Having sex when there is intention to marry is not rape: Supreme Court of India.

“Allowing the appeal, the Supreme Court said the prosecutrix in this case was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. She was conscious of the fact that her marriage might not take place owing to various considerations, including the caste factor. Hence it could not be said that she had not given her consent for having sex with the appellant, the Bench said and directed that the appellant, who had already served three-year imprisonment, be released.”

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

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2322 of 2010

 

Deepak Gulati                                        …Appellant

 

Versus

State of Haryana                                   …Respondent

 

J U D G M E N T

 

Dr. B.S. CHAUHAN, J.

 

1.          This  appeal  has  been  preferred  against  the  impugned

judgment and order dated 28.1.2010, passed by  the  Punjab  &  Haryana

High Court at Chandigarh in CRA No. 960-SB of 1998 by  way  of  which,

the High Court has affirmed the judgment and order of  the  Additional

Sessions Judge, Karnal dated 13.11.1998 passed in Sessions Case No.  7

of 1995, by way  of  which  the  appellant  stood  convicted  for  the

offences punishable under Sections 365 and 376  of  the  Indian  Penal

Code, 1860 (hereinafter referred to as the  `IPC’)  and  sentenced  to

undergo rigorous imprisonment for a period of three years, alongwith a

fine of Rs.2,000/- under Section 365 IPC;  and  rigorous  imprisonment

for a period of seven years, alongwith  a  fine  of  Rs.5,000/-  under

Section 376 IPC.  Both the sentences were ordered to run concurrently.

 

 

 

 

2.         Facts and circumstances giving  rise  to  this  appeal  are

that:

A.         The appellant and Geeta,  prosecutrix,  19  years  of  age,

student of 10+2 in Government Girls Senior Secondary  School,  Karnal,

had known each other for some time. Appellant had been meeting her  in

front of her school in an attempt to develop intimate  relations  with

her. On 10.5.1995, the  appellant  induced  her  to  go  with  him  to

Kurukshetra, to get married and she agreed.  En route Kurukshetra from

Karnal, the appellant took her to Karna lake (Karnal), and had  sexual

intercourse with her against her wishes,  behind  bushes.  Thereafter,

the appellant took her to Kurukshetra,  stayed with his relatives  for

3-4 days and committed rape upon her.

 

 

B.         The  prosecutrix  was  thrown  out  after  4  days  by  the

appellant.  She then  went  to  one  of  the  hostels  in  Kurukshetra

University, and stayed there for a few days.  The warden of the hostel

became   suspicious  and  thus,  questioned  the  prosecutrix.     The

prosecutrix thus narrated the incident to the warden, who informed her

father.   Meanwhile, the prosecutrix left the hostel  and  went  to  a

temple, where she once again met the appellant.  Here,  the  appellant

convinced her to accompany him to Ambala to  get  married.  When  they

reached the bus stand, they found her father present  there  alongwith

the police. The appellant was apprehended.

 

 

C.         Baldev Raj Soni, father of the prosecutrix,  had  lodged  a

complaint on 16.5.1995 under Sections  365  and  366  IPC,  which  was

later converted to one under Sections 365 and 376 IPC.

 

 

D.         The prosecutrix was medically examined  on  17.5.1995.  Her

statement was recorded by the Magistrate under Section 164 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’)

on 20.5.1995. After completing the investigation,  a  chargesheet  was

filed against the appellant, and in view of the  material  on  record,

charges under Sections 365 and 376 IPC were framed against him by  the

Sessions Court, vide order dated 3.5.1996.

 

 

E.         The prosecution examined 13 witnesses  in  support  of  its

case and in view thereof, the Sessions Court convicted  the  appellant

under Sections 365/376 IPC, vide judgment and order  dated  13.11.1998

and awarded him the sentence for the said charges as has been referred

to hereinabove.

 

 

F.         Aggrieved, the appellant preferred Criminal Appeal No. 960-

SB of 1998 (D & M)  in  the  High  Court  of  Punjab  and  Haryana  at

Chandigarh, which stood dismissed by the impugned judgment  and  order

dated 18.11.1998.

Hence, this appeal.

 

 

3.         None present for the appellant.  In view thereof, the Court

has examined the material on record and gone through both the impugned

judgments with the help of Shri Kamal  Mohan  Gupta,  learned  counsel

appearing on behalf of the State.

 

4.         The statement of the prosecutrix (PW.7) was recorded  under

Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated  that

she had gone alongwith the appellant  to  get  married  and  for  such

purpose, she had also obtained a certificate from her school as  proof

of her age.  On the said date i.e. 10.5.1995,  as  the  appellant  had

been unable to  reach  the  pre-decided  place,  the  prosecutrix  had

telephoned him on the number provided by him.  She has further deposed

that the appellant had asked her to have a physical relationship  with

him, but that she had not agreed to do so before marriage.  When  they

reached Kurukshetra and stayed with his relatives there, the appellant

had sexual intercourse with her for 3 days.  On the 4th day,  she  was

thrown out of the house by the appellant and thus, she  had   gone  to

the Girls Hostel in  Kurukshetra  University,  where  she  had  stayed

under the pretext of getting admitted to the university.  However, the

university personnel became suspicious,  and  after  making  enquiries

from her, they telephoned  her house.  She then  left  the  university

and had gone to the Birla Mandir at Kurukshetra,  where  she  had  met

appellant.  Here he lured her once again, and thus, she had agreed  to

accompany him to Ambala to get married in court there.  However,  when

they reached the old bus stand Kurukshetra, she had found  her  father

and  several  police  officials  present  there,  and  thereafter  the

appellant had been arrested and the prosecutrix was taken to Karnal.

 

 

5.         The prosecutrix was examined in court as PW.7 on  5.7.1996,

wherein she deposed that on 10.5.1995, as per the agreed plan, she had

left her house to go alongwith the appellant  to  Kurukshetra  to  get

married in court.  However, she had not found  the  appellant  at  the

place decided upon by them, and had thus telephoned him  at the number

provided to her by him.  She was then informed that the appellant  had

already left for Kurukshetra and hence, waited for him from 12.00 noon

till 1.30 p.m. When he arrived, she went alongwith  the  appellant  at

2.30 p.m. to Karna lake (Karnal) by bus.  Here,  she  was  taken  into

some bushes behind the restaurant at Karna lake, and thereafter  raped

by the appellant. At the said time, she neither raised any  objection,

nor any hue and cry. The prosecutrix did not  even  mention  the  said

incident to any person, despite going to Kurukshetra and staying there

for 3-4 days.  She raised no  grievance  in  this  regard  before  any

person or authority at the bus stand.  She continued to stay with  the

appellant in the house of his  relatives  and  was  raped  there.  The

appellant continued to postpone their marriage on one pretext  or  the

other. Thereafter, she was thrown out of the house. She thus went  and

stayed in the University hostel and on being questioned, she disclosed

details regarding her  treatment  to  the  warden,  who  informed  her

family. After this, she went to the Birla Mandir at  Kurukshetra,  and

here she met the appellant once  again.  The  appellant  made  another

attempt to convince her to go to Ambala with him  to  get  married  in

court there. Upon reaching the old Bus Stand, she  found  her  brother

Rajinder there alongwith a police party,  who  had  been  accompanying

them in a jeep to Karnal.

6.         In his statement, Baldev Raj Soni  (PW.8),  father  of  the

prosecutrix has deposed that on 10.5.1995, her daughter Geeta did  not

come home. He thus lodged a complaint and contacted Rajni, a friend of

Geeta, who told him  that  the  appellant  Deepak  had  taken  her  to

Kurukshetra. On 17.5.1995,  the  police  had  gone  alongwith  him  to

Kurukshetra to locate Geeta, where they had found the prosecutrix  and

the appellant sitting at the old bus stand  in  Kurukshetra.  Both  of

them had been caught hold of by them, and were brought to Karnal.

 

 

7.         Smt. P. Kant Vashisht (PW.10), Warden of  Saraswati  Bhawan

Kurukshetra University,  though  did  not  support  the  case  of  the

prosecution, and was declared hostile, has deposed in her  examination

in chief that Geeta, prosecutrix, had been  brought to her  office  by

one person, namely, Shri Ashwini, student of the engineering  college,

and that he had left Geeta in her office, stating that he would inform

her parents. After sometime, her brother had come and taken her  away.

She was cross-examined by the prosecution, and she  has  deposed  that

the  prosecutrix  had  in  fact  stayed  in  the  hostel  without  any

authority/permission. One Nirmla,  attendant therein had  allowed  her

to stay in the hostel without any such requisite permission.

 

 

8.         Smt. Krishana Chawla (PW.3), Lecturer of Political  Science

in Government Senior Secondary  School,  Karnal,  has  deposed  before

court, and has proved the school register to show  that  the  date  of

birth of the  prosecutrix was 26.6.1976.

 

 

9.          Dr.  (Mrs.)  Amarjeet  Wadhwa  (PW.11),  Medical  Officer,

Government  Hospital,  Karnal,  who  examined   the   prosecutrix   on

17.5.1995, has deposed that the prosecutrix  had  indulged  in  sexual

intercourse and was habitual to the same.

 

 

10.        Shri Bhagwan Chand (PW.12), ASI, the Investigating Officer,

has deposed that after recording the statement of the  father  of  the

prosecutrix on 17.5.1995, he had taken her father  to  Kurukshetra  to

search for the prosecutrix alongwith one constable.   At  about  12.00

noon, when they reached the old bus stand at Kurukshetra,  the  father

of the prosecutrix noticed Geeta, sitting with the appellant Deepak in

one corner of the bus stand,  and  thereafter,  they  had  apprehended

them. He has also disposed that he had recorded the statement  of  the

prosecutrix.

 

 

11.        There exist in the statements  of  the  witnesses  material

contradictions,  improvements  and  embellishments.   In  the   cross-

examination, Baldev Raj Soni (PW.8)   has deposed that he had gone  to

Kurukshetra with his relatives i.e. Ashwini Kumar  and  Surinder,  and

has stated that his son Rajinder was not with him at  such  time.   He

has not deposed that he had  received  any  telephone  call  from  the

warden of any hostel,  as  has  been  suggested  by  the  prosecutrix.

Furthermore, the  prosecutrix  in  her  statement  under  Section  164

Cr.P.C., has not mentioned the incident  involving  her  indulging  in

sexual contact with the appellant at the Karna lake at Karnal. Bhagwan

Chand (PW.12)  has not mentioned that any relatives of the prosecutrix

had accompanied them while they were traveling   from  Kurukshetra  to

Karnal.

 

 

12.        The FIR in the  present  case  has  been  registered  under

Sections 365 and 366 IPC, by Baldev Raj Soni  (PW.8),  father  of  the

prosecutrix, naming several persons, including the appellant, accusing

them of enticing his daughter  and  wrongfully  confining  her  at  an

unknown place.  Thus, he has expressed his apprehension  with  respect

to danger to the life of his daughter.

 

 

13.        Admittedly, the prosecutrix has never raised any  grievance

before any person at any stage. In fact, she seems to  have  submitted

to the will of the appellant, possibly in lieu of his promise to marry

her. . Thus, a question arises with respect to whether,  in  light  of

the facts and circumstances of the present case, the appellant had  an

intention to deceive her from the very beginning when he had asked the

prosecutrix to leave for Kurukshetra with him from Karnal.

 

 

14.        The undisputed facts of the case are as under:

I.The prosecutrix was 19  years  of  age  at  the  time  of  the  said

incident.

II.         She   had   inclination   towards   the   appellant,   and

had willingly gone  with  him  to  Kurukshetra   to                get

married.

III.        The  appellant  had   been   giving   her   assurance   of

the fact that he would get married to her.

IV.          The   physical   relationship   between    the    parties

had    clearly    developed    with     the     consent     of     the

prosecutrix,   as    there    was    neither    a    case    of    any

resistance, nor had she raised any complaint                  anywhere

at any time despite the fact that she                had  been  living

with the appellant for several              days,  and  had  travelled

with him from one place             to another.

