List of Judgements Relied on in Appeal

IN THE COURT OF DISTRICT AND SESSIONS JUDGE,
ROHINI COURTS, NEW DELHI

Criminal Revision………./2015
In
Dr Mitu Khurana vs State of NCT of Delhi & others
List of Judgements Relied on
1. Suo moto vs State of Gujarat (2009 CRI. L. J.721,(2009)1 GLR 64, MANU/GJ/0717/2008
2. Dr. Sujit Govind Dange vs. State of Maharashtra and Others (Writ Petition No.11059 Of 2011) (2012 (10) LJSOFT 22)
3. Dr. (Mrs.) Suhasini Umesh Karanjkar vs Kolhapur Municipal Corporation and others (Writ Petition No.7896 Of 2010 Along with Civil
Application No.512 OF 2011)
4. Dr.(Smt) Pooja Agrawal Vs. Shivbhan Singh Rathore & Anr (Misc. Criminal Case No.5967/09)- Madhya Pradesh High Court
5. Soma Chakravarty vs State Through CBI on 10 May, 2007
6. In State Of Maharashtra Etc. Etc vs Som Nath Thapa, Etc, 1996 AIR 1744, 1996 SCC (4) 659
7. Onkar Nath Mishra & Ors. vs. State (NCT of Delhi) & Anr. [2008 (1) JCC 65]
8. State of M.P. Vs. Mohanlal Soni (2000 Cri.LJ 3504)
9. Kundulubala Subramanyam Vs. State of Andhra Pradesh (1193) 2SCC 684
10. Aftab Ahmad Anasari vs State Of Uttaranchal
11. Vinod Kumar vs State Of Haryana on 8 January, 2015 (Criminal Appeal No. 1401 of 2008)
12. V.K.Mishra & Anr vs State Of Uttarakhand & Anr on 28 July, 2015
13. R. Kuppusamy vs State Rep. By Inspector of Police, Ambeiligai on 19 February, 2013 (Criminal Appeal No.1706 OF 2008)
14. State of U.P. vs. M.K. Anthony AIR 1985 SC 48, 1985 CriLJ 493, 1984 (2) SCALE 728, (1985) 1SCC 505
15. Jugendra Singh Vs State Of U. P. (Criminal Appeal No. 82 Of 2008)
16. Dr. Ravindra vs The State Of Maharashtra on 9 May, 2014
17. Ravi Mohan Mahawar vs State of Rajasthan (S.B. Criminal Misc. Petition No.1828/2013)
18. Priyakant Mohanlal Kapadia vs State Of Gujarat (R/CR.MA/10039/2014)

CRREF/420/2008 1/24 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REFERENCE No. 4 of 2008
With
CRIMINAL REFERENCE No. 3 of 2008
For Approval and Signature:
HONOURABLE MR. JUSTICE M.S.SHAH Sd/-
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/-
HONOURABLE MR.JUSTICE AKIL KURESHI Sd/-
==============================================
1 Whether Reporters of Local Papers may be allowed to see the judgment YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO
5 Whether it is to be circulated to the civil judge ? Yes

to all Judicial Magistrate in the State (FC)
==============================================
SUO MOTU – Applicant(s)
Versus
STATE OF GUJARAT – Respondent(s)
==============================================

Appearance :
SUO MOTU for Applicant(s) : 1,
MR SUNIT S SHAH PUBLIC PROSECUTOR for Respondent(s) : 1,
==============================================

CORAM : HONOURABLE MR JUSTICE M.S.SHAH
and            HONOURABLE MR.JUSTICE D.H.WAGHELA
and            HONOURABLE MR.JUSTICE AKIL KURESHI

CRREF/420/2008 2/24 JUDGMENT
Date : 30/09/2008
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. By these References, learned single Judge has referred the following issues for consideration and opinion:
“(i) Whether under the provisions of section 28 of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the Appropriate Authority?
(ii) Whether the provisions of the proviso to sub-section (3) of section 4 of the PNDT Act require that the complaint should contain specific allegations regarding the contravention of the provisions of sections 5 and 6 of the Act?
(iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of section 5 or 6 of the PNDT Act?
(iv) Whether any deficiency of inaccuracy in filing Form-F as required under the statutory provisions is merely a procedural lapse?”

2. Above issues have come to be referred on account of the learned single Judge not agreeing with the following observations and conclusions expressed by another learned single Judge in Dr.Manish C. Dave v. State of Gujarat [2008 (1) GLH 475] :
“10. ….Therefore, the complaint should be filed by Appropriate Authority or any officer authorised in this behalf by the Central Government of State Government and the person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority of the alleged offence and of his intention to make a complaint to the Court. Admittedly, the complaints were not filed by Appropriate Authority or any officer authorised in this behalf. There is nothing on record to show that the persons who have filed the complaints have given notice as per Section 28 (b) of the Act. In view of these facts, I am of the view that the complaints become bad in law.
…. …. ….
“15. From a bare perusal of the complaints, it is apparent that it is not the case of the authority that provisions of Section 5 or 6 are applicable inasmuch as the authority has not been able to show or even alleged that (i) any pregnant woman or her relative or any other person has been communicated the sex of foetus by the petitioners or (ii) at any place and by any person, including the person conducting ultrasonography, there has been either sex determination or sex selection. In absence of such specific allegations in the complaint, it cannot be said that provisions of sections 5 and 6 of the Act would be attracted.

“16. Reading the proviso to section 3, it is to be presumed that the deficiency or inaccuracy in the record would amount to contraventions of the provisions of section 5 or section 6 of the Act. As a natural consequence, in view of such deficiency or inaccuracy, there should be allegation of contravention of provisions of sections 5 and 6 of the Act. In the present case, there are no specific allegations in the complaint pertaining to the provisions of sections 5 and 6. Apart from that, the language of sections 5 and 6 is prohibitory in nature and
therefore the burden of proof will be on the authority to prove that there was contravention and thereupon to rely on the provisions of Statutory Form-F for filing criminal complaint….. …. ….

“18. As far as section 4 (3) is concerned, it is the case of the petitioners that the register is maintained with all the columns which fall within the four corners of the duties and functions of the petitioners. Apart from that, no opportunity is afforded to the petitioners to prove contrary and put up their case. Further, such deficiency or inaccuracy, at least so far as the present proceedings are concerned, is merely a procedural lapse, which do not in any manner contravene the provisions of sections 5 and 6 of the Act.

“19. In view of the above, when it is not established that there is contravention of the provisions of Sections 5 or 6, the contention regarding any inaccuracy or deficiency in Form-F will not be applicable and therefore the complaints themselves are not maintainable. I am, therefore, of the view that the complaints do not prima facie establish any alleged offence against the petitioners.”

The questions referred in Reference No.4 of 2008 include the issue referred in Reference No.3 of 2008 and they are heard and disposed as references under Rule 5 of the Gujarat High Court Rules, 1993.

3. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short “the Act”) is enacted for the avowed purpose of prohibiting sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. Relevant statutory provisions of the Act, as amended by the Act 14 of 2003, read as under:

“2 DefinitionsIn this Act, unless the context otherwise requires-
(a) “Appropriate Authority” means the Appropriate Authority appointed under section 17;
(i) “pre-natal diagnostic procedures” means all gynaecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo, blood or any other tissue or fluid of a man, or of a woman before or after conception, for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception;
(j) “Pre-natal diagnostic techniques” includes all pre-natal diagnostic procedures and pre-natal diagnostic tests;
(k) “pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or
haemoglobinopathies or sex-linked diseases;
(l) “prescribed” means prescribed by rules made under this Act.

CHAPTER III REGULATION OF PRE-NATAL DIAGNOSTIC TECHNIQUES
4. Regulation of pre-natal diagnostic techniquesOn and from the commencement of this Act –
(1) no place including a registered Geneteic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely-
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;
(3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic
disease;
(v) any other conditions as may be specified by the Board: Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;
(4) no person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any prenatal diagnostic techniques on her except for the purposes specified in clause (2);
(5) no person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.

5. Written consent of pregnant woman and prohibition of communicating the sex of foetus-
(1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless-
(a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;
(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and
(c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.

(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner.

6. Determination of sex prohibitedOn and from the commencement of this Act-
(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Cinic,
pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;
(b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus.
(c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception.

CHAPTER V APPROPRIATE AUTHORITY AND ADVISORY COMMITTEE
17. Appropriate Authority and Advisory Committee-
(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union Territories for the purposes of this Act.
(2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.
(3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be,-
(a) when appointed for the whole of the State or the Union territory, consisting of the following three members:-
(i) an officer of or above the rank of the Joint Director of Health and Family Welfare Chairperson;
(ii) an eminent woman representing women’s organization and
(iii) an officer of Law Department of the State or the Union territory concerned;
Provided that it shall be the duty of the State or the Union territory concerned to constitute multi-member State or Union territory level Appropriate Authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002: Provided further that any vacancy occurring therein shall be filled within three months of the occurrence;
(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the
case may be may deem fit.
(4) the Appropriate Authority shall have the following functions, namely-
(a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action;
(d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for suspension or cancellation of registration;
(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigation in such matter;
(f) to create public awareness against the practice of sex selection or pre-natal determination of sex;
(g) to supervise the implementation of the provisions of the Act and rules;
(h) to recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions;
(i) to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of
registration.

CHAPTER VII
OFFENCES AND PENALTIES

22. … … …
23. Offences and penalties:-
(1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand
rupees.
(2) The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or
registered medical practitioner or any other person for sex selection or for conducting pre-natal diagnostic techniques on any pregnant woman for the purposes other than those specified in sub-section (2) of section 4,
he shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which
may extend to five years and with fine which may extend to one lakh rupees.
(4) For the removal of doubts, it is hereby provided, that the
provisions of sub-section (3) shall not apply to the woman
who was compelled to undergo such diagnostic
techniques or such selection.
28. Cognizance of offences-
(1) No court shall take cognizance of an offence under this
Act except on a complaint made by-
(a) the Appropriate Authority concerned, or any officer
authorised in this behalf by the Central Government
or State Government, as the case may be, or the
Appropriate Authority; or
(b) a person who has given notice of not less than
fifteen days in the manner prescribed, to the
Appropriate Authority, of the alleged offence and
for his intention to make a complaint to the court.
Explanation.- For the purpose of this clause, “person”
includes a social organisation.
CHAPTER VIII
MISCELLANEOUS
29. Maintenance of records-
(1) All records, charts, forms, reports, consent letters and all
the documents required to be maintained under this Act
and the rules shall be preserved for a period of two years
or for such period as may be prescribed:
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Provided that, if any criminal or other proceedings
are instituted against any Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic, the records and all
other documents of such Centre, Laboratory or Clinic
shall be preserved till the final disposal of such
proceedings.
(2) All such records shall, at all reasonable times, be made
available for inspection to the Appropriate Authority or to
any other person authorised by the Appropriate Authority
in this behalf.”
3.1 In exercise of the powers conferred by section 32 of
the Act, the Central Government has made the Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Rules, 1996 (for short, “the Rules”) of which
following provisions, as amended by notification [G.S.R.109
(E)] dated 14.02.2003, may be relevant:
“9. Maintenance and preservation of records-
(1) Every Genetic Counselling Centre, Genetic Laboratory,
Genetic Clinic, Ultrasound Clinic and Imaging Centre shall
maintain a register showing, in serial order, the names
and addresses of the men or women given counselling,
subjected to pre-natal diagnostic procedures or prenatal diagnostic tests, the names of their spouses or
fathers and the date on which they first reported for such
counselling, procedure or test.
(2) The record to be maintained by every Genetic
Counselling Centre, in respect of each woman counselled
shall be as specified in Form D.
(3) The record to be maintained by every Genetic
Laboratory, in respect of each man or woman subjected
to any pre-natal diagnostic procedure/technique/test,
shall be as specified in Form E.
(4) The record to be maintained by every Genetic Clinic, in respect of each man or woman subjected to any pre-natal
diagnostic procedure/technique/test, shall be as specified in Form F.
(5) The Appropriate Authority shall maintain a permanent
record of applications for grant or renewal of certificate of registration as specified in Form H. Letters of intimation of every change of employee, place, address and equipment installed shall also be preserved as permanent records.
(6) All case related records, forms of consent, laboratory
results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic or Imaging Centre for a period of two years from the date of completion of
counselling, pre-natal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the record shall be preserved till final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is later.
(7) In case the Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic or Ultrasound Clinic or Imaging Centre maintains records on computer or other electronic equipment, a printed copy of the record shall be taken and preserved after authentication by a person responsible for such record.
(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall send a complete report in respect of all preconception or pregnancy related procedures/ techniques/ tests conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority.
10. Conditions for conducting pre-natal diagnostic procedures-
(1) Before conducting preimplantation genetic diagnosis, or any pre-natal diagnostic technique/test/procedure, such as amniocentesis, chorionic villi biopsy, foetoscopy, foetal skin or organ biopsy or cordocentesis, a written consent, as specified in Form G, in a language the person undergoing such procedure understands, shall be obtained from her/him:
Provided that where a Genetic Clinic has taken a sample of any body tissue or body fluid and sent it to a Genetic Laboratory for analysis or test, it shall not be necessary for the Genetic Laboratory to obtain a fresh consent in Form G.
(1A) Any person conducting ultrasonography/image scanning on a pregnant woman shall give a declaration on each report on ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to any body. The pregnant woman shall before undergoing ultrasonography/ image scanning delcare that she does not want to know the sex of her foetus.
(2) All the State Governments and Union territories may issue translation of Form G in languages used in the State or Union Territory and where no official translation in a language understood by the pregnant woman is
available, the Genetic Clinic may translate Form G into a language she understands.”
“14. Conditions for analysis or test and pre-natal diagnostic procedures-
(1) No Genetic Laboratory shall accept for analysis or test any sample, unless referred to it by a Genetic Clinic.
(2) Every pre-natal diagnostic procedure shall invariably be immediately preceded by locating the foetus and placenta through ultrasonography, and the pre-natal diagnostic procedure shall be done under direct ultrasonographic monitoring so as to prevent any damage to the foetus and placenta.”
“18. Code of conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centre, etc.
All persons including the owners, employee or any other persons associated with Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centres registered under the Act/these Rules shall-
(i) not conduct or associate with, or help in carrying out detection or disclosure of sex of foetus in any manner;
(ii) not employ or cause to be employed any person not possessing qualifications necessary for carrying out pre-natal diagnostic techniques/ procedures and tests including ultrasonography;
(iii) not conduct or cause to be conducted or aid in conducting by himself or through any other person any techniques or procedure for selection of sex before or after conception or for detection of sex of foetus except for the purposes specified in subsection (2) of section 4 of the Act;
(iv) not conduct or cause to be conducted or aid in conducting by himself or through any other person any techniques or test or procedure under the Act at a place other than a place registered under the Act/these Rules;
(v) ensure that no provision of the Act and these rules are violated in any manner;
(vi) ensure that the person, conducting any techniques, test or procedure leading to detection of sex of foetus for purposes not covered under section 4 (2) of the Act or selection of sex before or after conception, is informed that such procedures lead to violation of the Act and these rules which are punishable offences;
(vii) help the law enforcing agencies in bringing to book the violators of the provisions of the Act and these Rules;
(viii) display his/her name and designation prominently on the dress worn by him/her;
(ix) write his/her name and designation in full under his/her signature;
(x) on no account conduct or allow/cause to be conducted female foeticide;
(xi) not commit any other act of professional misconduct.”
3.2 Form-F prescribed for maintaining the records under
Rule 9 (4) and Rule 10 (1A) is as under:
“FORM F
(See proviso to section 4 (3), rule 9(4) and rule 10 (1A)
FORM FOR MAINTENANCE OF RECORD IN RESPEPCT OF PREGNANT WOMAN BY GENETIC CLINIC/ULTRASOUND CLINIC/IMAGING CENTRE.

