Daily Archives: December 14, 2015

fake 498a with vague sweeping allegations 5 yrs aftr split, quashed by Guj HC !!

Wife files a 498A, 323, 506, 506(2) case approx. 5 years after separation. All she has are vague, general and sweeping allegations, specifying no instances of criminal conduct. The Police also seems to have recorded stereo-type statements of witnesses, who are none other than the parents and relatives of the wife and filed a charge-sheet !! Gujarat HC quashes the case !!

* marriage on 13th April 2006
* wife claims she was harassed etc. and has left matrimonial home on 2 Sep 2010
* then approx 5 years later, on 13 April 2015 she has lodged a complaint and police filed an FIR !!
* though she is angry with her husband she has accused many more relatives of the husband !!
* as mentioned above, the Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the wife and has filed a charge-sheet !!
* Gujarat HC quashes the case !!
* Honourable Justice Padriwala affirmatively quotes the Hon Apex courts dictum “….. Judicial process no doubt should not be an instrument of oppression, or, needless harassment…” and “…If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court..”
* The Honourable Judge also affirmatively quotes many relevant paragraphs from the Apex court’s judgement in Preeti Gupta Vs. State of Jharkhand and Arnesh Kumar Vs. State of Bihar
* The Hon. Judge quotes his own earlier judgement wherein he has observed “….26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing…..”

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 15536 of 2015
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VISHALBHAI NIRANJANBHAI ADATIYA & 4….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
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Appearance:
HARSHESH R KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
MR RC KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR NILESH I JANI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2015

ORAL ORDER

1. By this application under Section 482 of the code of Criminal Procedure, 1973, the applicants-original accused seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being C.R. No.II-194 of 2015 registered at Songadh Police Station, Tapi for the offence punishable under Sections 498A, 323, 506, 506(2) read with Section 114 of the Indian Penal Code.

2. The applicant No.2 is the mother-in-law, the appliciant No.3 is the brother-in-law, the applicant No.4 is sister-in-law and the applicant No.5 is the sister-in-law of the respondent No.2-original first informant.

3. The marriage of the first informant was solemnized on 13th April, 2006 with the applicant No.1. In the wedlock a daughter was born. It is the case of the first informant that soon after the marriage, the applicants herein started harassing her mentally as well as physically. On account of such harassment, she left the matrimonial home on 2nd September, 2010. Thereafter, on 13th April, 2015 she thought fit to lodge the First Information Report at the concerned Police Station.

4. Mr. Kakkad, the learned advocate appearing for the applicants would submit that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that almost after a period of five years from the date the first informant left the matrimonial home, the FIR was lodged. He submitted that the allegations are quite general and vague in nature. He submitted that the FIR deserves to be quashed.

5. On the other hand, this application has been vehemently opposed by Mr. H.K. Patel, the learned APP appearing for the State of Gujarat. He submitted that the First Information Report although belated, yet prima facie discloses commission of a cognizable offence and the Police should be permitted to complete the investigation in accordance with law.

6. The respondent No.2 is being represented by Mr. Nilesh I. Jani, the learned advocate who has been appointed by the High Court Legal Services Authority. He is not present when the matter is called out and taken up for hearing.

7. Having heard the learned counsel appearing for the parties and having considered the allegations levelled in the FIR, the only question that falls for my consideration is whether the FIR should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. As usual, on account of matrimonial disputes, the respondent No.2 has not only levelled allegations against the husband but all other members of the family of the in- laws including married sister-in-laws have been roped in. As stated above, it is not in dispute that she had left the matrimonial home on 2nd September, 2010. She lodged the FIR after a period of five years on 13th April, 2015. I had an occasion to deal with this type of issues at length in the case of Dipakbhai Ratilal Patel V. State of Gujarat, Criminal Misc. Application No.5819 of 2009, decided on 26th September, 2014. This Court observed as under:-

“16. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

17. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

18. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

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

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

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

19. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:

“6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases.

The illustrative categories indicated by this Court are as follows:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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

20. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.

21. A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.

22. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under :

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, ‘cruelty’ means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

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

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

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law.It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law and Justice to take appropriate steps in the larger interest of the society.”

23. In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. They are reproduced below:-

“6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand- mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. 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 and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. …. …..”

24. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-

“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts.

The view taken by the judges in this matter was that the courts would not encourage such disputes. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.”

25. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.

26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27. Mr. Raval, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to Mr. Raval, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to Mr. Raval, at the best, the applicants Nos. 2 to 6 could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

28. Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

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

29. I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by Mr. Raval, the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.

It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court

“often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

30. More importantly, the respondent No.2 has not explained as to why it took more than four years for her to register the FIR. Is it so because the husband initiated proceedings for divorce in the year 2006. My attention has been drawn by Mr. Patel, the learned Advocate appearing on behalf of the applicants to a notice dated 17th April, 2008, issued by the respondent No.2, through her advocate to the petitioner No.1, wherein there is not a whisper of any allegations against any of the relatives of the husband, which includes the applicants Nos. 2 to 6.

31. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.

32. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398 observed as under:-

“When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.”

When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health ……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.”

