Monthly Archives: July 2014

DV on in laws 5yrs aftr hubby’s death!! Wife wants piece of house !! Dhingra ji sets aside lower court orders & sends ablaa back !! Classic discussion on domestic relationship and when such relationship should have subsisted

Wife files DV on in laws 5 years after hubby’s death!! Seeks right to reside in ancestral property far away from her actual place of living !!! Dhingra ji sets aside lower court orders & sends ablaa back !! Classic discussion on domestic relationship and when such relationship should have subsisted

Brief notes

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* Kaushar Bano was married to Zahid Khan on 16th March, 1994.

* 1st child, a female, born at Bulandshahar on 23 rd June, 1997

* Hubby and wife separate from rest of pariwar and and move to Delhi after that

* 2nd male child Shahid born on 22nd December, 1998 at House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, DELHI-32

* Hubby listed as a doctor in community directory living in DELHI

* Zahid Khan died on 14th November, 2002, at DELHI

* After his death, ablaa wife files dowry etc case on in laws, gives address as House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, DELHI – 32 in that case

* Till this point there is NO mention of a shared household and rights to shared household at Bulandshahar

* on 6th August, 2007, wife files DV seeking right to residence at property where petitioners were living i.e. District Bulandshahar, U.P.

* but the BIL say that property belongs to the MIL !! Initially the MM court rejects wife’s case and says NO right to residence in MIL’s property

* Unfortunately MIL dies intestate on 4th June, 2008

* Once again wife tries right of residence and this time the MM court and sessions court gives her right to residence !!

* This time (when MIl is dead) The MM court and Sessions court seem to give her right to residence !! in ancestral property because her dead husband should have got a share !!

* In laws appeal to Delhi HC

* Delhi HC , Hon. DHINGRA ji sets aside all lower court orders and explains why there is NO shared houshold and sends the case back

* Classic discussion on "shared household" and when (what point of time) the parties should have been in shared household

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 2010

Date of Order: 20th September, 2010

CRL.M.C. 4159/2009, Crl. M.A. No. 14141/2009

ADIL & ORS. ….. Petitioner Through: Mr. N.K. Handa, Adv.

Versus

STATE & ANR. ….. Respondent Through Ms Rakhi Dubey, Adv. for R-2 along with R-2 in person.

Mr Sunil Sharma, APP for the State

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SI Beena Thakur, Investigating Officer

JUSTICE SHIV NARAYAN DHINGRA

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

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

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

JUDGMENT

1. By this petition the petitioners have assailed orders dated 30th November, 2009, and 6th November, 2009, passed by learned Metropolitan Magistrate (MM).

2. Brief facts relevant for the purpose of deciding this petition are that the respondent Kaushar Bano was married to Zahid Khan, brother of the three petitioners on 16th March, 1994. Zahid Khan died on 14th November, 2002, at Delhi. After his death, Kaushar Bano filed an FIR on 26th July, 2003 against the petitioners and her mother-in-law and other relatives making various allegations of cruelty, dowry demand etc. In this FIR, she gave her residence as House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, Delhi – 32.

3. After coming into force of The Protection of Women from Domestic Violence Act (in short Domestic Violence Act), she filed an application under Section 12 of Domestic Violence Act on 6th August, 2007, and also made an application for interim relief under Section 23 of Domestic Violence Act seeking right of residence in the property where petitioners were living i.e. District Bulandshahar, U.P. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The Court of MM passed an order dated 19 th April, 2008, observing that the property, in which right of residence was being sought by Kaushar Bano, was a property of her mother-in-law and cannot be termed as shared household. She, therefore, dismissed the application for interim relief and fixed the case for evidence giving an opportunity to prove the facts.

5. Against this order Kaushar Bano preferred an appeal before the learned Sessions Judge. Learned Additional Sessions Judge observed that the mother-in-law of Kaushar Bano i.e. mother of the present petitioners, expired on 4th June, 2008, and after her death, the question whether the property constituted shared house-hold would be required to be gone into by the MM again and the MM would determine if the appellant would be entitled to a relief in the changed circumstances since the property (matrimonial home) was indeed not in the name of any of the respondents i.e. the present petitioners, their mother having expired. She remanded back the matter to MM vide her order dated 27th November, 2008.

6. After the matter was remanded back, learned MM reconsidered the application under Section 23 of Domestic Violence Act and passed order dated 6th November, 2009 observing that respondent had a right to live in the property at Bulandshahar. It was brought to the notice of the MM that present petitioners have filed a civil suit in the Court of Civil Judge, S.D., Bulandshahar, U.P. in respect of same property, wherein wife Kaushar Bano was made as a respondent.

7. The learned MM allowed application of wife observing that vide order dated 19th April, 2008, the interim relief was refused to Kaushar Bano on the ground that house in Bulandshahar did not constitute a shared household as no document was on record to show that property was one in which the husband had a right or it was exclusive property of mother-in-law. She observed that, prima facie, the interim order was refused to Kaushar Bano on the ground that property belonged to mother-in-law, but the stand taken by the present petitioners was contrary to the reply filed by them later on where they had taken a stand that house in question belonged to their father and a settlement/Will was executed by him. She observed that since the earlier stand taken before the Court was that the property belonged to their mother and mother had expired intestate, deceased husband of Kaushar Bano being a son had a right in the property in question, hence the property can be termed as shared household. She, therefore, held that Kaushar Bano had a right of residence in the property in Town Gulaothi, District Bulandshahar, U.P. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Against this order, an appeal was preferred by the petitioners before the learned Additional Sessions Judge who observed that there was no infirmity in the order passed by the learned MM and the property could be termed as shared household within the definition as given in Section 2(s) Act. Vide order dated 30th November, 2009 the learned MM called upon the site plan of the property and she directed a portion of the property to be handed over to Kaushar Bano.