V.           Even   after   leaving   the   hostel   of    Kurukshetra

University, she agreed  and  proceeded  to  go  with               the

appellant to Ambala, to get married to him           there.

 

 

15.        Section 114-A of the Indian Evidence Act, 1872 (hereinafter

referred to as the ‘Act  1872’)  provides,  that  if  the  prosecutrix

deposes that she did not  give  her  consent,  then  the  Court  shall

presume that she did not in fact, give such consent.  The facts of the

instant case do not warrant that the provisions of  Section  114-A  of

the Act 1872 be  pressed  into  service.   Hence,  the  sole  question

involved herein is whether her consent had been obtained on the  false

promise of marriage. Thus, the provisions of Sections 417, 375 and 376

IPC have to be taken into consideration, alongwith the  provisions  of

Section 90 of the Act 1872. Section 90 of the Act 1872 provides,  that

any consent  given  under  a  misconception  of  fact,  would  not  be

considered as valid consent, so far as the provisions of  Section  375

IPC are concerned,  and  thus,  such  a  physical  relationship  would

tantamount to committing rape.

 

 

16.        This Court considered the issue involved herein  at  length

in the case of  Uday v. State of Karnataka, AIR 2003 SC  1639;  Deelip

Singh @ Dilip Kumar  v.  State  of  Bihar,  AIR  2005  SC  203;  Yedla

Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and  Pradeep  Kumar

Verma v. State of Bihar & Anr., AIR 2007 SC 3059,   and  came  to  the

conclusion that in the event that  the accused’s promise is not  false

and  has  not  been  made  with  the  sole  intention  to  seduce  the

prosecutrix to indulge in sexual  acts,  such  an  act(s)   would  not

amount to rape.  Thus,  the  same  would  only  hold  that  where  the

prosecutrix, under a misconception of fact  to  the  extent  that  the

accused is  likely to marry her,  submits to the lust of the  accused,

such a fraudulent act cannot be said to be consensual, so far  as  the

offence of the accused is concerned.

 

 

17.        Rape is the most morally and physically reprehensible crime

in a society, as it is an assault on the body, mind and privacy of the

victim. While a murderer destroys the physical frame of the victim,  a

rapist degrades and defiles the  soul  of  a  helpless  female.   Rape

reduces a woman to an animal, as it shakes the very core of her  life.

By no means can a rape victim be called an accomplice. Rape  leaves  a

permanent scar on the life of the victim, and therefore a rape  victim

is placed on a higher pedestal than an  injured  witness.  Rape  is  a

crime against the entire society and violates the human rights of  the

victim. Being the most hated crime, rape tantamounts to a serious blow

to the supreme honour of a woman, and offends  both,  her  esteem  and

dignity. It causes psychological and  physical  harm  to  the  victim,

leaving upon her indelible marks.

 

 

18.        Consent may be express or implied,  coerced  or  misguided,

obtained willingly or through deceit. Consent is  an  act  of  reason,

accompanied by  deliberation, the mind weighing, as in a balance,  the

good and evil on each side.  There is a clear distinction between rape

and consensual sex and in a  case  like  this,  the  court  must  very

carefully examine whether the accused had actually wanted to marry the

victim, or had mala fide motives, and had made a false promise to this

effect only to satisfy his lust, as the latter falls within the  ambit

of cheating or deception.  There is a  distinction  between  the  mere

breach of a promise, and not fulfilling a  false  promise.  Thus,  the

court must  examine whether there was made, at an early stage a  false

promise of marriage by the accused; and whether the  consent  involved

was given after wholly, understanding the nature and  consequences  of

sexual indulgence.  There may be a case where the  prosecutrix  agrees

to have sexual intercourse on account of her love and passion for  the

accused, and not solely on account of mis-representation made  to  her

by the accused, or where an accused on account of circumstances  which

he could not have foreseen, or which  were  beyond  his  control,  was

unable to marry her, despite having every intention  to  do  so.  Such

cases must be treated differently.  An accused can  be  convicted  for

rape only if the court reaches a conclusion that the intention of  the

accused was mala fide, and that he had clandestine motives.

 

 

19.        In Deelip Singh (supra), it has been observed as under:

“20.     The factors set out in the first part  of  Section

90 are from the point of view of  the  victim.  The  second

part of Section 90 enacts the corresponding provision  from

the point of view of the accused.  It  envisages  that  the

accused too has knowledge or has reason to believe that the

consent was given by the victim in consequence of  fear  of

injury or misconception of fact. Thus, the second part lays

emphasis on the  knowledge  or  reasonable  belief  of  the

person who obtains the tainted consent. The requirements of

both the parts should be cumulatively satisfied.  In  other

words, the court has to see whether the person  giving  the

consent had given it under fear of injury or  misconception

of fact and the court should also  be  satisfied  that  the

person  doing  the  act  i.e.  the  alleged  offender,   is

conscious of the fact or should have reason to  think  that

but for the fear or misconception, the  consent  would  not

have been given. This is the scheme of Section 90 which  is

couched in negative terminology.”

 

 

 

 

20.        This Court, while deciding  Pradeep  Kumar  Verma  (Supra),

placed reliance upon the judgment of the Madras High  Court  delivered

in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been  observed:

 

 

“We  are  of  opinion  that   the   expression   “under   a

misconception of fact” is broad enough to include all cases

where the consent is  obtained  by  misrepresentation;  the

misrepresentation  should  be  regarded  as  leading  to  a

misconception of the facts  with  reference  to  which  the

consent  is  given.  In  Section  3  of  the  Evidence  Act

Illustration  (d)  states  that  a  person  has  a  certain

intention is treated as a fact. So,  here  the  fact  about

which the second and third prosecution witnesses were  made

to entertain a misconception was the fact that  the  second

accused intended to get the girl married……..

“thus  …  if  the  consent  of  the  person  from   whose

possession the girl is taken  is  obtained  by  fraud,  the

taking is deemed to be against the will of such a person”.

… Although in cases of contracts a  consent  obtained  by

coercion or fraud is only voidable by the party affected by

it, the effect of Section  90  IPC  is  that  such  consent

cannot, under the criminal law, be availed  of  to  justify

what would otherwise be an offence.”

 

 

 

 

21.        Hence, it is evident that there must be adequate   evidence

to show that at the relevant time, i.e. at initial stage  itself,  the

accused  had no intention whatsoever, of keeping his promise to  marry

the victim. There may, of course,  be  circumstances,  when  a  person

having the best of intentions is unable to marry the victim  owing  to

various unavoidable circumstances.  The “failure  to  keep  a  promise

made with respect to a future uncertain date, due to reasons that  are

not very clear from the evidence available, does not always amount  to

misconception of fact. In order to come within the meaning of the term

misconception of fact, the fact must  have  an  immediate  relevance.”

Section 90 IPC cannot be called into aid  in  such  a  situation,   to

pardon the act of a girl in entirety, and fasten criminal liability on

the other, unless the court is assured of the fact that from the  very

beginning, the accused had never really intended to marry her.

 

 

22.        The instant case is factually very similar to the  case  of

Uday (Supra), wherein the following facts were found to exist:

I.         The prosecutrix was  19  years  of  age  and  had  adequate

intelligence and maturity to understand the significance and  morality

associated with the act she was consenting to.

II.        She was conscious of the fact that  her  marriage  may  not

take place  owing  to  various  considerations,  including  the  caste

factor.

III.       It was difficult to impute to the  accused,   knowledge  of

the fact that the prosecutrix had consented  as  a  consequence  of  a

misconception of fact, that had arisen from his promise to marry her.

IV.        There was no  evidence  to  prove  conclusively,  that  the

appellant had never intended to marry the prosecutrix.

 

 

23.        To conclude, the prosecutrix had left her home voluntarily,

of her own free will to get married to  the  appellant.   She  was  19

years of  age  at  the  relevant  time  and  was,  hence,  capable  of

understanding the complications and issues surrounding her marriage to

the appellant.   According to the version of events provided  by  her,

the prosecutrix had called the appellant on a number given to  her  by

him, to ask him why he had not met her at the place that had been pre-

decided by them. She also waited for him for a long time, and when  he

finally arrived she went  with  him  to  the  Karna  lake  where  they

indulged in sexual intercourse. She did not  raise  any  objection  at

this stage and made no complaints to any one.   Thereafter,  she  also

went to Kurukshetra with the  appellant,  where  she  lived  with  his

relatives.  Here to, the prosecutrix voluntarily became intimate  with

the appellant.  She then, for some reason, went to live in the  hostel

at Kurukshetra University illegally, and once again came into  contact

with  the  appellant  at  the  Birla  Mandir.   Thereafter,  she  even

proceeded with the appellant to the old bus-stand in  Kurukshetra,  to

leave for Ambala so that the two of them could get married in court at

Ambala. However, here they were apprehended by the police.

 

 

24.        If the prosecutrix was in fact going to Ambala to marry the

appellant, as stands fully established from the evidence on record, we

fail to understand on what basis the allegation of “false  promise  of

marriage” has  been  raised  by  the  prosecutrix.  We  also  fail  to

comprehend the circumstances in which a charge of deceit/rape  can  be

leveled against the appellant, in light of  the  afore-mentioned  fact

situation.

 

 

25.        In view of the above, we are of the considered opinion that

the appellant, who has already served more than 3 years  sentence,  is

entitled to the benefit of doubt. Therefore, the appeal  succeeds  and

is allowed. His conviction and sentences awarded by the  courts  below

are set aside.  The  appellant  is  on  bail.  His  bail  bonds  stand

discharged.

…………….J.

(Dr. B.S. CHAUHAN)

Court cannot impound a passport.

Court cannot impound a passport.

 

“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.”

 

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].

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

Supreme Court of India

Suresh Nanda vs C.B.I on 24 January, 2008

Bench: P Naolekar, M 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.

Grounds for cancellation of Bail.

 

Grounds for cancellation of Bail

“Constitution of India, 1950, Art. 136-Appeal by special leave against an order rejecting an application for cancellation of bail-Court cannot permit use of new material against accused. Constitution of India, 1950, Art. 136-Appeal by special leave against an order rejecting an application for cancellation of the bail-Interference with the findings of the High Court as to whether the accused tampered with prosecution witnesses, when justified. Bail, cancellation of–Power to cancel bail, must be exercised with care and circumspection and in appropriate cases-Crl.P.C. (Act 11 of 1974), 1973, s. 439(2). Bail cancellation of-Grounds must bear casual connection with same act or conduct of accused–CrI.P.C. (Act 2 of 1974). 1973, Ss. 439(2) r/w 437(5). Burden of proof, extent of-In an application for cancellation of bail.”

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Supreme Court of India

State Through Delhi … vs Sanjay Gandhi on 5 May, 1978

Equivalent citations: 1978 AIR 961, 1978 SCR (3) 950

Bench: Chandrachud, Y.V.

PETITIONER:

STATE THROUGH DELHI ADMINISTRATION

Vs.

RESPONDENT:

SANJAY GANDHI

DATE OF JUDGMENT05/05/1978

BENCH:

CHANDRACHUD, Y.V. ((CJ)

BENCH:

CHANDRACHUD, Y.V. ((CJ)

FAZALALI, SYED MURTAZA

SHINGAL, P.N.

CITATION:

1978 AIR 961 1978 SCR (3) 950

1978 SCC (1) 411

CITATOR INFO :

D 1985 SC 969 (12)

ACT:

Constitution of India, 1950, Art. 136-Appeal by special leave against an order rejecting an application for cancellation of bail-Court cannot permit use of new material against accused.

Constitution of India, 1950, Art. 136-Appeal by special leave against an order rejecting an application for cancellation of the bail-Interference with the findings of the High Court as to whether the accused tampered with prosecution witnesses, when justified.

Bail, cancellation of–Power to cancel bail, must be exercised with care and circumspection and in appropriate cases-Crl.P.C. (Act 11 of 1974), 1973, s. 439(2). Bail cancellation of-Grounds must bear casual connection with same act or conduct of accused–CrI.P.C. (Act 2 of 1974). 1973, Ss. 439(2) r/w 437(5).