1. Name and address of the Genetic Clinic/ Ultrasound Clinic/Imaging Centre.
2. Registration No.
3. Patient’s name and her age
4. Number of children with sex of each child
5. Husband’s/Father’s name
6. Full address with Tel.No.,if any.
7. Referred by (full name and address of
Doctor(s)/Genetic Counselling Centre (referral note to be preserved carefully with the case papers)/self referral.
8. Last menstrual period/weeks of pregnancy
9. History of genetic/medical disease in themselves family (specify)
Basis of diagnosis:
(a) Clinical
(b) Bio-chemical
(c) Cytogenetic
(d) Other (e.g. radiological, ultrasonography etc., specify)
10. Indication for pre-natal diagnosis
A. Previous child/children with:
(i) Chromosomal disorders
(ii) Metabolic disorders
(iii) Congenital anomaly
(iv) Mental retardation
(v) Haemoglobinopathy
(vi) Sex linked disorders
(vii) Single gene disorder
(viii) Any other (specify)
B. Advanced maternal age (35 years)
C. Mother/father/sibling has genetic disease (specify)
D. Other (specify)
11. Procedures carried out (with name and registration No. of Gynaecologist/ Radiologist/Registered Medical Practitioner who performed it).
Non-Invasive
(i) Ultrasound (specify purpose for which ultrasound is to be done during pregnancy) (list of indications for ultrasonography of pregnant women are given in the note below).
Invasive
(ii) Amniocentesis
(iii) Chorionic Villi aspiration
(iv) Foetal biopsy
(v) Cordocentesis
(vi) Any other (specify)
12. Any complication of procedure-please specify
13. Laboratory tests recommended
(i) Chromosomal studies
(ii) Biochemical studies
(iii) Molecular studies
(iv) Preimplantation genetic diagnosis
14. Result of
(a) pre-natal diagnostic procedure (give
details)
(b) Ultrasonography Normal/Abnormal
(specify abnormality detected,if any)
15. Date(s) on which procedures carried out.
16. Date of which consent obtained (In case of invasive)
17. The result of pre-natal diagnostic procedure were
conveyed to…………………..on………
18. Was MTP advised/conducted?
19. Date on which MTP carried out.
Name, Signature and Registration number of
the Gynaecologist/ Radiologist/ Director of the
Clinic.
Date…………
Place………..
DECLALRATION OF PREGNANT WOMAN
I, Ms………………(name of the pregnant woman), declare
that by undergoing ultrasonography/image scanning etc. I do
not want to know the sex of my foetus.
Signature/Thumb impression of pregnant woman
DECLARATION OF DOCTOR/PERSON CONDUCTING
ULTRASONOGRAPHY/IMAGE SCANNING
I,………(name of the person conducting ultrasonography/
image scanning) declare that while conducting
ultrasonography/image scanning on Ms………(name of the
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pregnant woman), I have neither detected nor disclosed the sex
of her foetus to anybody in any manner.
Name and signature of the person conducting the
sonography/image scanning/Director or owner of
genetic clinic/ultrasound clinic/imaging centre.
Important Notes:-
(i) Ultrasound is not indicated/advised/performed to
determine the sex of foetus except for diagnosis of sexlinked diseases such as Duchenne Muscular Dystropy,
Haemophilia A& B etc.
(ii) During pregnancy Ultrasonography should only be
performed when indicated. The following is the
representative list of indications for ultrasound during
pregnancy:-
(1) to (23) ….. ….. …..”
4. It was argued by learned Public Prosecutor Mr.Sunit
Shah that the Appropriate Authority for the State being a multimember body, delegation of authority for filing a complaint
was essential and explicit in the provisions of section 28 of the
Act. He also submitted that in view of increasing incidence of
female foeticide and adverse sex-ratio in the society, the
legislature has advisedly made stringent provisions for
preventing misuse of the pre-natal diagnostic techniques. The
maintenance and preservation of records particularly in case of
pregnant women undergoing ultrasonography, under the pain
of heavy penalties, was part of a strategy to curb the misuse of
diagnostic techniques and without such compulsion to keep the
records in the prescribed manner, it would be well nigh
impossible to trace and prove the offences under the Act. The
requirement of maintaining the records was itself an effective
check against commission of other offences, according to the
submission. Per contra, it was submitted that the provisions of
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sub-section (3) of section 4 were procedural and any lapse in
maintaining the record could not be equated with substantive
offences of contravention of the provisions of section 5 or 6. It
was submitted that even a minor, formal, technical or
accidental slip in filling the forms or keeping the record cannot
be the basis of allegation of inaccuracy or deficiency and
should not be allowed to expose the person conducting
ultrasonography on a pregnant woman to prosecution for
serious offences and cast upon him an impossible burden of
proving all the ingredients of sections 5 and 6 of the Act.
5. A conjoint reading of the above provisions would
clearly indicate a well-knit legislative scheme for ensuring a
strict and vigilant enforcement of the provisions of the Act
directed against female foeticide and misuse of pre-natal
diagnostic techniques. In fact, the use of those techniques are
restricted to the purpose of detection of any of the
abnormalities or diseases enumerated in sub-section (2) of
section 4 of the Act. The provisions are stricter in case of
conduct of pre-natal diagnostic techniques on a pregnant
woman, requiring her written consent and determination of sex
of a foetus is prohibited by the provisions of sections 5 and 6.
Constitution of ‘Appropriate Authority’ under section 17 is
clearly meant to ensure proper and vigorous implementation of
the Act; and it is expressly prescribed as one of its functions to
take legal action against the use of any sex-selection
technique. That authority, where appointed for the whole of a
State or Union Territory, has to consist of three members. And
when it is appointed for a part of the State or a Union Territory,
it could consist of an officer of such rank as the Government
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concerned may deem fit.
6. The provisions of section 28 clearly provide for
taking cognizance of an offence under the Act only upon a
complaint being made by any of the four categories of
complainants, viz:
(1) the Appropriate Authority concerned;
(2) any officer authorised in that behalf by the Central
Government or State Government;
(3) any officer authorised in that behalf by the Appropriate
Authority; and
(4) a person, which includes a social organisation, who has
given notice as prescribed in section 28 (1) (b).
Use of the words “Appropriate Authority” twice, at the
beginning and end of clause (a) of sub-section (1) of section
28, clearly conveys that complaint could be made by an officer
who is authorised in that behalf by the Central Government,
the State Government or the Appropriate Authority, besides
the Appropriate Authority itself. The power to delegate and
authorise an officer to make a complaint is clearly conferred
upon all the three authorities under the provisions of section
28, and, therefore, a Court can take cognizance of an offence
under the Act on a complaint made by any officer authorised in
that behalf by the Appropriate Authority. The first issue is
answered accordingly.
7. As seen earlier, the Act and the Rules made
thereunder provide for an elaborate scheme to ensure proper
implementation of the relevant legal provisions and the
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possible loop-holes in strict and full compliance are sought to
be plugged by detailed provisions for maintenance and
preservation of records. In order to fully operationalise the
restrictions and injunctions contained in the Act in general and
in sections 4, 5 and 6 in particular, to regulate the use of prenatal diagnostic technique, to make the pregnant woman and
the person conducting the pre-natal diagnostic tests and
procedures aware of the legal and other consequences and to
prohibit determination of sex, the Rules prescribe the detailed
forms in which records have to be maintained. Thus the Rules
are made and forms are prescribed in aid of the Act and they
are so important for implementation of the Act and for
prosecution of the offenders, that any improper maintenance
of such record is itself made equivalent to violation of the
provisions of sections 5 and 6, by virtue of the proviso to subsection (3) of section 4 of the Act. It must, however, be noted
that the proviso would apply only in cases of ultrasonography
conducted on a pregnant woman. And any deficiency or
inaccuracy in the prescribed record would amount to
contravention of the provisions of sections 5 and 6 unless and
until contrary is proved by the person conducting such
ultrasonography. The deeming provision is restricted to the
cases of ultrasonography on pregnant women and the person
conducting ultrasonography is, during the course of trial or
other proceeding, entitled to prove that the provisions of
sections 5 and 6 were, in fact, not violated.
8. It needs to be noted that improper maintenance of
the record has also consequences other than prosecution for
deemed violation of section 5 or 6. Section 20 of the Act
provides for cancellation or suspension of registration of
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Genetic Counselling Centre, Genetic Laboratory or Genetic
Clinic in case of breach of the provisions of the Act or the
Rules. Therefore, inaccuracy or deficiency in maintaining the
prescribed record shall also amount to violation of the
prohibition imposed by section 6 against the Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic and
expose such clinic to proceedings under section 20 of the Act.
Where, by virtue of the deeming provisions of the proviso to
sub-section (3) of section 4, contravention of the provisions of
section 5 or 6 is legally presumed and actions are proposed to
be taken under section 20, the person conducting
ultrasonography on a pregnant woman shall also have to be
given an opportunity to prove that the provisions of section 5
or 6 were not violated by him in conducting the procedure.
Thus the burden shifts on to the person accused of not
maintaining the prescribed record, after any inaccuracy or
deficiency is established, and he gets the opportunity to prove
that the provisions of sections 5 and 6 were not contravened in
any respect. Although it is apparently a heavy burden, it is
legal, proper and justified in view of the importance of the
Rules regarding maintenance of record in the prescribed forms
and the likely failure of the Act and its purpose if procedural
requirements were flouted. The proviso to sub-section (3) of
section 4 is crystal clear about the maintenance of the record
in prescribed manner being an independent offence amounting
to violation of section 5 or 6 and, therefore, the complaint need
not necessarily also allege violation of the provisions of section
5 or 6 of the Act. A rebuttable presumption of violation of the
provisions of section 5 or 6 will arise on proof of deficiency or
inaccuracy in maintaining the record in the prescribed manner
and equivalence with those provisions would arise for
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punishment as well as for disproving their violation by the
accused person. That being the scheme of these provisions, it
would be wholly inappropriate to quash the complaint alleging
inaccuracy or deficiency in maintenance of the prescribed
record only on the ground that violation of section 5 or 6 of the
Act was not alleged or made out in the complaint. It would also
be improper and premature to expect or allow the person
accused of inaccuracy or deficiency in maintenance of the
relevant record to show or prove that provisions of section 5 or
6 were not violated by him, before the deficiency or inaccuracy
were established in court by the prosecuting agency or before
the authority concerned in other proceedings.
9. Upon above analysis and appreciation of the
scheme and provisions of the Act and Rules made thereunder,
opinion on issues referred to the larger bench is as under:
(i) Under the provisions of section 28 of the Preconception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (“the PNDT
Act”), a Court can take cognizance of an offence
under the Act on a complaint made by any officer
authorised in that behalf by the Appropriate
Authority.
(ii) The proviso to sub-section (3) of section 4 of the
PNDT Act does not require that the complaint
alleging inaccuracy or deficiency in maintaining
record in the prescribed manner should also contain
allegation of contravention of the provisions of
section 5 or 6 of the PNDT Act.
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(iii) In a case based upon allegation of deficiency or
inaccuracy in maintenance of record in the
prescribed manner as required under sub-section
(3) of section 4 of the PNDT Act, the burden to prove
that there was contravention of the provisions of
section 5 or 6 does not lie upon the prosecution.
(iv) Deficiency or inaccuracy in filling Form F prescribed
under Rule 9 of the Rules made under the PNDT Act,
being a deficiency or inaccuracy in keeping record
in the prescribed manner, it is not a procedural
lapse but an independent offence amounting to
contravention of the provisions of section 5 or 6 of
the PNDT Act and has to be treated and tried
accordingly. It does not, however, mean that each
inaccuracy or deficiency in maintaining the requisite
record may be as serious as violation of the
provisions of section 5 or 6 of the Act and the Court
would be justified, while imposing punishment upon
conviction, in taking a lenient view in cases of only
technical, formal or insignificant lapses in filling up
the forms. For example, not maintaining the record
of conducting ultrasonography on a pregnant
woman at all or filling up incorrect particulars may
be taken in all seriousness as if the provisions of
section 5 or 6 were violated, but incomplete details
of the full name and address of the pregnant woman
may be treated leniently if her identity and address
were otherwise mentioned in a manner sufficient to
identify and trace her.
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(v) The judgment in Dr.Manish C. Dave v. State of
Gujarat reported in 2008 (1) GLH 475 stands overruled to the
extent it is inconsistent with the above opinion. The references
stand disposed accordingly.
Sd/-
( M.S.Shah, J.)
Sd/-
( D.H.Waghela, J.)
Sd/-
( Akil Kureshi, J.)
(KMG Thilake)
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krs wp11059.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.11059 OF 2011
Dr.Sujit Govind Dange )
Age : 38 years, having his hospital at )
26, First Floor, Ambika Shopping Complex )
Sector 8, Nerul (W), Navi Mumbai 400 706. ) : Petitioner
V/s.
1. State of Maharashtra )
through its Department of Public Health )
& Family Welfare, Mantralaya, )
Bombay.
2. The Additional Director Health Service )
Family Welfare Bhavan, Pune. )
3. Medical Officer of Health )
Navi Mumbai Municipal Corporation, )
Navi Mumbai.
4. The State Appellate Authority )
having office at Arogya Bhavan, )
St. Georges’ Hospital Compound )
Near GPO, Mumbai—400 001. )
5. Union of India )
Through its Ministry of Health & Family )
Welfare, having office at Nirman Bhavan, )
New Delhi—110 011. ) : Respondents
….
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krs wp11059.11
WITH
CIVIL APPLICATION NO.251 OF 2012
In
WRIT PETITION NO.11059 OF 2011
Varsha Laxmanrao Deshpande : Applicant
V/s.
Dr.Sujit Govind Dange & Ors. : Respondents
….
Mr.V.M.Thorat i/b. Ms P.V.Thorat for the petitioner.
Mr.S.N.Patil, Asstt. Govt. Pleader for respondent nos.1 & 2.
Mr.S.V.Marne for respondent no.3.
Mr.A.M.Sethna with Mr.A.S.Kulkarni i/b. J.S.Deo for respondent no.5.
Mr.U.P.Warunjikar for the applicant in C.A. No.251 of 2012.
….
CORAM : D.D. SINHA AND
SMT.V.K.TAHILRAMANI, JJ.
Date of Reserving )
the Judgement. ): 22.06.2012.
Date of Pronouncing )
the Judgement. ) : 16.08.2012.
JUDGEMENT (Per D.D.Sinha, J.)
Heard the learned counsel for the petitioner and the learned
counsel appearing for the respective respondents.
2/38
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2. The petitioner is challenging the legality and propriety of
notice/order dated 21.6.2011 passed by the respondent no.3 and order
dated 9.11.2011 passed by the respondent no.4. Similarly, a direction is
sought against the respondent nos.2 and 3 to release and/or return to the
petitioner sonography machine seized vide order dated 21.6.2011.
SUBMISSIONS OF THE PETITIONER :
3. Mr.Thorat, the learned counsel for the petitioner, has submitted
that the action of the respondent-authorities is wholly illegal, incorrect
and, therefore, cannot be sustained in law. It is contended that the
provisions of the proviso to sub-section (3) of section 4 of the Act
require the Doctor to keep a record in the clinic as prescribed under the
Rules, failing which it can be presumed that the provisions of sections 5
and 6 are contravened by such Doctor. It is submitted that before drawing
presumption of contravention of section 5 or 6, opportunity must be given
to the Doctor to disprove the said presumption as per the scheme of subsection (3) of section 4 of the Act. The scheme of the Act, therefore,
provides that before the said presumption is drawn, the Doctor conducting
sonography on a pregnant woman is required to be given a chance to put
3/38
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forth his defence regarding maintenance of the record and it is only
thereafter the authorities are entitled to consider whether there is a
violation of section 5 or 6 of the Act. It is contended that if the
appropriate authority is satisfied by the explanation of the Doctor, it may
not be necessary to proceed against such Doctor by initiating criminal
proceedings or take action of suspension of licence.
4. Mr.Thorat has contended that section 20 of the Act provides for
cancellation or suspension of licence. Sub-section (1) of section 20
specially provides that the appropriate authority may suo motu or on
complaint, issue a notice to the Genetic Clinic to show cause why its
registration should not be suspended or cancelled. Sub-section (2) of
section 20 further provides that after giving reasonable opportunity of
being heard to the Genetic Clinic and having regard to the advice of the
Advisory Committee, if the appropriate authority is satisfied that there has
been a breach of the provisions of the Act or the Rules, it may, without
prejudice to any criminal action that it may take against such Centre,
Clinic or Laboratory suspend its registration for such period as it may
think fit or cancel its registration, as the case may be. Mr.Thorat,
therefore, contended that sub-sections (1) and (2) of section 20
4/38
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substantiates the contention canvassed by the petitioner that as per the
scheme of the Act, it is necessary to first afford a reasonable opportunity
of being heard to the Doctor and it is only thereafter action, if any, either
of suspension or cancellation of licence can be taken.
5. The counsel for the petitioner has submitted that sub-section (3)
of section 20 is an exception to the rule of giving reasonable opportunity
of hearing to the Genetic Centre/Doctor provided as per sub-sections (1)
and (2) of section 20. However, though the appropriate authority is
vested with the emergency powers stipulated in sub-section (3) and can
suspend the licence if it is necessary or expedient to do so in public
interest, it must record reasons in writing and it is only thereafter, it is
entitled to suspend the registration of any Genetic Counselling Centre,
etc., without issuing such notice.
6. It is submitted that in the hand-book prepared and published by
Union of India which is in the form of guidelines, it is stipulated that
though the appropriate authority has a right to suspend the registration of
Genetic Laboratory, Clinic or Centre, without issuing a notice, however,
such power should be exercised as an exception rather than a rule and
5/38
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only when it is essential in the public interest to do so. In the instant case,
the appropriate authority has not given or recorded any reason before
suspending the licence or obtained advice of the Advisory Committee.
7. Mr.Thorat further submitted that the provisions of section 20
though empower the appropriate authority to suspend the registration,
such suspension can only be for the specific period. Even otherwise, the
term “suspension” denotes that the validity of the registration is put in
abeyance for a temporary period and not for an indefinite period. In the
instant case, the appropriate authority suspended the licence for an
indefinite period which amounts to cancellation of the same which is not
permissible in law.
8. Mr.Thorat has submitted that the scheme envisaged under the Act
and the Rules made thereunder suggests two different actions and two
different punishments. It prescribes strict compliance by the Doctor
conducting ultrasound sonography on a pregnant woman to keep the
record strictly as per the format provided. However, while maintaining
the record, if some mistake is committed due to inadvertence which is not
of a serious nature, it may not attract punishment of cancellation of
6/38
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licence and, therefore, under the provisions of the Act, lesser punishment
of suspension of licence for a limited period for minor and/or clerical
mistakes is provided. Similarly, for serious lapses committed by the
Doctor in this regard, harsh punishment like cancellation of licence is also
provided under the Act. It is contended that in many cases of similar
type, the authority has suspended the licence for a limited period of one
month or so in case of minor violations of the provisions of the Act. The
counsel for the petitioner has contended that the appropriate authority in
Navi Mumbai which has taken action against the petitioner has used
different yardstick while taking action in respect of other Doctors who
had committed similar lapses. It is contended that the appropriate
authority in the case of Dr.Parulekar’ Hospital situated at Airoli, Navi
Mumbai, where similar allegations were made regarding not filling `F’
form properly issued show cause notice dated 26.7.2011 to the said
hospital asking it to show cause as to why action of suspension should not
be taken. It is, therefore, submitted that the normal rule as per the scheme
of the Act is to issue show cause notice before taking action of suspension
and it is only in exceptional situation show cause notice contemplated
under sub-sections of section 20 of the Act can be dispensed with and that
too after recording reasons in writing. It is contended that in the instant
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krs wp11059.11
case, the appropriate authority has not complied with the mandatory
requirement prescribed under sub-section (3) of section 20 of the Act and,
therefore, the impugned order is not sustainable in law. Even otherwise,
the order of suspension which was issued by the appropriate authority for
an indefinite period amounts to cancellation and the said action which is
impermissible and, therefore, the same deserves to be quashed and set
aside. In order to substantiate this contention, reliance is placed on the
decision of a single Judge of this Court sitting at Aurangabad Bench in
Writ Petition No.9573 of 2011 (Tirupati Diagnostic Centre v. The
District Appropriate Authority @ Civil Surgeon, General Hospital Jalna)
rendered on 22.3.2012.
9. Mr.Thorat further submitted that without prejudice to the above
referred contention advanced by him, even if it is assumed that there was
a breach of rule on the part of the petitioner and there is a power to
suspend the licence under section 23 of the Act. In the instant case, the
suspension of licence has taken place in June 2011 and is being continued
for a more than one year. Since the appropriate authority does not have
power of suspending the licence for an indefinite period, such action,
therefore, is not sustainable in law and liable to be quashed and set aside.
8/38
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krs wp11059.11
Similarly, since the licence can be suspended only for a limited period,
ultrasound machine, therefore, can only be seized by the appropriate
authority for a specific period only. It is submitted that if the order of
suspension is unsustainable in law and is liable to be quashed and set
aside, necessary consequence is that the appropriate authority must return
ultrasound machine to the petitioner. It is submitted that when the
ultrasound machine was attached and sealed, no indication was given to
the petitioner that the appropriate authority was about to file a criminal
case against the petitioner and, therefore, seizure of machine cannot be
considered as a part of muddemal property and is required to be released.
10. It is contended that ultrasound machine is used only by two
specialists i.e. Gynaecologist or Radiologist. Both these specialists are
very busy in their respective professions and, therefore, they are required
to rely upon their subordinate staff for up-keep of the clinic, laboratory,
etc., including maintenance of record required as per the provisions of the
Act. It is submitted that there is no nexus between the provisions of the
Act and the object to be achieved by the Act. The object is to see that no
professional should conduct sex determination test for the purpose of
female foeticide and, therefore, harsh punishment like suspension,
9/38
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krs wp11059.11
cancellation of licence and/or conviction is provided, whereas for
committing minor violation or error in filling up the form and/or
maintaining the record, awarding of such punishment is unreasonable,
arbitrary and, therefore, violative of Article 14 of the Constitution of
India.
11. Mr.Thorat has submitted that without prejudice to the legal
submissions made by him, even on merit of the matter, it will be seen that
there is no irregularity committed by the petitioner. At no point of time,
the petitioner has admitted his guilt and solitary sentence in the Appeal
Memo cannot be read in isolation to treat the same as admission of the
petitioner of not keeping the record as per the Rules. It is submitted that
rule 9 is the only rule which deals with maintenance and preservation of
the record and it is nowhere stipulated in the said rule that it casts a duty
of maintaining `F’ register. It does not stipulate the manner in which the
said register is required to be maintained by the Doctor. It is contended
that for the mistake committed by the Doctor who has referred the patient,
the blame cannot be put on the Radiologist and/or Gynaecologist.
Mr.Thorat, therefore, contended that the action of the appropriate
authority is wholly unwarranted, misconceived and liable to be quashed
10/38
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krs wp11059.11
and set aside.
SUBMISSIONS OF THE RESPONDENT NO.3:
12. Mr.Marne, the learned counsel for the respondent no.3, has
contended that the appropriate authority on noticing discrepancies as
mentioned in the order of suspension thought it fit in larger public interest
to exercise power under section 20(3) of the Act for ordering immediate
suspension of registration. In the instant case, it is pertinent to note that
there is no prejudice as such caused to the petitioner because of nonissuance of the show cause notice or for not granting hearing to the
petitioner by the appropriate authority, since in the appeal filed by the
petitioner before the appropriate authority, the petitioner has admitted the
existence of discrepancies/irregularities mentioned in the suspension
order. It is, therefore, contended that even if show cause notices would
have been issued to the petitioner, beyond contending that the
discrepancies are of minor nature committed by the petitioner by mistake,
there was nothing that the petitioner could have stated in his defence.
13. Mr.Marne has contended that the Act nowhere makes it
11/38
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krs wp11059.11
mandatory for the appropriate authority to obtain advice of the Advisory
Committee. Under section 17(4)(a), the appropriate authority has wide
powers to suspend or cancel without obtaining any advice. Under section
17(4)(i), the recommendations of the Advisory Committee are to be
considered only if action is taken on the basis of the complaint. In the
present case, the action is taken by the appropriate authority suo motu and
not on any complaint and, therefore, it was not required to obtain advice
of the Advisory Committee.
14. The learned counsel for the respondent no.3 has submitted that
the contention canvassed by the petitioner that the appropriate authority
has not recorded reasons is also not correct. In the order of suspension,
the appropriate authority has recorded the reasons why it was suspending
the registration. The petitioner has admitted the existence of the said
discrepancies as mentioned in the order of suspension. Since the
petitioner has admitted the existence of discrepancies mentioned in the
order of suspension, the authorities were justified in exercising the power
under section 20(3) of the Act. It is submitted that the petitioner having
admitted the existence of the discrepancy, it is not open for the petitioner
to state that reasons were not sufficient to take action of suspension of
12/38
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registration/licence. The learned counsel for the respondent no.3 further
contended that the contention canvassed by the counsel for the petitioner
that the order of suspension is for an indefinite period and, therefore, bad
in law is also incorrect. The order of suspension of registration of the
petitioner would continue till final decision of the criminal case/s lodged
against the petitioner is taken by the competent criminal Court.
15. The counsel for the respondent no.3 has further submitted that
the Act and or the Rules made thereunder nowhere stipulates two types of
violations, major and minor ones. On the contrary, the proviso to subsection (3) of section 4 raises an automatic presumption of contravention
of the provisions of section 5 or section 6 of the Act in case of any
deficiency or inaccuracy in keeping complete record as prescribed in the
Rules. It is mandatory under rule 9 to maintain and preserve various
records. Maintenance of record in Form `F’ is a vital condition before
subjecting a pregnant woman to ultrasonography test. In Form `F’, it is
mandatory for a pregnant woman to declare that she does not want to
know the sex of her foetus. It is also mandatory for the Doctor to declare
that while conducting ultrasonography/image scanning, he did not
disclose sex of foetus in any manner. In the present case, there is an
13/38
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krs wp11059.11
admitted violation of this condition and, therefore, by no stretch of
imagination, it can be treated as a minor irregularity. It is submitted that
if non-maintenance of record in Form `F’ is permitted, it would open a
door for Doctors to determine and disclose sex of foetus as there would be
no record of tests performed on pregnant woman. In any case, it is for the
criminal Court to consider and decide the nature of violation of the
provisions of the Act and the Rules on the basis of evidence adduced by
the parties. In the instant case, since the discrepancy about not
maintaining complete record is admitted by the petitioner, the action of
suspension is sustainable in law and it is open for the petitioner to prove
that the petitioner did not determine the sex of the foetus nor disclosed
about it to anyone. It is, therefore, contended that the action taken by the
appropriate authority is sustainable in law and the petition is liable to be
dismissed.
SUBMISSIONS OF THE RESPONDENT NO.5:
16. Mr.Sethna, the learned counsel for the respondent no.5, has
contended that the petitioner seeks to challenge the impugned action
taken by the appropriate authority, including that of suspension of its
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centre’s licence mainly on three grounds which, according to the
petitioner, is contrary to the mandate under section 20 of the Act which
are as under:-
(i) no opportunity to show cause or being heard was given to the
petitioner;
(ii) no approval of the Advisory Committee was obtained; and
(iii) the suspension of licence was in complete violation of the
principles of natural justice and, hence, contrary to section 20.
17. It is submitted that there is no violation whatsoever of any of the
statutory provisions by the respondents as alleged. Section 20(3) is a non
obstante provision. Therefore, independent and de hors to what is stated
in sub-clauses (1) and (2) of section 20, the appropriate authority is duly
and statutorily empowered to take appropriate action without issuing any
notice referred to in section 20(1) provided such action of suspension of
the Centre’s registration is in public interest.
18. It is contended that in the present case, as provided under section
21, the appropriate authority has suo motu initiated the action of sealing
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the sonography machines and suspending the Centre’s licence. The
reasons for taking such actions have been duly recorded in the impugned
order dated 21.6.2011. Those relate to the discrepancies and irregularities
in maintenance of Form `F’ which is a form statutorily required to be
filled and maintained at all times by the Centre, inter alia, under rule 9 of
the Rules of 1996. The irregularities and discrepancies have been
enumerated in the impugned order. The learned counsel for the
respondent no.5 has submitted that the petitioner himself has admitted the
existence of irregularities and discrepancies as recorded in the order. The
Appellate Authority has also in its order dated 9.11.2011 considered the
seriousness of the violation which included non-filing of declaration in
Form `F’.
19. The counsel for the respondent no.5 has further contended that
section 17 of the Act sets out the functions of the appropriate authority
and section 17(4)(a) includes the power to suspend/cancel registration of
a Genetic Clinic. It is contended that section 9 of the Act clearly
mandates that record shall be maintained and preserved for a period of
two years or such period as may be prescribed and shall be made
available at all times for inspection of the appropriate authority. Rule 9
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also provides in detail the manner in which the records are to be
maintained, including all details as specified in Form `F’. Rule 18 of the
Rules prescribes code of conduct to be observed by persons working at
genetic centres which, inter alia, include to ensure that no provisions of
the Act and the Rules are violated in any manner.
20. The learned counsel for the respondent no.5 has submitted that
maintenance of Form `F’ is a statutory requirement under the provisions
of the Act and the Rules, any breach thereof will, therefore, lead to
contravention of the provisions of sections 5 and 6 of the Act as provided
under section 4 of the Act. There is no mention either in the provisions of
the Act or the Rules distinguishing between minor and/or major offences.
Hence, the contention of the petitioner of not maintaining Form `F’ is a
minor irregularity which is totally misconceived and contrary to the
statutory scheme of the Act.
21. The counsel for the respondent no.5, in order to substantiate the
contention canvassed by him, placed reliance on the decision of a
Division Bench of this Court in Imaging Association v. Union of India
and Ors. in Writ Petition No.797 of 2011 decided on 26.8.2011. Reliance
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is also placed by the learned counsel on the decision of a Full Bench of
this Court in Dr.(Mrs.) Suhasini Umesh Karanjikar v. Kolhapur
Municipal Corporation (2011 (4) All M.R. 804). The learned counsel
further placed reliance on the decision of a Division Bench of this Court
in Radiological & Imaging Association (State Chapter), through
Dr.Jignesh Gokuldas Thakker v. Union of India & Ors. (Writ Petition (L)
No.1939 of 2011) decided on 17.11.2011.
22. In this Writ Petition, a Civil Application, being Civil Application
No.251 of 2012, has been filed by the applicant for intervention. Heard
Mr.Warunjikar, the learned counsel for the applicant in the Civil
Application. Civil Application No.251 of 2012 for intervention is
allowed.
23. Mr.Warunjikar, the learned counsel for the applicant in Civil
Application No.251 of 2012 for intervention, has submitted that the
applicant adopts the contentions canvassed by the respondents and prays
that the Writ Petition be dismissed.
CONSIDERATION AND CONCLUSIONS:
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24. Considered the contentions canvassed by the learned respective
counsel for the petitioner as well as the respondents, perused the relevant
provisions of the Act and the Rules as well as the decisions cited by the
parties. The petitioner, in this petition, inter alia, challenged the order
dated 21.6.2011 passed by the appropriate authority-cum-Medical Officer
of Navi Mumbai Municipal Corporation as well as the order dated
9.11.2011 passed by the appellate authority.
25. The petitioner has challenged the action of sealing of sonography
machine/s and suspension of licence of the petitioner’s centre on the
following grounds:-
(i) The order of suspension of registration is passed by the
appropriate authority without following the procedure laid
down under section 20(1) and (2) of the Act.
(ii) That the powers conferred under section 20(3) of the Act is
an extraordinary power required to be exercised in an
exceptional circumstance and that too after recording
reasons. The impugned action is in violation of the
provisions of section 20(3) of the Act.
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(iii) It was mandatory to obtain advice of the Advisory
Committee before taking action of suspension of registration
under section 20 of the Act.
(iv) Suspension of licence cannot be for an indefinite period.
(v) The irregularities and discrepancies being of a minor nature
do not warrant suspension of registration and seizure of
ultrasonography machine.
26. Before we consider the issues raised by the petitioner, in the
light of the provisions of the Act, it will be expedient to take into
consideration the objectives of the Act. The Legislature enacted the Act
to provide for the prohibition of sex selection before or after conception,
and for regulation of pre-natal diagnostic techniques for the purposes of
detecting genetic abnormalities or metabolic disorders or chromosomal
abnormalities or certain congenital malformations or sex-linked disorders
and for the prevention of their misuse for sex determination leading to
female foeticide. The intention of the Legislature is to prohibit pre-natal
diagnostic techniques for determination of sex of the foetus leading to
female foeticide since abuse of such techniques is discriminatory against
the female sex and affects the dignity and status of women. The intention
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behind the legislation is to regulate the use of such techniques and to
provide deterrent punishment to stop such inhuman act. Clause (2) of the
Statement of Objects and Reasons of the Act reads thus:-
“(2) The Bill, inter alia, provides for:–
(i) prohibition of the misuse of pre-natal diagnostic
techniques for determination of sex of foetus, leading
to female foeticide;
(ii) prohibition of advertisement of pre-natal
diagnostic techniques for detection or determination of
sex;
(iii) permission and regulation of the use of pre-natal
diagnostic techniques for the purpose of detection of
specific genetic abnormalities or disorders;
(iv) permitting the use of such techniques only under
certain conditions by the registered institutions; and
(v) punishment for violation of the provisions of the
proposed legislation.”
27. It will be appropriate to consider section 4 of the Act in the light
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of the Statement of Objects and Reasons of the Act. Section 4 provides
regulation of pre-natal diagnostic techniques. Sub-section (1)
contemplates that no place including a registered Genetic Counselling
Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to
be used by any person for conducting pre-natal diagnostic techniques
except for the purposes specified in sub-section (2) and after satisfying
any of the conditions specified in sub-section (3).
28. Sub-section (2) of section 4 contemplates that no pre-natal
diagnostic techniques shall be conducted except for the purposes of
detection of any of the following abnormalities, namely:–
“(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) heamoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may
be specified by the Central Supervisory
Board.”
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Whereas sub-section (3) of section 4 mandates that no pre-natal
diagnostic techniques shall be used or conducted unless the person
qualified to do so is satisfied for reasons to be recorded in writing that any
of the following conditions are fulfilled, namely:-
“(i) age of the pregnant woman is above thirty-five
years;
(ii) the pregnant woman has undergone two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as, drugs, radiation,
infection or chemicals;
(iv) the pregnant woman or her spouse has a family
history of mental retardation or physical deformities
such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the
Board.”
29. Proviso to sub-section (3) further stipulates that the person
conducting ultrasonography on a pregnant woman shall keep complete
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record thereof in the clinic in such manner, as may be prescribed, and any
deficiency or inaccuracy found therein shall amount to contravention of
provisions of section 5 or section 6 unless contrary is proved by the
person conducting such ultrasonography. The scheme of section 4 clearly
demonstrates that the person qualified (Doctor) can conduct pre-natal
diagnostic techniques except for the purposes specified in sub-section (2)
of section 4 provided he/she is satisfied for the reasons to be recorded in
writing that any of the conditions mentioned in sub-section (3) of section
4 are fulfilled. The proviso to sub-section (3) makes it mandatory for the
Doctor conducting ultrasonography on a pregnant woman to keep
complete record thereof in the clinic in such manner as prescribed under
the provisions of the Act and the Rules particularly as provided under rule
9 of the Rules of 1996 which provides the procedure and manner
pertaining to the maintenance and preservation of records of Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound
Clinic and Imaging Centres, etc. Considering the object of the Act, the
maintenance and preservation of records as per rule 9 is an important
statutory duty cast upon the person (Doctor) conducting ultrasonography
on a pregnant woman and, therefore, any deficiency or inaccuracy found
in this regard amounts to contravention of the provisions of section 5 or 6
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of the Act unless contrary is proved by the person (Doctor) conducting
such ultrasonography. The safeguards provided in section 4 of the Act are
with the object to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female foeticide and,
therefore, the person (Doctor) conducting ultrasonography on a pregnant
woman is required to scrupulously follow every aspect of sub-sections
(1), (2) and (3) of section 4 as well as rule 9 of the Rules.
30. It is important to note that in order to prohibit abuse of these prenatal diagnostic techniques, the Legislature has incorporated a proviso to
sub-section (3) of section 4 of the Act which stipulates that any deficiency
or inaccuracy found in maintaining and preserving complete record in a
manner prescribed by the person conducting ultrasonography on a
pregnant woman shall amount to contravention of the provisions of
section 5 or section 6 unless contrary is proved by the person conducting
such ultrasonography. This provision, in our view, is completely
consistent with the objectives of the Act and has been introduced to
prohibit abuse of the pre-natal diagnostic techniques by the person
conducting ultrasonography on a pregnant woman. In the instant case, it
is not in dispute that the petitioner has admitted the existence of
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deficiency or inaccuracy in maintaining and preserving the complete
record which includes Form `F’ and, therefore, as per the scheme of
section 4 of the Act, it amounts to an offence since the same is in
contravention of the provisions of sections 5 and 6 of the Act unless
contrary is proved by the petitioner who has conducted ultrasonography.
The contention of the petitioner that the discrepancy was of a minor
nature is wholly misconceived. Neither the provisions of the Act nor that
of the Rules provide or define minor or major deficiencies or
inaccuracies. On the other hand, it requires strict compliance of every
provision of the Act and the Rules. Considering the objectives to be
achieved, strict punishment is provided for violating the condition
prescribed under the Act. The contentions canvassed by the petitioner, in
this regard, therefore, are devoid of substance and are rejected.
31. Section 20 of the Act deals with the power of the appropriate
authority to cancel or suspend the registration of the Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic and procedure to be
followed by the appropriate authority in this regard. It is no doubt true
that sub-section (1) of section 20 requires the appropriate authority to
issue a notice to the Genetic Counselling Centre, Genetic Laboratory or
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Genetic Clinic, etc., to show cause why its registration should not be
suspended or cancelled for the reasons mentioned in the notice. Similarly,
sub-section (2) of section 20 contemplates giving of reasonable
opportunity of hearing to the Genetic Counselling Centre, etc., and
having regard to the advice of the Advisory Committee and if the
appropriate authority is satisfied that there is a breach of the provisions of
the Act or the Rules, it is legally entitled, without prejudice to take any
criminal action for such period as it may think fit, or cancel its
registration, as the case may be. Whereas sub-section (3) of section 20
starts with the non obstante clause and contemplates that if the
appropriate authority is of the opinion that it is necessary or expedient in
the larger public interest, it can suspend the registration of the Genetic
Counselling Centre without issuing any notice referred to in sub-section
(1), after recording reasons in writing for invoking this extraordinary
power. Sub-section (3) gives extraordinary power to the appropriate
authority in the larger public interest to be used in exceptional
circumstances when the appropriate authority is of the opinion that it is
necessary or expedient to do so and that too after recording reasons. In
the instant case, the impugned order dated 21.6.2011 passed by the
respondent no.3 in exercise of power under section 23 of the Act whereby
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the licence of the diagnostic centre of the petitioner came to be suspended
mentions reasons. Those are as follows:-
“During the inspection the following
discrepancies/irregularities were observed:
1. “F” form register is not kept in prescribed
form and not updated.
2. No signature of Radiologist and patients on
few F forms.
3. Monthly reports available without “F” forms
check list.
4. In month of June, 2011, total 37 F forms are
available, but in F Form register only 23
patients’ details were updated.
5. Referral slips are available but not in proper
form (no letter head and no. reg. no. of
referring doctor).”
32. It is, therefore, clear that in the instant case, the appropriate
authority, in fact, has given reasons for exercising extraordinary power
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under sub-section (3) of section 20 of the Act for suspending the licence
of the diagnostic centre of the petitioner and, therefore, the contentions
canvassed by the counsel for the petitioner, in this regard, are also
unfounded.
33. It is no doubt true that in the normal circumstances, as contended
by the counsel for the petitioner, the appropriate authority is expected to
issue show cause notice to the Genetic Counselling centre, etc., and is
also expected to give reasonable opportunity of hearing to the Genetic
Counselling Centre, Laboratory, etc., before taking action of suspending
or cancellation of registration of Genetic Counselling Centre, etc., having
regard to the advice of the Advisory Committee. However, the exercise
of power under sub-section (3) of section 20 of the Act by the appropriate
authority is warranted in exceptional situation and that too in order to
protect the larger public interest and after recording reasons and is not
guided by the procedure stipulated in sub-sections (1) and (2) of section
20 of the Act as per the scheme of sub-section (3) of section 20 of the
Act, hence, the contention canvassed by the learned counsel for the
petitioner that the impugned action is bad in law being violative of the
principles of natural justice is misconceived for the reasons recorded
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hereinabove.
34. Another contention canvassed by the counsel for the petitioner that
the impugned action suspending the licence of the diagnostic clinic of the
petitioner for an indefinite period is impermissible which virtually
amounts to cancellation of the licence of the Genetic Centre of the
petitioner is also misconceived since the suspension of licence of the
petitioner is only till decision in the criminal case is taken by the Criminal
Court.
35. We want to reiterate the scheme of the relevant provisions of the
Act which are attracted in the present case. Section 4 deals with
regulation of pre-natal diagnostic techniques whereas section 17(4) deals
with the functions to be performed by the Appropriate Authority. Clause
(a) of sub-section (4) of section 17 demonstrates that one of the functions
required to be performed by the Appropriate Authority is to grant,
suspend or cancel registration of a Genetic Counselling Centre, Genetic
Laboratory and Genetic Clinic. Sub-sections (1), (2) and (3) of section 20
deal with the procedure to be followed by the Appropriate Authority
while cancelling or suspending the registration of Genetic Counselling
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Centre, Laboratory or Clinic. In the normal course, the Appropriate
Authority is requited to follow the procedure stipulated under subsections (1) and (2) of section 20 of the Act before cancelling or
suspending the registration whereas sub-section (3) of section 20 clothes
the Appropriate Authority with extraordinary powers to be used in an
exceptional situation when the Appropriate Authority is of the opinion
that it is expedient in public interest to suspend the registration of the
Genetic Centre after recording reasons therefor, without issuing any
notice referred to in sub-section (1). Similarly, rule 9 of the Rules of
1996 deals with the manner in which the record Genetic Counselling
Centre is required to be maintained and preserved. The proviso to subsection (3) of section 4 provides that the person conducting
ultrasonography on a pregnant woman shall keep complete record
thereof in the clinic in the manner prescribed under rule 9 of the Rules
and any deficiency or inaccuracy found in this regard shall amount to
contravention of the provisions of section 5 or section 6 and would
amount to an offence unless contrary is proved by the person conducting
such ultrasonography.
36. The relevant observations made by the Full Bench of this Court in
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Dr.(Mrs.) Suhasini Umesh Karanjkar, through her Constituted Attorney
Dr. Umesh Murlidhar Karanjkar (supra) read thus:-
“24. A bare perusal of the aforesaid statutory
provisions, both in the Act and in the Rules framed
thereunder, makes it abundantly clear that an ultra
sonography test on a pregnant woman is considered
to be an important part of a pre-natal diagnostic test
or pre-natal diagnostic procedure, which cannot be
conducted except for the purpose of Section 4(2).
The person conducting ultra sonography on a
pregnant woman has to maintain a complete record
thereof in the manner prescribed in the Rules and a
deficiency or inaccuracy in maintaining such records
would amount to an offence, unless the person
conducting such sonography is able to show that
there was no deficiency or inaccuracy.
………………………….”
The above observations made by the Full Bench clearly demonstrate that
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the ultrasonography test on a pregnant woman is an important part of prenatal diagnostic test which cannot be conducted except for the purpose of
section 4(2) of the Act and the person conducting such ultrasonography
test has to maintain complete record thereof in the manner prescribed in
the Rules and any deficiency or inaccuracy in maintaining such records
would amount to an offence unless the person conducting such
ultrasonography is able to show that there was no deficiency or
inaccuracy. The law declared by the Full Bench is squarely applicable in
the present case and the issue involved stands covered by the said
decision. However, the decision of the learned single Judge of this Court
sitting at Aurangabad Bench rendered on 3.5.2012 in Criminal
Application No.757 of 2012 in view of the decision of the Full Bench, in
our view, does not further the case of the petitioner. Similarly, the
decision cited by the counsel for the petitioner dated 22.3.2012 rendered
in Writ Petition No.9573 of 2011 by the learned single Judge of this Court
sitting at Aurangabad Bench also does not help the petitioner.
37. The observations made by the Division Bench in Radiological &
Imaging Association (State Chapter-Nalna), through Dr.Jignesh Gokuldas
Thakker v. Union of India & Ors. (Writ Petition No.797 of 201) in
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paragraphs 25 and 26 read thus:-
“25. A bare perusal of the aforesaid statutory
provisions, both in the Act and in the Rules framed
thereunder, makes it abundantly clear that an ultra
sonography test on a pregnant woman is considered
to be an important part of a pre-natal diagnostic test
or pre-natal diagnostic procedure, which cannot be
conducted except for the purpose of section 4(2).
