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The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

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HIGH COURT OF JUDICATURE AT ALLAHABAD

In Chamber

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 2249 of 2020

Applicant :- Suraj Kumar Singh

Opposite Party :- State of U.P.

Counsel for Applicant :- Brajesh Kumar Singh

Hon’ble Manoj Kumar Gupta,J.

This is second bail application seeking release of applicant on bail in Criminal Case No. 1789 of 2007 (State vs. Surendra Nath Dubey and others) arising out of Case Crime No.35 of 1994 under Sections 420, 467, 468, 406, 409, 411 IPC Police Station Panaki District Kanpur Nagar. The first bail application was rejected by this Court by order dated 21.11.2019 in the absence of counsel for the applicant by recording that either the trial had concluded or the applicant had lost interest in the matter.

The instant bail application has been filed wherein it is stated that trial is still pending. It is stated that initially the first bail application was filed through Sri M.N. Singh Advocate but lateron the applicant changed his counsel and engaged Sri B.K. Singh advocate. The mother of Sri B. K. Singh advocate had expired on 20.11.2019 on account of which the clerk could not mark the case in the cause list resulting in its rejection on 21.11.2019. It is thus not in dispute that the bail application was not rejected on merit but for non prosecution.

The allegation in the first information report is that 50 bundle of Janta Dhoti was taken out from godown of UPIKA for being sold in market in collusion with the employees of UPIKA and NCCF. The allegation against the applicant in the first information report is that the transaction got materialised through the applicant who is an employee of NCCF.

The submission is that there was no independent eye witness; that the applicant was falsely implicated; that initially the applicant was granted bail in the matter and he was duly appearing before the court on every date; since he was a resident of Aurangabad (Bihar) he was facing extreme difficulty in attending the court on each date; he filed application on 1.10.2019 for exemption of his personal appearance; the said application was allowed on 1.10.2019 itself; thereafter, the case was listed on 5.1.2000 on which date, counsel for the applicant could not appear as a result of which non bailable warrant was issued. The applicant challenged non bailable warrant before this Court by filing Criminal Misc. Application No.4420 of 2019 which was disposed of by order dated 7.2.2019. In pursuance of aforesaid order of this Court, the applicant surrendered before the trial court and moved bail application, but which was rejected. Learned counsel for the applicant states that the applicant has given specific undertaking in paragraph 28 of the affidavit filed in support of earlier bail application and the said undertaking is being reiterated once again that the applicant would appear on each and every date before the trial court and will not seek any unnecessary adjournment if enlarged on bail as he is languishing in jail since 6.3.2019.

Learned AGA Sri Pankaj Srivastava has opposed the bail application but did not dispute that initially the applicant was on bail but came to be arrested in pursuance of non bailable warrant, subsequent to rejection of his bail application. He submitted that in case of grant of bail, the trial court be directed to expedite the trial.

Having regard to the submissions made but without commenting on merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail subject to certain conditions.

Let the applicant Suraj Kumar Singh involved in aforesaid case crime be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice.

(i) In the facts and circumstances of the case, the trial court is directed to expedite the trial of the case and make serious endeavour to conclude the same, preferably within a period of one year.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In view of the extraordinary situation prevailing in the State due to Covid-19, the directions of this Court dated 6.4.2020 passed in Public Interest Litigation No. 564 of 2020 (In re vs. State of U.P.), shall also be complied.

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

(Manoj Kumar Gupta, J.) Order Date :- 29.5.2020

In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry.

Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140].) In the same decision, the Court also took note of the following observations made by a Constitution Bench of this
Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 in relation to the scope of Section 340 of the CrPC:

In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.” (emphasis supplied) Notably, however, the decision in Amarsang Nathaji did not take note of the contrary observations made in Sharad Pawar (supra).

. In any event, given that the decision of the three- Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah (supra), we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions:

(i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

(ii) What is the scope and ambit of such preliminary inquiry?

  1. Accordingly, we direct the Registry to place the papers before the Hon’ble Chief Justice for appropriate orders.

State of Punjab vs Jasbir Singh

CRIMINAL APPEAL NO.335 OF 2020

(Supreme Court of India )

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-43750 of 2019 Date of Decision: 14.02.2020

Karan Chawla …Petitioner (s)

Versus

State of Punjab …Respondent(s)

CORAM:- HON’BLE MR. JUSTICE HARI PAL VERMA

Present:- Mr. S.P.S. Khaira, Advocate for the petitioner.