33. What constitutes cruelty in matrimonial matters has been well explained in American Jurisprudence 2nd edition Vol. 24 page 206. It reads thus:-

“The question whether the misconduct complained of constitute cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”

9. Applying the ratio of the above referred judgment, I have no hesitation in coming to the conclusion that this petition deserves to be allowed. The First Information Report being C.R. No. II–194 of 2015 registered at Songadh Police Station, Tapi is hereby ordered to be quashed so far as the applicants Nos. 2, 3, 4 and 5 are concerned. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

Manoj

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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 or High court websites. Some notes are made by Vinayak. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . 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 with necessary Emphasis, Re formatting
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Lady inspector acused of seeking bribes 2 close 498a/406 acquitted due to confusions in case. Del HC

In this case an AWPS inspector who is accused of accepting bribes, who is trapped by a CBI raid party is acquitted by both the lower court and HC as there are discrepancies in the eyewitness. The Hon HC re affirms that lower court acquittals cannot be easily overturned by the HC unless the lower court acquittal is perverse and contrary to law !! This is a very important case that husbands can use, IF the wife or prosecution goes on appeal against lower court acquittal !!

Case details
* wife files 498a / 406 on husband. Husband etc are called to the PS
* Husband alleges that bribe was demanded to close the case in his favour. He claims Rs 8000 was finally bargained and agreed as the bride
* Then husband approaches CBI. They prepared to lay a trap, send a shadow witness with him and also send treated money
* BOTH husband and CBI’s shadow witness go to inspector’s house. They are let in. Once inside, they claim that the AWPS inspector took the chemically treated bribe money
* All this happens inside the inspector’s house. On giving the money, a signal is given by the shadow witness (as pre agreed), a raid follows and the raid team claims that they recovered the money from the house (from her kitchen where she had hidden the money just prior to the raid)
* The inspector’s hand and the “lota” (vessel) from which the money is collected, all give positive results for presence of chemical powder (when treated with appropriate solution)

* however there are discrepancies in the prosecution case as to
* which hand, left or right hand was used to take the money
* did the inspector go inside the house AFTER taking the money
* did she wash tumblers and serve them water after taking the money etc…

* Lower court acquits the inspector. CBI goes on appeal saying that practically everyone, the husband who gave the money, the shadow witness, the trap laying officer, etc etc are all unanimously saying that the AWPS inspector took the bribe. “…appellant/CBI contended that Naimuddin/complainant (PW1) having supported the prosecution case and his evidence having been corroborated by the evidence of Banwari Lal Sharma/ independent witness (PW3), Inderjeit/shadow witness (PW4) and (PW7) Inspector S.R. Singh/ Trap Laying Officer(TLO) there being ample material evidence in proof of the prosecution case, however, the learned Special Judge had committed error and illegality in acquitting the respondent/accused…..”

* Still the accused AWPS inspector is exonerated both by the special court and high court as there are material discrepancies in the witness statements !!

* It’s important to note that the Trial court suspects that the complainant planted the money in the inspector’s kitchen utensils !! to trap her, because of the grudge he had against her !! The HC does not go against this suspicion

* The HC quotes the Hon SC’s view that mere acceptance of money is NOT good enough to prove that the accused is guilty of accepting a bribe “….it was held by the Supreme Court that mere recovery of money, divorced from the circumstances under which it is paid, is not sufficient to convict the respondent when the substantive evidence in the case is not reliable. Mere recovery of money cannot prove the case of the prosecution against the respondent in the absence of any instance to prove the payment of bribe or to show that the respondent voluntarily accepted the money knowing it to be bribe…..”

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Delivered on: 10th December, 2015

CRL.A. 573/2004

STATE THR. CBI ….. Appellant
Represented by:Ms.Rajdipa Behura, Special Public Prosecutor for the CBI with Ms. Monica Gupta, Advocate.

Versus

SHOBHA CHHABRA ….. Respondent
Represented by: Mr. Rajesh Aggarwal, Mr. Harsh Kumar Sharma, Mr.Mohit Aggarwal, Mr. Suresh Chand and Mr. Rohit Gaur, Advocates.

CORAM: HON’BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. By way of the present appeal filed under Section 378(2) read with Section 378(3) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), appellant/CBI seeks setting aside of order of acquittal dated 10.01.2003 passed by the learned Special Judge, Delhi, in case bearing RC84(A)/95-DLI.

2. Ms.Rajdipa Behura, learned senior standing counsel appearing on behalf of the appellant/CBI contended that Naimuddin/complainant (PW1) having supported the prosecution case and his evidence having been corroborated by the evidence of Banwari Lal Sharma/ independent witness (PW3), Inderjeit/shadow witness (PW4) and (PW7) Inspector S.R. Singh/ Trap Laying Officer(TLO) there being ample material evidence in proof of the prosecution case, however, the learned Special Judge had committed error and illegality in acquitting the respondent/accused.

3. She further submitted that the learned Special Judge had given undue importance to the minor discrepancies in the evidence of the Complainant, shadow witness and the Trap Laying Officer. Therefore, impugned order being perverse and the order of acquittal having resulted in failure of justice, there is need for interference.

