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                   “Rape is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta.”

            “There is an old Jewish saying “if you are close when you should be distant, you will be distant when you should be close”. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues”

Rape is a crime against one’s mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protestedto condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J.S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women.

Undoubtedly there is a manifold increase in the crime concerning rapes, but all the rape cases which are filed have their own individual story and factual matrix. While most of the cases may be genuine, wherein the girl is a victim of this horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl but there may be cases where both persons out of their own will and choice, develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship with a man but when the relationship breaks due to one or the other reason, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her. Out of anger and frustration, they tend to convert such consensual sex as an incident of rape, defeating the very purpose of the provision. There is a clear demarcation between rape and consensual sex and in cases where such controversies are involved, the court must very cautiously examine the intentions of both the individuals involved and to check if even the girl on the other hand is genuine or had malafide motives. Cases like these not only make mockery of the sacred institution of marriage but also inflate the statistics of rape cases which further deprecates our own society.

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                                BAIL APPLN. 311/2013

ROHIT CHAUHAN

….. Petitioner

Through Mr. B.S. Rana with Mr.T   Mr.VijenderBhardwaj and

Mr. Satyam Sisodiya, Advs.

Versus

 

STATE NCT OF DELHI

….. Respondent

Through Mr. Navin Sharma, APP for the State.

Mr.MasroorAlam Khan, Adv. for the

complainant.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

ORDER  :  22.05.2013

  1. By this application filed under Section 438 Cr.P.C. the petitioner seeks grant of anticipatory bail.
  2. The petitioner herein is accused of committing the offence under Sections 376/506/328 IPC in FIR No. 39/2013 registered with PS Rani Bagh. As per the prosecuterix, Ms.Rupali Thakur it is alleged that she had an affair with the petitioner, RohitChauhan for the last 3 years and during this period the petitioner had physical intimacy with her on the promise that he would marry her.
  3. As per the complainant, who is present in court, the petitioner took the Bail Appn. 311/2013 Page 1 complainant to his house at Rishhi Nagar, Rani Baghon 14.2.2010 on the pretext of introducing her to his mother, but since there was no one present in his house, he forcibly had physical relationship with her. It is also the case of the prosecutrix, that when she tried to shout, then the petitioner daunted her that he would kill her and defame her and at the same time he asked her not to worry as he loved her and would marry her butif in case she discloses the said relationship to anyone then the petitioner would harm himself physically. It is also the case of the prosecutrix that the petitioner also gave certain pills to her so that she would not conceive. It is further alleged by the prosecutrix that the petitioner also threatened to kill her family members and to show her obscene videos to her parents and upload the same on ‘YouTube’, if she dared to refuse to maintain physical relations with him. It is also the case of the prosecuterix, that on 9.7.2012, the petitioner administered some drug in her cold drink, which she drank and again was forced to have physical relations with him. It is also the case of the prosecuterix that on 13.7.2012, she filed a complaint at Police Station, Shalimar Bagh which was later transferred to Police Station Rani Bagh, where the petitioner and his family members were called by the police and they gave assurance that they will arrange the marriage of the petitioner with the complainant only if the complainant withdraws the said complaint. As per the complainant, the marriage was solemnized at AryaSamajMandir, Bail Appn. 311/2013 Page 2 HaritVihar, Burari, Delhi on 10th August, 2012, where the family of the petitioner i.e. his mother Kiran, brother Kitty, cousin brother Vishnu Yadav, petitioner’s MassiPoonam, petitioner’s other Massa and Massi were all present. It is also the case of the prosecutrix that after the solemnisation of the said marriage, the petitioner did not take her to his house even for a day and rather after two days of marriage, the petitioner and his family members took the prosecutrix to AryaSamajMandir, beat her and forcibly took her signatures on one paper for dissolving the said marriage. It is also the case of the prosecuterix that after the marriage, the petitioner and his family members visited her locality several times and abused her besides creating nuisance outside her house. It is also the case of the prosecuterix that her sister was also threatened whenever she used to go to her school. It is also the case of the prosecuterix that on 3.11.2012, she again made a complaint against the petitioner and his family members in Police Station Shalimar Bagh, and when they were called by the police, they had demanded for one flat and Rs. 20 lakhs if the prosecutrix wanted to live with them. Thereafter, a complaint was filed by the prosecutrix with the Crime Against Women Cell, Maurya Enclave, so as to pursue her complaint dated 13th July, 2012.

 

  1. Advancing the arguments on behalf of the petitioner, Mr. B.S. Rana, Advocate, submits that the petitioner was abducted from his residence on 9.8.2012 at about 9 p.m. and he was severely beaten by the police in the Bail Appn. 311/2013 Page 3 police station and was taken to AryaSamajMandir, HaritVihar, Burari, Delhi, where he was forced to solemnize the aforesaid marriage with the complainant. To support his arguments counsel for the petitioner placed reliance on some of the photographs placed on record wherein the petitioner can be seen in a track suit and some police officials taking photographs of the marriage from his mobile. It is also the case of the petitioner that the complainant extorted a sum of Rs. 2.50 lakhs form the petitioner and his family for getting the said marriage dissolvedand vide settlement deed dated 10th August, 2012, which was duly signed by both the parties and their relatives, the said marriage was declared null and void. It is also the case of the petitioner that on 22nd January, 2013, the mother of the petitioner lodged a complaint with the Commissioner of Police to bring correct facts to the knowledge of the police, as to how the petitioner was forced to marry the prosecutrix and how he was blackmailed to pay the said amount of Rs. 2.50 lakhs to the prosecutrix. It is also the case of the petitioner that when the mother of the petitioner lodged a complaint, it is only thereafter that the respondent got the said case registered against the petitioner on 30th January, 2013. Counsel for the petitioner further submits that the petitioner and the complainant were known to each other for the last three years and during that period, both of them startedloving each other and the physical intimacy shared by both of them was consensual and therefore, there is no question of the Bail Appn. 311/2013 Page 4 petitioner ever raping the complainant. Counsel also submits that the petitioner had already filed a civil suit to seek decree of declaration to declare the said marriage as null and void and the said suit is pending disposal before the civil Court. Counsel furtherstates that after solemnization of the said marriage the complainant lodged a complaint against the petitioner after a gap of almost 3 years.
  2. Counsel for the petitioner further submits that the complainant never challenged the said deed of cancellation of marriage and the said complaint was lodged by the prosecutrix only with a view to extort more money from the petitioner and his family. During the course of the arguments, counsel for the petitioner has also placed on record certain photographs indicating as to how advance the complainant is. Counsel further submits that the photographs make it apparent that the prosecutrix can be seen dressed inappropriately, having beer while sitting next to some boy. It could also be seen that she is lighting cigarette for him.
  3. Based on the above submissions, counsel for the petitioner submits that the petitioner has been falsely implicated by the respondent in the present case.
  4. The present bail application of the petitioner has been strongly opposed by Mr Navin Sharmalearned APP for the State duly assisted by the counsel representing the complainant. Mr Navin Sharma submits that the petitioner sexually exploited the prosecutrix on the assurance of marrying Bail Appn. 311/2013 Page 5 her although he never intended to do so. Counsel also submits that there are specific allegations levelled by the complainant against the petitioner, forcing the complainant to have sexual relations with her and on many occasions he even threatened to kill her and defame her. On one occasion he even mixed some drug in her cold drink and thereafter, shared physical intimacy with her. He also blackmailed the complainant that he would upload her pictures/ videos on the ‘YouTube’ if she refused to maintain sexual relations with him. Counsel further submits that the petitioner was never forced to marry the complainant but the police officials were deployed by the area SHO in civil uniform to ensure that no untoward incident takes place at the time of solemnization of the marriage. Counsel also submits that the petitioner has forged and fabricated the deed of divorce dated 11th August, 2012 as on enquiry it was found that the said divorce deed was never notarized by SaritaGarg, Advocate. Counsel also submits that as per the complaint dated 22.1.2013 filed by the mother of the petitioner to the SHO Shalimar Bagh, the prosecutrix left for Jaipur immediately on the following day of the said marriage and she had returned to Delhi after 3 days. Counsel for the State further submits that if as per the mother of the petitioner she was at Jaipur on the following day of her marriage then how could she have signed a divorce deed and got the same attested from the notary.
  5. I have heard learned counsel for the parties at considerable length and Bail Appn. 311/2013 Page 6 given my anxious consideration to the arguments advanced by them. Before I proceed to decide the aforesaid bail application, it would be pertinent to discuss some recent judgments in the said context.

 

  1. The judgment of the Apex Court, in the case of Deepak Gulati V. State of Haryana,Criminal Appeal No. 2322/2010, the Hon’ble Supreme Court while dealing with an appeal filed by the appellant convicted for the offence punishable under Sections 365 and 376 of the Indian Penal Code, 1806, held as under:-

“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.

  1. 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.
  2. 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.
  3. 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.

Bail Appn. 311/2013 Page 7

  1. 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.
  2. The instant case is factually very similar to the case of Uday (Supra), wherein the following facts were found to exist:
  3. 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.

  1. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.
  2. 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 Karnalake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. 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, Bail Appn. 311/2013 Page 8 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.

 

  1. 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.”\

10.While dealing with the anticipatory bail application of an accused of committing the same offence, this Court in the case of Mohd. Iqbal V. State , Bail Application no. 2145 of 2009, held as under:-

“There is an old Jewish saying “if you are close when you should be distant, you will be distant when you should be close”. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues”

  1. In another bail application No. 1760 of 2012 dealing with the same offence, this Court held as under:-

“Rape is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth Bail Appn. 311/2013 Page 9 that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta.”

12.It is appalling to see that rape rears its ugly facade almost every day. As per the National Crime Record Bureau, in India, a rape is committed every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerent and atrociousact committed against the dignity of a woman. Rape has been held to be even more serious than murderwhich not only destroysthe woman physically but also shatters her innerself by destroying her each living moment emotionally and psychologically.

  1. Rape is a crime against one’s mind, psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protestedto condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J.S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women.

14.Undoubtedly there is a manifold increase in the crime concerning rapes, but all the rape cases which are filed have their own individual story and factual matrix. While most of the cases may be genuine, wherein the girl is a victim of this horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl but there may be cases where both persons out of their own will and choice, develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship with a man but when the relationship breaks due to one or the other reason, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her. Out of anger and frustration, they tend to convert such consensual sex as an incident of rape, defeating the very purpose of the provision. There is a clear demarcation between rape and consensual sex and in cases where such controversies are involved, the court must very cautiously examine the intentions of both the individuals involved and to check if even the girl on the other hand is genuine or had malafide motives. Cases like these not only make mockery of the sacred institution of marriage but also inflate the statistics of rape cases which further deprecates our own society.

  1. In the facts of the present case, here is a complainant who appears to be quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of menwhich is evident from the photographs placed on record, which have not been denied by the prosecutrix present in court.She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time. As per the prosecutrix, she had a physical relationship with the petitioner for the last more than 2 ½ years and it is not just a single act of sharing physical intimacy but the same continued for almost a long period of three years. There lies a possibility that the petitioner might have then refused to marry the prosecutrix and this refusal on the part of the petitioner gave a serious jolt to the prosecutrix who then with the help of police, solemnized the marriage with him, in the wee hours of the night when petitioner was in his casual apparels(track suit). It is only on 30.01.2013, that the complainant raised her voicefor the first time and made allegations of rape against the petitioner. It is an admitted case that the said marriage ultimately did not consummate as the complainant was never brought to the matrimonial home and the petitioner has already filed a civil suit to seek decree of declaration for declaring the said marriage as null and void.

16.The court can also not be oblivious of the fact that the marriage between the complainant and the petitioner had indeed taken place and both the parties have not disputed this fact. Therefore, this circumstance by itself entitles the petitioner to the grant of the anticipatory bail. We are not commenting here upon the circumstances which led to the solemnisation of the said marriage as there is a civil suit already pending before the court.It would be worthwhile to mention that being the victim of such a reprehensible crime, one should lodge a complaint immediately, or within a reasonable period of time unless there are sufficient reasons to explain the long delay. Delay in lodging an FIR, in such like cases can ultimately diminish the chances of conviction, as due to such delay, the medical evidence and the other circumstantial evidence may rarely be available to support the case of prosecution.

17.It is a settled position of law, that every case is to be dealt based on its individual factual matrix and no set principle or straight jacket formula can be applied specifically while dealing with bail matters where only prima facie view can be taken to appreciate the facts in a given case.

  1. Considering the facts of the present case, in light of the aforesaid discussion and the material on record, I am inclined to grant anticipatory bail to the petitioner. Accordingly in the event of arrest, the petitioner shall be released on bail subject to furnishing of his personal bonds in the Bail Appn. 311/2013 Page 13 sum of Rs. 50,000 with one surety of the like amount to the satisfaction of the arresting officer.
  2. It is directed that the petitioner and his family members shall not visit the prosecutrix or try to intimidate her.
  3. The present anticipatory bail application stands disposed of. It is ordered accordingly.

Dasti.

KAILASH GAMBHIR, J

MAY     22, 2013

 

 

 

 

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The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

supreme-court-l

  • Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
  • (ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
  • (iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
  • (v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
  • (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
  • (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned
  • (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
  • (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a 17 conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
  • (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1723 OF 2017

[Arising out of SLP(CRL) No 9549 of 2016]

PARBATBHAI AAHIR @ PARBATBHAI BHIMSINHBHAI KARMUR AND ORS ..Appellants

VERSUS STATE OF GUJARAT AND ANR. ..Respondents

J U D G M E N T Dr D Y CHANDRACHUD, J

1 Leave granted.

REPORTABLE 2

2 By its judgment dated 25 November 2016, the High Court of Gujarat dismissed an application under Section 482 of the Code of Criminal Procedure, 1973. The appellants sought the quashing of a First Information Report registered against them on 18 June 2016 with the City ‘C’ Division Police Station, District Jamnagar, Gujarat for offences punishable under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code. The second respondent is the complainant.

3 In his complaint dated 18 June 2016, the second respondent stated that certain land admeasuring 17 vigha comprised in survey 1408 at Panakhan Gokulnagar in Jamnagar city was his ancestral agricultural land. The land was converted to non-agricultural use on 21 June 1995 and 5 January 2000 pursuant to orders of the District Collector. One hundred and three plots were carved out of the land. Amongst them, plots 45 to 56 admeasuring 32,696 sq.ft. were in the joint names of six brothers and a sister (represented by the complainant). According to the complainant, a broker by the name of Bachhubhai Veljibhai Nanda approached him with Parbatbhai Ahir, the first appellant stating that he desired to purchase the land. On the next day, the first appellant approached the complainant with his partner Hasmukhbhai Patel (the third appellant) to purchase the land. The complainant was requested to provide a photocopy of the lay out plan of the plot, which he did. On the following day the first appellant is alleged to have gone to the house of 3 the complainant with the second and the third appellants at which point in time, parties agreed that the land would be sold at the rate of Rs 4,221 per sq.ft. and a deal was struck for a consideration of Rs.1,13,58,711/- out of which an amount of Rs 11 lakhs was given in cash to the complainant for plot no.56. The complainant’s case is that while the discussion was on, he was requested by the second and the third appellants that since the power of attorney was old and unreadable all the plot holders should give their passport size photographs. Accordingly, a document was reduced to writing by which it was agreed that the sale transaction for plot no.56 would be completed within two months against full payment. According to the complainant, when he demanded the remaining payment for the plot from the second and third appellants, the second appellant provided him seven cheques each in the amount of Rs 6 lakhs in the name of the six brothers (one brother being given two cheques). Thereafter when the complainant followed up for the payment of the remaining amount with the purchasers, the balance was not paid and, on the contrary, the complainant was threatened of a forcible transfer of the land. According to the complainant, when he visited the office of the Sub-registrar about three days before lodging the complaint, it came to his knowledge that a sale deed has been registered not only in respect of the plot in question (which was agreed to be sold) but also in respect of plot nos.45 to 55 on 27 January 2016. It was then that the complainant realised that the purchaser in the sale deed was shown as the fourth appellant, Jayesh 4 Arvindbhai Patel, and the name of the seventh appellant, Jitudan Nankudan Gadhavi, resident of Payalnagar society, Naroda, Ahmedabad was shown as the holder of a power of attorney. The witnesses to the registered sale deed were the fifth appellant, Rabari Hiteshbhai and the sixth appellant, Patel Indravaden Dineshbhai.

