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When HC shall NOT quash a criminal case Parbatbhai Aahir Vs State of Gujarat – Supreme court – cornerstone case

when NOT to quash a criminal case … Parbatbhai Aahir Vs State of Gujarat – Supreme court – cornerstone case

“…… (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; https://twitter.com/ATMwithDick/status/1011037375793856512

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.…..”


REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1723 OF 2017
[Arising out of SLP(CRL) No 9549 of 2016]

PARBATBHAI AAHIR @ PARBATBHAI BHIMSINHBHAI KARMUR AND ORS **Appellants

 

VERSUS

 

STATE OF GUJARAT AND ANR. ..Respondents

 

JUDGMENT

Dr D Y CHANDRACHUD, J

(1) Leave granted.

 

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

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

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

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

(6) The High Court noted that the fourth appellant had moved Special Criminal Application no.4538 of 2016 which had been rejected by the coordinate bench of the High Court on 3 August 2016. While rejecting the earlier application under Section 482, the High Court had observed thus: “19. Primary details revealed the complaint had led this Court examine the papers of the investigation. The evidence so far collected prima facie reveal the involvement of the petitioner.This Court also could notice that it is a case where under the pretext of buying only a particular Plot No.56 from the complainant and his family members, the power of attorney has been forged usurping nearly 10 other plots which value nearly 11 crores and odd by allegedly conniving with each other, and therefore, the payment of Rs 42 lakhs by the cheques to the complainant in relation to one of the plots also would pale into insignificance. This, by no means, even at a prima facie level, can be said to be a civil dispute, given a colour of criminality. It would be in the interest of both the sides for this Court to either, at this stage not to make a roving inquiry or divulge anything which may affect the ongoing investigation. Suffice it to note that, the petition does not deserved to be entertained an the same stands rejected.” Before the High Court, the plea for quashing the First Information Report was advanced on the ground that the appellants had amicably settled the dispute with the complainant. The complainant had also filed an affidavit to that effect.

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

.. 1 Parbatbhai Bhimsinhbhai Karmur P.1
.. a. City “A” Division Jamnagar CR No 1-251/2010

 

.. 2 Ramde Bhikha Nanadaniya P.2
.. a. City “A”Division Jamnagar
.. b. City “A” Division Jamnagar CR No.1-105/2016
.. c. City “A” Division Jamnagar CR No.1-251/2010

 

.. 3 Hasmukh Hansrajbhai Patel P.3
.. a. Gandhinagar M-Case No.1/2014
.. b. City “A” Division Jamnagar CR No.1-105/2016

 

.. 4 Indravadan Dineshbhai Patel P.6
.. a. City “A: Division Jamnagar CR No.1-105/2016

 

.. 5 Jitendra Somabhai Modi P.7
.. a. City “A” Division Jamnagar CR No.1-105/2016
.. b. Odhav Police Station CR No.I-180/2015

 

.. 6 Vishnu @ Toto Rabari
.. a. Gandhinagar M-Case No.1/2014
.. b. City “A: Division Jamnagar CR No.I-105/2016

The High Court observed that it had been given “a fair idea” about the modus operandi adopted by the appellants for grabbing the land, in the course of which they had opened bogus bank accounts. The High Court held that the case involves extortion, forgery and conspiracy and all the appellants have acted as a team. Hence, in the view of the High Court, it was not in the interest of society at large to accept the settlement and quash the FIR. The High Court held that the charges are of a serious nature and the activities of the appellants render them a potential threat to society. On this ground, the prayer to quash the First Information Report has been rejected.

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

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

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

  “61 …the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society.

Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

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

“29.7…Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation.

It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits…” This Court held, while dealing with an offence under Section 307 of the Penal Code that the following circumstances had weighed with it in quashing the First Information Report:

“33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail.

