Code, in terms of Section 320 of the Code of Criminal Procedure, with
the consent of this Court. The contention of the learned counsel for the
appellant however was, that the appellant should be awarded reasonable
cost, while compounding the offence under Section 494 of the Indian Penal
Code.
Having given our thoughtful consideration to the facts and
circumstances of this case, specially the factual position as has emerged
after the ex-parte decree of divorce dated 08.01.1994 (passed by the
Additional District Judge, Chandigarh) was set aside on 19.02.1996, we are
of the view, that the best course for the parties is to settle their
dispute amicably. Section 320 of the Criminal Procedure Code is an avenue
available to the parties, for such resolution. In view of the consent
expressed by the appellant to this Court through her counsel, we hereby
direct the compounding of complaint made by the appellant with reference to
Section 494 of the Indian Penal Code. We direct the respondent to pay a
sum of Rs.5 lakhs, as compensation to the appellant. The respondent shall
deposit the aforesaid amount in this Court within two months from today.
It shall be open to the appellant to move an application to the Registry of
this Court, to withdraw the aforesaid amount.
The appeal is disposed of in the above terms.

……………………..J.
(JAGDISH
SINGH KHEHAR)

……………………..J.
(S.A.BOBDE)

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1581 OF 2009

Ms. S …. Appellant

Versus

Sunil Kumar & Anr. …. Respondents

J U D G M E N T

Uday Umesh Lalit, J.
1. This appeal by special leave challenges the judgment and order dated
20.11.2007 passed by the High Court of Chhattisgarh dismissing Criminal
Revision No.550 of 2007 preferred by the Appellant through her natural
guardian. By dismissing said criminal revision the High Court affirmed
the view taken by the trial court acquitting Respondent No.1 herein of the
charges under Section 376(2)(f) of the IPC and Section 3(2)(V) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short “the Act”). Though the present appeal has been filed in the
name of the Appellant, in view of Section 228A of the IPC we direct that
the cause title shall stand amended and be read as “Ms. S. versus Sunil
Kumar and another”.

2 The case of the prosecution is that in the forenoon of 14.01.2006
while the Appellant was guarding her crops, a person aged about 20-22 years
wearing a shirt with red stripes and black trouser came. He called the
Appellant by making a signal, whereupon she started running. He ran after
her, caught her and after removing her undergarments committed sexual
intercourse. He also bit the lip of the Appellant. She shouted for help
which attracted the attention of three persons, namely, PWs 2, 4 and 6 (the
names of these witnesses are not being given as one of them is the brother
of the Appellant and they shall hereafter be referred to by their
designation in the trial). PW-4 i.e. the brother of the Appellant ran for
catching that person but was unable to catch him and the person ran away.

3. The reporting in respect of the aforesaid incident was immediately
made by the Appellant in Patharia Police Station and FIR Ext.P-1 was
registered under Section 376 IPC. In the first information report itself
the Appellant had stated the complexion of the man to be “sanwla”, that he
was wearing shirt with red stripes and that he was unable to speak. She
further stated that she would be able to identify that man. The Appellant
was immediately sent for medical examination. PW-7 Dr. Vibha Sindur did
the medical examination and found following features:
“1. The age of the prosecutrix was about 10 years.
There was a cut injury on the lower lip and a swelling on the upper lip.

There was an aberration of 3 x 5 cms in the waist.

On internal examination
1. The hymen was freshly ruptured and it was bleeding.

2. Two slides of the vagina were prepared and were handed over to the IO
for chemical examination.

3. According to the doctor the prosecutrix was subjected to sexual
intercourse.”
4. During the course of investigation the blood-stained soil and the
plain soil from the place of occurrence was seized vide Ext.P-14. The
caste certificate (Ext.P-13) of the Appellant was also seized. Respondent
No.1 was arrested vide arrest panchnama Ext.P-18 and was sent for medical
examination. PW-13 Dr. D.R. Singraul found him capable of having sexual
intercourse. The shirt with red stripes and black trouser were also seized
from Respondent No.1 vide Ext.P-17. These garments were then produced for
identification before the witnesses including the Appellant who identified
said garments. Though the Appellant had clearly stated that she would be
able to identify the man, no test identification parade was conducted.
During the investigation the age of the Appellant was found to be between
10-14 years by PW-9 Dr. Anil Pratap Singh upon X-Ray examination.

5. After completion of investigation Respondent No.1 was charged for
having committed offences under the aforesaid Sections and sent for trial.
The Appellant was examined as PW-1 who stated about the incident in
question and re-iterated the contents of the FIR. She also identified
Respondent No.1 in court though she did not know the name of Respondent
No.1, nor the village that he belonged. PWs 2, 4 and 6 who after hearing
the shouts for help had arrived at the place of incident, supported her
version as regards the fact that she was subjected to rape. However none
of these witnesses could identify Respondent No.1. The Investigating
Officer was examined as PW-10 who accepted that from the first information
report it appeared that the offence was committed by some unknown person
but could not give reason why test identification parade was not conducted.
In his cross examination, a suggestion was given by the defence that
Respondent No. 1-Accused was unable to speak. He explained that on an
earlier occasion, a complaint was made by the maternal grandfather of
Respondent No. 1 stating about his disability, that he was lost and that
Respondent No. 1 was found in pursuance of such complaint.