4 The complaint came to be lodged on the complainant having realised that the power of attorney in the name of his siblings had been forged. The complainant stated that neither he nor any of his siblings had given a power of attorney in favour of the seventh appellant. According to the complainant, neither the non-judicial stamp dated 25 January 2016 in the amount of Rs 10,30,000/- nor the judicial stamp dated 27 January 2016 has been purchased by him. In fact, according to the complainant, it was the fourth appellant who had purchased the judicial stamp dated 27 January 2016.

5 According to the complaint, plots no.45 to 55 admeasuring 30,005 sq.ft. are valued at Rs 12.50 crores. It has been alleged that a conspiracy was hatched by the appellants and by the other co-accused resulting into the transfer of valuable land belonging to the complainant and his siblings, on the basis of forged documents. 5

6 The High Court noted that the fourth appellant had moved Special Criminal Application no.4538 of 2016 which had been rejected by the coordinate bench of the High Court on 3 August 2016. While rejecting the earlier application under Section 482, the High Court had observed thus:

“19. Primary details revealed the complaint had led this Court examine the papers of the investigation. The evidence so far collected prima facie reveal the involvement of the petitioner. This Court also could notice that it is a case where under the pretext of buying only a particular Plot No.56 from the complainant and his family members, the power of attorney has been forged usurping nearly 10 other plots which value nearly 11 crores and odd by allegedly conniving with each other, and therefore, the payment of Rs 42 lakhs by the cheques to the complainant in relation to one of the plots also would pale into insignificance. This, by no means, even at a prima facie level, can be said to be a civil dispute, given a colour of criminality. It would be in the interest of both the sides for this Court to either, at this stage not to make a roving inquiry or divulge anything which may affect the ongoing investigation. Suffice it to note that, the petition does not deserved to be entertained an the same stands rejected.”

Before the High Court, the plea for quashing the First Information Report was advanced on the ground that the appellants had amicably settled the dispute with the complainant. The complainant had also filed an affidavit to that effect.

7 On behalf of the prosecution, the Public Prosecutor opposed the application for quashing on two grounds. First – the appellants were 6 absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. Second, the appellants had criminal antecedents, the details of which are contained in the following chart submitted before the High Court

1 Parbatbhai Bhimsinhbhai Karmur a. City “A” Division Jamnagar CR No 1-251/2010 P.1 2 Ramde Bhikha Nanadaniya a. City “A”Division Jamnagar CR No.1-135/2016 b. City “A” Division Jamnagar CR No.1-105/2016 c. City “A” Division Jamnagar CR No.1-251/2010 P.2 2 2 3 Hasmukh Hansrajbhai Patel a. Gandhinagar M-Case No.1/2014 b. City “A” Division Jamnagar CR No.1-105/2016 P.3 4 Indravadan Dineshbhai Patel a. City “A: Division Jamnagar CR No.1-105/2016 P.6 5 Jitendra Somabhai Modi a. City “A” Division Jamnagar CR No.1-105/2016 b. Odhav Police Station CR No.I-180/2015 P.7 6 Vishnu @ Toto Rabari a. Gandhinagar M-Case No.1/2014 b. City “A: Division Jamnagar CR No.I-105/2016 7 The High Court observed that it had been given “a fair idea” about the modus operandi adopted by the appellants for grabbing the land, in the course of which they had opened bogus bank accounts. The High Court held that the case involves extortion, forgery and conspiracy and all the appellants have acted as a team. Hence, in the view of the High Court, it was not in the interest of society at large to accept the settlement and quash the FIR. The High Court held that the charges are of a serious nature and the activities of the appellants render them a potential threat to society. On this ground, the prayer to quash the First Information Report has been rejected

. 8 On behalf of the appellants, reliance has been placed on the decisions rendered by this Court in Gian Singh v State of Punjab1 and in Narinder Singh v State of Punjab2 . Learned counsel submitted that the dispute between the complainant and the appellants arose from a transaction for the sale of land. It was urged that the dispute is essentially of a civil nature and since parties have agreed to an amicable settlement, the proper course for the High Court would have been to quash the FIR in exercise of the jurisdiction conferred by Section 482 of the Code of Criminal Procedure, 1973. 1 (2012) 10 SCC 303 2 (2014) 6 SCC 466 8

9 On the other hand, learned counsel appearing on behalf of the state has supported the judgment of the High Court. Learned counsel emphasised the circumstances which weighed with the High Court, including (i) the seriousness of the allegations; (ii) the conduct of the appellants who were absconding; and (iii) the criminal antecedents of the appellants. Hence, it was urged that the appellants were not entitled to the relief of quashing the FIR merely because they had entered into a settlement with the complainant.

10 Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Gian Singh (supra) a bench of three learned Judges of this Court adverted to the body of precedent on the subject and laid down guiding principles which the High Court should consider in determining as to whether to quash an FIR or complaint in the exercise of the inherent jurisdiction. The considerations which must weigh with the High Court are:

“61…the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In 9 what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 10

11 In Narinder Singh (supra), Dr Justice A K Sikri, speaking for a bench of two learned Judges of this Court observed that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weightage than the theory of deterrence. In such a case, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute. The court observed that the timing of a settlement is of significance in determining whether the jurisdiction under Section 482 should be exercised:

“29.7…Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the 11 High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits…” This Court held, while dealing with an offence under Section 307 of the Penal Code that the following circumstances had weighed with it in quashing the First Information Report: “33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings…” 12 In State of Maharashtra v Vikram Anantrai Doshi3 , a bench of two learned Judges of this Court explained the earlier decisions and the principles 3 (2014) 15 SCC 29 12 which must govern in deciding whether a criminal proceeding involving a non-compoundable offence should be quashed. In that case, the respondents were alleged to have obtained Letters of Credit from a bank in favour of fictitious entities. The charge-sheet involved offences under Sections 406, 420, 467, 468, and 471 read with Section 120-B of the Penal Code. Bogus beneficiary companies were alleged to have got them discounted by attaching fabricated bills. Mr Justice Dipak Misra (as the learned Chief Justice then was) emphasised that the case involved an allegation of forgery; hence the court was not dealing with a simple case where “the accused had borrowed money from a bank, to divert it elsewhere”. The court held that the manner in which Letters of Credit were issued and funds were siphoned off had a foundation in criminal law: “… availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominatingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation.” The judgment of the High Court quashing the criminal proceedings was hence set aside by this Court. 13

13 The same principle was followed in Central Bureau of Investigation v Maninder Singh4 by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the dispute had been settled with the bank would not justify a recourse to the power under Section 482: “…In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.”

14 In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley5 , the court rejected the submission that the first respondent was a 4 (2016) 1 SCC 389 5 (2016)1 SCC 376 14 woman “who was following the command of her husband” and had signed certain documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that: “… Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score…” “…A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system…”

15 The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

  • Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; 15
  • (ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
  • (iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
  • (v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; 16
  • (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
  • (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
  • (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
  • (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a 17 conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
  • (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

 

16 Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal 18 antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had 19 been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code.

17 We do not, for the above reasons, find any merit in the appeal. The Criminal Appeal shall accordingly stand dismissed. .

……………………………………CJI [DIPAK MISRA] ..

…………………………………….J [A M KHANWILKAR] .

……………………………………J [Dr D Y CHANDRACHUD]

Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

  1. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

 

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1265 OF 2017

[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

Rajesh Sharma & ors.                                         …Appellants

Versus

State of U.P. & Anr.                                         …Respondents

JUDGMENT

Adarsh Kumar Goel, J.

  1. Leave granted.
  2. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Signature Not Verified Digitally signed by SWETA DHYANI Shri Nadkarni and learned senior counsel Shri Giri who in turn was Date: 2017.07.27 17:07:01 IST Reason:

ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.

  1. Proceedings have arisen from complaint dated 2 nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:

“After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant.

So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”

  1. Against the above order, respondent No.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPC against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal.
  2. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.
  3. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.
  4. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows:

“9. That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.

  1. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.
  2. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”
  3. Referring to Sushil Kumar Sharma versus Union of India1, Preeti Gupta versus State of Jharkhand 2, Ramgopal versus State of Madhya Pradesh3, Savitri Devi versus Ramesh Chand4, it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines:

“It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR (2003) I Delhi 484 Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”

  1. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines :

“2. Police Authorities:

(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.

(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP.

(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.

5 (2008) 151 DLT 691

(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file.

(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.

(c) FIR in such cases should not be registered in a routine manner.

(d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR.

(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.

(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”

  1. In Arnesh Kumar versus State of Bihar 6, this Court directed as follows :

“11.1All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

6 (2014) 8 SCC 273 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

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

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

  1. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh7. Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.
  2. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if 7 (2014) 2 SCC 1 the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.
  3. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140 th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.
  4. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted 9. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable. 15. Following areas appear to require remedial steps :-
  5. i) Uncalled for implication of husband and his relatives and arrest.
  6. ii) Continuation of proceedings in spite of settlement

between     the  parties  since   the   offence     is

non-compoundable and uncalled for hardship to parties on that account.

  1. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
  2. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
  3. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.
  4. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
  5. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

  1. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.
  2. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action.
  3. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions.

…………………………………….J.

(Adarsh Kumar Goel) …………………………………….J.

(Uday Umesh Lalit) New Delhi;

Misuse of sec.498-A IPC Dowry Laws in India Supreme Court Judgments.

. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

dowry-system-in-india

  1. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The 18 training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  1. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  1. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services 20 Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018. 21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action. 22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions

1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1265 OF 2017

[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

Rajesh Sharma & ors. …Appellants Versus State of U.P. & Anr. …Respondents

J U D G M E N T

Adarsh Kumar Goel, J

Leave granted.

  1. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Shri Nadkarni and learned senior counsel Shri Giri who in turn was 2 ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.
  1. Proceedings have arisen from complaint dated 2nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:

“After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant. 3

So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”

  1. Against the above order, respondent No.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPC against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal. 4
  1. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.
  1. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.
  1. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their 5 families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows: “

 That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law.

While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.

  1. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However 6 most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.
  2. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”
  1. Referring to Sushil Kumar Sharma versus Union of India1 , Preeti Gupta versus State of Jharkhand2 , Ramgopal versus State of Madhya Pradesh3 , Savitri Devi versus Ramesh Chand4 , it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines: “It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR (2003) I Delhi 484 7 Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”
  1. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines : “2. Police Authorities: (a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously. (i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP. (ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP. 5 (2008) 151 DLT 691 8 (iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file. (b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance. (c) FIR in such cases should not be registered in a routine manner. (d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR. (e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust. (f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”
  1. In Arnesh Kumar versus State of Bihar6 , this Court directed as follows : “11.1All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC; 11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 6 (2014) 8 SCC 273 9 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”
  1. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh7 . Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.
  2. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if 7 (2014) 2 SCC 1 11 the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.
  1. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.
  1. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. 12 The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted9 . The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) 13 provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable.
  2. Following areas appear to require remedial steps :- i) Uncalled for implication of husband and his relatives and arrest. ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable and uncalled for hardship to parties on that account.
  1. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 14 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive.12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
  1. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
  2. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 15 trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.
  1. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
  2. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The 18 training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

  1. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services 20 Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018. 21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action. 22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions

. …………………………………….J. (Adarsh Kumar Goel)

…………………………………….J. (Uday Umesh Lalit)

New Delhi;

Section 3 of the Indian Evidence Act, 1872 makes every electronic record produced in evidence for the inspection to the court, a documentary evidence. When a document is an ‘electronic record’ within the definition of Section 2(1)(t) of the Information Technology Act, 2000 (hereinafter referred as ‘IT Act’), it must be filed along with a certificate in compliance of the conditions mentioned in Section 65B of the Evidence Act. However, if the original electronic record is produced in the court, the compliance of Section 65B is not mandatory.

It is settled law that secondary evidence is only admissible in Court when the person who prepared the copy of the original document, must have seen the original document himself. (See Bank of Baroda, Bombay v. Shree Moti Industries, Bombay and others, AIR 2008 Bom 201). A perusal of the record reveals that Insp. Amrik Raj (PW-13) had not heard the original recording from the digital recorder.

 

The digital tape recorder, which was used to record the questioned conversation was neither produced before the Court, nor it was examined. No certificate under section 65B, Indian Evidence Act, 1872 was produced with respect to the transcript memo (Ex. PW-3/F) prepared from the conversation. Placing reliance on Rakesh Kumar & Ors. v. State, 2009 (163) DLT 658, learned senior counsel submits that the computer generated electronic records is admissible at a trial only if proved in the manner specified by Section 65B of the Evidence Act. He submits that the recorded conversation was full of disturbance and most of it was not clear. In this regard, the complainant (PW-3), in his cross examination, stated that “It is correct that there is lot of disturbance in the cassette played today… … There was no noise in room No.902 but there was noise in surroundings.”

Learned counsel submits that with regard to the transcript (Ex. PW- 3/G), section 65B, Evidence Act is not applicable in this case to the memos. The transcripts have only been typed in the computer and have not come into existence on the computer like an email or digitally signed document. In this regard, reliance is placed on Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473.


 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on:      11.03.2015

Judgment delivered on:      19.04.2016

+       Crl.A. 263/2009

GIRWAR SINGH                                             ….. Petitioner

Through:      Mr. R.N. Mittal, Sr. Adv. with Mr.

Abhijeet Singh, Advocate.

versus

C.B.I.                                                 ….. Respondent

Through:      Mr. Narender Mann, SPP with Mr.

Manoj Pant and Ms. Utkarsha Kohli,

Advocates.

+       Crl. A. 279/2009

LALA RAM                                               ….. Petitioner

Through:      Mr. Tanveer Ahmed Mir and Ms.

Megha Gurnani, Advocates.

versus

C.B.I.                                                 ….. Respondent

Through:      Mr. Narender Mann, SPP with Mr.

Manoj Pant and Ms. Utkarsha Kohli,

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

Crl263/2009 & Crl. A. 279/2009

VIPIN SANGHI, J.

  1. These two appeals have been preferred by the two appellants individually under Section 374 Criminal Procedure Code, 1973 (Cr PC) to assail the common judgment dated 21.03.2009 and order of sentence dated 23.03.2009 passed by Learned Special Judge, in CC No. 30/2003 arising out of F.I.R No. RC-DAI-2002(A)-0035 under Section 120-B, Indian Penal Code, 1860 (IPC) read with Section 7 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (PC Act). Appellant Girwar Singh – the appellant in Crl.A. 263/2009 (hereinafter referred as ‘Appellant No. 1’), was sentenced to undergo Rigorous Imprisonment (‘R.I.’) for one year with fine of Rs. 5,000/-, and in default of payment of fine, to undergo Simple Imprisonment (‘S.I.’) for 7 days for offence punishable under Section 120-B IPC. He was further sentenced under Section 7 of the PC Act to undergo R.I. for a period of two and a half years and to pay a fine of Rs. 15,000/-, and in default of payment of fine, to undergo S.I. for 15 days. He was sentenced to R.I. for three years and to pay a fine of Rs. 20,000/-, and in default of payment of fine, to undergo S.I. for 15 days for offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act. Appellant, Lala Ram – the appellant in Crl.A. 279/2009 (hereinafter referred to as ‘Appellant No. 2’), was sentenced to undergo R.I. for one year and a fine of Rs. 5,000/-, in default of payment of fine, further S.I. for 7 days for offences punishable under Sections 120-B IPC. He was further sentenced under Section 7 of the PC Act to undergo R.I. for a period of two years and to pay a fine of Rs. 10,000/-, and in default of payment of fine, to undergo S.I. for 15 days. He was sentenced to R.I. for two and a half years and to pay a fine of Rs. 15,000/-, and in default of payment of fine, to undergo S.I. for 15 days for offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act. All the sentences of appellant no. 1 and appellant no. 2 were directed to run concurrently.
  2. The facts in both the appeals arise out of the same FIR (Ex. PW-14/A) dated 03.06.2002. Appellant no. 1 Girwar Singh was a Senior Audit Officer, and appellant no. 2 Lala Ram was an Assistant Audit Officer working in the Sales Tax department.
  3. The facts as enumerated in the charge-sheet are that the prosecution/C.B.I. registered the case on 03.06.2002 on the basis of the written complaint of Sh. Rajpal Katyal (PW-3), Proprietor, M/s. Kailash Engineers (hereinafter referred to as ‘Firm’). He inter alia stated that he was having a business of spare parts of diesel generator sets and the firm was registered with Delhi Sales Tax Department. An audit party of Accountant General of Audit, Delhi was doing audit of Sales Tax Department from 30.04.2002 to 27.05.2002. Complete folder of M/s. Kailash Engineers was handed over to Audit Party on 15.05.2002. On 23.05.2002, his Accountant Sachin Arora was called by Audit Branch of Sales Tax Department, where he met appellant no. 2, Assistant Audit Officer, who asked Sachin Arora (PW-5) to produce some documents for the year 1996-97 and 1997-98. Appellant No. 2 further informed that the purchase orders have not been enclosed with “C” forms, and ST-I form was not enclosed with the return for the year 1997-98. On 27.05.2002, Rajpal Katyal sent the documents through Sachin Arora but appellant no. 2 demanded Rs. 15,000/- for accepting the documents and stated that he would, otherwise, raise audit objections.