4. In support of her contention, the learned counsel has relied upon the case of State of U.P. Vs. Zakaullah (1998) 1 SCC 557, wherein the Supreme Court held that the evidence of Trap Laying Officer can be relied upon even without corroboration. Moreover, there is no reason on the record to disbelieve him.

5. Ms.Behura further submitted that the learned Special Judge failed to consider the fact that once it is established that the respondent has either obtained or accepted a gratification then, the presumption under Section 20 PC Act has to be raised.

6. To strengthen the aforesaid submission, she has relied upon the case of B. Hanumantha Rao Vs. State of Andhra Pradesh (AIR 1992) SC page 1201, wherein the Supreme Court held that once the amount is found in the possession of the accused, the burden shifts on him to explain the circumstances to prove his innocence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. Also relied upon the case of Madhukar Bhaskarrao Joshi Vs. State of Maharashtra, (2000) 8 SCC 751, wherein the Supreme Court observed as under:-

10. In the light of the said stand of the appellant we do not
find the necessity to consider the evidence of the prosecution
witnesses who all said that PW-1 gave the money to the appellant at
his office. Of course, learned Counsel for the appellant contended
that the testimony of PW-1, on that score, is not corroborated by any
other independent witness. At this stage itself we may point out that
there is no merit in the said contention, as there is sufficient
corroboration on that aspect, even apart from the testimony of other
witnesses examined by the prosecution. The very undisputed fact that
the amount had reached the hands of the appellant itself is
sufficient corroboration for the testimony of PW-1 that the amount
was paid to the appellant.

xxxx xxxx

12. In Black’s Law Dictionary, ‘gratification’ is defined as “a
recompense or reward for services or benefits given voluntarily
without solicitation or promise”. But in Oxford Advanced Learner’s
Dictionary of Current English the said word is given the meaning “to
give pleasure or satisfaction to,” Among the above two descriptions
for the word ‘gratification’ with slightly differing nuances as
between the two, what is more appropriate for the context has to be
found out. The context in which the word is used in Section 4(1) of
the Act of 1947 is, hence, important. As the wording On the relevant
portion employed in the corresponding provision in the PC Act of 1988
{Section 20(1)} is identical we would reproduce that sub-section
herein: Where, in any trial of an offence punishable under Section 7
or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of
Section 13 it is proved that an accused person has accepted or
obtained or has agreed to accept or attempted to obtain for himself,
or for any other person, any gratification (other than legal
remuneration) or any valuable thing from any person, it shall be
presumed, unless the contrary is proved, that he accepted or obtained
or agreed to accept or attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive or reward such as is
mentioned in Section 7 or, as the case may be, without consideration
or for a consideration which he knows to be inadequate.

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

8. On the other hand, Mr. Rajesh Aggarwal, learned counsel appearing on behalf of the respondent, submitted that the prosecution case having not been established by placing credible evidence on record, the learned Special Judge was justified in passing the judgment of acquittal. Learned counsel referred to the evidence brought on record by the prosecution and submitted that the same is lacking credibility and there being inconsistency in the evidence of the prosecution witnesses, the learned Special Judge was justified in giving benefit of doubt to the respondent and passing the judgment of acquittal. Therefore, there is no scope for interference in the impugned judgment.

9. To support his contentions, learned counsel relied upon the case of Union of India through Inspector, CBI Vs. Purnandu Biswas, 2005 (4) Crimes 176 (SC), wherein the Supreme Court observed as under:-

“30. In State of U.P. vs. Zakaullah [(1998) 1 SCC 557], whereupon Mr.
Sharan placed reliance, Thomas, J. clearly stated that evidence of
such a witness would require the court to scrutinize it with a
greater care, but it does not call for outright rejection of his
evidence at the threshold.

xxxx xxxx

32. In B. Hanumantha Rao vs. State of U.P. [(1993) Supp. 1 SCC 323],
the conviction was based on concurrent findings of fact and
appreciation of evidence. No legal principle was laid down in the
said decision except stating that the circumstances pointed out
therein had been considered by the High Court and the same did not
improbablise the demand and acceptance.

xxxx xxxx

34. This Court in Habeeb Mohammad vs. State of Hyderabad [AIR 1954
SC 51], noted a long series of decisions that “the view taken in
India was that the purpose of a criminal trial is not to support at
all costs a theory but to investigate the offence and to determine
the guilt or innocence of the accused and the duty of a public
prosecutor is to represent not the police but the Crown, and this
duty should be discharged fairly and fearlessly with a full sense of
the responsibility attaching to his position and that he should in a
capital case place before the court the testimony of all the
available eye- witnesses, though they give different accounts, and
that the rule is not a technical one, but found on common sense and
humanity”.

35. The learned Additional Solicitor General submitted that onus of
proof was upon the Respondent to explain as to how he came in
possession of the amount. Section 20 the Prevention of Corruption
Act, 1988 reads as under:

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

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

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

36. In this case demand of illegal gratification by the Respondent
has not been proved. Furthermore, Section 20 of the Act is not
attracted as the Respondent had been charged for commission of an
offence under Section 13(1)(d) read with Section 13(2) of the Act.”