However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings…”

(12) In State of Maharashtra v Vikram Anantrai Doshi3, a bench of two learned Judges of this Court explained the earlier decisions and the principles 3 (2014) 15 SCC 29 which must govern in deciding whether a criminal proceeding involving a non-compoundable offence should be quashed. In that case, the respondents were alleged to have obtained Letters of Credit from a bank in favour of fictitious entities. The charge-sheet involved offences under Sections 406, 420, 467, 468, and 471 read with Section 120-B of the Penal Code. Bogus beneficiary companies were alleged to have got them discounted by attaching fabricated bills. Mr Justice Dipak Misra (as the learned Chief Justice then was) emphasised that the case involved an allegation of forgery; hence the court was not dealing with a simple case where “the accused had borrowed money from a bank, to divert it elsewhere”. The court held that the manner in which Letters of Credit were issued and funds were siphoned off had a foundation in criminal law: “… availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominatingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation.” The judgment of the High Court quashing the criminal proceedings was hence set aside by this Court.

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

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

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

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. https://twitter.com/ATMwithDick/status/1011037375793856512

(16) Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code. https://twitter.com/ATMwithDick/status/1011037375793856512

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

****…………………………………CJI [DIPAK MISRA]

****…………………………………..J [A M KHANWILKAR]

****…………………………………J [Dr D Y CHANDRACHUD]

New Delhi;

October 04, 2017

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#Fake #rape filing #woman punished with #imprisonment. #SupremeCourt affirms punishment !!

False cases to be dealt with Section 344, Cr.P.C. Or under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NOS. OF 2008 (CRIMINAL MISC. PETITION NOS.8515-8516 OF 2008)

Mahila Vinod Kumar i ….. Petitioner

Versus

State of Madhya Pradesh…..Respondent

JUDGMENT
Dr. ARIJIT PASAYAT, J.

1. Heard learned counsel for the petitioner.

2. Delay condoned.

3. Though, we are not inclined to entertain the special leave petitions, but we find that there is a need for expressing views on action to be taken for maliciously setting law into motion.

4.The petitioner lodged a report against two persons at Pichhore Police Station to the effect that on 28.1.1993 between 6.00 to 7.00 a.m. she was waylaid by them who dragged her and committed rape on her, one after another. https://bit.ly/2jPYJMs She claimed to have narrated the incident to her father and uncle and,thereafter lodged the report at the police station. On the basis of the report,matter was investigated. The accused persons were arrested. Charge-sheet was filed. The accused persons faced trial for alleged commission of offense punishable under Section 376(2)(g) of the Indian Penal Code, 1860 (in short`the IPC’). The accused persons abjured their guilt.During trial, the petitioner stated that she had actually not been raped.As she resiled from the statement made during investigation, she was permitted to be cross-examined by the prosecution. She even denied to have lodged the first information report(Exh.P-1) and to have given any statement to the police (Exh.P-2). In view of the statement of the petitioner, the two accused persons were acquitted by judgment dated 28.11.2001.The Trial Court found that the petitioner had tendered false evidence and had fabricated evidence against the accused persons with the intention that such evidence shall be used in the proceedings, and, therefore, directed cognizance in terms of Section 344 of the Code of Criminal Procedure, 1973 (in short `the Code’) to be taken against the petitioner.A show-cause notice was issued and the case was registered against the petitioner who filed reply to the effect that being an illiterate lady, she had committed the mistake and may be excused.The Trial Court found that the petitioner admitted her guilt that she had lodged false report of rape against the accused. She was, accordingly, sentenced to undergo three months’ simple imprisonment. Aggrieved by the order,the petitioner filed an appeal before the Madhya Pradesh High Court, which, by the impugned order, was dismissed.

5. Stand before the High Court was that being an illiterate lady, she does not understand law and the particulars of the offence were not explained to her and, therefore, the appeal should be allowed. This was opposed by the State on the ground that the petitioner had admitted her guilt before the Trial Court and,therefore, the conviction is well founded. The High Court perused the records of the Trial Court and found that in the show-cause reply she had admitted that she had told lies all through. https://bit.ly/2jPYJMs The stand that the particulars of the offence were not explained to her, was found to be equally untenable, because in the show-cause notice issued, relevant details were given.In the first information report, and the statement recorded by the police, she had clearly stated that she was raped by the accused persons. But in Court she denied to have stated so. Learned counsel for the petitioner submitted that the Court imposed 15days’ simple imprisonment which is harsh. But that is not the end of the matter. The petitioner filed an application before the High Court stating that a wrong statement was made before the High Court that she had already suffered custody for 15 days, which weighed with the High Court to reduce the sentence.