Thereafter, on 30.05.2002, Rajpal Katyal again sent Sachin Arora to Sales Tax Office to enquire the purpose of demand of money. After visiting Sales Tax office, appellant no. 2 introduced Sachin to appellant no. 1, Senior Audit Officer, who told that they have studied the case and found that one ST-I Form in return of 1997-98 was deficient, and a demand of Rs. 6 lacs could be raised on that ground, but the matter could be closed if Rs. 40,000/- are paid – and not Rs. 15,000/- as demanded by appellant no. 2. It was further informed that the amount was to be shared by all members of the audit party. On 31.05.2002, Rajpal Katyal himself visited Sales Tax Office and contacted appellant no. 1 & 2 and enquired about his firm’s case. Both the appellants informed him that the matter had been explained to his Accountant the previous day and that the amount to settle the matter had also been intimated to Sachin Arora. Rajpal Katyal expressed his inability to pay such a huge amount, whereupon appellant no. 1 reduced the amount to Rs. 30,000/- stating that it could not be reduced further, as the same was to be shared by other members of his team and directed him to pay the bribe by 03.06.2002. Since he did not want to pay the bribe, he lodged the complaint (Ex. PW-3/A).

  1. After the registration of the case, the trap party headed by Inspector Umesh Vashishth, Trap Laying Officer (TLO) (PW-14) was constituted and two independent witnesses -Sh. S.S. Rana, shadow witness (PW-8) LDC, Staff-III and Sh. Mann Singh, recovery witness (PW-4) Assistant, both from the office of Director General, Doordarshan, Mandi House, were associated. During the pre-trap proceedings, the complainant Rajpal Katyal produced Rs. 20,000/- in the form of 40 GC notes of Rs. 500/- denomination each.

The numbers of GC notes were noted in the Annexure A to the Handing Over Memo (Ex. PW-3/C). Inspector C.K. Sharma gave a demonstration by applying phenolphthalein powder on those GC notes and showed its reaction with sodium carbonate, the solution turned pink. After treatment, the treated GC notes were handed over to the complainant (PW-3), with the direction to hand over the tainted GC notes to appellant no. 2 or his associates on specific demand. Further, the shadow witness Mann Singh (PW-4) was directed to act as a shadow witness and give the signal by scratching his head with both the hands after the bribe transaction was over. The complainant (PW-3) was also directed to give a signal by dialling the pre- fed mobile number of ‘CBI’ Mobile No. 9810636241 from his mobile no. 9810660147. A Samsung digital recorder, SVR 240, was also handed over to the complainant (PW-3) for recording the conversation at the spot, as per the ‘Tape Recording Handing Over Memo’ (Ex. PW-3/D).

  1. At about 2:00 PM, the trap party along with the two independent witnesses aforesaid and the complainant (PW-3) left CBI office and reached Sales Tax Office, ITO at about 2:25 PM. The complainant (PW-3) and shadow witness (PW-4) were directed to enter room no. 902 and contact the appellants, whereas the other members of the trap party took suitable positions near the office of the appellants at 9 th floor. The complainant (PW-

3) discussed with the appellant No.1, about the bribe amount to be paid for the settlement of sales tax matter. After the conversation, the complainant (PW-3) paid the tainted amount of Rs. 20,000/- to appellant no. 1 and stated that the remaining amount would be delivered later on. Appellant No. 1 accepted the bribe amount by his right hand and after counting them, kept the same in his left hand. After the bribe transaction was over, the shadow witness (PW-4) went outside and gave the pre-determined signal. The complainant (PW-3) also gave the signal through his mobile and in the meantime, appellant no. 1 leaned towards his left side and hid the bribe amount. On receipt of pre-determined signal at about 3:00 PM, the trap party entered in the office room and challenged appellant no. 1 having demanded and accepted Rs. 20,000/- as bribe amount. Thereafter, the bribe amount, which had been concealed under the carpet near the left side of appellant no.1, was recovered and the number of GC notes tallied. The wash of both the hands of appellant no. 1 as well as portion of carpet under which the amount had been concealed were taken, which turned pink. The conversation between the appellant and complainant (PW-3) as recorded in the Samsung digital recorder was heard at the spot, which confirmed the discussion between the complainant (PW-3) and appellant no. 1 about the sales tax matter and the settlement of bribe between them. The conversation recorded in the digital Samsung recorder was transferred to another cassette, which was sealed at the spot. In addition, another cassette was prepared for investigation purposes which were left unsealed. Thereafter, the search of tables of the three members of the audit party namely, appellant no. 1, appellant no. 2 and Amar Singh Rawat, senior auditor was taken. The files relating to complainant’s firm were recovered from the possession of Amar Singh Rawat and the same were seized.

  1. Subsequently, during investigation, the washes were referred to CFSL for chemical examination and the CFSL expert vide his report (Ex. PW-2/A) dated 25.06.2002 opined that washes gave positive test for phenolphthalein and sodium carbonate. Further, the voice samples of appellant no.1, appellant no. 2, Amar Singh Rawat and complainant (PW-3) were sent to CFSL for comparison with the specimen voice samples. CFSL confirmed the similarity of questioned voice and specimen voice samples of appellant no. 1 and complainant (PW-3) with the voice in cassette in respect of linguistic and phonetic features on basis of auditory examination, and similarity in respect of format frequencies distribution, intonation pattern, number of formants and other general visual features in voice grams on the basis of voice spectrographic examination vide Ex. PW-1/B.
  2. Thereafter, the competent authority i.e. the Director General of Audit, Central Revenue, IP Estate, New Delhi, accorded sanctions under section 19 of the PC Act for prosecution of appellant no. 1 and appellant no. 2 vide Ex. PW-15/A and Ex. PW-15/B. After taking cognizance, both the accused were summoned and on appearance, they were supplied copies of charge sheet and documents. On 23.02.2004, the learned Predecessor of the Trial Court framed the charges against both the accused under section 120-B, IPC and under section 7 & 13(2) read with section 13(1)(d) of the PC Act, to which they pleaded not guilty, and claimed trial.
  3. The prosecution examined 15 witnesses to prove its case. They are as follows:

 

PW-1 Dr. Rajinder Singh, PSO (Physics), CFSL, New Delhi.

PW-2 K.S. Chabra, SSO cum Assistant Chemical Examiner, CFSL.

PW-3 Rajpal Katyal (the complainant). He proved his complaint.

PW-4 Mann Singh (the independent shadow witness).

PW-5 Sachin Arora, Accountant with M/s. Kailash Engineering.

PW-6 Darshan Singh, Sales Tax Officer.

PW-7 Rakesh Kumar, Sole Proprietor, Shahdara Steel Rolling Mills (Firm which purchased the generator set from M/s. Kailash Engineers).

PW-8 S.S. Rana (the independent recovery witness).

PW-9 Mukesh Kumar, Value Added Tax Inspector (Sales Tax Inspector), Dept. of Sales Tax

PW-10 Chander Mohan, Director Administration, Office of the Principal Director of Audit.

PW-11 Gurbachan Lal, Senior Audit Officer.

PW-12 Ajay Chandana, Junior Account Officer, Gurunank Dev Polytechnic.

PW-13 Inspector Amrik Raj, Economic Offences Wing, Crime Branch (the Investigating Officer).

PW-14 Umesh Vashishth, Inspector CISF (Raid Officer/ Trap Laying Officer).

PW-15 H.P. Dass, Chairman, State Administrative Tribunal Orissa (Sanctioning Authority of both appellant no. 1 and appellant no. 2).

  1. The statement of the appellant no. 1 was recorded under Section 313, Cr.P.C. He claimed to be innocent and falsely implicated in this case. He further stated that:

“The case is false. The complainant Raj Pal Katyal did not submit the ST-I Form for getting the exemption from depositing the sale tax about Rs.7 lacs and he got the assessment order in his favour from the Sale Tax Officer knowing fully that if this fact came to the knowledge of any other authority i.e. auditor or superior officer of Sales Tax Officer who conducted the assessment, so he has been watching and following his file and when he came to know that there was likelihood that the said concealment of non depositing of ST-I Form upon which he got the exemption of Rs.7 lacs sales tax, so in order to save himself that no person could pass any order against him, he falsely lodged a complaint with the CBI against me and other members of the auditing party and falsely got involved in this case. The said file upon which the assessment order has been passed by the sales Tax Officer was likely to be sent for audit and the complainant knew that this concealment would not remain under the file and would come on the surface, so he got laid down a false trap and got me and Lala Ram falsely arrested in this case. I never demanded any illegal gratification from complainant Raj Pal Katyal because the said file never came to me and I did not raise any objection, so the dropping of the objection did not arise by me as mentioned in the sanction order. The complainant manipulated to keep the money under the Carpet in order to falsely implicate me because he knew that I would not accept the money because I had never demanded or agreed to accept the illegal gratification from him. Raj Pal Katyal had already falsely implicated one officer of Income Tax Department when he found that he was likely to be implicated in the evasion of income tax. He is very close to certain CBI officers as one of his close relative is in CBI who has helped him illegally and unlawfully in conducting the raid against me.”

  1. The appellant no. 2 in the statement recorded under Section 313, Cr.P.C stated that he was innocent and that it was a false case.
  2. The appellant no. 1 examined the following witnesses in support of his defence:

DW-1 Deepak Kumar, Senior Audit Officer.

DW-2 Madan Lal, UDC, Record Keeper, Sales Tax.

DW-3 L.S. Thakur, Senior Auditor.

DW-4 R.S. Sharma, Audit Officer.

DW-5 D.R. Raja, Senior Audit Officer.

DW-6 Neksay Lal, Senior Audit Officer.

However, the appellant no. 2 did not lead any evidence in his defence.

  1. The Trial Court on an analysis of the evidence came to the conclusion that the case against the appellant no. 1 and appellant no. 2 had been proved by the prosecution beyond reasonable doubt and, thus, convicted the appellants.

Submissions on behalf of Girwar Singh Appellant no.1:

  1. Mr. Mittal, learned senior counsel, appearing for appellant no. 1, submits that there are contradictions in the statements of the complainant (PW-3), rendering his testimony unreliable. The complainant (PW-3) in the examination-in-chief, inter alia, stated that:

“On 31.05.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs.40,000/- and on my request they reduced the amount to Rs.30,000/- and further told that this could not be reduced. I was directed to pay the settled amount of Rs.30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount then I was told that whatever amount I could arrange, the same should be paid.”

  1. However, the complainant (PW-3), in his cross-examination, stated as follows:

“I did not ask for Lala Ram in room No.902 and I asked for Girwar Singh only. I talked to Girwar Singh only. I had interaction with Lala Ram in CBI office for a minute.”

  1. Mr. Mittal submits that it is evident from the statements of the complainant (PW-3) that there is a contradiction with regard to the presence of appellant no. 2 when he allegedly had conversation regarding the demand and negotiation of the bribe amount. The complainant (PW-3), earlier deposed that both the appellants were present when the demand was made, however, in his cross examination, he stated that he only enquired about appellant no. 1 and had conversation with appellant No. 1. Therefore, it raises a doubt whether there was any demand for bribe, and by whom was it demanded. He submits that there is no evidence of demand by the appellant no.1. Learned senior counsel submits that the proof of demand is a sine qua non to constitute the offences in question. In this regard, he places reliance on Banarasi Dass v. State of Haryana, (2010) 4 SCC 450, Rakesh Kapoor v. State of Himichal Pradesh, (2012) 13 SCC 552, State of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368, B. Jayaraj v. State of A.P., 2014 (13) SCC 55, Ashish Kumar Dubey v. State thr. C.B.I., 2014 (142) DRJ 396.
  2. Learned senior counsel submits that as per the examination in chief of the complainant (PW-3), it is clear that there was no demand by appellant no. 1 even on 03.06.2002. The complainant (PW-3) states that after he reached the sales tax office along with Sachin Arora (PW-5), he introduced himself and informed the appellants that he could arrange Rs. 20,000/- and thereafter, he handed over the bribe money to appellant no. 1. Thus, in the light of the statement of the complainant (PW-3), it stands established that there was no demand by the appellant no. 1. Even according to the statement of the complainant (PW-3) the money was allegedly handed over without there being any demand.
  3. Learned senior counsel submits that as per the testimony of the shadow witness (PW-4), there was no demand by appellant no.1, and there was only acceptance. In this regard, the statement of the shadow witness (PW-4) is relied upon which is as follows: “Mr. Katyal sat in front of Mr. Girwar Singh, accused present in the Court (correctly identified). They were talking about some case and after some time Mr. Katyal gave the tainted GC notes to Mr. Girwar Singh.” He submits that since demand is an essential ingredient for constituting an offence under PC Act, in the absence of demand, the appellants cannot be convicted for the offence.
  4. Learned senior counsel for the appellant no.1 submits that the shadow witness (PW-4) had earlier been a witness in a CBI raids. In this regard, shadow witness (PW-4) stated that “I have joined 2-3 CBI raids as a witness.” Being a stock witness of the CBI, the statement of the shadow witness cannot be relied upon as an independent witness. In this regard, he places reliance on Pyare Lal v. State, (2008)149 DLT 425 and G.V. Nanjundiah v. State (Delhi Administration), 1987 Supp. SCC 266.
  5. Learned senior counsel submits that the digital tape recorder, which was used to record the questioned conversation was neither produced before the Court, nor it was examined. No certificate under section 65B, Indian Evidence Act, 1872 was produced with respect to the transcript memo (Ex. PW-3/F) prepared from the conversation. Placing reliance on Rakesh Kumar & Ors. v. State, 2009 (163) DLT 658, learned senior counsel submits that the computer generated electronic records is admissible at a trial only if proved in the manner specified by Section 65B of the Evidence Act. He submits that the recorded conversation was full of disturbance and most of it was not clear. In this regard, the complainant (PW-3), in his cross examination, stated that “It is correct that there is lot of disturbance in the cassette played today… … There was no noise in room No.902 but there was noise in surroundings.”
  6. Mr. Mittal submits that as per the statement of the TLO (PW-14), the original recording was transferred into two cassettes, out of which one was sealed and the other was not sealed and the original recording was deleted. Therefore, tampering with the cassette cannot be ruled out and the same is not admissible in the court. In this regard, he places reliance on Ram Singh & Ors. v. Col. Ram Singh, (1985) Supp SCC 611, wherein the Supreme Court held that the tape recording conversation cannot be relied upon if there are lots of disturbance in the cassette played before the court, and the possibility of tampering cannot be ruled out. Further, the complainant (PW-

3) stated that “It is also correct that the said conversation was transferred in a blank cassette which was sealed at the spot and its wrapper was signed by us.” Hence, there is inconsistency as the complainant does not talk about the recording being transferred into two cassettes, creating a doubt as to whether the recording was transferred at all, or not. Even the shadow witness (PW-4) does not support the prosecution case with regard to the transfer of the recording to two cassettes.

  1. Mr. Mittal submits that it is evident from the statement of the complainant (PW-3) that a portion of the recording is inaudible. Further, in the portions audible, only the voice of the complainant (PW-3) can be heard talking. Nothing in the conversation in cassette has been attributed to appellant no. 1. He submits that from the testimony of the complainant (PW-

3) -with respect to the recording of the cassette, the transaction between the complainant (PW-3) and appellant is inconclusive.