Burden of proof, extent of-In an application for cancellation of bail, the proof of the plea that witnesses turned hostile because they were won over by the accused need not be beyond a reasonable doubt-Evidence Act, 1872- Ss.3, 101-104 r/w Crl.P.C. S. 439(2).

HEADNOTE:

The respondent who was arraigned as accused No. 2 in a prosecution for offences u/Ss. 120B r/w Ss. 409, 435 and 201 I.P.C. instituted by the Central Bureau of Investigation in the Court of the Chief Metropolitan Magistrate, Delhi was granted anticipatory bail, by the High Court of Delhi. When the Committal Proceedings commenced in the Court of the Chief Metropolitan Magistrate, Delhi on February 20, 1978 as per the time schedule fixed by this Court, the two approvers in the case turned hostile, resiled from their statements made to the police u/s 161 of Crl.P.C., and retracted the confessions made to the Chief Metropolitan Magistrate. An application filed for cancellation of the respondents bail was dismissed by a learned single Judge of the Delhi High Court on 11-4-1978.

Allowing the appeal in part, the Court

HELD : 1. In an appeal by special leave against an order rejecting ax application for cancellation of bail, no new material which was not available to the High Court will normally be allowed to be relied upon by the State, it would be unfair to the respondent to make use of that material without giving him an adequate opportunity to meet it on the ground that the additional data came into existence after the High Court gave its judgment. Though, in appropriate cases, the Court has the power to take additional evidence, that power has to be exercised sparingly, particularly in appeals brought under Article 136 of the Constitution. [956 D-E]

2. In an appeal by special leave against an order rejecting an application for cancellation of the bail, the High Court’s findings are normally treated by this Court as binding on issues like : whether the prosecution has succeeded in proving its case that the respondent has tampered with its witnesses and that

951

there is a reasonable apprehension that he will continue to indulge in that course of Conduct, if he is allowed to remain at large. If two views of the evidence are reasonably possible and the High Court has taken one view, this Court will be disinclined to interfere therewith in an appeal under Art. 136 of the Constitution. (958 E-F) In the instant case :-(a) the High Court has rejected incontrovertible -evidence on hypertechnical considerationsthough it points in one direction only, leaving no manner of doubt that therespondent has misused the facility afforded to him by that Court by granting anticipatory bail to him(b) Even excluding the last incident in regard to Charan Singh which is really first in point of time and though it is corroborated by an entry in the General Diary, the other evidence viz., (i) Yadav’s complaint of the 14th February, (ii) Khedkar’s complaint of even date, (iii) Yadav’s admission in his evidence that he did make the written complaint in spite of the fact that he had turned hostile, (iv) the affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th and (v) the affidavit of Sarup Singh regarding the incident of February 28. furnish satisfactory proof that the respondent has abused his liberty by attempting to suborn the prosecution witness. He has therefore forfeited his right to remain free. [960 G-H 961 A)

3.Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Sessions to direct that any person who has between released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process. [961 A-C]

Madhukar Purshottam Mondakal v. Talab Haji Hussain 60, Bombay Law Reporter 465 andGurcharan Singh & Ors. v. State (Delhi Administration), 1978 Criminal Law journal, 129, 137; Principles in, applied.

4.Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. The objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent. [957 AF]

5.It is not necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused. The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Indeed, proof of facts by preponderance

952

of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for, example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. [957 G-H, 958 A-D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 188 of 1978.

Appeal by Special Leave from the Judgment and Order dated the 11th April, 1978 of the Delhi High Court in Criminal Misc. Application No. 130 of 1978.

Ram Jethmalani, and R. N. Sachthey for the Appellant. A.N. Mulla, D. Mathur, B. R. Handa and D. Goburdhan for Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, C.J.-The respondent is arraigned as accused No. 2 in a prosecution instituted by the Central Bureau of Investigation in the Court of the learned Chief Metropolitan Magistrate Delhi. Omitting details which are not necessary for the present purpose the case of the prosecution is as follows :

One Shri Amrit Nahata had produced a film called ‘Kissa Kursi Ka’, which portrayed the story of the political doings of the respondent and his mother, Smt. Indira Gandhi, the former Prime Minister of India. The Board of Censors declined to grant a certificate for exhibition of the film whereupon, Shri Nahata filed a writ petition in this Court for a Writ of Mandamus. On October 29, 1975, a direction was given by the Court that the film be screened on November 17 to enable the Judges to see whether the censorship certificate was refused rightly. In order to prevent this Court from exercising its constitutional jurisdiction and with a view to preventing the film from being publicly exhibited, the respondent and his co-accused Shri Vidya Charan Shukla, who was then the Minister for Information and Broadcasting, entered into a conspiracy to take possession of the film and to destroy it. In pursuance of that conspiracy, 13 steel trunks containing 150 spools of the film were brought under special escort from Bombay to Delhi at the behest of Shri. Shukla. The consignment reached the New Delhi Railway Station on November 10, 1975. The spools were then loaded in two tempo vehicles belonging to the res- pondent or to his company, M/s. Maruti Ltd., Gurgaon, of which respondent was the Managing Director. The vehicles, which were driven by Ram Chander and Charan Singh were taken to Gurgaon at

953

the premises of Maruti Limited where, under instructions given by the respondent, the spools were destroyed by setting fire to them some time prior to November 24, 1975. A positive print of the film was lying in the Auditorium of the Ministry at Mahadev Road, New Delhi, which was taken charge of by one Ghose, a Deputy Secretary in the Ministry of Information and Broadcasting. The loaded it in Shri Shukla’s staff car whereupon Shri Shukla himself delivered the print at No. 1, Safdarjang Road, where the respondent and his mother used to live at the relevant time. The Supreme Court was informed that it was not possible to screen the film for evaluation by the Judges. And the writ petition filed by Shri Nahata came to an abrupt end upon an affidavit being filed on March 22, 1976, by Chose that the spools of the film had got mixed up with some other films received by the Government in connection with the International Film Festival.

After the emergency was lifted and the present Janata Government came into power, a certain information was received in consequence of which a raid was effected on the Gurgaon premises of the Maruti Limited. The raid yielded incriminating material to show that the 13 boxes which had been received from Bombay at the New Delhi Railway Station contained the spools of the film ‘Kissa Kursi Ka’ which were burnt and destroyed in the factory premises. R. B. Khedkar. a Security Officer of the Maruti Limited and his assistant, Kanwar Singh Yadav, who was the Security Supervisor of the company, were arrested on the very day of the raid. Yadav made a statement on the following day stating how the film was burnt in the premises of the factory. Yadav’s confessional statement was recorded by the Chief Metropolitan Magistrate on June 3 and Khedkar’s on June 4. They were granted pardon under section 306 of the Code of Criminal Procedure on July 14, 1977. During the course of investigation, various statements were recorded by the- police including those of the two drivers of the tempo vehicles, Ram Chander and Charan Singh, a watchman called Om Prakash and several employees of the Store Department of the company.

After completion of the investigation, a chargesheet was filed by the C.B.I. in the Court of the Chief Metropolitan Magistrate citing 138 witnesses for proving charges under section 120B read with sections 409, 435 and 201 of the Penal Code as also for substantive offences under the last mentioned three sections of the Penal Code.

In certain proceedings for contempt and perjury which were filed in this Court against Shri Shukla, it was directed by the Court on January 2, 1978, that the Chief Metropolitan ‘Magistfate shall commence the hearingof the case on February 15 and that the Sessions Court will co the trial on March 20, 1978, and shall proceed with the hearingfrom day to day. By an order dated February/March 14, the Court extended the time limit by four days in each case. The committal proceedings commenced in the Court of the learned Chief Metropolitan Magistrate, Delhi on February 20, 1978. Khedkar who was examined on that day supported the procecution fully except

10 329 SCI/178

954

that he admitted in his cross-examination that he had written two inland letters, which may tend to throw a cloud on his evidence. On February 21, the second approver Yadav was examined by the prosecution. He resiled both from the statement which he made to the policeunder section 161 of the Code of Criminal Procedure as well as fromhis judicial confession. The recording of Yadav’s evidence was over on the 22nd.

On February 27, 1978, an application was filed by the Delhi Administration, in the High Court of Delhi for cancellation of the respondent’s bail. That application having been dismissed by a learned single Judge on April 11, 1978, the Administration has filed this appeal by special leave. Before the High Court, the following submissions were made on behalf of the appellant

(1)That the respondent was charged with offences amongst which is the offence under section 409 of the Penal Code which is punishable imprisonment for life. The respondent, having been accused of a non-bailable offence, it was wrong in the first instance to enlarge him on bail. (2)initially, the investigation was started in respect of the conspiracy and theft of the Mm from the custody of the Government. The respondent had obtained an order of anticipatory bail from the Delhi High, Court in respect of those offences. It transpired during the course of investigation that a far more serious offence under section 120B read with section 409 of the Penal Code was committed by the respondent and the co-accused. Even though prior to July 14, 1977, on which date the chargesheet was filed, the State was in possession of information showing that the respondent was trying to tamper with the witnesses, the State did not apply for cancellation of the anticipatory bail nor did it ask the Magistrate to issue a non-bailable warrant because the very witnesses who were attempted to be tampered with had complained to the police that the respondent was trying to win them over. In the larger interest of justice, the State did not adopt a vindictive attitude towards the respondent by asking that he should be taken into custody;

(3)It was the duty of the High Court to enforce the pro- visionsof section 437 of the Code of Criminal Procedure when it was broughtto its notice that the respondent, being charged with an offence under section 409 which is punishable with life imprisonment was illegally oil bail, particularly when he had misused his liberty. The obligation of the Court to enforce the provisions of section 437 of the Code of Criminal Procedure does not depend upon whether the State has acted with vigilance and promptitude. (4) The burden which rests on the State in ‘an application for cancellation of bail is of a limited nature. All that is necessary for the State to show, in support I of its plea that bail be cancelled, is that there is a reasonable apprehension that by tampering with witnesses, 95 5

the accused is interfering with the course of justice. It’is neither necessary to prove the fact of tampering with mathematical certainty nor indeed beyond a reasonable doubt. The test to be adopted in such matters is one of ‘reasonable apprehension’.

(5)On February 13 and 14, 1978, approver Yadav, first through Khedkar and then by an application written and signed by himself, complained to the C.B.I. Officers that the respondent was trying to tamper with his evidence through Ram Chander, the driver of the tempo. Within a week thereafter, that is on February 21, 1978, Yadav turned hostile by going back upon the statement which he had made before the police under section 161 of the Code of Criminal Procedure and on his confessional statement recorded by the Magistrate on the basis of which he had secured pardon a few days earlier. This incident by itself was sufficient to justify the State’s plea that there was a reasonable apprehension in the mind of the prosecution that the respondent was tampering with their witnesses. , (6)The fact that the respondent had contacted Yadav on February 17 and was seen in Yadav’s company on that date was supported by the evidence of Ganpat Singh, a Postal Peon, Digamber Das, an employee of the Maruti Limited and Satpal Singh, a constable of the Haryana Armed Police. There was no justification for disbelieving the affidavits of these three persons.

(7)As far back as July 1977, the respondent had attempted to tamper with two witnesses, Charan Singh and A. K. Dangwal. Both of these witnesses had given written applications to the police complaining of attempts made by the respondent to win them over. The entries made by the police in the General Diary corroborated the complaints made by these witnesses. The two complaints, though not acted upon promptly by the police by asking for the cancellation of respondent’s bail, render it highly probable that during the later stages of the trial several witnesses turned hostile on account of the pressure and influence which the respondent exercised on them.

(8)It was through Ram Chander that approver Yadav was ap- proached and tampered with. On February 21, 1978, Ram Chander was sitting in the Court though his presence, was not necessary and indeed, he entered the court-room along with a group of respondent’s partisans for whom the respondent had obtained the Magistrates permission by seeing him in his chamber.