Ms. Ruchika Sabharwal, AAG, Punjab. ****

* HARI PAL VERMA, J. (Oral) Prayer in the present petition filed under Section 438 of the Code of Criminal Procedure, 1973 is for grant of anticipatory bail to the petitioner in case FIR No.0133 dated 18.08.2019 under Sections 376, 354, 511 IPC registered at Police Station Fatehgarh Sahib, District Fatehgarh Sahib.

The aforesaid FIR was registered on the statement of the prosecutrix with the allegations that on 17.08.2019, the prosecutrix suffered an accident and therefore, she was brought to Civil Hospital, Fatehgarh Sahib for treatment. In the Operation Room, when the doctor went away after treating her, a fat boy (the petitioner) Karan Chawla came inside  room, who firstly removed her sister-in-law from the Operation Room and then started molesting the prosecutrix. He bit her lips and removed her legging and started to touch her with finger.The prosecutrix started screaming and told the accused that she will tell her husband. The petitioner threatened her that in case she will tell this incident to anybody, he will kill her. At the same time, her husband and sister-in-law came and the accused suddenly disappeared. Later on, the prosecutrix came to know the name of the accused Karan Chawla, who was doing job in Civil Hospital.

On 16.10.2019, when this case was listed before this Court, following order was passed:-

 “Learned counsel for the petitioner refers to the statement of the attending doctor who has commented upon the behaviour of the complainant and her husband, who was allegedly under the influence of liquor, have misbehaved with the para-medical staff.

Dr. Jiwanjot Kaur was the Medical Officer and was performing emergency duty on 17.08.2019 has made a statement that the petitioner who was a Ward Attendant was present in the hospital and was helping her. She further states that husband of the complainant has assaulted the Staff Nurse and the Ward Attendant with the active sport of his relatives.

Notice of motion for 14.02.2020.

Till the next date of hearing, arrest of the petitioner shall remain stayed.”

Learned State counsel, on instructions from SI Amanpreet Kaur Brar, submits that the matter has been looked into by the police and a Special Investigation Team was constituted and on the basis of evidence so  adduced, including recording of the statements of attending doctor, lady attendant, staff nurse, police officials on duty and the security guard, the SIT has come to a conclusion that no such incident of alleged molestation has taken place and accordingly, the police has prepared cancellation report in the matter.

In view of the fact that SIT constituted in the case has not found anything in the case and thereby, cancellation report has also been prepared, the present petition is rendered infructuous

. Accordingly, the present petition is dismissed as infructuous.

However, this Court cannot ignore the fact that number of times, such like false cases are registered. Had there been no fair investigation, the petitioner would have to face trial. The police authorities are at liberty to proceed against the prosecutrix for lodging a false case, in accordance with law.

( HARI PAL VERMA )  JUDGE

Whether speaking / reasoned? Yes / No

Whether reportable? Yes / No

“The High Court ought to have kept in view that `Bail is rule and jail is exception’. There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. In peculiar circumstances of this case where closure report was filed twice, the High Court ought not to have declined bail only because the trial court was yet to accept the said report. Further, the examination of witnesses would depend upon the fate of 2nd closure report. Considering the nature of allegations attributed to the appellant and the period he has already spent in custody, we are satisfied that he deserves to be released on bail forthwith.”


Jeetendra Vs. State of Madhya Pradesh & Anr.

[Criminal Appeal No.408 of 2020

arising out of Special Leave Petition (Crl.)No. 10145 of 2019]

  1. Leave granted.
  2. Rejection of third bail application by the High Court of Madhya Pradesh, Indore Bench has prompted the appellant to approach this Court. He has been in custody since 5th January, 2019 in connection with Crime No. 210/2012 registered at Police Station Chhatripura, Indore for offences punishable under Sections 420, 177, 181, 193, 200 and 120B of Indian Penal Code (for short, ‘IPC’).
  3. Briefly stated, the facts are as follows:
  4. Wife of the appellant lodged a case under Sections 498A, 323 and 506 of IPC against him, registered as Crime No. 96/2008, wherein the appellant was arrested. Later, he was released on bail upon furnishing bail bonds of Rs.7,000/along with documents of their residential property as a personal bond by his mother. Subsequently, the matrimonial dispute was amicably settled and as a result, the appellant was acquitted on 23rd April, 2010.
  5. On 20th May, 2012 , Dileep Borade (appellant’s cousin) and his son Vishal Borade lodged a complaint with Police alleging that documents of the residential property furnished as personal bond for appellant’s release on bail in the matrimonial case were forged. This led to registration of Crime No. 210/2012 for which the appellant is incarcerated for more than a year.
  6. From perusal of the record, we note that a closure report was filed by the Police on 24th May, 2013 in Crime No. 210/2012 but the learned Judicial Magistrate after five years ordered further investigation on 20th June, 2018. Consequently, appellant was arrested on 5th January, 2019 and denied bail by the Additional Sessions Judge. The High Court also vide order dated 22nd January, 2019 declined to release him on bail. Appellant filed a second bail application before the High Court, which was dismissed as withdrawn on 10th April, 2019 with liberty to apply again after examination of certain material witnesses. Meanwhile, the police reinvestigated the case and submitted a second report on 2nd September, 2019 stating that no offence has been committed by the appellant and he deserves to be discharged.