6.Learned counsel for the petitioner stated that being a girl of tender age,she was pressurized by her mother and uncle to give a false report. This is at variance with the statement made in court during trial to the effect that she had not reported anything to the police.Itis a settled position in law that so far as sexual offences are concerned,sanctity is attached to the statement of a victim. This Court, has, in several cases, held that the evidence of the prosecutrix alone is sufficient for the purpose of conviction if it is found to be reliable, cogent and credible. In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape.Their acquittal, may, to a certain extent, have washed away the stigma, but that is not enough. https://bit.ly/2jPYJMs The purpose of enacting Section 344, Cr.P.C. corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as `the Old Code’) appears to be further arm the Court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to the courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they are failed to take action under Section 344 Cr.P.C.

7. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section479 A which did not have the desired effect to eradicate the evils of perjury.The salient features of this new provision are:(1) Special powers have been conferred on two specified Courts, namely Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Ch. 21. 6(2) https://bit.ly/2jPYJMs This power is to be exercised after having the matter considered by the Court only at the time of delivery of the judgment or final order.(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.(4) The maximum sentence that may be imposed is 3 month’s imprisonment or a fine up to Rs.500 or both. (5) The order of the Court is appealable (vide S.351). (6) The procedure in this section is an alternative to one under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the Court is of opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which 7would be more appropriate, the Court may chose to do so [vide sub-section (3)].(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)]. https://bit.ly/2jPYJMs.

8. For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be sopunished. All these conditions arc mandatory. [See Narayanswamy v. State ofMuharashtra, (1971) 2 SCC 182].

9. The object of the provision is to deal with the evil perjury in a summary way.

10.The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.

11.In the case at hand, the court has rightly taken action and we find nothing infirm in the order of the Trial Court and the High Court to warrant interference. The special leave petitions are, accordingly dismissed.

…………………………..J.(Dr. ARIJIT PASAYAT)

…………………………..J.(P. SATHASIVAM)

New Delhi:July 11, 2008

Personal appearance of #Parents #relatives (except husband) #exempted in #498a case : #Supreme Court : #Arnesh #Kumar

“…In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial.

“……14. In the result, the appeal is allowed, the judgment and order of the High Court dated 17.04.2017 as well as order of the Sub-Divisional Judicial Magistrate dated 13.08.2013 are set aside, application filed by the appellants under Section 205 Cr.P.C. is allowed. The personal appearance of the appellants is exempted….”

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.387 OF 2018
(arising out of SLP(Crl.)No.6786 of 2017)

SRI RAMESHWAR YADAV & ORS. … APPELLANTS

VERSUS

TEH STATE OF BIHAR & ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against the judgment dated 17.04.2017 of the Patna High Court by which judgment application filed by the accused-appellants under Section 482 of the Code of Criminal Procedure challenging the order dated 13.08.2013 passed by the Sub-Divisional Judicial Magistrate, Patna has been dismissed by the High Court.

  1. Brief facts necessary to be noted for deciding the appeal are:

The second respondent filed a complaint in the Court of Sub-Divisional Judicial Magistrate, Patna alleging offence committed by the accused as well as Arnesh Kumar, her husband. The Magistrate vide order dated 11.10.2012 finding a prima facie case under Section 498A and Section 4 of the Dowry Prohibition Act summoned the accused as well as Arnesh Kumar, husband of the complainant. The accused as well as Arnesh Kumar filed an application for anticipatory bail during the pendency of the said application. Non-bailable warrants were issued by the Magistrate on 23.12.2012. All the accused that is appellants as well as Arnesh Kumar filed an application dated 17.01.2013 praying for recall of non-bailable warrant and dispensing with their physical appearance in the case. It was appellants’ case that said application was filed because appellant No.1, father of Arnesh Kumar is a retired Army Official residing in Pune with appellant No.2 and other appellants were also residents of Pune, Maharashtra and they have to come from a distance. It was prayed by the accused that they be exempted from the personal appearance in the case. All the accused except Arnesh Kumar, husband of complainant were granted anticipatory bail. Anticipatory bail was granted by the District and Sessions Judge, Patna on 21.06.2013 to all the accused except Arnesh Kumar, husband of the complainant. The Sub-Divisional Magistrate by order dated 13.08.2013 rejected the application filed by the accused under Section 205 Cr.P.C.