The person conducting ultra sonography on a
pregnant woman has to maintain a complete record
thereof in the manner prescribed in the Rules and a
deficiency or inaccuracy in maintaining such records
would amount to an offence, unless the person
conducting such sonography is able to shows that
there was no deficiency or inaccuracy.
26. In our opinion, the aforesaid provisions of the
Act and the Rules make it amply clear that the
persons running the sonography clinic/sonography
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centre etc. are required to store, maintain and
preserve the complete records including the
sonography plates or slides for a period of two years
from the date of pre-natal diagnostic techniques
procedure/test and that in the event of legal
proceedings, such records, letter etc. have to be
preserved in light of the legal proceedings. The
sonography clinic is also required to send a complete
report in respect of a pre-conception of pregnancy
related procedure for technical procedure or test
conducted by them in respect of each month for the
perusal of the concerned appropriate authority. As
per Rule 11(1) the Clinic is also duty bound to afford
all reasonable facilities for inspection of equipments
and records to the appropriate authority or any other
person authorized by the appropriate authority and
such authority/authorized officer has also been
vested with the power to search, seal and seize such
equipments/records. All these provisions are
required to be read with the express power conferred
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by section 17(4) of the Act which empowers the
appropriate authority to take immediate action in
case of breach of the provisions of the Act or the
Rules.”
38. Rule 9(1) requires that every Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, etc., shall maintain a register showing, in
serial order, the names and addresses of the men or women given genetic
counselling, subjected to pre-natal diagnostic procedure or pre-natal
diagnostic tests, the names of their spouse or father and the date on which
they first reported for such counselling, procedure or test. Sub-rule (4) of
rule 9 stipulates the record to be maintained by every Genetic Clinic, in
respect of each man or woman subjected to any pre-natal diagnostic
procedure/technique/test, shall be as specified in Form `F’. In the instant
case, the petitioner has admitted existence of discrepancies, irregularities
in maintenance of Form `F’ which has undoubtedly resulted in causing
deficiency or inaccuracy in maintaining and preserving the record and,
therefore, as per proviso to sub-section (3) of section 4 of the Act,
resulted in contravention the provisions of section 5 or 6 of the Act and
would amount to an offence, unless contrary is proved by the petitioner
who has conducted such ultrasonography test.
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39. The observations made by the Full Bench as well as the Division
Benches of this Court referred to hereinabove conclude all the challenges
raised by the petitioner in the present petition. The observations made by
the Division Bench in Malpani Infertility Clinic Pvt. Ltd. & others (supra)
clearly show that the Division Bench in view of the fact that prosecution
was launched against the petitioner in the said case, it was held to be
sufficient reason for the authorities to take recourse to sub-section (3) of
section 20 of the Act. In the instant case, the petitioner having admitted
the existence of deficiency and inaccuracy in keeping and maintaining the
record including Form `F’ has resulted in contravention of the provisions
contained in section 5 or 6 and, therefore, would amount to an offence
and can be treated to be sufficient reason for the appropriate authority to
invoke the provisions of sub-section (3) of section 20 of the Act in the
larger public interest and, therefore, the action of suspension of
registration of the Genetic Centre of the petitioner is sustainable in law till
such time contrary is proved by the petitioner. Similarly, in the instant
case also, the prosecution has been launched against the petitioner, though
at a subsequent stage, which is pending before the competent criminal
Court. The contentions canvassed by the learned counsel for the
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petitioner, in this regard, therefore, suffer from lack of merit and,
therefore, the same are rejected.
40. In view of the above settled legal position, the impugned orders
passed by the Appropriate Authorities are neither arbitrary nor violative of
Article 14 of the Constitution and are sustainable in law and it is for the
petitioner to prove before the criminal Court that there was no deficiency
or inaccuracy in maintaining and preserving the complete record of the
clinic. The petition suffers from lack of merit and the same is dismissed.
(D. D. SINHA, J.)
(SMT.V.K.TAHILRAMANI,J.)
Suundaresan
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7896 OF 2010
ALONGWITH
CIVIL APPLICATION NO.512 OF 2011
Dr. (Mrs.) Suhasini Umesh Karanjkar,
Aged 36 years, Occupation Medical Profession,
R/o. 741/1, Plot No.14, Shreekrishna Colony,
Main road, Sambhaji Nagar, Kolhapur,
Through her Constituted Attorney
Dr. Umesh Murlidhar Karanjkar,
Aged 40 years, Occ. Medical Profession,
Residing at above address. …Petitioner.
Vs.
1 Kolhapur Municipal Corporation
through its Health Officer and
Appropriate Authorities,
Having Office at Municipal Corporation
Building, Shivaji Chowk, Kolhapur.
2 The District Collector, Kolhapur
having office at Nagala Park, Kolhapur.
…Respondents.
Mr. Sagar A. Mane i/by N.V.Bandiwadekar for the Petitioner.
Mr. S.R.Nargolkar, Additional Government Pleader for Respondent No.2.
Mr. Uday Warunjikar for intervenors in C.A.No.512 of 2011.
CORAM : MOHIT S. SHAH, C. J.,
DR. D.Y. CHANDRACHUD, J.
AND D.G. KARNIK, J.
JUDGMENT RESERVED ON 19TH APRIL, 2011
JUDGMENT DECLARED ON 6th JUNE, 2011
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JUDGMENT (Per Chief Justice)
This reference made by an order dated 23 December, 2010
of a Division Bench of this Court raises the following questions :-
1) Whether the power to search, seize and seal “any
other material object” conferred by Section 30 of the Preconception and pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 includes the
power to search, seize and seal an ultrasound machine or
any other machine or equipment, if the Appropriate
Authority or Authorized Officer has reason to believe that it
may furnish evidence of the commission of an offence
punishable under the Act?
2) Whether the decision of a Division Bench of this
Court at Aurangabad Bench in Dadasaheb (Dr.) s/o
Popatrao Tarte Vs. State of Maharashtra and others, 2010
(2) Mah. L.J. 110 taking the view that Section 30 does not
confer such power in respect of an ultrasound machine
lays down the correct law?
2. The brief facts leading to filing of this writ petition are not in
dispute. The petitioner is a Gynecologist running a Maternity and
Surgical Hospital at Kolhapur with an ultrasound machine. The hospital
has been registered as a Genetic clinic/Ultrasound Clinic under the
provisions of the Pre-conception and Pre-natal Diagnostic Techniques
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Act, 1994 “(the Act)” and the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996 “(the Rules)”.
Registration was granted by the competent authority on 3 September
2003 and has been extended from time to time till 31 March 2013. On 22
January 2009, the Appropriate Authority at Kolhapur along with his
officers went to the petitioner’s clinic in view of a complaint that the
petitioner was using the ultra sound machine for conducting sonography
on pregnant women for determination of sex of foetus. The Appropriate
Authority seized the record of the hospital and the ultrasound machine
and put his seal on the record and the ultrasound machine after drawing a
panchanama in presence of the petitioner’s husband, who is also a
Gynecologist.
On 17 February 2009, the Appropriate Authority issued a
notice to the petitioner to show cause why the registration granted in her
favour should not be suspended. The petitioner sent a reply dated 5
March 2009. The Appropriate Authority passed order on 7 March 2009
suspending the registration granted to the petitioner under the provisions
of the Act and the rules. Aggrieved by the order the petitioner preferred
an appeal before the District Collector, Kolhapur under Section 27 of the
Act, on 31 August 2009.
3. In the present petition filed on 14 September 2010, the
petitioner has challenged the action of the Appropriate Authority seizing
and sealing the ultrasound machine on the ground that the Appropriate
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Authority and the Authorized Officer does not have any power to seize
and seal an ultrasound machine. At the time of the preliminary hearing of
this petition, counsel for the petitioner placed reliance on the decision of
a Division Bench of this Court in 1Dadasaheb Vs. State of
Maharashtra, in support of the contention that the Appropriate
Authority has no power to seize or seal an ultrasound sonography
machine. The following observations are contained in paragraph 12 of
the judgment:-
“On clear reading of the provisions under Section 30
of the Act of 1994 as well as the provisions under Rules of
1996 make it clear that the Appropriate Authority is
empowered to seize the documents, record, register, book,
pamphlet, advertisement or any other material object found
in the Genetic Clinic, Genetic Centre, or the General
Laboratory. But on clear and bare reading of the provision
under the Act as well as the rules it nowhere provides that
the authority is empowered to seize the machinery/the
machine used in the Genetic Clinic. If it is so, the authority is
not empowered to seize the Ultra Sonography Machine
under the provisions of Law. In the premise, the case of the
petitioner is covered under the citation as the Rule given by
the Principal Bench of this Court in Writ Petition No.
7973/2008 is applicable to the present case. In the premises,
we set aside the order of the seizure of the ultra sonography
machine and direct to return the seized ultra sonography
machine to the petitioner.”
(emphasis supplied)
4. While prima facie disagreeing with the above view, the
Division Bench making the reference has expressed a tentative opinion
1 2010(2) Mah.L.J. 110
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that the provisions of Section 30 of the Act and Rule 12 of the Rules
are widely worded in order to provide for the power to seize and seal
not only registers and documents but also “any other material object”
found in a Genetic Counselling Centre, Genetic Laboratory/Genetic
clinic or any other place where an offence under the Act has been or is
being committed. Hence, the present reference which involves
determination of the questions set out in the opening paragraph of this
judgment.
While making this reference, the Division Bench had also
directed the District Collector i.e. Appellate Authority to hear and decide
the petitioner’s appeal expeditiously.
5. The learned counsel for the petitioner placed reliance upon
the aforesaid decision of this Court and submitted that Section-30 of the
Act does not define “any other material object” and therefore, the
definition of “material object” in Explanation (2) to Rule 12 laying
down the procedure for search and seizure as “including machines and
equipments” cannot empower the Appropriate Authority under Section
30 to seize and seal an ultrasound machine. It was submitted that the
substantive power conferred by Section 30 of the Act cannot be enlarged
by a definition in the Rules made under the Act.
6. On the other hand, Mr. Nargolkar, learned Additional
Government Pleader has submitted that Explanation (2) to Rule 12
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expressly defines “material object” as including “machines and
equipments” and therefore, there is no scope whatsoever for any
controversy. It is further submitted that the Rules of 1996 were framed
by the Central Government under the provisions of Section 32 read with
Section 30 and were laid before each House of Parliament under
Section 34. In absence of any modification made by Parliament in Rule
12, the definition of “material object” as including machines and
equipments must be treated as having received legislative acceptance by
Parliament. It is further submitted that even otherwise, on an
examination of the scheme of the Act and the Rules, the Appropriate
Authority and the Authorized Officer do have the power or authority to
search, seize and seal ultrasound machines or other equipments used in
criminal acts of sex determination for sex selection in contravention of
the Act.
7. Before dealing with the rival submissions, it is necessary to
refer to the relevant provisions of the Act and the Rules and also to the
Statement of Objects & Reasons particularly, for Amendment Act 14 of
2003.
8. The Act and the Rules framed there under came into force
on 1 January 1996. The Preamble to the Act provides that it is an Act to
provide for the prohibition of sex selection, before or after conception
and regulation of the use of pre-natal diagnostic techniques for the
purpose of detecting genetic abnormalities or metabolic disorders or
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chromosomal abnormalities or certain congenital mal-formations or sex
linked disorders and for the prevention of their misuse for sex
determination leading to female foeticide and, for matters connected
herewith or incidental thereto.
(emphasis supplied)
9. Section 3 of the Act provides for regulation of Genetic
Counselling Centres, Genetic Laboratories and Genetic clinics through
the requirement of registration under the Act. Section 4 provides that no
such place shall be used for conducting pre-natal diagnostic techniques
except for the purposes specified in Clause (2) of the said section and
requires a person conducting such techniques such as ultrasound
sonography on pregnant women to keep a complete record in the manner
prescribed in the Rules..
Section 6 provides that no pre-natal diagnostic techniques
including sonography can be conducted for the purpose of determining
the sex of a foetus and that no person shall conduct or cause to be
conducted any pre-natal diagnostic techniques including ultra
sonography for the purpose of determining the sex of a foetus.
10. The Act came to be amended by Amendment Act 14 of
2003. The Statement of Objects and Reasons to the Amendment Act,
inter alia, read as under :-
“Amendment Act 14 of 2003 – Statement of
Objects and Reasons.- The Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act,
1994 seeks to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female
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foeticide. During recent years, certain inadequacies and
practical difficulties in the administration of the said Act
have come to the notice of the Government, which has
necessitated amendments in the said Act.
2. The pre-natal diagnostic techniques like
amniocentesis and sonography are useful for the detection
of genetic or chromosomal disorders or congenital
malformations or sex linked disorders, etc. However, the
amniocentesis and sonography are being used on a large
scale to detect the sex of the foetus and to terminate the
pregnancy of the unborn child, if found to be female.
Techniques are also being developed to select the sex or
child before conception. These practices and techniques are
considered discriminatory to the female sex and not
conducive to the dignity of women.
3. The proliferation of the technologies mentioned above
may, in future, precipitate a catastrophe in the form of
severe imbalance in male female ratio. The State is also duty
bound to intervene in such matters to uphold the welfare of
the society, especially of the women and children. It is,
therefore, necessary to enact and implement in letter and
spirit a legislation to ban the pre conception sex selection
techniques and the misuse of pre-natal diagnostic techniques
for sex selective abortions and to provide for the regulation
of such abortions. Such a law is also needed to uphold
medical ethics and initiate the process of regulation of
medical technology in the larger interests of the society.
4. Accordingly, it is proposed to amend the aforesaid Act
with a view to banning the use of both sex selection
techniques prior to conception as well as the misuse of prenatal diagnostic techniques for sex selective abortions and
to regulate such techniques with a view to ensuring their
scientific use for which they are intended.”
(emphasis supplied)
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11. Some important amendments made by the said Amendment
Act 14 of 2003, have a bearing on the questions under consideration.
Having realized that ultra sonography on a pregnant woman with an
ultrasound machine is an very important part of the sex determination
test and procedure, which is being misused, Parliament has made a
specific reference to sonography and ultrasound machine and other
machines in some of the newly inserted sections and also by amendments
to existing provisions.
12. The term “genetic clinic” is defined in Section 2(d) as “any
clinic or place by whatsoever may be called which is used for
conducting pre natal diagnostic procedures”. The Explanation thereto
provides that genetic clinic even includes a vehicle, where ultrasound
machine or imaging machine or scanner or other equipment capable of
determining sex of the foetus is used. Genetic laboratory is defined by
Section 2 (e) as including a place where facilities are provided for
conducting analysis or test samples received from a genetic clinic or pre
natal diagnostic tests. Explanation thereto provides that “genetic
laboratory” includes a place where an ultrasound machine capable of
determining sex of foetus, is used. Both these explanations provide that
the definitions would even include a portable equipment with a potential
for detection of sex during pregnancy or selection of sex before
conception.
A pre natal diagnostic test is defined in Section 2(k) as
“ultrasonography or any test or analysis of amniotic fluid…….. or fluid of
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pregnant woman or conception or analysis….blood or any other tissue or
blood of the pregnant woman or conceptus conducted to detect …..
genetic ….. or sex linked disease”.
Section 2(i) defines “pre-natal diagnostic procedures as
“all gynaecological or obstetrical or medical procedures such as ultra
sonography, ……… of a woman before or after conception for being sent
to genetic laboratory or genetic clinic for conducting any type of
analysis or pre natal diagnostic tests for selection of sex before or after
conception.
Section-2) (j) defines “pre-natal diagnostic techniques” as
including all pre natal diagnostic procedures and pre natal diagnostic
tests.
13. Section 3B provides as follows :
“3-B- Prohibition on sale of ultrasound machine, etc., to
persons, laboratories, clinics, etc., not registered under the Act- No
person shall sell any ultrasound machine or imaging machine or scanner
or any other equipment capable of detecting sex of foetus to any Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic or any other
person not registered under the Act”.
14. Amended section 4 now specifically provides that the person
conducting ultra sonography on a pregnant woman has to maintain the
complete record thereof in the manner prescribed in the Rules and any
deficiency or inaccuracy found therein amounts to contravention of
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Section 5 and 6, unless contrary is proved by the person conducting such
ultra sonography.
Section 6 also specifically prohibits ‘any genetic clinic…. or
any person’ from conducting any pre natal diagnostic techniques
including ultra sonography for the purpose of detecting sex of foetus.
15. Sub Section (1) of Section 18 prior to amendment by Act 14
of 2003 read as under:-
(1) No person shall open any Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic after the
commencement of this Act unless such Centre, Laboratory
of Clinic is duly registered separately or jointly under this
Act.
After amendment in 2003, the provision reads as under :
No person shall open any Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic, including clinic,
laboratory or centre having ultrasound or imaging machine
or scanner or any other technology capable of undertaking
determination of sex of foetus and sex selection, or render
services to any of them, after the commencement of the Prenatal Diagnostic Techniques [Regulation and Prevention of
Misuse) Amendment Act, 2002 unless such centre,
laboratory or clinic is duly registered under the Act.
(emphasis supplied)
16 Section 22 provides for prohibition of advertisement relating
pre conception and pre natal determination of sex and punishment for
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contravention and Section 23 provides that any medicval geneticist,
gynaecologist, registered medical practitioner or any person who owning
a Genetic Centre, etc., or is employed to render his professional or
technical services to or at such a centre, and who contravenes any of the
provisions of this Act or rules made thereunder shall be punishable with
imprisonment for a period upto three years and with fine which may
extend to ten thousand rupees, which may extend to five years and with
fine which may extend to fifty thousand rupees, in case of subsequent
conviction.
Sub section (2) of Section 23 even provides that the name of
the errant registered medical practitioner shall be reported by the
Appropriate Authority to the State Medical Council concerned for taking
necessary action.
17. Section 17(4) of the Act, even prior to the Amendment Act
of 2003, provided that the Appropriate Authority shall perform various
functions including the following :-
(c) to investigate complaints of breach of the provisions of
this Act or the rules made thereunder and take
immediate action;” and
(d) any other matter which may be prescribed.
Section 17-A inserted by the Amendment Act, 2003 confers
additional powers on the Appropriate Authority including the power in
respect of :
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(c) issuing search warrant for any place suspected to be
indulging in sex selection techniques or prenatal sex
determination ; and
(d) any other matter which may be prescribed.
18. Section 29 provides for maintenance of records and
preservation of such record for a period of two years till the final disposal
of proceeding under the Act. Section 30 of the Act confers power to
search and seize records. Prior to its amendment in 2003, Section 30 did
not provide for any power to seal, though explanation (3) to Rule 12 of
the Rules provides that “seize” would include “seal”, Section 30 as
amended by Act 14 of 2003 with effect from 14 February 2003
specifically confers power not only to seize but also “to seal” any record,
register documents, books, pamphlet, advertisement or “any other
material object” found therein at any Genetic Centre etc., in the following
words:-
30. Power to search and seize records, etc. –
(1) If the Appropriate Authority has reason to believe that an
offence under this Act has been or is being committed at any
Genetic Counselling Centre, Genetic Laboratory or Genetic
Clinic or any other place, such Authority or any officer
authorised thereof in this behalf may, subject to such rules as
may be prescribed, enter and search at all reasonable times
with such assistance, if any, as such authority or officer
considers necessary, such Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic or any other place and
examine any record, register, document, book, pamphlet,
advertisement or any other material object found therein and
seize and seal the same if such Authority or officer has
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reason to believe that it may furnish evidence of the
commission of an office punishable under this Act.
(2) ……………………..
(emphasis supplied)
Section 32 confers upon the Central Government powers to
make rules for carrying out the provisions of the Act, including;
(xiii) the manner in which the seizure of documents,
records, objects, etc., shall be made and the manner in
which seized list shall be prepared and delivered to the
person from whose custody such documents, records or
objects were seized under sub section (1) of Section 30.
19. Section 34 provides that every rule and every regulation
made under the Act shall be laid as soon as may be after it is made,
before each House of Parliament while it is in session, for a total period
of thirty days and if both houses agree in making any modification in
the rule or regulation or both Houses agree that the rule and regulation
should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may be.
20. In exercise of the aforesaid powers under Section 32 read
with Section 30 the Central Government has made the Pre conception
and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection)
Rules 1996.
21. Rule 9 provides for maintenance and preservation of records
and sub-rule (6) provides for particulars of the manner in which the
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records are to be maintained and also provides that all case related
records, forms of consent, laboratory results, microscopic pictures,
sonographic plates or slides, recommendations and letters shall be
preserved by Genetic Centre etc., for a period of two years from the date
of completion of counseling, pre- natal diagnostic procedure or pre-natal
diagnostic test, as the case may be. In the event of any legal proceedings,
the records etc., shall be preserved till final disposal of the legal
proceedings.
Rule 9 (7) further provides that in case the Genetic Clinic
etc. maintains records on computer or other electronic equipment, a
printed copy of the record shall be taken and preserved after
authentication by a person responsible for such record and further that
such centre is required to send a complete report in respect of all pre
conception or pregnancy related procedures/techniques /tests conducted
by them in respect of each month by fifth day of the following month to
the concerned Appropriate Authority.
22. Sub rule (1) of Rule 11 provides that Every Genetic Centre,
Ultrasound Clinic etc., or any other place where any of the machines or
equipments capable or performing any procedure, techniques or test
capable of pre- natal determination of sex or selection of sex before or
after conception is used, shall afford all reasonable facilities for
inspection of the place, equipment and records to the Appropriate
Authority or to any other person authorized by the Appropriate Authority.
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Sub rule (2) of Section 11 reads as under:
(2) The Appropriate Authority or the officer authorized by
it may seal and seize any ultrasound machine, scanner
or any other equipment, capable of detecting sex of
foetus, used by any organization if the organization has
not got itself registered under the Act.
These machines of the organizations may be released if
such organization pays penalty equal to five times of
the registration fee to the Appropriate Authority
concerned and gives an understanding that it shall not
undertake detection of sex of foetus or selection of sex
before or after conception.
23. Rule 12 lays down the procedure for search and seizure as
under :
12. The Appropriate Authority or any officer authorized in
this behalf may enter and search at all reasonable
times any Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Imaging Centre or
Ultrasound Clinic in the presence of two or more
independent witnesses, for the purposes of search and
examination of any record, register, document, book,
pamphlet, advertisement, or any other material object
found therein and seal and seize the same if there is
reason to believe that it may furnish evidence of
commission of an offence punishable under the Act.
Explanation-In these rules-
(1) “Genetic Laboratory/Genetic Clinic/Genetic
Counselling Centre” would include an ultrasound
centre/imaging centre/nursing home/hospital/institute or
any other place, by whatever name called, where any of
the machines or equipments capable of selection of sex
before or after conception or performing any procedure
technique or test for pre-natal detection of sex of foetus,
is used;
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(2) “material object” would include records, machines
and equipments; and
(3) “seize” and “seizure” would include “seal” and
“sealing” respectively.
(emphasis supplied)
24. A bare perusal of the aforesaid statutory provisions, both in
the Act and in the Rules framed thereunder, makes it abundantly clear
that an ultra sonography test on a pregnant woman is considered to be an
important part of a pre-natal diagnostic test or pre-natal diagnostic
procedure, which cannot be conducted except for the purpose of section
4(2). The person conducting ultra sonography on a pregnant woman has
to maintain a complete record thereof in the manner prescribed in the
Rules and a deficiency or inaccuracy in maintaining such records would
amount to an offence, unless the person conducting such sonography is
able to show that there was no deficiency or inaccuracy. The fact that
section 3-B inserted by Amendment Act 14 of 2003 specifically prohibits
even sale of an ultra sound machine or other machines capable of
detecting sex of foetus to any genetic clinic or any other place or to any
person not registered under the Act, itself should be sufficient to hold that
in the scheme of the Act, Parliament has considered an ultrasound
machine as a “material object” because it is capable of detecting sex of a
foetus.
25. While section 17-A(c) empowers the appropriate authority
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natal sex determination with an ultra sonography test on a pregnant
woman, apart from section 30, there is no other section in the Act which
confers powers upon the appropriate authority or authorised officer to
seize or seal a “material object” like an ultrasound machine at any place
suspected to be indulging in pre-natal diagnostic techniques such as an
ultra sonography test on a pregnant woman for determination of sex.
26. Now, if the petitioner’s contentions were to be accepted, the
appropriate authority or the authorised officer will not have any power to
seize or seal such an ultra sound machine sold by a person to an
unregistered clinic. The Legislature which has condemned misuse of
pre-natal diagnostic technique (such as ultra sonography on a pregnant
woman) for sex determination of foetus leading to female foeticide, and
made it a criminal offence punishable with imprisonment upto three
years, could not have intended that while a seller of an ultra sound
machine to an unregistered clinic should be prosecuted under section 23
for contravention of section 3-B of the Act, the ultra sound machine
should be allowed to be continued to be used by or on behalf of an
unregistered purchaser. But for section 30 of the Act, no action can be
taken by the appropriate authority or authorised officer in respect of the
ultra sound machine being used for sonography on a pregnant woman for
the purpose of determination of sex of the foetus, which may ultimately
result into termination of pregnancy of unborn child, if found to be
female- as stated in so many words in the Statement of Objects and
Reasons to the Amendment Act 14 of 2003. That is why Parliament,
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which had already conferred on the appropriate authority/ authorised
officer the power to “search and seize” any material object, also
conferred the further power to “seal” such a material object.
27. In our opinion, the above analysis of the provisions of the
Act is sufficient to hold that the expression “material object” for which
the power to seize and seal is conferred upon the appropriate authority/
authorised officer, includes ultra sound machines, other machines and
equipment which are used for pre-natal diagnostic techniques or sex
selection techniques.
28. Further, the provisions of Rule 11, particularly sub-rule (2)
thereof, conferring power to seal and seize ultra sound machines or other
machines or equipments capable of detecting sex of foetus, sold to
unregistered purchasers and explanation (2) to Rule 12 (material object
would include records, machines and equipments) make it more than
clear that the expression “any other material object” in section 30
includes ultrasound machines, other machines and equipment capable of
detecting sex of foetus or capable of use for sex selection.
29. It is necessary to note that the Rules made under Section 32
of the Act are required by Section 34 to be laid before each House of
Parliament and if no modification is made within a period of 30 days
while Parliament is in session, the rules continue to have effect as made.
If any modification is made, then the Rules continue to have effect
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subject to the modification . If both the Houses agree that a rule should
not be made, the rule shall be of no effect from the date of annulment.
It is nobody’s case that the Rules have not been laid before
Parliament or after having been laid before Parliament, Parliament
resolved to delete or modify explanation (2) to Rule 12.
It must therefore, be held that the Rules have been accepted
by Parliament without any modification of explanation (2) to Rule 12.
30. In a catena of decisions (Tata Engineering and Locomotive
Company Ltd Vs. Gram Panchayat, Pimpri Waghere2, P. Kasilingam Vs.
P.S.G. College of Technology,3 Pali Devi Vs. Chairman, Managing
Committee,4 (para 8), Gujrat Pradesh Panchayat Parishad Vs. State of
Gujarat5 (para 39) the Supreme Court has held that “rules made under a
statute are a legitimate aid to construction of the statute as
contemporanea expositio.”. This is particularly so when Section 34 of the
Act requires Rules made under Section 32 of the Act to be laid before
each House of Parliament within a period of 30 days while Parliament is
in session.
31. We may also refer to the rule of “ejusdem generis” invoked
by the learned counsel for the petitioner in support of the contention that
2 AIR1976 SC 2463 = (1976)4 SCC 177
3 AIR 1995 SC 1395 = 1995 Supp (2) SCC 348
4 AIR 1996 SC 1589 = 1996(3) SCC 296
5 2007(7) SCC 718
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“any other material object” in Section 30 must take colour from the
preceding words. It is submitted that since all the preceding words
pertain to paper such as record, register, document, books, pamphlet and
advertisement the words “any other material object” must be construed
in light of the preceding words.
32. In Smt. Leelavati Bai Vs. State of Bombay, 1957 SCR 721 :
AIR 1957 SC 521 (Para 11), the Apex Court laid down the following
principle:-
“The rule of ejusdem generis is intended to be applied where
general words have been used following particular and specific words of
the same nature on the established rule of construction that the
legislature presumed to use the general words in a restricted sense; that
is to say, as belonging to the same genus as the particular and specific
words. Such a restricted meaning has to be given to words of general
import only where the context of the whole scheme of legislation
requires it. But where the context and the object and mischief of the
enactment do not require such restricted meaning to be attached to words
of general import, it becomes the duty of the courts to give those words
their plain and ordinary meaning”.
(emphasis supplied)
33. As already discussed, on analysis of the scheme of the Act,
and having regard to the legislative object and the mischief sought to be
avoided, as referred to in the preamble to the Act and also in the
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Statement of Objects and Reasons to the Amendment Act 14 of 2003, we
have no manner of doubt in holding that the power under Section 30 to
seize and seal “any material object” includes power to seize and seal
ultrasound machines and other machines and equipments, capable of
selection of sex or capable of performing any procedure, technique or test
for pre natal detection of sex of foetus.
34. As regards the decision in Dadasaheb Vs. State of
Maharashtra (supra), we note that the Division Bench did not refer to
explanation (2) to Rule 12 of the PC and PNDT Rules, 1996, much less
to the legislative object and scheme of the Act discussed above .
Otherwise also, independently of reference to the said Rules, we are of
the view that on an analysis of the provisions of the Act, if any
ultrasound machine is used for conducting sonography on a pregnant
woman for a sex determination test or sex selection procedure in
contravention of the provisions of the Act, the power to seize and seal
any other material object, besides the record and documents, would
include the power to seize and seal ultrasound machines and other
machinery and equipment.
35. We may also refer to the interim order in Writ Petition No.
7973 of 2008 referred to in Paragraph 12 of the judgment in Dadasaheb’s
case. (Lata Mangeshkar Medical Foundation Vs. The Dy. Medical
Officer of Health Pune Municipal Corporation and others). That interim
order was passed in an all together different set of facts and
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circumstances. In that case, 8 ultrasound machines were seized from a
charitable hospital with 650 beds and 70 ICU beds and it was in that
background that a Division Bench of this Court (without holding that the
authority does not have the power to seize or seal ultra sound machines)
by an interim order, directed the authorities to return ultrasound machines
seized by the authorities on an allegation that “certain formalities were
not fulfilled whilst sonography on patients was conducted which raises
the suspicion that sonography might have been performed for detecting
sex of the foetus.”
An interim order cannot be treated as a precedent while
interpreting the provisions of a statue, and that too when the Division
Bench did not refer to Section 30 of the Act.
36. In view of the above discussion, our answers to the
questions framed for determination are as under:-
(i) The expression “any other material object” in Section 30
of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994
includes ultrasound machines, other machines and
equipment capable of aiding or assisting in selection of
sex, or capable of performing any procedure, technique
or test for pre natal detection of sex of foetus.
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(ii) The decision of the Division Bench of this Court in
Dadasaheb Vs. State of Maharashtra 2010 (2) Mah.
L.J. 110, taking the contrary view does not lay down the
correct law and is hereby overruled.
37. Since the only controversy raised in this petition was about
interpretation of the expression “any other material object” in Section 30
of the Act, we may not be treated to have expressed any opinion on the
question as regards the circumstances in which the power under Section
30 is to be exercised.
38. As the seizure and sealing of the petitioner’s ultrasound
machine was challenged only on the ground that the Appropriate
Authority or Authorized Officer does not have power or authority to take
such action under Section 30 of the Act read with
Rule 12 and the petitioner’s contention has been repelled, we see no
merit in this petition. The petition is accordingly dismissed.
39. We place on record our appreciation for the valuable
assistance rendered by Mr. Sagar A. Mane, learned counsel for the
petitioner, Mr. S.R.Nargolkar, learned Additional Government Pleader for
respondent No.2 and Mr.Uday Warunjikar, learned counsel for the
intervenors.
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40. Before parting with the matter, we may refer to the
disturbing figures of the declining National child sex ratio over the last
five decades, to which our attention has been invited by the learned
Additional Government Pleader :-
Year No.of girls per 1000 boys
(in the age group 0-6 years)
1961 976
1971 965
1981 962
1991 945
2001 927
2011 914
In the State of Maharashtra also, the child sex ratio has gone down
from 913 in 2001 to 883 in 2011. It has gone down to as low as 801 in Beed
District. In Kolhapur District, where the offence in question is registered, it is
839.
41. We are also distressed by the fact that a number of cases for trial
of offences registered under the Act are pending in Courts of the Judicial
Magistrate First Class for a long period, sometimes upto 6 years and in a few
cases as long as 6 to 8 years. It is, therefore, directed that all cases under the Act
shall be taken up on top priority basis and the Metropolitan Magistrates. Mumbai
and the J.M.F.Cs. in other Districts shall try and decide such cases with utmost
priority and preferably within one year. Criminal Cases instituted in the year
2010 and prior thereto shall be tried and decided by 31 December 2011.
42. A copy of this judgment shall be circulated to the Principal
District Judges in all the districts of State of Maharashtra and State of
Goa and to the Chief Metropolitan Magistrate, Mumbai, who shall in turn
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circulate a copy of this judgment to the Metropolitan Magistrates, Mumbai and
all the Judicial Magistrates First Class in their respective districts for timely
compliance with the above direction.
CHIEF JUSTICE
DR. D.Y. CHANDRACHUD, J.
D.G. KARNIK, J.
Page 90
M.Cr.C.5967/2009 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Criminal Case No. 5967/09
Dr.(Smt) Pooja Agrawal
Vs.
Shivbhan Singh Rathore & Anr.
——————————————————————————–
Shri Raju Sharma, Advocate for the petitioner.
Shri H.K.Shukla, Advocate for respondent No.1.
Shri A.S.Rathore, PL for respondent No.2/State.
——————————————————————————–
O R D E R
(14/ 10 /2015)
The petitioner has invoked the jurisdiction of this
Court under Section 482 Cr.P.C. to challenge the
proceedings of Criminal Case No. 1248/2009 pending
before Chief Judicial Magistrate, Bhind. The petitioner
has also challenged the order of Revisional Court dated
7.8.2009.
2. Shri Raju Sharma, learned counsel for the petitioner
submits that the petitioner is running an ultra sound
clinic in the name and style of Divyam Ultrasound Centre
at Bhind. The petitioner is a qualified Radiologist and
Sonologist. The petitioner’s clinic is duly registered
under the provisions of Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 (for brevity, the “Act of 1994”). Shri Sharma
submits that respondent No.1 is a habitual complainant.
He preferred series of vague complaints against various
doctors of Bhind. None of these complaints could fetch
any result and allegations mentioned therein could not
be proved. Attention of this Court is drawn on a
compilation prepared and filed on 28.9.2015. By taking
this Court to page 55, 68, 99, 107 and 108 of this
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compilation, it is argued that the respondent No.1
preferred various complaints before various authorities.
No allegation of complainants could be established,
which shows that he is habitual complainant and makes
such complaint to harass the doctors/clinic operators.
Shri Sharma further submits that a plain reading of
complaint (page 68 of compilation) shows that the
allegations mentioned against the petitioner are
vague/ambiguous. As per the face value of the
allegations itself, it can be safely said that no offence is
made out against the petitioner. Putting it differently, by
applying the acid test laid down by the Supreme Court in
AIR 1992 SC 604 (State of Haryana vs. Bhajanlal), Shri Sharma
submits that if allegations of the complainant are
accepted on its face value, no offence of any nature is
established against the petitioner. Thus, the Court below
has committed an error in taking cognizance of such an
unworthy complaint.
3. Shri Sharma also relied on Section 28 of the Act of
1994 to submit that it is condition precedent to submit a
notice before the appropriate authority. Only after
completion of 15 days time from the date of giving
notice, the complaint could have been preferred. Shri
Sharma submits that the notice dated 28.3.2008 makes
it clear that it does not fulfill the requirement of Section
28(1)(b) of the said Act. Complainant has not disclosed
the “alleged offence” in the said notice qua petitioner
and, therefore, the complaint itself was not tenable. Shri
Sharma read out the statement of complainant and his
witness (page 93 and 94 of the compilation). On the
strength of this, it is urged that the Court below has erred
in taking cognizance of the complaint.
4. The next attack is on the revisional order. Shri
Sharma has taken pains to submit that the revisional
court has exceeded its jurisdiction. There was no
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occasion for the revisional court to act as a court of first
instance. The revisional court was only required to
examine the decision making process of the trial court.
Putting it differently, Shri Raju Sharma submits that the
revisional court has acted as a court of first instance and
examined the entire material before it which is legally
impermissible. Shri Sharma relied on various provisions
of the Act of 1994 to submit that petitioner has not
committed any offence whatsoever and courts below
have mechanically taken cognizance against the
petitioner. He relied on following judgments of Supreme
Court in support of his contention:-
(i) AIR 1992 SC 604 (State of Haryana and others
Vs. Ch. Bhajan Lal and others).
(ii) AIR 1992 Sc 637 ( Daman Municipal Council
and another etc. Vs. M/s Paramount Traders
and others).
(iii) (1998) 5 SCC 749 (Pepsi Foods Vs. Special
Judicial Magistrate).
(iv) 2015(1) Crimes (SC) 271 (Sharad Kumar
Sanghi Vs. Sangita Rane).
(v) 2015 (2) Crimes (SC) 340 (Monju Roy & Ors.
Vs. State of West Bengal).
(vi) 2015 (2) RCR (Criminal) (SC) 515 (D.P. Gulati,
Manager Accounts M/s. Jetking Infotrain Ltd.
Vs. State of Uttar Pradesh & Anr.).
(vii) (2014) 7 SCC 215 (Rishipal Singh Vs. State of
U.P. & Anr.).
(viii) 2015(1) Crimes (SC) 211 ( K.K.Kuda Vs. Chief
Enforcement Officer, Enforcement Directorate
& Anr.).
It is submitted that taking cognizance on a criminal
complaint is a serious matter. On the basis of a vague
complaint supported by two statements of witnesses
alone, cognizance could not have been taken. Heavy
reliance is placed on the judgment of Supreme Court in
Pepsi Food (supra). It is submitted that the courts below
have acted beyond jurisdiction and complaint
proceedings are liable to be set aside at this stage itself.
5. Shri H.K.Shukla, learned counsel appearing for the
complainant supported the order of the trial court and
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M.Cr.C.5967/2009 4
the revisional court dated 7.8.2009. Shri Shukla submits
that the allegations mentioned in the complaint are
sufficient to take cognizance. He relied on the order
dated 1.7.2008 passed by the trial court. The said order
shows that the complainant preferred application for
summoning the relevant record from the office of Chief
Medical and Health Officer, Bhind. Said application of the
complainant was accepted by the court below and
relevant record was summoned. Shri Shukla submits
that court below examined the averments of the
complaint and the material available before it and then
only has taken cognizance. Learned counsel for the
complainant submits that the sex ratio at Bhind is
alarmingly low. This situation has arisen because of
inaction of the Government authorities. The clinics are in
hands and gloves with the Government authorities. Shri
Shukla submits that once the entire official record was
summoned and produced before the trial court, it was
open for the trial court to examine that material and
take cognizance based on it. The court below has not
committed any legal or jurisdictional error in considering
the said material and taking cognizance. In support of his
submissions, he relied on certain judgments of the
Supreme Court. He submits that whether or not
complaint has sufficient material/evidence, it cannot be
the subject matter of adjudication/judicial review at this
stage. It is for the trial court to proceed with the factual
matrix of the matter and give a conclusion after
appreciation of the evidence. At this stage, normally and
ordinarily no interference should be made.
6. Shri A.S.Rathore, learned Panel Lawyer borrowed
the arguments advanced by Shri H.K.Shukla, learned
counsel for the complainant.
7. No other point is raised by learned counsel for the
parties.
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M.Cr.C.5967/2009 5
8. I have heard the learned counsel for the parties and
perused the record.
9. The Act of 1994 is an outcome of concern shown by
both the Houses of Parliament. A Joint Committee of both
the Houses prepared and presented a report in
December, 1992. On the basis of report/
recommendations aforesaid, a Bill was introduced in the
Parliament. The basic reason of the worry/concern was
that in the recent past Pre-natal Diagnostic Centres
sprang up in the urban areas of the country using prenatal diagnostic techniques for determination of sex of
the foetus. Such centres became very popular and their
growth was tremendous as the female child is not
welcomed with open arms in most of the Indian families.
The result was that such centres became centres of
female foeticide. Such abuse of the technique is against
the female sex and affects the dignity and status of
women. Various Organisations working for the welfare
and uplift of the women raised their heads against such
an abuse. Justice Leila Seth in her book “Talking of
Justice” has quoted Rabindranath Tagore. Tagore said
“every time a child is born, it brings with it the hope that
God is not yet disappointed with man.” After quoting
Tagore, learned author expressed her pain by saying that
“it appears to me that when a girl child is born in India,
more often than not, man is disappointed with God. The
birth of first daughter is often considered bad luck, the
second a disaster and third a catastrophe”. Rabindra
Nath Tagore long back said:-
“O’ Lord, why you have not given
woman the right to conquer her destiny?
Why does she have to wait
head bowed by the road side
Waiting with tired patience
hoping for a miracle on the morrow”
Needless to mention that said morrow has not yet
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M.Cr.C.5967/2009 6
come. Unless the society is enlightened and law is
enforced strictly, such goal cannot be achieved.
Despite showing concern and formulation of law on
the subject, it is a matter of common knowledge that
such incidents of female foeticide are going on and that
is the reason sex ratio is falling down in various cities.
This is happening mainly in Northern part of India. The
Act of 1994 and Rules made there under needs to be
strictly implemented.
As per 2011 Census, the sex ratio at Bhind District
is as under:-
Population State District Percen-
(Bhind) tage
Rural Total Persons 52557404 1270083
Males 27149388 694756 54.7
Female 25408016 575327 45.3
Urban Persons 20069405 432922
Males 10462918 232087 53.6
Females 9606487 200835 46.4
10. The Supreme Court also expressed its concern over
the incidents of female foeticide in (2013) 4 SCC 1 & 401
( Voluntary Health Association of Punjab Vs. Union of India and Ors.).
The Apex Court opined that Indian society’s
discrimination towards the female child still exists due to
various reasons which has its roots in the social behavior
and prejudices against the female child and due to the
evils of dowry system still prevailing in the society in
spite of its prohibition under the Dowry Prohibition Act.
The decline in the female child ratio all over the country
leads to an irresistible conclusion that the practice of
eliminating female foetus by the use of pre-natal
diagnostic techniques is widely prevalent in the country.
Parliament wanted to prevent the same and enacted the
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M.Cr.C.5967/2009 7
Act of 1994. But the provisions of the Act of 1994 are not
properly and effectively being implemented.
Mushrooming of various pre-natal diagnostic centres in
almost all parts of the country calls for more vigilance
and attention by the authorities under the Act of 1994.
But unfortunately their functioning is not being properly
monitored or supervised by the authorities under the
1994 Act to find out whether they are misusing the said
techniques. Seldom the machines used in said illegal
purpose are seized and even if seized, they are released
to the violators of the law only to repeat the crime.
Hardly any cases under the 1994 Act end in conviction
and such cases are pending disposal for several years.
Many of the ultrasonography clinics seldom maintain any
record as per the rules. Many of the clinics are totally
unaware of the Government notifications and
amendment of the rules concerned.
It is further held that the object of the 1994 Act was
to provide for prohibition of sex selection before or after
conception and for regulation of pre-natal diagnostic
techniques for the purposes of detecting genetic
abnormalities or metabolic disorders or chromosomal
abnormalities or certain congenital malformations or sexlinked disorders and for the prevention of their misuse for
sex determination leading to female foeticide. The
purpose of the enactment can only be actualized and its
object fruitfully realized when the authorities under the
1994 Act carry out their functions with devotion,
dedication and commitment and further there is
awakened awareness with regard to the role of women in
a society. It would not be an exaggeration to say that a
society that does not respect its women cannot be
treated to be civilized. When a female foeticide takes
place, every woman who mothers the child must
remember that she is killing her own child despite being
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M.Cr.C.5967/2009 8
a mother. That is what abortion would mean in social
terms. Abortion of a female child in its conceptual
eventuality leading to killing of a woman. Law prohibits
it; scriptures forbid it; philosophy condemns it, ethics
deprecate it, morality decries it and social science abhors
it. The innocence of a child and the creative intelligence
of a woman can never ever be brushed aside or
marginalized. Civilization of a country is known by how it
respects its women. It is the requisite of the present day
that people are made aware that it is obligatory to treat
the woman with respect and dignity so that humanism in
its conceptual essentiality remains alive. Each member of
the society is required to develop a scientific temper in
the modern context because that is the social need of the
present.
In para 9 of the aforesaid judgment certain