  1. Learned senior counsel submits that there is contradiction qua the date of recording of the specimen voice. The complainant (PW-3) in his examination-in-chief, inter alia, stated that “I was again called in the CBI office where specimen voice of myself and Girwar Singh were recorded and a memo was prepared in respect of sealing the cassette. The memo is Ex. PW 3/F bearing my signature at point-A.”. Further, in his cross examination he stated that “it is correct that on the day of raid, my specimen voice or that of accused Girwar was not recorded. It was recorded on 5 th only.” However, as per the Specimen voice recording memo (Ex. PW-3/H), the recording of the specimen voice was done on 25.07.2002. This is also corroborated by the statement of the I.O. (PW-13). The I.O (PW-13) stated that “I also recorded the specimen voice of the accused Girwar Singh and the complainant Rajpal Katiyal in the presence of independent witnesses Sh. Mann Singh and Sh. SS Rana on 25.7.02.”. Thus, there is material contradiction in the statement of the complainant (PW-3) and Insp. Amrik Raj, I.O. (PW-13), read with (Ex. PW-3/H).
  2. Moreover, the shadow witness (PW-4) in his cross examination, inter alia, stated that “Perhaps specimen voice of accused No. 1 was recorded in CBI office on the day of raid but it was not recorded at the spot. I do not remember if specimen voice of complainant was recorded at the spot or in the CBI office on that day.” The shadow witness (PW-4) also does not support the statement of the complainant (PW-3) with respect to the date of recording of specimen voice.
  3. Learned senior counsel submits that in view of the contradiction in the statements of the shadow witness (PW-4) & I.O. (PW-13), with regard to the sealing of the cassette, there was a possibility of tampering with the samples. The shadow witness (PW-4) deposed that after hearing the conversation, it was transferred in a blank cassette, which was thereafter sealed and signed at the spot. However, the I.O. (PW-13) in his re-examination, inter alia, stated that “I state that the transcription was prepared after listening the investigation copy of the cassette recorded on 3.6.2002 of the conversation between Sh. Rajpal Katiyal and Girwar Singh. This Memo was prepared and signed by me. The investigation copy of the cassette was not in sealed condition. I was a little bit confused as I had thought that the Ld. Defence Counsel is asking about the cassette used for recording the specimen voice.”

He submits that it is clear from the statement of the Insp. Amrik Raj, I.O. (PW-13) that the transcription was prepared after opening the seal of the cassette, and without taking permission of the court to open the seal. Further, the Insp. Amrik Raj, I.O. (PW-13) admitted that “I did not inform the CFSL Authority regarding the breaking of the seal of the cassette from which I prepared the transcription.” Consequently, the cassette cannot be relied upon, as there is grave possibility of the samples having been tampered with.

  1. Another submission of learned senior counsel is that the Insp. Amrik Raj, I.O. (PW-13) admitted that he did not file the investigation copy of the cassette on the record along with the charge-sheet.
  2. Learned senior counsel submits that the T.L.O. (PW-14) stated that after taking the digital recorder from the complainant (PW-3), it was heard and thereafter, Sub Inspector Prem Nath transferred the conversation into a cassette. However, neither Prem Nath was produced as a witness before the court nor any statement was recorded under section 161, Cr.P.C. to the effect that he transferred the conversation into a cassette from digital recorder.
  3. Mr. Mittal submits that there is no provision regarding taking of voice sample. He submits that the scope of section 311A, Cr.P.C. is with regard to the power of the magistrate to give specimen for signature or handwriting for the purposes of any investigation. Thus, there is no provision for taking the specimen of voice sample. In this regard, reliance is placed on Rakesh Bisht v. CBI, 2007 (2) AD (Delhi) 23 and Ritesh Sinha v. State of Uttar Pradesh & Anr., (2013) 2 SCC 357. Further, he submits that due to the difference of opinion of the courts, the matter has been referred to a larger bench.
  4. Mr. Mittal submits that motive and demand are the basis of a case under the PC Act. He submits that the allegation of the complainant (PW-3) in the complaint (Ex. PW-3/A) is that the accused/appellant no.1 refused to accept documents, unless the bribe was paid. The complainant (PW-3) in his cross examination stated that “It is correct that ST-1 form was deficient in that file.” Further, he stated that “It is correct that the ST-1 form was never issued in my favour by the purchaser of the generator.” Thus, it cannot be the case that the bribe was being demanded to hush up the ST-1 form.
  5. Learned senior counsel submits that there was contradiction in the statement of the complainant (PW-3) made during his cross examination and his statement recorded under section 161, Cr.P.C (Ex. PW-3/DA). The complainant (PW-3), in his cross-examination, inter alia, stated as follows:

“I did not state before CBI that accused No. 1 was challenged for demanding and accepting Rs.30,000/-. (Confronted with portion-A to A statement Ex. PW-3/DA where it is so recorded).”

  1. However, complainant (PW-3) in his statement recorded under section 161, Cr.P.C. (Ex. PW-3/DA), stated that “You challenged the accused persons as together they had demanded and accepted bribe of Rs. 30,000/- from me. On this the accused became confused and kept mum.” He states that under the Proviso to Section 162, Cr. P.C. such statements recorded under Section 161, Cr.P.C. can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145, Evidence Act, and for no other purpose. Thus, the previous statement of a witness can be used by the accused for the limited purpose mentioned in Section 162 of the Code as provided for in Section 145 of the Evidence Act. Consequently, it would not be safe to rely on the statement of the complainant (PW-3) as his statements are contradictory and all other witnesses have turned hostile.
  2. Ld. Senior Counsel submits that the shadow witness (PW-4) in his testimony deposed that he did not know, if one person with the name of Sachin Arora (PW-5) was present at the time of meeting the appellant. Thus, it creates doubt about the presence of the accountant Sachin Arora (PW-5) at the time of the transaction.
  3. Another submission of Mr. Mittal is that there was a leading question put to the shadow witness (PW-4). The shadow witness (PW-4), in reply to a leading question, states:

“It is correct that while extending the bribe amount towards Girwar Singh, the complainant told Girwar Singh that he could arrange only Rs.20,000/- and remaining amount will be delivered soon through the person accompanying him”

  1. He submits that leading questions cannot be put to the witness by the prosecution. Thus, the fact that a conversation regarding the payment of the remaining bribe amount later took place between the complainant (PW-3) and appellant no.1 cannot be used in evidence against the appellant no.1.
  2. Mr. Mittal submits that Sachin Arora (PW-5) does not support the case of the prosecution. Sachin Arora (PW-5), is his cross examination, inter alia, stated:

“It is incorrect to suggest that after brief discussion about the case, Mr. Katyal handed over the bribe amount to Girwar Singh who accepted the same with his right hand and after counting the same with both hands, kept the same in his left hand. (Confronted with portion K to K where it is so recorded).”

  1. Sachin Arora (PW-5) denied that any such transaction took place between the complainant (PW-3) and the appellant. Thus, the testimony of Sachin Arora (PW-5) does not support the prosecution’s case.
  2. Learned senior counsel submits that the statement of the recovery witness (PW-8) with regard to the transaction between the complainant (PW-3) and appellant no. 1 would fall within the purview of rule of hearsay evidence. The recovery witness (PW-8) stated that:

“Sh. Mann Singh, shadow witness also again entered in the room along with the raiding party after giving the signal. Inspector Vashishth inquired from Sh. Raj Pal Katyal and Sh. Mann Singh about the transaction of bribe money and the conversation which took place between Sh. Raj Pal Katyal and the accused. Sh. Raj Pal Katyal and Sh. Mann Singh both disclosed to Inspector Vashishth that accused Girwar Singh had accepted bribe money in his right hand and thereafter he counted the same with both hands. Sh. Raj Pal also disclosed that after accepting the bribe money, accused Girwar Singh had bent towards one side while remained sitting on his chair.”

  1. The TLO (PW-14) deposed that he inquired from the shadow witness (PW-4) regarding the transaction of the bribe, and the shadow witness (PW-

4) informed that after the discussion with appellant no. 1, appellant no.1 accepted the bribe money from the complainant (PW-3) from his right hand and counted them with both his hands and kept them in his left hand. The TLO (PW-14) further deposed that he was informed by the complainant (PW-3) that while he was giving a miss call, the appellant no. 1 bent towards his left side and when he sat on the chair, the bribe amount was not in his hands. Thus, the statement of the recovery witness (PW-8) and TLO (PW-

 

14) being hearsay evidence, are not admissible in evidence. Further, neither the complainant (PW-3), nor shadow witness (PW-4), who were present inside the room when the transaction took place, stated in their depositions that appellant no. 1 bent down to place the bribe money.

  1. The shadow witness (PW-4) in his statement stated that “It is incorrect to suggest that after accepting the (sic.) bribe amount, accused Girwar Singh counted the same with his both hands and after that kept the same in his left hand.” The shadow witness does not support the prosecution case that the appellant no. 1 accepted the bribe money and thereafter, counted the same.
  2. Learned senior counsel submits that as per the statement of the shadow witness (PW-4), the search was made for the tainted notes, which was finally recovered under the carpet from the portion just under the chair of the appellant no. 1. He submits that it was not possible that during the process of search, the notes were recovered from the chair underneath.
  3. Learned senior counsel submits that the complainant (PW-3), in his testimony, has nowhere stated that he saw the appellant no. 1 leaning towards the left and concealing the bribe money, or he informed the I.O. (PW-13) regarding the fact that the money was concealed by leaning. However, the recovery memo (Ex. PW-3/E) states that “The complainant also confirmed the same version of shadow witness and further added that while he was busy in giving signal on CBI cell phone through his mobile, he saw the accused Shri Girwar Singh leaning towards his left side and concealed the bribe amount as the same was not seen in his hands later.” Further, the shadow witness (PW-4), in his cross examination, stated that there could be a possibility that the complainant (PW-3) told the CBI that the appellant no. 1 leaned and concealed the bribe amount. Thus, there is contradiction qua the fact that whether the complainant (PW-3) knew about the concealment of the bribe amount by leaning, or not.
  4. Learned senior counsel submits that Sachin Arora (PW-5) did not support the case of the prosecution. Sachin Arora (PW-5) in his cross examination denied that the bribe amount was accepted by appellant no. 1 in his presence and thereafter he concealed it. He denied that he was present at the time of the post trap proceedings. He denied that his signatures are present on the recovery memo (Ex. PW-3/E). He further denied that the bribe money was recovered from underneath the carpet, and that the hand washes were conducted in his presence. Thus, the testimony of Sachin Arora (PW-5) cannot be relied upon.
  5. On the aspect of recovery, learned senior counsel submits that it is clear from the statements of the complainant (PW-3), shadow witness (PW-

4), recovery witness (PW-8) and the TLO (PW-14) that the bribe amount was not recovered from the appellant, but from underneath the carpet under the chair of appellant no. 1. Therefore, it cannot be construed that the recovery is established, and appellant no.1 was in possession of the GC notes. In this regard, reliance is placed on Suraj Mal v. State (Delhi Administration), (1979) 4 SCC 725, M.K. Harshan v. State of Kerala, (1996) 11 SCC 720, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779.

  1. Learned senior counsel submits that the TLO (PW-14), in his deposition stated that after searching for the bribe amount at other places, the shadow witness (PW-4) informed that the bribe money was found under the carpet. In this regard, the TLO (PW-14) stated that:

“The drawer of the table of the accused was searched but the bribe money was not found. Thereafter search of other places around the table of the accused were conducted and during the search, the independent witness Sh. Mann Singh informed that the bribe money was kept under the Carpet on the floor of the office room, towards the left side of the accused Girwar Singh.”

  1. However, the shadow witness (PW-4) has nowhere stated in his testimony stated that he informed about the bribe money being kept under the carpet.
  2. Learned senior counsel submits that there is inconsistency between the statement of TLO (PW-14) and the complainant (PW-3) with regard to the moving of chairs and tables to recover the bribe money. The complainant (PW-3) stated that “It is correct that certain articles like furniture drawer etc. were moved to find out where the money has been kept and money was not recovered from drawer.” However, the TLO (PW-14) stated as follows:

“It took about 10 minutes to me in checking the drawers of the table of the accused Girwar Singh.

So far as I remember there were some damages in the carpet and without removing table and chair, the tainted money was recovered under the carpet.”

  1. Thus, there is inconsistency in the statements of the TLO (PW-14) and the complainant (PW-3) qua the movement of furniture, etc. to recover the bribe amount from the carpet.
  2. Learned senior counsel submits that as per the testimony of the recovery witness (PW-8), he did not search for the bribe money. He further stated that the carpet was 8″ x 10″. However, there is contradiction with regard to the area which was covered by the carpet as the other witnesses stated that the carpet was wall to wall. Learned senior counsel submits that the site plan (Ex. PW-4/A), is only a corroborative piece of evidence, and not substantive evidence. He submits that the dimensions have not been mentioned in the site plan and it is not even clear whether it has been prepared by the I.O. or not. The table and chairs have also not been shown or marked in the site plan.
  3. Mr. Mittal submits that the complainant (PW-3) stated that the portion of the carpet from where the tainted amount was recovered, was also seized. However, none of the other witnesses deposed that piece of the carpet was cut out.
  4. Learned senior counsel submits that the shadow witness (PW-4) does not remember if the portion of the carpet from where money was recovered, was also taken. He submits that during cross examination, the shadow witness (PW-4) did not remember as to who had cut the carpet, and what cutting instrument was used.
  5. The recovery witness (PW-8) in his statement stated that the bottle Ex. P-3 contained very less, approximately 10 teaspoons of lightest pink colour solution. Even Ex. P-2 contained lightest pink colour solution. Thus, it creates doubt regarding the presence of phenolphthalein powder.
  6. Learned senior counsel submits that the sanction order (Ex. PW-15/A) does not show that the sanctioning authority has applied his mind while granting the sanction. He submits that, firstly, the sanction order is incomplete, as mere demand of the appellant is not sufficient, as it does not show that there was acceptance or recovery of the gratification amount of Rs. 20,000/- by the appellant no.1. Further, the sanction order (Ex. PW- 15/A) is for the bribe amount of Rs. 30,000/- which shows that there is no application of mind by the sanctioning authority (PW-15).
  7. Mr. Mittal submits that from the testimony of Deepak Kumar Gupta (DW-1), it is established that appellant no. 1 did not have any file pertaining to the complainant (PW-3). Deepak Kumar Gupta (DW-1), inter alia, stated that “The summoned record i.e. file of alleged objections raised by Girwar Singh on the file of M/s. Kailash Engineering is not in our office. … In this file, there is no document or photocopy showing raising of objection by Girwar Singh.” Thus, the appellant did not have the file pertaining to the complainant.

Submissions on behalf of Lala Ram – appellant no.2:

  1. Mr. Tanveer Ahmed Mir, learned counsel appearing for appellant no. 2 submits that in the case of Amar Singh Rawat – the third person who was present in the room when the transaction happened, the sanctioning authority initially refused to accord sanction to prosecute him. However, the sanction was accorded qua him later, but the trial court discharged him. He submits that the role of appellant no. 2 is at par with Amar Singh Rawat and, therefore, the appellant no. 2 should be discharged from the charges as well.
  2. Learned counsel submits that no demand has been established by/against appellant no. 2, and neither was there any acceptance or recovery from the appellant no. 2. He further submits that no voice recording of the appellant no. 2 was found in the recorded conversation. Therefore, the appellant no. 2 cannot be charged with conspiracy for obtaining gratification from the complainant (PW-3).
  3. Learned counsel submits that although a phone call was received from sales tax office on 23.05.2002, Sachin Arora (PW-5) nowhere mentions in his statement from ‘whom’ the call was received. Further, Sachin Arora (PW-5) denied that when he visited the Sales Tax Office on 27.05.2002, he met appellant no. 2 and that demand for bribe was made at that time.
  4. Learned counsel submits that the demands allegedly made by the appellant No.2 on 25.07.2002 and by appellant No.1 on 30.05.2002 for bribe of Rs.15,000/- and Rs.40,000/- respectively are not established as they are hearsay evidence of the complainant PW-3. These demands were allegedly made to Sachin Arora (PW-5), who had turned hostile. He has referred to the examination-in-chief of PW-3, the complainant, wherein he, inter alia, stated:

“On 31.5.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs.40,000/- and on my request they reduced the amount to Rs.30,000/- and further told that this could not be reduced. I was directerd to pay the settled amount Rs30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount of Rs.30,000/- then I was told that whatever amount I could arrange, the same should be paid.”

  1. Learned counsel submits that the statement of PW-3 does not show that on 31.05.2002 any demand was raised by the two accused. The complainant on his own accord claims to have offered to pay the amount to the accused.