(9)These very contentions have been repeated before us by Shri Ram Jethamalani who also relied upon some additional data in support of the application for cancellation of the respondent’s bail. The new material on which counsel relies has come into existence after the High Court delivered its judgment on April 1.1 and in the very nature of things, the High Court has had no opportunity to consider its weight and relevance on the question in issue.

Shri A. N. Mulla who appears on behalf of the respondent controverted each and every allegation made by the appellant. He contends that the prosecution has been, launched out of political vendetta, that ,ordinary offences triable by a Magistrate have been magnified beyond 956

all proportion, that pardon was tendered to the so-called approvers though no charge could have been levelled against them, for the sole purpose of attracting the application of section 306(5) of the Criminal Procedure Code so as to drag the accused to the Sessions Court, that the police with their unlimited resources have left no stone unturned in order somehow to implicate the accused and that evidence in regard to tampering of witnesses is manufactured with a view to explaning away the tell-tale circumstance that the key witnesses, including one of the approvers, have refused to support the prosecution. The prosecution, according to counsel, ventured into sensation-mongenng by building the super-structure of a Sessions trial on a slip foundation and having been disillusioned by the performance of its star witnesses, it has resorted to the expedient of asking for cancellation of the respondent’s bail in order to give prop to a failing can based on trumped-up charges. Strong objection was taken by the learned counsel to the attempt made by the appellant to cite new and additional material before us. This, according to him is impermissible in an appeal filed by leave under article 136 of the Constitution, since the only question that is open to us to consider is whether, on the, material before it, the High Court is right in coming to the conclusion to which it did- We are not disposed to allow the State to rely on any new material which was not available to the High Court. true, that the additional data came into existence after the High Court gave its judgment but it would be unfair to the respondent to make use of that material without giving him an adequate opportunity to meet it. That will entail a fairly long adjournment which may frustrate the very object of the proceedings initiated by the State. Besides, though in appropriate cases the court has the power to take additional evidence, that power has to be exercised sparingly, particularly in appeals brought under article 136 of the Constitution. The High Court, while dismissing the State’s application for cancellation of bail, has reserved to it the liberty to approach it “if, at any time in future, the respondent abuse& his liberty”. The new developments could, if the prosecution is so advised,be brought to the High Court’s attention for obtaining suitable relief. We cannot spend our time in scanning affidavits and sifting materialfor the first time for ourselves, for determining whether the new material can justify cancellation of bail. We propose, therefore, to limit ourselves to the facts and incidents which were before the High Court and on which it has pronounced.

We ought not to forget, while dealing with the rival contentions, that the trial is still pending in the Sessions Court and any observation made by us in this incidental proceeding may unwittingly influence the course of trial. We will take care to see that nothing is said on the merits of the matter, no comment made on the veracity of witnesses and no subtle guidance offered to unravel why the witnesses have turned hostile. These matters, at this moment, are within the exclusive domain of the Sessions Court and we cannot, by employing an artifice, withdraw the decision of these questions to ourselves. It is the privilege of the Sessions Court, not of- the Supreme Court, to try the 957

accused. We must therefore make it clear that nothing said by us in our judgment shall influence the decision of the case and the Sessions Judge is free to assess and evaluate the evidence, unhampered by any observations we may have happened to make.

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.brother,a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude-, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. Therefore, Mr. Mulla is right that one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have, of their own volition, attemptedto protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend uponlow much the respondent has obliged them in the past.It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent.

Before we go to the facts of the case, it is necessary to consider what precisely is the nature of the burden which rests on the prosecution in an application for cancellation of bail. Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because the, are won over by the accused ? We think not. The issue of cancella- tion of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached under section 83 of the Criminal Procedure Code, whether a search of person of premises was taken as required by the provisions of section 100 of the Code, whether a confession is recorded in strict accordance with

958

the requirements of section 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by section 27 of the Evidence Act are all matters which fall peculiarly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard. Indeed, proof of facts by preponderance of probabilities as: in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

Our task therefore is to determine whether, by the application of the test of probabilities, the prosecution has succeeded in proving its case that the respondent has tampered with its witnesses and that there is a reasonable apprehension that he will continue to indulge irk that course of conduct if he is allowed to remain at large. Normally, the High Court’s findings are treated by this Court as binding on such issues, but, regretfully, we have to depart from that rule since the High Court has rejected incontrovertible evidence on hypertechnical considerations. if two views of the evidence were reasonably possible and the High Court had taken one view, we would have been dis- inclined to interfere therewith in this appeal under article 1.36 of the Constitution. But the evidence points in one direction only, leaving no manner of doubt that the respondent has misused the facility afforded to him by the High Court by granting anticipatory bail to him. The sequence of events is too striking to fail to catch the watchful eye. But, we will not enter too minutely.into the several incidents on which the appellant relies to prove its case. We will confine ourselves to some of the outstanding instances and show how the prosecution is justified in its apprehension.

Kanwar Singh Yadav was working at the relevant time as a Security Supervisor under R. B. Khedkar who was the Security officer of Maruti Ltd. Both of them were arrested an the very day of the raid, that is, on May 25, 1977. On the 26th, the police recorded Yadav’s statement and on the 28th, he made a petition to the Chief Metropolitan Magistrate, expressing his willingness to confess.

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The confessional statement was recorded on June 3 and Yadav was granted pardon on July 14, under section 306 of the Code of Criminal Procedure. Khedkar made a confession on June 4 and was granted pardon on July 14, 1977. The C.B.I. filed the chargesheet on 14th July itself.

The committal proceedings were fixed by this Court by an order dated January 2, 1978 to begin peremptorily on February 15, 1978. The respondent obtained a modification of that order, by virtue of which the proceedings began on February 20.

One day before the proceedings were originally scheduled to begin, that is on 14th February, the two approvers. Yadav and Khedkar appeared at the C.B.I. office and filed written complaints dated the 13th that the respondent was making repeated attempts to call Yadav to meet him by sending the car with Ram Chander, the driver of the respondent. One of these complaints is signed by Yadav and the other by Khedkar. Yadav turned hostile when he was examined on the 21st February before the Committing Magistrate. He went back on his police statement, resiled from his confession and risked his pardon. But he admitted in his cross- examination to the Public Prosecutor that he had given the complaint to the C.B.I. He explained it away by offering a series of excuses but we will only characterise that attempt as lame and unconvincing. A deeper probe into the matter and its critical analysis is likely to exceed the legitimate bounds of this proceeding and therefore we will stop with the observation that there is more than satisfactory proof of the respondent having attempted to suborn Yadav. Whether Yadav succumbed to the persuasion is not for us to say. The Sessions Judge shall have to decide that question uninfluenced by anything appearing herein. We are concerned with the respondent’s conduct, not with Yadav’s reaction or his motives. Khedkar stuck to the complaint.

That is in regard to the event of the 14th February. On the 17th ‘ Yadav and the respondent were seen together, the former leaving,, the Maruti factory with the respondent in his car. This is supported by the affidavits of Sat Pal Singh, a constable of the Haryana Armed Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and Digambar Das, an Assistant Despatch Clerk in Maruti. It is undisputed that the respondent had gone for official work to the factory on the 17th. The High Court objects the inci- dent firstly because it is not mentioned in the petition for cancellation of the respondent’s bail. The affidavit of Ved Prakash, Inspector of Police, C.B.I., shows that information of the incident was received on the 24th whereas the petition was drafted on the 22nd February. That apart, we cannot understand the High Court to say that the affidavits of the three witnesses could not be accepted because the verification clause of the affidavits was “most defective” as it could not be said “what part of the affidavit is true to the knowledge of the deponent and what part thereof is true to the belief of the deponent”. This reason has been cited by the learned Judge for rejecting many an incident but then it was open to him to ask for better particulars of 960

verification. The witnesses claim to have seen with their own eyes that Yadav drove away with the respondent. The incident consisted of one single event and there was no possibility of the witnesses’ knowledge being mixed up with their belief. We find it impossible. to endorse this part of the High Court’s reasoning and are inclined to the view that the respondent ultimately succeeded in establishing contact with Yadav. Whether the respondent succeeded in achieving his ‘ultimate object is beyond us to, say except that Yadav turned hostile in the Committing Magistrate’s court on February 21.

The High Court has also rejected the affidavit of Sarup Singh that on February 28, 1978, while he was doing duty as an armed. constable at the factory, he saw the respondent coming to the factory and heard him assuring Yadav that he need not worry. The verification clause of the affidavit was again thought to be ‘defective”. We are unable to agree with this part of the learned Judge’s judgment for reasons already indicated.

We are also unable to agree with the High Court that the complaint filed by Charan Singh on July 12 in regard to the incident of July 5, 1977 and the complaint filed by A. K. Dangwal on July 9 in regard to the incident of July 7, 1977 are “irrelevant” since the prosecution did not even oppose the grant of bail to the respondent after the chargesheet was filed on July 14, 1977. It is true that it is not possible to accept Shri Jethmalani’s explanation of the inactivity on the part of the prosecution even after receiving the two complaints showing that the respondent was trying to tamper with the witnesses. Concessions of benevolence cannot readily be made in favour of the prose- cution. But it cannot be overlooked that Charan Singh did turn hostile, though that happened after the, High Court gave its judgment on April 1 1. The respondent knows that the witness turned hostile and significantly, though the witness refused to support the prosecution he made an important admission that he bad submitted a written applica- tion or complaint to Inspector Ved Prakash on July 12, 1977 and that “whatever is mentioned in that application is correct”. That application which is really a complaint, contains the most flagrant allegation of attempted tampering with the witness by the respondent, through his driver Chattar Singh. Reference to this incident is not in the nature of Additional evidence properly so called because the witness was examined in the Sessions Court in the presence of the respondent and his advocates. They know what the witness stated in his open evidence and what explanation he gave for making. the complaint on July 12, 1977. The Sessions Court will no doubt assess its value but for our limited purpose, the episode is difficult to dismiss as irrelevant.

Even excluding the last incident in regard to Charan Singh which is really first in point of time and though it is corroborated by an entry in the General Diary, we are of the opinion that (i) Yadav’s complaint of the, 14th February, (ii) Khedkar’s complaint of even date, (iii) Yadav’s admission in his evidence that he did make the written complaint inspite of the fact that he had turned hostile (iv) the affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th and (v) the affidavit of Sarup Singh

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regarding the incident of February 28, furnish satisfactory proof that the respondent has abused his liberty by attempting to, suborn the prosecution witnesses. He has therefore forfeited his right to remain free. Section 439(2) of the Code of Criminal Procedure confers jurisdictionon the High Court or Court of Sessions to direct that any person whohas been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than. permit a few to ensure that justice shall not be done.

The power to cancel bail was exercised by the Bombay High Court in Madhukar Purshottam Jondkar v. Talab Haji Hussain(1) where the accused was charged with a bailable offence. The test adopted by that Court was whether the material placed before the Court was “such as to lead to the conclusion that there is a strong prima facie case that if the accused were to be allowed to be at large he would tamper with the prosecution witnesses and impede the course of justice”. An appeal preferred by the accused against the judgment of the Bombay High Court was dismissed by this Court. In Gurcharan Singh and others v. State (Delhi Administration,(2) while confirming the order of the High Court cancelling the bail of the accused, this Court observed that the only question which the Court had to consider at that stage was whether “there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials”, that “there was a likelihood of the appellants tampering with the prosecution witnesses”. It is by the application of this test that we have come to the conclusion that the respondent’s bail ought to be cancelled.

But avoidance of undue hardship or harassment is the quint- essence of judicial process. Justice, at all time and in all situations, has to be tempered by mercy, even as against persons who attempt to tamper with its processes. The apprehension of the prosecution is that ‘Maruti witnesses’ are likely to be won over. The instances discussed by us are also confined to the attempted tampering of Maruti witnesses like Yadav and Charan Singh, though we have excluded Charan Singh’s complaint from our consideration. Since the appellant’s counsel has assured us that the prosecution will examine the Maruti witnesses immediately and that their evidence will occupy no

(1) 60 Bombay Law Reporter 465.