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

11. Before adverting to the factual matrix of the case, it would be relevant to note the proposition of law on this subject. The order of acquittal cannot be easily interfered with. It is only if there is grave perversity or infirmity which is glaring on the face of the record that the order of acquittal can be interfered. A presumption of innocence cannot be disturbed unless some cogent evidence is forthcoming.

12. In this context, the observations of the Supreme Court in Jaswant Singh Vs. State of Haryana (2000) 4 SCC 484 are relevant, which read as under:-

“21. The principle to be followed by Appellate Courts considering an
appeal against an order of acquittal is to interfere only when there
are “compelling and substantial reasons” for doing so. If the order
is “clearly unreasonable” it is a compelling reason for interference
(See: Shivaji Sahabrao Bobade v. State of Maharashtra).

The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat::

“While sitting in judgment over an acquittal the appellate court is
first required to seek an answer to the question whether the findings
of the .trial court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court holds, for reasons to
be recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities it can then – and then only –
reappraise the evidence to arrive at its own conclusions.”

13. In the case of Bhagwan Singh & Ors. Vs. State of M.P 2003 CriLJ1262, the Supreme Court observed that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

14. In a catena of judgments, the Supreme Court has held that the principle to be followed by the Appellate Court considering the appeal against the judgment of acquittal is to interfere with only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

15. Coming back to the case in hand, as per the prosecution case, Rehnaz Bano, wife of Sahiduddin, brother of Naimuddin (PW1), Complainant had lodged a complaint with the Crime Against Women (CAW) Cell of Delhi Police at Nanakpura on 21.07.1995 making allegations of harassment over dowry by her husband and in-laws, which was entrusted for inquiry to the respondent/Inspector Shobha Chhabra. In this context, PW 1 alleged in the complaint that he, accompanied by his said brother, had gone to the office of the respondent on being called by her on 22.09.1995. In the course of said meeting she told him clearly that his entire family was involved and thus could be arrested (in the dowry harassment matter) and thereafter she demanded Rs. 10,000/- for turning the said case in favour of his brother and for not putting his entire family under arrest. It was further alleged in the complaint that on his pleading, the respondent had reduced the demand of bribe to Rs.8,000/- and had asked him to bring the said amount of money to her house in quarter No. Z/982, Timarpur, Delhi, by 11 AM of 24.09.1995. On the aforesaid complaint, the SP, CBI directed Inspector SR Singh (PW7), by way of endorsement (Ex. PW7/A) to register a case and lay a trap. The complainant had arranged cash of Rs.5,000/- in the form of 50 currency notes of Rs.100/- each (Ex. P1 to Ex. P50). These notes were treated with Phenolphthalein Powder, and a demonstration of the application of said powder was given for knowledge of members of the raiding party. The numbers of currency notes were noted down described as Annexure ‘A’ (exhibit PW3/A), made part of the handing over memo that would also be reduced into writing. The treated currency notes were then given to the complainant and he was instructed to hand over the tainted money on specific demand by the respondent. Independent witness Inderjeet (PW4) was deputed to remain with the complainant as shadow witness posing himself as a friend, so as to overhear the conversation and see the transaction that was expected to take place between the complainant and the respondent. The shadow witness was directed to give a signal by scratching his head with his both hands after the money had been passed.

16. These preparations were reduced into writing in the form of handing over memo (PW1/C). Thereafter, the trap party reached the area in question, where the complainant and shadow witness proceeded into the residence of the respondent.

17. As per the prosecution case, the respondent opened the door on call bell and had asked the complainant and the shadow witness to come inside the drawing room where in the course of conversation the complainant told her that he had been able to bring only Rs. 5,000/- where upon she asked the money that had been brought to be given to her and on the complainant tendering the trap money, she received the same in her left hand at which stage the shadow witness came out of the house and gave the predetermined signal at about 11.40 a.m. On the signal being sighted the trap team was alleged to have rushed in and the respondent was apprehended by her respective wrists and challenged with having accepted bribe. However, the said fact was denied by the respondent. The TLO got her subjected to personal search through two Lady Officers of CBI, but the trap money was not found on her person. It was, however, revealed at that stage that the respondent had proceeded into the kitchen after having accepted the bribe from the complainant, whereupon a search was carried out which is stated to have resulted in the recovery of the tainted money found lying in a ‘LOTA’ (a steel utensil) in the kitchen. The money that was recovered on being checked was found to be tallying with the numbers recorded earlier in the handing over memo. It is alleged that washes of the left hand of the respondent and of the utensil in which the money had been found were taken in separate solutions of Sodium Carbonate and each gave positive test about presence of Phenolphthalein Powder. The washes were transferred into separate empty bottles, suitably marked, signed by the witnesses and sealed. The respondent was arrested on the spot. These post trap proceedings were reduced into writing vide recovery memo (Ex. PW1/D).

18. The investigation was later completed by Inspector Virender Thakran (PW-5), Investigating Officer, in the course of which besides having recorded statements of witnesses, he seized relevant records from the office of CAW Cell, collected result of washes from CFSL and obtained sanction for prosecution.