3. While rejecting the application on
13.08.2013, the Magistrate gave the following
reasons:

(i) Petitioners appear to be hale and
hearty and are not suffering from any
type of disease which may be impediment
in appearing before the court.

(ii) Nature of offences requires that
accused-petitioners and also the
complainant should be present before the
court preferably on each and every date
expecting good sense prevails upon them.

(iii) Their appearance is also
desirable for the purpose of
conciliation since the very enactment of
Section 498A of IPC and Dowry
Prohibition Act primarily meant for
restoration of conjugal harmony.

  1. Challenging the order dated 13.08.2013, an application under Section 482 Cr.P.C. was filed which has been dismissed by the Patna High Court. The High Court dismissed the application taking a new ground that a prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused. Once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C., at a subsequent stage, such an application would not be maintainable. Aggrieved by the said order this appeal has been filed.
  2. We have considered the submissions of the learned counsel for the parties and perused the records.

  3. Section 205 Cr.P.C. and Section 317 Cr.P.C. which are relevant in this case are extracted:

“ Section 205. Magistrate may
dispense with personal attendance of
accused.—

(1) Whenever a
Magistrate issues a summons, he may,
if he sees reason so to do, dispense
with the personal attendance of the
accused and permit him to appear by
his pleader.

(2) But the Magistrate inquiring
into or trying the case may, in his
discretion, at any stage of the
proceedings, direct the personal
attendance of the accused, and, if
necessary, enforce such attendance
in the manner hereinbefore provided.

  317. Provision for inquiries and
trial being held in the absence of
accused in certain cases.—

(1) At any
stage of an inquiry or trial under
this Code, if the Judge or
Magistrate is satisfied, for reasons
to be recorded, that the personal
attendance of the accused before the
Court is not necessary in the
interests of justice, or that the
accused persistently disturbs the
proceedings in Court, the Judge or
Magistrate may, if the accused is
represented by a pleader, dispense
with his attendance and proceed with
such inquiry or trial in his
absence, and may, at any subsequent
stage of the proceedings, direct the
personal attendance of such accused.

(2) If the accused in any such case
is not represented by a pleader, or
if the Judge or Magistrate considers
his personal attendance necessary,
he may, if he thinks fit and for
reasons to be recorded by him,
either adjourn such inquiry or
trial, or order that the case of
such accused be taken up or tried
separately.”

  1. The Magistrate has rejected the application filed under Section 205 Cr.P.C. on different grounds as noticed above. The High Court took entirely new grounds for dismissing the application filed under Section 482 Cr.P.C. without adverting to the grounds which were taken by the Magistrate for declining the prayer.
  • We first take up the grounds given by the High Court for rejecting the application. The High Court has observed that prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused and once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C. at a subsequent stage, such an application would not be maintainable.

  • The High Court has noticed that the accused had already appeared after obtaining the order of pre-arrest bail and furnishing bond and sureties to the satisfaction of the court. The pre-arrest bail was granted to the accused by the District and Sessions Judge by order dated 21.06.2013 and thereafter the accused appeared before the court as has been noticed in paragraph 8 of the judgment of the High court itself.

  • The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205 Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining the pre-arrest bail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the High Court’s order cannot be sustained.

  • The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court. Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance.

  • Now, we advert to the reasons given by the Magistrate for rejecting the application. As noticed above, first reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable.

  • With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar whose pre-arrest bail was already rejected. The present appellants, thus, were not pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205 sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides.

  •   14. In the result, the appeal is allowed, the judgment and order of the High Court dated 17.04.2017 as well as order of the Sub-Divisional Judicial Magistrate dated 13.08.2013 are set aside, application filed by the appellants under Section 205 Cr.P.C. is allowed. The personal appearance of the appellants is exempted. This, however, shall not preclude the Magistrate to pass appropriate orders under Section 205(2) Cr.P.C. if and when personal appearance of the appellants is required.