(2) 1978 Criminal Law Journal 129. 137.

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more than a month, it will be enough to limit the cancellation of respondent’s bail to that period. We hope and trust that no unfair advantage will be taken of our order by stalling the proceedings or, by asking for a stay on some pretext or the other. If that is done, the arms of law shall be long enough. Out of abundant caution, we reserve liberty to the State to apply to the High Court, if necessary, but only if strictly necessary. We are hopeful that the State too will take our order in its true spirit. In the result, we allow the appeal partly, set aside the judgment of the High Court dated April 1 1, cancel the respondents bail for a period of one month from to-day and direct that he be. taken into custody. Respondent will, in the normal course, be entitled to be released on fresh bail on the expiry of the aforesaid period. The learned Sessions Judge will be at liberty to fix the amount and conditions of bail. The order of anticipatory bail will stand modified to the extent indicated herein.

S. R. Appeal allowed in part

 

Revision against interim maintenance under section 24 of HM Act.

Revision against interim maintenance under section 24 of HM Act.

 

“It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).”

 

THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL. M.C. 3948/2008

Date of Decision: 18.05.2012

SANTOSH MALHOTRA ….. Petitioner Through: Ms. Nandita Rao, Advocate.

versus

VED PRAKASH MALHOTRA AND OTHERS …. Respondents Through: Ms. Arati Mahajan,

Advocate.

CORAM:

HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This petition under Section 482 CrPC assails the order dated 23.8.2008 of ASJ passed in criminal revision filed by the petitioner against the order of the M.M. dated 8.3.2007.

2. The petitioner is the wife of the respondent No. 1 and the mother of the respondents No. 2 & 3. She filed a petition under Section 125 CrPC against them seeking maintenance. In the said case, the learned M.M. declined the request of the petitioner for grant of interim maintenance vide his order dated 8.3.2007. The said order was taken in revision by the petitioner in the court of Additional Sessions Judge, who vide the impugned order dated 23.8.2008 granted interim maintenance to the petitioner against her husband (respondent No. 1) at the rate of Rs. 2000/-

Crl.M.C. 3948/2008 Page 1 of 8 per month from the date of the filing of the application. The petitioner has challenged the said order of the ASJ in the present petition and seeks enhancement of compensation against her husband (respondent No.1) as also compensation against her sons i.e. respondents No. 2 & 3.

3. It is noted that all the grounds which have been taken in the present petition under Section 482 CrPC are the same which were taken by the petitioner in the revision petition before the ASJ. Practically, the present petition though, filed under Section 482 CrPC is nothing, but a second revision petition against the order of the M.M. Though, the second revision petition was not maintainable, but having regard to the fact that no findings have been recorded by the ASJ qua the respondents No. 2 & 3 i.e. the sons of the petitioner and respondent No.1, I deem it a case warranting exercise of power of this court under Section 482 CrPC.

4. Before proceeding further, it may be noted that the petitioner and the respondent No. 1 are residing in the same house. This house is three storied comprising of ground, first and second floors. It is undisputed that both the parties are cooking and eating separately. Undisputedly, the respondent No.1 is meeting all the household expenses such as water, electricity charges, maintenance of house, payment of house tax etc. It is also undisputed that respondent No.1 is a person retired from Air India and also that the petitioner owns a house at Mumbai. It is also admitted case that under Section 24 of Hindu Marriage Act, the petitioner was granted Rs. 3500/- per month maintenance from the respondent No. 1 vide order dated 25.11.2009 of ADJ. In CM (M) No. 357/2010, this court enhanced the maintenance to Rs. 4500/- per month and undisputedly, the Crl.M.C. 3948/2008 Page 2 of 8 same is being paid by the respondent No. 1 to the petitioner. It is further undisputed that both the respondents No. 2 & 3, who are the sons of the petitioner and the respondent No.1 are not residing with them in the said house. Respondent No. 2 Prem Prakash is residing at Australia, while respondent No.3 Anil is living sometimes with his sister at Mumbai and sometimes in rented premises.

5. Having noted above the undisputed and admitted facts, the petitioner’s case as set out is that the maintenance of Rs. 4500/- per month is not sufficient and need to be enhanced. She has alleged her husband to be getting Rs. 10,000/- per month as pension and Rs. 15,000/- from the banks as interest on deposits and further, a sum of Rs. 3000/- per month from insurance. With regard to her son Prem Prakash (respondent No.2), who is residing at Australia, she alleged his income to be more than Rs. 2 lakhs per month. Regarding her son Anil (respondent No.3), she alleges him to be working at Mumbai and earning Rs. 30,000/- per month.

6. On the other hand, the respondents pleaded that the petitioner has F.D. to the tune of Rs. 10 lakhs from which, she was getting fixed interest @ Rs. 15,000/- per month. It is alleged that she owns a property at Mumbai, which is lying vacant and can be let out by her. The respondent No. 1 denied that he was earning Rs. 15,000/- per month as interest from bank. It is pleaded that he was getting only Rs. 5000/- per month on the investments made by him in addition to the sum of Rs. 3000/- which he was getting from LIC.

Crl.M.C. 3948/2008 Page 3 of 8

7. I have heard learned counsel for the parties and perused the impugned judgment and also the records.

8. This is a case of really one of the unfortunate family of scattered members. All the four members are living their independent lives. The petitioner seems to be trying to abuse the benevolent provisions of Section 125 CrPC. This Section is designed to help the needy and not the greedy. It is not meant for settling the personal scores, but it is experienced that it is often being misused and the present case is an instance. Here is a lady who owns a house at Mumbai, but is neither prepared to let it out on rent nor give it to her son who is living at the mercy of his sister and sometimes, in some rented house at Mumbai. Though, the petitioner has denied to be having F.D. of Rs. 10 lakhs in the different banks, but she, in any case has admitted the F.D. of Rs. 2 lakhs. She knows that her husband is a retired and ailing person. The pleas that her husband (respondent No.1) is getting Rs. 10,000/- p.m. as pension and Rs. 15,000/- from investments is nothing but a bundle of lies. The respondent No.1 is a retired person and has placed documentary evidence on record to show that he is getting Rs. 3086/- per month as pension through Employee Contributory Scheme based on his own contribution made after his retirement. This fact has already been taken note of by this court in CM (M) No. 357/2010. In the said case, it was the petitioner’s own submission that her husband was getting interest of Rs. 5000/- per month from deposits. Now, she has alleged that he was getting Rs. 15,000/- p.m. without there being any basis for the same. In fact, in the said petition, this court had enhanced the maintenance from Rs. 3500/- Crl.M.C. 3948/2008 Page 4 of 8 per month to Rs. 4500/- per month based on the material available on record to the effect that the income of the respondent No. 1 was Rs. 8000/- per month i.e. Rs. 5000/- as interest from deposits and Rs. 3086/- from Employee Contributory Pension Scheme. Neither before the courts below nor in the CM (M) No. 357/2010 nor in the present proceedings, the petitioner has been able to show her husband’s income as alleged by her. All that she has alleged is vague and baseless.

9. Taking all these into consideration, the learned M.M. observed that she was capable of maintaining herself.

10. From the undisputed factual matrix, it comes out to be that the petitioner owns a house at Mumbai. She has some fixed deposits in the banks, which according to the respondents are worth Rs. 10 lakhs, which according to the petitioner, is only Rs. 2 lakhs. In any case, she is undisputedly getting some interests on these deposits, which has not been disclosed. No evidence has been adduced by either of the parties as regards to deposits amount or the interest therefrom. This emerges to be a triable issue. Undisputedly, she was living in a house where she was not incurring any expenses on rent or other amenities such as water, electricity, cable, house tax etc. She is continuously getting Rs. 4500/- per month from her husband. She was also entitled to the medical facilities of her husband as per his service rules.

11. With regard to the respondent No. 2, who is residing at Australia, it was submitted by the respondents that he is working in a remote area and was the only bread earner of his family and was not in a regular

Crl.M.C. 3948/2008 Page 5 of 8 permanent employment. His salary was stated to be about 800 Australian Dollars per week, which was stated to be insufficient for him and his family needs. With regard to the respondent No.3, it was stated that he is unemployed and even unable to maintain himself and is living at the mercy of his sister at Mumbai.

12. It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).

13. With regard to the claim of the petitioner from her sons (respondents No. 2 & 3), it was submitted on behalf of her son Prem Prakash that his weekly income was about 800 Australian Dollars. The details of the expenses of his family have also been submitted in writing. However, he has offered 100 Australian Dollars per month as maintenance to the petitioner, which according to me, at this stage, seems to be just and reasonable. The petitioner has claimed arrears of maintenance from him, but the same was outrightly refuted saying that this respondent was in a very bad financial condition to give any arrears. With regard to respondent No. 3 Anil also, there is nothing on record at Crl.M.C. 3948/2008 Page 6 of 8 this stage to see his income. But, since he is an able-bodied young boy, it is his moral as well as legal duty to give something to his mother. In the absence of there being any material available on record, he would be liable to pay maintenance to his mother (petitioner) @ Rs. 1500/- per month.

14. The matter does not end here. During the proceedings conducted on 26.3.2012, the respondent No. 1 had stated that he had let out the second floor of the premises to a tenant @ Rs. 10,000/- per month. He offered 50% of the rent i.e. Rs. 5000/- per month to be given to the petitioner w.e.f. 22.4.2012. The petitioner and her counsel agreed to this offer but later, she demanded the whole of the rent and also alleged the rent to be more than Rs. 10,000/- per month. In the proceedings conducted on 26.3.2012, the offer as given by her son Prem Prakash of 100 Australian Dollars per month as also of her husband of Rs. 5000/- per month out of the rent and to continue pay Rs. 4500/- per month as before, was outrightly declined by the petitioner in the subsequent proceedings. This shows the conduct of the petitioner, who seem to be not only greedy and trying to settle the scores, but was extremely aggressive also. However, irrespective of all that, I think that the offers given by the respondents No. 1 & 2 are quite just and reasonable given the facts and circumstances of the case.

15. In view of the above discussion, it comes out to be that the petitioner would be entitled to maintenance @ Rs. 4500/- per month from the date of this order from her husband (respondent No.1) under Section 125 CrPC. In addition, she would be entitled to maintenance of 100 Crl.M.C. 3948/2008 Page 7 of 8 Australian Dollars from her son Prem Prakash (respondent No.2) and Rs. 1500/- per month from her son Anil (respondent No.3). Having regard to the peculiar circumstances of the respondents No.2 and 3, they are directed to pay these amounts of maintenance to petitioner from the date of this order. The issues regarding claims of maintenance from them from the date of application, shall be determined at time of final disposal of the petition by the Trial Court. She would be also entitled to Rs. 5000/- per month w.e.f. 22.4.2012 being half of the rent of the premises of second floor let out by the respondent No. 1. It is clarified that in the event of any increase in the rent amount of the said premises at any point of time, half of the rent whatever may be, shall be continued to be paid to the petitioner by her husband (respondent No.1). Consequently, the impugned order stands modified in the manner as indicated above.

16. Petition along with miscellaneous applications stand disposed of.

Maintenance Under section 125 of Cr.P.C for wife and children.

Punjab & Haryana High Court

Amarjit Kaur vs Harbhajan Singh And Anr
Equivalent citations: Bench: D Raju, H Sema  –

2003 (1) AWC 344 SC, (2003) 2 CALLT 23 SC – 23 October, 2002

Order

1. The above appeals have been filed against the order of a learned single judge of the High Court of Punjab and Haryana at Chandigarh dated 10.11.2000 in civil revision No. 5057/ 1998 and a subsequent order dated 7.12.2000 passed in a review application No. 112-C-II/2000.

2. Heard Mr. Raju Ramachandran, learned senior counsel for the appellant and Mr. K. Rajendra Choudhary, learned senior counsel for the respondent.