9. A perusal of the FIR dated 23rd July, 2003 lodged by Kaushar Bano against her in laws would show that her husband was a Doctor and had started practicing in Delhi, though the date of shifting to Delhi has been kept vague in the complaint. Her complaint also shows that birth of her first child, a female, had taken place at Bulandshahar on 23 rd June, 1997, whereas male child Shahid was born on 22nd December, 1998 at House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, Delhi-32. The complaint also gives an impression that her husband had separated from his other brothers sometime in 1998-1999, when she alleged that her dowry articles and Istridhan were misappropriated and she started residing at Delhi with her husband. Her husband died on 14th November, 2002 at Delhi. A perusal of directory of community of the petitioners, released by Delhi Government, shows that it contained the names of entire family members of Kaushar Bano, her husband and three children. The address given in the directory is A-5, Main Gali Masjid Wali, Babar Pur, Shahdara, Delhi-32. Her husband Zahid Khan has been shown as a Doctor and three children of couple namely Shahrukh, Heena and Sahil find mention in director. A perusal of Voters? List of Babarpur of year 2003 would also show that names of Kaushar Bano and her husband appear in Voters? List of Babarpur. It appears couple had separated from rest of the family about 8 years before filing of application under the Protection of Women from Domestic Violence Act, 2005.

10. It is apparent from the perusal of the order of Trial Court and Appellate Court that both, the Trial Court and the Appellate Court mis-directed themselves and did not consider the relevant provision of the Domestic Violence Act. Under Domestic Violence Act, the first pre-condition is that the applicant must be an aggrieved person. Aggrieved person is a person defined in Section 2 (a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act.

This Court had clarified the legal position in respect of domestic relationship in Vijay Verma Vs. State NCT of Delhi & Anr., Criminal Misc. No. 3878 of 2009 and observed as under:

"5. Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:

"(f) „domestic relationship? means a

relationship between two persons

who live or have, at any point of

time, lived together in a shared

household, when they are related by

consanguinity, marriage, or through

a relationship in the nature of

marriage, adoption or are family

members living together as a joint

family."

6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or „at any point of time?. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase „at any point of time?, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end."

(emphasis added)

11. In this case it could not have been decided by the Court of MM without recording evidence as to whether any domestic relationship existed between the parties on the date of filing application or soon before that in accordance with law laid down by this Court. It must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. Domestic Violence Act is not meant to enforce the legal rights of property, neither an interim order can be passed without first prima facie coming to conclusion that a domestic relationship existed between the parties and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act. In the present case, the order of learned MM and learned ASJ is absolutely silent as to how respondent was an aggrieved person and how a domestic relationship existed between her and petitioners.

12. I, therefore, set aside the orders dated 6th November, 2009 and 30th November, 2009 of learned MM. Learned MM shall record evidence first and decide whether a domestic relationship existed between the parties and whether the applicant fell within the scope of „aggrieved person? as defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 and then pass appropriate order.

September 20, 2010 SHIV NARAYAN DHINGRA, J.

acm

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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Raj HC: Wife can file DV even IF she left house B4 DV passed! NOT divorced wife, can file DV !

Raj HC: Wife can file DV even IF she left her matrimonial house before the DV was notified by the Government !! As long as the couple are NOT divorced, the wife can file DV on husband !!

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Brief facts :

· Marriage in 1996
· Wife leaves matri home in 2005 (before DV act promulgated)
· Wife files DV case on 1 Nov 2007, i.e. more than 1 year after leaving matri home !!
· Parties are also litigating in court for divorce
· Magistrate and Sessions courts order main & residence order in the DV case by wife
· Husband appeals to HC
· HC also confirms lower court order and says married woman CAN file DV !!!
This is even though she left her matri household many years ago

 

 

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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Rajasthan High Court

 

Rakesh vs Rajnesh Urjf Manto on 10 May, 2011

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

 

JAIPUR BENCH AT JAIPUR

 

JUDGMENT

 

Rakesh Vs. Rajnesh @ Manto

 

(S.B. Criminal Revision Petition No.359/2010)

 

S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C.

 

Date of Order :- May 10, 2011

 

PRESENT : HON’BLE MR. JUSTICE R.S. CHAUHAN

 

Mr.D.K. Garg, for the petitioner.

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REPORTABLE

 

BY THE COURT:

 

The petitioner is aggrieved by the order dated 24.01.2009, passed by the learned Additional Chief Judicial Magistrate, Dholpur, whereby the learned Magistrate has not only directed the petitioner to pay a maintenance of Rs.1,000/- per month to the respondent-wife, but has also directed him to provide an accommodation to the respondent-wife in the shared household. The petitioner is also aggrieved by the order dated 06.03.2010, passed by the learned Sessions Judge, Dholpur, whereby the learned Judge has upheld the order dated 24.01.2009.