19. On completion of investigation, the evidence that had been collected was placed before the authority competent to grant sanction for prosecution in respect of the respondent. The sanction for prosecution is shown to have been accorded by Shri Ranjit Singh, Additional Commissioner of Police (Crime) (PW6), and on the basis of the same, a charge sheet was filed. Charges under Sections 7 and Section 13 (1) (d) read with section 13 (2) PC Act were framed against the respondent vide order dated 22.07.1997, to which respondent pleaded not guilty and claimed trail.

20. In all prosecution had examined nine witnesses. PW1, the complainant, in his complaint (exhibit PW 1/B) had mentioned that the respondent had called his brother Sahiduddin and him to her office for interrogation on 22.09.1995 and in the course of conversation that ensued he had been “clearly” told that the entire family was involved and so could be arrested in the case under inquiry with Crime Against Women Cell (CAW), Nanakpura. It was alleged in the complaint that the respondent had demanded a bribe of Rs.10,000/-, which she had agreed to reduce to Rs.8,000/- on pleadings, as a motive or reward for turning the case in favour of his brother and for not arresting the entire family.

21. However, during the course of investigation, the file maintained in the office of CAW had been seized and has been introduced in evidence as Ex. PW 3/C. This file inter alia contains the complaint dated 21.07.1995 (Ex. PW 1/A) made by Rehnaz Bano, wife of the brother of the complainant regarding, amongst others, harassment over dowry in the matrimonial home. The file also contained what has been described as “order sheet” which indicated both sides to the dispute had been called to her office on 07.09.1995 and had made some kind of compromise and the matter thereafter had been listed to come up on 15.09.1995. The file also contained a report made by the respondent, as Inquiry Officer, on 20.09.1995 to ACP (West), referring to the allegations made by Rehnaz Bano, wife of the brother of the complainant about harassment, physical and mental torture by her husband, her father-in-law and mother-in-law, in connection with their dissatisfaction over dowry. She also took note of the refusal of the complainant woman to accept her dowry offered to be returned by her husband, and that she was insisting on legal action. The report made by the respondent on 20.09.1995 clearly indicates that she had recorded her opinion that the case under Section 406/498A of IPC was made out and the papers were required to be sent through DCP (Central District) to PS Chandni Mahal for registration of a regular case against the husband and in-laws.

22. PW1, the complainant, has been questioned in above regard, during his cross-examination and he had conceded that he was aware before he had submitted the complaint to CBI regarding the demand of bribe by the respondent that she had already recommended the registration of the case against his brother, father and mother. However, this knowledge was not reflected in the complaint made to CBI, nor the action taken by CBI reflects any effort to ascertain this background so as to appreciate the motive on the part of the complainant, the manner in which the complaint had been drafted, admittedly, on dictation by CBI Inspector S.R. Singh (PW 7), the TLO himself, rather betrays a deliberate attempt to withhold information in this regard, which does not reflect well on the intentions on the part of the complainant and/or the TLO who had dictated the complaint for turning it into a FIR. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

23. The material on record, thus, clearly shows that the respondent had already wrapped up the inquiry on 20.09.1995 itself. She had concluded that the complaint made by the wife of brother of the complainant of the case in hand in the CAW Cell merited registration of a regular case for cognizable offences punishable under Sections 406/498A of IPC and had submitted a report to this effect to her superior officer on 20.09.1995 and the said report had even been acted upon by her senior officer, ACP, on 21.09.1995 when the matter was ordered to be placed before DCP for appropriate further action. With the said report, the respondent had already done her bit and there was nothing in her hands as the matter had already reached the desks of her senior officers.

24. Since the above action on her part was within the knowledge of the complainant of this case even at the time when he approached CBI for laying a trap, his allegations that the respondent had called him and his brother to her office on 22.09.1995 and made a demand for bribe for turning the case in favour of his brother and for not putting his entire family under arrest needs to be taken with a pinch of salt. In the given facts and circumstances when the complainant was aware of the action already taken by the respondent in the dowry harassment case, it has to be assumed that he would also know that further action in the said matter would be done in the discretion of DCP, an officer much superior in rank to the respondent and the question of arrest would arise at the level of local Police Station to which the matter had been recommended to be sent for registration of a regular case. It is highly improbable in these facts and circumstances that the respondent would have expected the complainant to give any bribe to her and for the complainant to take such demand, assuming it had been actually made, with any seriousness.

25. The complainant in the course of his statement as PW 1 in the court has referred to in telephonic conversation with the respondent during which he had learnt her residential address. This does give rise to a significant question as to whether the complainant in the first instance and the TLO in the next were really aware about the residence of the respondent. Noticeably in the complaint exhibit PW 1/B, the complainant would mention her residence as Quarter No. Z-982, Timarpur, Delhi. The prosecution evidence itself demonstrates that this was not the correct residential address of the respondent. The recovery memo exhibit PW 1/D indicates the respondent was living in flat No. 892, Type ‘Z’, First Floor, Timarpur.