3. The appellant is the wife of the first respondent. The respondent – husband has filed a petition under Section 13 of the Hindu Marriage Act, 1955 before the court of learned district judge, Ludhiana seeking dissolution of the marriage by grant of a decree for divorce on the grounds of alleged adultery and cruelty. The said petition is still pending for trial and final disposal. Pending the said petition, the appellant herein filed an application under Section 24 of the Hindu Marriage Act, 1955 claiming maintenance for a sum of Rs. 3000/- per month for herself and Rs. 1000/- each for minor children residing with her. There is no dispute over the fact that out of the lawful wedlock, the appellant has given birth to three daughters and one son, of which, one daughter is said to be with the appellant. There is yet another son who is also living with the appellant-wife, who also is claimed to be a son borne out of the lawful wedlock, though the respondent-husband would raise doubts about the details of parentage of the said child. Having regard to the fact that a limited notice has been issued in this case, confined to the question with regard to the order passed by the High Court for conducting a DNA test of the child, it is unnecessary to deal with the details with reference to the claims made by the respective parties about the details of income of either of the parties. Suffice it to state that the learned trial judge has chosen to reject the claim for interim maintenance and on a revision before the High Court, the learned single judge though was prepared to countenance the claim of the wife and as a matter of fact directed the respondent -husband to pay Rs. 2000/- by way of litigation expenses to the appellant and pay a further sum of Rs. 2000/- per month by way of maintenance from the date of her application, proceeded further and observed as follows :-

“During the course of the submissions, it was suggested to the counsel for the petitioner and his client Smt. Amarjit Kaur whether they are willing to get DNA test of the male child namely Samarjit Singh. Before concluding, directions are also given to the trial court to order for conducting the DNA test of the male child who is in the custody of the petitioner and if the test goes against the petitioner, she will not be entitled to get any maintenance pendente lite for herself but she will definitely get the maintenance for the girl child whose maintenance is fixed at Rs. 1000/- per month.”

4. Aggrieved, the wife moved an application by way of review and sought to bring to the notice of the court the decision reported in Goutam Kundu v. State of West Bengal and Anr., The learned single judge, by a cryptic order, has chosen to reject the review application with costs, in a sum of Rs. 1000/- Hence, the above appeals.

5. The learned senior counsel for the appellant strenuously contended that the conduct of the parties which requires to be adjudicated in the main writ petition has no relevance, at the stage of granting interim or pendente lite maintenance and that the consideration in this regard has to be confined to the criteria specified in Section 24 of the Hindu Marriage Act, 1955. It was also pointed out that imposition of a condition which will operate as a disfeasance clause, to deprive the very maintenance order to be paid, particularly of the nature imposed in this case directing the conduct of DNA test of the male child in question is not warranted. Argued the learned counsel further that this Court in the decision in Goutam Kundu’s case (supra), declared the legal position as to the circumstances under which and the limitations to be observed in compelling anyone to give a sample of blood against his/her will for DNA analysis, keeping in view, the serious consequences flowing from the same, i.e., the branding of a child as a bastard and the mother as an unchaste woman. It was made clear therein that no adverse inference can be drawn against the person for his refusal. According to the learned counsel for the appellant, such an order could not and ought not to have been made at this stage and in the manner it has been done, by the court on its own imposing the same as a conditional direction affecting even the right to get pendent lite maintenance, without even their being any formal application from the respondent – husband and justifying any such claim, in accordance with law.

6. Per contra, the learned senior counsel appearing for the respondent, relying on the decision reported in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., JT 1999 (8) SC 329 contended that in the matter of grant of maintenance, there is no impediment for the court to impose a condition of the nature and in case of refusal to cooperate to conduct the DNA test, make the defaulting party suffer consequences thereof. It was also urged that no exception could be taken to the course adopted by the learned single judge in the light of the serious dispute raised with reference to the parentage of one male child living with the wife. The learned counsel also contended that the discretion exercised by the learned single judge of the High Court on the peculiar facts and circumstances of the case, is not at all a matter which needs or calls for any interference in an appeal under Article 136 of the Constitution of India.

7. We have carefully considered the submissions of learned counsel appearing on either side.

8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent. Once the High Court, in this case, has come to the conclusion that the wife – appellant herein has to be provided with the litigation expenses and monthly maintenance, it is beyond comprehension as to how, de hors the criteria laid down in the statutory provision itself, the court could have thought of imposing an extraneous condition, with a default clause which is likely to defeat the very claim which has been sustained by the court itself. Consideration as to the ultimate outcome of the main proceeding after regular trial would be wholly alien to assess the need or necessity for awarding interim maintenance, as long as the marriage, the dissolution of which has been sought, cannot be disputed, and the marital relationship of husband and wife subsisted. As noticed earlier, the relevant statutory consideration being only that either of the party, who was the petitioner in the application under Section 24 of the Act, has no independent income sufficient for her or his support, for the grant of interim maintenance, the same has to be granted and the discretion thereafter left with the court, in our view, is only with reference to reasonableness of the amount that could be awarded and not to impose any condition, which has self-defeating consequence. Therefore, we are unable to approve of the course adopted by the learned single judge, in this case.

9. Coming now to the nature of the condition imposed, though, it has been seriously contended for the appellant that no such condition could have been imposed to compel the undergoing of a DNA test of the male child, we do not propose to express any opinion on the legality or propriety of the court undertaking consideration at the appropriate stage, by the court competent, in the main petition of any application moved in an appropriate manner according to law, but we would confine our consideration to the limited aspect as to whether the High Court could have imposed such a condition at the stage of awarding interim maintenance pendente lite and that too without an application for the purpose from the other party, at the instance of the court by way of a suggestion put to the appellant in the course of consideration of the application for interim maintenance. The law in the matter governing the consideration and passing of any order in respect of a claim for DNA test has sufficiently been laid down by this Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test, we fail to see how the court on its own could have imposed a condition without any consideration whatsoever of any of the criteria laid down by this Court, by adopting a novel device of imposing it as a condition for the grant of the interim maintenance, with a default clause, which as rightly contended for the appellant, will have the inevitable consequences of predetermining the claim about the parentage with serious consequences even at the preliminary stage. The procedure, thus, adopted by the High Court does not appear to be neither just nor reasonable or in conformity with the principles of law laid down by this Court and consequently the order is liable to be set aside. The decision in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (supra) relied for the respondent, in our view, has no relevance or application to the case on hand. That was a case wherein, in dealing with a claim for maintenance invoking the summary proceedings under Section 125 of the Cr.P.C., the husband attempted to defeat the claim made by the wife by asserting non performance of essential rites at the time of marriage, the factum of which as well as the parentage of the child could not be questioned. In the process of ascertaining the genuineness of the said stand, when the suggestion made to the husband to undergo DNA test was refused by him, and the court dealing with the application by summary proceedings chose to observe that the husband was disentitled to challenge the paternity of the child in the proceedings under Section 125 Cr.P.C., this Court declined to interfere with the order of the trial court on the question of prima facie satisfaction recorded as to the proof of marriage. We see absolutely no general principle of law laid down in this case which could be said to lend any support to the plea on behalf of the respondent. We are unable to persuade ourselves to agree with the plea urged for the respondent that the case does not warrant our interference in these appeals, since, we find that a serious and flagrant violation of law has been committed by the High Court, in the matter disposing of the revision and review petition, and the same ought not to be allowed to get sanctified, with our approval, too.

10. The order passed rejecting the review application summarily despite the fact that a judgment of this Court relevant for the purpose has been brought to the notice of the court, without even expressing any view on the matter, by itself, is sufficient to set aside the order made on the review petition. It is really surprising that the court should have thought of awarding cost in a sum of Rs. 1000/- against the wife, who was before the court seeking for maintenance pendente lite.

11. The appeals are allowed. The order in so far as it relates to the offending condition relating to the DNA test is set aside. In other respects, the order in so far as it awards the litigation expenses and monthly maintenance is sustained. We make it clear that we are not expressing any opinion about the rights of the parties to seek for the relief for the DNA test or the evidentiary value of the same and the trial court shall be at liberty to consider the matter relating to such claims on their own merits, in accordance with law. No costs.

Revision against Interim order of Maintenance u/s 127 of Cr.P.C.

Revision against Interim order of Maintenance u/s 127 of Cr.P.C.

.” Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre- condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.”

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

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 1859/2008

RAJEEV PREENJA ….. Petitioner Through Mr. Sanjay Jain, Advocate

versus

SARIKA & ORS ….. Respondents Through Mr. Manish Kapur, Advocate

for R-1 & 2.

Mr. Sanjay Lao, APP for State.

and

CRL.M.C. 3089/2008 & Crl M A 11390/2008 (stay) RAJEEV PREENJA ….. Petitioner Through Mr. Sanjay Jain, Advocate

versus

SARIKA & ORS ….. Respondents Through Mr. Manish Kapur, Advocate

for R-1 & 2.

Mr. Sanjay Lao, APP for State.

CORAM:

HON’BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

ORDER

26.02.200 9

1. Both these petitions arise out of the same set of facts and are being disposed of by this common order.

2. Crl M C No. 1859 of 2008 is directed against the order dated 28 th November 2007 passed by the learned Additional Sessions Judge Crl M C Nos. 1859/2008 & 3089/2008 Page 1 of 16 („ASJ‟) Delhi dismissing Criminal Revision No. 47 of 2007 filed by the Petitioner husband thereby affirming an order dated 29th August 2007 passed by the learned Metropolitan Magistrate („MM‟) Delhi directed the Petitioner to pay interim maintenance @ Rs.2,000/- per month to his wife Respondent No.1 Sarika and Rs.1,500/- per month to his minor son Respondent No.2 Master Anurag from 8th February 2004 till the disposal of the petition on merits.

3. Crl M C No. 3089 of 2008 also by the petitioner husband is directed against the order dated 14th August 2008 passed by the learned MM in execution proceedings directing issuance of warrant of attachment of the moveable property of the Petitioner towards realization of the interim maintenance awarded against him.

4. On the first date of hearing of Crl M C No. 1859 of 2008 on 28th May 2008 this Court had directed that “the petitioner shall continue to pay interim maintenance as awarded by the trial court” during the pendency of this petition. However, despite two adjournments since then, the Petitioner has not complied with this direction. As a result despite, succeeding in her petition for interim maintenance before the learned MM and in the revision petition by the husband before learned ASJ, Respondents 1 and 2 date have till date not received any amount whatsoever from the Petitioner. Further, till date there has never been a stay of the order of the learned MM. The reason offered for non- Crl M C Nos. 1859/2008 & 3089/2008 Page 2 of 16 compliance is the petitioner‟s financial incapacity. This is the same ground urged before and rejected by the learned ASJ. Also, it is not as if the petitioner has made payment of a portion of the amount due to Respondents 1 and 2 and is willing to pay the balance in a reasonable time. It is a blunt refusal to make any payment whatsoever, even to the minor son. This conduct of the petitioner in making no attempt whatsoever to comply with this Court‟s direction is unacceptable and should disentitle the petitioner to relief. Nevertheless learned counsel for the Petitioner has been heard at length on the merits of the case as well.

5. The petitioner and Respondent No.1 were married on 23 rd November 2000. The child Anurag was born to them on 4 th October 2001. According to Respondent No.1 soon after the marriage she began to be harassed by the Petitioner husband and his family members for dowry. In particular they demanded that her parents should give a residential flat. Respondent No.1 was beaten several times and left at her parents‟ place. Later a compromise was effected on 15th July 2002 but this was short lived. On 11th June 2003 after being beaten up by her in-laws, Respondent No.1 along with her minor son again came to her parents‟ house. For a second time a compromise appears to have been reached before the police on 6th August 2003 with the Petitioner agreeing that he, respondent No.1 and the child would live in a separate flat within six months. On this assurance, Respondent No.1 agreed that her complaint made to the police should be treated as closed. Subsequently the Special Crl M C Nos. 1859/2008 & 3089/2008 Page 3 of 16 Executive Magistrate also closed the proceedings under Sections 107/151 CrPC by an order dated 21st September 2003. Even this apparently did not work out. Respondent No.1 was back in her parents‟ house on 8th February 2004 with the child.