 

The brief facts of the case are that on 01.11.2007, the respondent-wife, Smt. Rajnesh @ Manto, filed an application under Sections 19, 20, 21, 22 of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’, for short) against the petitioner-husband and his family members wherein she claimed that she got married with the petitioner in the year 1996. But ever since her marriage, her in-laws’ and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since 2005. Thus, she prayed for maintenance. The petitioner-husband filed reply to the application and denied the contents therein. After hearing both the parties, vide order dated 24.01.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.1,000/- per month as maintenance to the respondent-wife and to provide her an accommodation in the shared household. Being aggrieved by the said order, the petitioner-husband filed an appeal before the appellate court. However, vide order dated 06.03.2010, the learned appellate court upheld the order dated 24.01.2009 and dismissed the appeal. Hence, this petition before this Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

 

Mr. D.K. Garg, the learned counsel for the petitioner, has vehemently contended that Section 19 of the Act does not empower the court to restore the possession of portion of the shared household, once the respondent-wife has left the matrimonial home. Considering the fact that the respondent-wife had left the matrimonial home in the year 2005, the petitioner-husband cannot be directed to give her accommodation in the shared household by the learned Magistrate. Secondly, neither of the learned courts below have noticed the fact that the respondent-wife had left the matrimonial home in 2005, where as the Protection of Women from Domestic Violence Act, 2005 came into force on 26.10.2006. Relying on the case of Hema @ Hemlata (Smt.) & Anr. Vs. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291], the learned counsel has contended that the Act cannot be given a retrospective application. Thirdly, the petitioner has already filed a divorce petition on the ground of desertion. Therefore, the impugned order should not be passed during the pendency of the divorce petition. Lastly, in accordance with Section 19(1)(f) of the Act, the petitioner is willing to provide an alternate accommodation or to pay rent for the same. Therefore, the learned Magistrate and the learned Judge should have directed the petitioner either to arrange for an alternate accommodation, or to pay rental amount for the same. However, the same has not been done by the learned courts below. Therefore, the impugned orders deserve to be quashed and set aside.

 

Heard the learned counsel for the petitioner and perused the impugned orders.

 

Section 19 of the Act reads as under :

 

  1. Residence orders.-

 

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –

 

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household;

 

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

 

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

 

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

 

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:Provided that no order under clause (b) shall be passed against any person who is a woman.

 

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

 

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

 

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

 

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

 

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

 

(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

 

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

 

A bare perusal of the said provision clearly reveals that while sub-clause (1) lays down the different orders which may be passed, sub-clause (2) bestows a residuary power on the court to pass any other direction which it may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. The said sub-clause would naturally take its colours from Sub-clause (1). This is more so, as Section 18 of the Act already deals with “protection orders”, yet Sub-clause (2) also deals with the order which are reasonably, necessarily “to protect or to provide for the safety of the aggrieved person”. Obviously, Section 18 of the Act and Section 19(2) of the Act could not cover the same area. In case it is interpreted that Section 18 of the Act and Section 19(2) of the Act do cover the same area, it will produce redundancy in the Act. It is, indeed, a settled principle of rule of interpretation that an interpretation which will make a provision either otiose or redundant should be avoid. Therefore, the words “to protect or to provide for safety” would necessarily have to be interpreted as to protect and to provide safety to the aggrieved person vis–a–vis residential accommodation. Hence, the learned Magistrate has ample power to direct that the aggrieved person be given accommodation in the shared household, although the aggrieved person may have left the matrimonial home or the shared household many years ago. The intention of the laws, which are in favour of women, is to protect the socio–economic rights of women. After all, the condition of women in this country is not only precarious, but is also pitiable. In order to protect a woman, who has been deprived of her matrimonial home and who may face certain difficulty in her material home, Sub-clause (2) gives ample power to the Magistrate to restore and to ensure that the aggrieved person has a sufficient and reasonable accommodation provided for in the shared household. Therefore, the first contention raised by the learned counsel for the petitioner is clearly unacceptable. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

 

As far as the question of a retrospective application of the Act is concerned, the case of Hema @ Hemlata (Smt.) (Supra) is distinguishable from the present case on the basis of the factual matrix. In the case of Hema @ Hemlata (Smt.) (Supra), the parties were divorced in the year 2003. Therefore, the marriage had come to an end. Moreover, neither of them resided together from 2003 till 26.10.2006, the date when the Act came into force. Thus, in these peculiar facts and circumstances, this Court had observed that the Act cannot be given a retrospective effect as domestic violence could not have been committed by the husband upon the wife during the period of 2003 to 2006. However, in the present case, admittedly the marriage is subsisting. During the subsistence of marriage, the Act recognizes that the aggrieved person, the wife, has certain socio–economic rights and has certain rights of protection since 2005. Prima facie the wife has been deprived of these socio–economic rights – the right of protection and the right to accommodation. Therefore, a civil wrong is being committed continuously against her, from 2005 till present. Hence, the said Act will certainly be applicable to the act and omission committed by the petitioner. Therefore, the question of retrospective applicability of the Act does not even arise in the present case.

 

The pendency of the divorce petition on the ground of desertion would not disable the court from passing its order under the Act as both the proceedings are independent of each other. In fact, in case the argument of the learned counsel were to be accepted, by his filing the present petition and requesting that the wife be restrained from sharing the household, this by itself would amount to constructive desertion by the husband. Therefore, the said argument is self–defeating. Lastly, the discretion of the Magistrate cannot be cribbed, cabined and confined. It cannot be argued that merely because Section 19(1)(f) of the Act empowers the Magistrate to direct the respondent to provide alternate accommodation or to pay rent for the same to the aggrieved person, the powers of the Magistrate are confined only to Section 19(1)(f) of the Act. Such as contention, if accepted, would make other sub-clauses of section 19(1) of the Act redundant.