 

  1. Learned counsel submits that Sachin Arora (PW-5), who allegedly was dealing with appellant no. 2, turned hostile, and did not support the case of the prosecution. Further, the shadow witness (PW-4) does not implicate appellant no. 2 in his statement. The shadow witness (PW-4) stated that the complainant (PW-3) spoke to appellant no. 1 before the tainted notes were handed over to him.
  2. Learned counsel submits that on a perusal of the CFSL report of the audio recording, it is clear that nothing incriminating was found qua the appellant no. 2.
  3. Learned counsel for appellant no. 2 placed reliance on the following judgments:
  4. State of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368.
  5. B. Jayaraj v. State of A.P., JT 2014 (7) SC 381.

iii.    Surinder Kaur v. State of Haryana, 2014 (10) SCALE 716

Submissions on behalf of the CBI:

  1. On the other hand, learned counsel for the CBI fully supports the judgment and order of the trial court. He submits that there was demand for bribe by the appellants. The complainant (PW-3) in his deposition stated that:

“On 31.05.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs. 40,000/- and on my request they reduced the amount to Rs. 30,000/-and further told that this could not be reduced. I was directed to pay the settled amount of Rs. 30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount of Rs. 30,000/- then I was told that whatever amount I could arrange, the same should be paid.”

(Emphasis supplied)

  1. Thus, the essential ingredient of demand by the appellant no. 2 stands established.
  2. Mr. Mann, learned standing counsel for CBI submits that the complainant (PW-3) has deposed and proved that on 31.05.2002 he visited the office of the Sales tax at 9th Floor and personally met both the appellants and showed his inability to pay 40,000/- which was reduced to Rs. 30,000/- with the direction to pay on 3.6.2002. PW-3 corroborated the demand by his contemporaneously made written complaint (PW-3/A), wherein he specifically mentioned about the demand of bribe money by both the appellants. PW-3 proved the pre-raid proceedings and preparation of handing over memo (Ex. PW-3/B), annexure to handing over memo (Ex. PW-3/B), handing over of tape recorder memo (Ex. PW-3/D) and his signatures on the same. PW-3 further proved that trap, acceptance of illegal gratification of Rs. 20,000/- by the appellant Girwar Singh, and recovery of the same by the independent witnesses. PW-3 has also proved the post-raid proceedings/Recovery vide Ex. PW-3/E, transcript cum voice identification memo (Ex. PW-3/F), the transcription (Ex. PW-3/G), and the specimen voice recording memo (PW-3/H), and his signatures on the same. PW-3 has proved the transcription (Ex. PW-3/G) and also identified his and voice of the accused Girwar Singh. This fact is further corroborated by the testimony of Rajinder Singh (PW-1), his report is Ex. PW-1/A and Ex.PW- 1/B, wherein he gave opinion that the questioned voice in questioned cassette is that of Girwar Singh. He has proved the left hand wash of the accused and the carpet wash, which turned pink. PW-3 also proved the GC notes Ex. P-1 to P-40. He submits that the aspect of demand, acceptance and recovery of money has been proved from the statement of PW-3, and other circumstances which clearly pointing out the complicity of the appellants in the crime.
  3. Mr. Mann submits that PW-5 has admitted to his visits to the Sales tax office on two occasions and talk of some settlement. Though PW-5 has not supported the specific demand by the appellants, but the subsequent circumstances that the complainant met both the appellants who reiterated the demand and reduced the same from Rs. 40,000/- to Rs. 30,000/- support the case of the prosecution that demand/agreement to accept Rs. 30,000/- as bribe, and acceptance of Rs. 20,000/- by Girwar Singh was part of the conspiracy, and the amount was accepted by Girwar Singh himself and the appellant Lala Ram. Reliance is placed on D. Velayutham v. State Represented by Inspector of Police, Salem Town, Chennai, 2015 (12) SCC 348, wherein the Supreme Court has observed in para

“15. Though this Court has stressed the need and significance of phenolphthalein as a trap device in corruption cases, so as to allay doubts about the actual receiving of bribes by accused persons, there may be cases where there are multiple demanders in a common or conjoint bribe demand, and for whatsoever reason, only one receives the sum on their behalf, and is entrapped in consequence. Depending on strength of the remainder of evidence, in these cases, constructive receipt by co-accused persons is open to establishment by the prosecution, in order that those who intermediately obtain bribes be latched with equal culpability as their co-accused and entrapped receivers. This will, of course, discount those cases where the trap is successful only against one and not the other official, the latter having refused to accept the bribe tendered. In this case, the trap would have clearly failed against such an official, and there could be no question of the application of constructive receipt. If the receipt and handling of bribe money by Accused 2 so convincingly and inexorably points towards his custodianship of part of the same bribe amount on behalf of his superior officer, namely Accused 1, then Accused 1 cannot rely on mere non-handling/non-receipt of the bribe money, as his path to exculpation. This Court’s construal of anti-corruption cases is sensitive even to these byzantine methods of bribe-taking, and where an evader escapes a trap, constructive receipt has to be an alternate means of fastening criminal culpability.”

(Emphasis supplied)

  1. Learned counsel submits that Sachin Arora (PW-5), in his examination in chief, inter alia, stated:

“When I met the officer alongwith the papers who telephoned in our office, he refused to accept the paper saying that first of all some settlement has to be done by us and only then the papers will be accepted. I told that officer that only my boss could settle as he was the final authority. Thereafter I informed about the talks to my boss who told me that I should have asked about the terms of settlement. I again met that officer who directed me to send my boss and I conveyed the same to the boss. After 2-3 days my boss Sh. Rajpal Katyal directed me telephonically to come with files to Sales Tax Office. When i met Mr. Katyal in STO, I found one person accompanying him and we all the three went inside the office room of audit department where we met two-three persons.”

  1. He submits that Sachin Arora (PW-5) was not cross examined by the appellant on this aspect and, therefore, this portion of the statement can be relied upon by the prosecution. Thus, from the statement of Sachin Arora (PW-5), it stands corroborated that the officer refused to accept papers as some settlement has to be done and further that he accompanied the complainant (PW-3) & another person to the office room of the audit department.
  2. Learned counsel submits that no suggestion was put to the complainant (PW-3) in his cross examination that he did not visit the office of sales tax on 31.05.2002. Thus, it stands established that the complainant (PW-3) went to sales tax office.

 

  1. Mr. Mann submits that the shadow witness (PW-4) – who is the independent witness, has supported the case of the prosecution. Further, the complaint of the complainant (PW-3) has been supported by the statements of the independent shadow witness (PW-4), and the recovery witness (PW-

8), and also by the TLO (PW-14).

  1. With regard to the presence of phenolphthalein on his hands and the piece of carpet under which the bribe amount was found, learned counsel submits that appellant no. 1 did not explain this incriminating evidence against him in his statement under Section 313 Cr.P.C. When the appellant no. 1 was questioned vide Q. 31, regarding the hand wash turning pink in the colourless solution of sodium carbonate, in his statement recorded under section 313 Cr.P.C., he made bald denials that the pink washes have been falsely prepared to falsely implicate him. However, no explanation has come forth from appellant no. 1.
  2. Learned counsel submits that appellant no. 1 in his statement recorded under Section 313 Cr.P.C. stated that it is correct that he was the head of party no. 10 along with the co-accused i.e. appellant no. 2 and Amar Singh Rawat for the period 30.04.2002 to 27.05.2002. Thus, it proves that the appellants were in the audit team involved in the audit of the complainants firm.
  3. Learned counsel places reliance on Explanation (d) to Section 7, PC Act to submit that it is not necessary that the public servant should actually do, or should be capable of doing the act for which bribe may be demanded.
  4. Mr. Mann submits that K.S. Chabra (PW-2), who was the Assistant Chemical Examiner, CFSL in his examination in chief stated that “On chemical analysis all the exhibits gave positive tests for phenolphthalein and sodium carbonate”. Further, the CFSL report (Ex. PW-2/A) tested positive for the presence of phenolphthalein and sodium carbonate. Under section 293, Cr.P.C. the report of the chemical/ Assistant chemical examiner is good evidence.
  5. On the aspect of sanction, learned counsel submits that the appellants have not shown what failure of justice has taken place, even if it is assumed that sanction granted to the appellant is irregular. In this regard, reliance is placed on C.S. Krishnamurthy v. State of Karnataka, 2005 (4) SCC 81.
  6. Learned counsel submits that with regard to the transcript (Ex. PW- 3/G), section 65B, Evidence Act is not applicable in this case to the memos. The transcripts have only been typed in the computer and have not come into existence on the computer like an email or digitally signed document. In this regard, reliance is placed on Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473.
  7. I have heard learned counsels, perused the record and considered the submissions and evidence recorded in the case.

Regarding the validity of Sanction:

  1. H.P. Dass, Chairman, State Administrative Tribunal, Orissa (PW-15), was the authority competent to remove appellant no. 1 and appellant no. 2 from service and he accorded the sanction for prosecution of both the accused for the alleged offence. Learned counsels for the appellants contended that there was no application of mind by the sanctioning authority (PW-15) while according the sanction.
  2. Section 19(3), PC Act reads as follows:

“(3) Notwithstanding anything contained in the Cr.P.C., 1973,-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.”

  1. Thus, there must a failure of justice caused to the accused due to the irregularity in the sanction order. The Sanctioning Authority (PW-15) has specifically stated in his deposition that after carefully examining the material on record including documents and statement of witnesses under Section 161 Cr.P.C, he has accorded sanction for the prosecution of the appellants. In C.S. Krishnamurthy (supra), the Supreme Court held as follows:

“9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself, then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No. 40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, C.B.I. and after discussing the matter with his legal department, he accorded sanction, it is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned single Judge of the High Court is justified.”

(Emphasis Supplied)

  1. The Sanctioning Authority (PW-15) has denied in his cross examination that he granted sanction for prosecution mechanically without application of mind, or without knowing the true facts of the case. Further, with regard to the bribe amount being mentioned as Rs. 30,000/-, the sanctioning authority (PW-15) has stated that “The facts mentioned in the Sanction Orders were noted from the file maintained in the office.” The sanction order mentions the demand for bribe of Rs. 30,000/-, as the demand by the appellant no. 1 was for the aforesaid amount. The complainant (PW-

3) has stated in his examination in chief that he informed the appellants that he could only arrange Rs. 20,000/- and the balance amount would be paid later on. Thus, the sanctioning authority (PW-15) had correctly mentioned in his sanction order that an amount of Rs. 30,000/- had been demanded from the complainant (PW-3), as the appellants on 31.05.2002 agreed to accept that amount.

  1. Further, it is settled law that the irregularity in granting sanction would be of significance if there was failure of justice as a consequence of it (See Paul Varghese v. State of Kerala & Anr., (2007) 14 SCC 783). In the present case, the appellant has failed to show that there was failure of justice due to grant of sanction by H.P. Dass (PW-15).
  2. In view of the above discussion, the submission of the appellant that the sanctioning authority did not apply his mind in according sanction is rejected.

On Merits:

  1. On the aspect of demand, the complainant (PW-3) in his examination is chief, inter alia, stated that:

“On 31.05.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs.40,000/- and on my request they reduced the amount to Rs.30,000/- and further told that this could not be reduced. I was directed to pay the settled amount of Rs.30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount then I was told that whatever amount I could arrange, the same should be paid.”

  1. In his cross examination, he stated that:

“First I visited room No. 902 on 31.5.2002 and at that time there was sitting arrangement for four officials and three were present out of them two officers were present on their seat and one person sitting opposite them on visitor’s seat and two seats of officials were vacant. I did not ask for Lala Ram in room No.902 and I asked for Girwar Singh only. I talked to Girwar Singh only.”

  1. The statement of the complainant (PW-3) establishes that a demand was made for the bribe money for some settlement. The complainant was given the information of demand by his accountant Sachin Arora (PW-5) since the accountant was the first person to whom the initial demand was made. Sachin Arora (PW-5) was declared a hostile witness during the trial. He denied the demand made by the appellants. However, the examination in chief of Sachin Arora (PW-5) is relevant, as it corroborates the version of the complainant (PW-3) and facts in the complaint (Ex. PW-3/A). In his examination in chief, he stated that he went to the sales tax office and met an officer, along with the papers. The officer refused to accept the papers stating that first, a settlement has to be done and then the papers will be accepted. He informed the complainant (PW-3) regarding the conversation with the officer. He (i.e. PW-5) again met the officer, who directed him to send his boss, i.e. the complainant (PW-3). He conveyed this to the complainant (PW-3). He also stated that on the day of raid proceedings, the complainant (PW-3) was accompanied by another person and then they went inside the office.
  2. In Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210, Sat Paul v. Delhi Administration, AIR 1976 SC 294 and Shyamlal Ghosh v. State of West Bengal, AIR 2012 SC 3539, the Supreme Court has held that the testimony of a hostile witness is not liable to be wholly rejected, and can be relied upon to the extent that it supports the version of the prosecution. It was further held that conviction can be based on such a testimony, if corroborated by other reliable evidence. Therefore, testimony of Sachin Arora (PW-5) cannot be wholly rejected, and the same is relevant where it corroborates with the testimony of other witnesses.
  3. Further, the statement of the complainant (PW-3) is consistent with the complaint (Ex. PW-3/A) made to the CBI. The relevant portion of complaint (Ex. PW-3/A) recorded is as follows:

“on 31/5/2002 i.e. next day I personally visited sales tax office to verify the facts and in Room No 902 I met Sh. Girwar Singh (Sr Account officer) and Sh. Lala Ram (Assistant Account officer) in the afternoon and enquired about the case of our firm. Both of them informed that the matter has been explained to my Accountant the previous day and Sh. Girwar Singh told that the amount to settle the things has also been already been intimated to Sachin Arora. I expressed my inability to pay such a huge amount on which Sh. Girwar Singh reduced the same to Rs. 30,000/- by stating that the amount cannot be reduced further as the same has to be shared by other members of his team. He asked me to pay the bribe amount by Monday i.e. 3/6/2002.”

  1. Thus, it stands established that the complainant (PW-3) was called to the sales tax office regarding some settlement. The demand for illegal gratification was made by the appellants to settle the matter against the complainant (PW-3). The stand of the complainant (PW-3) is consistent and natural in his complaint and as a witness in court. His stand even in cross examination stood unimpeached. The submission of the learned senior counsel that there is a contradiction qua the presence of appellant no.2 at the time of demand also does not hold ground. The statements of PW3, extracted in paragraphs 13 and 14 hereinabove relate to the events of different dates. Whereas the testimony extracted in paragraph 13 relates to the event of 31.05.2002, that recorded in paragraph 14 relates to the events of 03.06.2002.
  2. Learned senior counsel for appellant no.1 placed reliance on Rakesh Kapoor (supra), wherein the Supreme Court while relying on Banarasi Dass (supra) held that in the absence of proof with respect to the demand, the accused cannot be convicted and is entitled to a benefit of doubt. In Ashish Kumar Dubey (supra), this Court held that there was insufficient evidence to establish demand and acceptance by the accused. The testimony of the complainant witness was held to be unreliable and in the absence of any other evidence, the testimony of the official witness did not inspire confidence in the version put up by the prosecution. Thus, the Court held that demand and acceptance were not proved. In the present case, the complainant (PW-3) had given a reliable testimony, supported by the complaint (Ex. PW-3/A). The complainant has not been shown to be an interested witness-such that he had any specific interest in falsely implicating the appellants. The appellants do not claim to have known, or had any past dealings with the appellant. The reason given by appellant No. 1 in his statement recorded under Section 313 Cr. P.C. is not convincing If not the appellants, some other officer would have examined the complainants casein audit. Thus, merely by getting the appellants entrapped, the complainant could not have avoided the consequences of his sales tax record not being complete. The acceptance of the bribe has been corroborated by the other prosecution witnesses, including the shadow witness (PW-4), recovery witness (PW-8) and the TLO (PW-14). Their testimonies have been extracted, insofar as they are relevant, in a later part of the judgment. Therefore, Ashish Kumar Dubey (supra) and the aforementioned cases are of no help to the appellants.
  3. In B. Jayaraj (supra), the complainant did not support the case of the prosecution and there was no other witness to prove the demand of the bribe. The Supreme Court held that in the absence of evidence to establish demand, a mere recovery cannot form the basis of conviction under Sections 7 and 13(1)(d)(i) and (ii) of the Act. The facts in B. Jayaraj (supra) are different to the present case, since the complainant (PW-3) has supported the case of the prosecution. B. Jayaraj (supra) has no application to the present case.
  4. Reliance placed on Madan Mohan Lal Verma (supra) by the appellants also does not advance their case. In the present case, the prosecution had not sought to rely only on the testimony of the complainant (PW-3). Sachin Arora (PW-5) deposed that he had met the appellants before the trap was laid. The shadow witness (PW-4) has also supported the version of the complainant with respect to the acceptance of the bribe. Moreover, in State of U.P. v. Zakaullah, (1998) SCC (Crl.) 456, the Supreme Court has observed that the evidence of a complainant requires greater scrutiny, but it cannot be rejected as he is aggrieved by the accused.
  5. Banarasi Dass (supra), relied on by the learned senior counsel for appellant no.1, was a case where the demand was made by a Patwari to the complainant and a driver accompanying the complainant. In the said case, during the trap, the GC notes were kept on the table when the recovery witnesses reached the spot. Both the complainant and the driver (shadow witness) were declared hostile. The police and administrative official (recovery witnesses) were not present when demand and acceptance took place and their evidence to that effect was hearsay. The Supreme Court held that since the recovery witnesses were not eyewitnesses to the demand and acceptance, in absence of any evidence of demand and acceptance, the accused-appellant cannot be convicted. It was further held that demand and acceptance is a sine qua non for the conviction of offences under Section 5 of the old PC Act (Section 7 of the new Act). It is pertinent to note that in Banarasi Dass (supra), although the complainant did support the case of the prosecution to some extent, she was declared hostile because she virtually denied the essential ingredients to bring home the guilt of the accused.
  6. The facts of the present case are different to the facts of Banarasi Dass (supra) and the same provides no help to the appellants. In the present case, the complainant (PW-3) supported the case of the prosecution with respect to the demand and acceptance of bribe, unlike the complainant in Banarasi Dass (supra). The shadow witness (PW-4) also supported the prosecution while stating that bribe of Rs.20,000/- was given to the appellant no.1. Their testimonies corroborate the facts mentioned in the recovery memo (Ex. PW-3/E).
  7. Moreover, Sachin Arora (PW-5), in his cross examination stated that:

“It is correct that on 3.6.2002 I was directed by Mr. Katyal to reach at STO in room No.902. It is correct that when I reached the STO, I found Mr. Katyal alongwith one person and the officers of audit team whom I used to meet earlier.”