    ……………………..J.
    ( A.K. SIKRI )

    ……………………..J.
    ( ASHOK BHUSHAN )

    NEW DELHI,

    MARCH 16, 2018.

    after words of wisdom, Hon SC Judge orders sick jobless husband to pay 5000 every hearing !!

    Monthly maintenance and that too at interim stage is the worst millstone around men’s neck. In yet another case exemplifying this sad situation, a sick and jobless husband was told that HE HAS TO WORK and he HAS to earn, so that he can continue to pay his wife !! The poor fella has to pay 5000 per month in addition to fighting multiple cases and taking care of his kids

    You Say You’re a Homemaker But Where’s the Home, SC Asks Unemployed Husband

    The bench ordered for consolidation of all the cases between the warring couple and directed the judge-in-charge to ensure cases are not scattered over various courts.

    Utkarsh Anand | CNN-News18

    Updated:February 28, 2018, 9:01 AM IST

    You Say You're a Homemaker But Where's the Home, SC Asks Unemployed Husband

    File image of Supreme Court. (Image: PTI)

    New Delhi: “You say you are a homemaker but where is the home to make?” the Supreme Court asked a man while hearing a bunch of matrimonial dispute cases.

    A bench headed by Justice Kurian Joseph was adjudicating the dispute relating to multiple litigation between the estranged couple when it asked the husband about what he does for a living. “I am a homemaker,” said the man.

    “You say you are a homemaker but where is the home to make? You have been fighting with your wife for years and children are also suffering. Where is the home?” Justice Joseph asked him.

    At this, the man cut a sorry figure, saying he has tried a lot but it looked very difficult to reconcile with the wife. Justice Joseph then reminded the husband that he could not remain a homemaker anymore.

    “You will have to work…earn. You have to maintain your wife, two children and then conduct four cases. You must start working now,” the judge said.

    The man replied that he had undergone surgeries and had a severe medical condition.

    “That is okay but you cannot afford not to work. You even have the interim custody of two children. So do whatever work comes your way and earn,” Justice Joseph said.

    The wife, who was also present in the Court, expressed her difficulties in fighting different cases at different places in Kerala.

    Acknowledging her problems, the Court said that it would be better for both the parties if all cases, which include custody battle, divorce, alimony and cruelty, should be heard on the same day in the same court premises.

    The bench then ordered for consolidation of all the cases between the warring couple and directed the judge-in-charge to ensure cases are not scattered over various courts.

    It also asked the husband to pay Rs 5,000 for transportation and other allowances to the estranged wife for every date of hearing.

    source

    HC says 60,000 p.m. while SC says 25000 P.M. is correct maintenace in VERY SAME CASE !!

    Indian Men are forced to pay interim maintenance to estranged wife without ANY GUILT being proven! On top of this, there is a vide variation in what is granted by one court vs what is granted by another. In many cases Income Tax and other records are conveniently disbelieved. The claims of husbands that the wife are “employable” and have “capacity to earn” fall on deaf ears !!

    And, needless to say, well educated “model” women keep earning maintenance, just because the husband and his family were successful in life !!

    Sadly this husband has already deposited something like 22 Lakhs to the wife in addition to some monthly maintenance paid by him (pursuant to earlier orders)

    Luckily, in this case, the Apex court DRASTICALLY REDUCED the maintenance. Please note that the husband and his family “…They are successful in their business. His mother belongs to a family of journalists and lawyers…….”