 

Since the impugned orders have been passed after meticulously examining the evidence and after application of a judicious mind, this Court does not find any illegality or perversity in the impugned order.

 

This petition, being devoid of any merit is, hereby, dismissed. The stay petition also stands dismissed.

 

(R.S. CHAUHAN) J.

 

Manoj Solanki

 

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Ramesh is missing since some days..

* My name is Durgadevi
* My family arranged a grand marriage for my my elder sister. That groom was Ramesh, a young man with lots of dreams and love for life !! Just one day before her marriage sister ran away with her lover !!!
* My family did NOT know how to answer the society and groom’s people … so they made me marry Ramesh who was supposed to marry to my elder sister …
* But I was ALREADY in love with another guy by name Prabhu … I tried to resist the marriage but they forced me to marry Ramesh.
* I finally consented , got married and started living with Ramesh
* Ramesh went to Singapore in search of greener pastures, but got injured there. He had to return to Tamil Nadu (home town) & found an ordinary employment here.
* Our sex life wasn’t great … we also quarreled a lot
* Six months ago as our quarrels weren’t ending, I left Ramesh (my legal husband) and went away to my grandma’s house at Bhutamangalam … My lover Prabhu was nearby and I got attracted to him again… We started living like husband and wife !!!
* Recently there was a festival at Bhuthamangalam and my legal husband Ramesh came searching for me. I introduced Ramesh my lover as a relative
* I had to admit my kid in school. Even there I gave my lover Ramesh’s name as the father’s name
* Me and my lover decided to unite. We could have easily eloped and married. However the legal hubby Ramesh was to get an insurance claim of Rs 17 lakhs for having been injured at Singapore. we decided to kill him to get the insurance !!

Police have questioned Prabhu who has casually accepted to have killed innocent Ramesh !!! Yes it was Durgadevi’s plan he says !!

………..and………. Legal hubby Ramesh is missing since some days …. police are searching for his body in the neadby canals and lakes !!!

full article from Junior Vikatan Tamil Magazine !!

”புருஷனைப் போட்டுத்தள்ளு!”
சீர்காழி சீக்ரெட்!

‘என் கணவர் ரமேஷை இரண்டு நாட்களாகக் காணவில்லை’ என்று கடந்த 17-ம் தேதி இரவு சீர்காழி காவல் நிலையத்தில் துர்காதேவி என்ற 30 வயது மதிக்கத்தக்க பெண் புகார் அளித்தார். விசாரணையில் முன்னுக்குப் பின் முரணாகப் பேசியதால், அவர் மீதே போலீஸாருக்கு சந்தேகம் ஏற்பட்டது. அவருடைய செல்போன் இன்கம்மிங், அவுட்கோயிங் விவரங்களை ஆராய்ந்தபோது, குறிப்பிட்ட ஒரு எண்ணுக்கு அடிக்கடி பேசியது தெரிந்தது. அந்த எண்ணுக்குச் சொந்தக்காரர், புத்தமங்கலத்தைச் சேர்ந்த பிரபு. போலீஸார் சந்தேகப்பட்டது சரிதான். கள்ளக்காதல் காரணமாக ரமேஷ் கொலை செய்யப்பட்டுவிட்டார்.

போலீஸில் துர்காதேவி கொடுத்திருக்கும் வாக்குமூலம் இப்படி போகிறது… ”என் அக்காவுக்குப் பார்த்த மாப்பிள்ளைதான் களத்தூர் கிராமத்தைச் சேர்ந்த ரமேஷ். கல்யாணத்துக்கு முதல் நாள் இரவு, அக்கா வேறு ஒருவருடன் போய்விட்டாள். கல்யாணம் நின¢றுவிடக்கூடாது என்பதற்காக, ரமேஷ§க்கு என்னைத் திருமணம் செய்துவைக்க முடிவெடுத்தனர் நான் அப்போது புத்தமங்கலத்தைச் சேர்ந்த பிரபுவைக் காதலித்து வந்தேன். என் விருப்பம் இல்லாமல், ரமேஷ§க்குத் திருமணம் செய்து வைத்துவிட்டனர். நானும் அவருடன் சேர்ந்து குடும்பம் நடத்தினேன்.

என் கணவர் சிங்கப்பூர் சென்று வேலை பார்த்தபோது, கீழே விழுந்து அடிபட்டுவிட்டார். இங்கே வந்து பழக்கடையில் வேலை பார்த்துக்கொண்டிருந்தார். அவர் அதிகம் என்னுடன் செக்ஸ் வைத்துக்கொள்ள மாட்டார். இதனால் எனக்கு அவர் மேல் வெறுப்பு வந்தது. எங்களுக்குள் அடிக்கடி சண்டை வரும்.

ஆறு மாதங்களுக்கு முன்பு கோபித்துக்கொண்டு புத்தமங்கலத்தில் உள்ள பாட்டி வீட்டில் தங்கி வேலை பார்த¢து வந்தேன். ஏற்கெனவே நான் காதலித்த பிரபுவும் அதே ஊர் என்பதால், எங்கள் காதல் மீண்டும் வளர்ந்தது. பிரபுதான் எனக்கு எல்லாமே என்று தோன்றியது. பிரபுவுக்குக் கல்யாணம¢ ஆகவில்லை. அதனால், அவனையே கல்யாணம் செய்துகொள்ளலாம் என்று நினைத்தேன். இருவரும் கணவன் மனைவி போலவே பழகி வந்தோம். புத்தமங்கலத்தில் கோயில் தீமிதி திருவிழா வந்தது. அப்போது என் கணவர் ரமேஷ் வந்தார். அப்போது பிரபுவை என் உறவுக்காரர் என்று ரமேஷ§க்கு அறிமுகம் செய்து வைத்தேன்.