(Emphasis supplied)

  1. In M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351, it has been observed that there is no rule that evidence of every complainant in a bribery case should be corroborated in all material particulars, otherwise it cannot be acted upon. In the present case, the complainant had evidently acted upon the information received from his accountant (PW-5) and visited the STO to meet the appellants. The same stands corroborated with the complainant’s testimony and the complaint (Ex. PW-3/A). Sachin Arora (PW-5) had deposed that he had met the audit officers before 03.06.2002, i.e. when the trap was laid. Therefore, statements of the accountant (PW-5), the complainant (PW-3) and the complaint (Ex. PW-3/A) stand corroborated on all material particulars.
  2. The prosecution/CBI relied on the sound recording of the trap proceedings to advance its case in establishing the acceptance of the bribe money. The learned Trail Court has also relied upon the same. Therefore, it becomes essential to discuss the admissibility of the evidence of sound recording made during the trap proceedings.

 

  1. Section 3 of the Indian Evidence Act, 1872 makes every electronic record produced in evidence for the inspection to the court, a documentary evidence. When a document is an ‘electronic record’ within the definition of Section 2(1)(t) of the Information Technology Act, 2000 (hereinafter referred as ‘IT Act’), it must be filed along with a certificate in compliance of the conditions mentioned in Section 65B of the Evidence Act. However, if the original electronic record is produced in the court, the compliance of Section 65B is not mandatory.
  2. It is first to be ascertained, whether the transcription (Ex. PW-3/G) falls within the scope of Section 2(1)(t) of the IT Act. ‘Electronic record’ is defined as:

“(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”

(Emphasis supplied)

  1. Section 2(1)(r) of the IT Act, defines ‘electronic form’ as:

“(r) “electronic form” with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device”

(Emphasis supplied)

  1. Section 2(1)(i) of the IT Act, defines a ‘computer’ as:

“(i) “computer” means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network”

(Emphasis supplied)

  1. The digital recorder records the sound in an ‘electronic form’. The transcription cum voice identification memo (Ex. PW-3/F) was made on a ‘computer’ by Insp. Amrik Raj (PW-13) by hearing the sound recording from the investigation copy of the cassette. He stated that “I have prepared Ext. PW3/F on computer and not by my hand. I know how to operate the computer.” Therefore, the ‘computer’ on which the transcription cum voice identification memo (Ex. PW-3/F), as well as the digital recorder on which the sound was recorded, come under the definition of ‘computer’, and the transcription (Ex. PW-3/G) as well as the sound recording in the digital recorder is an ‘electronic record’ under the provisions of IT Act and the Evidence Act. Thus, unless the same digital recorder, on which the sound was recorded on 03.06.2002, is produced in the Court, the transcription (Ex.

PW-3/G) would only be admissible with the certificate in compliance of Section 65B of the Evidence Act. In Anvar P.V. (supra), the Supreme Court has observed that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with.

  1. It is settled law that secondary evidence is only admissible in Court when the person who prepared the copy of the original document, must have seen the original document himself. (See Bank of Baroda, Bombay v. Shree Moti Industries, Bombay and others, AIR 2008 Bom 201). A perusal of the record reveals that Insp. Amrik Raj (PW-13) had not heard the original recording from the digital recorder.
  2. Relevant portion of the transcription cum voice identification memo (Ex. PW-3/F) reads as follows:

“The investigation copy of the cassette recorded on 3.6.2002 of the conversation between Sh. Rajpal Katyal above named and Sh. Girwar Singh, Sr. Audit Officer, O/o A.G. Audit Delhi the accused, has been inserted in the cassette recorder/player and played … … … .

Thereafter, on their confirmation that this cassette contains the same conversation which had taken place on 3.6.2002, the above said cassette was again played and transcription of the conversation recorded in the cassette on 3.6.2002 has been prepared alongwith the name of the speakers as identified.”

(Emphasis supplied)

  1. Insp. Amrik Raj (PW-13) in examination in chief stated:

“I also prepared the transcription of question conversation between the complainant Rajpal Katiyal and accused Girwar Singh by playing and hearing audio cassette recorded at the spot. Transcription was prepared in the presence of witnesses Sh. Mann Singh and Sh. SS Rana.”

  1. In his cross-examination, he deposed:

“The cassette was already sealed from which we prepared the transcription after its opening. We did not inform the concerned court about the opening of the seal and we also did not take permission of the concerned court to open the seal of the cassette before preparing the transcription. … … … . I did not inform to the CFSL Authority regarding the breaking of the seal of the cassette from which I prepared the transcription.”

  1. In his re-examination, he stated:

“I state that the transcription was prepared after listening the investigation copy of the cassette recorded on 3.6.2002 of the conversation between Sh. Rajpal Katiyal and Girwar Singh. This Memo was prepared and signed by me. The investigation copy of the cassette was not in sealed condition. I was a little bit confused as I had thought that the Ld. defence Counsel is asking about the cassette used for recording the specimen voice. I wanted to say that the question was about the seal on the cassette which is manufacturer seal on the cassette.”

(Emphasis supplied)

  1. Therefore, it is clear that Insp. Amrik Raj (PW-13) made the transcription from the investigation cassette that was made on 03.06.2002.

Consequently, the transcription (Ex. PW-3/G) is inadmissible in evidence and the same cannot be looked into.

  1. Insp. Amrik Raj (PW-13), Insp. Umesh Vashishth (PW-14) and Mann Singh (PW-4) deposed on the same lines with respect to the copying of the recording and sealing of the cassette. SI Prem Nath, who carried out the copying of the cassettes, was not made witness by the prosecution. Insp. Umesh Vashishth (PW-14), in his examination in chief stated that:

“The said recorded conversation was transferred into two audio cassettes with the help of an instrument. One cassette was sealed after wrapping it into a cloth wrapper, with CBI seal and the same was marked as “A”. … … … . Another copy of cassette was kept unsealed for the investigation purpose.”

  1. In his cross-examination, he deposed that:

“The conversation which was recorded in the Samsung Digital Recorder was transferred into two separate audio cassettes, out of which one was sealed and the other audio cassette was not sealed. After transfer of the conversation from Digital Recorder into a cassette, the conversation in Digital Recorder was deleted. Prem Nath Sub Inspector was in the trap party. After taking the Digital Recorder from the complainant, it was heard and then Sub Inspector Prem Nath transferred the conversation into a cassette. Probably this was not written in the Recovery Memo that Sub Inspector Prem Nath transferred the conversation into a cassette. I did not record the statement of SI Prem Nath to the effect that he transferred the conversation into a cassette from Digital Recorder.”

(Emphasis supplied)

  1. It appears that SI Prem Nath made two copies from the sound recorded in the digital recorder on two blank cassettes. One of the cassettes was sealed and marked ‘A’ and the other was kept unsealed for investigation purposes. The original recording from the digital recording was deleted after copies were made on two separate blank cassettes. The sealed cassette marked ‘A’ was then sent to CFSL for voice analysis of the appellants and the complainant (PW-3).
  2. Insp. Amrik Raj (PW-13) stated that:

“I do not remember at this stage if I compared investigation copy of the cassette with the original cassette. I also do not remember if I mentioned such comparison in any Memo or document. Now the witness is shown the file and after going through the same he states that he did not compare the original cassette with the investigation copy of the cassette. … … … . We did not file the investigation copy of the cassette on the record along with the charge-sheet”.

(Emphasis supplied) Therefore, neither the CFSL report on sound analysis nor the transcription (Ex.PW-3/G) is based on the original recording made on 03.06.2002. The testimony of the expert witness to this effect is also unreliable. It is irrelevant that the parcels received by Rajinder Singh (PW-

1) had the seals intact. In the present circumstances, merely finding the seals in proper condition does not make any difference, since it is an admitted position that the copy of the sound recording was sent and not the original. Thus, it would need examination whether the prosecution has been able to establish the guilt of the appellants dehors the voice recordings.

  1. With regard to acceptance of the bribe amount, the complainant (PW-

3) in his examination in chief, inter alia, stated that:

“After brief introduction, I told the accused persons that I could arrange only Rs. 20,000/- and the balance amount would be paid by Sachin Arora later on to them. Mr. Mann Singh accompanied me as it was decided in CBI office that he will remain with me. We gave the amount to Girwar Singh. ‘We’ means ‘I’ handed over the tainted amount of Rs. 20,000/- to Girwar Singh.”

(Emphasis supplied)

  1. The recovery memo (Ex.PW-3/E) reads as follows:

“After sometime the complainant extended the bribe amount towards Shri Girwar Singh and told him that this time he could arrange only Rs. 20,000/- and the remaining bribe amount as demanded will be delivered later through the persons accompanying. At this the accused accepted the bribe amount from his right hand and after counting with both the hands kept the same in his left hand and after that he went out to give the signal. The complainant also confirmed the same version of shadow witness……”

(Emphasis supplied)

  1. The complainant (PW-3) as well as the shadow witness (PW-4) correctly identified appellant no. 1 in court. Shadow witness (PW-4) stated that:

“… … . Thereafter I came out and gave the pre-appointed signal. On receiving the signal CBI team entered the room and I also followed them.Enquiries were made by the CBI officials from me as to who had accepted the money and I told that Girwar Singh had accepted the bribe amount from Mr. Katyal.”

(Emphasis supplied)

  1. In his cross examination, he stated that:

“It is correct that while extending the bribe amount towards Girwar Singh, the complainant told Girwar Singh that he could arrange only Rs.20,000/- and remaining amount will be delivered soon through the person accompanying him. It is incorrect to suggest that after accepting the (sic.) bribe amount, accused Girwar Singh counted the same with his both hands and after that kept the same in his left hand. … … … . It is incorrect to suggest that complainant Mr. Katyal did not offer any money to accused No.1. It is also incorrect to suggest that accused No.1 did not accept any amount or money from the complainant.”

(Emphasis supplied)

  1. It is pertinent to note that although shadow witness (PW-4) resiled from his earlier stand with respect to the counting of the bribe (this apparent contradiction in the statement of PW4 is dealt with a little later), he maintained that bribe of Rs.20,000/- was accepted by the appellant no.1. The shadow witness (PW-4) corroborated the recovery memo (Ex. PW-3/E) on all material aspects and deposed that the complainant (PW-3) and the appellant no. 1 started talking about some case. Thereafter, the complainant (PW-3) gave the tainted GC notes to the appellant no. 1. This establishes that the appellant no. 1 accepted the bribe amount.
  2. S.S. Rana (PW-8) narrated the entire trap proceedings. Although, he did not see the acceptance of bribe amount himself but he accompanied the CBI officers when the shadow witness (PW-4) gave the pre-determined signal of acceptance. S.S. Rana (PW-8) in his examination in chief stated that:

“Inspector Vashishth inquired from Sh. Raj Pal Katyal and Sh. Mann Singh about the transaction of bribe money and the conversation which took place between Sh. Raj Pal Katyal and the accused. Sh. Raj Pal Katyal and Sh. Mann Singh both disclosed to Inspector Vashishth that accused Girwar Singh had accepted the bribe money in his right hand and thereafter he counted the same with both hands. Sh. Raj Pal also disclosed that after accepting the bribe money, accused Girwar Singh had bent towards one side while remained sitting on his chair.”

  1. Therefore, it is safe to conclude that the statement of S.S. Rana (PW-

8) also corroborate to the chain of events that took place in room no.902 on 03.06.2002. The chain of events with respect to the raiding team entering room no. 902 was also corroborated by the testimony of Umesh Vashishth, TLO (PW-14). He stated that:

“… … … .Immediately on receiving the signal, I along with other trap team members including other witness Sh. Rana rushed inside the room No.902 and found that complainant along with his Accountant Sachin Arora and the shadow witness Sh. Man were sitting and in front of them accused Girwar Singh and Lala Ram were sitting. … … .”

  1. The acceptance of bribe is further established through the hand wash of both hands of appellant no.1. The hand wash of both the hands of the appellant no. 1 was taken in sodium carbonate solution which turned pink. Thereafter, the portion of carpet from where the tainted amount was recovered was also washed in the solution of sodium carbonate which turned pink. The bottles with the solution of sodium carbonate were sealed at the spot and sent to CFSL for analysis.
  2. The recovery of the bribe is also established in the present case. During the pre-raid proceedings, GC notes to the sum of Rs.20,000/- were produced by the complainant (PW-3) and using the same GC notes a demonstration was given to the complainant, shadow witness (PW-4) and recovery witness (PW-8). The serial numbers of the GC notes (Ex. P1/1 to

40), which were to be used in the trap proceedings were noted in Annexure A of the handing over memo (Ex. PW-3/C). TLO (PW-14), after entering the room with the rest of the raiding team upon receiving a signal from PW- 4, inquired the shadow witness (PW-4) about the transaction of bribe. Shadow witness (PW-4), in his examination in chief stated that the complainant and appellant no.1 discussed the matter and thereafter, the complainant handed over the bribe amount to the appellant no.1. The TLO (PW-14) deposed that he challenged appellant no.1 of demanding and accepting the bribe of Rs.20,000/- from the complainant, but he remained silent. The complainant disclosed that after taking the bribe amount, while he was giving a missed call to the pre-fed number, appellant no.1 leaned towards his left and sat back straight again. TLO (PW-14) inquired from appellant no.1 with regard to the concealment of the bribe but he again remained silent.

  1. Thereafter, search of his table drawer and of other places was conducted. During the search, Mann Singh (PW-4) informed that the bribe money was kept under the carpet on the floor of the office room, towards left side of the accused. S.S. Rana (PW-8) was then asked to recover the GC notes. They were then directed to tally the numbers on GC notes with the ones noted in Annexure A of handing over memo (Ex. PW-3/C).
  2. Shadow witness (PW-4), in his cross examination stated that:

“I have seen the GC Notes Ex.P1/1 to 40 and after tallying their numbers I can say that these are the same GC notes which were used as (sic.) trap money and recovered from under the carpet.”

  1. The recovery witness (PW-8), in his examination in chief stated that:

“I picked up the bundle of Rs.20,000/- and compared its numbers with the numbers written in the paper prepared in CBI office earlier. The numbers of GC Notes were tallied with the numbers written in the paper Ex, PW-3/C. … … … . I have seen GC Notes Ex.P1/1 to Ex.P1/40 and after tallied their numbers, I can say that these are the same GC notes which I recovered.”