6. In the meanwhile in Complaint Case No.445/3/03 was filed by Respondents 1 and 2 against the Petitioner under Section 125 CrPC seeking maintenance. Respondent No.1 stated that she was not earning and also had no source of income whereas the Petitioner was employed in a book publication house earning around Rs. 12000 per month. Accordingly Respondent No.1 claimed maintenance of Rs. 4,000 per month for herself and Rs. 3,000 per month for the child (Respondent No.2). The Petitioner filed a written statement not denying the relationship with Respondents 1 and 2 but pleading financial incapacity as he was without employment since 23rd December 2003 on account of the threats received from Respondent No.1 and her family members. His father had retired from a private job and was not earning pension. His mother was working in the MTNL.

7. During arguments before the Learned MM, Mahila Courts in the application for interim maintenance filed by Respondent No.1, the Petitioner‟s counsel submitted that Respondent No.1 had left the matrimonial home of her own accord and was therefore living separately “without any sufficient reason.” It was submitted that she was not Crl M C Nos. 1859/2008 & 3089/2008 Page 4 of 16 entitled to even interim maintenance in terms of Section 125 (4) CrPC. It was further submitted that due to the behavior of Respondent No.1, the Petitioner was under mental depression. Medical certificates dated 15th March 2005 and 25th July 2005 issued by the Psychiatrists at the Institute of Human Behaviour and Allied Sciences (IHBAS) to that effect were produced. The learned MM after perusing the certificates noticed that it had not been stated therein that the Petitioner was behaving in an abnormal way or that his situation was such that he was incapacitated from taking up any employment. While the certificates showed that he underwent treatment till 25th July 2005, they did not indicate that he required to be treated even thereafter. On the basis of the earning capacity of the Petitioner as evidenced by his recent employment, the learned MM, by the impugned order dated 29th August 2007 directed him to pay interim maintenance of Rs.2000 per month to Respondent No.1 wife and Rs. 1500 per month to the Respondent No.2 child from 8 th February 2004 (excluding the period between 15 th March to 25th July 2005 when the Petitioner was receiving treatment at IHBAS). The aforementioned order was affirmed by the learned ASJ by the dismissal of the revision petition filed against it by the Petitioner by the impugned order dated 28th November 2007.

8. It is first submitted by learned counsel for Petitioner that under Section 125 (4) CrPC no order for interim maintenance can be passed if the Court is satisfied that the wife is, “without any sufficient reason” Crl M C Nos. 1859/2008 & 3089/2008 Page 5 of 16 refusing to live with her husband. It is submitted that in the instant case, although the Petitioner has always been willing to take back Respondent No.1, it is she who has been unreasonably refusing to come back to the matrimonial home.

9. This argument is without merit. At the outset it requires to be noticed that the above argument would be relevant, if at all, only in the context of the grant of interim maintenance to Respondent No.1 wife. In fact, the Petitioner offers no justification whatsoever for not paying till date any interim maintenance to the child as directed. The learned MM while deciding the question of payment of interim maintenance to a wife is only expected to form a prima facie opinion whether such wife was staying away from the husband without any sufficient reason. If the argument of the Petitioner has to be accepted then it is only after the entire evidence is led that an order for interim maintenance can be passed. That would defeat the very purpose of providing for payment of interim maintenance in Section 125. What the learned MM is required to determine at the stage of grant of interim maintenance is to be prima facie satisfied, on the basis of the pleadings and any other material on record, that the wife has not stayed away from the husband without sufficient reason. Applying such yardstick, it cannot be said that in the instant case the respondent No.1 wife stayed away from the husband without sufficient reason. On the other hand, even on the petitioner‟s own showing, she came back to the matrimonial home after two Crl M C Nos. 1859/2008 & 3089/2008 Page 6 of 16 attempted compromises, both of which unfortunately did not last long. Without at this stage determining which of the parties was responsible for the situation in which they were unable to stay together, it is held that the pleadings do not prima facie show that the Respondent No.1 stayed away from the husband without sufficient reason. This submission of the learned counsel for the Petitioner is therefore rejected.

10. As regards the financial incapacity, and the mental unsoundness of the petitioner, this Court finds that these grounds were rejected by the learned MM for cogent reasons. The view taken by the learned MM and affirmed by the learned ASJ on this aspect cannot be said to be perverse and warranting any interference. The grant of interim maintenance to Respondent No. 1 wife and Respondent No.2 minor son as ordered by the learned MM cannot be said to be excessive or unreasonable.

11. For these reasons, the is no merit in any of the grounds raised in Crl.M.C No. 1859 of 2008 and it is accordingly dismissed with costs of Rs.10,000 which will be paid by the petitioner to Respondent No.1 within a period of four weeks from today.

12. This brings for consideration the next issue concerning the implementation of the order of the learned MM directing the payment of interim maintenance. This is the subject matter of challenge in the other petition Crl.M.C. No. 3089 of 2008. Court finds that the Petitioner by his Crl M C Nos. 1859/2008 & 3089/2008 Page 7 of 16 conduct of refusing to comply with the orders of interim maintenance passed against him, particularly when there was no stay of those orders, has driven the Respondents 1 and 2 to further despair. It would be indeed be a travesty of justice that an indigent wife who has been awarded interim maintenance on merits by the learned MM, and has thereafter succeeded before the learned ASJ with the dismissal of the husband‟s revision petition, is unable to get the order implemented for over eighteen months.

13. The facts as far as the present case is concerned are stark. The wife filed an application for interim maintenance way back in 2003 when the relationship with her the petitioner husband was already in trouble. Admittedly she has not been living with the petitioner since 8th February 2004. The burden of looking after the child has been entirely hers since then. She could get an award of interim maintenance only after three and a half years i.e. on 29th August 2007. Yet, till date she has not been able to get the said order implemented. The Respondent No.1 has therefore been compelled to go back to the court of the learned MM in 2007 itself for implementation of the order of interim maintenance passed in her favour by that court. Those proceedings were resisted by the petitioner for over a year. Ultimately by the impugned order dated 14th August 2008 the learned MM, after noting that no payment had been made by the petitioner till then, issued warrants for attachment of the moveable property of the petitioner.

Crl M C Nos. 1859/2008 & 3089/2008 Page 8 of 16

14. The petitioner questions the device of an execution petition before the learned MM as being without the authority of law and with no statutory backing of the CrPC. While it is true that the legislature has not provided for a separate execution proceedings to enable the wife in whose favour an order of interim maintenance has been passed to get the said order implemented, the provision contained in Section 125 (1) CrPC indicates that the learned MM is expected to keep the proceedings pending before that court for the purpose. In Section 125 (1) CrPC the words used are:” …a Magistrate …may, upon proof of such neglect or refusal, order such person to make a monthly allowance…at such monthly rate …as the Magistrate may from time to time direct.” A similar expression is used in the second proviso to Section 125 (1) CrPC in the context of interim maintenance. The expression “from time to time” is intended to enable the Magistrate to monitor the implementation of the orders passed by the learned MM including the orders awarding interim maintenance. That is the only way that the orders awarding interim maintenance can be expected to be implemented. Otherwise, an unscrupulous husband will be under no pressure of compliance despite suffering an adverse order. To regale such a remedy to the wife will defeat the very purpose of the provision. Therefore the objection raised by the petitioner husband on the ground of lack of jurisdiction in the learned MM to entertain an execution petition is without merit and is rejected as such.

Crl M C Nos. 1859/2008 & 3089/2008 Page 9 of 16

15. The other phenomenon that requires to be discouraged is that a mere filing of a revision petition by a husband against an order granting interim maintenance to the wife and/or child is construed as an implied stay of that order. As a result the wife has to wait for an even longer period for the implementation of the order in her favour. The method that should be deployed to overcome this hurdle is for the revisional court to insist that the husband‟s revision petition will not be entertained till such time the husband against whom the order of interim maintenance has been passed, deposits the entire arrears of interim maintenance up to date in terms of the said order of the learned MM in the court of the learned ASJ. Otherwise the husband will be able to indefinitely postpone the implementation of the orders of interim maintenance by driving the wife from one court to another without her receiving any payment whatsoever. This only compounds the agony of the wife and serves to defeat the interest of justice. This situation ought not to be allowed to continue if justice in the real sense should be done to an Indian wife who is in dire straits and unable to survive with her child for want of economic means of subsistence. Given the huge pendency of work in the courts of the learned MM, an application under Section 125 CrPC is unable to be disposed of within a year. Even an order of interim maintenance is able to be passed only after a year. Crl M C Nos. 1859/2008 & 3089/2008 Page 10 of 16

16. It is accordingly directed that when a revision petition is filed by husband in the court of the learned ASJ against an order of interim maintenance passed by a learned MM in favour of the wife, the said revision petition will not be entertained by the learned ASJ till the entire amount of interim maintenance due under the order of the learned MM up to the date of filing of the revision petition is first deposited in the court of the learned ASJ. The respondent wife and child, if any, should be permitted by the learned ASJ to withdraw the whole or part of the said sum, upon such terms and conditions as may be determined by the learned ASJ.

17. This Court has, in the decision of Gaurav Sondhi v. Diya Sondhi 120 (2005) DLT 426 in the context of an application for interim maintenance under Section 24 of the Hindu Marriage Act, 1955 („HMA‟) issued certain guidelines. This Court finds that the said guidelines could be implemented by learned MM dealing with application under Section 125 CrPC seeking enforcement of orders awarding interim maintenance or maintenance. The relevant guidelines read as under:

“4. The matrimonial courts should follow the

following procedure while granting interim

maintenance/ maintenance:

(i)Whenever maintenance/interim maintenance

is ordered, the Court will direct that it will be paid on or before 10th day of every month

Crl M C Nos. 1859/2008 & 3089/2008 Page 11 of 16 unless the Court finds that the nature of the

employment of the husband and his manner of

income makes such monthly payments impractical. In such a situation appropriate

orders may be passed which shall take into

account the circumstances of the husband

which warrant departure from the time bound

monthly payment directions contained in this

order. ;

(ii) whenever the wife has a bank account and

indicates it, such payment may directly be

deposited in such bank account every month

before the 10th day of the month.

(iii) The payment shall be made to the

wife/child and in case of any difficulty in

receiving or tendering the payment, it should

be made through counsel. The order of deposit

in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court’s

registry. If for good reasons upon finding

difficulty in payment to a wife and her counsel the deposits in Court are made such deposits

should be in the name of the wife by a

draft/crossed cheques, which may be retained

on the court file for retrieval by the wife

without the time consuming process of deposit

in the Court account and subsequent withdrawal by the recipient;

Crl M C Nos. 1859/2008 & 3089/2008 Page 12 of 16 (iv) In case there is first default for payment of maintenance, the Court may condone it.

However, in case of second default without

justification, it will be open to the Court to impose a penalty up to 25% of the amount of

monthly maintenance awarded;

(v) In case there is third or fourth default, the penalty may go up to 50% of the monthly

amount of maintenance upon the court finding

that the default was not condonable or

contumacious in nature.

(vi) The Court must ensure that the orders of

maintenance are not a mere rhetoric and are

meaningful and effective and give real

sustenance and support to the destitute wife

and/or the child.

(vii) In case interim maintenance is being paid and adequate litigation expenses have been

awarded to the wife, it should be ensured that the written statement/reply is filed within a

reasonable time.

(viii) However, in judging the nature of default the relative affluence of the husband and the

regular nature of his occupation and income

will be taken into account. Obviously husbands having irregular employment and/or daily

wages or those having casual employment

would be entitled to have their defaults viewed more liberally.”

Crl M C Nos. 1859/2008 & 3089/2008 Page 13 of 16 The above directions are reiterated and it is expected that the learned MMs dealing with applications under Section 125 CrPC will ensue their compliance.