என் குழந்தையை நீடூரில் உள்ள பள்ளியில் சேர்ப்பதற்காக பிரபுவை அழைத்துக்கொண்டு போனேன். அப்போது அப்பா என்று பிரபு பெயரைத்தான் கொடுத்தார். ‘உன் பிள்ளைக்கு நான் அப்பாவாக வேண்டும். உன்னுடன் சேர்ந்து வாழ வேண்டும் என்றால், அந்த ரமேஷ் உயிரோடு இருக்கக் கூடாது’ என்று பிரபு அடிக்கடி சொல்வார். நானும், ‘நீ என்னை கல்யாணம் செய்துகொள்வதாக இருந்தால் அவரை எது வேண்டுமானாலும் செய்துகொள்’ என்று சொன்னேன். எப்படியாவது ரமேஷைத் தீர்த்துக்கட்டிவிட வேண்டும் என்று பிளான் செய்தோம். ரமேஷின் போன் நம்பரை பிரபுவிடம் கொடுத்து பேசச் சொன்னேன். அதற்கு மேல் என்ன நடந்தது என¢று எனக்குத் தெரியாது. ரமேஷைக் காணவில்லை என்று அதன் பிறகுதான் போலீஸில் புகார் அளித்தேன்” என்று சொல்லியிருக்கிறார்.

பிரபுவை போலீஸார் பிடித்ததும், ‘நான்தான் கொலை செய்தேன்’ என்று எவ்வித பதற்றமும் இல்லாமல் ஒப்புக்கொண்டதாக போலீஸ் சொல்கிறது. ”இருவரும் ஓடிப்போய் திருமணம் செய்துகொள்ளலாம் என்றுதான் துர்காவிடம் சொன்னேன். ‘ரமேஷ் சிங்கப்பூரில் வேலை செய்யும்போது அடிபட்டதற்கான இன்ஷூரன்ஸ் தொகை 17 லட¢சம் வரப்போகிறது. நாம் ஓடிப்போய்விட்டால் அது கிடைக்காது. ரமேஷை கொலை செய்துவிட்டால், அந்தப் பணம் நமக்குக் கிடைக்கும். அதன் பிறகு கல்யாணம் செய்துகொள்ளலாம்’ என்று துர்கா சொன்னாள். அதனால்தான் ரமேஷைக் கொலைசெய்ய திட்டமிட்டோம்.

துர்காவிடம் இருந்து ரமேஷின் போன் நம்பரை வாங்கி, சீர்காழி பழைய பேருந்து நிலையத்துக்கு 16-ம் தேதி வரச் சொன்னேன். அவனை மோட்டார் சைக்கிளில் ஏற்றிக்கொண்டு, மதுபாட்டில்களை வாங்கிக்கொண்டு கடவாசல் பகுதியில் உள்ள வடிகால் வாய்க்கால் பகுதிக்குச் சென்றேன். ரமேஷ§க்கு அதிகமாக சரக்கை ஊற்றிக்கொடுத்தேன். அவரது பின்மண்டையில் கட்டையால் அடித்து, கழுத்தை நெரித்துக் கொலைசெய்தேன். பிணத்தை ஏரிக்கரை வாய்க்காலில் தள்ளிவிட்டு வந்துவிட்டேன்” என்று சொல்லியிருக்கிறார் பிரபு.

துர்காதேவி பற்றி உறவினர்களிடம் பேசினோம். ”அக்கா ஓடிபோயிட்டதால்தான் துர்காதேவிக்கும் ரமேஷ§க்கும் கல்யாணம் நடந்துச்சு. ரெண்டு பேருக்கும் 15 வயசு வித்தியாசம். அடிக்கடி சண்டை வரும். இப்படி புருஷனையே கொலை செய்ய எப்படி துணிவு வந்துச்சுன்னுதான் தெரியலை” என்றார்கள்.

கள்ளக்காதல்கள் பெருகுவதும், அதற்கான கொலைகள் அரங்கேறுவதும் சமூகத்துக்கு ஆரோக்கியமானது இல்லை.

– ஏ.ராம்

souce

http:// www. vikatan. com /new/article.php?module=magazine&aid=97171

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Hon. Justice Shri Reghupathi’s order on 498A !! mediation first !! No arrest except in grave situations

Hon. Justice Shri Reghupathi’s order on 498A !! mediation first !! No arrest except in grave situations

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.08.2008

CORAM

THE HON’BLE MR. JUSTICE R.REGUPATHI

M.P. No.1 of 2008

in

Crl.O.P. No.10896 of 2008

ORDER

Pursuant to the direction of this Court dated 07.07.2008 to file compliance report, the Director General of Police in consultation with the Government, has issued the following Circular Memorandum:-

" Circular Memorandum

Sub- Filing of cases registered under Dowry Death / Suicide in All Women P.S. – Instructions issued.

*****

The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.

i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.

ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.

iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.

iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.

v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).

vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.

vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.

viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.

ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.

2) The Commissioners of Police in cities and Superintendents of Police in Districts are requested to strictly follow the above instructions without any deviations.

3) Receipt of the same should be acknowledged.

Sd/- (29.07.2008)

For Director General of Police."