directions were given to the Supervisory Board, Advisory
Committee and authorities. These directions are required
to be implemented strictly. The female foeticide has
become a concern for the nation.
11. It is profitable to refer to certain provisions of the
Act of 1994 and Rules made thereunder. Section 4 of the
Act of 1994 deals with regulation of pre-natal diagnostic
techniques. This provides that on and from the
commencement of this Act, … (3) no pre-natal diagnostic
techniques shall be used or conducted unless the person
qualified to do so is satisfied for reasons to be recorded
in writing that any of the following conditions are fulfilled,
namely:-
(i) age of the pregnant woman is above thirty-five
years;
(ii) the pregnant woman has undergone two or
more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as drugs,
radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family
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M.Cr.C.5967/2009 9
history of mental retardation or physical
deformities such as, spasticity or any other
genetic disease;
(v) any other condition as may be specified by the
Board.”
Section 5 is couched in a mandatory language. It
prescribes that no pre-natal diagnostic procedure can be
applied unless the procedure prescribed in this section is
fulfilled. The same reads as under:-
(a) he has explained all known side and after
effects of such procedures to the pregnant
woman concerned;
(b) he has obtained in the prescribed form her
written consent to undergo such procedures in
the language which she understands; and
(c) a copy of her written consent obtained under
clause (b) is given to the pregnant woman.
(2) No person conducting pre-natal diagnostic
procedures shall communicate to the pregnant woman
concerned or her relatives the sex of the fetus by words,
signs or in any other manner.
Section 23 deals with “offences and penalties”,
which reads as under:-
“23. Offences and penalties.–(1) Any medical geneticist,
gynecologist, registered medical practitioner or any
person who owns a Genetic Counseling Centre, a
Genetic Laboratory or a Genetic Clinic or is employed
in such a Centre, Laboratory or Clinic and renders his
professional or technical services to or at such a Centre,
Laboratory or Clinic, whether on an honorary basis or
otherwise, and who contravenes any of the provisions of
this Act or rules made thereunder shall be punishable
with imprisonment for a term which may extend to three
years and with fine which may extend to ten thousand
rupees and on any subsequent conviction, with
imprisonment which may extend to five years and with
fine which may extend to fifty thousand rupees.
(2) The name of the registered medical practitioner who
has been convicted by the court under sub-section (1),
shall be reported by the Appropriate Authority to the
respective State Medical Council for taking necessary
action including the removal of his name from the
register or the Council for a period of two years for the
first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of a Genetic
Counseling Centre, Genetic Laboratory or Genetic
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M.Cr.C.5967/2009 10
Clinic or of a medical geneticist, gynecologist or
registered medical practitioner for conducting pre-natal
diagnostic techniques on any pregnant woman
(including such woman unless she was compelled to
undergo such diagnostic techniques) for purposes other
than those specified in clause (2) of section 4, shall, be
punishable with imprisonment for a term which may
extend to three years and with fine which may extend to
ten thousand rupees and on any subsequent conviction
with imprisonment which may extend to five years and
with fine which may extend to fifty thousand rupees.
Section 25 makes it clear that whoever contravenes
any of the provisions of this Act or any rules made
thereunder, for which no penalty has been elsewhere
provided in the Act, shall be punishable with
imprisonment for a term which may extend to three
months or with fine, which may extend to one thousand
rupees or with both. However, in case of continuing
contravention, an additional fine may be imposed.
Section 28 makes it clear that no court shall take
cognizance of an offence under the Act of 1994 except
on a complaint made by (a) the Appropriate Authority
concerned, or any officer authorised in this behalf by the
Central Government or State Government, as the case
may be, or the Appropriate Authority; or (b) a person who
has given notice of not less than fifteen days in the
manner prescribed, to the Appropriate Authority, of the
alleged offence and of his intention to make a complaint
to the court.
12. It is seen that under Section 32 of the Act of 1994,
the rules are made, which are known as “The PreConception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 (for brevity, the
“Rules of 1996”). Rule 9 prescribes the procedure of
maintenance and preservation of records. Relevant subrules of Rule 9 reads as under:-
(4) The record to be maintained by every Genetic
Clinic including a mobile Genetic Clinic, in respect of
each man or woman subjected to any pre-natal
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M.Cr.C.5967/2009 11
diagnostic procedure/technique/test, shall be as
specified in Form F.
(8) Every Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic, Ultrasound Clinic and
Imaging Centre shall send a complete report in respect
of all pre-conception or pregnancy related procedure/
techniques/tests conducted by them in respect of each
month by 5th day of the following month to the
concerned Appropriate Authority.”
Rule 10 (1A) reads as under:-
1A. Any person conducting ultrasonography/image
scanning on a pregnant woman shall give a declaration
on each report on ultrasonography/image scanning that
he/she has neither detected nor disclosed the sex of
foetus of the pregnant woman to any body. The
pregnant woman shall before undergoing
ultrasonography/image scanning declare that she does
not want to know the sex of her foetus.
(Emphasis Supplied)
13. Under the Rules of 1996, certain statutory Forms
are prescribed in order to give effect to the provisions of
the Act and Rules. Statutory Form ‘F’ is prescribed for
maintenance of record in respect of pregnant woman by
Genetic Clinic/Ultrasound Clinic/Imaging Centre. A plain
reading of this Form makes it clear that various entries
are required to be made in this Form. It is followed by a
declaration of pregnant woman and declaration of doctor/
person conducting the tests. Form ‘G’ relates to consent
for invasive techniques. Form ‘H’ deals with maintenance
of permanent record of applications for grant/rejection of
registration under the Act of 1994.
14. If the scheme of the Act is examined, it will be clear
that the Act is introduced with a view to check the
misuse of scientific techniques for the purpose of sex
determination which leads to female foticide. In order to
stop the abuse of techniques against female sex and with
a view to uplift the dignity and status of woman, the Act
is introduced. Various Sections are included in the Act so
that the accountability of Centres can be fixed and prenatal diagnostic techniques can be regulated as per the
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M.Cr.C.5967/2009 12
Act of 1994.
15. Shri Raju Sharma, learned counsel for the
petitioner, contended that the Court below has
committed an error in taking cognizance of the offence
because the notice given by the complainant was not in
accordance with the requirement of Section 28(b) of the
Act of 1994. The notice dated 28.3.2008 shows that the
complainant has sent legal notice before the
“Appropriate Authority” mentioning that there is flagrant
violation of the Act of 1994 and Rules of 1996 in district
Bhind. It is true that the said notice does not specify that
it is filed only against the petitioner. In other words, it is a
general notice sent by the complainant, complaining
about violation of Act and Rules and misuse of
Ultrasonography machines etc.
16. In my view, the purpose of insertion of Section 28
(1) (b) is to give a chance to the Appropriate Authority to
examine and take action against alleged violation. The
notice appears is given to enable the Appropriate
Authority to take action against the erring clinics/centres.
The person sending notice needs to wait for 15 days so
that during this time. appropriate action may be taken by
authorities. This time limit is prescribed so that if
grievance of complainant is redressed at the level of
Appropriate Authority, the Courts will not be burdened to
take cognizance of an offence and it can be taken care of
at the level of “Appropriate Authority”. The notice in the
present case dated 28.3.2008 makes it clear that
violation of provisions of the Act and Rules was
specifically pleaded in the notice. Thus, it cannot be said
that the notice does not fulfill the requirement of the Act
and Rules. Apart from this, the explanation of section 28
makes it clear that the word “person” includes a social
organisation. The complainant is a social organisation
and, therefore, falls within the ambit of “person”.
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M.Cr.C.5967/2009 13
17. In the complaint, the complainant has alleged that
the petitioner has filled up Form ‘F’ and deposited the
same. These documents are fabricated documents. This
Form ‘F’ deposited by the petitioner does not tally with
prescribed statutory Form ‘F’. The preparation of
fabricated documents and depositing them in the Office
of Prescribed Authority is violation of Act and is an
offence under Indian Penal Code. It is also alleged in the
complaint that the pregnant women, who were subjected
to ultrasound test were not required to give their consent
in statutory Form ‘G’. This is an offence under Section
23(1) of the Act of 1994. It is further alleged in the
complaint that the present petitioner has submitted an
application in the office of CMHO, Bhind informing that he
has installed an additional ultrasound machine at his
clinic. This intimation is given on 22.5.2009. The said
machine is not registered under the provisions of the Act.
The petitioner is continuously using the said machine
without there being any registration and, therefore, it is
an offence under Section 23(1) of the Act of 1994. The
complainant alleged that in the meeting of the
department, it was decided to seize the said ultrasound
machine on 4.5.2012 but the said machine was not
seized which shows that it is violation of the decision
taken on 4.5.2012. It is also an offence under Section
188 of IPC. In addition, it is alleged in the complaint that
Form ‘F’, which was produced by the petitioner, is not in
consonance with Section 4(3) of the Act. The petitioner
has not filed the affidavit in consonance with Rule 4(1) of
the Rules of 1996.
18. Shri Raju Sharma on more than one occasion drew
attention of this Court on the complaint (page 68 of the
compilation) and urged that the allegations of complaint
do not constitute offence. On the basis of said
allegations, no case is made out for taking cognizance.
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M.Cr.C.5967/2009 14
19. In the considered opinion of this Court, the act of
sex determination or test takes place inside the
clinic/diagnostic centre. Nobody except the person, who
is being tested, and the person who conducts the test,
know about the details of such tests. In order to ensure
transparency and accountability, various Forms are
prescribed so that the technique is not misused. During
the course of argument, Shri Raju Sharma emphasized
that the allegations mentioned in the complaint are
vague. No details are mentioned about conducting of test
of sex determination etc. on any person. It is important to
note that the law-makers were conscious of this fact that
it is difficult to get clear evidence of act of sex
determination by the centres. Thus, in various provisions
of the Act and Rules, it was made obligatory for the
centres to fill up the forms, file declaration, obtain
affidavit/consent etc. These informations were required
to be given in prescribed forms. The same were required
to be preserved for stipulated period. In addition, same
were required to be filed before the Prescribed Authority.
The purpose was to ensure transparency and eradicate
the possibility of sex determination and female foeticide.
As per Section 23 of the Act of 1994, any contravention
of provisions of Act or Rules is an offence and is
punishable. Thus, if forms are tempered/fabricated,
consent is not obtained, statutory informations are not
given in prescribed forms, it amounts to contravention of
provisions of the Act and Rules. Thus, Section 23 is wide
enough to cover any violation of Act or Rules and bring it
within the purview of “offence”. In the present case, the
complainant, in no uncertain terms, alleged that the
prescribed Forms are either fabricated or do not tally
with the requirement of statutory Forms. Other
allegations of complaint are also related to violation of
Act/Rules.
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M.Cr.C.5967/2009 15
20. In the further opinion of this Court, if the allegations
mentioned in the complaint are accepted on their face
value, definitely Sections 23 and 25 of the Act of 1994
are attracted. Putting it differently, if the allegations
mentioned in the complaint are treated to be correct,
offence under the Act of 1994 are made out. Thus, as per
the test laid down in Bhajanlal (supra), no interference can
be made on this ground.
21. Shri Raju Sharma further contended that the trial
court has mechanically taken cognizance on the basis of
fake complaint and statements of two witnesses.
However, a minute scrutiny of record shows that the said
contention is contrary to record. It is seen that the
complaint was preferred on 5.5.2008. Thereafter, on
1.7.2008, an application was filed to summon the record
from the Office of Prescribed Authority. The trial Court by
order dated 1.7.2008 summoned the said record. The
record was ultimately produced before the court below.
The statements of complainant’s witnesses were
recorded under Section 200 of the Code of Criminal
Procedure. Thereafter on 2.3.2009, the Court below
opined that after considering the averments of
complainant, statements of witnesses and documents
produced in the case, it prima facie appears that
petitioner has committed an offence. The Court below
opined that sufficient material is available to take
cognizance under Sections 23 and 25 of the Act of 1994.
Hence, cognizance was taken and complaint was
registered.
22. Section 29 of the Act makes it clear that relevant
record, forms, charts, reports are required to be
preserved for a period of two years. However, if any
criminal proceedings are instituted, it needs to be
preserved till the final disposal of the proceedings. Rule
9(8) of the Rules of 1996, quoted above, also makes it
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M.Cr.C.5967/2009 16
clear that the clinic/centre is required to send a complete
report in respect of all pre-conception or pregnancy
related procedures/techniques/tests conducted by them
in respect of each month by 5th day of the following
month to the concerned Appropriate Authority.
23. Thus, it is seen that the trial Court has not
mechanically taken cognizance of the matter. The
original record was summoned and on perusal of the
same, the court below prima facie found that there are
sufficient reasons to proceed against the petitioner. I am
unable to hold that the order dated 2.3.2009 is passed
without proper application of mind. The Revisional Court
has also taken the same view and I do not find any legal
infirmity in the same.
24. Shri Raju Sharma, learned counsel for the
petitioner, relied on various judgments of Supreme Court.
As discussed, the judgment of Bhajanlal (supra) does not
help the petitioner in any manner. At the cost of
repetition, it is noted that if the allegations in the
complaint are accepted on their face value, certainly the
offences under sections 23/25 of the Act of 1994 are
made out.
25. As analyzed, the trial Court has not taken
cognizance on mere perusal of complaint and statements
of two witnesses. It has applied mind on relevant record
also. Hence, the judgment of Pepso Foods Ltd. (supra) is of no
assistance to the petitioner in the present case.
26. In Sharad Kumar Sanghi (supra), the Apex Court
considered the words “sufficient ground for proceeding”.
It means that grounds should be made out in the
complaint for proceeding against the respondent. In my
view, neither the allegations in the complaint are vague
nor it can be said that it does not constitute an offence
under the Act. There were sufficient grounds for
proceeding against the petitioner and, therefore, this
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M.Cr.C.5967/2009 17
judgment has no application. Same is the view about the
judgment of Monju Roy (supra). The said matter also deals
with omnibus statement. In the present case, there are
specific allegations against the petitioner in the
complaint. Hence, this judgment is of no help to the
petitioner. In D.P. Gulati (supra), the Apex Court was dealing
with vexatious complaint. At this stage, it cannot be said
that the complaint is vexatious. In Rishipal Singh (supra), the
Supreme Court dealt with the scope of Section 482 CrPC.
No doubt, powers under Section 482 CrPC are wide and
proceedings can be quashed if certain parameters are
satisfied. However, it is noteworthy that the Apex Court
in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another),
laid down broad principles for exercise the jurisdiction
under Section 397/482 CrPC. It is held that the principles
to be considered for proper exercise of jurisdiction,
particularly with regard to quashing of a charge either in
exercise of jurisdiction under Section 397 or Section 482
CrPC or together, as the case may be, can be
summarised. Though there are no limits of the powers of
the Court under Section 482 CrPC but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 CrPC should be exercised very sparingly and
with circumspection and that too in the rarest of rare
cases. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, as it an abuse of
the process of court leading to injustice. It is neither
necessary nor is the court called upon to hold a fullPage 107
M.Cr.C.5967/2009 18
fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case
of acquittal or conviction. In exercise of its jurisdiction
under Section 228 and/or under Section 482, the court
cannot take into consideration external materials given
by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his
acquittal. The court has to consider the record and
documents annexed with by the prosecution. Quashing of
a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied,
the court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial
stage. The court is not expected to marshal the records
with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima
facie.
27. If the litmus test of the judgment in Amit Kapoor
(supra) is applied in the factual matrix of the present
matter, it cannot be said that the court below has
committed any legal error in taking cognizance of the
matter. Thus, no interference is required by this Court at
this stage.
28. In view of foregoing analysis, I find no reason to
interfere in this petition. Petition fails and is hereby
dismissed. Registry is directed to carefully keep the
compilation dated 28.9.2015 on record.
(Sujoy Paul)
Judge
(yog)
Page 108
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
CASE NO.:
Appeal (crl.) 710 of 2007
PETITIONER:
Soma Chakravarty
RESPONDENT:
State Through CBI
DATE OF JUDGMENT: 10/05/2007
BENCH:
Markandey Katju
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 710 OF 2007
(Arising out of Special Leave Petition (Crl.) No.552/2006)
Markandey Katju, J.
1. Leave granted.
2. This appeal has been filed against the judgment and order of the Delhi
High Court dated 22.10.2005 in Criminal Revision Petition No. 10/2005.
3. Heard learned counsel for the parties and perused the record.
4. The Criminal Revision Petition was filed in the High Court
challenging the order of the Special Judge, Delhi in Case CC No. 63/2001
titled CBI vs. Priya Uppal & Ors., by which the appellant and two others
had been charged for offences under Section 420 read with Sections 120-B,
429, 468 and 471 of Indian Penal Code as well as under various provisions
of the Prevention of Corruption Act. The appellant along with the other
accused in this case allegedly entered into a criminal conspiracy and by
misusing their official position caused undue pecuniary advantage to
themselves to the tune of Rs.30,30,057/- and caused a corresponding loss to
the Indian Trade Promotion Organization (ITPO) which is a wing of the
Central Government, from whose account money was released against bogus
receipts of advertisements which had actually never been carried by any
newspaper or other publication.
5. The prosecution case is that the publicity department of ITPO was
concerned with the release of advertisements in newspapers. There were
two types of advertisements; (1) regular advertisement & (2) ad hoc
advertisements. Regular advertisements were given to the national dailies
and other leading newspapers and magazines, whereas ad hoc
advertisements were those which were issued on ad hoc basis from time to
time with the specific approval of the Chief Managing Director or Executive
Director only. The procedure for release of advertisements on behalf of
ITPO was as follows:
6. Requests were received from Indian and foreign
magazines/newspapers/publications for the advertisements which were
processed by the publicity officer of the rank of Deputy Manager level and
were put before the CMD/ED through the Senior Manager/Deputy General
Manager for his approval. On receipt of the approval from the
CMD/Executive Director by the publicity Division the concerned manager
sent letters/release orders to the party for publication of the material. After
the advertisements were published the concerned officer of the publicity
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Division of ITPO had to process and pass the bills for making payment to
the advertising agency. Copy of the letter sent and copy of the
newspapers/magazine were also forwarded or attached to the bill submitted
by the agency.
7. The prosecution alleged that at the relevant time Shri Bal Krishan,
Deputy Manager was in charge of the work relating to ad hoc
advertisements. He was the authorized officer to process the bills for such
advertisements. It is alleged that Shri Ajay Uppal, proof Reader/Senior
Assistant of ITPO floated 6 bogus firms and submitted 76 bogus bills worth
Rs.30,30,057/- for payment by signing under fictitious names like, Sanjay
Gupta, Neeraj, Atul, etc. With these bills he enclosed photocopies of fake
advertisements. Out of 76 bogus bills, 14 were dishonestly processed and
verified by the accused Soma Chakravarty and P. K. Jindal, in connivance
with the co-accused to cheat the ITPO and give wrongful gain to themselves
and to the other accused in this case. It is stated that the appellant also had
the knowledge that Bal Krishan had been authorized to verify the bills
pertaining to ad hoc advertisements. All the bogus vouchers had been filled
in by the co-accused Gyase Ram who was neither posted in the publicity
division nor was authorized to do so. It is further alleged that the appellant
knew that those bogus bills had not been entered in the bills register of the
publicity Division of ITPO and no file had been opened/created in respect of
these firms claiming to have published advertisements. The file numbers
written on the fictitious bills were also fake. None of these bills bore initial
or signatures of Shri Balkrishan, who was incharge of the ad hoc
advertisements of ITPO at the relevant time. As regards the other accused,
P.K. Jindal, the allegation is that he as Senior Manager of Accounts passed
bills worth Rs.1,75,000/- related to these transactions. On these facts, the
CBI concluded that there was sufficient evidence of conspiracy to cheat
along with the other evidence of forgery, cheating and corruption.
Accordingly a charge sheet was filed. The trial court after examining the
allegations and evidence collected by the investigation framed the impugned
charges against the appellant Ms. Soma Chakravarty & Mr. P.K. Jindal.
Against the framing of charges a criminal revision was filed in the High
Court which dismissed the same by the impugned judgment.
8. On behalf of the appellant it was contended before the High Court that
there was no material before the Special Judge entitling him to frame
charges against the accused. It was submitted on behalf of the accused
Soma Chakravarty that she did nothing more than processing some of those
14 bills and sending them to the accounts division of ITPO from where the
payments had been collected by cheques. It was submitted that the appellant
was working as Deputy Manager in the publicity division of I.T.P.O. and
had signed 13 bills and sanction forms after they had been processed by
Gyase Ram and all the 13 bills contained the signatures of Gyase Ram when
they were put before her for her signature. She contended that she had
signed those bills in the normal course of her duties and the bills were
passed by the accounts section. She attributed lack of vigilance to the
accounts section which was required to verify those bills with reference to
the sanction for the advertisement. She claimed that Bal krishan, the officer
authorized to deal with the ad hoc advertisement, was himself a beneficiary
of part of the alleged money cheated out of ITPO. It was claimed on behalf
of the appellant Soma Chakravarty that the investigation had failed to reveal
any mens rea on her part. She contended that she was implicated only
because of her failure to take sufficient care while initialing the bills in
question. She contended that it was not possible for her to detect at the time
of initialing the bills that any fraud was being played on her by co-accused
Gyase Ram and others. Accordingly she sought to be discharged from the
case. Similarly, the other co-accused P.K. Jindal also denied any
involvement in the offence and alleged that there was hardly any allegation
against him in the charge sheet.
9. The High Court dismissed the Criminal Revision Petition filed by the
appellant, and hence this appeal by special leave.
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10. Learned counsel for the appellant relied on the decisions of this Court
in Union of India and another vs. Major J. S. Khanna etc. 1972 (3) SCC
873, State of Maharashtra and others vs. Som Nath Thapa and others
1996 (4) SCC 659 and L Chandraiah vs. State of A.P. and another 2003
(12) SCC 670 and contended that before framing the charges the court must
have some material on the basis of which it can come to the conclusion that
there is a prima facie case against the accused. In our opinion there was
such material before the Court while framing the charge.
11. It may be mentioned that the settled legal position, as mentioned in
the above decisions, is that if on the basis of material on record the Court
could form an opinion that the accused might have committed offence it can
frame the charge, though for conviction the conclusion is required to be
proved beyond reasonable doubt that the accused has committed the offence.
At the time of framing of the charges the probative value of the material on
record cannot be gone into, and the material brought on record by the
prosecution has to be accepted as true at that stage. Before framing a charge
the court must apply its judicial mind on the material placed on record and
must be satisfied that the commitment of offence by the accused was
possible. Whether, in fact, the accused committed the offence, can only be
decided in the trial.
12. Learned counsel for the appellant contended that in view of the
aforesaid decisions no charge could be framed against the appellant as there
was no material to show that she was prima facie guilty or had any mens rea.
We cannot agree.
13. The facts of the present case disclose that advertisements of six bogus
firms had been published and 76 bogus bills worth Rs.30,30,057/- were
submitted for payment by signing under the fictitious names like, Sanjay
Gupta, Neeraj, Atul, etc. Out of these 76 bogus bills 14 were said to be
dishonestly processed and verified and signed by the appellant Soma
Chakravarty and co-accused P. K. Jindal. All the bogus bills were filled by
co-accused Gyase Ram who was neither posted in the publicity division nor
was authorized to do so. These bogus bills had not been entered in the bills
register of the ITPO and no file had been opened or created in respect of
these firms claiming to have published the advertisements. The file numbers
written on the fictitious bills were also fake. None of these bills bore the
initial or signatures of Shri Bal Krishan who was incharge of the ITPO at the
relevant time.
14. It was contended by the learned counsel for the appellant that the
appellant had signed the aforesaid 13 bills in the normal course of her duty
and it was the Accounts section which was negligent in not verifying these
bills.
15. In our opinion once a person signs on a document he or she is
expected to make some enquiry before signing it. In fact, accused Soma
Chakravarty was never assigned any duty in respect of processing or signing
the bills for ad hoc advertisements, and she was assigned duty only of
regular advertisements. Moreover, these bills were not sanctioned/approved
by the competent authority i.e. the Chairman/Executive Director.
16. No doubt Soma Chakravarty contended that she signed these fake bills
by negligence but without any mala fide intention, but this is a matter which,
in our opinion, is to be seen at the time of the trial. There are serious
allegations of misappropriation of a huge amount of money belonging to the
government, and it cannot be said at this stage that there is no material at all
for framing the charge against her. Hence, we agree with the view taken by
the High Court in this connection.
17. In view of the above, we find no infirmity in the impugned judgment
and this appeal is consequently dismissed. However, we make it clear that
any observation made by us in this judgment or in the impugned judgment of
the High Court will not influence the trial court, which shall decide the case
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on its merits, as expeditiously as possible. Page 112
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CASE NO.:
Appeal (crl.) 710 of 2007
PETITIONER:
Soma Chakravarty
RESPONDENT:
State Through CBI
DATE OF JUDGMENT: 10/05/2007
BENCH:
S.B. Sinha
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 710 OF 2007
[Arising out of SLP (Crl.) No. 552 of 2006]
S.B. SINHA, J :
1. Although I entirely agree with the concluding part of the judgment
rendered by my learned Brother, but I would like to state my own reasons
therefor.
2. Charges have been framed against the appellant and several others on
25.09.2004. Trial has already started and it is not in dispute that some
witnesses have been examined. It is likely that the trial would be over
within a few months. Thus, it would not be proper for us to enter into the
merit of the matter at this stage.
3. Some of the questions, however, which have been raised by the
appellant are of some importance and it may be necessary to deal therewith.
The learned Trial Judge, it appears, did not properly apply its mind in regard
to the different categories of accused while framing charges. It ought to
have been done. Charge may although be directed to be framed when there
exists a strong suspicion but it is also trite that the court must come to a
prima facie finding that there exists some materials therefor. Suspicion
cannot alone, without anything more, it is trite, form the basis therefor or
held to be sufficient for framing charge.
4. In Union of India and Another v. Major J.S. Khanna, Etc. [(1972) 3
SCC 873], this Court opined:
“22 . It is true that at the stage when the Special
Judge drew up charges and decided to proceed
with the case on the footing of a conspiracy to
defraud the Government, he had only to see that
there was a prima facie case against the two
respondents. That could also be the basis upon
which the High Court had to try upon two
revision applications. Even so, there had to be
some material before the Special Judge which
could point towards a conspiracy in which the
two respondents had joined. Such of the
statements which the investigating officer could
procure did not, as the High Court observed,
point to such a conspiracy. What appears to have
been lost sight of by the Special Judge was the
fact that the period during which the orders in
question were placed was an emergency period,
when procedure laid down for such orders could
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not perhaps be strictly adhered to. He also
appears to have lost sight of the fact that out of
the thirteen orders in question, four of the value
of Rs 32,000 and odd were placed by Brig. Mani,
and orders only for the balance of Rs 8000 and
odd were placed by Res. Khanna. It may be that
someone had played fraud in the matter of
quotations in the name of Darrang Transport,
United Motor Works, Auto Stores etc. But unless
there was some material at least to link these two
officers with the person who tendered those
quotations, it is difficult to say that there were
conspirators who had joined with the rest of the
accused to defraud the Government. In these
circumstances, we find ourselves unable to agree
with the contention of Mr Mukherjee that the
High Court was in error in coming to the
conclusion that no prima facie case had been
made out against either of the two officers.”
5. In State of Maharashtra and Others v. Som Nath Thapa and Others
[(1996) 4 SCC 659] , this Court held:
“30. In Antulay case Bhagwati, C.J., opined, after
noting the difference in the language of the three
pairs of sections, that despite the difference there
is no scope for doubt that at the stage at which
the court is required to consider the question of
framing of charge, the test of “prima facie” case
has to be applied. According to Shri Jethmalani,
a prima facie case can be said to have been made
out when the evidence, unless rebutted, would
make the accused liable to conviction. In our
view, a better and clearer stateme nt of law
would be that if there is ground for presuming
that the accused has committed the offence, a
court can justifiably say that a prima facie case
against him exists, and so, frame a charge against
him for committing that offence.
31. Let us note the meaning of the word
’presume’. In Black’s Law Dictionary it has been
defined to mean “to believe or accept upon
probable evidence”. (emphasis ours). In Shorter
Oxford English Dictionary it has been mentioned
that in law ’presume’ means “to take as proved
until evidence to the contrary is forthcoming”,
Stroud’s Legal Dictionary has quoted in this
context a certain judgment according to which
“A presumption is a probable consequence drawn
from facts (either certain, or proved by direct
testimony) as to the truth of a fact alleged.”
(emphasis supplied). In Law Lexicon by P.
Ramanath Aiyer the same quotation finds place
at p. 1007 of 1987 Edn.
32. The aforesaid shows that if on the basis of
materials on record, a court could come to the
conclusion that commission of the offence is a
probable consequence, a case for framing of
charge exists. To put it differently, if the court
were to think that the accused might have
committed the offence it can frame the charge,
though for conviction the conclusion is required
to be that the accused has committed the offence.
It is apparent that at the stage of framing of a
charge, probative value of the materials on record
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cannot be gone into; the materials brought on
record by the prosecution has to be accepted as
true at that stage.”
6. The courts although may take a strict view of an offence where fraud
is alleged against a public servant, but only because it is found to have been
committed, the same by itself may not be sufficient to arrive at a conclusion
that all officers who have dealt with the files at one point of time or the other
would be taking part in conspiracy thereof or would otherwise be guilty for
aiding and abetting the offence. It is necessary to deal with the individual
acts of criminal misconduct for finding out a case therefor.
7. In a case of this nature, the learned Special Judge also should have
considered the question having regard to the ’doctrine of parity’ in mind.
An accused similarly situated has not been proceeded against only because,
the departmental proceedings ended in his favour. Whether an accused
before him although stands on a similar footing despite he having not been
departmentally proceeded against or had not been completed exonerated also
required to be considered. If exoneration in a departmental proceeding is the
basis for not framing a charge against an accused person who is said to be
similarly situated, the question which requires a further consideration was as
to whether the applicant before it was similarly situated or not and/ or
whether the exonerated officer in the department proceeding also faced same
charges including the charge of being a party to the larger conspiracy.
8. In L. Chandraiah v. State of A.P. and Another [(2003) 12 SCC 670], it
was held:
“\005It may be, and as rightly observed by the
courts below, that they acted in a negligent
manner and if they had taken due care they
would have detected the fraud, but they failed to
do so. However, that by itself would not
constitute an offence under Section 409 IPC
though it may expose the appellants to
disciplinary action under the relevant rules. The
learned counsel also brought to our notice the
fact that in respect of the same sub-post office
some vouchers prepared and countersigned by A-
3 on the reverse side were sent to the head post
office at Mancherial. PW 5, the investigating
officer has referred to several such vouchers
which were sent to the head post office for
payment, and the officers of the head post office
also sanctioned payment on the basis of such
fabricated vouchers. Obviously, the officers at
the head post office were also not very careful,
and as a result A-3 succeeded in his evil design
to fraudulently withdraw a large sum of money.
The learned counsel submitted that on the basis
of these facts not only the appellants were
cheated by A-3 but even the officers of the head
post office were similarly cheated by A-3.”
9. Ordinarily, we would have remitted the matter to the Special Judge,
for consideration of the matter afresh, but as the prosecution has already
started examination of witnesses and as we have been assured by the learned
Additional Solicitor General that all endeavours would be made for early
disposal of the matter, we may not exercise our discretionary jurisdiction
under Article 136 of the Constitution of India at this point of time. We,
however, keeping in view the fact that a large number of officers of the
Union of India are involved and as it is stated at the bar that they have not
been promoted because of the pendency of this case, would request the
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PETITIONER:
STATE OF MAHARASHTRA ETC. ETC.
Vs.
RESPONDENT:
SOM NATH THAPA, ETC. ETC.
DATE OF JUDGMENT: 12/04/1996
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
AHMADI A.M. (CJ)
SEN, S.C. (J)
CITATION:
1996 AIR 1744 1996 SCC (4) 659
JT 1996 (4) 615 1996 SCALE (3)449
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
HANSARIA. J
Bombay of yesterday, Mumbai of today: financial capital
of the nation. It woke as usual on 12th March, 1993. People
started for their places of work not knowing what was in
their store. The terrorists and/or disruptionists, bent on
breaking the backbone of the nation (for reasons which need
not be gone into) had, however, hatched a well laid-out
conspiracy to cripple the country by striking at its
financial nerve. As Bombay set down to work, blasting of
bombs, almost simultaneously, took place at important
centres of commercial actvities like Stock Exchange, Air
India, Zaveri Bazar, Katha Bazar and many luxurious hotels.
A shocked Bombay and a stunned nation first tried to provide
succour to the victim as much as possible and then wanted to
know the magnitude of the loss of life and property. It
surpassed all imagination, as it was ultimately found that
the blasts left more than 250 persons dead, 730 injured and
property worth about Rs.27 crores destroyed. By all counts,
it was thus a great tragedy; and revolting also, as it was
men-made.
2. All right thinking persons and wellwishers of the
nation started asking; Why it happened ? How could it happen
? We are not concerned in these ceses with why, but with
how. The gigantic task led Bombay police, despite its
capability, to seek assistance of the CBI. An arduous and
painstaking investigation by a team of dedicated officials
showed that the aforesaid bomb blasts were a result of deep
rooted conspiracy concerted action of many, guided either by
greed or vengeance. The finale of investigation consisted in
charge-sheeting 145 persons (of whom 38 were shown as
absconders) under various sections of the Penal Code and the
Terrorists And Disruptive Activities (Prevention) Act, 1987
(TADA), hereinafter the Act also. The Designated Court
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constituted under Section 9 of the Act came to be seized of
the matter and by its impugned order of 10.9.1995 it has
framed charges against 127 persons, discharing at the same
time 26. One died and two became approvers. (The total thus
comes to 146)
3. Of the charged accused, four: (1) Abu Asim Azmi; (2)
Amjad Aziz Meharbaksh; (3) Raju alias Raju Code Jain; and
(4) Somnath Thapa have approached this Court having felt
aggrieved at their having not been discharged. The State of
Maharashtra has approached the Court seeking cancellation of
bail granted to appellant Thapa.
4. We were fortunate to have leading criminal lawyers of
the country to assist us in the matter in asmuch as Shri Ram
Jethmalani appeared for Raju and Moolchand, Shri Ratinder
Singh for Abu Azim Azmi, Shri R.K. Jain for Amzad Ali and
Shri Shirodkar for appellant Thapa. The State was
represented by Addl. Solicitor General, Shri KTS Tulsi.
Lengthy arguments were advanced by the learned counsel to
sustain the stands taken by them. We put on record our
appreciation for the able assistance rendered by all.
5. The appeals call for examination of three questions of
law. These are:
(a) What are the ingredients of “criminal conspiracy’ as
defined in Section 120-A o the Penal Code ?
(b) When can charge be framed ?
(c) What is the effect of repeal of TADA ?
After understanding and explaining the legal position,
we would examine the cases of individual appellants and
would see whether any of them deserves to be discharged. We
would then express our view whether bail of Thapa has to be
cancelled and whether Moolchand has to be released on bail.
Essential ingredients of criminal conspiracy:
7. It would be apposite to note at the threshold that
sections 120-A and 120-B, which are the two sections in
Chapter V – A of the Code, came to be introduced by Criminal
Law Amendment Act of 1913. The Statement of Objects and
Reasons stated that a need was felt for the same to make
conspiracy a substantive offence. In doing so the common law
of England was borne in mind.
8. Section 120-A defines criminal conspiracy as below:
“120-A. Definition of criminal
conspiracy:- When two or more
persons agree to do, or cause to be
done,
(1) an illegal act, or
(2) an act which is not illegal by
illegal means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement
except an agreement to commit an
offence shall amount to a criminal
conspiracy unless some act besides
the agreement is done by one or
more parties to such agreement in
pursuance thereof.
Explanation:- It is immaterial
whether the illegal act is the
ultimate object of such agreement,
or is merely incidental to that
object”.
9. This definition shows that conspiracy consists in either
doing an illegal act or a legal act by illegal means. Shri
Tulsi emphasised that we should bear in mind the illegality
of means as well. Group action being apparently involved, it
was urged that division of performances in the chain of
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actions as happens in smuggling of narcotics should also be
taken note of by us. The Addl. Solicitor General was at
pains in contending that protection of the society from the
dangers of concerted criminal activity may not be lost sight
of by us.
10. Shri Ram Jethmalani, who addressed us principally on the
questions of law involved, filed a compilation of relevant
decisions for our benefits, wherein the essential
ingredients of criminal conspiracy have been spelt out. The
decisions mainly relied by the learned counsel are R. vs.
Hawkesley, 1959 Criminal Law Report 210; and People vs.
Lauria, 251 California Appeal 2d 471. Some assistance is
derived from a judgment of this Court in Natwarlal
Shankarlal Mody vs. State of Bombay, 1961 Bomboy Law Report
661. The only other foreign decision we would be required to
note is United States vs. Feola 420 US 671, referred to on
behalf of the State. We would finally see what was held by a
two Judge Bench of this Court in Ajay Aggarwal vs. Union of
India, 1993 (3) SCC 609 strongly relied on by Shri Tulsi.
11. The thrust of Shri Ram Jethmalani’s argument is that to
find a person quilty of conspiracy there has to be knowledge
of either commission of any illegal act by a co-conspirator
or taking recourse to illegal means by the co-conspirator,
along with the intent to further the illegal act or
facilitate the illegal means. Though at one stage the
learned Addl. Solicitor General sought to contend that
knowledge by itself would be enough, he, on deeper thought,
accepted that this would not be. But then, according to him,
at times intent may be inferred from knowledge, specially
when no legitimate use of the goods or services in question
exists. To sustain this submission, he also relied on
Lauria’s case. He has added a rider as well. The same is
that so far as knowledge is concerned, the prosecution, in a
case of present nature cannot be called upon to establish
that the conspirator had knowledge that the goods in
question would be used for blasting of bombs at Bombay. This
follows, according to the Addl. Solicitor, from the decision
of the United States Supreme Court in Fegla.
12. Let us first see what was held in Hawkesley. The facts
of that case are that the accused was a partner with Z in a
small taxi business. A and B, two young men with some
previous criminal record, who were fairly well known to Z
but less well known to the prisoner, H, persuaded H to drive
them on credit from the taxi office in the centre of the
city at about 12.25 a.m. a distance of about five miles to
the outskirts of the city. H did not know that either A or B
had criminal records. On the journey A and B informed H that
the purpose of the journey was to break into a golf club. H
dropped A and B near the golf club and a police officer
overheard one of them say, “We will want you back in about
an hour”. H never did return to the golf club but returned
to the city where he drove some other fares which had been
previously booked after which he went home taking his taxi
with him.
A and B ran away from the golf club on being disturbed
be the police and were later arrested together. A and B were
charged with being in possession of house-breaking
implements by night and A, B and H were charged with
conspiracy to break and enter the club. A and B pleaded
“guilty” to both counts and H pleaded “not quilty” to the
count of conspiracy against him. When A end B were arrested
a torch which was usually kept in the taxi was found in
their possession. H made a statement to the police in
writing in which he said that on the journey he learnt that
A and B were “Going to do the club”.
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13. The evidence as to how a torch came into possession of A
and B was conflicting. There was no evidence that the
accused knew, until the journey in the taxi had begun, that
A and B intended to commit a criminal offence or that he had
any reason to suspect that they intended to do so. It was,
therefore, held that there was no evidence as to conspiracy
because of lack of evidence that the accused and A and B
were acting in concert or had agreed together to commit a
criminal offence. It is brought to our notice that this
Court in Natwar Lal’s case (supra) had also held that
knowledge of conspiracy is necessary as appears from what
was stated at page 667 of the Report. Shri Jethmalani,
therefore, submits that mere knowledge that somebody would
commit an offence would not be sufficient to establish a
case of criminal conspiracy, unless there be evidence to
show that all had acted in concert or had agreed together to
commit the offence in question.
14. The discussion in Lauria is more illumnating and its
importance lies in the fact that learned counsel of both the
sides have sought to place reliance on this decision.
Fleming, J., who decided the case, was confronted with two
leading cases of the United States Supreme Court pointing in
opposits directions – one was that of United States vs.
Falcne, 311 US 205 wherein sellers of large quantities of
sugaryeast and canes were absolved from participation in a
consipracy among distillelrs who bought from them. In Direct
Sales Co., vs. United States, 319 US 703, however, a
wholesaler of drugs was convicted of conspiracy to violate
the federal narcotic laws by selling drugs in quantity to a
co-assused physician who was supplying them to addicts. The
distinction between these two cases appeared primarily based
on the proposition that distributors of such dangerous
products as drugs are required to exercise greater
discrimination in conduct of their business than are
distributors of innocuuous substances like sugar and yeast.
Fleming, J., therefore, observed that in Falcone the
seller’s knowledge of the illegal use of the goods was
insufficient by itself use of the goods was insufficient by
itself to make the seller privy to a conspiracy with the
distillers who bought from them, whereas in Direct Sales,
the conviction was affirmed on showing that the drug
wholesaler had atively promoted the sale of the drug
(morphine sulphate) in quantity and had sold that same to a
physician who practised in a small town – the quantity being
300 times more than the normal requirement of the drug.
15. The following quotations in Lauria from the decision in
Direct Sales is very pertinent :
“All articles of commerce may be
put to illegal ends,……………
But all do not have inherently the
same susceptibility to harmful and
illegal use……. This difference
is important for two purposes. One
is for making certain that the
seller knows the buyer’s intended
illegal use. The other is to show
that by the sale he intends to
further, promote and cooperate in
it. This intent, when given effect
by over act, is the gist of
conspiracy. While it is not
identical with mere knowledge that
another proposes unlawful action,
it is not uprelated to such
knowledge………. The step from
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knowledge to intent and agreement
may be taken. There is more than
suspicion, more than knowledge,
acquiescence, carelessness,
indifference, lack of conern. There
is informed and interested cooperations stimulations
instigstion.”
16. The learned Judge, after examining they precedent in the
fields thereafter held that sometimes, but not always, the
criminal intent may be inferred from the knowledge of the
accused of the unlawful use made of the goods in question.
He gave two illustrations to bring home the point, one of
which is that the intent may be inferred from
knowledge, when no legitimate use for the goods or
services exists. Being of this view, Fleming , J. held
that the respondent before him (Lauria) had knowledge of
the-criminal activities of the prostitutes, end the same
was sufficient to charge him with that fact, even though
what Lauria had manifestly tone was allowing them, who were
actively plying their trade, to use his telephone. The
prosecution in that case Sad attempted to establish
conspiracy by showing that Lauria was well aware that his
co-defendants were prostitutes, who had received business
calls from customers through his telephone answering
service, despite which Lauria continued to furnish them with
such service. This action of Lauria was regarded as
sufficient to hold that he had conspired with the prostitute
to further their criminal activity.
17. The Additional Solicitor General has, according to us.
stolen a march over the counsel for the accused because of
what was stated in Lauria’s case, as he is undoubtedly right
in submitting that RDX, or for that matter bombs, cannot be
put to any legitimate use but only to illegitimate use; and
it is RDX or bomb which was either handled or allowed to
slip by the accused before us. So, this act by itself would
establish the intent to use the goods for illegitimate
purpose.
18. Another decision to come tn the assistance of the
prosecution is Feola. This decision of the United States
Supreme Court is important because the presented in that
case was whether knowledge that intended victim was a
federal officer essential establish crime of conspiracy
under the relevant provision which made an assault upon a
federal Of while engaged in the performance of his official
duties, an offence. Justice Blackmun, who delivered opinion
far the majority, held that in so far substantial offence is
concerned, to answer question of individual guilt or
innocence, awareness the official identity of the assault
victim irrelevant. It was then observed that the same has
obtain with respect to conspiracy.
19. What had happened in Feola was that he and his
confederates had arranged for sale of heroin to buyers, who
turned out to be undercover agents for the Bureau of
Narcotic and Dangerous Drugs. The planning of the group was
to palm off on the purchasers, for a substantial sum, a form
of sugar in place of heroin and, should that ruse fail,
simply to surprise their unwitting buyers and relieve them
of the cash they had brought along for payment. The plan
failed when one agent on a suspicion being aroused, drew his
revolver in time to counter an assault upon another agent
from the rear. So, instead of enjoying the rich benefits of
a successful swindle, Feola and his associates found
themselves charged, to their undoubted surprise, with
conspiring to assault and assaulting federal officers.
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20. The plea taken by Feola was that he had no knowledge of
the victim’s official identity and as such he could not have
been guilty of conspiracy charge. The Court was, therefore,