18. In the context of the desired time limit for disposal of application for interim maintenance,Radhika Narang & Ors. v. Karun Raj Narang & Anr (decision dated 16th January 2009 in FAO (OS) No. 139 of 2006) the Division Bench of this Court has observed as under: “14. ………….. in matrimonial disputes, the interim maintenance and custody issues deserve the most expeditious disposal. We are

further of the view that maintenance and

custody cases must take precedence over

matters of property or money claims. The

learned Single Judge in the above judgment

had rightly recorded the expectation that

period for award of interim maintenance to be

one month from the date of filing the

application. However, in view of the pressure

of work on matrimonial courts due to

proliferation of matrimonial disputes and

considerable shortage of judicial manpower, a

more realistic time frame has to be prescribed. In our view the interim maintenance applications in matrimonial disputes ought to

be disposed of with dispatch and certainly

should not take in any event more than 1 year

at the highest. The very purpose of interim

maintenance is defeated if it takes about 3

Crl M C Nos. 1859/2008 & 3089/2008 Page 14 of 16 years, as in the present case as an interim

application for maintenance filed on 23rd May, 2003 came to be disposed of only on 16th

February, 2006. We therefore direct that all the Courts in Delhi, therefore, must keep the need for urgent disposal of such applications in

mind, and ensure the disposal of the interim

maintenance applications within one year from

the date of filing of such applications in

matrimonial matters.”

19. Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre- condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.

20. Keeping in view the facts and circumstances of the case, this petition is dismissed with cost of Rs.10,000/- which will be paid by the Petitioner to Respondent No.1 within four weeks from today. The learned MM will ensure that these costs are paid and a proof of deposit of payment be furnished to the learned MM by the Petitioner. Crl M C Nos. 1859/2008 & 3089/2008 Page 15 of 16

21. Accordingly, both these petitions are dismissed with costs of Rs.10,000/- each in the manner as indicated hereinabove. The costs will be paid by the Petitioner to Respondent No.1 within four weeks from today and a proof of the same be furnished to the learned MM.

22. The directions issued in paras 16 to 19 of this judgment should be followed strictly by the courts of the learned MMs and learned ASJs. A copy of this order be sent to the learned District Judge for issuing appropriate directions and for being circulated to all the courts hearing matrimonial matters for information and compliance. S. MURALIDHAR, J.

FEBRUARY 26, 2009

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

HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. No. 3009/2011

Date of Decision: 07.9.2011

SATISH MEHRA ….. Petitioner Through Mr. G.P. Thareja with Mr. Dharmish

Thanai, Advs.

versus

ANITA MEHRA ….. Respondent Through None.

CORAM :

HON’BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be

allowed to see the judgment ? No

2. To be referred to the Reporter or not ? No

3. Whether the judgment should be reported

in the Digest ? No V.K. SHALI, J.(Oral)

Crl. M.A. No. 10600/2011

1. This is an application for condonation of delay of 479 days in filing the present petition under Section 482 Cr.P.C against the order dated 12.4.2010.

2. The ground for condonation of delay as stated in the application is that, the petitioner had preferred a revision petition in the Court of Crl. M.C. 3009/2011 Page 1 of 9 Sessions against the impugned order. However, it was brought to the knowledge of the petitioner that the case from which this revision petition has arisen had been transferred to the Family Court and therefore, the revision petition against an order passed by the learned MM could not be entertained by the learned Sessions Court. Accordingly, the petitioner had sought permission to withdraw the petition with liberty to approach the High Court. This prayer of the petitioner was allowed by the learned Addl. Sessions Judge, vide order dated 04.8.2011. It is stated that because of this reason there was a delay of 479 days which was beyond the control of the petitioner and constitutes ‘sufficient cause’ under Section 5 of the Limitation Act and accordingly, the same may be condoned.

4. I have heard the learned counsel for the petitioner and perused the averments. I am of the view that for the reasons mentioned in the application, the delay of 479 days in filing the present petition under Section 482 Cr.P.C was occasioned because of the pendency of the revision petition in Sessions Court, which did not have the power to deal with the same and this constitutes ‘sufficient cause’ and accordingly, the same is condoned.

Crl. M.C. 3009/2011 Page 2 of 9

5. Application stands allowed.

Crl. M.A. No. 10599/2011

1. This is an application seeking exemption from filing the legible/certified copies.

2. Subject to the deficiency being rectified in due course, the application is allowed.

3. Application stands disposed of.

Crl. M.C. No. 309/2011 & Crl. M.A.No. 10598/2011

1. This is a petition filed by the petitioner under Section 482 Cr.P.C assailing the order, dated 12.4.2010, passed by Ms.Veena Rani, learned Metropolitan Magistrate, by virtue of which the learned Magistrate has directed the present petitioner to pay an interim maintenance to the respondent/wife and three children @ Rs.35,000/- per month w.e.f. 28.4.2009 till the time the complaint of the respondent/wife under Section 125 Cr.P.C is decided on merits.

2. Briefly stated, the facts leading to the filing of the present petition are that the petitioner got married to the respondent on 18.2.1980 in India according to Hindu Rites and ceremonies. The petitioner, at the time of marriage, was a non-resident Indian (NRI). He was settled in Crl. M.C. 3009/2011 Page 3 of 9 the US since 1975. The respondent migrated to US with the petitioner where another marriage ceremony is alleged to have taken place on 19.05.1982. The couple was blessed with three children; daughter Nikita born on 02.04.1988, daughter Riva born on 10.11.1989 and son Neal born on 10.11.1989.

3. Matrimonial relations between the present petitioner and the respondent were not very cordial. It is alleged that from 1980 till 1992, the present petitioner used to give US $ 31,200 per month to the respondent/wife for running her household affairs. However, it is alleged that the cheque of the aforesaid amount when encashed used to be taken back by the petitioner, thus, she never got the monthly allowance from the petitioner which made her life very difficult.

4. It is also alleged that the petitioner used to, physically as well as mentally, abuse the respondent as well as her children. The respondent had gone to the extent of lodging a report against the petitioner of having subjected his own daughter Nikita to physical and sexual abuse.

5. It is also alleged that there was an amount of Rs.4.58 crores in the joint account of the present petitioner and the respondent/wife, which was drained off by him. The petitioner is stated to be a man of status Crl. M.C. 3009/2011 Page 4 of 9 who has assets in India as well as in US. The value of the assets in India is stated to be approximately Rs.13 crores, while as the value of the assets of the petitioner in US is not known to the respondent. On the basis of the aforesaid facts, after migration to India respondent filed a complaint under Section 125 Cr.P.C claiming maintenance @ Rs.3,79,500/- for herself and for her children.

6. Learned Metropolitan Magistrate after discussing the case law and taking the prima facie view of the documentary evidence observed that the claim of maintenance by the respondent/wife to the tune of Rs.3,79,500/- per month was highly excessive. However, keeping in view the facts of the case and the various principles of law, the learned MM came to the conclusion vide order dated 12.4.2010 that the respondent/wife is entitled only to a maintenance @ Rs.35,000/- per month till the final disposal of the petition from the date of filing of the application, i.e. 28.4.2009.

7. Against the said order dated 12.4.2010, a revision petition was filed, which was kept pending till the order dated 04.8.2011 was passed by the learned Additional Sessions Judge wherein the petitioner had sought withdrawal of the petition with liberty to file a petition before the Crl. M.C. 3009/2011 Page 5 of 9 High Court and thereafter the present petition has been filed.

8. I have heard the learned counsel for the petitioner. He has tried to go into the merits of the impugned order by alleging that the respondent/wife was in the habit of leveling false and frivolous allegations against the present petitioner. In this regard, he has drawn the attention of the Court to a reported judgment in the case titled, Satish Mehra vs. Delhi Administration (SC), reported as 1996 (3) Recent Criminal Reports, page 410, where the Appellate Court had quashed the FIR and the proceedings under Section 354 & 376 IPC lodged by the respondent/complainant against the present petitioner for having sexually abused her three year old daughter. I have gone through the said judgment. No doubt that the Apex Court had quashed the FIR under Section 354 & 376 IPC on account of false and frivolous allegations purported to have been made by the respondent/ wife. However, that cannot be the basis for challenging an order of grant of ad interim maintenance. Section 397(3) Cr.P.C. clearly lays down that revision petition against an interlocutory order is not permissible. Admittedly, order of grant of ad interim maintenance is an interlocutory order and could not be assailed in revision. If it has to be challenged, the petitioner Crl. M.C. 3009/2011 Page 6 of 9 has to make out an overwhelming case to show that the exercise of powers under Section 482 Cr.P.C. is warranted to prevent the abuse of processes of law and to secure the ends of justice. The learned counsel for the petitioner has not been able to point out any such infirmity in the impugned order. Orders regarding grant of ad interim maintenance are passed to prevent vagrancy. In the instant case the respondent has not only to look after herself but has also to look after her three children and their education. It was specifically put to the learned counsel for the petitioner since an order of interim maintenance was passed against him on 12.4.2010, requiring him to pay maintenance to the respondent/wife @ Rs.35,000/- per month, w.e.f. 28.4.2009, he should inform the Court as to how much amount of money he has paid from 28.4.2009, to the respondent/wife, till date. The answer to this question was that not even a single penny has been paid by the present petitioner to the respondent despite the impugned order having been passed. In such a contingency, the learned counsel for the petitioner is made aware of the pronouncement of this Court in the case titled Rajeev Preenja vs. Sarika in Crl. M.C. No.1859/2008 reported as 2009(159) DLT 616, wherein the learned Single Judge of this Court had taken a view that the revision Crl. M.C. 3009/2011 Page 7 of 9 petition filed by the husband in the Court of learned Sessions Judge against the order of interim maintenance passed by the learned Magistrate in favour of the wife ought not to be entertained till the time the entire amount of interim maintenance, which was due under the order passed by the learned Magistrate is actually paid or deposited in the Court. It is pertinent to note that the respondent/wife in the said case has not only to maintain herself but her children also.

9. In my considered opinion, the petitioner, before being permitted to assail the validity of the order passed under Section 125 of the Cr.P.C, though it is an interlocutory order, ought to have shown his bona fide by paying some amount of maintenance to the respondent/wife. He was specifically given an opportunity to deposit some amount at his own discretion in order to show his bona fide, however, learned counsel for the petitioner explains his inability. If the petitioner is seeking to assail an order of interim maintenance without paying even a single penny as maintenance to the respondent/wife, I am afraid that such a petition ought not to be entertained because the whole purpose of passing an order of interim maintenance gets defeated. The petitioner has been directed to pay interim maintenance with effect from Crl. M.C. 3009/2011 Page 8 of 9 28.04.2009 and nearly two and a half years have elapsed not even a single penny has been paid. Under these circumstances, how the respondent, a lady with three children, is going to survive.

10. I have gone through the impugned order. I do not find any infirmity in the same so as to assume that there is any gross abuse of the processes of law or any order to the contrary to the one which is already passed on 12.04.2010, is required to be passed.

11. Dismissed.

V.K. SHALI, J

SEPTEMBER 07, 2011

 

Sec.360 of Cr.P.C..Order to release on probation of good conduct or after admonition.

360.Order to release on probation of good conduct or after admonition.-

(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behavior:

Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under the sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehensions.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

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Pashora Singh and Lahora Singh, two brothers were tried for offences under Sections 307/447/326/324/323 read with Section 34 of the Indian Penal Code for inflicting injuries on Amar Singh and Pal Singh on 27.8.1981. The Learned Trial Judge held that charges under Sections 307 and 326 were not established. The Trial Judge found both the accused guilty for the offences under Sections 447, 324 and 323 of the Indian Penal Code. As the accused were not previous convicts, they were granted the benefit of probation under Section 360 of the CrPC.

 

 

Supreme Court of India

Pashora Singh And Another vs State Of Punjab

on 9 October, 1992

Equivalent citations: AIR 1993 SC 1256, 1993 CriLJ 1053

Author: N Kasliwal

Bench: K Singh, N Kasliwal

ORDER

N.M. Kasliwal, J.

1. Special leave granted.