2. In respect of suggestion Nos.8 and 11 made by this Court; in the letter, dated 01.08.2008, of the Director General of Police, it has been stated as follows:-

" 2) With regard to the suggestion No.8, i.e., "A different Uniform other than the regular one may be recommended for these police officers" – the matter requires deliberations at length with Senior Police Officers in the State. All the Senior Officers have been addressed to send their view on the subject. After obtaining their views the matter will be discussed at State Headquarters and a report in this regard will be sent.

3) With regard to suggestion No.11 – Director General of Police, Training has been addressed to initiate action to conduct Education programme for Police Officers on the objects of the legislation, judicial pronouncements and development of law. Further progress report will be sent. "

3. Learned Government Advocate (Crl. Side) submits that, by virtue of the above Circular Memorandum, all the Commissioners of Police and the Superintendents of Police in the State have been instructed to scrupulously follow the suggestions, enumerated in the form of instructions, and therefore, in effect, the order of this Court has been complied with.

4. The complaisant reaction to the suggestions made by this Court and issuance of the aforesaid Circular Memorandum with suitable instructions by the Director General of Police deserves deep appreciation of this Court. It must also be pointed out that though several such suggestions and instructions were earlier made/issued in that perspective by the Honourable Supreme Court as well as this Court, there was no expected progress or outcome since, in course of time, the system started trailing with the same deviation and anomalies to reform/correct which the instructions were issued. At least now, this Court is anxious to see that the directives are strictly followed perpetually with letter and spirit by the Investigating Officers of the Department in particular the officers posted at the All Women Police Stations.

5. Before parting, having regard to the directions issued to the Police Department, this Court deems it necessary to outline certain aspects with regard to the role of the Judicial Magistrates and their effective functioning in deriving a positive outcome. As could be seen, though suitable directions have been given to the police, in particular to the Station House Officers, still there may be scope for misuse of power. The directions/instructions are only illustrative and not exhaustive. When the investigating officers seek for remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that the accusation or information is well- founded and it appears that the investigation cannot be completed within a period of 24 hours, remand may be ordered. Violation of human rights and infringement of personal liberties must be viewed seriously. Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the police officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on the mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand. To put it clear, a requisition of remand by the police must accompany the Case Diary, whereupon, the Magistrate must satisfy himself as to the adequacy and genuineness of the grounds necessitating judicial custody and while passing orders for remand or extension of remand, he must be alert to see that the liberty of the citizen is not violated by the police due to arbitrary exercise of power. Though a detailed speaking order is not required for remand, application of judicial mind is absolutely necessary. Of course, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably. At the time of production of the accused before the Magistrates, they should examine the necessity and even at the time of initial remand, if it appears that remand is not necessary, bail application can be entertained provided the accused is prepared to furnish necessary surety or security as may be directed by the court. Likewise, in cases where remand is required to be ordered, the period must be circumscribed depending upon the nature of the case, the materials produced by the prosecution and the actual requirement. Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided. It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 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. It is only before the jurisdiction Magistrate concerned, on conclusion of the investigation, final report is filed, whereupon, trial of the case is taken up and, in matters relating to serious offences, committal proceedings are initiated. It is the learned Magistrates who are empowered to order maintenance under Section 125 Cr.P.C. and award compensation in appropriate cases. Pending investigation, for grant of instant relief viz., to award interim maintenance, interim compensation, entrust custody of minor, forward the victims to Govt. Homes, issue search warrant, order bailable or non-bailable warrant, restore sridana properties, send the injured to the Hospital, provide security, etc., to the complainant/wife/victim, the learned Magistrates can be approached and at such point of time, the Magistrates must see to it that orders are passed without any delay. The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute they are investigating and place the same before the court/Magistrate. For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family court. In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of F.I.R., the police should not be allowed to conduct lengthy panchayats in police stations. If the dispute could not be resolved within a period of one week, a conclusion must be reached one way or the other and the matter must be forwarded to the learned Magistrate concerned. Therefore, while considering such cases, the learned Magistrates are directed to apply their judicial mind having regard to the propounded principles and procedure and the various aspects pointed out in the course of this order and also to monitor scrupulous adherence to the instructions referred to above by the police officers concerned.

6. With the above observations and direction, the petition is closed.

7. Registry is directed to immediately circulate copy of this order as well as the earlier order dated 07.07.2008 to the Director General of Police, Tamil Nadu, and all the Judicial Magistrates for compliance.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Police should always avoid arrest if possible to complete investigation without arrest. Del.HC, 2003 !

Hon. Delhi HC’s directions to police, instructing them to AVOID ARREST IN 498a cases wherever possible !!!, Court also states that 498a/406 cases are misused to the max !! …well that was in year 2003 !!

The Hon. Delhi HC "………In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation….."

"….The liberty of a citizen is of paramount importance and a constitutional guarantee and cannot be incised and, therefore, the police or Investigating Agencies should not remain under the impression that in every cognizable and "non-bailable" offence they should invariably arrest the offender. Power to arrest is altogether different than the need for arrest…."

"……For instance it is the experience of this Court that in offences under Sections 498A/406, IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided……"

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Delhi High Court

Court On Its Own Motion vs Central Bureau Of Investigation on 28 January, 2004

Equivalent citations: 109 (2003) DLT 494

Author: J Kapoor

Bench: J Kapoor

JUDGMENT

J.D. Kapoor, J.