first required to find out whether for the substantive
offence of charge envisaged by the punishing section,
awareness of the official identity of the victim was
relevant; and the majority answered the question in
negative, because the offence consisted in assaulting a
federal officer on duty; and undoubtedly there was an
assault and the victim was a federal officer on duty. The
further step which the majority took, and with respect
rightly, was that the same logic would apply with respect to
conspiracy offence.
21. The Additional Solicitor General has thus a point when
he contended that to establish the charge of conspiracy in
the present case, it would not be necessary to establish
that the accused knew that the RDX and/or bomb was/were
meant to be used for bomb blast at Bombay, so Long as they
knew that the material would be used for bomb blast in any
part of the country.
22. As in the present case the bomb blast was a result of
chain of actions, it is contended on behalf of the
prosecution, on the strength of this Court’s decision in
Yash Pal Mittal vs. State of Punjab 1977 (4) SCC 540, which
was noted in para 9 of Ajay Aggarwal’s case that of such a
situation there may be division of performances by plurality
of means sometimes even unknown to one another; and in
achieving the goal several offences may be committed by the
conspirators even unknown to the committed. All that is
relevant is that all means adopted and illegal acts done
must be and purported to be in furtherance of the object of
the conspiracy, even though there may be sometimes misfire
or over-shooting by some of the conspirators.
23. Our attention is pointedly invited by Shri Tulsi
to what was stated in para 24 of Ajay Aggarwal’s case
wherein Ramaswamy, J. stated that the law has developed
several or different models or technique to broach the
scope of conspiracy. One such model is that of a chain,
where each party performs even without knowledge of the
other, a role that aids succeeding parties in
accomplishing the criminal objectives of the conspiracy.
The illustration given was what is done in the process
of procuring and distributing narcotics or an illegal
foreign drug for sale in different parts of the globe. In
such a case, smugglers. Middleman privies to a single
conspiracy to smuggle and distribute narcotics. The
smugglers know that the middlemen must sell to retailers
and the retailers know that the middlemen must buy from
importers. Thus the conspirators at one end at the chain
know that the unlawful business would not, and could not,
stop with their buyers, and those at the other end know that
it had not begun with settlers. The action of each has to
be considered as a spoke in the hub – there being a rim to
bind all the spokes together in a single conspiracy.
24. The aforesaid decisions, weighty as they are, lead us to
conclude that to establish a charge of conspiracy knowledge
about indulgence in either an illegal act or a legal act by
illegal means is necessary. In some cases, intent of
unlawful use being made of the goods or services in question
may be inferred from the knowledge itself. This apart, the
prosecution has not to establish that a particular unlawful
use was intended, so long as the goods or service in
question could not be put to any lawful use. Finally, when
the ultimate offence consists of a chain of actions, it
would not be necessary for the prosecution to establish, to
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bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator
would do, so long as it is known that the collaborator would
put the goods or service to an unlawful use.
When can charge be framed ?
25. This legal question is not as knotty as the first one.
This is for the reason that there are clinching decisions of
this Court on this aspect of the matter.
26. Shri Ram Jethmalani has urged that despite some
variation in the language of three pairs of sections, which
deal with the question of framing of charge or discharge,
being relatable to either a sessions trial or trial of
warrant case or summons case, ultimately converge to a
single conclusion, namely, that a prima facie case must be
made out before charge can be framed. This is what was
stated by a two-Judge Bench in R.S. Naik vs. A. Antulay 1986
(2) SCC 716.
27. Let us note the three pairs of sections Shri Jethmalani
has in mind. These are sections 227 and 228 An so far as
sessions trial is concerned; sections 239 and 240 relatable
to trial of warrant Cases; and sections 245 and (2) qua
trial of summons cases. They read as below:
“Section 227: Discharge – If, upon
consideration of the record of the
case and the documents submitted
therein, and after hearing the
submissions of the accused and the
prosecution in this behalf, the
Judge considers that there is not
sufficient ground for proceeding
against the accused, he shall
discharge the accused and record
his reasons for so doing.
Section 228: Framing of Charge –
(i) If, after such consideration
and hearing as aforesaid, the Judge
is of opinion that there is ground
for presuming that the accused has
committed an offence which
(a) is not exclusively
triable by the Court of Session,
he may frame a charge against the
accused and, by order, transfer
the case for trial to the
Chief Judicial Magistrate
and thereupon the Chief Judicial
Magistrate shall try the offence
in accordance with the
procedure for trial of warrantcases instituted on a police
report;
(b) is exclusively trial by
the Court, he shall frame in
writing a charge against the
accused.
(2) Where the Judge frames
any charge under clause (b) of
sub-section (1), the charge shall
be read and explained to the
accused and the accused shall
be asked whether he pleads
guilty of the offence charged or
claims to be tried.
(Emphasis supplied)
Section 239: When accused shall be
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discharged – If, upon considering
the police report and the document
sent with it under Section 173 and
making such examination, if any, of
the accused as the Magistrate
thinks necessary and after giving
the prosecution and the accused an
opportunity of being heard, the
Magistrate considers the charge
against the accused to be
groundless, he shall discharge the
accused, and record his reasons for
so doing.
Section 240: Framing of charges if,
upon such consideration,
examination, if any, and hearing
the Magistrate is of opinion that
there is ground for presuming that
the accused has committed an
offence triable under this Chapter,
which such Magistrate is competent
to try and which, in his opinion,
could be adequately punished by
him, he shall frame in writing a
charge against the accused
(2) The charge shall then be read
and explained to the accused, and
he shall be asked whether he pleads
guilty of the offence charged or
claims to be tried.
Section 245: When accused shall be
discharged-(1) If, upon taking all
the evidence referred to in Section
244, the Magistrate considers, for
reasons to be recorded, that no
case against the accused has been
made cut which, if unrebutted,
would warrant his conviction, the
Magistrate shall discharge him.
(2) Nothing in this section shall
to deemed to prevent a Magistrate
from discharging the accused at any
previous stage of the case if, for
reasons to be recorded by such
Magistrate, he considers the charge
to be groundless.”
Before adverting to what was stated in Antulay’s case,
let the view expressed in State of Karnataka vs. L.
Muniswamy), 1977 (3) SCR 113 be noted. Therein,
Chandrachud, J. (as he then was) speaking fore a three Judge
Bench stated at page 119 that at the stage of framing
charge the Court has to apply its mind to the question
whether or not there is any ground for presuming the
commission of the offence by the accused. As framing of
charge affects a person’s liberty substantially, need for
proper consideration of material warranting such order
was emphasised.
29. What was stated in this regard in Street Atyachar
Virodhi Parishad’s case. Which was quoted with approval in
paragraph 76 of State of west Bengal vs. Mohd. Khalid, 1995
(1)SCC 684 is that what the Court has to see, while
considering the question of framing the charge, is whether
the material brought on record would reasonably connect the
accused with the crime. No more is required to be inquired
into.
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30. In Antulay’s case, Bhagwati, CJ., opined, after noting
the difference in the language of the three pairs of
section, that despite the difference there is no scope for
doubt that at the stage at which the Court is required to
consider the question of framing of charge, the test of
“prima facie” case has to be applied. According to Shri
Jethmalani, a prima facie case even be said to have been
made out when the evidence, unless rebutted, would make the
accused liable to conviction. In our view, better and
clearer statement of law would be that if there is ground
for presuming that the accused has committed the offence, a
court can justifiably say that a prima facie case against
him exists, and so, frame charge against him for committing
that offence”.
31. Let us note the meaning of the word “presume”. In
Black’s Law Dictionary it has been defined to mean “to
believe or accept upon probable evidence”. (Emphasis ours).
In Shorter Oxford English Dictionary it has been mentioned
that in law “presume” means “to take as proved until
evidence to the contrary is forthcoming” , Stroud’s Legal
Dictionary has quoted in this context a certain judgement
according to which “A presumption is a probable consequence
drawn from facts (either certain or proved by direct
testimony) as to the truth of a fact alleged.” (Emphasis
supplied). In Law Lexicon by P. Ramanath Aiyer the same
quotation finds place at page 1007 of 1987 edition.
32 The aforesaid shows that if on the basis of materials
on record, a court could come to the conclusion that
commission of the offence is a probable consequence, a case
for framing of charge exists. To put it differently, if the
Court were to think that the accused might have committed
the offence it can frame the charge, though for conviction
the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage of
framing of charge, probative value of the materials on
record cannot be gone into; the materials brought on record
by the prosecution has to be accepted as true at that stage.
What is the effect of lapse of TADA ?
————————————-
33. In the written submissions filed on behalf of appellant
Moolchand, it has been urged that TADA having lapsed,
section 1(4) which saves, inter alia, any investigation
instituted before the Act had expired, itself lapsed because
of which it is not open to the prosecution to place reliance
on this sub-section to continue the proceeding after expiry
of TADA.
34. We find no force in the aforesaid submission and would
refer in this connection to a recent three-Judge Bench
decision of this Court in Mohd. Iqbal Vs. State of
Mahasrashtra, JT 1996 (1) SC 114, in which it has been
clearly held that in view of section 1(4) of the Act, the
farmers of the Act had desired that even after its expiry,
the proceeding initiated under the Act should not come to an
end without the final conclusion and determination, which
have, therefore, to be continued in spite of the expiry of
the Act. According to the Bench, there is indeed no scope
for a controversy as to whether any investigation, inquiry,
trial in respect of any offence alleged under TADA shall
come to end as subsection (4) of section (1) protects and
keeps alive such investigation and trial.
FACTUAL ASPECTS OF THE APPEALS
——————————
35. The Legal question having been examined, we may advert
to the facts of each appellant to decide whether a prima
facie case against him exists, requiring framing of charge,
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as has been ordered. Before we undertake this exercise, it
may be pointed out that the learned Designated Court in his
impugned judgment, instead of examining the merits of the
prosecution case qua the charged accused, has given reasons
as to why he discharged 26 accused. A grievance has,
therefore, been made by all the learned counsel appearing
for the accused that this was not the legal approach to be
adopted. We find merit in this grievance inasmuch as the
impugned order ought to have shown that the Designated
Court applied its judicial mind to the materials placed on
record against the charged accused. This was necessary
because framing of charge substantially affects the liberty
of the concerned person. Because of the large number of
accused in the case (and this number being large as regards
charged accused also), the court below might have adopted
the approach he had done. But we do not think it was right
in doing so. Be that as it may, now that we have been
apprised by the prosecution regarding all the materials
which were placed before the Designated Court against each
of the appealing accused, we propose to examine, whether on
the basis of such materials, it can reasonably be held that
a case of charge exists. We would do so separately for each
of the appellants.
36. At this stage, it may be pointed out that the trial
court has, apart from framing individual charge, framed a
general charge. Which, after naming all the 127 charged
accused, reads as under :
“During the period from December,
1992 to April, 1993 at various
places in Bombay, District Raigad
and District Thane in India and
outside India in Dubai (U.A.E.)
Pakistan, entered into a criminal
conspiracy and/or were members of
the said criminal conspiracy whose
object was to commit Terrorist Acts
in India and that you all agreed to
commit following illegal acts
namely to commit terrorist acts
with an intent to overawe the
Government as by Law established,
to strike terror in the people,
to alienate sections of the people,
to adversely affect the harmony
amongst different sections of the
people i.e. Hindus and Muslims by
using bombs, dynamites handgranades
and other explosives substances
like RDX or inflammable substances
or fire-arms like AK-56 rifles,
Carbines, Pistols and other lethal
weapons in such a manner as to
cause or as likely to cause death
of or injuries to any person or
persons, loss of, damage to and
destruction of private and public
properties and disruption of
supplies of services essential to
the life of the community, and to
achieve the objectives of the
conspiracy, you all agreed to
smuggle fire-arms, ammunition,
detonators handgranades and high
explosives like RDX into India and
to distribute the same amongst
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yourselves and your men of
confidence for the purpose of
committing terrorist acts and for
the said purpose to conceal and
store all these arms ammunition and
explosives at such safe places and
amongst yourselves and with your
men of confidence till its use for
committing terrorist acts and
achieving the objects of criminal
conspiracy and to dispose off the
same as need arises. To organise
training camps in Pakistan and in
India to import and undergo weapon
training in Handling of arms,
ammunitions and explosives to
commit terrorist acts. To harbour
and conceal terrorists/coconspirators, and also to aid, abet
and knowingly facilitate the
terrorist acts and/or any act
preparatory to the commission of
terrorist acts and to render any
assistance financial or otherwise
for accomplishing the object of the
conspiracy to commit terrorist
acts, to do and commit any other
illegal acts as were necessary for
achieving the aforesaid objectives
of the criminal conspiracy and
that on 12.3.1993 were successful
in causing bomb explosions at Stock
Exchange Building, Air India
Building, Hotel Centaur at
Santacruz, Zaveri Bazar, katha
Bazar, Century Bazar at Worli,
Petrol Pump adjoining Shiv Sena
Bhavan, Plaza Theatre and in
lobbing handgranades at Macchimar
Hindu Colony, Mahim and at Bay-52,
Sahar International Airport which
left more than 257 persons dead,
713 injured and property worth
about Rs. 27.0 Crores destroyed,
And attempted to cause Bomb
explosions at Naigaum Cross Road
and Dhanji Street, all in the city
of Bombay and its suburbs i.e.
within Greater Bombay.
And thereby committed offences
punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120
(B) of Indian Penal Code read with
Sections 3(2) (i), (ii), 3(3),
3(4), 5 and 6 of TADA (P) Act, 1987
and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and
212 of Indian Penal Code and
offences under Section 3 and 7
read with Section 25 (1A), (1B),
(a) of the Arms Act, 1959, Section
9-B(1), (a), (b), (c) of the
Explosives Act, 1884. Section 3,
4(a), (b), 5 and 6 of the Explosive
Substances Act, 1908 and Section 4
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of Prevention of Damage to Public
Property Act, 1984 and within my
cognizance.
Abu Asim Azmi
37. The specific charge relating to this appellant is as
below :
“In addition to Charge First you
accused Abu Asim Azmi is also
charged for having committed the
following offences in pursuance of
the criminal conspiracy in Charge
First.
SECONDLY that you Abu Asim
Azmi in pursuance of the aforesaid
criminal conspiracy conspired
advocate advised abetted and
knowingly facilitated the
commission of terrorists act and
acts preparatory to terrorists act
i.e. bomb blast and such other act
which were committed in Bombay and
its suburbs on 12.3.93 by agreeing
to do any by doing the following
overt acts.
(a) That you sent Sultan-E-Rome
Ali Gul, Mohmed Iqbal Ibrahim,
Shakeel Ahmed, Shah Nawaz Khan s/o
Faiz Mohmed Khan, Abdul Aziz,
Manzoor Ahmed Mohmed Qureshi,
Shaikh Mohmed Ethesham and Mohmed
Shahid Nizamuddin Qureshi, to
undergo weapon training at Pakistan
in furtherance of the objectives of
the aforesaid criminal conspiracy
by booking their tickets out of
your own funds through M/s. Hans
Air Services which was done by your
firm M/s. Abu Travels and that you
thereby committed an offence
punishable under section 3(3) of
TADA (P) Act, 1987 and within my
cognizance.”
38. The aforesaid shows that the individual charge against
bu is that he had done the act of booking the tickets of the
persons named in the charge; and this was done from his own
funds through M/s. Hans.Air Services. Learned Addl.Solicitor
General states that the financial assistance by this
appellant would attract the mischief of Section 3(3) of TADA
which, inter alia, punishes abetment of a terrorist act.
This would be so because of the enlarged definition of
“abet” as given in section 2 (1) (a), whose clause (iii)
makes rendering of any assistance, whether financial or
otherwise, to a terrorist, an act of abetment. Our attention
is also invited to section 21(2) which has provided that in
a prosecution for an offence under section 3(3) of the Act,
if it is proved that the accused rendered any, financial
assistance to a person accused of, or reasonably suspected
of, an offence under that section, the Designated Court
shall presume, unless the contrary is proved, that such
person has committee of the offence under that provision.
39. Shri Rajinder Singh, appearing for this appellant, did
not consider it necessary to contest the aforesaid legal
position. His sole contention is that the materials sought
to be relied on by the prosecution in alleging that Abu had
booked tickets out of his own funds, which is the gravamen
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of the charge, has no legs to stand inasmuch as there are
materials galore to show that the fund for booking the 11
air tickets for Dubai had come, not from the fund of the
appellant, but the money had been made available to the firm
of the appellant, named Abu Travel Agency, by one Maulana
Bukhari about which Shamim Ahmed working as cashier in the
firm has stated. His statement during investigation was that
on 21.1.1993 two persons had come to his office and handed
over a sum of Rs.1.15 lacs along with 11 passports by saying
“Bukhari Saheb Ne Bheja Hai”(Bukhari Saheb has sent). This
was pursuant to the talk Shamim earlier had with Bukhari who
had inquired as to whether the firm of the appellant could
arrange for 11 air tickets to Dubai, which was answered in
affirmative. The firm of M/s. Hans Air Services was
thereafter contacted and a sum of Rs. 38.000/- was paid in
cash by the appellant and Rs. 73,000/- through drafts whose
numbers are on record. It, however, happened that one
ticket had to be cancelled on 11.3.1993; and because of this
an amount of Rs.9,939/- was credited in the account of
appellant’s firm in the books of M/s. Hans Air Services. It
is really this entry which has been pressed into service by
Shri Tulsi to contend that the money for the journey had
really been paid by the appellant’s firm.
40. According to Shri Rajinder Singh, the fact of aforesaid
credit was not brought to the notice of the appellant’s
firm. Then, as the bomb blasts took place an the next date
i.e. 12th March and as Bukhari was shot dead in the
meantime, the money could not have been returned to Bukhari.
It is, therefore, urged that – the mere fact of the
aforesaid amount having been credited in the name of the
appellant’s firm in the books of M/s. Hans Air Services
cannot at all suggest, in view of the aforesaid statement of
Shamim, which wag duly corroborated by Iftikhar, who was
working at the relevant time as a clerk in M/s. Abu Travels,
that the air journey of the 11 persons was financed by this
appellant. The learned counsel has also submitted that as
the Bombay Police had not asked Shamim during interrogation
about the source of money which had been paid to Hans Air
Services, Shamim had made no statement regarding that, which
he had subsequently made when interrogated by the C.B.I.
Another contention to be advanced is that if the action of
booking the tickets in question would have been a part of
tainted activity, the sum of Rs.73,000/- would not have been
transmitted to Hans Air Services through drafts.
41. Though it appears intriguing as to why only part of the
money was sent through bank and that too by more than one
draft, the aforesaid facts brought to our notice by Shri
Rajender Singh do show that the only incriminating material,
namely, crediting the amount of Rs.9,939/- in the account of
the appellants’ firm in the books of M/s Hans Air Services,
is a weak circumstance to say that the appellant might have
abetted the offences in question, which is the real charge
against him. We may state that as framing of charge affects
a person’s liberty substantially, as pointed out in
Muniswamy’s case (supra), the materials on record must
satisfy the mind of the Court framing the charge that the
commission of offence by the accused in question was
probable. We do not think if a conclusion can
reasonably be drawn only from the above-noted incriminating
fact pressed into service by the prosecution that the
appellant might have abetted the offences in question. There
being no material to frame individual charge under section
3(3) of TADA, we are of the opinion that the general charge
qua this appellant has also to fail, as the only overt act
attributed to him is the aforesaid activity of booking
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tickets.
42. We, therefore, allow the appeal of this appellant,
which arises out of SLP(Crl.) No.3305 of 1995, and order for
his discharge.
Amjad Aziz Meharbaksh
43. The individual charge against with appellant reads as
below :
“In addition to Charge First. you
Amjad Abdul Aziz Meherbux is also
charged for having committed the
following offences in pursuance to
the criminal conspiracy -described
in Charge First :-
SECONDLY :- that you Amjad
Abdul Aziz Meherbux in pursuance of
the aforesaid criminal conspiracy
and during the period January, 1993
to February, 1993 knowingly
facilitated the commission of
terrorist act and acts preparatory
to terrorist act i.e. bomb blast
and such other acts which were
committed in Bombay and its suburbs
on 12.3.1993 by doing the following
overt acts :-
That you permitted your coaccused Yakoob Abdul Razak Memon to
park motor vehicles laden with
arms, ammunition and explosives
which were part of the consignment
smuggled into the country for
committing terrorist act by Mushtaq
@ Ibrahim @ Tiger Abdul Razak Memon
and his associates and were brought
to your premises by co-accused
Abdul Gani Ismail Turq, Asgar Yusuf
Mukadam and Rafiq Madi and also
handed over suit cases containing
hand granades and detonators to
your co-accused Altaf Ali Mustaq
Sayed at the instance of Yakoob
Abdul Razak Memon and thereby you
committed an offence punishable
under section 3(3) of TADA (P) Act,
1987 and within my cognizance.
THIRDLY :- That you Amjad
Abdul Aziz Meherbux in pursuance of
the aforesaid criminal conspiracy
and during the period 3.2.1993
onwards when arms, ammunition and
explosives were smuggled into the
country for committing terrorist
act by Tiger Memon and his
associates were in possession of
part of the consignment i.e, arms,
ammunition, handgranades and
explosives which were brought in
motor vehicles and which were
parked in your compound at the
instance of your co-accused Yakoob
Abdul Razak Memon and. therefore,
you were in possession of these
arms, ammunition, hand granades and
explosives unauthorisedly in
Greater Bombay with an intent to
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aid terrorists by contravening the
provisions of Arms Act, 1959,
Explosives Act, 1884, Explosives
Substances Act, 1908 and Explosives
Rules, 1983 and thereby you
committed an offence punishable
under section 6 of TADA (P) Act,
1987 and within my cognizance.
AND I HEREBY direct that you
all be tried by me on the said
First Charge and Charges framed for
the over acts committed by you in
curse of the same transaction i.e,
in pursuance of the
44. A perusal of the aforesaid charge shows that the
allegation against Amjad is that he had permitted co-accused
Yakoob Abdul-Razak Memon to park motor vehicles laden with
arms, ammunition and explosives in his premises; and that he
was possession of the same. Shri Tulsi contends that this
possession was “conscious” and as such in view of what has
been held by the Constitution Bench in Sanjay Dutt’s case,
1994 (5) SC 910, the appellant was rightly charged under
section 3(3) of TADA. Our attention is invited by the
learned Addl. Solicitor General to the decisions of this
Court in State of Maharashtra vs. Abdul Hamid Haji Mohammed,
1994 (2) SCC 664 and state of West Bengal vs. Mohd. Khalid
etc., 1995 (1) SCC 684, wherein possession of bomb AK-56 was
held sufficient to attract mischief of TADA.
45. In refuting the aforesaid contentions, Shri Jain
submitted that the materials on record show the after this
appellant came to know about the parking of the vehicles,
which were loaded with arms and ammunition, he immediately
asked Yakoob to remove tho jeep from his compound, as has
been mentioned by the designate Court itself in his order
dated 25th September, 1993 by which he had released this
appellant on bail. The Designated Court had further observed
in this connection that this conduct showed that the
appellant was not agreeable to allow Yakoob to park his
vehicles in his compound, which showed that he had not
intentionally aided Yakoob. The Designated Court had taken
this view by relying on what had been stated by this
appellant in his confession, which was sufficiently
corroborated by confession of the co-accused.
46. Shri Jain has, therefore, submitted, and rightly, that
the conduct of the appellant is clearly indicative of the
fact that he was neither in conscious possession of the
arms, ammunition etc. nor had he aided Yakoob Memon in any
way in the terrorist act. We would, therefore, order for the
discharge of this appellant also by allowing his appeal
numbered as Criminal Appeal 810 of 1994. The general charge
would also fail qua this appellant for the reason given
while dealing with the case of the appellant Abu.
Raju @ Rajucode Jain
47. We may note the individual charge against this appellant
which reads as below
“In addition to charge First, you
accused Raju Laxmichand Jain @ Raju
Kodi, is also charged for having
committed the following offence in
pursuance to the criminal
conspiracy described in Charge
first:-
SECONDLY:- That you accused
Raju Laxmichand Jain @ Raju Kodi in
pursuance of the aforesaid criminal
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conspiracy and during the period
from December, 1992 to April, 1993
abetted and knowingly facilitated
the commission of terrorists act
and act preparatory to terrorist
act i.e. serial bomb blast and such
other acts which were committed in
Bombay and its suburbs on 12.3.1993
by agreeing to do and by doing the
following overt acts:-
(a) That you are a close associate
of Mushtaq @ Ibrahim @ Tiger Abdul
Razak
(b) That you participated in
smuggling, landing and
transportation
and explosives (RDX) which were
smuggled into the country by
Mushtaq @ Ibrahim @ Tiger Abdul
Razak Memon and his associates
which landed at Shekhadi on 3rd and
7th February, 1993 by sending your
men and 4 jeeps for facilitating
landing, transportation and
distribution of arms, ammunition
and explosives;
(C) That you lent Motor Scooter
No.MP-14-B-5349 which was purchased
by you in the name of your exemployee P.B. Bali to Mushtaq @
Ibrahim @ Tiger Abdul Razak Memon
and his associates which was
planted as Motor Scooter bomb at
Katha Bazar on 12.3.1993 and
exploded at about 14.15 hours
resulting in death of 4 persons,
inuring 21 and huge loss of
property worth 40 lacs;
and that you thereby committed an
offence punishable under Section
3(3) of the TADA (P) Act, 1987 and
within my cognizance.”
48. Shri Tulsi has urged that there are sufficient materials
on record to bring home the aforesaid charge. We were handed
over a summary of these materials reading as below:
i) Association with Tiger Memon:
Raju Kodi, being the man of
confidence of Tiger Memon, was
dealing in disposal of smuggled
gold and silver since long.
He purchased M/scooter in
April- 1992 and lent the same to
Tiger Memon for smuggling
activities and the same scooter was
used as scooter Bomb and exploded
at Kathya Bazar.
The Registration papers of the
said scooter were recovered at the
instance of the Raju Kodi under a
Panchanama dt. 12/07/1993.
Raju Kodi deposited
Rs.1,61,48,000/- in the ’Hathi’
account maintained by co-accused
Mulchand Shah and belonging to
Tiger Memon during the period from
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07/11/1992 to 4/12/1992. The same
amount was subsequently used by
Tiger Memon for blast purpose. (the
’Hathi’ account note was recovered
at the instance of co-accused
Mulchand Sampatraj Shah.
Raju Kodi purchased the said
M/Scooter and 3 Jeeps under
fictitious names.
Raju Kodi gave his men and
four Jeeps for transportation of
Arms, Ammunition and RDX landed by
Tiger Memon. These Jeeps were
provided with special cavities to
conceal the arms, ammunition and
RDX. These Jeeps were recovered at
his instance under Panchanama dated
1/06/1993. These Jeeps were found
with “traces of RDX vide F.S.L.
Reports.
ii) The accused Azgar Yusuf Mukadam
is narrating in his confessional
statement about the association of
the appellant with Tiger Memon and
dealing with him in smuggling
activities and Hawala money
iii) The co-accused Mulchand
Sampatraj Shah is narrating in his
confessional statement about the
association of the appellant with
Tiger Memon and dealing with him in
smuggling activities and Hawala
money.
iv) The co-accused Salim Mira
Moinddin Shaikh is narrating in his
confessional statement about tie
association with Tiger Memon and
his smuggling activities.
v) the co-accused viz. Abdul Gani
Ismail Turk is narrating in his
confession about association of the
appellant with co-accused Tiger
Memon and dealing in smuggling
activities and Hawala money.
vi) The co-accused Imtiyaz
Yunusmiya Ghavate is narrating in
his confession about association of
the appellant with Tiger Memon and
dealing in smuggling activities and
Hawala Money.”
May it be stated that for the purpose of the present
case, we cannot enter into the probative value of the
statements made by different persons in this regard tending
to support the above.
49. The Sola submission of Shri Jethmalani was that even if
this appellant had knowledge about transportation of arms,
ammunition and RDX brought by Tiger Memon, it cannot be held
in law that he played a part in the conspiracy, and so, the
charge under section 3(3) to the Act has to fail. The
materials do not establish even statement. We are afraid
this submission cannot be accepted because of the concept of
conspiracy explained by us above. Any reasonable person
knowing about transportation of materials like RDX has to be
imputed the intent of its use for illegal purpose there
being no material to show that RDX can be put to any Jegal
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use. Further, as already held, the prosecution has no
obligation under the law to establish that the appellant had
know that the RDX, and for that matter other objectionable
materials would be used for the purpose of blasts which had
taken place in Bombay. The alleged fact that the jeeps
provided by the appellant had cavities to conceal arms,
ammunition and RDX. and that the Jeeps were recovered at the
instance of the appellant on 1.6.1993 in which were found
traces of RDX. would prima facie show that the appellant
had aided the terrorist act in question , even as per the
definition of the word “abet” given in section 109 of the
Penal Code. The alleged financial assistance provided would
attract the enlarged definition of abetment given in section
2(1)(a)(ii) of the Act.
50. Apropos the case of the persecution that this appellant
kept silence despite knowing about the aforesaid
transportation form his driver, the submission of Shri
Jethmalani is that there is nothing to show as to when the
appellant had know form his driver about this fact. The
learned counsel asked whether the information was given
immediately after the driver had come back or after the bomb
blasts had taken place or after he was arrested ? May we
mention that the fact of knowledge of the aforesaid
transportation was know as per the confessional statement of
the appellant from his driver. The further statement in this
context is that despite knowing this he had not disclosed to
anybody about transportation , which according to the
appellant was due to the fear of police. Shri Jethmalani
asked the just mentioned questions to persuade us to hold
that there was no criminality in the silence of the
appellant in not informing the police about the
transportation. Even if some allowance is made to this part
of the submission of the learned counsel, the law of
conspiracy. being as explained above, a prima facie case
against this appellant under section 3(3) of the Act does
exist. The individual charge as well as the general charge,
therefore, must be maintained in so far as he is concerned.
So his appeal- the same being criminal appeal 793/95 stands
dismissed.
Somnath Thapa
51. This appellant’s role in the tragedy is of a higher
order inasmuch as being an Addl. Collector of Customs,
Preventive, the allegation is that he facilitated movement
of arms, ammunition and explosives which were smuggled into
India by Dawood Ibrahim, Mohmed Dosa, Tiger Memon and their
associates, The Addl. Solicitor General was emphatic that a
full proof case relating to framing of charge against him
does exist. Shri Shirodkar was equally emphatic in
submitting that materials on record fall short of
establishing a prima facie case against this appellant.
52. Let the additional charge framed against him be noted:
“The you Somnath Kakaram Thapa
during the period you were posted
as Additional Collector of Customs,
Preventive, Bombay and particularly
during the period January, 1993 to
February, 1993 in pursuance of the
aforesaid criminal conspiracy and
in furtherance of its object
abetted and knowingly facilitated
the commission of terrorists’ acts
and preparatory to terrorists’’ act
i.e. bomb blast and such other acts
which were committed in Bombay and
its suburbs on 12.3.93 by
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intentionally aiding and abetting
Dawood Ibrahim Kaskar, Mohmed Dosa
and Mushtaq @ Tiger Abdul Razak
Memon and their associates and
knowingly facilitated smuggling of
arms, ammunition and explosives
which were smuggled into India by
Dawood Ibrahim Kaskar, Mohmed Dosa
Mushtaq @ Ibhrahim @ Tiger Abdul
Razak Memon and their associates
for the purpose of committing
terrorists acts by your non
interference inspite of the fact
that you had specific information
and knowledge that arms ammunition
and explosives are being smuggled
into the country by terrorists
Preventive you were legally bound
to prevent it and that you thereby
committed an offence punishable
under Section 3(3) of TADA (p) Act,
1987 and within my cognizance.
53 According to Shri Tulsi the following materials make out
the prima facie case against this appellant:
(i) Association with Mohd.Dosa:
S.N. Thapa has been an
associate of absconding accused
Mohd. Dosa, who has played a major
role in the conspiracy to cause
bomb blasts. The Tel. Nos. (RES. &
official) of S.N. Thapa have been
found entered in the Tel. diary
seized form Mohd. Hanif @ Raju, an
employee of Mohd. Dosa.
(ii) Association with Tiger Memon:
S.N. Thapa has been an
associate of Tiger Memon the prime
accused in the bomb blast case, who
is still absconding. He has been
facilitating the smuggling
activities of Tiger Memon against
illegal gratification.
(iii) Meeting with Tiger Memon and
Gist of Conversation recorded on
Micro cassettes:
An absconding accused Yakub Abdul
Razak Memon was arrested at New
Delhi on 5.8.94. From his
possession a number of include a
manuscript of gist of conversation
recorded on May 19, 1994 on Sony
Micro cassettes, in the garden of
the house of Yakub Memon in Karachi
(Pakistan). Accused Yakub Memon,
Syed Arif (Pakistani National) Hazi
Taufique Jaliawala (Pakistani
National) Tiger Memon, Suleman
Memon and Yub Memon had
participated in the conversation.
This gist of conversation refers to
various matter which show close
association of Tiger Memon with Sh.
Thapa. In the gist of conversation
there is reference of ISI of
Pakistan and Tiger Memon speaking
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that one day Sh. Thapa had arrived
at sea shore at the time of illegal
landing and that Tiger Memon had
paid him Rs.22 lacs for allowing
the smuggling.
The investigation had established
that the said gist of conversation
is in the hand-writing of
accused Yakub Memon. Independent
witnesses and the handwriting
expert have proved his handwriting.
(iv) Statement of L.D. Mhatre,
Mhatre Customs Inspr.:
L.D. Mhatre introduced a
source (witness code No.Q-3360)
to S.N. Thapa and it was decided
that the source would pass on
information about the illegal
landings at Shekhadi to Sh.Thapa,
through Mhatre and on receipt
of the information Nakabandi may
be kept at “Sai Morba-Goregoan
Junction” because that was the
main exit point after the
landing. The source gave an
information of the landing to
Mhatre on 29.1.93 and it was
passed on to Sh.Thapa by
Mhatre. Thapa kept Nakabandi on
the right of 30 & 31st Jan. 1993 at
Purar Phata and Behan Phata on
Mhasla-Goregoan Road leaving
another route open for the escape
of smuggled goods. He did not keep
Nakabandi at the pre-arranged
point. He lifted the Nakabandi
after two days without any
specific reasons.
The source later on informed
Thapa through Mhatre that on the
night of 3.2.93 instead of silver
same chemicals had landed at
Shekhadi. Sh.Thapa did not contact
the source to ascertain further
details. Nor did he inform about it
to his senior officers. He also
did not submit the Operations
Report, as was required.
(v) Statement of Sh.R.K. Singh:
Shri R.K. Singh in his
confession, has stated that on the
night of 1.2.93 at about 2.00 At
Sh.Thapa gave him a telephonic
message saving that something had
happened beyond bankot in
thelimits of Pune Customs and
that he should personally verify.
R.K. Singh, deputed custom
officers for this job. On 4.2.93
another accused M.S. Syed,
Customs Superintendent informed
R.K. Singh that the smuggled goods
and already passed. R.K. Singh
received Rs.3 lacs as illegal
gratification for the landing out
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of which he gave Rs.1 lacs to
Sh.S.N. Thapa.
(v) Awareness about landing :
Sh.S.K. Bhardwaj, Collector of
Customs,(Prev.) issued a letter dt.
25.1.93 addressed to Sh.R.K.
Singh and A.K. Hassan
Asstt.Collectors of Customs,
mentioning that intelligence had
been received that big quantity of
weapons would he smuggled into
India by ISI alongwith gold and
silver and these were likely to be
landed in next 15-30 days around
Bombay, Shrivardhan, Bankot and
Ratnagiri etc. The Collector of
Customs had directed the
subordinate officers to keep a
close watch & that all-time alert
may be kept. The copy of this
letter was also endorsed to
Sh.Thapa, who had seen it on
27.1.93.
In addition to the aforesaid
letter from the statements of the
customs officer, who had
accompanied Sh. Thapa for
akabandi on 30th & 31st Jan.,
1993, it is clear that
Sh.Thapa had knowledge that arms
were likely to he smuggled by Tiger
Memon. He had infact disclosed this
information to the subordinate
officers at the time of nakabandi.
Sh.Thapa was conveyed by
Sh.V.M. Doyphode, another
Addl.Collector of Customs that
landing of smuggled
contrabants was about to take
place near Mhaysla on the night
of 2.2.93 Sh. Thapa intentionally
sent a mis-leading wireless message
that something had happened at
Bankot therefore, maximum alert to
be Wept in Alibagh region.
Bankot is in a different
direction and far away from
Mhasala. Sh.Doyphode had not
mentioned about Bankot.
(vii) Vehicle and Vessel Log Book :
When Nakabandi was kept on
30.1.95 by Sh.Thapa, the Govt.
Maruti van No.MH-01-8579 was also
taken by Sh.Thapa with him.
However, the investigation had
disclosed that the pages of the
109 book for the period 26.1.93
to 16.2.93 were missing from the
log book, as these had been torn
from it.
In Alibagh Div. of Customs
Deptt. one patrol vessel AlNadsem is provided.
A logbook is maintained for
the vessel. The investigation had
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disclosed that an entry dt. 2.2.93
has been made in the logbook
showing the accused J.K. Gurav,
Customs Inspr. alongwith
subordinate staff did see
patroling from Shrivardhan to
Bankot from 2100 hrs of 2.2.93 to
0070 hrs of 3.2.93. The entry is
made by J.K. Gurav, which is
not correct because when compared
with the entries made in the
wireless logbook of Shrivardhan
Customs office it is seen that
patrolling commenced at 2345 hrs.
on 2.2.93 and not on 2100 hrs.
Inspr. Gurav is also an accused in
the case, and had actively
conspired alongwith accused S.N.
Thapa and other customs officers.”
54. From the above gist it appears that the main allegation
to establish the case against Thapa is his allowing the
smuggling of the aforesaid goods by not doing Nakabandi at
the pre-arranged point but at some distance therefrom
leaving an escape route for the smugglers to carry the goods
upto Bombay. To appreciate this case of the prosecution, it
would be useful to know the topography of the area, as would
appear from the following rough sketch handed over by Shri
Tulsi:-
55. Shri Tulsi contended that Thapa had been forewarned by
a communication of Shri S.K. Bhardwaj, Collector of Customs
(Preventive) dated 25.1.93 addressed to S/Shri R.K. Singh
and A.K. Hassan, Asstt. Collectors of Customs, that
intelligence had been received that big quantity of weapons
would be smuggled into India by Ist alongwith gold and
silver which were likely to land in next 15-30 days around
Bombay, Shrivardhan, Bankot and Ratnagiri etc., a copy of
which was endorsed to Thapa, who had seen the same. In fact
he disclosed this information to his subordinate officers
also. (The fact that Thapa had received a copy of the
letter, about which Shri Shirodkar mentioned many a time,
has no significance as copy was apparently sent to apprise
Thapa of the contents, requiring him to take such steps as
would have been within the ken and competence of a high
custom official on the preventive side like him). It
deserves to be noted that the information was not only about
smuggling of gold and silver alone, but of weapons and that
too by the ISI-an agency alleged to be extremely inimical to
India. This is not all. Indeed, there are material on record
to show that Thapa had information about landing of RDX
(described as ’Kala Sabun’ in the under-world) at Shekhadi
and Shrivardhan on 3.2.93. According to Addl. Solicitor
General, Thapa had facilitated the movement or be used to
receive fat sum of money from Tiger Memon as quid pro quo
for help in his smuggling activities.
56. Shri Shirodkar strongly refuted the contentions of the
Addl.Solicitor General and, according to him, Nakabandi had
been done at the places suggested by the local officers like
Inspectors Agarkar and Kopikar, who had better knowledge of
the place of the Nakabandi, and therefore, no fault can be
found with Thapa for having done Nakabandi at a wrong place.
As to the motive ascribed, the submission was that to
sustain the same the only matter is of conversation found
from the possession of absconding accused Yakub Memon who
was arrested at New Delhi on 5.8.94. The conversation itself
was recorded on a cassette, which, according to Shri
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Shirodkar, was not at all audible as was certified by the
Doordarshan Center of Bombay. The learned counsel would also
require us to bear in mind that Thapa had been granted bail
not only by this Court on 5.9.1994, but subsequently by the
Designated Court on 7.2.1795, which had been done bearing in
mind the materials which had come on record till then.
57. A perusal of the statement made by aforesaid two
Inspectors shows that they had made two statements at two
points of time. The first of these has been described as
“original statement’ by Shri Shirodkar in his written note
and the second as “further statement”. In the original
statement, these two Inspectors are said to have told Thapa,
on being asked which would be crucial places for laying
trap, that the same were Purar Phata and Behan Phata, at
which places trap was in fact laid. But then, in the further
statement the Inspectors are said to have opined that watch
should be kept at Sai-Morba-Goregoan junction, because that
was the main exit point for smuggling done at Shrivardhan
and Shekhadi. Shri Shirodkar would not like us to rely on
what was stated subsequently by these Inspectors, as that
was under pressure of investigation undertaken subsequently
by the C.B.I. We do not think that the law permits us to
find out at this stage as to which of the two versions given
by two Inspectors is correct. We have said so because at the
stage of framing of charge probative value of the statement
cannot be gone into, which would come to be decided at the
close of the trial. There is no doubt that if the subsequent
statement be correct, Nakabandi was done not at the proper
place, as that left Sai-Morba Road free for the smugglers to
carry the goods upto Bombay.
58. Shri Shirodkar submitted that the Nakabandi was
organised at Purar Phata and Behan Phata also because a trap
has to be laid at a little distance from the crucial point
so that it may not come to the notice of all and sundry,
which may prove abortive, as information about the same may
be passed on to the smugglers. We do not propose to express
any opinion on this submission also, as this would be a
matter to be decided at the trial when defence version of
the case would be examined.
59. As to the motive sought to be established on the basis
of a gist of the taps recorded conversation said to have
been recovered from absconding accused Yakub Memon, which
contained the statement that one day Thapa had arrived at
sea shore at the time of illegal landing and Tiger Memon had
paid him Rs. 22 lacs for allowing the smuggling, the
submission of the learned counsel is that it is hard to
believe that Yakub Memon would have carried in his pocket a
gist like the one at hand. Even if we were to give some
benefit to the appellant on this score, that would tend to
demolish the case of the prosecution mainly relatable to
motive, which is not required to be established to bring
home an accusation. As to Thapa, the allegation relates to
facilitating movement of arms, RDX etc., which act would
amount to abetment, as it would be an assistance, which
would attract clause (iii) of section 2(i)(a) of the Act,
defining the word ’abet’. It may be noted that the
individual charge against Thapa is for commission of offence
under section 3(3) of TADA, which, inter alia, makes
abetment punishable.
60. Shri Shirodkar submitted that the investigating agency
wanted to rope in Thapa any how, which was apparent from the
fact that it took recourse to even manufacturing of
evidence, as telephone number of Dawood Ibrahim was fed in
the digital diary found at the residence of this appellant
on search being made. Shri Tulsi explained as to how this
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aspect of the matter, except observing that investigation at
times is either sluggish or over zealous – it may over shoot
also.
61. All told, we are satisfied that charges were rightly
framed against Thapa. This takes us to the State’s appeal
arising out of SLP (Crl.) No. 2196 of 1995 in which the
prayer is to cancel the bail of Thapa, which was ordered by
this court on April 5, 1994 and then by the Desingated Court
by its order dated February 7, 1995. A perusal of this
Court’s order shows that when it had examined the matter,
charge-sheet had not been submitted. It was, therefore,
desired that the Designated Court should reconsider in
matter with a view to finding out whether the evidence
collected in the course of investigation showed his
involvement. A perusal of Designated Court’s order shows
that though according to it a case was made out by the
prosecution against Thapa, it took the view that there was
want of material which could be tendered as substantive
evidence to prove association of Thapa with Tiger Memon and
his associates. And so, it allowed Thapa to continue on
bail. On these special facts, we are not satisfied if a case
for cancellation of bail has been made out, despite our
taking the view that charges were rightly framed against
him. The State’s appeal is, therefore, dismissed.
Conclusion
62. To conclude, appeals of Abu Asim Azmi and Amjad Aziz
Meherbux are allowed and they stand discharged. Appeals of
Raju @ Rajucode Jain and Somnath Thapa are dismissed. The
appeal of State is also dismissed.
63. Before parting, we may say that alongwith these appeals
we had heard the case of one Mulchand Shah, being covered by
SLP (Crl. ) No.894 of 1995. But, by an order passed on
31.1.1996 that SLP had been delinked from these cases, on
the prayer of counsel for Shah and was ordered to be listed
separately. So we have not dealt with that SLP.
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CASE NO.:
Appeal (crl.) 1716 of 2007
PETITIONER:
ONKAR NATH MISHRA & ORS.
RESPONDENT:
STATE (NCT OF DELHI) & ANR.
DATE OF JUDGMENT: 14/12/2007
BENCH:
ASHOK BHAN & D.K. JAIN
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P. (Criminal) No. 2516 of 2007)
D.K. JAIN, J.:
Leave granted.
2. This appeal by the three accused arises out of the order
dated 5.3.2007, passed by the High Court of Delhi, dismissing
the Criminal Revision Petition No. 92 of 1998 filed by them. In
the said petition, a prayer was made by the appellants to
quash the charge sheet and the consequential proceedings
arising out of First Information Report (F.I.R) No. 155 of 1995,
instituted in the court of Metropolitan Magistrate, New Delhi.
Appellants No. 1, 2 and 3 are respectively the father-in-law,
sister-in-law and the husband of the complainant.
3. A few facts, leading to the present proceedings and
necessary to dispose of the appeal are:
The marriage between the complainant and appellant No.
3 was solemnized at New Delhi on 5.12.1993. After the
marriage, the complainant was residing at her matrimonial
home in Delhi. It appears that there was some matrimonial
discord between the complainant and her husband, appellant
No. 3, which resulted in filing of a complaint by the
complainant on 17.5.1994 in the Crime against Women
(\023CAW\024 for short) Cell, Delhi, inter alia, alleging that she was
harassed by her husband and in-laws. However, the matter
was compromised on 26.6.1994 and as agreed, on 3.7.1994,
the complainant joined her husband at Bijnore (U.P.), where
he was posted. However, she returned back to her parental
home in Delhi in mid-August 1994, as she was expecting a
child.
4. On 8.11.1994, she lodged another complaint in CAW
Cell. The said complaint was the foundation for registration of
F.I.R. No. 155 of 1995, alleging commission of offences by the
appellants under Sections 498A, 406/34 of the Indian Penal
Code (\023I.P.C.\024, for short). For the sake of ready reference, the
same is extracted below:
\023I, Neetu, d/o R.P. Dixit W/o Ashutosh Misra
wish to inform you that as per compromise in
the Cell on 22.6.1994 with my husband I went
to Bijnore on 3.7.1994 on the suggestion of my
husband I came to Delhi along with my
parents on 12.8.1994 for delivery. I gave birth
to a son on 4.9.1994. My husband came to
hospital on 5.9.1994 and requested me to
come to Bijnore after 40 days. He gave me no
money for expenditure. When I left Bijnore he
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gave me only Rs.1/- only. I did not receive any
phone from him till 7th November, 1994. Then
I phoned him and told him that he was
required to go to Cell on 28.10.1994. He told
me that he has no time to go to Cell and to
bring me to Bijnore. You can come to Bijnore
if you apologize to my father. Keep him happy,
obey my sister and talk to your father to give
you Rs.50,000/- and VCR to bring with you.
Then I can come to bring you. If you come
here alone with the child, we will give you good
beatings.
My husband came to Rajouri Garden every
Saturday \026 Sunday in September \026 October
and on Dushera & Diwali. This can be verified
from neighbour Hira Lal and Smt. Nirmala
Sharma, President Mahilla Jagriti Samiti.
Almost 2 weeks ago, Hira Lal informed me that
my husband took away all my belongings with
him at 4 A.M.
In view of above facts, I think these three
persons are conspiring. Therefore, I request
that my case may be re-opened and my fatherin-law, husband and sister-in-law may be
punished.\024
(emphasis supplied)
5. As noted above, on the basis of the said report, an F.I.R.
was registered on 4.4.1995, wherein date and hours of
occurrence was mentioned as 5.12.1993 to 12.8.1994. Before
the registration of the F.I.R., another statement of the
complainant was recorded wherein she alleged misbehaviour
on the part of her father-in-law, appellant No. 1. In the said
statement, she stated that, \023my father-in-law and sister-in-law
clearly warned him that till the time I will not bring