6. The trial court after considering the entire material on record came
to the conclusion that the age of the Appellant was 10-13 years of age and
that she was minor at the time of incident. It was held that the medical
evidence on record clearly showed that she was subjected to sexual
intercourse. Though the statements of the Appellant and PWs 2, 4 and 6
clearly established the fact that she was subjected to sexual intercourse
at the time and in the manner alleged, the trial court observed that PWs 2,
4 and 6 had failed to identify Respondent No.1. Despite the fact that the
Appellant had identified Respondent No.1 in court, the trial court observed
that in the absence of any prior test identification parade such
identification in court for the first time was not good enough.
Though the finding was recorded that the Appellant belonged to
Scheduled Caste community nothing was discussed whether the offence under
Section 3(2)(V) was otherwise made out. Giving him benefit of doubt on the
question of identification, Respondent No.1 was acquitted of the charges
leveled against him, vide judgment of the trial court dated 27.02.2007 in
Special Session Case No.68 of 2006.

7. The Appellant being aggrieved filed Criminal Revision under Section
397 read with 401 of the Cr.P.C. in the High Court. The High Court
affirmed the view taken by the trial court that since no test
identification parade was arranged, the identification by the Appellant for
the first time in court was not sufficient. For the lapses committed by
the Investigating Officer in not arranging the test identification parade,
the High Court recommended departmental action against him but went on to
observe that the acquittal by the trial court was on sound reasoning and
that there was no illegality or infirmity in the judgment of acquittal.
The High Court therefore dismissed the revision. It appears that there was
delay of 81 days in filing the revision and the revision was dismissed both
on merits as well as on delay.

8. The present appeal has been preferred by the prosecutrix/ Appellant
through Supreme Court Legal Services Committee. Despite service of notice
upon Respondent No.1 no appearance was entered on his behalf and as such
this Court appointed Ms. Vanshaja Shukla, learned advocate as Amicus Curiae
to assist the court on behalf of Respondent No.1. We must place on record
appreciation for the assistance rendered by her.

9. Mr. Kanhaiya Priyadarshi, learned advocate appearing for the
appellant submitted that the testimony of the Appellant was cogent and
supported by the other evidence on record. There was immediate reporting
and the fact that she was subjected to sexual intercourse was well
established. Three witnesses had immediately arrived pursuant to her
shouts who corroborated the factum of rape. The Appellant in her first
reporting had clearly stated that she would be able to identify the person
and had given sufficient indication regarding his identity. Her
identification in court, in the circumstances was not flawed on any count
and ought to be accepted. His submissions were well supported by Ms.
Shashi Juneja, learned advocate appearing for the State who invited our
attention to Ashok Debbarama @ Achak Debbarma v. State of Tripura[1] and
submitted that the identification for the first time in court is good
enough and can be relied upon if the witness is otherwise trustworthy and
reliable. Ms. Vanshaja Shukla learned Amicus Curiae fairly accepted that
it is only as a matter of prudence that the courts require and insist upon
test identification parade and that it would entirely depend upon facts and
circumstances if the testimony of the witness is otherwise found to be
trustworthy and reliable.

10. It has consistently been held by this Court that what is substantive
evidence is the identification of an accused in court by a witness and that
the prior identification in a test identification parade is used only to
corroborate the identification in court. Holding of test identification
parade is not the rule of law but rule of prudence. Normally
identification of the accused in a test identification parade lends
assurance so that the subsequent identification in court during trial could
be safely relied upon. However, even in the absence of such test
identification parade, the identification in court can in given
circumstances be relied upon, if the witness is otherwise trustworthy and
reliable. The law on the point is well-settled and succinctly laid down in
Ashok Debbarma (supra).

11. In the present case the Appellant was subjected to sexual intercourse
during broad day light. The fact that she was so subjected at the time and
in the manner stated by her, stands proved. Three witnesses had
immediately come on the scene of occurrence and found that she was raped.
The immediate reporting and the consequential medical examination further
support her testimony. By very nature of the offence, the close proximity
with the offender would have certainly afforded sufficient time to imprint
upon her mind the identity of the offender. In Malkhansingh v. State of
M.P.[2] in a similar situation where identification by prosecutrix for the
first time in court was a matter in issue, this Court had observed:
“She also had a reason to remember their faces as they had committed a
heinous offence and put her to shame. She had, therefore, abundant
opportunity to notice their features In fact on account of her traumatic
and tragic experience, the faces of the appellants must have got imprinted
in her memory, and there was no chance of her making a mistake about their
identity.”

12. Furthermore, the appellant had gone to the extent of stating in her
first reporting that she would be in a position to identify the offender
and had given particulars regarding his identity. The clothes worn by the
offender were identified by her when called upon to do so. In the
circumstances there was nothing wrong or exceptional in identification by
her of the accused in court. We find her testimony completely trustworthy
and reliable. Consequently we hold that the case against Respondent No.1
stands proved. Since the trial court had found the age of the Appellant to
be 10-13 years of age, we take the age to be on the maximum scale i.e. 13
years. In our considered view, the High Court was not justified in
dismissing the revision. No other view was possible and the case therefore
warrants interference by this Court. We accordingly allow the appeal and
convict Respondent No.1 for having committed the offence under Section
376(1) IPC and sentence him to undergo imprisonment for seven years and
also impose a fine of Rs.5,000/- which in its entirety shall be made over
to the Appellant. In the event such fine is not deposited, Respondent No.1
shall undergo further sentence of simple imprisonment for six months. We,
however, confirm the acquittal of Respondent No.1 for the offence under
Section 3(2)(V) of the Act. Respondent No.1 shall be taken into custody
forthwith to undergo the sentence as aforesaid.
………………………..J.
(Pinaki Chandra Ghose)
………………………..J.
(Uday Umesh Lalit)
New Delhi,
April 10, 2015

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