1. Having come across the following news item in a national daily "Statesman" of 16th September, 2003 this Court took suo motu notice as prima facie illegality in the order was writ large on the face, summoned the record, noticed the CBI and stayed its operation. The news item reads as follows:

"Special Court returns CBI charge-sheet

Statesman News Service

New Delhi, Sept. 15.–The Central Bureau of Investigation was at the receiving end of the ire of a Special Court today with the Judge declining to accept its charge-sheet against an IRS official-allegedly involved in a fake visa racket during his posting in Tanzania and snubbed it for not arresting him during the investigation.

Additional Sessions Judge Mr. Prem Kumar returned the charge-sheet to the agency saying it was not observing a uniform policy or norm in arresting accused persons during investigations. The Court rejected CBI contention that provisions of Section 170, Cr.P.C, which requires the Investigating Officer to forward the accused under custody to a Magistrate, did not apply in the present case.

The agency charge-sheet accused Rajeshwar Singhal of misappropriating Rs. 23.09 lakh while acting as First Secretary at the Indian High Commission in Tanzania in 1998-2000. The agency has alleged that during his posting at Tanzanian Capital Dar-es-Salaam, Singhal issued visas to the applicants by falsifying the receipts of various categories.

Besides being charged under Prevention of Corruption Act for misusing the official position, he was also slapped with charges under Section 409 (Criminal Breach of Trust) of the IPC among others."

2. In the instant matter, case was registered against the accused in February, 2001 and charge-sheet was filed in August, 2003. During this period, the accused was not arrested as CBI did not deem his arrest necessary for investigation. But now learned Special Judge wants CBI to arrest him and has ordered that unless he is produced in custody he would not accept the charge-sheet little realizing that there is prescribed limit of time for offences during which the Court can take cognizance. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. So much so he came very heavily upon the CBI by observing that the CBI was not adhering to the norm in arresting the accused during the investigation and flouting the provisions of Section 170, Cr.P.C requiring the Investigating Officer or Officer-in-charge of the Police Station to forward the accused in custody to a Magistrate where there is sufficient evidence and reasonable ground to put him on trial.

4. Now the question arises whether it is legally permissible for any Criminal Court to refuse to accept the charge-sheet where accused is neither arrested during investigation nor produced in custody by the Investigating Officer at the time of filing the charge-sheet wherever there is sufficient evidence to try the accused. Answer is emphatic "NO" as Section 173 of the Code of Criminal Procedure does not permit the Criminal Court to adopt such a course. Such a course is even otherwise fraught with serious consequence of failure to take cognizance of the charge-sheet if it becomes barred by time in the process of procuring the custody of the accused for production before the Court as law provides a limitation for taking cognizance of the charge-sheet. Moment the charge-sheet is filed, it is the duty of the Court to accept it. It has no powers to return the charge-sheet directing the Investigating Officer to first produce the accused in custody. It is not imperative or necessary for the Officer-in-charge of the Police Station to forward each and every accused in custody at the time of filing of the charge-sheet wherever there is sufficient evidence to try the accused.

5. According to Section 173 of Cr.P.C. three courses are open to the Magistrate or a Court: (i) It may accept the report and take cognizance; (ii) It may disagree with the report and drop the proceedings; (iii) It may direct further investigation.

6. It is co-incident that a similar course was once adopted by a Magistrate in Gujarat way back in 1983 which was deprecated by the High Court in Deendayal Kishanchand and Ors. v. State of Gujarat, 1983 Crl. L.J. 1583, with the observations that a refusal by Criminal Courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law and, therefore, whenever the police submit the charge-sheet, it is the duty of the Court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence.

7. Let us first see what is command of Section 173, Cr.P.C. under which charge-sheet is filed and then I shall advert to the provision of Section 170, Cr.P.C. under which the learned Special Judge has returned the charge-sheet. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Section 173, Cr.P.C. provides as under :

"Section 173. (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the Officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond, and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170?

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer-in-charge of the Police Station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies the police officer shall forward to the Magistrate Along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to Magistrate and, where upon such investigation, the Officer-in-charge of the Police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)."

9. Bare perusal of Section 173, Cr.P.C. shows that whenever a final report under Section 173, Cr.P.C. is filed for consideration by the Magistrate, two situations may arise. First, that the report may conclude that the offence appears to have been committed by a particular person or persons and second, that in the opinion of the Officer-in-charge no offence appears to have been committed.

10. In the first eventuality, that is where the report discloses the commission of an offence, the aforementioned three courses are open to the Magistrate viz. (a) he may accept the report and take cognizance of the offence and issue process; (b) he may disagree with the report and drop the proceedings; (c) he may direct further investigation.

11. In the second eventuality i.e. where the report states that no offence appears to have been committed, the Magistrate has again three options: (a) he may accept the report and drop the proceedings; (b) he may disagree with the report and take the view that there is insufficient ground for proceeding further, take cognizance of the offence and issue process; (c) he may direct further investigation to be made by the police.

12. Perusal of Section 173, Cr.P.C. further shows that as soon as investigation is completed the Officer-in-charge of the Police Station is required to forward the police report to Magistrate empowered to take cognizance of the offence in the form prescribed there under with the information contained in Sub-clauses (a) to (g).

13. The very word "Whether" referred in Clause (g) of Sub-section (2)(i) shows that it is not mandatory for Officer-in-charge to forward each and every accused in custody while filing the charge-sheet in non-bailable offences where there is sufficient ground to try the case. Had there been any imperative need to forward every accused in custody, then there was no need for particulars regarding Sub-clauses (d) and (e) i.e. "whether any offence appears to have been committed, and, if so, by whom" and "whether the accused has been arrested." This conclusion is derivative of Section 170, Cr.P.C.