    REPORTABLE

    IN THE SUPREME COURT OF INDIA
    CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 4615 OF 2017
    (Arising out of SLP (C) No.7670 OF 2014)

     

    MANISH JAIN …Appellant

    Versus

    AKANKSHA JAIN …Respondent

    O R D E R

    R. Banumathi, J.

    1. Leave granted.
    2. The present appeal has been filed by the appellant-husband against the order dated 21.02.2014 passed by the High Court of Delhi at New Delhi in C.M.(M) No.910 of 2010. In the said judgment, the High Court while setting aside the order dated 15.03.2010 passed by the Additional District Judge-II (West), Tis Hazari, Delhi who declined to award maintenance pendente lite to the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 has granted interim maintenance to the respondent-wife at the rate of Rs.60,000/- per month to be paid by the appellant-husband Manish Jain with effect from 1st February, 2012 till the disposal of divorce petition. The said amount was fixed in addition to Rs.10,000/- which the appellant-husband has already been paying by way of interim maintenance as per the order passed in Criminal Appeal No.65 of 2008 under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 [for short ‘the D.V. Act’].
    3. This is a case of marital discord which has a chequered history. Brief facts leading to this appeal by way of special leave are as under:- Both the appellant and the respondent got married on 16.02.2005 and they were living at V-38, Green Park, New Delhi. The couple shifted to an accommodation at 303, SFS Apartment, Hauz Khas, New Delhi on 15.04.2007. In or about July, 2007 relationship between the parties got strained. In September, 2007 the appellant-husband filed a divorce petition HMA No.553/2007 under the Hindu Marriage Act, 1955 [for short ‘the HM Act’] seeking divorce on the grounds of cruelty.
    4. In November, 2007 the respondent-wife filed a petition under the D.V. Act along with interim relief i.e., maintenance. She also filed a complaint on 23.11.2007 under Section 498-A and Section 406 IPC with CAW Cell, Amar Colony, Nanakpura, New Delhi against the appellant-husband and his family members which was later on registered as FIR bearing No.190 of 2008, Police Station, Friends Colony, New Delhi on 04.03.2008. In December, 2007, respondent filed yet another Complaint Case No.381 of 2008 under Section 125 Cr.P.C. before the Mahila Court, Patiala House, New Delhi. Her interim application seeking maintenance amongst other reliefs under Section 23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Patiala House, New Delhi by order dated 23.04.2008 on the ground that the respondent was employed and was getting a stable income and that no document was placed on record by the respondent to show that respondent had again become jobless as the publication of the Magazine FNL had been stopped. Against the dismissal of application for maintenance, the respondent had filed appeal before Additional Sessions Judge, Patiala House in Criminal Appeal No.65 of 2008. In the said appeal and in Criminal Revision No.66 of 2008, Additional Sessions Judge, Patiala House by an order dated 01.09.2009 granted maintenance of Rs.10,000/- per month to the respondent-wife.
    5. The appellant-husband filed an application under Section 438 Cr.P.C. on 22.04.2008 for grant of bail in anticipation of his likely arrest. The High Court granted anticipatory bail to the appellant-husband subject to return of Toyota Corolla and dowry/jewellery articles to the respondent-wife within a week from the date of order till the next date of hearing which is said to have been complied with. Order was also passed directing the respondent to deposit Rs.12,00,000/- towards alleged return of dowry articles.
    6. The respondent-wife filed application under Section 24 of the HM Act claiming interim maintenance pendente lite of Rs.4,00,000/- per month and also a sum of Rs.80,000/- to meet litigation expenses during the pendency of the divorce petition. In the said application, the respondent- wife pleaded that she was having no source of income to maintain herself and that she is dependent upon others for her day to day needs and requirements. The said application was resisted by the appellant-husband contending that the respondent-wife is an educated lady and that she had completed her one year course of Fashion Designing from J.D. Institute, Hauz Khas, New Delhi and that she is capable of earning monthly salary of Rs.50,000/. The application filed under Section 24 of the HM Act was dismissed by Additional District Judge-II, Tis Hazari, Delhi by order dated 15.03.2010. Being aggrieved, the respondent-wife filed Crl. M.A. No.17724 of 2012 before the High Court, Delhi. The High Court in its order dated 08.11.2011 in C.M.(M) No.910 of 2010 filed by the wife against the order dated 15.03.2010 directed both the parties to file an affidavit truthfully disclosing their correct income. Both the husband and the wife filed an affidavit as to their income in compliance of the aforesaid order. After so directing the parties to file affidavit regarding their income and after referring to the income of appellant-husband and the properties which the appellant and his family are owning and also the standard of living of the respondent-wife which she is required to maintain, the High Court by the impugned order directed the appellant-husband to pay interim maintenance of Rs.60,000/- per month in addition to Rs.10,000/- which was directed to be paid to the respondent-wife in the proceedings under the D.V. Act.