26. The complainant has admitted that he had never earlier visited the house of the respondent prior to the visit at the time of the trap. He had not mentioned anything about the telephonic conversation with the respondent either in the complaint leading to registration of FIR or in the statement made during investigation. The TLO has also not indicated how he had ascertained, confirmed or verified the residential address of the respondent before starting from CBI office for purposes of the trap. In this fact situation the CBI has left it to be a matter of conjecture to find out as to on what basis the trap team located or reached the house of the respondent, especially in the face of insistence on the part of the complainant in the course of his statement that the respondent was living in Quarter Number Z- 982, Timarpur, Delhi and not in flat No. 892, Type ‘Z’, first floor, Timarpur.

27. One is prepared to assume that the TLO would have done his homework and would have confirmed the residential address of the respondent before setting out for purposes of trap on the morning of 24 Sept 1995. The witnesses to the trap in their respective statements are consistent about the fact that the complainant and shadow witness (PW 4) had gone into the house of the respondent while the other members of the trap party had taken suitable positions in the vicinity. It is the narration of the sequence as to what transpired inside the house of the respondent that is more important. PW 1, the complainant, and PW 4, the shadow witness, speak about the door having been opened by the respondent and they being allowed in the drawing room by her. It has come in the evidence that besides the respondent her children were present in the house at the relevant time. The site plan exhibit PW 7/A shows that her house had only two rooms, one a drawing room and the other a bedroom, besides the kitchen and other facilities.

28. Both the complainant and the shadow witness would speak about a conversation between the complainant and the respondent in the course of which the former is stated to have informed the latter that he had brought Rs. 5,000/-. The conversation is described by each of the said witnesses in different manner. While the complainant would attribute an utterance to the respondent about her suggestion that he should sent the remaining amount of Rs. 3,000/- to her office, which he had not told even in his statement during investigation, the shadow witness does not reflect any such assertion on the part of the respondent and would only say that the respondent had asked for the money brought to be handed over. Both of them would talk about the money being tendered by the complainant and accepted by the respondent in the drawing room itself.

29. The contradictions about the exact nature of conversation that took place would have ordinarily been ignored, but for the fact that the complainant in the course of his cross-examination made certain additions and improvements which put a question mark on the claim of the prosecution that the demand was made and the money received by the respondent from the complainant in the presence of the shadow witness. During his cross- examination, the complainant stated that he had asked for water. At this stage he would say that he had handed over the money to the respondent in the kitchen where he had followed her as she had gone there to bring water for him and the shadow witness. He is categorical in his statement at this stage that the handing over of the trap money to the respondent took place in the kitchen, beyond the view of the shadow witness since he was sitting in the drawing room. The shadow witness has claimed that as soon as he had seen the money being handed over to, and accepted by, the respondent, he had come out to give the signal to the trap party. He is contradicted by the complainant who would say that it was after he had come out of the kitchen having handed over the money to the respondent there, that he had indicated to the shadow witness that the money had been given whereupon the latter went out to give signal to the trap party. This claim of the complainant does not find any support from the shadow witness who would claim that he had not even seen the respondent entering the kitchen.

30. The shadow witness has claimed he having seen the respondent accepting the money from the hands of the complainant. The complainant has also spoken about he handing over of the money that was received by the respondent in her hand. And yet, when the trap party came in, on receiving the signal from the shadow witness, during search of the respondent taken by two lady inspectors, the trap money was not found on her person. Given the sequence narrated by the complainant, the shadow witness assumably had no way of knowing that the respondent may have put the money elsewhere. The complainant has admitted that he had not seen the respondent parting with the money at any stage after he had handed over the same to her inside the kitchen. The complainant would say that after the trap laying officer had come in with other members of the trap party he had challenged the respondent with having accepted bribe on which the respondent denied, at that stage the shadow witness questioned her truthfulness by asserting that he had seen her receiving the bribe money in his presence. This assertion is an improvement by the complainant over his original version where it does not find mention and is not corroborated even by the shadow witness to whom it is attributed.

31. The fact that the respondent was subjected to personal search for causing the recovery of the trap money itself would show that it was assumed by the TLO that she would be carrying the said money on her person. The claim in the recovery memo, on which line the TLO would also depose, that once it was found that the money was not on the person of the respondent, on the revelation made by the complainant and shadow witness that having accepted the money the respondent had gone into the kitchen, the said part of the house was subjected to search, it belied by the simple fact that the shadow witness has deposed that he never saw the respondent going into the kitchen. Not only this, the evidence of the witnesses also shows that the entire house was subjected to search to effect the recovery of the trap money and thus there was no reason to suspect that the money would be found in the kitchen. In these circumstances, it would appear that neither the complainant nor the shadow witness had told the TLO at the outset about visit of the respondent to the kitchen.

32. The recovery of the trap money from the ‘LOTA’ in the kitchen is stated by the TLO to have been effected in the presence, amongst others, of both the independent witnesses. The latter, however, do not support him in this regard. While the recovery witness (PW 3) would say that he was outside the door of the kitchen when the said utensil was found containing the trap money, the shadow witness (PW 4) would testify that he was sitting in the drawing room where the said utensil was brought by a CBI officer. While the TLO would attribute to PW 3 the recovery of the trap money from the said utensil in the kitchen itself, which act is disowned by the latter, the other independent witness would say that the utensil had been brought to the drawing room by a CBI officer and the trap money was taken out from it in the said room. The fact remains that there is no independent corroboration of the recovery of the trap money from a utensil lying in the kitchen of the house of the respondent.