Rs.50,000/- cash and V.C.R. they will not keep me\024. She also
alleged that when she asked for return of the Stridhan, they
refused to return the same \023with fraudulent intentions\024. After
investigation by the CAW Cell, the charge-sheet was filed on
15.7.1995. In the charge-sheet, it has been recorded that
despite issue of notice under Section 160 Cr.P.C. to the
complainant and her father by the ASI, neither the
complainant nor her father turned up to take back her
Stridhan , which was alleged to be with the appellants. It has
been noted that the complainant does not want to take back
her Stridhan.
6. At the time of framing of charge, the Metropolitan
Magistrate came to the conclusion that no case under Section
406 had been made out against any of the accused and
further case under Section 498A was also not made out
against the father-in-law and sister-in-law, being appellants
No. 1 and 2. Accordingly, he discharged all the appellants for
offences under Section 406 I.P.C. and appellants No. 1 and 2
for offences under Section 498A I.P.C.
7. Against the said order, the State preferred Revision
Petition to the Sessions Court. Vide order dated 24.1.1998,
the Additional Sessions Judge came to the conclusion that a
prima facie case under Sections 498A and 406 I.P.C. was
made out against all the appellants. Accordingly, he directed
the trial court to proceed with the case against all the
appellants under Sections 498A/406/34 I.P.C. and frame the
charges accordingly.
8. Being aggrieved, the appellants filed a Criminal Revision
Petition before the High Court. As noted above, the said
Revision Petition was dismissed. It is this order of the High
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Court, which is questioned in this appeal.
9. Appellant No. 1, appearing in person, argued the case on
behalf of all the appellants. It was vehemently contended that
the Additional Sessions Judge as well as the High Court have
failed to appreciate that the first complaint dated 8.11.1994
lodged by the complainant on the CAW Cell, which was the
foundation for the registration of F.I.R. No. 155 of 1995, did
not contain any allegation of demand of dowry or harassment
by appellants No. 1 and 2. It was submitted that even if the
allegations in the statement of the complainant dated 4.4.1995
are taken at their face value, yet the appellants cannot be
connected with offences under Sections 406 or 498A I.P.C.,
particularly when admittedly after 3.7.1994, when she joined
her husband at Bijnore, she had never lived with appellants
No. 1 and 2. It is asserted that the said statement was an
after thought, made after almost 8 months of the alleged
occurrence.
10. Learned counsel appearing on behalf of the complainant
and the State supported the view taken by the High Court.
11. It is trite that at the stage of framing of charge the court
is required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom,
taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the
court is not expected to go deep into the probative value of the
material on record. What needs to be considered is whether
there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has
been made out. At that stage, even strong suspicion founded
on material which leads the court to form a presumptive
opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of
charge against the accused in respect of the commission of
that offence.
12. In State of Karnataka Vs. L. Muniswamy , a three
judge Bench of this Court had observed that at the stage of
framing the charge, the Court has to apply its mind to the
question whether or not there is any ground for presuming the
commission of the offence by the accused. As framing of
charge affects a person\022s liberty substantially, need for proper
consideration of material warranting such order was
emphasized.
13. Then again in State of Maharashtra and others Vs.
Som Nath Thapa and others , a three judge Bench of this
Court, after noting three pairs of sections viz. (i) Sections 227
and 228 insofar as sessions trial is concerned; (ii) Sections
239 and 240 relatable to trial of warrant cases; and (iii)
Sections 245 (1) and (2) qua trial of summons cases, which
dealt with the question of framing of charge or discharge,
stated thus:
\023if on the basis of materials on record, a court
could come to the conclusion that
commission of the offence is a probable
consequence, a case for framing of charge
exists. To put it differently, if the court were
to think that the accused might have
committed the offence it can frame the
charge, though for conviction the conclusion
is required to be that the accused has
committed the offence. It is apparent that at
the stage of framing of a charge, probative
value of the materials on record cannot be
gone into; the materials brought on record by
the prosecution has to be accepted as true at
that stage.\024
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14. In a later decision in State of M.P. Vs. Mohanlal Soni ,
this Court, referring to several previous decisions held that the
crystallized judicial view is that at the stage of framing charge,
the court has to prima facie consider whether there is
sufficient ground for proceeding against the accused. The
court is not required to appreciate evidence to conclude
whether the materials produced are sufficient or not for
convicting the accused.
15. Having noted the broad guidelines to be kept in view
while deciding whether or not a charge against the accused is
to be framed, we may advert to the facts of the present case to
decide whether on the basis of the material placed before the
trial court, it can reasonably be held that a case for framing
charges against the appellants under Sections 498A and 406
I.P.C. exists. However, before undertaking this exercise it
would be apposite to briefly note the essential ingredients of
Sections 406 and 498A I.P.C.
16. According to Section 405 I.P.C., the offence of criminal
breach of trust is committed when a person who is entrusted
in any manner with the property or with any dominion over it,
dishonestly misappropriates it or converts it to his own use, or
dishonestly uses it, or disposes it of, in violation of any
direction of law prescribing the mode in which the trust is to
be discharged, or of any lawful contract, express or implied,
made by him touching such discharge, or wilfully suffers any
other person so to do. Thus in the commission of the offence
of criminal breach of trust, two distinct parts are involved.
The first consists of the creation of an obligation in relation to
the property over which dominion or control is acquired by the
accused. The second is a misappropriation or dealing with the
property dishonestly and contrary to the terms of the
obligation created. (See: The Superintendent &
remembrancer of Legal Affairs, West Bengal Vs. S.K. Roy )
17. The term \023cruelty\024, which has been made punishable
under Section 498A I.P.C. has been defined in the Explanation
appended to the said Section, to mean: (i) any wilful conduct
which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb
or health whether mental or physical of the woman; or (ii)
harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand. Therefore, the consequences of \021\024cruelty\024,
which are either likely to drive a woman to commit suicide or
to cause grave injury, danger to life, limb or health, whether
mental or physical of the woman or the harassment of a
woman, where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand are
required to be established in order to bring home an offence
under Section 498A I.P.C.
18. In the present case, from a plain reading of the complaint
filed by the complainant on 8.11.1994, extracted above, it is
clear that the facts mentioned in the complaint, taken on their
face value, do not make out a prima facie case against the
appellants for having dishonestly misappropriated the
Stridhan of the complainant, allegedly handed over to them,
thereby committing criminal breach of trust punishable under
Section 406 I.P.C. It is manifestly clear from the aforeextracted complaint as also the relevant portion of the chargesheet that there is neither any allegation of entrustment of any
kind of property by the complainant to the appellants nor its
misappropriation by them. Furthermore, it is also noted in the
charge-sheet itself that the complainant had refused to take
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articles back when this offer was made to her by the
Investigating Officer. Therefore, in our opinion, the very prerequisite of entrustment of the property and its
misappropriation by the appellants are lacking in the instant
case. We have no hesitation in holding that the learned
Additional Sessions Judge and the High Court erred in law in
coming to the conclusion that a case for framing of charge
under Section 406 I.P.C. was made out.
19. As regards the applicability of Section 498A I.P.C., in the
complaint dated 8.11.1994 there is not even a whisper of a
wilful conduct of appellants No. 1 and 2 of harassment of the
complainant at their hands with a view to coercing her to meet
any unlawful demand by them so as to attract the provisions
of Section 498A read with Explanation thereto. The complaint
refers to the talk the complainant purports to have had with
her husband, appellant No. 3, who is alleged to have told her
to come to Bijnore if she apologizes to his father; keeps him
happy; obeys his sister and talks to her father (complainant\022s)
to give her Rs. 50,000/- and V.C.R. and brings these articles
to Bijnore. We are convinced that the allegation of
misbehaviour on the part of appellant Nos.1 and 2 and the
demand of Rs. 50,000/- and V.C.R. by them made by the
complainant in her subsequent statement, dated 4.4.1995,
was an after thought and not bona fide. Section 498A I.P.C.
was introduced with the avowed object to combat the menace
of dowry deaths and harassment to a woman at the hands of
her husband or his relatives. Nevertheless, the provision
should not be used as a device to achieve oblique motives.
Having carefully glanced through the complaint, the F.I.R. and
the charge-sheet, we find that charge under Section 498A
I.P.C. is not brought home insofar as appellant Nos. 1 and 2
are concerned.
20. Consequently, we allow the appeal partly; quash the
charge framed against all the appellants under Section 406
I.P.C.; quash the charge framed against appellant Nos. 1 and 2
under Section 498A I.P.C. and dismiss the appeal of appellant
No. 3 against framing of charge under Section 498A I.P.C.
Needless to add that the trial court shall now proceed with the
trial untrammeled by any observation made by the Additional
Sessions Judge and upheld by the High Court in the impugned
order or by us in this judgment.
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PETITIONER:
STATE OF MADHYA PRADESH
Vs.
RESPONDENT:
MOHANLAL SONI
DATE OF JUDGMENT: 19/07/2000
BENCH:
Shivaraj V. Patil, S.R.Babu
JUDGMENT:
Shivaraj V. Patil,J.
This petition is by the State of Madhya Pradesh
directed against the order dated 10.11.1998 passed by the
High Court of Madhya Pradesh in criminal Revision No.
274/98 by which the charges framed against the respondent
under Section 13(1)(e) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (for short the ’Act’)
were quashed.
The relevant and necessary facts to dispose of this
petition are:
The respondent was working as a Road Transport
Inspector in the Regional Office of the Road Transport
Corporation, Bhopal and is a public servant as such. A
complaint under Section 13(1)(e) read with Section 13(2) of
the Act for the check period 25.9.1982 to 27.3.1993 was
filed stating that he had acquired the property in excess of
the known source of his income. During the investigation
properties and assets belonging to his mother-in- law,
father, brother and nephew were shown as assets of the
respondent. The assets of his wife, who is an income-tax
payer and a self-earning member, were also connected with
the assets of the respondent. While submitting charge sheet
several important documents, which were collected during the
course of investigation, were withheld. According to the
respondent the said documents supported him. If those
documents were considered even prima facie there was no
scope to frame charges against him. At the time of framing
charges the respondent made an application seeking
production of these documents in court before proceeding to
frame charge. But the said application was rejected stating
that for the purpose of framing charges only the documents
forwarded to the court under Section 173(5) Cr.P.C. need to
be considered. Hence he filed Criminal Revision No. 337/97
in the High court. The said Revision Petition was disposed
of by the order dated 8.9.1997 in the following terms: –
“In the result the revision is allowed, the order
impugned is set-aside and it is directed that the documents
made available by the accused during investigation be
produced and may be taken into consideration by the court
below while framing the charge.”
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Thereafter the trial court framed charges under
Section 13(1)(e) read with Section 13(2) of the Act.
Aggrieved by the order dated 4.4.1988 framing charges in the
Special Case No. 26/96 by the Special Judge, Indore, the
respondent filed Criminal Revision No. 274/98. The High
Court by order dated 10.11.1998 accepted the case of the
respondent, set aside the order of the learned Special
Judge, Indore, framing charges and discharged the
respondent. In these circumstances the State has come up in
this petition challenging the said order of the High Court.
The learned Senior Advocate for the petitioner
contended that at the stage of framing charges for offence
under section 13(1)(e) read with Section 13(2) of the Act
the Trial Judge was not required to consider documents like
income-tax return and income-tax orders and calculation
chart of the accounts; the documents like income-tax
assessment orders and calculation chart submitted by the
respondent ought not to have been accepted at the stage of
framing charges without proving them and that those
documents could be proved during trial by the author as per
the provisions of Evidence Act. He referred to and relied
on the decision of this Court in State of M.P. vs. S.B.
Johari and Others .
On the other hand, the learned senior counsel for the
respondent submitted that the order impugned in this
petitioner is unassailable; the trial court committed
manifest error in not considering the documents collected
during the course of investigation though produced late but
before framing charges, by the investigating agency itself
pursuant to the order dated 8.9.1997 passed by the High
court in criminal Revision No. 337/97 which prima facie
supported the respondent; and that the High Court having
considered all the material that was available at the time
of framing charges rightly set aside the order of the trial
court framing charges and discharged the respondent.
We have examined the rival submissions made by the
learned senior counsel for the parties. Our attention was
specifically drawn to the earlier order of the High court
dated 8.9.1997 passed in Criminal Revision No. 337/97 in
which the trial court was directed that the documents made
available by the accused during investigation be produced
and they be taken into consideration by the court while
framing charges. The said order became final, it having not
been challenged further. In this situation the parties and
the trial court were bound and governed by the said
direction. Since the trial court did not follow the said
direction, the High Court having considered all the material
including the documents produced by the prosecution itself,
which were collected during the course of investigation, and
on being prima facie satisfied taking the documents on their
face value held that no offence was made out and as such no
charge could be framed against the respondent. In this
view, the High Court set aside the order of the trial court
and passed the order discharging the respondent. The High
Court in the order under appeal has elaborately considered
the documents collected during the course of investigation
and produced by the prosecution itself which were available
at the time of framing charges. It may be added that most
of the documents relate to the income-tax returns or
income-tax assessment orders. All these documents pertain
to the period prior to 26.3.1993. Some of them even relate
to the year 1988. In the normal course the documents could
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not have been prepared in anticipation that the respondent
would have to face such charges on a future date. The
documents being the orders of assessment or return filed
with the income- tax authorities on their face value
supported the case of the respondent. The High Court in the
order dated 8.9.1997 passed in Criminal Revision No. 337/97
relied on the decision of this Court in Satish Mehra vs.
Delhi Administration and Another . In the said decision it
is held: –
“The object of providing such an opportunity as is
envisaged in Section 227 of the Code is to enable the Court
to decide whether it is necessary to proceed to conduct the
trial. If the case ends there it gains a lot of time of the
Court and saves much human efforts and cost. If the
materials produced by the accused even at that early stage
would clinch the issue, why should the Court shut it out
saying that such documents need be produced only after
wasting a lot more time in the name of trial proceedings.
Hence, we are of the view that sessions Judge would be
within his power to consider even materials which the
accused may produce at the stage contemplated in section 227
of the Code.”
Be that it may, when the said order attained finality
as already noticed above, the trial court was bound to
follow the directions given therein. Its failure to follow
the directions resulted in framing charges against the
respondent ignoring the documents, which on their face value
supported the respondent.
The crystallized judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding against
the accused. The court is not required to appreciate
evidence to conclude whether the materials produced are
sufficient or not for convicting the accused.
In Anand Bezbaruah vs. Union of India the Gauhati
High Court was of the view that where accused was charged
with the offence of having resources and property
disproportionate to his income and trial court failed to
consider and evaluate the income tax return which clearly
established that the property included in the assets of
accused and shown to be disproportionate is the wife’s
property bought from her own resources and should have been
excluded from assets of the accused.
Yet in another decision of this Court in Niranjan
Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya and
Others it is held that at the time of framing charges having
regard to Sections 227 and 228 of Cr.P.C. the court is
required to evaluate the material and documents on record
with a view of finding out if the facts emerging there from
taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. The court may
for this limited purpose to sift the evidence, as it cannot
be expected even at the initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or broad probabilities of the case.
Further in Satish Mehra’s case (supra) this Court has
stated that the Sessions Judge was not expected to hold a
roving inquiry into the pros and cons of the case at the
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stage of framing charges by weighing the evidence as if he
was conducting the trial.
Decision in the case of State of M.P. vs. J.B.
Johari and Others (cited above), strongly relied on by the
learned counsel for the petitioner, in our view does not
advance or support the case of the petitioner. That was a
case where FIR was lodged at the Police Station, Bhopal to
the effect that there was criminal conspiracy in purchase of
medicines by the concerned hospital authorities including
Dean, Superintendent, Medical Officer In- charge and others.
It was alleged that aforesaid accused entered into criminal
conspiracy with some local businessmen of Indore by misusing
their posts and also by using some forged documents caused
wrongful loss to the Government. It was stated that though
many of items had not been purchased, amount was paid on
bogus vouchers. After considering the material on record,
learned Sessions Judge framed the charges against the
accused for the offence punishable under Section 5(1)(d) and
5(2) of the Prevention of Corruption Act, 1948 read with
Section 120B IPC and in the alternative for the offence
punishable under Section 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act, 1988. The High Court in
revision quashed the charges accepting the contentions
raised by the accused after detailed consideration of
material produced on record. Having regard to the facts and
circumstances of the case and referring to earlier decisions
of this Court in paragraph 4 it is held thus:
“4. In our view, it is apparent that the entire
approach of the High Court is illegal and erroneous. From
the reasons recorded by the High Court, it appears that
instead of considering the prima facie case, the High Court
has appreciated and weighed the materials on record for
coming to the conclusion that charge against the respondents
could not have been framed. It is settled law that at the
stage of framing the charges, the Court has to prima facie
consider whether there is sufficient ground for proceeding
against the accused. The Court is not required to
appreciate the evidence and arrive at the conclusion that
the materials produced are sufficient or not for convicting
the accused. If the Court is satisfied that a prima facie
case is made out for proceeding further then a charge has to
be framed. The charge can be quashed if the evidence which
the prosecutor proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged by
cross examination or rebutted by the defence evidence, if
any, cannot show that accused committed the particular
offence. In such case, there would be no sufficient ground
for proceeding with the trial. In Niranjan Singh Karam
Singh Pubjabi etc. v. Jitendra Bhimraj Bijjayya and Others
etc. reported in (1990) 4 SCC 76, after considering the
provisions of Sections 227 and 228, Cr.P.C., Court posed a
question, whether at the stage of framing the charge, trial
court should marshal the materials on the record of the case
as he would do on the conclusion of the trial? The Court
held that at the stage of framing the charge inquiry must
necessarily be limited to deciding if the facts emerging
from such materials constitute the offence with which the
accused could be charged. The Court may peruse the records
for the limited purpose, but it is not required to marshal
it with a view to decide the reliability thereof. The Court
referred to earlier decisions in State of Bihar v. Ramesh
Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar
Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal
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Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274,
and held thus:
“From the above discussion it seems well settled that
at the Sections 227-228 stage the court is required to
evaluate the material and documents on record with a view to
finding out if the facts emerging therefrom taken at their
face value disclose the existence of all the ingredients
constituting the alleged offence. The Court may for this
limited purpose shift the evidence as it cannot be expected
even at the initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common sense
or the broad probabilities of the case.”
As is evident from the paragraph extracted above if
the Court is satisfied that a prima facie case is made out
for proceeding further then a charge has to be framed. Per
contra, if the evidence which the prosecution proposes to
produce to prove the guilt of the accused, even if fully
accepted before it is challenged by the cross-examination or
rebutted by the defence evidence, if any, cannot show that
accused committed the particular offence then the charge can
be quashed.
From the decisions referred to in the same paragraph
and the decisions already referred to above there was no bar
to consider the material on record in the case on hand,
which was collected during the course of investigation and
produced before the court and particularly in view of the
directions given earlier by the High Court.
In this view, the High Court looking to the material
and documents that were made available at the stage of
framing charges on their face value in the light of the
directions given earlier in Criminal Revision No. 337/97
and bearing in mind the position in law concluded that
charges could not be framed against the respondent,
consequently, set aside the order of trial court and
discharged the respondent.
On the facts and in the circumstances of the case and
having regard to the legal position stated above, we see no
good reason or valid ground to upset the impugned order.
Hence the petition is dismissed. No costs.
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PETITIONER:
KUNDULA BALA SUBRAHMANYAM AND ANR.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT26/03/1993
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
SINGH N.P. (J)
CITATION:
1993 SCR (2) 666 1993 SCC (2) 684
JT 1993 (2) 559 1993 SCALE (2)214
ACT:
Evidence Act 1872: Section 3–Appreciation of
evidence–Criminal trial–Case based on circumstantial
evidence–Proof–Court’s duty to scrutinize
evidence–Motive, oral dying declarations, medical evidence,
conduct of accused immediately and after the evidence,
absconding of accused–Whether prosecution proved beyond
reasonable doubt.
Evidence Act, 1872: Section 32–Dying declaration–proof
of–Acceptance by Court when–More than two dying
declarations–Trustworthy test–Court’s duty.
The Dowry Prohibition Act, 1961: Object and purpose
of–Cases relating to harassment, torture, abetted suicides
and dowry deaths of young brides–Causes–Solutions to such
situations–Court’s role what to be.
HEADNOTE:
The prosecution case was that on 23.8.1981 between 12-30
1.00 p.m., on hearing screams and cry of the deceased, aged
about 18 years, P.W.2 alongwith her father PW3, and PW4
rushed to the house of the appellant They saw the father of
appellant No. 1 (father-in-law of the deceased) alongwith
the husband and mother-in-law of the deceased hurriedly coming out of the kitchen while the deceased was lying on the
floor engulfed in flames.
As the appellant No. 1, did not respond to the request of
PW2 to give her something to extinguish the fire, PW2
requested the father of the appellant No. 1 to give a bedsheet or blanket while the father of the appellant No. 1 was
passing on a bed sheet to PW2, the appellant No. 2 (motherin-law of the deceased) objected. In the meanwhile PW2 took
the bed sheet from the father of the appellant No. 1 and
tried to extinguish the fire. The deceased asked PW2 for
some water. PW3 removed the burning petticoat from the body
of the deceased to save her from further burning. While
doing so he also received some burn injuries. PW2 poured
water into the deceased’s mouth and enquired from her as to
what had happened.
667
The deceased told PW2 that her mother-in- law had poured
kerosene over her and her husband had set fire to her. The
deceased asked for more water, which was again given to her
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by PW2. The deceased’s statement made to PW2 was overheard
by PW3 PW5 and some others who also reached the spot on
hearing her cries.
PW5 went away to inform the matenal uncle of the deceased
with one Ramakrishna on his motor cycle. There PW5 found
PW1, the brother of the deceased and informed about the
burning of the deceased and also what he had heard the
deceased telling PW2.
PW1 reached the house of the appellant with Ramakrishna on
his motor cycle. He saw a number of persons including PWs 2
and 3 gathered there. The deceased was lying on the floor
and she had no clothes on her. PWl noticed that she had
received burn injuries from her breasts downwards to her
legs. On seeing her plight, PWl started crying and hitting
his head against a piller. When the deceased noticed PW1
had come, she asked PW2 to bring her brother inside. PW2
went out and brought PWI to the kitchen. The deceased took
the palm of her brother, PWl into her own palms and told him
to tell mother and father that her mother-in-law poured
kerosene on her and her husband set her or fire. She
requested him that he should not fight, “anyhow she was
dying.” She also told PWl to take back the cash given to her
and to divide it amongst her sisters in equal share and to
get them married to nice persons. The appellant No. 1, the
husband of the deceased came inside the kitchen with folded
hands and begged her for forgiveness saying that he would
not repeat what he had done. PWI got wild and caught hold
of the neck of the appellant No. 1. FIW2 and PW3 rushed
towards them and released the appellant No. 1 from the hold
of PW1. They sent PWI to another uncle’s house and told the
uncle to take care of PW1. When PWI returned to the house
of the deceased after one hour he saw that PW6, a local
Doctor, was giving first-aid to the deceased and she was
lying on a cot in the verandah. PW6 advised at about 3.30
p.m. to remove the deceased to the Government Hospital. The
deceased was brought to the hospital at about 5 p.m. At
about 5.30 p.m., PW9, a doctor examined the deceased and
declared her dead.
PWl along with his uncle went to the Police Station,
adjacent to the hospital and lodged the FIR. A case under
section 302 IPC was registered
668
and police investigation was started.
Both the appellants were not found in the village when
search for them was made by the investigating officer. The
appellant No. 1 surrendered in the Court on 10.11.1981 while
the appellant No. 2 surrendered in the Court on 7.12.1981.
The Trial Court held that there was no motive for the
appellant to commit the crime; that the evidence of PWs 2 to
4 could not be relied upon; that PW1 had made improvements
in his statements recorded at the trial and, therefore the
oral dying- declaration made to him could not be relied
upon. The Trial Court also held that there was unexplained
delay in lodging report with the policy. It acquitted the
appellants, holding that the case was one of suicide and not
of murder.
The State filed appeal in the High Court. The High Court
held that the chain of the established circumstances was
complete and the circumstances were sufficient to establish
that the appellants alone had committed the crime of murder
of the deceased. The High Court convicted both the
appellants for the offence under section 302/34 IPC and
sentenced each one of them to imprisonment for life.
Hence this appeal before this Court under section 2(a) of
the Supreme Court (Enlargement of Criminal Appellate
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Jurisdiction) Act, 1970.
The appellants contended that since the Trial Court had
acquitted the appellants, the High Court was not justified
in recording an order or conviction, as the findings
recorded by the Trial Court could not be said to be
perverse; that the dying declarations were not worthy of
reliance and the motive was feeble and not established; that
the surrendering of the appellants themselves in the court
on 10.11.1981 and 7.12.1981 itself was enough to show that
they had no guilty-conscious and the prosecution was not
justified in relying upon this conduct as an adverse conduct
against the appellants; and that since all neighbors had
become hostile, out of fear the appellants did not act
either to put off the fire or remove the deceased to the
hospital.
The respondent-State submitted that the findings of the
Trial Court were not only conjectural but also perverse and
the evidence of the wit-
669
nesses was disbelieved on mere surmises; that the Trial
Court did,not properly discuss the two dying declarations
made by the deceased and since the dying declarations have
been proved by reliable evidence, these by themselves could
form the basis of conviction of the appellants; that the
High Court after a careful appraisal of the evidence had
rightly set aside the judgment of the Trial Court which
suffered from illegality as well as manifest error and
perversity,, and that the prosecution had established the
case against the appellants beyond every reasonable doubt
and their appeal deserved to be dismissed.
Dismissing the appeal, this Court,
HELD:1.01. In a case based on circumstantial evidence,
the settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
these circumstances must be conclusive in nature. Moreover,
all the established circumstances should be complete and
there should be no gap in the chain of evidence. The proved
circumstances must be consistent only with the hypothesis of
the guilt of the accused alone and totally inconsistent with
his innocence. The courts have, therefore, the duty to
carefully scrutinize the evidence and deal with each
circumstance carefully and thereafter find whether the chain
of the established circumstances is complete or not before
passing an order of conviction. [679 E-F]
1.02.In a case based on circumstantial evidence, motive
assumes great significance as its existence is an
enlightening factor in a process of presumptive reasoning.
The motive in this case is alleged to be the greed of dowry.
[679 H]
1.03.The evidence led by the prosecution to establish, the
existence of motive is wholly reliable and is also
consistent. The prosecution has successfully established
that the appellants had strong and compelling motive to
commit the crime because of her parents not agreeing to get
the land registered in the name of the first appellant and
their insistence to have the land registered in the name of
their own daughter instead. The motive, has, been
conclusively established by the prosecution. [682 D]
1.04.Both the dying declarations are oral. They have
been made to friends and to the brother of the deceased
respectively. In view of the close relationship of the
witnesses to whom the oral dying declarations were
670
made, it becomes necessary for the court to carefully
scruitinize and appreciate the evidence of the witnesses to
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the dying declarations- [683. B]
1.05.PW1 is the brother of the deceased and therefore a very
close relation, but mere relationship cannot be a ground to
discard his testimony, if it is otherwise found to be
reliable and trustworthy. In the natural course of events,
the deceased who was on the verge of her death would have
conveyed to her near and dear ones the circumstances leading
to her receiving the burn injuries. PW1 has given a very
consistent statement and has reproduced the words of the
deceased clearly and truthfully. Nothing has been brought
out in the cross examination to discredit his testimony at
all. [683 C-D]
1.6.Despite searching cross-examination of both PW2 and
PW3, nothing has been brought out in their cross-examination
to discredit them or doubt their veracity at all. After
carefully analysing their evidence, it is found that PWs 2
and 3 as witnesses worthy of credence and trustworthy.[684
F]
1.07.From the evidence of PWs 1,2 and 3, both the dying
declarations are provedto have been made by the deceased.
They are the statements made by thedeceased and relate
to the circumstances leading to her death. Both the dying
declarations are consistent with each other and appear to
have been made by the deceased voluntarily and in the
natural course of events. They have a ring of truth about
them. [684 G]
1.08The medical evidence, fully corroborates the
prosecution case and lendssupport to the dying
declaration and more particularly the manner inwhich the
deceased had been set on fire.[686 D]
1.09.The normal human conduct of any person finding someone
engulfed in flames would be to make all efforts to put off
the flames and. save the life of the person. Though, the
appellants were the closest relations of the deceased, they
did not do anything of the kind. They rendered no first-aid
to the deceased. Their conduct at the time of the
occurrence, therefore, clearly points towards their guilt
and is inconsistent with their innocence. The appellants
did not even accompany the deceased to the hospital in the
matador van. Had the husband not been a party to the crime,
one would have expected that he would be the first person to
take steps to remove the deceased to the hospital and leave
no stone unturned
671
to save her life. An innocent mother-in- law would have
also done the same, even if she had no love or emotional
feelings for her daughter-in-law. Neither the husband nor
the mother-in-law of the deceased took any steps to remove
the deceased to the hospital let alone accompany her to the
hospital. This conduct also is inconsistent with their
innocence and consistent only with the hypothesis, as stated
by the deceased in her dying declarations, that the motherin-law had poured kerosene on her while her husband had lit
fire and put her on flames. [686 H, 687 A-D]
1.10.The prosecution has, thus, successfully established
that the conduct ofboth the appellants both at the time of
the occurrence and immediatelythereafter is consistent
only with the hypothesis-of the guilt of the appellants and
inconsistent with their innocence. [688 B]
1.11.Absconding by itself may not be a positive circumstance
consistent only with the hypothesis of guilt of the accused
because it is not unknown that even innocent persons may run
away for fear of being falsely involved in a criminal case
and arrested by the police, but coupled with the other
circumstances, the absconding of the appellants assumes
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Importance and significance. The prosecution has
successfully established this circumstance also to connect
the appellants with the crime. [688 E-F]
1.12.The prosecution has successfully established all the
circumstances appearing in the evidence against the
appellants by clear, cogent and reliable evidence and the
chain of the established circumstances is complete and has
no gaps whatsoever and the same conclusively establishes
that the appellants and appellants alone committed the crime
of murdering the deceased on the fateful day in the manner
suggested by the prosecution. All the established
circumstances are consistent only with the hypothesis that
it was the appellants alone who committed the crime and the
circumstances are inconsistent with any hypothesis other
than their guilt. [688 G-H, 687 A]
2.01.Under Section 32, when a statement Is made by a person,
as to the cause of death or as to any of the circumstances
which result In his death, in cases in which the cause of
that person’s death comes into question, such a statement,
oral or in writing, made by the deceased to the witness is a
relevant fact and is admissible in evidence. The statement
made by the deceased, called the dying declaration, falls in
that category provided it has been made by the deceased
while in a lit mental condition. [684 H, 685 A-B]
672
2.02.A dying declaration made by person on the verge of his
death has a special sanctity as at that solemn moment, a
person is most unlikely to make any untrue statement The
shadow of impending death is by itself the guarantee of the
truth of the statement made by the deceased regarding the
causes or circumstances leading to his death. A dying
declaration, therefore, enjoys almost a sacrosanct status,
as a piece of evidence, coming as it does from the mouth of
the deceased victim. Once the statement of the dying person
and the evidence of the witnesses testifying to the same
passes the test of careful scrutiny of the courts, it
becomes a very important and a reliable piece of evidence
and if the court is satisfied that the dying declaration is
true and free from any embelishment such a dying
declaration, by itself, can be sufficient for recording
conviction even without looking for any coroboration. If
there are more than one dying declarations, then the court
has also to scrutinise all the dying declarations to find
out if each one of these passes the test of being
trustworthy. The Court must further find out whether the
different dying declarations are consistent with each other
in material particulars before accepting and relying upon
the same. [685 C-E]
2.03.Both the dying declarations are consistent with each
other in all material facts and particulars. That the
deceased was in a proper mental condition to make the dying
declaration or that they were voluntary has neither been
doubted by the defence in the course of cross-examination of
the witnesses nor even in the course of arguments both in
the High Court and before this Court. Both the dying
declarations have passed the test of credit worthiness and
they suffer from no infirmity whatsoever.
[685 F-G]
2.04.The prosecution has successfully established a very
crucial piece of circumstantial evidence in the case that
the deceased had voluntarily made the dying declarations
implicating both, the appellants and disclosing the manner
in which she had been put on fire shortly before her death.
This circumstance, therefore, has been established by the
prosecution beyond every reasonable doubt by clear and
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cogent evidence. [685 G-H]
3.01.There has been an alarming increase in cases relating
to harassment, torture, abetted suicides and dowry deaths of
young innocent brides. This growing cult of violence and
exploitation of the young brides, though keeps on sending
shock waves to the civilised society whenever it happens,
continues unabated. There is a constant erosion of the
basic
673
human values of tolerance and the spirit of “live and let
live’. Lack of education and economic dependence of women
have encouraged the greedy perpetrators of the crime. It is
the woman who plays a pivotal role in this crime against the
younger woman, as in this case, with the husband either
acting as a mute spectator or even an active participant in
the crime, in utter disregard of his matrimonial
obligations. [689 C-D]
3.02.Awakening of the collective consciousness is the need
of the day. Change of heart and attitude is what is needed.
If man were to regain his harmony with others and replace
hatred, greed, selfishness and anger by mutual love, trust
and understanding and if woman were to receive education and
become economically independent, the possibility of this
pernicious social evil dying a natural death may not remain
a dream only. [690-D]
3.03.The legislature, realising the gravity of the situation
has amended the laws and provided for stringent punishments
in such case and even permitted the raising of presumptions
against the accused in cases of unnatural deaths of the
brides within the first seven years of their marriage. [690
H]
3.04.The Dowry Prohibition Act was enacted in 1961 and has
been amended from time to time, but this piece of social
legislation, keeping in view the growing menance of the
social evil, also does not appear to have served much
purpose as dowry seekers are hardly brought to book and
convictions recorded are rather few. [691 A]
3.05.Laws are not enough to combat the evil. A wider social
movement of educating women of their rights, to conquer the
menace, is what is needed more particularly in rural areas
where women are still largely uneducated and less aware of
their rights and fall an easy prey to their exploitation.
[691 B]
3.06.The role of courts, under the circumstances assumes
greater importance and it is expected that the courts would
deal with such cases in a more realistic manner and not
allow the criminals to escape on account of procedural
technicalities or insignificant lacune in the evidence as
otherwise the criminals would receive encouragement and the
victims of crime would be totally discouraged by the crime
going unpunished. The courts are expected to be sensitive
in cases involving crime against women. [691 C]
674
State (Delhi Administration) v. Lavnan & Ors., Crl. Appeals
93 and 94 of 1984 decided on 23.9.1985, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 629 of
1985.
From the Judgment and Order dated 25.6.1985 of the Andhra
Pradesh High Court in Criminal Appeal No. 637 of 1983.
K.Madhava Reddy, A. Subba Rao and A.D.N. Rao for the
Appellants.
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G. Prabhakar for the Respondent.
The Judgment of the Court was delivered by
DR.ANAND, J. The curse of dowry has claimed yet another
victim. Kundula Bala Subrahmanyam, the husband of the
deceased-Kundula Koti Nagbani and his mother Kundula
Annapurna (mother-in-law of the deceased) have filed this
appeal under Section 2(a) of the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970 against the
judgment of the High Court of Andhra Pradesh, Hyderabad,
dated 25.6.1985, setting aside the judgment of acquittal
passed by the Sessions Judge, East Godavari Division and
convicting both the appellants for an offence under Section
302/34 IPC and sentencing each of them to suffer
imprisonment for life.
On 23rd of August, 1981, between 12.30.1.00 p.m. on hearing
screams and cry of deceased-Kundula Koti Nagbani, at that
time aged about 18 years, Pulapa Lakshmi PW2, Vempati
Paparao PW3 and Vempati Radha PW4, rushed to the house of
the appellant and found both the appellants along with the
father of appellant No. 1 (father-in-law of the deceased)
hurriedly coming out of the kitchen while the deceased was
lying on the floor engulfed in flames. Since, the
appellants or the father-in-law of the deceased were making
no attempts to put off the flames, PW2 asked appellant No. 1
to give her something so that she could extinguish the fire.
He, however, did not respond. She then requested first
appellant’s father to give something to her so that the fire
could be put off. The father of appellant No. 1 enquired if
he should get a bucket of water. PW2, thereupon, requested
him to give either a bed-sheet or a blanket. The father of
appellant No. 1 then brought out a bed sheet (Bontha) from
the cot and
675
as he was passing it on, to PW2, the mother-in-law of the
deceased, appellant No. 2, told her husband not to give the
bontha to PW2. PW2, in the meanwhile, took the bontha from
the father of the first appellant and tried to extinguish
the fire. The deceased turned her side. She was alive.
The deceased asked PW2 for some water. Since, the petticoat
of the deceased was burning, PW3, the father of PW2, who had
also rushed along with her to the house of the appellant
broke the thread of the petticoat to save her from further
burning and threw away the burning garments In the process,
he also received some burn injuries. PW2 poured water into
the mouth of the deceased and enquired from her as to what
had happened. The deceased told her that “her mother-in-law
had poured kerosene over her and her husband had set fire to
her”. The deceased again felt thirsty and asked for more
water which was again given to her by PW2. The above
statement made by the deceased to PW2 was overheard by PW3
and some others, who had also reached on hearing the cries.
Vempati Nagabhushanam PW5, another immediate neighbor of the
appellants living only about 2 yards away also heard the
cries of the deceased and rushed to the house of the
appellant. He noticed PW3 was pulling out the petticoat of
the deceased while PW2 was attempting to extinguish fire.
He saw PW2 pouring water into the mouth of the deceased. He
also heard the statement made by the deceased to PW2 about
the manner in which she had been set on fire. PW5 thereupon
went away to inform the maternal uncle of the deceased at
Malakapalli. On the way, he met one Ramakrishna coming on a
motor-cycle and at his request Ramakrishna gave him a ride
to Malakapalli. On reaching the house of the maternal uncle
of the deceased, they found the brother of the deceased
Vempati Sreerama Krishna Sreeram PWl was also present there.
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He conveyed to them the information regarding the burning of
the deceased and also what he had heard the deceased telling
PW2. Ramarao and PWl then went on the same motorcycle to
Dharmavaram. PWl reached the house of the appellant and saw
a number of persons including PWs 2 and 3 gathered there.
The deceased was lying on the floor and at that time she had
no clothes on her. He noticed that she had received burn
injuries from her breasts downwards to her legs. On seeing
her plight, PW1 started crying and hitting his head against
a pillar. When the deceased noticed that PW1 had come, she
asked PW2 to call her brother PWl inside. PW2 thereupon
went out and brought PW1 to the kitchen where the deceased
took the palm of PWl into her own palms and told him in
Hindi “please tell mother and father as I am
676
telling you. My mother-in- law poured kerosene on me and my
husband set fire. You tell father and mother about this.
Don’t fight. Anyhow I am dying.” She also told her brother
PW1 to take back the cash given to her and divide it amongst
the sisters in equal share and get them married off to nice
persons. At this juncture, the first appellant, husband of
the deceased came inside the kitchen and with folded hands
begged the deceased for forgiveness saying that he would not
repeat what he had done and therefore he may be pardoned.
PWl got wild and caught hold of the neck of the first
appellant. PW2 and PW3 rushed towards them and released the
first appellant from the hold of PW1 and sent PWl to another
uncle’s house and told the uncle that since PWl was in an
agitated mood he should take care of him. Within an hour,
however, PWl went back to the house of the deceased and by
that time, a local Doctor PW6, Dr. R. Radha krishnamurthy
had arrived at the house and was giving first-aid to her and
she was lying on a cot in the verandah. PW6 at about 3.30
p.m. advised the removal of the deceased to the Government
Hospital at Kovvur. A matador van was secured and at about
4.30 p.m. PW1, Ramarao, his maternal uncle, the wife of
Ramarao and some other neighbors took the deceased to the
Government Hospital at Kovvur in the matador van reaching
there at about 5 p.m. At about 5.30 p.m., Dr. K.
Parameswaradas PW9 examined the deceased and declared her
dead. PWl thereupon went to the police station which is
adjacent to the hospital alongwith his uncle and lodged the
report Ex.P4 with the Head Constable Md. Navabjani PW12. A
case under section 302 IPC was registered and information
was sent to Inspector of Police G. Scendavce Rao PW14 on
telephone. After collecting a copy of the FIR, PW14
proceeded to the Government Hospital and from there went to
the scene of occurrence. He seized M.0’s 1 to 3, drew the
site plan of the scene of occurrence and examined PWs 1 to 5
and PW9 at Dharmavaram. He also held the inquest
proceedings from 6.30 a.m. to 8.30 a.m. on August 24 1981
and after getting the postmortem conducted handed over the
dead-body to the family of the deceased. PW9 Dr. K.
Parameswaradas who conducted the postmortem examination in
his report Ex.Pl8 noted extensive burns to the extent of 90%
on the body of the deceased and opined that the deceased had
died due to the extensive burns all over the body and that
the injuries were sufficient in the ordinary course of
nature to cause death. During the investigation, the
investigating officer made a request for the preservation of
viscera of the deceased so that it could be sent for
chemical examination, as according to the state-
677
ment of PW6, the deceased had allegedly told him that she
had consumed dettol to commit suicide and since she could
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not bear the pain she had set herself on fire. The report
of the chemical examiner Ex.Pl6, however, revealed that no
poison was detected and that the death had been caused due
to extensive burns. Further investigation into the case
was, carried out by Md. Baduruddin PW15, Inspector of the
Crime Branch. During the investigation, the father of the
deceased Venkataramana handed over letters Exs.Pl-P3 to the
investigating officer. Both the appellants had made
themselves scarce and were not found in the village when
search for them was made by the investigating officer. The
first appellant surrendered in the court on 10.11.1981 while
the second appellant surrendered in the court on 7th of
December, 1981.
After the investigation was over, challan was filed and both
the appellants were sent up for trial in the Court of
Sessions Judge East Godavari Division at Rajahmundry.
At the trial, the prosecution inter alia relied upon the
following circumstances with a view to connect the appellant
with the crime:-
(1) Motive;
(2) Two dying declarations made to PW2 and
to PW1;
(3) Medical Evidence;
(4) Conduct of the appellant immediately and
after the occurrence;
(5) Absconding of the appellants.
The appellants when examined under Section 313 of the
Criminal Procedure Code denied their involvement and stated
the case to be a false one. They, however, produced no
defence.
The learned Trial Court did not accept the prosecution
version and held that there was no motive for the appellant
to commit the crime; that the evidence of PWs 2 to 4 could
not be relied upon; that PWI had made improvements in his
statements recorded at the trial and, therefore, the oral
dying declaration made to him could not be relied upon. The
Trial court also held that there had been unexplained delay
in lodging report with the police. The Trial Court placed
reliance on the testimony of hostile
678
witness PW6 and held that the case was one of suicide and
not of murder. On those findings, the learned Sessions
Judge acquitted both the appellants.
On an appeal, filed by the State, a Division Bench of the
High Court of Andhra Pradesh set aside the judgment of the
learned Sessions Judge and convicted both the appellants for
an offence under Section 302/34 IPC. Speaking for the
Division Bench, K. Ramaswamy J. (as His Lordship then was)
found no hesitation to hold PWl as a witness of truth and a
wholly reliable witness and also opined that the evidence of
’PWs 2 and 3 was trustworthy and reliable. The dying
declarations made by the deceased to PW2 and subsequently to
PWl were believed and relied upon. It was held that report
Ex.P4 had been given by PWl immediately after the deceased
was declared dead by the Doctor and therefore there was no
delay much less unexplained delay in lodging the report.
While dealing with the conduct of the appellant, it was
opined that their conduct was inconsistent with their
innocence and consistent only with the hypothesis that
appellant no. 2 had committed the act of pouring kerosene on
the deceased and appellant No. 1 had lit fire. With regard
to the existence of motive, it was held that the appellants
were actuated with a motive to do away with the life of the
deceased for not getting the land registered in the name of
the first appellant. Finally, the High Court found that the