  1. TLO (PW-14) deposed that hand washes of hands of appellant no.1 and the carpet were taken, and the colourless solution turned pink. The same was transferred to glass bottles and sent to the CFSL for analysis. The CFSL report (Ex. PW-2/A) reads as follows:

“Results of Analysis:

The Exhibit RHW, LHW and CW gave positive tests for Phenolphthalein and Sodium carbonate.”

  1. Therefore, I do not find merit in the submission of the learned senior counsel for appellant no.1 that since the bribe amount was not recovered from the person of appellant no.1, it cannot be construed that he was in possession of the same. The aforesaid facts complete the chain of events from trap proceedings to recovery proceedings. The said chain of events have been corroborated by the complainant (PW-3), shadow witness (PW-

4), recovery witness (PW-8) as well as the TLO (PW-14). The recovery memo (Ex. PW-3/E) also stands corroborated by their testimony. I also do not find merit in the submission that there are contradictions in the testimony of the complainant (PW-3). It is a settled position that minor discrepancies in the testimony of the witnesses are bound to occur and are natural, when the statements are recorded after a significant period of time. Minor discrepancies that do not strike to the root of the case, can be ignored.

  1. As far as the submission that there is contradiction in the recovery memo (Ex. PW-3/E) and the statements of the complainant (PW-3) as well as the shadow witness (PW-4) is concerned, once again I do not find any substance in the same. The complainant (PW-3), although in the recovery memo (Ex. PW-3/E) has stated that when he was giving the signal on the cell phone, he saw the appellant no. 1 lean towards his left side to conceal the bribe money, he has nowhere stated in his examination before the court that he saw the concealment taking place. There is a possibility of witnesses’ memory failing owing to such a long lapse of time in conducting the examination of the complainant (PW-3). The recovery memo (PW-3/E) was recorded on 03.06.2002, whereas his examination before the Court took place on 01.08.2005, i.e. more than three years later.
  2. Similarly, the shadow witness (PW-4), in his cross examination, stated that there is a possibility that on asking the complainant (PW-3), he informed the CBI officials that while he was busy giving the signal to CBI through his cell phone (pre-determined signal), he saw the appellant no.1 lean towards his left side and conceal the bribe amount. The shadow witness was cross examined on 18.10.2005 i.e. more than 3 years after the recording of the recovery memo. However, when it was put to the shadow witness (PW-4) in the cross examination, being a natural witness, he stated that it was indeed possible that the complainant saw appellant no. 1 lean for concealing the bribe money and informed the same to the CBI officials.
  3. Mr. Mittal has relied on the statement of recovery witness (PW-8) to submit that there exists a doubt with respect to the presence of phenolphthalein powder, since the said witness stated to have seen ‘lightest pink colour solution’. I find no merit in this submission since the perception of colour is subjective in nature. It would be farfetched to rely on such a statement to hold that phenolphthalein power may not have been present. The recovery witness (PW-8) is not a technical person to depose on the same. Moreover, the CFSL report (Ex. PW-2/A) clearly indicates the presence of phenolphthalein powder and the said report has not been challenged by producing any cogent contradictory evidence.
  4. Learned senior counsel had placed reliance on G.V. Nanjundiah (supra) and Pyare Lal (supra) to submit that the evidence of a stock witness cannot be relied upon. However, the same is of no help to the appellants. In the present case, the appellants have failed to point out as to how the independent witnesses (i.e. PW-4 and PW-8), have any vested interest in the outcome of the case or any reason for which they would implicate the appellants. Merely, because Mann Singh (PW-4) was witness to other CBI cases does not make him a stock witness. In fact, perusal of the statement of Mann Singh (PW-4) reveals that he had resiled from his earlier statement at some occasions. Had he been a stock witness, he would have supported the case of prosecution in its entirety. In Zakaullah (supra), the Supreme Court has observed that:

“9. It is in evidence that PW6 was examined as a witness in a case at Moradabad in which he himself was the complainant against a doctor who demanded bribe from him. He also admitted that he was a witness in two other cases though he was not yet examined in those cases. Would such antecedents render him a non-independent witness? Similarly, the mere fact that PW7 was the driver of the vehicle in which the officials went to the place, resulted in his losing the status as “independent witness.”

  1. The necessity for “independent witness” in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man’s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever. (Hazari Lal v. Delhi Administration, (1980) 2 SCC 390″

(Emphasis supplied)

  1. Therefore, merely because the witness was involved in other cases or had prior acquaintance with the police officers, would not result in the loss of his status as an independent witness. The appellants have also failed to show the dependability of PW-4 or PW-8 on the CBI officials, involved in the present case. Both PW-4 and PW-8 were government employees. They enjoyed security of their status as government servants. There was no reason for them to implicate the appellants falsely. Moreover, the present case is not based solely upon only the testimony of PW-4 and PW8. The testimony of the complainant (PW-3) and TLO (PW-14) stand corroborated with that of PW-4 and PW8. From the aforesaid discussion, it is clear that the bribe amount of Rs.20,000/- was recovered from appellant no.1.
  2. I do not find merit in the submission of the learned senior counsel that the presence of Sachin Arora (PW-5) at the time of trap proceedings can be doubted. Sachin Arora (PW-5) had himself admitted that when he reached STO, he saw the complainant with another person (shadow witness). He was also present in room no.902 at the relevant time and admitted to sign the recovery memo (Ex. PW-3/E).

 

  1. Learned senior counsel for appellant no.1 placed reliance on Suraj Mal (supra), wherein the three witnesses who witnessed the taking of bribe were declared hostile. In this case, the trial court had held the evidence of the prosecution to be unreliable, and acquitted one of the accused, while convicting the appellant. It was in these circumstances that the appellant in the said case was acquitted. The facts of M.K. Harshan (supra) are different from the facts of the present case. The testimony of the witnesses in the said case was highly doubtful, and could not be said to have established the demand and acceptance. Therefore, both the cases are of no help to the appellants, as they turn on their own facts.
  2. Section 20 reads as follows:

“20. Presumption where public servant accepts gratification other than legal remuneration.

(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be Inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.”

  1. In Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571, it was observed that:

“12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted “as motive or reward” for doing or forbearing to do any official act. So the word “gratification” need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like “gratification or any valuable thing”. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word “gratification” must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.”

  1. Therefore, once it is established by the prosecution that the acceptance was “gratification”, Section 20 raises a rebuttable presumption that the public servant accepted such gratification for a ‘motive or reward’. The onus to prove shifts on the accused to prove that he did not accept the illegal gratification. However, if the accused fails to disprove the said presumption, then the Court may find him guilty of the offence under the Act. In the present case, the prosecution clearly established the demand as well as the acceptance of money by the appellants. It was then for the appellants to discharge the onus cast upon them by Section 20. However, they have failed to discharge the same by leading cogent evidence. In Girish Babu (supra), there was no reliable evidence of demand or acceptance made by the appellant, and the Court while relying on Suraj Mal (supra) held that mere recovery of the bribe would not entail a conviction under Section 7 of the Act. Suraj Mal (supra), M.K. Harshan (supra) and Girish Babu (supra) thus, have no application in the facts of this case.

 

  1. Mr. Mittal submits that the file pertaining to the firm of the complainant (PW-3) was not found in the possession of the appellants. Further, he submits that in view of the contradiction in the statements of the complainant (PW-3), first that the ST-I form was deficient in the file and later, that the ST-I form was not issued at all, there was no motive for demanding illegal gratification by the appellants. He relied on the testimony of DW-1 to submit that there existed no reason for the appellant no.1 to demand illegal gratification since the file of complainant’s firm was not in the possession of appellant no.1.
  2. The production cum seizure memo (Ex. PW-4/H) clearly indicates that the file of the complainant’s firm was seized on 03.06.2002 by TLO (PW-14) from Amar Singh Rawat through Gurubachan Lal, Senior Audit Officer (PW-11). The same is mentioned in the recovery memo (Ex. PW- 3/E). Gurubachan Lal (PW-11) in examination in chief stated that:

“Record which was seized by CBI team, was pertaining to Audit Party No.10. Audit No.10 was consisting of Girwar Singh, Senior Audit Officer, Lala Ram, Assistant Audit Officer and A.S. Rawat, Senior Auditor. Girwar Singh and Lala Ram both accused are present in the Court (correctly identified).”

  1. Therefore, I find no merit in the submission of the learned senior counsel that the file was not in possession of the appellants. PW-11 clearly deposed that the file pertained to Audit No.10 and that Audit no.10 comprised of the appellants in the present case. Even if the appellants were not in a position to help the complainant, it is meaningless since explanation

 

(d) to Section 7 of the Act provides that: “(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”

  1. In the present case, apart from the offence under Sections 13(1)(d) and 7, the appellants were charged and convicted under Section 120B of the IPC.
  2. Section 120A, IPC defines criminal conspiracy to mean – when two or more persons agree to do, or cause to be done (a) an illegal act, or (b) an act, which not illegal by illegal means, such an agreement will be termed as a criminal conspiracy. In K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, the Supreme Court held as follows:

“11. … … … … … In Major E.G. Barsay v. State of Bombay, 1961 CriLJ 828, Subba Rao J., speaking for the Court has said:

“The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.”

  1. In State v. Nalini and Ors., 1999 CriLJ 3124 it was observed by S.S.M. Quadri J. at paragraph 677:

“In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.”

  1. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.”

(Emphasis supplied)

  1. Thus, a criminal conspiracy comes into being when two or more persons come to an agreement to do an illegal act. It is not necessary that all the persons in the conspiracy should know everything, or that each conspirator should join the conspiracy at the same time. The conspiracy continues till the agreement is terminated either on its completion, or otherwise. The existence of a conspiracy and its objective are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. The Supreme Court in Kehar Singh and Ors. v.

State (Delhi Administration), (1988) 3 SCC 609, observed that a conspiracy is may be hatched in secrecy, and it may be difficult to adduce direct evidence in such cases, and the prosecution will more often rely on circumstantial evidence. The Supreme Court in State v. Nalini, (1999) 5 SCC 253, observed that all conspirators need not take active part in the conspiracy. The Supreme Court observed:

“583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

x x x x x x x x

  1. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”
  2. According to Section 10 of Evidence Act, once a conspiracy is established by the prosecution, then any act of a co-conspirator, which is in furtherance of the conspiracy, will become the act of the other co- conspirators. Section 10 reads as follows:

 

“10. Things said or done by conspirator in reference to common design.–Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. ”

  1. The Supreme Court in Central Bureau of Investigation v. V.C. Shukla and Ors., (1998) 3 SCC 410, held:

“40. … … .In dealing with this Section in Sardul Singh v. State of Bombay, 1957 CriLJ 1325, this court observed that it is recognised on well established authority that the principle underlining the reception of evidence of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. Ordinarily, a person cannot be made responsible for the acts of others unless they have been instigated by him or done with his knowledge or consent. This section provides an exception to that rule, by laying down that an overt act committed by any one of the conspirators is sufficient, (on the general principles of agency) to make it the act of all. But then, the opening of words of the Section makes in abundantly clear that such concept of agency can be availed of, only, after the Court is satisfied that there is reasonable ground to believe that they have conspired to commit an offence or an actionable wrong. In other words, only when such a reasonable ground exists, anything said, done or written by any one of them in reference to their common intention thereafter is relevant against the others, not only for the propose of proving the existence of the conspiracy but also for proving that the other person was a party to it. In Bhagwan Swarup v. State of Maharashtra 1976 CriLJ 860, this court analysed the section as follows:-

“(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-

conspirator and not in his favour.””

(Emphasis Supplied)

  1. Accordingly, the words spoken and act performed by any one of the conspirator will be relevant to prove the involvement of the other accused persons or co-conspirators in the conspiracy, provided the Court has reasonable ground to believe that a conspiracy exists. As far as conspiracy is concerned, although prosecution is liable to produce independent evidence as to existence of the conspiracy for Section 10 to operate, it need not prove the same beyond reasonable doubt (See Nalini (supra)). The provision itself states “… where there is reasonable ground to believe that two or more persons have conspired together to commit a crime….”.
  2. Reference may also be placed on Ram Narayan Popli v. Central Bureau of Investigation, (2003) 3 SCC 641, where the Supreme Court held as under:

 

“342. It would be appropriate to deal with the question of conspiracy. Section 120-B IPC is the provision which provides for punishment for criminal conspiracy. Definition of “criminal conspiracy” given in Section 120-A reads as follows:

“120-A. When two or more persons agree to do, or cause to be done,–

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”

The elements of a criminal conspiracy have been stated to be:

(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See: American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.

  1. No doubt, in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.”

(Emphasis supplied)

  1. As discussed above, the fact that the initial demand was made by appellant no.2 on PW-5 and later by both the appellants, on the complainant (PW-3) was a part of the ‘same transaction’. On a perusal of the evidence, it is clear that the complainant (PW-3) had acted on the information received by his accountant (PW-5) to himself visit the S.T.O. Thus, on 31.05.2002, he was himself a witness to the demand by the appellants, as they raised the demand on him. The accountant (PW-5) admittedly met with the appellants before the trap proceedings. Apart from the complainant (PW-3), the shadow witness (PW-4), recovery witness (PW-8) as well as the TLO (PW-

14) disclosed that appellant no.2 was present in room no.902 at the time of acceptance of the bribe. It is evident that both the appellants, under an agreement and understanding hatched a conspiracy to receive illegal gratification under a threat to raise tax demand against the firm of the complainant. Thus, the submission of learned counsel for appellant no.2 that no demand, acceptance and recovery qua appellant no.2 are established, is rejected. It has been held in K.R. Purushothaman (supra) that in most cases, conspiracy is seldom an open affair and same needs to be proved by the circumstantial evidence. In the present case, the conspiracy is clearly established by the chain of events taken note of hereinabove.

 

  1. Learned counsel for CBI placed reliance on D. Velayutham (supra) to submit that if the receipt and handing of the bribe amount by one accused convincingly and inexorably points towards his custodianship of part of the same bribe amount on behalf of the co-accused , then the co-accused cannot take a defence of non-handing of the bribe money. In such cases, the co- accused would be fastened with criminal culpability since the senior officer is in constructive receipt of the bribe. I find merit in this submission and the appellant no.2 cannot take the defence of non-receipt of the bribe amount. Appellant no.2’s involvement in the conspiracy to demand the bribe amount has been established beyond all reasonable doubt. The acceptance of the bribe amount by appellant No. 1 is a part of the criminal conspiracy of both the appellants to demand and accept bribe from the complainant.

 

  1. Thus, the demand of the bribe stands established by the testimonies of the complainant (PW-3), Sachin Arora (PW-5) and the complaint (PW-3/A). The acceptance and recovery of the bribe amount also stands established beyond any reasonable doubt by the testimonies of the complainant (PW-3), Mann Singh-shadow witness (PW-4), S.S. Rana-recovery witness (PW-8), Umesh Vashishth-TLO (PW-14), recovery memo (Ex. PW-3/E) and the report of CFSL (Ex. PW-2/A). Although, the accountant Sachin Arora (PW-

5) did not fully support the case of the prosecution and was declared hostile, he did disclose his acquaintance with the appellants prior to the trap.

Assessing the entire evidence on record, the only irresistible conclusion reached is that the appellants raised a demand for illegal gratification, and accepted the bribe amount of Rs. 20,000/-, which was recovered on 03.06.2002. Accordingly, the conviction of the accused is upheld. The order of sentence is also upheld.

  1. For all the aforesaid reasons, I find no merit in these appeals and the same are, accordingly, dismissed.

images (1)

In connection with the aforesaid subject, it is stated that, the number of the incidents pertaining to Cyber Crime has increased in today’s world. At present, each person uses internet, mobile and other gadgets relating to electronic media extensively and is having knowledge. Under such circumstances, it has come to the notice of the Additional Director General of the Police, C.I.D., Crime, Gandhinagar, Gujarat State that, when the victim approaches the Police Station to lodge complaint, the Police inform the victim that, the offence relates to Cyber Crime, we cannot do anything in it, you should contact to Cyber Cell, Gandhinagar / City Crime Cyber Cell and in many cases, the victim is not even heard.