33. In view of the facts recorded above, the ld. Trial Court observed that case of the prosecution deserves to be thrown out even in the face of above facts and circumstances. But then, the prosecution also relies on the positive left hand wash and wash taken from the ‘LOTA’.

34. Further recorded that a lot of confusion in the prosecution evidence as to which hand was used by the respondent in the act of accepting the bribe money. In the initial part of his statement PW 1, the complainant, testified that the respondent had accepted the money tendered by him in her left hand and thereafter she had proceeded towards the kitchen. But, when cross-examined by the learned counsel for defence, he materially changed the said version by stating that the respondent, had received the money in her right hand when it was tendered by him to her in the kitchen. However, the prosecution failed to contradict the witness about the particular hand that was used by the respondent. Thus there is contradictory version coming from the complainant himself about the specific hand that was used by the respondent in accepting or handling the trap money.

35. Moreover, PW4, the shadow witness, has spoken about the respondent having used her right hand for receiving the money from the complainant. He was declared hostile and subjected to cross-examination by the learned prosecutor and it was suggested to him that the respondent had accepted the tainted money with her left hand. The witness would, however, deny the said suggestion to be incorrect. Since his statement about use of the left hand is similar to the subsequent version of the complainant, one wonders as to what use or relevance the left hand wash would have for substantiating the prosecution case against the respondent, in particular in the face of the fact that right hand wash was never taken.

36. Whatever significance the result of left hand wash could have to the case of prosecution against the respondent has been further rendered meaningless by a very important revelation made by the complainant in the course of his cross-examination. He would testify that in order to serve water, significantly after receiving the money, the respondent had picked up two glasses, washed them, poured water into them, served one glass to him and then had taken the other glass to the drawing room to be served to the shadow witness who was sitting there. Interestingly, the shadow witness also supports the fact of his having been served with water by the respondent in the drawing room. If the money had already been received by the respondent, and if thereafter she had washed two glass tumblers, the probability of her hand wash, be it right hand or be it left hand, giving positive result about presence of phenolphthalein powder is very remote.

37. In addition, the respondent, to the full knowledge of the complainant, had already given an adverse report against the interest of the brother and family of the latter by recommending registration of a regular case on the basis of inquiry into the complaint that had been lodged by the wife of his brother. Against this backdrop, the possibility of complainant feeling a grudge against her cannot be ignored. The complainant was visiting the house of the respondent for the first time at the time of the trap laid with the help of CBI. He could not be so open or informal with her as to enter the kitchen of her household during such first visit. The fact of his having followed the respondent into the kitchen, when she was going there “on the smell of something being cooked getting burnt”, was concealed by him in the statement given by him to the investigating officer. These facts came to be brought to light only during his cross-examination in the court.

38. In these circumstances, the ld. Trial court observed that the possibility of the complainant having abused the opportunity of access into the kitchen of the household of the respondent by planting the tainted money in a utensil lying there for falsely getting her trapped on account of grudge nursed by him cannot be ruled out. In this view, the result of wash taken from the said utensil would not deserve to be acted upon.

39. It is pertinent to mention here that in her statement recorded under Section 313 Cr.P.C., the respondent denied the evidence as incorrect and claimed to be innocent and attributed the allegations made against her to a grudge nursed by the complainant. The said assertion of the respondent stands fortified by the testimony of Mohd. Aslam, who had been examined by the respondent as DW1. Admittedly, the complainant while narrating the meeting of 22.09.1995, had categorically stated that besides his brother, his friend Mohd. Aslam (DW1) had also accompanied him to the office of the respondent on that day and that he was present when the respondent had demanded the bribe. However, it got unveiled during his statement on 08.12.1999 in the Trial Court that the said witness had been accompanying him even to the court during the proceedings. Thus, Mohd. Aslam is a person of close confidence to the complainant. And yet, in the complaint made to CBI, it was not mentioned that this person was present at the time of demand of bribe. The learned Special Judge had significantly noted that this effect was also missing in the statement of the complainant Ex. PW1/DX recorded under Section 161 during investigation. Therefore, the basic version of the complainant is completely shaken when Mohd. Aslam, appeared as DW 1, denied that any money had been demanded by the respondent in his presence on 22.09.1995 or on any other date, and further that the complainant had also not told him about any such demand having been made by the respondent, even though he had confirmed that he had been visiting the office of the respondent in the company of the complainant.

40. So far as the recovery of tainted money from ‘LOTA’ lying in the kitchen is concerned, in the case of Suraj Mal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held by the Supreme Court that mere recovery of money, divorced from the circumstances under which it is paid, is not sufficient to convict the respondent when the substantive evidence in the case is not reliable. Mere recovery of money cannot prove the case of the prosecution against the respondent in the absence of any instance to prove the payment of bribe or to show that the respondent voluntarily accepted the money knowing it to be bribe. In the case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, the Supreme Court held that mere recovery of money from the accused by itself is not enough in the absence of substantive evidence of demand and acceptance and relied upon a three-Judge Bench judgment in M. Narsinga Rao Vs. State of Andhra Pradesh, (2001) 1 SCC 691, in which the Supreme Court held as under:-

“18. …………….