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chain of the established circumstances was complete and the
circumstances were sufficient to conclusive establish that
the appellants and the appellants alone had committed the
crime of murder of the deceased. The High Court held that
the consideration of evidence on record and the reasoning of
the Trial Court was most unsatisfactory and could not be
sustained and therefore set aside the order of acquittal and
convicted both the appellants for the offence under Section
302/34 IPC and sentenced each one of them to imprisonment
for life.
Appearing for the appellants before us, Mr. Madhav Reddy,
the learned Senior Counsel urged that since the Trial Court
had acquitted the appellants, the High Court was not
justified in recording an order of conviction as the
findings recorded by the Trial Court could not be said to be
perverse. It was argued that the dying declarations were
not worthy of reliance and the motive was feeble and not
established. Learned counsel submitted that the
surrendering of the appellants themselves in the court on
10.11.1981 and 7.12.1981 itself was enough to show that they
had no
679
guilty conscious and the prosecution was not justified in
relying upon the conduct as an adverse conduct against the
appellants. While explaining the conduct of the appellants
at the time of and after the occurrence, he submitted that
since all neighbors had become hostile, out of fear the
appellants did not act either to put off the fire or remove
the deceased to the hospital.
In reply, learned counsel for the State argued that the
findings of the Trial Court were not only conjectural but
also perverse and the evidence of the witnesses was
disbelieved on mere surmises. It was submitted that the
Trial Court did not property discuss the two dying
declarations mad by the deceased and since the dying
declarations have been proved by reliable evidence, those by
themselves could form the basis of conviction of the
appellants. It was then submitted that the High Court after
a careful appraisal of the evidence had rightly set aside
the judgment of the Trial Court which suffered from
illegality as well as manifest error and perversity.
Learned counsel submitted that the prosecution had
established the case against the appellants beyond every
reasonable doubt and their appeals deserve to be dismissed.
Admittedly, there is no eye-witness in the case. The case
is sought to be established by the prosecution from
circumstantial evidence. In a case based on circumstantial,
evidence, the settled law is that the circumstance from
which the conclusion of guilt is drawn should be fully
proved an these circumstances must be conclusive in nature.
Moreover, all the established circumstances should be
complete and there should be no gap in the chain of
evidence. The proved circumstances must be consistent only
wit the hypothesis of the guilt of the accused alone and
totally inconsistent wit his innocence. The courts have,
therefore, the duty to carefully scrutinize the evidence and
deal with each circumstance carefully and thereafter fin
whether the chain of the established circumstances is
complete or no before passing an order of conviction. It is
in the light of the above principles that we shall deal with
various circumstances relied upon by the prosecution.
(1)Motive: In a case based on circumstantial evidence,
motive as sums great significance as its existence is an
enlightening factor in process of presumptive reasoning.
The motive in this case is alleged to be the greed of dowry.
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680
On 18.5.1979, marriage between the appellant and the
deceased was solemnised. The deceased aged about 18 years
was prosecuting her Intermediate course of study at that
time. She was the eldest of the five children of one
Vempati Venkataramana, who at the relevant time was working
as an Assistant Engineer with the Railways at Gorakhpur. At
the time of the marriage, the parents of the deceased had
agreed to give Rs. 50,000 in cash, 50 sovereigns of gold and
two acres of land as dowry. The cash was paid at the time
of the marriage itself alongwith 15 sovereigns of gold. The
parents of the deceased had promised to give the remaining
35 gold sovereigns and get the land also registered
subsequently, though the possession of the land measuring
about 3.70 acres was given to the appellant No. 1. The
mother-in-law of the deceased and her husband had been
pressurising the deceased all along to bring the remaining
sovereigns and also to get the land registered in the name
of the first appellant. She conveyed it to her mother PW7.
While the parents of the deceased agreed to get the land
registered in the name of the deceased, the first appellant
and his parents were insisting that the land should be got
registered in his name and not in the name of the deceased.
Since that desire was not fulfilled, the deceased was being
continuously harassed and ill-treated. A strick vigil was
kept on her at the house of her in-laws and she was not even
allowed to meet anybody nor were the neighbors permitted to
come and meet or talk to her. She was being prevented from
writing letters to her family also, but stealthy, she wrote
letters Exs.Pl-3 and got them posted through a neighbor.
The contents of those letters are rather revealing and
expose the extent of the harassment to which the deceased
was being subjected to by her mother-in-law and her husband.
After seeing the contents of the letters and with a view to
find out the cause of her distress, PW1, her brother went to
Dharmavaram on August 22, 1981, to the house of the
deceased. The deceased, however, was so terrorised that she
could not speak to him freely. She was surrounded by her
husband and her mother-in-law, who did not talk to PWl at
all to show their indifference. From the evidence of the
prosecution witnesses and particularly that of the mother of
the deceased PW7, the immediate provocation was the
insistence of the appellants that the land be got registered
in the name of the husband and the reluctance’ of the
parents of the deceased to do so and instead their desire to
get it registered in the name of the deceased. The oral
evidence led by the prosecution in this behalf is wholly
consistent. In her letter Ex.P2, the
681
deceased had clearly mentioned that she was getting her
letters posted through PW4. She requested her sisters to
write letters to her in Hindi so that her in-laws, who did
not know Hindi, could not know what was being written. In
one of her letters, a part of which was addressed to her
sister, she wrote:
“…….I am not going to anybody’s house.
One day I went to the house of sister-in-law
Radha to deliver the letter secretly. Their
mood was changed on account of going to their
house. That is why I stopped going.” Do not
mention even a single word in your letter that
I have been writing to you. Ask mother not to
worry. On hearing about your results write a
letter without fail. If I get an opportunity
I will definitely write a letter…”
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In her letter Ex.P1 to her father, she wrote:
Father I am feeling much bore here because no
one come to our house nor I am allowed to go
their house Please always write letters. So
that I may be satisfied in seeing your
letters. If I may not give reply to your
letter then you please don’t mind it. You
know here’s conditions. Rest is O.K. Father
you also take care of your health.”
In the same letter while addressing her
sisters, she wrote:
The lock is opened. I am writing this letter
secretly. In reply do not write that you have
received the letter. If you write like that
these people will become more angry
She also wrote to her sister:
not at house and there is no watch over me. I
am getting the letters posted through sisterin-law Radha secretly. You write letters
mostly in Hindi only so that even if they
chanced to fall in the hands of any one, they
cannot understand
The tenor of her letters disclose the distressing state of
affairs at the house
682
of her-in-laws. These letters coupled with the evidence of
her mother go to show how the deceased was being tormented
and harassed. It is indeed a shame and pity that within
just two years of her marriage, her dream of a happy married
life was shattered and she found herself almost as a
prisoner and ’a frightened chicken’ who had to write letters
to her parents and sisters ’secretly’ for the fear that if
her in- laws came to know they would “become more angry’.
She had to request her sisters to reply to her letters in
Hindi so that “even if they chanced to fall in the hands of
anyone, they cannot understand”. One can only imagine the
plight of this young bride and the sadistic behavior born
out of greed for dowry of her husband and mother-in-law.
Not having been able to get the land registered in the name
of the first appellant appears to have frustrated them to
the extent of murdering the young wife.
The evidence led by the prosecution to establish the
existence of motive is wholly reliable and is also
consistent. The prosecution has successfully established
that the appellants had strong and compelling motive to
commit the crime because of her parents not agreeing to get
the land registered in the name of the first appellant and
their insistence to have the land registered in the name of
their own daughter instead. The motive, has, been
conclusively established by the prosecution and we have no
hesitation to hold that the prosecution has succeeded in
establishing the existence of the motive for both the
appellants to commit the crime conclusively and positively
and we agree with the finding of the High Court in that
behalf.
2.Dying Declarations: The next piece of circumstantial
evidence relied upon by the prosecution are two dying
declarations made by the deceased. According to the
prosecution case, the deceased made the first dying declaration before PW2 when she after hearing her cries came to the
house and found both the appellants and the father of
appellant No. 1 coming out of the kitchen and the deceased
lying on the floor engulfed in flames. According to PW2,
the deceased told her that her mother- in-law had poured
kerosene on her and her husband had set her on fire. This
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statement was also heard by PW3 & PW5. The second dying
declaration was made by the deceased to her brother PW1,
after he was called by her to the kitchen. The deceased,
according to the prosecution case, on meeting her brother,
took the palm of PWl into her own palms and inter-alia told
to him that “her mother-in-law poured kerosene on her and
her husband set fire to her”. The statement made by the
deceased to
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PW1 was in Hindi. Both the statements, as noticed above,
relate to the circumstances leading to the cause of her
death, as according to the medical evidence, the deceased
died of 90% burn injuries. Both the dying declarations are
oral. They have been made to friends and to the brother of
the deceased respectively. In view of the close
relationship of the witnesses to whom the oral dying
declarations were made, it becomes necessary for us to
carefully scrutinize and appreciate the evidence of the
witnesses to the dying declaration.
We have already adverted to the evidence of these witnesses
(PW1, PW2, PW3) while narrating the prosecution case.
Indeed, PWl is the brother of the deceased and therefore a
very close relation, but mere relationship cannot be a
ground to discard his testimony, if it is otherwise found to
be reliable and trustworthy. In the natural course of
events, the deceased who was on the verge of her death would
have conveyed to her near and dear ones the circumstances
leading to her receiving the burn injuries. PW1 has given a
very consistent statement and has reproduced the words of
the deceased clearly and truthfully. Nothing has been
brought out in the cross examination to discredit his
testimony at all. He had at the earliest point of time
disclosed as to what the deceased had told to him. The
discrepancy pointed out by learned counsel for the
appellants as to whether the dying declaration was made to
him by his sister when she was lying on the cot in the
verandah, as stated in FIR Ex.P4, or while she was lying on
the floor of the kitchen, is of an insignificant nature and
could be either out of confusion or the gap of time between
the making of the two statements. Moreover, PW1 was not at
all cross-examined on the alleged discrepancy when he gave
evidence in Court. No explanation whatsoever was sought
from him about the so called discrepancy. PW1, the brother
of the deceased appears to us to be a truthful witness and
his testimony has impressed us. He did not implicate the
father of the appellant and gave evidence only about what he
was actually told by his sister. From our appreciation of
the evidence of PW1, we agree with the view expressed by the
High Court that “considering the case from all perspectives
we have no hesitation to hold that P.W.1 is a witness of
truth worthy of acceptance and so he is wholly a reliable
witness. Ex.P4 is a voluntary statement given by P.W.1 and
it lends corroboration to the evidence of P.W.1.”
Coming now to the evidence of PWs2 and 3. The substratum of
their evidence with regard to the dying declaration is that
while that they were
684
in the kitchen of their own house, taking tea, they heard
the cry of a lady and rushed to the house of the deceased,
being her close neighbors. They saw the deceased engulfed
in flames sprawled on the floor of the kitchen. They also
saw both the appellants as well as the father of appellant
No. 1 coming out of the kitchen to the verandah. The
distance between the house of PWs2 and 3 from the house of
appellant is only 2 yards. After PW2 took a bontha from the
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father-in-law of the deceased, to the annoyance of appellant
No. 2, with a view to extinguish the fire, the deceased, on
enquiry by the witness as to what had happened told her that
’my mother-in-law poured kerosene on me and my husband set
me on fire”. The deceased had not implicated her father-inlaw, though he was also present there’ PW3, father of PW2,
had assisted PW2 to extinguish the flames and it was he who
broke the string of the petticoat of the deceased and threw
it away. In the process PW3 himself suffered burn injuries.
His injuries were examined by the Doctor and found to be
caused by fire. The Trial Court doubted the testimony of
PW3 on the ground that he had made some improvement in his
evidence in court when he stated that he had heard the
deceased screaming and saying that she was “being killed”.
He had not stated so in his statement recorded during the
investigation. This, in our opinion, is hardly an
improvement of any consequence because both in his statement
in court as well as the one recorded under Section 161 Cr.PC
he has deposed that it was on hearing the ’screams’ of the
deceased that he and his daughter rushed to the house of the
decased. In any event the so called improvement was not
sufficient to discard his testimony. Despite searching
cross-examination of both these witnesses, nothing has been
brought out in their cross-examination to discredit them or
doubt their veracity at all. After carefully analysing
their evidence, we find PWs 2 and 3 as witnesses worthy of
credence and trustworthy.
From the evidence of PWs 1, 2 and 3, both the dying
declarations are proved to have been made by the deceased.
They are the statements made by the deceased and relate to
the circumstances leading to her death. Both the dying
declarations are consistent with each other and appear to
have been made by the deceased voluntarily and in the
natural course of events. They have a ring of truth about
them.
Section 32(1) of the Evidence Act is an exception to the
general rule that hearsay evidence is not admissible
evidence and unless evidence is tested by cross-examination,
it is not credit-worthy. Under Section 32, when
685
a statement is made by a person, as to the cause of death or
as to any of the circumstances which result in his death, in
cases in which the cause of that person’s death comes into
question, such a statement, oral or in writing, made by the
deceased to the witness is a relevant fact and is admissible
in evidence. The statement made by the deceased, called the
dying declaration, falls in that category provided it has
been made by the deceased while in a fit mental condition.
A dying declaration made by person on the verge of his death
has a special sanctity as at that solemn moment, a person is
most unlikely to make any untrue statement. The shadow of
impending death is by itself the guarantee of the truth of
the statement made by the deceased regarding the causes or
circumstances leading to his death. A dying declaration,
therefore, enjoys almost a sacrosanct status, as a piece of
evidence, coming as it does from the mouth of the deceased
victim. Once the statement of the dying person and the
evidence of the witnesses testifying to the same passes the
test of careful scrutiny of the courts, it becomes a very
important and a reliable piece of evidence and if the court
is satisfied that the dying declaration is true and free
from any embellishment such a dying declaration, by itself,
can be sufficient for recording conviction even without
looking for any corroboration. If there are more than one
dying declarations, then the court has also to scrutinise
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all the dying declarations to find out if each one of these
passes the test of being trustworthy. The Court must
further find out whether the different dying declarations
are consistent with each other in material particulars
before accepting and relying upon the same. Having read the
evidence of PWs 1-3 with great care and attention, we are of
the view that their testimony is based on intrinsic truth.
Both the dying declarations are consistent with each other
in all material facts and particulars. That the deceased
was in a proper mental condition to make the dying
declaration or that they were voluntary has neither been
doubted by the defence in the course of cross-examination of
the witnesses nor even in the course of arguments both in
the High Court and before us. Both the dying declarations
have passed the test of creditworthiness and they suffer
from no infirmity whatsoever. We have therefore no
hesitation to hold that the prosecution has successfully
established a very crucial piece of circumstantial evidence
in the case that the deceased had voluntarily made the dying
declarations implicating both the appellants and disclosing
the manner in which she had been put on fire shortly before
her death. This circumstance, therefore, has been
established by the prosecution beyond every reasonable
686
doubt by clear and cogent evidence.
3.Medical Evidence: The next circumstance relied upon by
the prosecution is the medical evidence which has been
provided by the testimony of Dr. Parameswaradas PW9. He
deposed that the deceased had died of 90% burns and that
kerosene smell was emitting from the deadbody. According to
the report of the chemical examiner, no poison was found in
the viscera. The chemical examiner’s report, coupled with
the other evidence on record belies the suggestion made by
the defence during the cross-examination of some witnesses
that with a view to commit suicide, the deceased had drunk
dettol and when she could not bear the pain on account of
consumption of dettol, she herself poured kerosene oil on
herself and set herself on fire. Rightly, this defence case
was not pursued before us with any amount of seriousness by
the learned counsel for the appellants.. The medical
evidence, therefore fully corroborates the prosecution case
and lends support to the dying declaration and more
particularly the manner in which the deceased had been set
on fire.
4. Conduct of the appellant immediately and after the
evidence:
The conduct of the appellants, son and mother, both at the
time when the deceased lay burning on the floor of the
kitchen and afterwards till she succumbed to the burn
injuries is the next circumstance relied upon by the
prosecution to connect the appellants with the crime.
From the testimony of PWs 2, 3 and 4, who are the immediate
neighbors of the appellant and the deceased, they had heard
the cry of the deceased and rushed to her house. PWs 2 and
3 found the deceased lying on the floor of the kitchen
engulfed in flames while both the appellants and father-inlaw of the deceased were coming out of the kitchen in the
verandah. None of the two appellants or the father-in-law
made any attempt whatsoever to extinguish the fire and save
the deceased. The raised no alarm. They stood there as if
waiting for her death, rather than make any effort to save
her. Their conduct, thus, runs consistent with the
hypothesis of their guilt and betrays that of an innocent
persons. In their statements under Section 313 of Cr. PC
they did not deny their presence in the house at the time of
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the occurrence, but denied their involvement in the crime.
The normal human conduct of any person finding someone
engulfed in flames would be to make all efforts to put off
the flames and save the life of the person. Though, the
appellants were the closest relations
687
of the deceased, they did not do anything of the kind. Let
alone making any effort to extinguish the fire, according to
PW2 when the father-in-law of the deceased, at her request,
was giving her the bontha to extinguish the flames,
appellant no. 2, the mother-in-law of the deceased, objected
to the same. This conduct speaks volumes about the extent
of hatred which the mother-in-law exhibited towards her
daughter-in-law. They rendered no first-aid to the
deceased. Their conduct at the time of the occurrence,
therefore, clearly points towards their guilt and is
inconsistent with their ingnocence the appellants did not
even accompany the deceased to the hospital in the matador
van. Had the husband not been a party to the crime, one
would have expected that he would be the first person to
take steps to remove the deceased to the hospital and leave
no stone unturned to save her life. An innocent mother-inlaw would have also done the same, even if she had no love
or emotional feelings for her daughter-in-law. Neither the
husband nor the mother-in-law of the deceased took any steps
to remove the deceased to the hospital, let alone accompany
her to the hospital. This conduct also is inconsistent with
their innocence and consistent only with the hypothesis, as
stated by the deceased in her dying declarations, that the
mother-in-law had poured kerosene on her while her husband
had lit fire and put her on flames. Mr. Reddy, the learned
senior counsel appearing for the appellants submitted that
since the neighbors and other relations of the deceased had
almost taken over the house and the person of the daughterin-law, the appellants were afraid of being beaten and as
such they rendered no aid to the deceased needs a notice
only to be rejected. No suggestion whatsoever on these
lines was made to any of the witnesses and in any event such
an explanation betrays common sense. Since, the deceased
had admittedly suffered burn injuries in the kitchen of her
house, there was an obligation on the part of the appellants
and the father-in-law of the deceased, who have admitted
their presence in the house at the time of occurrence, to
explain the circumstances leading to the deceased dying of
90% burn injuries. None has been offered. The theory of
suicide was put up only as an argument of despair. While
discussing the motive and the dying declarations, we have
come to the conclusion that the deceased died as a result of
the designed move on the part of both the appellants to put
an end to her life and she did not commit suicide as was
sought to be suggested during cross-examination by the
defence to some witnesses. The theory of suicide has no
legs to stand upon. The conduct of the appellants who did
not try to extinguish the fire or
688
render any first-aid to her, also totally betrays the theory
of suicide and we agree with the High Court that the theory
as set up by the appellants is highly unbelievable or
acceptable. The prosecution has, thus, successfully
established that the conduct of both the appellants both at
the time of the occurrence and immediately thereafter is
consistent only with the hypothesis of the guilt of the
appellants and inconsistent with their innoncence.
5) Absconding. Prosecution has also relied upon the
circumstances of the absconding of the appellants to prove
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its case.
A closer link with the conduct of the appellants both at the
time of the occurrence and immediately thereafter is also
the circumstance relating to their absconding. Md.
Badruddin PW15, the investigating officer, deposed that he
had taken up the investigation of the case and having
examined PWsl-4 had caused search to be made for the accused
but they were not found in the village and despite search,
they could not be traced. Appellant No. 1 surrendered
before the court on 10.11.1981 while appellant No. 2
surrundered in the court on 7.12.1981. No explanation, worth
the name, much less a satisfactory explanation has been
furnished by the appellants about their absence from the
village till they surrendered in the court in the face of
such a gruesome ’tragedy’. Indeed, absconding by itself may
not be a positive circumstance consistent only with the
hypothesis of guilt of the accused because it is not unknown
that even innocent persons may run away for fear of being
falsely involved in a criminal case and arrested by the
police, but coupled with the other circumstances which we
have discussed above, the absconding of the appellants
assumes importance and significance. The prosecution has
successfully established this circumstance also to connect
the appellants with the crimeIn view of the above discussion and our appraisal and
analysis of-the evidence on record, we have no hesitation to
hold that the.prosecution has successfully established all
the circumstances appearing in the, evidence against the
appellants by clear, cogent and reliable evidence and the
chain of the established circumstances is complete and has
no gaps whatsoever and the same conclusively establishes
that the appellants and appellants alone committed the crime
of murdering the deceased on the fateful day in the manner
suggested by the prosecution. All the established
circumstances are consistent only with the hypothesis that
it was the appellants alone
689
who committed.the crime And the circumstances are
inconsistent with any hypothesis other than their guilt. It
is most unfortunate that the husband of the deceased not
only failed to perform his duties and obligations as husband
to protect and take care of his wife as per the marriage
vows and instead joined his mother in the most degrading and
cold blooded murder of the young innocent bride.
Of late there has been an alarming increase in cases
relating to harassment, torture, abetted suicides and dowry
deaths of young innocent brides. This growing cult of
violence and exploitation of the young brides, though keeps
on sending shock waves to the civilised society whenever it
happens, continues unabated. There is a constant erosion of
the basic human values of tolerance and the spirit of “live
and let live’. Lack of education and economic dependence of
women have encouraged the greedy perpetrators of the crime.
It is more disturbing and sad that in most of such reported
cases it is the woman who plays a pivotal role in this crime
against the younger woman, as in this case, with the husband
either acting as a mute spectator or even an active
participant in the crime, in utter disregard of his
matrimonial obligations. In many cases, it has been noticed
that the husband, even after marriage, continues to be
’Mamma’s baby and the umbilical cord appears not to have
been cut even at that stage. We are here tempted to recall
the observations of R.N. Mishra, J. (as His Lordship then
was) in State (Delhi Administration) v. Laxman & Ors. Cr.
Appeals 93 and 94 of 1984 decided on 23.9.1985, while
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dealing with a bride burning case. It was observed:
“Marriage, according to the community to which
parties belong, is sacramental and is believed
to have been ordained in heaven. The
religious rites performed at the marriage
altar clearly indicate that the man accepts
the woman as his better-half by assuring her
protection as guardian, ensuring food and
necessaries of life as the provider,
guaranteeing companionship as the mate and by
resolving that the pleasures and sorrows in
the pursuit of life shall be shared with her
and Dharma shall be observed. If this be the
concept marriage, there would be no scope to
look for worldly considerations, particularly
dowry. When a girl is transplanted from her
natural setting into
690
an alien family, the care expected is bound to
be more than in the case of a plant. Plant
has fife but the girl has a more developed
one. Human emotions are unknown to the plant
life. In the growing years in the natural
setting the girl- now a bride-has formed her
own habits, gathered her own impressions,
developed her own aptitudes and got used to a
way of life. In the new setting some of these
have to be accepted and some she has to
surrender. This process of adaptation is not
and cannot be one-sided. Give and take, live
and let live, are the ways of life and when
the bride is received in the new family she
must have a feeling of welcome and by the fond
bonds of love and affection, grace and
generosity, attachment and consideration that
she may receive in the family of the husband,
she will get into a new mould; the mould which
would last for her life. She has to get used
to a new set of relationships one type with
the husband, another with the parents-in-law,
a different one with the other superiors and
yet a different one with the younger ones in
the family. For this she would require loving
guidance. The elders in the family, including
the mother-in-law, are expected to show her
the way. The husband has to stand as a
mountain of support ready to protect her and
espouse her cause where she is on the right
and equally ready to cover her either by
pulling her up or protecting her willingly
taking the responsibility on to himself when
she is At fault. The process has to be a
natural one and there has to be exhibition of
cooperation and willingness from every side.
Otherwise how would the transplant succeed?”
Awakening of the collective consciousness is the need of the
day. Change of heart and, attittide is what is needed. If
man were to regain his harmony with others and replace
hatred, greed, selfishness and anger by mutual love, trust
and understanding and if woman were to receive education and
become economically independent, the possibility of this
pernicious social evit dying a natural death may not remain
a dream only. The legislature, realising the gravity of the
situation has amended the laws and provided for stringent
punishments in such cases and even permitted the raising of
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presumptions against an accused in cases of unnatural deaths
of
691
the brides within the first seven years of their marriage.,
The Dowry Prohibition Act was enacted in 1961 and has been
amended from time to time, but this piece of soicial
legislation, keeping in view the growing menance of the
social evil also does not appear to have served much purpose
as dowry seekers are hardly brought to book and convictions
recorded are rather few. Laws are not enough to combat the
evil. A wider social movement of educating women of their
rights, to conquer the menance, is what is needed more
particularly in rural areas where women are still largely
uneducated and less aware of their rights and fall an easy
prey to their exploitation. The role of courts, under the
circumstances assumes greater importance and-it is expected
that the courts would deal with such cases in a more
realistic manner and not allow the criminals to escape on
account of procedural technicalities or insignificant
lacunas in the evidence as otherwise the criminals would
receive encouragement and the victims of crime would be
totally discouraged by the crime going unpunished. The
courts are expected to be sensitive in cases involving crime
against women. The verdict of acquittal made by the Trial
Court in this cast is an apt illustration of the lack of
sensitivity on the part of the Trial Court. It recorded the
verdict of acquittal on mere surmises and conjectures and
disregarded the evidence of the witnesses for wholly
insufficient and insignificant reasons. It ignored the
vital factors of the case without even properly discussing
the same.
The High Court was, therefore, perfectly justified in
convicting the appellants for the offence of murder
punishable under Section 302 readwith Section 34 IPC and
sentencing each one of them to suffer imprisonment for life.
We uphold the conviction and sentence of the appellants for
the offence under Section 302/34 IPC and dismiss their
appeal. The appellants were directed to be released on bail
by this Court on 30.3.1989. Their bail bonds are cancelled
and they are directed to be taken in to custody to suffer
the remaining period of their sentence.
V.P.R.
Appeal dismissed.
692
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.836 OF 2005
Aftab Ahmad Anasari … Appellant
Versus
State of Uttaranchal …Respondent
J U D G M E N T
J.M. PANCHAL, J.
1. The appellant and one Mumtaz were prosecuted for
commission of rape and murder of Yasmeen aged five years
daughter of Nayeem Ahmad and for causing disappearance
of evidence of those offences. The learned Additional
District and Sessions Judge, First FTC Court, Nainital, by
judgment dated January 7, 2004, rendered in Sessions Trial
No.252 of 1998, convicted the appellant and Mumtaz under
Sections 302, 376 and 201 of Indian Penal Code (IPC) and
Page 170
imposed penalty of death sentence for commission of offence
punishable under Section 302 IPC as well as R.I. for life for
commission of offence punishable under Section 376 IPC
and a fine of Rs.10,000/- in default R.I. for one year and
R.I. for seven years and a fine of Rs.5,000/- in default R.I.
for one year for commission of offence punishable under
Section 201 IPC.
2. Feeling aggrieved, the appellant and Mumtaz preferred
Criminal Appeal No. 36 of 2004 whereas Reference made
under Section 366 of the Code of Criminal Procedure by the
learned Additional Sessions Judge in view of death sentence
passed against both the accused was registered as Criminal
Reference 1 of 2004 before the High Court of Uttaranchal at
Nainital. The Division Bench of the High Court, by
judgment dated December 17, 2004, has rejected the
Reference and partly allowed the appeal by acquitting
accused Mumtaz but affirmed the conviction of the
appellant under Sections 302, 376 and 201 IPC. The death
penalty awarded to the appellant for commission of offence
punishable under Section 302 IPC is modified and the
appellant is sentenced to R.I. for life for commission of the
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offence punishable under Section 302 IPC. The High Court
has further maintained sentence imposed on the appellant
under Sections 376 and 201 IPC. The confirmation of the
conviction of the appellant under Sections 302, 376 and
201 IPC by the High Court and imposition of different
punishments for those offences, has given rise to the instant
Appeal by Special Leave.
3. Mr. Nayeem Ahmad is resident at Mundia Pistor
Village, Bajpur, District Udham Singh Nagar, Uttaranchal.
His daughter Yasmeen aged five years having fair
complexion and round face, wearing frock, underwear and
sleepers was playing near his house at about 5.00 p.m. in
the evening of February 5, 1998. It was noticed that she
was missing from the place where she was playing and,
therefore, Nayeem Ahmad made frantic search about
Yasmeen at the places of all his relatives but she could not
be traced. As search made by him did not yield any result,
he filed a missing report on February 6, 1998 at Bajpur
Police Station mentioning, inter alia, that his daughter had
disappeared while playing near his house and, therefore,
steps be taken to trace her out. On February 8, 1998,
Page 172 3
Report (Exhibit Ka.2) was lodged at Bajpur Police Station by
Shamim Ahmad who is real brother of Nayeem Ahmad
stating, inter alia, that Yasmeen aged about five years
daughter of his elder brother Nayeem Ahmad while playing
near the house of Nayeem Ahmad had disappeared at about
5.00 p.m. in the evening of February 5, 1998 for which
Nayeem Ahmad had lodged a missing report at the Police
Station, but at about 6.00 a.m. on February 8, 1998, her
dead body was found lying on the public way in front of the
house of Haji Khursheed, son of Bashir Ahmad of village
Bajpur and, therefore, legal action be taken. On receiving
this information, concerned police personnel reached the
place where dead body of the deceased was lying. The
inquest on the dead body of the deceased was held and
necessary arrangements were made for sending the dead
body for post mortem examination. The post mortem
examination was carried out on February 8, 1998. The
examination revealed that the deceased was subjected to
rape and thereafter strangulated. On February 9, 1998, the
Investigating Officer, on the basis of the information given
by the informer, arrested both the accused persons under
Page 173 4
Sections 302, 376 and 201 IPC. While in custody, the
appellant and Mumtaz made disclosure statements to the
Investigating Officer pursuant to which the appellant
discovered one frock with blood marks, one white cotton
underwear with black stripes having blood stains and one
bed sheet of light green colour with plenty of blood marks
from the house of sister of the appellant. The articles
discovered were seized under a panchnama and sent to
forensic science laboratory for analysis. The Investigating
Officer recorded the statement of those persons who were
found to be conversant with the facts of the case. On
receipt of report from the analyst and on completion of
investigation, the appellant and Mumtaz were chargesheeted in the Court of learned Judicial Magistrate, First
Class for commission of offences punishable under Sections
302, 376 and 201 IPC.
The offences punishable under Sections 302 and
376 IPC are exclusively triable by a Court of Sessions.
Therefore, the case was committed to the Court of learned
Additional District and Sessions Judge, Nainital for trial.
The learned Judge framed necessary charges against the
Page 174 5
appellant and Mumtaz for commission of offences
punishable under Section 302, 376 and 201 IPC. The same
were read over to them. They pleaded not guilty to the same
and claimed to be tried. Therefore, prosecution examined
seven witnesses and produced documentary evidence to
prove its case against the appellant and Mumtaz. After
recording of evidence of prosecution witnesses was over, the
learned Judge explained to the appellant and Mumtaz the
circumstances appearing against them in the evidence of
prosecution witnesses and recorded their further statement
as required by Section 313 of the Code of Criminal
Procedure, 1973. In the further statements, the appellant
and Mumtaz pleaded ignorance in respect of certain facts
whereas in relation to some other facts their claim was that
they were false. The appellant and Mumtaz had expressed
desire to examine defence witnesses which was granted by
the learned Judge. The appellant, therefore, examined
DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in
defence. The learned Judge noticed that the case was
entirely resting upon circumstantial evidence. After holding
that the deceased died a homicidal death, the learned Judge
Page 175 6
appreciated the evidence and held that four circumstances,
namely, that (1) both the accused were seen by PW-3,
Naseed Ahmad, at about 4.30 a.m. on 8.2.1998 fleeing away
from near the place where the dead body of deceased
Yasmeen was found after some time; (2) on the disclosure
statement made by the appellant, blood stained frock and
underwear of the deceased and blood stained bed sheet
were recovered; (3) underwears of both the accused, seized,
were stained with human blood and semen; and (4) extrajudicial confession was made by the appellant before PW-5,
Anand Swaroop, are firmly established, to bring home guilt
of the accused under Sections 302, 376 and 201 IPC. The
learned Judge noticed that the chain of circumstances
established was complete, cumulative effect of which was
indicating that in all human probability, the offences were
committed by the appellant and Mumtaz and by none other.
In view of abovementioned conclusions, the learned Judge
convicted the appellant and Mumtaz under Section 302,
376 and 201 IPC. Thereafter, the learned Judge heard the
appellant and Mumtaz on the question of sentence to be
imposed on them for commission of abovementioned
Page 176 7
offences. The learned Judge noticed that this was the rarest
of rare case falling within the purview of guidelines laid
down by this Court in Maulai & Anr. Vs. State of M.P. AIR
2000 SC 177 and imposed death penalty on both the
accused for commission of offence punishable under Section
302 IPC. The learned Judge further imposed punishment of
R.I. for life and a fine of Rs.10,000/- and in default R.I. for
one year for commission of offence punishable under
Section 376 IPC. The learned Judge further imposed
sentence of R.I. for seven years and a fine of Rs.5,000/- and
in default R.I. for one year for commission of offence
punishable under Section 201 IPC by judgment dated
January 7, 2004. The imposition of death sentence resulted
into Criminal Reference under Section 366 of the Code of
Criminal Procedure, 1973. The appellant and Mumtaz also
being aggrieved by the judgment of the Trial Court preferred
Criminal Appeal No.36 of 2004 before the High Court of
Uttaranchal at Nainital. The reference and appeal were
heard together. The High Court on re-appreciation of
evidence came to the conclusion that three circumstances
were proved by the prosecution, namely, (1) both the
Page 177 8
appellants were seen by PW3, Naseem Ahmad at about 4.30
a.m. on February 8, 1998 fleeing from near the place where
the dead body of the deceased was found; (2) blood stained
frock and underwear of the deceased and blood stained bed
sheet were recovered pursuant to voluntary disclosure
statement made by the appellant; and (3) extra judicial
confession was made by the appellant before PW-5, Anand
Swaroop. The Division Bench by judgment dated December
17, 2004 has partly allowed the appeal. The High Court has
set aside the conviction of Mumtaz recorded by the Trial
Court but confirmed the conviction of the appellant
recorded by the Trial Court under Sections 302, 376 and
201 IPC. The High Court has further modified the sentence
of death imposed on the appellant for commission of offence
punishable under Section 302 IPC and awarded R.I. for life
whereas sentences awarded for commission of offences
punishable under Sections 376 and 201 have been
confirmed.
4. This Court has heard the learned counsel for the
parties and considered the documents forming part of the
appeal. It is relevant to notice that the prosecution has not
Page 178 9
claimed that the rape and murder of the deceased was
witnessed by anyone and no direct evidence regarding the
same is adduced before the court. Admittedly, the whole
case against the appellant rests on circumstantial evidence.
The law relating to circumstantial evidence is well settled.
In dealing with circumstantial evidence, there is always a
danger that conjecture or suspicion lingering on mind may
take place of proof. Suspicion howsoever strong cannot be
allowed to take place of proof and, therefore, the Court has
to judge watchfully and ensure that the conjectures and
suspicions do not take place of legal proof. However, it is no
derogation of evidence to say that it is circumstantial.
Human agency may be faulty in expressing picturization of
actual incident but the circumstances cannot fail.
Therefore, many a times, it is aptly said that “men may tell
lies, but circumstances do not”. In cases where evidence is
of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should, in the first
instance, be fully established. Each fact must be proved
individually and only thereafter the Court should consider
the total cumulative effect of all the proved facts, each one
Page 179 10
of which reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is conclusive
in establishing the guilt of the accused, the conviction
would be justified even though it may be that one or more of
these facts, by itself/themselves, is/are not decisive. The
circumstances proved should be such as to exclude every
hypothesis except the one sought to be proved. But this
does not mean that before the prosecution case succeeds in
a case of circumstantial evidence alone, it must exclude
each and every hypothesis suggested by the accused,
howsoever extravagant and fanciful it might be. There must
be a chain of evidence so far complete as not to leave any
reasonable ground for conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability, the act must have been
done by the accused. Where the various links in a chain
are in themselves complete, then a false plea or a false
defence may be called into aid only to lend assurance to the
Court. If the circumstances proved are consistent with the
innocence of the accused, then the accused is entitled to the
benefit of doubt. However, in applying this principle,
Page 180 11
distinction must be made between facts called primary or
basic on the one hand and inference of facts to be drawn
from them on the other. In regard to the proof of basic or
primary facts, the Court has to judge the evidence and
decide whether that evidence proves a particular fact or not
and if that fact is proved, the question arises whether that
fact leads to the inference of guilt of the accused person or
not. In dealing with this aspect of the problem, the doctrine
of benefit of doubt applies. Although there should be no
missing links in the case, yet it is not essential that every
one of the links must appear on the surface of the evidence
adduced and some of these links may have to be inferred
from the proved facts. In drawing these inferences or
presumptions, the Court must have regard to the common
course of natural events, and to human conduct and their
relations to the facts of the particular case.
5. Having noticed the relevant principles governing a case
based on circumstantial evidence, this Court proposes to
consider the question whether the case against the
appellant is proved. The appellant, at the time of incident
was in his early 20’s. He is resident of village Patia Nagla,
Page 181 12
P.S. Gatpur, Tehsil Thakurdwara, District Muradabad. His
sister Ms. Bilkis, DW-1, was married to Kabir Ahmad of
village Bajpur where the first informant is residing. The
appellant used to visit and stay at the house of his sister. It
may be mentioned that the Trial Court was of the view that
four circumstances mentioned above were proved by the
prosecution.
6. The fact that deceased Yasmeen was subjected to rape
and died a homicidal death is not disputed before this Court
by the appellant. This fact stands amply proved by the
reliable testimony of Dr. J.S. Rawat, who performed autopsy
on the dead body of the deceased and contents of post
mortem produced at Exhibit Ka.5.
7. Similarly the fact that naked dead body of deceased
Yasmeen with injuries was found lying at about 6.00 a.m.
on 8.2.1998 in front of the house of Haji Khursheed is
amply borne out from the trustworthy testimony of PW-1,
Nayeem Ahmad, PW-2, Shamim Ahmad, inquest report
Exhibit Ka.4 etc.
Page 182 13
8. According to the Sessions Court and the High Court,
one of the incriminating circumstances proved by the
prosecution is that witness Naseem Ahmad had seen the
appellant and another fleeing from near the place where the
dead body of the deceased was found lying at about 4.30 am
on February 8,1998. The learned counsel for the appellant
submitted that the only witness produced by the
prosecution to prove this circumstance is PW-3, Naseem
Ahmad but the said witness does not speak of any source of
light and his silence of not telling this fact to the
Investigating Officer at the time of holding of inquest is most
unnatural and, therefore, the High Court had erred in
placing reliance on his evidence. Elaborating this
argument, it was submitted that the statement of Naseem
Ahmad under Section 161 was recorded on February 9,
1998 after the arrest of the appellant and Mumtaz was
effected and he does not say that he had seen the accused
carrying dead body or dropping any object in front of the
house of Haji Khursheed. It was pointed out that he is a
close relative of the complainant who asserted that before
the report of recovery of dead body was lodged by Shamim,
Page 183 14
he had told Nayeem and Shamim that he had seen the
appellant and Mumtaz running away from near the place
where the dead body was found lying but no such fact was
stated in the report made by witness Shamim Ahmad and,
therefore, his claim that he had seen the appellant fleeing
from near the place where the dead body was found lying
should have been disbelieved. What was stressed was that
according to the said witness, he and Jakir were going to
jungle for answering the call of nature and seen the
appellant entering into the house of his sister but for the
same reason, the appellant could have been out of his
sister’s house and, therefore, the appellant entering into the
house of his sister could not have been treated as an
incriminating circumstance. What was claimed was that
neither this circumstance sought to be relied upon by the
prosecution stands proved beyond doubt by witness Naseem
Ahmad nor the same can be characterised as an
incriminating circumstance and, therefore, the same should
be ignored while appreciating the evidence against the
appellant.
Page 184 15
9. So far as the circumstance, namely, that the appellant
and Mumtaz were seen fleeing away from near the place
where the dead body of the deceased was lying is concerned,
this Court finds that the prosecution has relied upon the
testimony of PW2, Naseem Ahmad. After mentioning that
younger daughter of his brother Nayeem had disappeared
on February 5, 1998, the witness has mentioned that in the
morning of February 8, 1998 at about 4.30 a.m. he himself
and one Jakir were going towards jungle and when they
reached near the house of Haji Khursheed, they had seen
the appellant and Mumtaz running from near the house of
Haji Khursheed and entering into the house of Kabir. It
may be stated that Kabir is brother-in-law of the appellant,
i.e., husband of Ms. Bilkis who is sister of the appellant.
The witness has claimed in his evidence that he was
knowing Aftab, i.e., the appellant and Mumtaz before the
incident. According to this witness, when they came back
from the jungle at that time, they learnt that on the same
day, dead body of daughter of Nayeem Ahmad was found
near the house of Haji Khursheed.
Page 185 16
This witness was subjected to searching crossexamination by the defence. In his cross examination, the
witness stated that his house was located after two houses
from the house of Haji Khursheed. According to him Jakir
who is his brother-in-law had come to his house from village
Mudia Kalan. During this cross-examination, the witness
also explained that Jakir was real brother-in-law of Nayeem
and, thus, deceased was niece of Jakir. What was
maintained by the said witness was that both of them had
proceeded to jungle at about 4.30 a.m. for answering the
call of nature and had seen the appellant and Mumtaz while
they were going to jungle. According to this witness, the
Investigating Officer had recorded his statement on the next
day of recovery of the dead body. It was further stated by
this witness in his cross-examination that the deceased was
missing since February 5, 1998 whereas her dead body was
found on February 8, 1998. The witness has further
mentioned that by the time they had come back from the
jungle, the dead body had already been found and one
missing report was written on February 6, 1998 which was
scribed and lodged by Shamim after the dead body was
Page 186 17
found. It was stated by him that he was not present at the
time of writing of the report by Shamim but before the
report was written, Shamim and Nayeem were told by him
and Jakir that they had seen the appellant and Mumtaz
running away from near the place where the dead body was
lying. The witness further mentioned in his crossexamination that the report was scribed after arrival of
sniffer dog called by the police. It was explained by the
witness that sniffer dog had been brought at 7.30 a.m. The
suggestion made by the defence that he had not seen
anyone running away from near the place where the dead
body was lying and was deposing falsely on account of
relationship with Nayeem was emphatically denied by him.
10. A fair reading of the evidence tendered by this witness
makes it evident that though he is relative of Nayeem, he
has stated the facts seen by him in a simple manner and
without any noticeable embellishments. If this witness
wanted to implicate the appellant falsely in the case because
of his relationship with the first informant, nothing
prevented him from stating before the police and the court
that he had seen the appellant carrying the dead body of the
Page 187 18
deceased and throwing the same near the house of Haji
Khursheed.
11. However, this Court finds that he has not made any
false claim/exaggeration in his testimony at all and stated
that he had seen the appellant fleeing from near the place
where the dead body was lying. The reason as to why in the
early morning he was out of his house is stated by him,
which this Court finds to be most natural. It could not be
even remotely suggested by the defence that a constructed
latrine was available in the house of witness Naseem Ahmad
and, therefore, it was not necessary for him to move out of
his house in the early morning of February 8, 1998 to go to
jungle for answering call of nature. What is relevant to
notice is that at the time when this witness had seen the
appellant running away from near the place where the dead
body was found, he had not learnt that the dead body was
already found. Further, his house is located after two
houses from the house of Haji Khursheed and the house of
Ms. Bilkis, who is sister of the appellant and with whom the
appellant was residing at the relevant point of time, is quite
near to the house of Haji Khursheed. Therefore, the claim
Page 188 19
made by the witness that he had seen the appellant
hurriedly entering the house of his sister sounds probable.
No major contradiction and/or omission with regard to his
earlier statement recorded before the police nor any other