After filing of this closure report, appellant approached the High Court for a third time. But he was denied bail yet again vide the impugned order on grounds that the second closure report has not been accepted by the Trial Court and that appellant has failed to point out whether material witnesses have been examined or not. The appellant has thus been left with no other option but to approach this Court. While issuing notice, this Court on 14th November, 2019 directed that the appellant be released on interim bail.

  1. Having heard learned counsel for the parties as well as the counsel representing the complainant, we are satisfied that the appellant deserves to be enlarged on bail. The High Court ought to have kept in view that `Bail is rule and jail is exception’. There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. In peculiar circumstances of this case where closure report was filed twice, the High Court ought not to have declined bail only because the trial court was yet to accept the said report. Further, the examination of witnesses would depend upon the fate of 2nd closure report. Considering the nature of allegations attributed to the appellant and the period he has already spent in custody, we are satisfied that he deserves to be released on bail forthwith.
  2. The appeal is thus allowed and the impugned order of the High Court dated 16th September, 2019 is set aside. The interim bail order dated 14th November, 2019 is made absolute. The appellant shall stand released on regular bail subject to the bail bonds already furnished by him to the satisfaction of the trial court.

……………………….CJI (S.A. BOBDE)

………………………..J. (B.R. GAVAI)

………………………..J. (SURYA KANT)

. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.

  1. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.” In light of the observations quoted above and the admission of PW-8 that he was not an expert in post-mortem examination, we are constrained to find that no reliance can be placed on his deposition.

Furthermore, since this is a case based on circumstantial evidence, the burden is on the prosecution to prove all the circumstances so as to complete the chain, and not to leave any scope for the accused to escape from the clutches of law. The law on this point is now well-settled by the decisions of this Court including in the case of Sharad Birdichand Sarda v. State of Maharashtra, (1984)4 SCC 116, wherein it was held that the following conditions need to fulfilled for an accused to be convicted based on circumstantial evidence:

“The following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” In the instant case, the prosecution has not been able to establish a complete chain of circumstantial evidence. The prosecution has not proved the guilt of the accused beyond reasonable doubt, and the same must enure to the benefit of the accused.


Cases refereed :

ADUKKALPATTU Mani Vs State of Andhra Pradesh

CRIMINAL APPEAL NO.1818 OF 2014

The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim’s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to the CrPC had used the words “co­ordinate with the prosecution”. However, a change was later proposed and in the finally adopted

impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the Court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial. 12.3 At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2­3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim­centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, version, the words “co­ordinate with” were substituted by “assist”. This change is reflective of an intention to only assign a supportive role to the victim’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and cross­examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC.

12.2 In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further

inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

12.4 In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that
the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.

12.5 However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section
165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.


Reffed Judgments : Citation:

IN THE SUPREME COURT OF INDIA
  CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 1727 OF 2019
[Arising out of SLP (Crl.) No. 7848 of 2019]

 

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

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IN THE    SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1399   OF 2019

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

Pratima Devi & Anr ……………………….APPLANT

VERSUS

Anand Prakash      ……………….Respondent

O R D E R

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

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

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

……………..J.

[ DEEPAK GUPTA ] ……………….J.

[ ANIRUDDHA BOSE ]

 

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

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

 

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAMTHE HON’BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.No.15336 of 2019

R.KirubaKanmani                                   …Petitioner

-Vs

-L.Rajan                                        … Respondent

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1217 OF 2019

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

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

VS

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

 

JUDGMENT

HEMANT GUPTA, J.

1)       Leave granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xx xx xx

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

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

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

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

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

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

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

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

………………………………………J.

(L. NAGESWARA RAO) ………………………………………J.

(HEMANT GUPTA) NEW DELHI;

 

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

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

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

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

[Criminal Appeal No. 834 of 2017]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…………………………….J. (ARUN MISHRA)

…………………………….J. (S. ABDUL NAZEER)

…………………………….J. (M. R. SHAH)