14. Let us now see the import of Section 170, Cr.P.C. It reads as under :

"Section 170(1) If, upon an investigation under this chapter, it appears to the Officer-in-charge of the Police Station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed."

15. Word "custody" appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the charge-sheet where after the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. In case the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the I.O. is not obliged to produce such an accused in custody.

17. Thus, the only meaning of Sub-clause (g) of Sub-section (2)(i) of Section 173, Cr.P.C. "whether the accused has been forwarded in custody under Section 170" is with regard to the information that whether the accused is being forwarded under custody or not. Nothing more nothing less. Section 173, Cr.P.C. confines to providing the said information.

18. Thus, at the most the Magistrate, for that purpose the Court empowered to take cognizance has the power to ask the prosecution to provide with further information in respect of Clauses (a) to (g) of Sub-section (2)(i), if these are deemed deficient and in no case has the power to return the charge-sheet on the ground that the officer-in-charge of the police station or CBI has while filing the charge-sheet not forwarded the accused in custody in "cognizable" and "non-bailable" offence where there is evidence to try the accused in spite of the fact that the IO did not deem it necessary to arrest such a person even for the purpose of completing the investigation.

19. It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out.

21. The liberty of a citizen is of paramount importance and a constitutional guarantee and cannot be incised and, therefore, the police or Investigating Agencies should not remain under the impression that in every cognizable and "non-bailable" offence they should invariably arrest the offender. Power to arrest is altogether different than the need for arrest. Unless a person is required for custodial interrogation and investigation cannot be completed without his arrest, arrest may be necessary. In case investigation can be completed without his arrest and he extends all kind of co-operation, he should not be arrested. No authority howsoever powerful or mighty can be allowed to deny a person his liberty as it hits at the very foundation of democratic structure. In this regard, I cannot resist the temptation of reproducing the observations made by the Supreme Court in Joginder Kumar v. State of U.P. and Ors., , which are very pithy and have force in law. These are as under: "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter."

22. Because of the view taken by the Special Judge and return of the charge-sheet by forcing the CBI to arrest the accused which it otherwise never felt the necessity of arresting him even for the purpose of investigation, and apprehension of the accused being denied the benefit of bail in spite of offence being devoid of high magnitude and severe punishment this Court feels constrained to give certain directions based on the legal position and several judgments including those delivered by me recently [(i) Suresh V. Chaturvedi v. AES Control Pvt. Ltd., =Crl.M.(M) 2970/2003 decided on 24th July, 2003; (ii) Pratap Singh Gaekwad and Ors. v. State of NCT of Delhi and Anr., Crl.M.(M) 1848/2003 decided on 30th October, 2003; (iii) Sudhir Nathani v. Central Bureau of Investigation, Crl.M.(M) 2848/2003 decided on July 24th, 2003] to the police and the Investigating Agencies as well as to the Courts competent to take cognizance of the offence and try the accused for guidance and compliance. These are :–

Directions to the Police/Investigating Agencies like CBI etc.:

(1) Investigating Officer, be of police station or special agency like CBI shall not arrest any person accused of having committed a cognizable and non-bailable offence until it is very necessary for the purpose of investigation or custodial interrogation say for recovering incriminating articles or weapons of offence or eliciting information as to his accomplices etc. or for any other purpose that may help in gathering evidence to prove his guilt.

(2) Arrest should always be avoided if the investigation can be completed even otherwise and the accused gives full co-operation in completing the investigation.

(3) Arrest may be necessary, if the offence alleged is of grave nature and prescribes severe punishment and there is a likelihood of an offender either absconding or not appearing on being summoned or his fleeing away from justice or judgment.

23. For instance it is the experience of this Court that in offences under Sections 498A/406, IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

24. In this Court everyday ten to twenty matters for quashing the FIRs under Sections 498A/406, IPC are taken up as all marriages end in divorce where relatives of husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than remedy.

25. It was in view of this malady that this Court had strongly recommended to make the offence under Section 498A, IPC bailable and compoundable if society wants to salvage and save the institution of marriage. This Court again reiterate its recommendations to the Government.

26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.

Directions for Criminal Courts :

(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.

(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.

(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.

(vi) That the Court shall always keep the mandatory provisions of Section 440, Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration the financial condition, the nature of offence and other conditions, as "Excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.

Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit are as under:

(a) bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;

(b) bail may be refused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;

(c) bail may be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being;

(d) bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and

(e) bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail;

(f) similarly, the Court shall not while releasing a person on bail put any condition, say in the form of deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439, Cr.P.C.

27. This Court has laid down aforesaid law in various cases decided from time-to-time for the guidance and compliance of the subordinate Courts but it is with great anguish and pain that this Court observes that it has come across a large number of orders passed by the subordinate Courts in complete violation of the law laid down by this Court and Supreme Court in many more other cases.

28. There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate Courts is not only against the very concept of rule of law but also verges on contempt of Court as subordinate Courts are, by way of constitutional provisions, bound by the decision of the local High

Court as is every Court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate Courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.

29. Motion is disposed of with the aforesaid directions.

30. In view of the wide ramifications of the law laid in this case and cases referred therein and for the benefit of the society and people at large, Registrar General of this Court is directed to send the copy of the judgment to Police Commissioner for guidance and compliance by the SHOs/Investigating Officers and to all the Judicial Officers of Delhi and to the Director, Central Bureau of Investigation.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist