Tag Archives: acquittan in 498a

Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employment. GUJARAT HC

Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employement. GUJARAT HC

/// the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal./////

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 2236 of 2019


SHARAD JIVANLAL KURANI
Versus
UNION OF INDIA


Appearance:
MR PH PATHAK(665) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5


CORAM: Hon’ble MR.JUSTICE S.R.BRAHMBHATT
and
Hon’ble MR.JUSTICE A.G.URAIZEE

Date : 06/02/2019

ORAL ORDER

(PER : Hon’ble MR.JUSTICE S.R.BRAHMBHATT)

Heard Shri P. H. Pathak, learned counsel appearing for the petitioner.

Petitioner, who happened to be an applicant in original application being Original Application No.490 of 2012 with M.A. No.79 of 2013 has taken out this petition under Articles 226 and 227 of the Constitution of India assailing the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench dated 31.08.2016, whereby the tribunal has rejected the prayer of backwages for the period from dismissal to the acquittal and reinstatement.

2. The facts in brief, could be gathered from the decision and the memo of petition, deserves to be set-out as under, for appreciating the controversy.

2.1 The petitioner was working as T. S. Clerk with Gujarat Telecom Circle of the Indian Post and Telegraphs Department from 01.01.1983. Later on, he was promoted as Sr. TOA (G) and was working with Telecom District, Rajkot. The Bharat Sanchar Nigam Limited (BSNL) came into existence w.e.f. 01.10.2000 and under an order dated 18.01.2002, the petitioner was absorbed in BSNL w.e.f. 01.10.2000. The petitioner had to face criminal prosecution u/s. 498A and 304B read with Section 114 of the Indian Penal Code in Sessions Case No.138 of 1991. The Sessions Court has acquitted the petitioner vide order dated 22.01.1997. Such acquittal order dated 22.01.1997 was challenged by the State Government, in Criminal Appeal No.335 of 1997. The High Court of Gujarat on 06.05.2004 allowed the said Criminal Appeal No.335 of 1997 and order of acquittal dated 22.01.1997 in Sessions Case No.138 of 1991 was set aside and acquittal was converted into conviction, punishable under Sections 498A and 306 of the Indian Penal Code and sentence of 5 years rigorous imprisonment and fine of Rs.3000/-, in default whereof further rigorous imprisonment of 6 months was awarded. Being aggrieved, the order of the High Court rendered on 06.05.2004 in Criminal Appeal No.335 of 1997 was assailed in Special Leave to Appeal (Criminal) No.3154 of 2004. Main contention of the petitioner is that on account of his conviction in the Criminal Appeal, he came to be dismissed from C/SCA/2236/2019 ORDER services vide order dated 26.09.2006 i.e. after some time of conviction by the High Court and the petitioner was through out enjoying the bail and he was not in custody. The appeal in the Hon’ble Supreme Court being Criminal Appeal No.810 of 2004 was allowed and trial Court’s order was restored. The petitioner has filed Original Application for seeking appropriate relief and reinstatement. The department had reinstated the petitioner on 12.08.2011. The tribunal has rendered the decision on 31.08.2016, whereby, the petitioner was not granted the backwages from the date of dismissal, till the date of reinstatement based upon the fact that the Hon’ble Supreme Court in its decision cited in the judgment, which are reproduced as under, held that the respondent cannot be saddled with liability to make payment for the period, when the petitioner did not discharge his duties.

So the said order was assailed in this petition under Articles 226 and 227 of the Constitution of India.;

(1) “In the case of Ranchhodji Chaturji thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. reported in (1996) 11 SCC 603 the Hon’ble Supreme Court considered whether back wages would be paid to the employees for the period between the date of dismissal and the date of reinstatement. The Hon’ble Supreme Court held thus; “The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is : Whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages.”

(2) In case of Union of Inida & Ors. vs. Jaipal Singh reported in (2004) 1 SCC 121, the Hon’ble Supreme Court after expressing the agreement with the view in Ranchhodji (supra) observed thus; “…….If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service , since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny backwages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages are liable to be and is hereby set aside . The respondent will be entitled to backwages from the date of acquittal and except for the purpose of denying the respondent actual payment of backwages, that period also will be counted as period of service, without any break.””

4. Learned counsel for the petitioner has contended that the factum of restoration of service of the petitioner ought to have been appreciated by the tribunal. He has further contended that petitioner was not permitted to serve the department. Therefore, when he was available to discharge his duty, the dismissal order itself was not justified, as it was passed after one and half years of the order of conviction. The Hon’ble Supreme Court has also not said that the conviction and dismissal based thereupon would not entail the order of back-wages even after reinstatement in all cases. The facts and circumstances of the case have to be examined and appropriate relief is required to be granted.

This Court is of the view that the petition requires to be dismissed as the judgment and order passed by the tribunal does not call for any interference for the following reasons;

4.1 The Hon’ble Supreme Court’s judgments relied upon by the tribunal and extract of which were cited herein above, indicates the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal.

Therefore, in our view, the tribunal’s reasonings cannot be said to be suffers from any infirmity, so as to call for any interference. As a result thereof, the petition fails and hereby dismissed.

(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J)

DRASHTI K. SHUKLA

facts & circumstances clearly indicate case is to wreak vengeance & is a gross misuse of 498A IPC.

In this case a woman who is already divorced from her husband and who is living away from her husband files a 498a using her own uncle and her son as witnesses !! She files a MC case, and on the day husband comes to attend the MC case she claims the husband demanded Dowry !! (even though it is after divorce)

The AP High court clearly goes thru the evidence, appreciates the serious anomalies in the evidence and lets the lower court verdict of acquittal stand

The Hon court also clarifies that this case is GROSS misuse of 498a IPA

Quoting the Honourable court :
“…..15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed……..”

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Andhra High Court

Perugu Varalakshmi vs State And Ors. on 17 December, 2002

Equivalent citations: II (2004) DMC 610

Author: L N Reddy

Bench: L N Reddy

JUDGMENT L. Narasimha Reddy, J.

1. In C.C. No. 39 of 1995 on the file of First Additional Munsif Magistrate, Tenali, Perugu Nageswara Babu (A1) and his parents Perugu Narasimha and Perugu Venkayamma (A2 and A3) were tried for offence under Section 498A, IPC. The Trial Court, through its judgment dated 22.9.1997, acquitted the accused. The State filed Criminal Appeal No. 199 of 1998 and the de facto complainant, that is the wife of A1 Perugu Varalakshmi filed Crl. R.C. No. 1224 of 1997 against the judgment of the Trial Court.

2. The case of the prosecution was that Perugu Varalakshmi (P.W. 1) as married to A1 in the year 1991 and both of them gave birth to a son P.W. 2. Subsequently, A1, A2 and A3 started harassing the P.W, 1 for bringing money as well as to convey the property at Tenali in favour of A1. P.W. 1 filed a complaint (Ex. P1) alleging that she has been harassed by A1 for bringing more dowry and to convey the property, The complaint was specific with reference to an incident, said to have taken place on 27.1.1995.

3. On receipt of the report, the police have taken up the investigation. They have recorded the statement of P.W. 1 as well as P.W. 2, who is the son of P.W. 1 and A1. The statements of other witnesses were also recorded under Section 161, Cr.P.C.

4. During the course of trial, the prosecution examined PWs. 1 to 6 and marked Exs. P. 1 and P. 2. P.W. 1 is the complainant herself and P.W. 2 is her son. P.W. 3 is the maternal uncle of P.W. 1. P.Ws. 4 and 5 are said to be the eye-witnesses to the incident said to have taken place on 27.1.1995. P.W. 6 is the Sub-Inspector of Police, who has investigated the case. Ex. P. 1 is the Report given by P.W. 1 to the Police and Ex. P2 is the FIR. Exs. D1 to D5 were marked on behalf of the Defence. Ex. D1 is the portion of the affidavit filed by P.W. 1 in the CMA in this Court. Exs. D2 to D5 are the portions of statement under Section 161 of P.Ws. 1/2 and 3.

5. On appreciation of the oral and documentary evidence, the Trial Court found that there were material inconsistencies in the evidence adduced on behalf of the prosecution and that no case was made out against the accused under Section 498 A and accordingly acquitted the accused of the offences alleged against them.

6. The learned Public Prosecutor and Mr. Dharma Rao, Advocate, who appeared in the appeal and Revision respectively submit that the evidence before the Trial Court was sufficient to convict the accused, respondents herein. It is their case that independent witnesses P.Ws. 4 and 5 have deposed to the factum of physical assault on P.W. 1 by A1 and his insistence on bringing more dowry and conveyance of the property. It is their case that the various instances that have taken place ever since the marriage of P.W. 1 with A1 would certainly constitute harassment and offence under Section 498-A. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. The learned Counsel for the accused/respondents, on the other hand, submits that P.W. 1 was only trying to wreak vengeance against the accused, in view of the decree of divorce passed against her and her not being able to be successful in the maintenance case filed by her.

8. The marriage of P.W. 1 with A1 took place in the year 1981. They lived together for about 2 years and P.W. 2 was born. Thereafter, P.W. 1 left the house of A1 in the year 1983. It has come on record that ever since 1983, P.W. 1 and A1 never lived together. A1 filed O.P. No. 36/1984 for divorce. The same is said to have been allowed on 30.7.1992. Thereby, the marital relationship between them ceased to exist. P.W. 1 has filed MC No. 22/1992 in the Court at Tenali, where she was living with her parents. The case was posted on 27.1.1995. A1 attended to the Court on that day.

9. The incident that gave rise to filing of the complaint by P.W. 1 is that on 27.1.1995, A1 was passing in front of her parents’ house at Tenali. Having noticed him, she sent P.W. 2, her son, to request A1 to take herself and P.W. 2 with him to Nizampatnam. When P. 2 was imploring A1, she too has gone to him. She alleged that A1 replied stating that unless the amount demanded by him is paid and the property is conveyed, he will not take them and when P.Ws. 1 and 2 insisted, he kicked P.W. 1. The incident was said to have been witnesses by P.Ws. 4 and 5.

10. P.W. 1 is none other than the complainant. She did not depose any thing about the proceedings that have taken place between herself and A1. Her version being self-serving cannot be totally relied upon. P.W. 2 is her son. Accordingly to P.W. 2 on that day, he came back to his house from school since he was suffering from stomach ache. He deposed that on being asked by P.W. 1, he went to A1 who was going in that lane and requested him to take himself and his mother of Nizampatnam. He repeated what is stated by P.W. 1. One important aspect, which needs to be noticed, is that according to P.W. 2, he studied his 2nd class in Tenali and 3rd and 4th Class (1991-92) at Nizampatnam, at the house of A1 to A3. He deposed that during that period, A2 and A3 used to beat P.W. 1. The subsequent studies are said to have taken place at Tenali. When it was the categorical case of P.W. 1, as evidenced from various other records that she left the house of the accused in the year 1983 and thereafter never went to that place, the version of P.W. 2 that he himself and P.W. 1 lived at Nizampatnam during 1991-92 is just unbelievable. The prosecution did not place any record before the Trial Court to substantiate the contention of P.W. 2.

11. P.W. 3 is the maternal uncle of P.W. 1. On account of his close relationship with the complainant, his evidence needs to be examined with a note of caution. Further, his evidence is so self-contradictory that it hardly needs any consideration at all. He is said to have mediated between P.W. 1 and A1. According to him, he went to the house of A1 on 14.8.1994 along with one G. Subbaiah. The mediation failed and the statement with regard to the whole affair was recorded by the police under Section 161 on the next day itself. It is a matter of record that the statement under Section 161 was recorded on 28,1.1995. This is sufficient to brush aside his evidence.

12. P.Ws. 4 and 5 are said to have witnessed the incident that has taken place on 27.1.1995 in the street in which the house of the parents of P.W. 1 is located, It is their evidence that both of them wore proceeding in that lane at about 1.30 to 2.00 P.M. and they stopped at Thirupathamma Temple is Ganganammapet for drinking water. When they were drinking water, P.W. 2 called A1 and when both of them were discussing. P.W. 1 came and asked A1 to take them to Nizampatnam. A1 is said to have told P.W. 1 that unless the money is given and property is conveyed, he will not take them. Both the witnesses said that P.W. 1 had caught hold of the legs of P.W. 1. While P.W. 3 states that A1 has kicked her, P.W. 4 states that he pushed her with hands and left the place.

13. It is not in dispute that as on the date of incident, there existed decree of divorce between A1 and P.W. 1. On 27.1.1995, the case filed by P.W. 1 under Section 125, Cr.P.C. was posted. It has come in evidence that A1 came to attend the case and returned from the Court after noticing next date of hearing. The sine qua non for charging a husband with an offence under Section 498-A of IPC is existence of relationship of husband and wife. Once decree of divorce was granted in favour of A1 against P.W. 1, there did not exist any legal basis to prosecute the respondents herein.

14. Even otherwise, if the complaint of P.W. 1 is examined from the attendant circumstances, it is not at all difficult to discern that she was only trying to harass A1 to A3 on one pretext or the other. The whole basis in the complaint was that when P.Ws. 1 and 2 approached A1 and requested him to take them back to Nizampatnam, he is said to have told them that unless the money is paid and property is conveyed, he will not take them and thereafter kicked PW. 1. The complaint itself was found to be interpolated. By the date of complaint, P.W. 1 was living separately from A1 for the past 12 years. In the meanwhile, the divorce O.P. came to be decreed and several proceedings have ensued between them including MC No. 22/1992 filed by her for maintenance. Except P.W. 3, none has spoken to the act that any demands were made for reconciliation. The purpose for which A1 came to Tenali was to attend the case filed against him by P.W. 1. Not only there did not exist any scope for reconciliation even by the 3rd parties, let alone the P.W. 1, but also relations were strained to a very bitter extent. Nobody would expect a wife, under such circumstances, to approach a husband, that too in a street, with such demands and requests. It is just impossible for any one in the place of A1, in a town where he does not reside, to kick his wife in a public street. The evidence of the witnesses examined on behalf of the prosecution does not gain confidence of the Court.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed.

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