24……..we think it is not necessary to deal with the matter in
detail because in a recent decision rendered by us the said aspect
has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v.
State of Maharashtra) The following statement made by us in the said
decision would be the answer to the aforesaid contention raised by
the learned Counsel: (SCC p.577, para 12):

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

41. In the case of Prem Singh Yadav Vs. Central Bureau of Investigation, 178 (2011) DLT 529, the Coordinate Bench of this Court noted that testimonies of PWs 2, 3, 5 and 6 were not reliable and that the defence version had created some doubt in the prosecution case, accordingly held that recovery of tainted money alone was not sufficient to record conviction. Consequently, the accused was given the benefit of doubt.

42. It is trite that unless the judgment of acquittal is passed on no material or is perverse or the view taken by the learned Trial Judge is wholly unreasonable or is not a plausible view or there is non-consideration of any evidence or there is palpable misleading of evidence, the Appellate Court will not be justified in interfering with the order of acquittal.

43. When the conclusions of the learned Special Judge in the background of the evidence on record are tested on the touchstone of the principles set out above, I do not find there being any palpable misleading of evidence by the learned Special Judge or non-consideration of any evidence and that the judgment of acquittal having been passed arbitrarily. The learned Special Judge had correctly assessed the evidence and his finding is not vitiated by any illegality. The view which the learned Special Judge had taken is the reasonable view based on the material on record.

44. Since the evaluation of evidence by the learned Special Judge does not suffer from any infirmity or illegality or manifest error and thus, the inevitable conclusion is that the judgment dated 10.01.2003 passed by the learned Special Judge does not suffer from any infirmity to warrant interference by this Court. In fact, the learned counsel for the respondent has not been able to prove any such perversity or illegality with the impugned order.

45. Accordingly, finding no merit in the present appeal, the same is dismissed. However, there is no order as to costs.

SURESH KAIT (JUDGE)

DECEMBER 10, 2015

Sb / jg / RS

If you scr#w another woman’s husband & have a baby, here’s a nice way to BLAME MEN !! ;-)

Grand theme : Women these days need to blame men for their faults, for NO faults and of course for real faults where men tried and failed. Women do no wrong and in case I forgot, women are always the victims !!

In the author’s OWN words men are to be blamed for this mistake “……As I undid my ‘mistake’ all alone that weekend and started playing our favourite sport – football with my handsome toddler; I thought of the other two men and realized what ‘convenience love’ is – One left me alone with an infant for a career and the other only loves/needs me when he is alone….”

Once you have understood this theme, please read on, here’s a great article that appeared on TOI, “..Soul Curry..”

>>>>>>>>>>>>>>>> begin forward >>>>>>>>>>>>>>>

Yes, I got pregnant when my husband was out of town

TNN | Dec 13, 2015, 03.04 PM IST

Soul Curry invites you to share any soul-stirring experiences. If you have any such story to share, do send it to us at soulcurry and we will publish it for you!

Yes, I got pregnant when my husband was out of town (Representational picture, Courtesy: Getty Images)

On a chilly Saturday morning, as the second line showed a faint positive I was gripped with shock, fear and sadness. The greatest joy to womanhood just turned into a curse. Knowing that my husband has been away for more than a year, a missed period definitely indicated a second man.

The second man was already someone else’s man, a soldier who loved his wife intensely. He was the most charming man that I ever laid my eyes upon; days turned into weeks, weeks into months and here we were together (not actually) for almost 20 months. As destiny goes, we met, fell in love, love-making followed and a morning after pill couldn’t suppress the strong forces between us.

He was the first one I wanted to talk to about my pregnancy. But, could not reach out to him because I was bounded by time restrictions with his family constantly around. After having to handle a 2-year-old alone for a year, since my husband moved to another country, I could not face this alone (yet again). I had money, but dealt with the worst poverty – loneliness.

When I disclosed it to him , he asked me to be calm, assured he will always be around but here I was all alone fighting the guilt, the loneliness, the tears, fighting life. Though he stayed around on calls, agreed to help me financially, handled me with hell lot of patience because I drove him crazy; even asked me if he should come over (he stayed in a different state), he knew I would always say no and he escaped it beautifully. Calls would only happen during office hours; nights were cold and lonely. I was a fighter but even the strongest person needs a shoulder to lean on and that’s when the most beautiful man in my life rescued me – my son.

My little boy loved me unconditionally; his mom was both his mother and father. With guilt-filled eyes when I looked into his angelic innocent ones, I felt him say – Mom, I will never judge you, you are my Hero. With tears rolling down my eyes, I hugged my li’l man the tightest. Nature did join us by the umbilical cord but the bond we shared made us stronger!

As I undid my ‘mistake’ all alone that weekend and started playing our favourite sport – football with my handsome toddler; I thought of the other two men and realized what ‘convenience love’ is – One left me alone with an infant for a career and the other only loves/needs me when he is alone.

Right then the ball swung to me and I kicked it hard!

(By GraceAnn)

Soul Curry invites you to share any soul-stirring experiences. If you have any such story to share, do send it to us at soulcurry and we will publish it for you!

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