 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DIRECTION – TO LODGE

FIR/COMPLAINT) NO. 1410 of 2016

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IDRISHBHAI SAIFUDDINBHAI HATHI….Applicant(s)

Versus

STATE OF GUJARAT & 2….Respondent(s)

==========================================================

Appearance:

MR MA SAIYAD, ADVOCATE for the Applicant(s) No. 1

MS BENAZIR M HAKIM, ADVOCATE for the Applicant(s) No. 1

PUBLIC PROSECUTOR for the Respondent(s) No. 1

==========================================================

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

ORAL ORDER

  1. Petitioner approached this Court under Article 226 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure seeking lodgment of the complaint forthwith on the strength of his representation made to the P.I,Dholka police station on 23.2.2016.
  2. Brief facts are as follows:-

2.1 The petitioner is an agriculturist. He possesses savings bank account No.210910100002143 in Bank of HC-NIC Page 1 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER India at Pisawada Branch.

2.2 It is the say of the petitioner that on 16.2.2015 when he went to ATM,SBI, Bazar Branch to withdraw Rs.1000/-, the machine was not working properly. He managed to get the amount of Rs.1000/- after inserting the card twice or thrice with the help of some persons. It is his say that to his shock he realized that sum of Rs.50,000/- had been deposited from his account on 16.2.2016. Therefore, he rushed to his bank to find out the truth of the matter only to find another shock that the card, which he was carrying was not that of his but that of a third person. His card had been taken away by those who camouflaged to help him. He,therefore, had lodged a complaint of cheating by giving a representation to P.I.Dholka police station and as no FIR is lodged, the petitioner is before this Court seeking following reliefs:-

“9. In the aforementioned premises the petitioner most humbly prays before this Honourable Court that this Honourable Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction and there by:

HC-NIC Page 2 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER (A) THIS HONOURABLE COURT MAY BE PLEASED TO order and direct the respondent No.2 and 3 to consider the representations made by the petitioner and lodge the complaint (Annexure “A”) forthwith in the interest of justice.

(B) This Hon’ble Court May Be Pleased To Direct respondent Nos.2 and 3 to take strict action against the offenders in the interest of justice.

(C) This Hon’ble Court may be pleased to award the costs throughout.

(D) This Hon’ble Court may be pleased to grant such other and further relief’s as deemed fit and proper in the interest of justice.”

  1. Learned advocate Mr.M.A.Saiyed appearing for the petitioner has urged that this not only concerns the offence of fraud and cheating but also relates to cyber-crime. He has also placed in service, a communication shot by the Police Commissioner, Ahmedabad on 5.5.2012 to emphasize that every time there is question of cyber-crime, ordinarily no complaint is being registered.
  2. Learned Additional Public Prosecutor does not dispute that whenever the prima facie cognizable offence is made out, the concerned officer requires to lodge a complaint.
  3. Having thus heard learned advocates for both the HC-NIC Page 3 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER sides, firstly this Court needs to profitably reproduce the findings and directions issued by the Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and another reported in AIR 2014 SC 187.

“Conclusion/Directions:

111.In view of the aforesaid discussion, we hold:

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which HC-NIC Page 4 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

  1. As can be noted from the representation made by the present petitioner addressed to P.I., Dholka police station reveals that after the incident of 16.2.2016 the complaint so far has not been lodged. It will be necessary to direct the concerned P.I. to look into the aspect and register the complaint without further loss of time when cognizable offence is made out. It is to be noted that the preliminary inquiry is HC-NIC Page 5 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER permissible only to the extent of finding out as to whether the cognizable offence gets revealed. While so doing it, he shall have to also bear in mind the communication of Police Commissioner, Ahmedabad City dated 5.5.2012, which is as follows:-

” The Office of the Police Commissioner, Shahibaug, Ahmedabad City.

Telephone No.25628783, 25627873, Email :- rdr-

ahd@gujarat.gov.in No.G/725/CP/2536/2012 Date :- 050.05.2012 Sub :- To take action immediately in connection with the application/representation given by the Applicant/Victim regarding the Cyber Crime.

Ref. :- Letter No. Cyber Cell/Alolika/Appl./78/12, dtd.01.05.2012 of The Additional Director General of Police, C.I.D., Crime and Railways, Gandhinagar, Gujarat State.

In connection with the aforesaid subject, it is stated that, the number of the incidents pertaining to Cyber Crime has increased in today’s world. At present, each person uses internet, mobile and other gadgets relating to electronic media extensively and is having knowledge. Under such circumstances, it has come to the notice of the Additional Director General of the Police, C.I.D., Crime, Gandhinagar, Gujarat State that, when the victim approaches the Police Station to lodge complaint, the Police inform the victim that, the offence relates to Cyber Crime, we cannot do anything in it, you should contact to Cyber Cell, Gandhinagar / City Crime Cyber Cell and in many cases, the victim is not even heard.

Recently, the P.S.I./P.I., have also been HC-NIC Page 6 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER given the training regarding the investigation of ‘E’ Mail Tracing and Cyber Crime. Its purpose is to take speedy action in the offences/applications pertaining to Cyber Crime being taken place in City/District. In fact, as per the amendment made in the ‘I.T.Act’, now the Officer of the Police Inspector Cadre can investigate the offence under the I.T.Act.

Therefore, when the victim comes to the police station in connection with the incidents pertaining to cyber crime, his application/representation may be taken into consideration by the Senior/Second Police Inspector immediately and he should conduct proper investigation of the application or get it conducted, if he finds it proper, he should register the offence and conduct the investigation thereof and in complicated cases, if necessary, he should send the detailed report through the Deputy Police Commissioner so that, this office may give proper direction with regard to hand over the investigation of the important cases to the City Cyber Cell. All the Police Station Officers are instructed to take special note thereof.

Sd/- (S.K.Saikiya), The Police Commissioner, Ahmedabad City.

To, The Police Inspectors, All the Police Stations, Ahmedabad City.

Copy forwarded for information and for verification during visit.

The Joint Police Commissioner, Crime Branch, Section – 1 and 2, Head Quarter, Special Branch, Ahmedabad City, -illegible-.”

  1. As the police officers and other personnels are already trained to investigate into the offence which HC-NIC Page 7 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER concerned the cyber-crime as also in wake of directions rendered in the case of Lalita Kumari vs. Government of Uttar Pradesh and another(supra), the task of registration of the complaint (FIR) shall be undertaken at the earliest by following aforementioned directions.
  2. At this stage, it is mandatory for the very police station to register the crime even if it is cyber-crime emerging from the complaint. It is only in case of most complicated cases that the permission can be sought of the Police Commissioner for referring the matter to the cyber-crime cell.
  3. Petition is allowed to the extent above. Disposed of accordingly.

Direct service is permitted.

(MS SONIA GOKANI, J.)

As a question of law was being raised notice was issued limited to this question.

Parties have been heard on the limited question of law. It must be mentioned that arguments have proceeded on an admitted footing that what had been recovered from both the Appellants was “husk” of the opium poppy plant i.e. husk of the plant of the species “Papaver”.

Before the arguments of the parties are considered the relevant provisions of the NDPS Act may be set out :

Section 2(xv) “opium” means;

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,

(c) but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 2(xvii) “opium poppy” means –

(a) the plant of the species Papaver sommiferum L.; and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act;

Section 2(xviii) ‘poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original or cut, crushed or powered and whether or not juice has been extracted therefrom.”

Section 15. Punishment for contravention in relation of poppy straw. – Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.


 

Supreme Court of India

Bench: K.T. Thomas, Doraiswamy Raju, S.N. Variava.

CASE NO.:

Special Leave Petition (crl.) 73  of  2000

Special Leave Petition (crl.)          4141       of  1999

PETITIONER:

AJAIB SINGH

Vs.

RESPONDENT:

DATE OF JUDGMENT:     11/04/2000

BENCH:

K.T. Thomas, Doraiswamy Raju & S.N. Variava.

JUDGMENT:

  1. N. Variava, J.

Leave granted.

J Both these       Appeals can be disposed of by   this common Order.

Appellants          in both appeals were convicted separately by two separate trial courts under Section 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the ‘NDPS Act’). Each of them was sentenced to undergo rigorous imprisonment for ten years and a fine of Rupees one lakh. In default of payment of fine Appellant Ajaib Singh was to undergo rigorous imprisonment for a period of three years and Appellant            Sapinder Singh  was to undergo rigorous imprisonment for a period of one year. They filed separate appeals        and the High Court of Punjab and Haryana dismissed their appeals by separate judgments and those judgments are now impugned before us. Appellant Ajaib Singh was found to be in possession of 10 kilograms of Poppy husks on 4.6.1996. Appellant Sapinder Singh was found to be in possession of 10 bags each containing    34 kilograms       of poppy husks on 23.12.1993. The common question involved in both      the appeals        is whether poppy husks would fall           within   the expression “poppy straw”.

When the SLPs were heard this Court was not inclined to entertain the SLPs. However, it was submitted, in both the SLPs, that the Appellants had been convicted under Section 15 of the NDPS Act. It was submitted that Section 15 deals with offences              relating to “poppy straw”, whereas what              had been recovered from the Appellants was “poppy husk”. It was submitted that the Appellants could not have been convicted unless the offence alleged against them fell strictly within the provisions       of the NDPS Act. It was submitted that if the NDPS Act did not provide for any offence in respect of “poppy husk” then the convictions could not be maintained.

As  a question of law was being raised notice was issued limited to this question.

Parties have been heard on the limited question of law. It must be mentioned that arguments have proceeded on an admitted footing that what had been recovered from both the Appellants was “husk” of the opium poppy plant i.e. husk of the plant of the species “Papaver”.

Before the arguments of the parties are considered       the relevant provisions of the NDPS Act may be set out :

Section 2(xv) “opium” means;

(a) the coagulated juice of the opium poppy; and

(b)          any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,

(c)           but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 2(xvii) “opium poppy” means –

(a) the plant of the species Papaver sommiferum L.;       and

(b) the plant of any other species of Papaver from which opium or any  phenanthrene alkaloid can be extracted               and which the Central Government may, by notification in   the Official Gazette, declare to be opium poppy for the purposes of this Act;

Section 2(xviii) ‘poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original or cut, crushed or powered and whether or not juice has been extracted therefrom.”

“Section 15. Punishment for contravention in relation of poppy straw. – Whoever,           in contravention of         any provision of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells,            purchases, uses or omits to warehouse poppy straw or removes              or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend        to twenty years and shall also be liable to             fine which shall not be less than one lakh rupees but which  may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Mr.         O.P.       Sharma for the Appellant Ajaib Singh      has submitted that          the offence under Section 15     is only in respect of producing, possessing, transporting, importing or exporting inter-State, selling, purchasing, using       or omitting to warehouse “poppy straw”.    Mr. Sharma submits that the terms “poppy straw” as defined in Section 2(xviii), “opium                poppy” as defined in Section 2(xvii) and “opium” as defined        in Section 2 (xv) all have a common ingredient i.e. “opium”. He submits      that a conjoint reading of all        the above mentioned sub- clauses shows that an offence can only be in relation to a substance which contains more than  0.2 per cent of morphine. He submitted that the “poppy husk” is non-narcotic.     It submitted that it has thus not                been defined    anywhere or made punishable under the NDPS Act. He submitted that “poppy husk” does not contain more than     0.2 per cent of morphine and thus no offence could be said to have been made out. He submitted that “poppy husk” is        not “poppy         straw”   and that there can           be no                offence                for possession of “poppy husk”.

Mr.         Rao Ranjit for Appellant Sapinder Singh supported Mr. Sharma. He further submitted that the chemical report shows that what was recovered was “chura post poppy heads”. He relied upon certain passages from Modi’s Text Book of Medical Jurisprudence & Toxicology wherein it is, inter alia stated as follows :

“Poppy seeds (khas-khas)           are innocuous and white in colour, used as a constituent in some foods or are sprinkled over some Indian sweets. It is regarded as a demulcent and a nutritive. The seeds yield a bland oil, known as poppy seed oil (khas khas ka tgel), which is largely used for culinary and lighting purposes”

He also showed to Court the definition of the term poppy in the Shorter Oxford Dictionary and Webster’s           Dictionary. He also showed to Court the definition of the term husk in Webster’s Dictionary.              He submitted that the NDPS Act                was dealing        with substances which affect the cerebral functions and/or the peripheral nervous system and/or the functions of the body. He submitted that it is clear that         the “poppy husk” would not have any somniferous poisons which affect on the Central Nervous System of the body. He submitted                that “poppy husk” was merely the waste on the top covering of the seed.     He submitted that the “poppy husk” was part    and parcel           of the seed. He submitted that if it                was removed from the seed      it becomes waste which, by        itself,     was worthless. He submitted that Section 2(xviii) specifically provides that                “seed” is not “poppy straw”. He submitted that “poppy husk” being part and parcel of “seed” would not fall within the definition of the term poppy straw.

On          the other hand Shri Rajiv Dutta, learned counsel for the respondent – State, has submitted that the provisions of the NDPS Act     are very clear. He submitted       that under Section          15 an offence is committed if anybody produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse “poppy                straw”. He submitted that the offence under Section 15 is           different from the offence under Section 18 which deals with “opium poppy” and “opium”.               He submitted    that “poppy        straw”   has been defined under the NDPS Act.        He submits         that it includes all parts of “opium            poppy”.                He points             out that the terms “opium poppy” means the plant of the species Papaver. He submitted that the term “all parts” would also include the “husk”.   He submitted that the          husk was not worthless. He submitted that it was not at               all necessary that             the “husk” form part of the               “seed”. He submitted that           “seed” has been excluded, because in India the “seed” is                used as constituent        in foods and       even sprinkled over some Indian sweets. He pointed out that the seed also yields a bland oil, which is largely used   for culinary and lighting purposes. He submitted that for an offence        under                Section 15 it was not at all necessary       that there must be more than 0.2 per cent of morphine in the item which has been seized.

Mr.         Dutta     also submitted that this point is being raised for the first time in the Appeals and that it had not been taken up before the lower courts. He submitted           that such a          point     should not be allowed to be raised for   the first time in the Appeal.

It is undoubtedly true that this point is being taken up for the first time in the Appeal. However, it is a point of law which would have a bearing on a large number of cases. We, therefore,            permit the Appellants to raise this point. It is a point of law which requires to be decided.

We are unable to accept the arguments of Mr. Sharma and Mr. Rao. Under Section 15 the offence is in respect of “poppy                straw”. Even though the term “poppy husk” has               not been defined in NDPS Act, the term “poppy straw” has                been defined. The term “poppy straw” includes all parts (except the seeds) of the “opium poppy”. “Opium poppy” means  the plant of the species Papaver.             Thus except for the seed all other parts of the plant of the species Papaver would   fall in the             term “poppy straw”. To be noted that parts of   the plant Papaver would fall within the term “poppy straw” even though        no juice has        been extracted therefrom. For an offence           under    Section 15 it is not at all necessary            that “poppy        straw”   should have been used or made into “opium”. For cultivation, producing,                manufacturing, possessing, selling, purchasing, transporting, importing or exporting inter-State or           using                opium there is   a separate offence provided for under Section 18. If the alleged offence is under Section             18, then the question may arise whether    the preparation contained           more than 0.2 per cent of morphine. For an                offence under Section 15, question of   considering whether      the preparation contains more than 0.2 per cent of morphine does not arise. As seen above even though no juice may have been  extracted, so long as it is a           Papaver, it would still be “poppy straw” if it is a part of the plant Papaver.

The        Modi’s Text        Book of Medical Jurisprudence & Toxicology says that    a poppy seed is used in foods , sprinkled over sweets and also yields a bland oil, which is used for culinary and lighting purposes. It is because of this that a seed has been excluded from the definition of poppy straw.         Poppy seed could be used in food or Indian sweets         or made into oil, which is largely used for culinary and lighting purposes only after it is de-husked. Thus the seed would be separated from the husk. The definition of husk as given in Webster’s Dictionary, shows that the   husk is any covering, especially when it is comparatively worth less. The husk whether it is on the seed or is removed from the seed remains a part of the plant Papaver. In the commentaries on NDPS Act by Mr. P.K.      Jain it is set         out that crushed capsules of poppy of commonly called “poppy husk” or “bhuki” whether extracted or not and that     they contain       a certain percentage of morphine and are often used as addiction producing intoxicants.              Thus it would     fall within            the definition    of the term “poppy straw”, which includes all parts of the plant Papaver. While seed            has been specifically excluded husk has not been excluded, from the definition of the term “poppy straw”. Therefore, in our view the producing, possessing, transporting, importing, exporting inter- State, selling, purchasing, using or omitting to warehouse poppy husk would be an offence under Section 15 inasmuch as poppy husk would fall within the term poppy straw as used in that Section.

In            this view of the matter the Appeals        would stand dismissed.