    7. Aggrieved by the order of the High Court, the appellant-husband came in appeal before this Court by way of special leave. After giving opportunity to the parties to work out a settlement which ultimately failed, the same was dismissed on 15.04.2014. Being aggrieved by the dismissal of the above petition, a review petition was filed on 13.05.2014 in which notice was issued by this Court on 06.08.2014 and on 03.02.2016 the same was allowed and the Special Leave Petition was restored to its original number which is the subject matter before us.
    8. Learned counsel for the appellant-husband submitted that the respondent-wife has concealed her employment and independent source of income on several occasions throughout the matrimonial proceedings before the courts below and also that the High Court has committed a grave error in interfering with the well-reasoned order of the trial Court under Section 24 of the HM Act. The learned counsel for the appellant-husband submitted that the trial court after analyzing the evidence that the wife was educated, professionally qualified in the Fashion industry and had sufficient independent income rejected the application of the wife seeking maintenance under Section 24 of the HM Act. It was submitted that the High Court without proper appreciation of the income of the parties had wrongly set aside the order of the trial Court and fixed an abnormal amount of Rs.60,000/- as maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act. Learned counsel further submitted that in Criminal Appeal No.65 of 2008 under Section 23(2) of the D.V. Act, the appellant- husband is paying an interim maintenance of Rs.10,000/- per month to the respondent-wife and the appellant-husband has so far made a total payment of Rs.7,50,000/- in the proceedings under D.V. Act, apart from returning a Toyota Corolla car worth Rs.13,00,000/- besides depositing a sum of Rs.12,00,000/- and a sum of Rs.2,75,000/– towards untraced admitted dowry articles in compliance with the order passed by the Court. It was further submitted that the appellant-husband’s firms/companies have been either shut down due to heavy loss and/or under the stage of winding up and the appellant-husband is not in a position to pay the exorbitant amount of Rs.60,000/- per month as maintenance pendente lite to the respondent-wife.
    9. Learned counsel for the respondent-wife at the outset submitted that the principle of providing maintenance is to ensure the living conditions of respondent-wife similar to that of appellant-husband whereas in the present case the respondent-wife is yet to receive any money.
    10. We have heard the matter at considerable length. Parties are entangled in several rounds of litigation making allegations and counter allegations against each other. Since various proceedings are pending between the parties, we are not inclined to go into the merits of the rival contentions advanced by the parties. The only question falling for consideration is whether the respondent-wife is entitled to maintenance pendente lite and whether the amount of Rs.60,000/- awarded by the High Court is on the higher side.
    11. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided, on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant’s own income and the income of the respondent.
    12. At the time of filing application under Section 24 of the HM Act in December, 2007, the respondent-wife was doing her internship in fashion designing in J.D. Institute of Fashion Technology and just completed the course and was not employed at that time. Only in the month of May, 2008, she became a trainee and joined FNL Magazine of Images Group as Junior Fashion Stylist and was earning an approximate/stipend income of Rs.21,315/- per month and due to recession, the same is said to have been reduced to Rs.16,315/- for three months that is July, August and September in the year 2009. It is stated that thereafter the respondent-wife has become jobless and associated with Cosmopolitan Magazine and according to the respondent- wife, she was working as a Stylist and is paid nominal amount of Rs.4,500/- per shoot and the said amount is inclusive of expenses like travelling etc. On a perusal of the judgment of the High Court and also the affidavit of the respondent-wife, it is clear that the respondent-wife has no permanent source of employment and no permanent source of income.
    13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:-“38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers….39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” 
    14. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”. The Section, however, does not use the word “maintenance”; but the word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
    15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.
    16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. The maintenance pendente lite of Rs.25,000/- is to be paid to the respondent-wife by the appellant- husband (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act).
    17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/- paid under the proceedings of the D.V. Act on or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellant-husband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court.

    ………………………….J. [KURIAN JOSEPH]

    .………………………..J. [R. BANUMATHI]

    New Delhi;

    March 30, 2017