material could be brought on record by the defence to
impeach his credibility. Merely because Shamim did not
refer to the fact that he was told by Naseem Ahmad that
Naseem Ahmad had seen the appellant running away from
near the place where the dead body was lying in his report
to the police, cannot be a ground to disbelieve this witness.
The learned Judge of the Trial Court who had advantage of
observing demeanour of this witness has found the witness
to be truthful. The assertion made by the witness that the
appellant and Mumtaz were known to him could not be
disputed by the defence at all. It was claimed by this
witness in terms before the Court that he had seen the
appellant running away from near the place where the dead
body was lying. When it was stated by the appellant that he
had seen the appellant running away from near the place
where the dead body was lying, it was for the defence to
suggest that in the early morning of February 8, 1998, no
Page 189 20
source of light was available and, therefore, he could not
have seen the appellant so running away. However, this
Court finds that even remotely it was not suggested to the
witness that there was no source of light and, therefore, he
could not have seen the appellant running away from near
the place where the dead body was lying. The plea that this
witness maintained silence at the time when the inquest on
the dead body of the deceased was held and did not tell the
Investigating Officer that he had seen the appellant running
away from near the place where the dead body was lying
would indicate that he had not seen the appellant running
away, is merely stated to be rejected. The occasion for this
witness to tell the Investigating Officer that he had seen the
appellant running away from near the place where the dead
body was lying would arise only when the Investigating
Officer was to record his statement under Section 161. The
basic purpose of holding inquest on the dead body is to
ascertain prima facie the nature of death and to find out
whether there are injuries on the dead body or not. The
inquest punchnama cannot be treated as statement of the
witness recorded under Section 161 of the Code of Criminal
Page 190 21
Procedure wherein he is supposed to narrate the facts seen
by him. Therefore, it is not true to say that he had
maintained silence and had not told the Investigating Officer
at the time of holding of the inquest that he had seen the
appellant running away from near the place where the dead
body was lying. The so called silence on the part of this
witness cannot be considered to be unnatural at all nor the
same makes this testimony doubtful in any manner. It is
true that the appellant who was staying in the house of his
sister cannot be said to have committed any unnatural
conduct by entering into the house of his sister. However, it
is not the case of witness Naseem Ahmad that he had seen
the appellant calmly entering into the house of his sister.
What is mentioned by the witness is that he had seen the
appellant running away from near the place where the dead
body was found and hurriedly entering house of his sister.
The ‘running away’ part attributed to the appellant could
not be explained by him. In his further statement, it could
not be explained by the appellant as to what made him
running away from near the place where the dead body was
found and hurriedly entering into the house of his sister.
Page 191 22
On reappraisal of the evidence of this witness, this Court
finds that neither the Trial Court nor the High Court
committed any error in placing reliance on the testimony of
this witness for coming to the conclusion that one of the
incriminating circumstances, namely, that the appellant
was found fleeing from near the place where the dead body
was found lying was satisfactorily proved.
12. Another circumstance sought to be relied upon by the
prosecution is that the appellant had made voluntary
disclosure statement pursuant to which blood stained
clothes of the deceased were discovered. The disclosure
statement was made by the appellant in presence of PW4,
Rais Ahmad. To prove the recovery of clothes of the
deceased, the prosecution has relied upon the testimony of
two witnesses, namely, PW4, Rais Ahmad and PW7, Praveen
Kumar Tyagi, the Investigating Officer. PW4, Rais Ahmad
has stated that on February 8, 1998 Police had come to
village Bajpur at about 3.30 p.m. and they had brought with
them the appellant and Mumtaz. According to this witness,
he and Lakhvinder Singh were standing at the place where
the appellant was brought by the police. It is mentioned by
Page 192 23
the witness that police had called him and Lakhvinder
Singh and asked them to accompany them. What is stated
by the witness is that the appellant and Mumtaz led them to
the house of Kabir and the appellant took out one sleeveless
frock, one underwear and one green coloured bed sheet
from the foodgrains room of the house of Kabir. The witness
further stated that the abovementioned articles were kept
hidden under the leaves and after taking out those articles,
the appellant had told that these were the clothes of
Yasmeen which he had concealed. It was further stated by
the witness that seizure memo was prepared by the
Investigating Officer on the spot and his signature was
obtained thereon after it was read over to him. The witness
identified his signature on the memo (Exhibit Ka.3). In his
cross-examination, the witness stated that Shamim who is
his elder brother was brother-in-law of the complainant.
According to this witness, the appellant used to live in the
house of his sister. What was mentioned by the witness
was that Shabnam, daughter of sister of the appellant, was
of the age group of Yasmeen and he was not remembering
correctly whether Kabir, i.e., brother-in-law of the appellant
Page 193 24
was living with his family in the house from which the
appellant had taken out the clothes of the deceased. It was
mentioned by the witness that the sniffer dog had first smelt
the dead body and then the said dog had entered into house
of Kabir and picked up the appellant. It was further stated
by the witness that the dog did not pick up Mumtaz and
after the smelling by sniffer dog, the police had arrested the
appellant and Mumtaz in his presence. What is testified by
the witness is that many persons had gone up to the police
station and he had also gone to the police station where his
signatures were obtained on Exhibit Ka.3 at about 4.00
p.m. The suggestion made to the witness by the defence
that no clothes were recovered in his presence and that he
was deposing falsely was emphatically denied by him.
13. The testimony of Investigating Officer makes it more
than clear that after arrest, the appellant had made
disclosure statement and willingness to show the place
where the clothes of the deceased were concealed by him.
This fact is also mentioned in Exhibit Ka.3 which was
prepared contemporaneously. According to the
Investigating Officer, he had made efforts to summon local
Page 194 25
witnesses from Akari Pistor but none had agreed to be a
witness and, therefore, Rais Ahmad and Lakhvinder Singh
were summoned to be panch witnesses on way to the place
to be pointed out by the appellant where he had concealed
the clothes of the deceased. According to this witness, the
appellant and Mumtaz led the police party and the appellant
took out clothes of the deceased, i.e., blood stained frock
and underwear as well as one bed sheet from Kuria meant
for storing foodgrains. The witness further stated that
clothes of the deceased and bed sheets were kept in the
western corner of the room. The witness also informed the
Court that underwears of both the accused were seized and
they appeared to be stained with semen at some places.
The argument that witness Rais Ahmad has not stated
about the disclosure statement at all and, therefore,
discovery of the clothes of the deceased should be
disbelieved cannot be accepted. As explained by the
Investigating Officer, the appellant and Mumtaz had made
disclosure statement when they were at the police station.
The said fact is mentioned in the document prepared
contemporaneously. As explained by the Investigating
Page 195 26
Officer, he had made efforts to summon two independent
witnesses to act as panchas but none had shown
willingness to do so and, therefore, he had requisitioned
services of Rais Ahmad and another on way to the house of
sister of the appellant from where the clothes of the
deceased were recovered. The contention that that part of
the disclosure statement showing that recovered frock and
underwear were of the deceased and the bed sheet was one
over which rape was committed cannot be read in evidence
has no substance. In the leading case of Pulukuri Kottaya
& Ors. Vs. Emperor AIR 1947 PC 67 what would be
admissible in a disclosure statement has been explained by
the Privy Council giving illustration as under :
“The statements to which exception is
taken in this case are first a statement by
accused No.6 which he made to the police
sub-Inspector and which was reduced
into writing, and is Exhibit “P.” It is in
these terms :
‘The mediatornama written at 9 a.m.
on 12.1.1945, in front of Maddineni
Verrayya’s choultry and in the
presence of the undersigned
mediators.
Statement made by the accused
Inala Sydayya on being arrested.
About 14 days ago, I Kotayya and
Page 196 27
people of my party lay in wait for
Sivayya and others at about sunset
time at the corner of Pulipad tank.
We, all beat Beddupati China
Sivayya and Subayya, to death. The
remaining persons, Pullayya,
Kotayya and Narayana ran away.
Dondapati Ramayya who was in our
party received blows on his hands.
He had a spear in his hands. He
gave it to me then. I hid it and my
stick in the rick of Venkatanarasu
in the village. I will show if you
come. We did all this at the
instigation of Pulukuri Kotayya.’
(Signed) Potla China mattayya.
( “ ) Kotta Krishnayya.
12th January, 1945. (Sgd.) G. Bapaiah,
Sub-Inspector of Police.
The whole of that statement except
the passage “I hid it (a spear) and my
stick in the rick of Venkatanarasu in the
village. I will show if you come” is
inadmissible. In the evidence of the
witness Potla China Mattayya proving the
document the statement that accused 6
said “I Mattayya and others went to the
corner of the tank-land. We killed
Sivayya and Subayya” must be omitted.
A confession of accused 3 was
deposed to by the police Sub-Inspector,
who said that accused 3 said to him :
‘I stabbed Sivayya with a spear, I
hid the spear in a yard in my village.
I will show you the place.”
The first sentence must be omitted. This
was followed by a Mediatornama, Ex.Q.I,
Page 197 28
which is unobjectionable except for a
sentence in the middle,
‘He said that it was with that spear
that he had stabbed Boddapati
Sivayya,’
which must be omitted.”
Thus, the part of the disclosure statement, namely,
that he was ready to show the place where he had concealed
the clothes of the deceased is clearly admissible under
Section 27 of the Evidence Act because the same relates
distinctly to the discovery of the clothes of the deceased
from that very place.
The contention that even if it is assumed for the sake
of argument that the clothes of the deceased were recovered
from the house of the sister of the appellant pursuant to the
voluntary disclosure statement made by the appellant, the
prosecution has failed to prove that the clothes so recovered
belonged to the deceased and, therefore, the recovery of the
clothes should not be treated as an incriminating
circumstances is devoid of merits. First of all, what is
relevant to notice is that in the missing report, it was
mentioned by Nayeem Ahmad that his daughter aged five
Page 198 29
years, who was wearing frock and underwear, was missing
from near the house while playing.; Thus, the wearing of the
frock and underwear was mentioned by the father of the girl
at the first available opportunity. The statement by
Nayeem, PW1, as well as statement made by Shamim, PW2,
that there were no clothes on the dead body of the deceased
has gone unchallenged. Naturally, therefore, it was
necessary for the Investigating Officer to find out as to
where the clothes put on by the deceased were concealed.
What is relevant to notice is that Ms. Bilkis who is sister of
the appellant and who is examined as DW1 mentioned in
her testimony before the Court that the police had taken
into custody the clothes belonging to her daughter
Shabnam. However, the record of the case shows that the
frock and the underwear recovered from the house of Ms.
Bilkis pursuant to disclosure statement made by the
appellant were blood stained. It was never the case of Ms.
Bilkis that the frock and underwear recovered or seized by
the police were blood stained and belonged to her daughter
Shabnam. Further, the clothes were recovered pursuant to
the voluntary disclosure statement made by the appellant
Page 199 30
on February 9, 1998 whereas Ms. Bilkis made claim that
the clothes, which belonged to her daughter, were recovered
and seized on September 30, 2003 when she was examined
by the appellant as one of the defence witnesses. If the
police had seized the clothes belonging to her daughter, Ms.
Bilkis would not have maintained tacit silence for roughly
about more than five years and would have made grievance
before higher police officers or court within reasonable time.
A bare reading of her testimony makes it more than clear
that she had come to depose before the Court to save the
appellant who is her real brother and stated wrong facts for
the first time before the Court. Her case that the police
personnel had given 2 to 4 blows of stick to her and
threatened her that she and her husband would be
implicated in the case, does not inspire confidence of this
Court. Further, Exhibit Ka.3 which is seizure memo of the
clothes of the deceased recovered from the house of Ms.
Bilkis pursuant to the disclosure statement made by the
appellant, mentions that the frock recovered was made of
terry-cotton fabric and its upper portion was white whereas
lower portion was brown coloured and there were prints of
Page 200 31
flowers. The panchnama further indicates that it was
sleeveless and stained with blood marks. Similarly,
underwear discovered was made of cotton. It was white in
colour with black stripes having blood stains. Though
Bilkis who was examined as DW1 claimed that the clothes
recovered from her house belonged to her daughter
Shabanam, she could not give description of either frock or
the underwear seized during the course of her testimony
before the court. On overall view of the matter, this Court
finds that it was satisfactorily proved by the prosecution
that the frock and underwear, recovered from the house of
DW1 Ms. Bilkis pursuant to the voluntary disclosure
statement made by the appellant, belonged to the deceased.
14. Yet another circumstance relied upon by the
prosecution is that the underwear of the appellant was
stained with blood and semen. The fact that underwear put
on by the appellant was seized under a panchnama is not
disputed on behalf of the appellant at all. The High Court
ignored this circumstance stating that the appellant was
young and, therefore, find of semen stains was natural.
However, the High Court ignored the material fact that in
Page 201 32
normal course, the underwear would not have blood stains
at all and, therefore, it was for the appellant to offer
explanation as to under what circumstances stains of blood
were found on his underwear, seized by the police during
the course of investigation. The fact that the underwear of
the appellant seized by the police had human blood stains is
sufficiently proved by the contents of report of Chemical
Analyst. The fact that the blood stained underwear put on
by the appellant was seized after four days does not make
any dent in the prosecution case on the ground that a
person would not move with such blood stained underwear
for 3 – 4 days. One cannot lose sight of the fact that those
stains were not visible and even the Investigating Officer
had stated that on examination the underwear put on by
the appellant appeared to be stained with semen at some
places. If blood stains are found on the shirt or pant of a
person then normally such person would not move in the
village with those clothes on, because stains of blood would
be visible and noticed by anyone. However, it is almost
difficult for anyone to notice stains of blood on underwear
worn by a person. Further, the sense of cleanliness of a
Page 202 33
rustic villager cannot be ignored by the Court. While
recording the statement of the appellant under Section 313
of the Code, it was put to him by the learned Judge that
during the course of investigation his blood stained
underwear was seized by the Police and his explanation was
sought. In answer to the said question, it was never
claimed by the appellant that the underwear seized was not
blood stained and that another underwear was substituted
in place of his underwear which was seized. Thus, this
Court finds that the High Court was not justified at all in
ignoring the circumstance sought to be relied upon by the
prosecution that blood stained underwear of the appellant
was recovered during the course of investigation.
15. Another circumstance sought to be relied upon by the
prosecution is that the appellant made extra judicial
confession before PW5, Anand Swaroop. The evidence of
this witness shows that he was one of the panchas when
inquest on the dead body of the deceased was held. During
the course of his testimony, the witness identified his
signature on the inquest report which was produced by the
prosecution at Exhibit Ka.4. According to this witness, on
Page 203 34
February 23, 1998, he had been to Kasipur Court in
connection with some work. What is asserted by the
witness is that the appellant who is brother-in-law of Kabir
had come to Court premises and told him near the shops
that he and Mumtaz had killed Yasmeen after committing
rape on her. The witness further asserted that the reason
for making extra judicial confession by the appellant was
that he was ex-pradhan of the village and the appellant was
under an impression that the witness would be able to help
him by approaching the police. This witness in no
uncertain terms asserted before the court that he had told
the Investigating Officer about the extra judicial confession
made by the appellant.
In his cross-examination, the witness stated that
police had recorded his statement only once. According to
the witness, police had recorded his statement sometime
between 23 to 29th February, 1998 in the village. What is
mentioned by the witness in his cross-examination is that
the appellant had come after February 23, 1998 and,
therefore, he had not thought it necessary to tell the police
about the extra judicial confession made by the appellant.
Page 204 35
The suggestion made by the defence that the police used to
visit house of this witness daily or that the witness used to
go to the police station daily, is denied by the witness. The
manner in which this suggestion is made to the witness
indicates that the appellant was entertaining a notion that
the witness would be in a position to help him because the
witness that the witness was going to the Police Station
daily and policemen were also visiting him. In the crossexamination also, the witness maintained that the appellant
had met him on February 23, 1998 in the court premises
and neither the appellant nor Mumtaz was in the lockup
nor inside the court room and that the appellant had made
the confession near the shops. The witness explained to the
court as to why he had gone to the court and according to
him he had gone to the court premises to meet one Ashish
Sharma, legal adviser of the bank for getting his brother’s
NOC prepared. The witness further mentioned before the
Court that the appellant and Mumtaz had met him between
11.30 and 12 noon. The suggestion made by the defence
that it was wrong to say that the appellant had made any
confessional statement was emphatically denied by him. It
Page 205 36
may be mentioned that this witness in the crossexamination had stated that the appellant was not on
talking or visiting terms with him before February 23, 1998
and, therefore, it was argued that there was no reason for
the appellant to confide in this witness. However, what is
relevant to notice is that the witness was ex-pradhan of
Bajpur village. Ex-Pradhan certainly enjoys a status in a
small village. The case of the defence was that the appellant
was knowing that the witness was close to the police and
was going to the Police Station daily. Under the
circumstances, thinking that the witness would be able to
render some help to him, the appellant had made extra
judicial confession. The Court, on re-appreciation of
evidence, finds that it is not brought on the record of the
case that this witness was on inimical terms with the
appellant. In fact, this witness does not belong to the
community of the appellant and belongs to another
community. There was no earthly reason for this witness to
come to the court and depose falsely about the extra judicial
confession made by the appellant. Though extra judicial
confession is considered to be a weak piece of evidence by
Page 206 37
the courts, this Court finds that there is neither any rule of
law nor of prudence that the evidence furnishing extra
judicial confession cannot be relied upon unless
corroborated by some other credible evidence. The evidence
relating to extra judicial confession can be acted upon if the
evidence about extra judicial confession comes from the
mouth of a witness who appears to be unbiased and in
respect of whom even remotely nothing is brought out which
may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused. In
State of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court,
while explaining the law relating to extra judicial confession,
ruled that if the word spoken by the witness are clear,
unambiguous and unmistakable one showing that the
accused is the perpetrator of the crime and nothing is
omitted by the witness which may militate against it, then
after subjecting the evidence of the witness to a rigorous
test on the touchstone of credibility, the extra judicial
confession can be accepted and can be the basis of a
conviction. According to this Court, in such a situation, to
go in search of corroboration itself tends to cause a shadow
Page 207 38
of doubt over the evidence and if the evidence of extra
judicial confession is reliable, trustworthy and beyond
reproaching, the same can be relied upon and a conviction
can be founded thereon. Here, in this case, it is proved by
the prosecution that PW5, Anand Swaroop was not on
inimical terms with the appellant at all. After subjecting his
evidence to a rigorous test on the touchstone of credibility,
this Court finds that extra judicial confession referred to by
the witness is reliable and is rightly accepted by the Trial
Court and the High Court. The contention that when the
appellant was being brought to the court, he was in custody
and, therefore, the extra judicial confession referred to by
PW5 would be hit by the provisions of Section 26 of the
Evidence Act and could not have been received in evidence,
cannot be accepted. As observed earlier, the record shows
that the appellant and another were produced before the
Court for extension of judicial remand. The appellant could
not probablise his defence that he was in custody of police
officer. He could not name the police officer who had
brought him with Mumtaz to the Court premises for
extension of judicial remand nor it is his case that to the
Page 208 39
hearing of the police officer who brought him to the court
premises, he had made confessional statement before PW5.
On the facts and in the circumstances of the case, This
Court is of the opinion that it is not probablised by the
defence that the appellant was in custody of police officer
while he had made extra judicial confession before PW5.
The evidence relating to extra judicial confession inspires
confidence of this Court. On this point, there is concurrent
finding by the courts below and no case is made out by the
appellant to interfere with the said finding in the present
appeal.
16. The net result of the above discussion is that the
prosecution has proved satisfactorily and beyond shadow of
doubt following facts:
(1) The deceased went missing in the evening of February
5, 1998 when she was playing near her house.
(2) Her naked dead body was found at about 6 a.m. on
February 8, 1998 lying on public way in front of house
of Haji Khursheed.
(3) She was subjected to rape and died a homicidal death.
Page 209 40
(4) The appellant was seen fleeing away from near the
place where the dead body of the deceased was lying at
about 4.30 a.m. on February 8, 1998.
(5) Blood stained frock and blood stained underwear of
the deceased concealed in the house of sister of the
appellant, were recovered pursuant to voluntary
disclosure statement made by the appellant while in
police custody.
(6) Underwear of the appellant seized during the course of
investigation was found to be stained with blood and
semen.
(7) The appellant made extra judicial confession before
PW5, Anand Swaroop.
17. The cumulative effect of the abovementioned facts
taken together is conclusive in establishing the guilt of the
appellant. The chain of circumstantial evidence is complete
and does not leave any reasonable ground for conclusion
consistent with the innocence of the appellant. The chain of
circumstances is such as to show that within all human
probability the rape and murder of the deceased were
Page 210 41
committed by the appellant and none else and he had also
caused disappearance of evidence of those offences. This
Court further notices that this Court in Vasa
Chandrasekhar Rao vs. Ponna Satyanarayana & Anr.
[(2000) 6 SCC 286] and Geetha vs. State of Karnataka
[(2000) 10 SCC 72] while explaining the law relating to
circumstantial evidence has ruled that where circumstances
proved are put to the accused through his examination
under Section 313 of the Code and the accused merely
denies the same, then such denial would be an additional
link in the chain of circumstances to bring home the charge
against the accused. As indicated earlier, it is proved by
cogent and reliable evidence that the appellant had
committed rape on the deceased and thereafter murdered
her. Here in this case, the incriminating circumstances
proved were put to the appellant while recording his
statement under Section 313 of the Code of Criminal
Procedure. In his further statement, recorded under
Section 313, the appellant has merely denied the same.
Therefore, such denial on the part of the appellant and
failure to explain the circumstances proved will have to be
Page 211 42
treated as an additional link in the chain of circumstances
to bring home the charge against the appellant. The
circumstances proved establish the guilt of the appellant
beyond reasonable doubt.
18. Thus, this Court does not find any substance in the
appeal and the same is liable to be dismissed. Accordingly,
the appeal fails and is dismissed.
………………..…………J.
[J.M. Panchal]
…………………..………J.
[T.S. Thakur]
New Delhi;
January 12, 2010.
Page 212 43
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1401 OF 2008
Vinod Kumar … Appellant
Versus
State of Haryana … Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment
of conviction and order of sentence recorded by the High
Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 245-DB of 1998 whereby the Division Bench
has reversed the decision rendered by the learned
Additional Sessions Judge (II), Jind wherein the learned
trial Judge had acquitted the appellant and the coaccused, Joginder of the charges leveled against him
Page 213
Page 2
under Sections 363/109/364-A of the Indian Penal Code,
1860 (‘IPC’ for short).
2. The facts which are requisite to be stated for
disposal of the appeal are that Jaivir Singh, informant,
PW-1, was residing jointly along with his two brothers at
village Ikkas. His younger brother, Jagbir Singh, was an
employee at Railway Police. The accused-appellant,
Vinod Kumar, a resident of Bijwasan, had come to the
village of PW-1 in the month of May, 1996 and worked as
a domestic help in the house of Jagbir Singh. Jagbir Singh
had four children and he had employed two servants one
of whom was the present appellant. After working for
four months in the house of Jagbir Singh, Vinod Kumar, as
the prosecution story unfurls, kidnapped Anand, the 3 ½
year old son of Jagbir Singh and Smt. Santosh, PW-2, on
24.09.1996. He was seen along with Anand by Harpal,
PW-3, who had enquired from Vinod Kumar where he was
proceeding with the child to which the reply was that he
had to purchase shoes for Anand and medicine for
himself from Jind. The mother, PW-2, searched for the
child but did not find him, but found a letter, Exhibit P3,
Page 214 2
Page 3
which was addressed to her father-in-law, Manphul. The
said letter was written by Vinod informing that he was
taking Anand with him and would only release him on
payment of ransom of Rs.1 lakh. She immediately
brought the letter to the notice of her father-in-law who
sent Jaivir to the police station and Jaivir, in turn, lodged
an FIR. After the criminal law was set in motion, the
Investigating Officer proceeded to village Ikkas, where
the house of Jagbir Singh is situate, prepared the site
plan, seized two other letters, Exhibits P1 and P2, written
by Vinod, vide Memorandum Exhibit PB which was
attested by Santosh, PW-2, and her father-in-law,
Manphul. Thereafter, the investigating team, went to
village Bijwasan in search of Vinod Kumar but did not find
him in the village. Thereafter, Jaivir informed the
Investigating Officer that Vinod Kumar had appeared in
some examination at Village Beri. From the teachers of
the school they came to know that Vinod Kumar was a
student of the said school but had not attended the
school for the last seven months. They also came to
know that father’s name of Vinod Kumar was one Om
Page 215 3
Page 4
Prakash, who is a resident of Village Dhansa. As the
prosecution story further undrapes, the investigating
team proceeded to village Dhansa and photograph of
Vinod Kumar was shown by Om Parkash and the said
photograph was that of the appellant who was employed
by Jagbir as a servant. On the next day, SHO Police
Station, Jind, PW-13, along with other members of the
investigating team came to know that Anand had been
recovered from the custody of Vinod Kumar. The
accused-appellant was formally arrested on 26.9.1996.
Eventually, he was produced before the learned
Additional Chief Judicial Magistrate, PW-11, Jind along
with the letters and before the learned Magistrate, he
admitted that the letters were written by him and,
accordingly, his statement was recorded by the learned
Magistrate. The Investigating Officer, after recording the
statements of other witnesses under Section 161 CrPC
and completing the formalities, laid the chargesheet
under Section 364-A read with Section 109 IPC against
both the accused persons, namely, Vinod Kumar and
Page 216 4
Page 5
Joginder before the learned Magistrate, who in turn,
committed the matter to the Court of Session.
3. Both the accused persons pleaded not guilty and
claimed to be tried.
4. The prosecution, to substantiate its case, examined
13 witnesses. The principal witnesses are Jaivir Singh,
PW-1, who had lodged the FIR; Smt. Santosh, PW-2, the
mother of Anand; Harpal, PW-3, who had seen the
accused taking Anand in a three-wheeler towards Jind;
Mahipal, the Head Constable, GRP, PW-5, who had
recovered Anand from the custody of Vinod at Old Delhi
railway station and had arrested the accused; Sri Dharam
Pal, Additional Chief Judicial Magistrate, Jind, PW-11,
before whom the accused had made the statement that
he had written the letters; Datta Ram, ASI, Investigating
Officer, PW-12. The other witnesses, namely, Baljeet,
Shakti, Rampal, Raisingh, Devanand, Balwant Singh and
SHO, P.S. Jind PWs-4,6,7,8,9,10 and 13 respectively who
are basically formal witnesses.
5. The accused-appellant, in his statement under
Section 313 CrPC took the plea that he was falsely
Page 217 5
Page 6
implicated in the crime as he had expressed his
unwillingness to work in the house of Jagbir Singh and
demanded his salary. It was his further stand that the
employer had refused to make payment and involved him
in the false case. Explaining the letters it was his plea
that his signatures were obtained forcibly and the letters
were got written by him under the pressure of police.
However, the defence chose not to adduce any evidence.
6. The learned trial Judge, on the basis of the evidence
brought on record, came to hold that the prosecution had
not been able to establish any case against the accused
Joginder inasmuch as his name was not mentioned in the
FIR and none of the witnesses had implicated him and
from the disclosure statement of accused Vinod Kumar,
nothing was revealed which could be considered against
Joginder under Section 27 of the Indian Evidence Act, and
accordingly acquitted him. As far as the present
appellant is concerned, the learned trial Judge found that
though the accused Vinod Kumar had worked in the
house of the in-laws of the brother of PW-1 for some time
and on his recommendation he had come to work in the
Page 218 6
Page 7
house of the husband of PW-2 and alleged to have
worked there for four months, yet nobody had bothered
to find out his parentage; that from the evidence of PW-4
and 5, it was difficult to come to a definite conclusion that
Anand was recovered from the custody of accused Vinod
Kumar; that as regards time of kidnapping of Anand and
registration of the case, the evidence of PWs 1, 3 and 12
are discrepant and, therefore, their testimony could not
be given credence to; that there was discrepancy with
regard to the name of the father of the accused, for at
some places he had been described as son of Suraj Bhan
whereas he is actually son of Om Prakash; that the
letters, Exhibit P1 to P3, which were the foundation of the
case of the prosecution, could not be placed reliance
upon inasmuch as had there been any truth in the said
letters, the police could have waited at the relevant place
till that time which was mentioned for the purpose of
collection of ransom and further the investigating agency
had not taken any steps to effect the arrest of the
accused at the place given in the letters; that there was
doubt with regard to the existence of letters prior to
Page 219 7
Page 8
24.9.1996 i.e. the date of lodging of the FIR; that the plea
of the accused that the letters were got written from him
by the police under pressure created a dent in the
prosecution version and that apart it was difficult to give
credence to the letters when it is appreciated in the
backdrop of the evidence in toto; that there was material
discrepancy in the statements of PWs 1, 2 and 12
regarding bringing back of Anand from Delhi to Ikkas; that
the PWs 1 and 4 had deposed about the facts in their own
manner without bothering about the actual facts of the
case and they are interested witnesses; and that the
statements of PWs 4 and 5 were liable to be disbelieved
as they had stated different particulars of the person from
whom Anand was recovered. Being of this view, the
learned trial Judge acquitted both the accused persons.
7. The prosecution, being dissatisfied with the said
judgment of acquittal, sought leave to appeal before the
High Court. The application for leave against Joginder
was declined as there was no evidence whatsoever
against him and, the prayer for grant of leave was
restricted to Vinod Kumar.
Page 220 8
Page 9
8. It was contended before the High Court by the
prosecution that Anand was seen in the company of the
accused Vinod Kumar while going towards Jind in a threewheeler; that there was no warrant or justification to
discard the letters Exhibit P1 to P3, which were recovered
by the police and written by the accused; that the plea
advanced that the letters were got written from him by
police under pressure was nowhere suggested to any of
the witnesses; that the learned trial Judge had given
undue emphasis relating to the name of the father of the
appellant while there is material on record to show that
he had disclosed his father’s name as Suraj Bhan,
resident of Bijwasan; that the discrepancies which had
been highlighted by the trial court were minor in nature
and could not have been considered to discard the
otherwise irreproachable testimony of the witnesses; and
that the appreciation of the evidence on record was
basically fallacious and, therefore, the view expressed
could not be remotely treated as a plausible one.
9. The contentions put forth by the prosecution before
the High Court was controverted by the accusedPage 221 9
Page 10
respondent on the bedrock of reasons ascribed by the
trial Judge.
10. The High Court, as we notice, has scrutinized the
evidence on record in detail and come to hold that Vinod
Kumar was seen by Harpal Singh, PW-3, who had made
queries from him as to where he was going with the
grandson of Manphul; that on 24.9.1996 along with the
complaint a letter was produced before the police which
gave rise to the lodgment of the formal FIR; that the
recovery of the boy Anand from the custody of Vinod
Kumar at Old Delhi railway station had been fully proven
by the prosecution; that acquittal of Joginder could not be
a factor to be taken into consideration for recording
acquittal of Vinod Kumar; that the trial court had given
undue emphasis on the name of the father of the accused
Vinod Kumar, for there is evidence on record to show that
he himself had stated before the witnesses that he is son
of Suraj Bhan; that there is nothing on record to
disbelieve the writing in Exhibit P1 to P3 on the ground
that they have been written at the instance of Joginder or
under the police pressure. On the basis of aforesaid
Page 222 1
Page 11
findings, the High Court has opined that the view
expressed by the learned trial Judge is absolutely
untenable, and, in fact, based upon total erroneous
appreciation of facts and certain conjectures and
accordingly has dislodged the judgment of acquittal.
11. We have heard Mr. Rajiv Singh, learned counsel for
the appellant and Mr. Vikas Sharma, learned counsel for
the respondent. It is submitted by learned counsel for the
appellant that while overturning the judgment of acquittal
and recording a conviction, it is the obligation of the High
Court to give adequate reasons and to meet every aspect
but in the impugned judgment there is no discussion for
reversing the same and, therefore, it warrants
interference by this Court. It is contended by him that
the High Court has erroneously, in a cryptic manner,
observed that the discrepancies are minor in nature,
though they really cast a doubt in the prosecution version
which has been appositely appreciated by the learned
trial Judge. Learned counsel would contend that the High
Court has erroneously noted that the accused has not
stated a word that the letters were got written from him
Page 223 1
Page 12
by Joginder or the letters were got written by police under
pressure, for there is a definite stand in the statement
recorded under Section 313 CrPC that the letters were
written under pressure by the police. It is further
submission that it is a case where the appellant should
have been extended the benefit of doubt regard being
had to the discrepancies pertaining to time and place and
the plea taken in the statement recorded under Section
313 CrPC and the discrepancies with regard to the
recovery of kidnapped boy.
12. Mr. Vikas Sharma, learned counsel appearing for the
State, per contra, would contend that the discrepancies
pointed out by the learned trial Judge are absolutely
minor in nature and under no circumstances, can
discredit the testimony of the witnesses. It is put forth by
him that the plea of the accused that the letters were
written under the pressure by police deserves to be
rejected because the defence had really not asked any
question to the witnesses relating to the letters except a
bald suggestion given to PW-12. Learned counsel would
contend that though the said aspect has been slightly
Page 224 1
Page 13
erroneously understood by the High Court, but that would
not make the judgment of conviction fallible.
Additionally, it is submitted by him that the prosecution
has proven to the hilt that the accused-appellant was
arrested in Delhi and put in Tihar jail and from his custody
the kidnapped boy was recovered. Learned counsel
would further urge that the High Court has rightly
interfered with the judgment of acquittal and, therefore,
there is no justification to dislodge the view expressed by
the appellate court.
13. Before we dwell upon the factual score whether the
prosecution has proven the case to warrant a conviction,
we think it apt to recapitulate the principles relating to
the jurisdiction of the High Court while deciding the
appeal against acquittal. In this context, reproducing a
passage from Jadunath Singh v. State of U.P1 would
be profitable:
“This Court has consistently taken the view that
in an appeal against acquittal the High Court has
full power to review at large all the evidence and
to reach the conclusion that upon that evidence
the order of acquittal should be reversed. This
power of the appellate court in an appeal
1 (1971) 3 SCC 577
Page 225 1
Page 14
against acquittal was formulated by the Judicial
Committee of the Privy Council in Sheo Swarup
v. King Emperor2 and Nur Mohammad v.
Emperor3. These two decisions have been
consistently referred to in the judgments of this
Court as laying down the true scope of the
power of an appellate court in hearing criminal
appeals (see Surajpal Singh v. State4 and
Sanwat Singh v. State of Rajasthan5).”
14. Similar view has been expressed in
Damodarprasad Chandrikaprasad V. State of
Maharashtra6, Shivaji Sahabrao Bobade V. State of
Maharashtra7, State of Karnataka V. K.
Gopalakrishna8, Anil Kumar V. State of U.P.9, Girja
Prasad V. State of M.P.10 and S. Ganesan V. Rama
Raghuraman11.
15. In this regard, we may fruitfully remind ourselves
the principles culled out in Chandrappa v. State of
Karnataka12 :
“42. From the above decisions, in our considered
view, the following general principles regarding
2 AIR 1934 PC 227
3 AIR 1945 PC 151
4 AIR 1952 SC 52
5 AIR 1961 SC 715
6 (1972) 1 SCC 107
7 (1973) 2 SCC 793
8 (2005) 9 SCC 291
9 (2004) 13 SCC 257
10 (2007) 7 SCC 625
11 (2011) 2 SCC 83
12 (2007) 4 SCC 415
Page 226 1
Page 15
powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on exercise
of such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, ‘substantial
and compelling reasons’, ‘good and sufficient
grounds’, ‘very strong circumstances’, ‘distorted
conclusions’, ‘glaring mistakes’, etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
‘flourishes of language’ to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
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(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court.”
16. On the bedrock of aforesaid settled principles, it is
our obligation to scrutinize the judgment of the High
Court whether it withstands close scrutiny within the
parameters stated hereinabove or a conviction has been
recorded solely because a different view can be taken. At
the very outset, we are obligated to state that the learned
counsel for the parties, with lot of pains, have taken us
through the evidence on record. On a scrutiny of the
evidence, we find that the appellant was working as a
servant in the house of husband of PW-2, Santosh, who
was the first to notice that her son Anand, a 3 ½ year old
boy, was missing. She had also found the letter
regarding kidnapping of Anand and demand of ransom by
the accused and had shown it to her father-in-law,
Manphul. Jaivir, PW-1, had gone to the police station
wherein he had submitted an application Ex. PA annexing
the letter on the basis of which the FIR was lodged. The
Investigating Officer, Data Ram, PW-12 had proceeded to
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the house of Santosh wherefrom he had recovered two
letters, Exhibit P1 and P2. They were kept at different
places in the house. The letters were seized in presence
of two persons, namely, Manphul and Santosh.
Thereafter, he had proceeded to the village Bijwasan
where he came to know that Vinod Kumar did not belong
to that village. Being told by Jaivir that Vinod Kumar had
appeared in some examination from the school at Beri,
the Investigating Officer had gone to the school where he
learnt that one Vinod Kumar was studying there and had
remained absent for last seven months. On further
investigation it was found that the accused was son of
Om Prakash who had shown the photograph of Vinod
Kumar that matched with the identity of the man working
in the house of the husband of Santosh. While the
investigation was proceeding in this way, Vinod Kumar
was apprehended by Mahipal, PW-5, the Head Constable
in GRP, along with Anand. He was arrested and sent to
Tihar jail. It is in the evidence of PW-12 that on 26.9.1996
he had moved application Ex. PH/1 before the learned
Magistrate for issuance of warrant of production of
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accused Vinod and vide order Ex. PH/2 the ACJM Jind
being the concerned Magistrate had ordered for issuance
of production warrant of accused Vinod with direction to
execute the warrant upto 30.9.96. It is also in his
testimony that he took the warrant, Ex. PH/3, to the
Superintendent, Central Jail, Tihar, Delhi and sought the
custody of accused Vinod Kumar, but he was informed by
the jail authorities that they would not hand over the
custody of accused Vinod to him without the formal order
of Chief Metropolitan Magistrate, Delhi. Thereafter he
moved an application before the Chief Metropolitan
Magistrate, Delhi who passed the order, Ex. PH/5,
allowing him to take the custody of accused Vinod from
the jail whereafter he could bring Vinod jail to Jind and
formally arrested him on 27.9.96. The High Court has
appreciated this aspect with proper scrutiny and clarity.
17. It is apt to note here that the High Court has taken
note of four aspects, namely, (i) that the accused was
working as a servant in the house of Jagbir, husband of
Santosh, and had himself stated to be son of Suraj Bhan,
resident of Bijwasan and that his photograph was shown
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by Om Prakash; (ii) that the letters written to the parents
of Anand have duly been proven by the prosecution and
the plea that the letters were written under police
pressure was not acceptable; (iii) that the discrepancies
which had been highlighted by the learned trial Judge are
minor and on that score the reliable evidence of the
witnesses could not have been thrown overboard; and (iv)
that acquittal of Joginder, other co-accused, could not
have any impact on the role played by Vinod Kumar.
18. It is imperative to state here that the learned trial
Judge has posed two questions, namely, whether accused
Joginder abetted accused Vinod Kumar to kidnap Anand,
a 3 ½ years old boy of Jagbir Singh for ransom and
whether accused Vinod Kumar kidnapped Anand for
ransom and wrote letters Ex P1 to P3 on having been
abetted by accused Joginder. After analyzing the
evidence and arriving at the conclusion that Joginder
could not have been convicted, for there was no evidence
on record, he has proceeded to scrutinize the evidence
against the appellant. One of the facets for arriving at
the conclusion that Vinod Kumar could not be found guilty
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as the case set forth by the prosecution against Joginder
has no legs to stand upon, is absolutely unacceptable. It
was the case of the prosecution that Joginder had abetted
in the crime as he had instigated Vinod Kumar to kidnap
the child. We perceive no reason how his acquittal would
affect the case of Vinod Kumar. The High Court has
rightly discarded the said reasoning of the learned trial
Judge.
19. The next facet relates to the discrepancies in the
evidence of the witnesses. The learned trial Judge has
found discrepancies with regard to the handing of letter
by Santosh to Manphul; the discrepancies relating to the
place and time pertaining to various aspects stated by
witnesses and the identity of the accused at the time of
arrest. The discrepancies which have been noted are
absolutely minor. The High Court has correctly observed
that the minor discrepancies like who met whom, at what
time and who was dropped and at whose place and at
what time, etc. have been given unnecessary emphasis.
It is well settled in law that minor discrepancies on trivial
matters not touching the core of the case or not going to
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the root of the matter could not result in rejection of the
evidence as a whole. It is also well accepted principle
that no true witness can possibly escape from making
some discrepant details, but the Court should bear in
mind that it is only when discrepancies in the evidence of
a witness are so incompatible with the credibility of his
version that it would be justified in jettisoning his
evidence. It is expected of the Courts to ignore the
discrepancies which do not shed the basic version of the
prosecution, for the Court has to call into aid its vast
experience of men and matters in different cases to
evaluate the entire material on record. [See State of
U.P. V. M.K. Anthony13, Rammi v. State of M.P.14 and
Appabhai V. State of Gujarat15]
20. Tested on the touchstone of the aforesaid principles,
we are inclined to concur with the opinion expressed by
the High Court that the learned trial Judge has really
given undue emphasis on the discrepancies which are
minor in nature. To elaborate, emphasis has been laid on
13 (1985) 1 SCC 505
14 (1999) 8 SCC 649
15 (1988) Supp SCC 241
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the fact that the arrest memo indicates Vinod Kumar son
of Suraj Bhan. The learned trial Judge has failed to
appreciate that Vinod Kumar has been describing himself
as son of Suraj Bhan. There is no dispute with regard to
the fact that he was found along with boy Anand. There
is no dispute with regard to his identity or the fact that he
was working in the house of the husband of Santosh. It
has also been brought in evidence that Harpal, PW-3, had
seen him taking Anand and on a query being made, he
answered that he was taking the child to Jind to buy
shoes for the boy and medicine for himself. That apart,
Vinod Kumar has not taken the plea that he was not
employed by Jagbir. Thus, the hypertechnical approach
of the learned trial Judge has correctly not been accepted
by the High Court.
21. The next aspect which is required to be scrutinised
is whether the letters vide Exhibit P1 to P3 are to be
ignored on the basis of the plea advanced by the
accused. The learned trial Judge has delved into this
facet in a slightly peculiar manner. His reasoning is to
the effect that a perusal of the letters, Ex. P1 to P3, go to
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show that the accused was to receive the amount of
ransom at Rohtak near the post office and the bus stand
on 26.9.96 early in the morning and hence, had there
been any truth in these letters the police must have
waited till the time mentioned in the letters and must
have made arrangement for the arrest of the accused at
the place mentioned in the letters; that in those
circumstances there was no necessity to run immediately
for the arrest of the accused particularly in the
circumstances when the correct address of the accused
were not there with the complainant or the police.
Exception has been taken to the action of the
investigating agency not taking any steps to effect the
arrest of the accused at the place given in the letters and
on that bedrock, a conclusion has been arrived at that the
letters were not in existence on 24.9.96. That apart, it
has weighed in his mind that there was no necessity to
write three letters at the same time and, therefore,
reliance on the letters was an afterthought. He has also
observed that the bringing of such type of letters into
existence is not impossible for the police and hence, as
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the accused had taken the stand that the said letters
were got written from him by the police under pressure,
no much reliance could be placed on the letters.
22. To appreciate the aforesaid reasoning, it is first
necessary to understand the plea of the accused. He has
stated in his statement recorded under Section 313 CrPC
that these letters were written under the pressure of
police. When he was produced for the first time before
the Additional Chief Judicial Magistrate, PW-11, he had
admitted his signatures. It has come in evidence of the
said witness that he had showed the letters to the
accused who has admitted before him that the letters
were written by him. Letters were read over and
explained to him and he had admitted the correctness.
The accused had not stated before the learned ACJM that
the letters were got written from him by the police under
pressure. Keeping that in view, his statement under
Section 313 CrPC should be appreciated. In question no.2
and the answer thereto are to the following effect:
“Q.No.2 That while leaving Ikkas for Jind, you
left letters Ex. P1 to Ex. P3 in the house of Jabir.
You addressed those letters to Jagbir and
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Manphul that you had kidnapped Anand for
ransom. If they wanted to get release Anand,
they were asked to pay a sum of Rs. One lac on
26.9.96 in between 2 to 4 p.m. at a place situate
near post office near bus stand Rohtak.
Ans.: It is incorrect”.
Question No.9 and the reply given in that regard are
as follows:
“Q.No.9 That on 28.3.96 in police station
Sadar, Jind you were interrogated in the
presence of witnesses by PW-12 and you made
disclosure statement Ex.PC leading to the
involvement of your co-accused Joginder in the
case. You informed the police that accused
Joginder instigated you to kidnap Anand and got
written letters Ex. P1 to Ex. P3 from you and
then you kidnapped Anand and took him to
Rohtak for ransom. You also admitted the
contents of Ex. P1 to Ex. P3 and signed your
disclosure statement Ex.PC.
Ans. It is incorrect. I never made disclosure
statement Ex.PC and never admitted the
contents of Ex. P1 & P2. My signatures were
obtained forcibly and these letters were got
written from me under pressure by the police”.
23. We have referred to the statement in detail as the
High Court in the impugned judgment has observed that
when examined under Section 313 CrPC the accused did
not state a word that the letters were got written from
him by Joginder or the letters were got written by police
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under pressure. Such an observation is in consonance
with the answer to question no.2. The other answer
makes a slight departure, for the question that was put to
him was with regard to the disclosure statement and the
letters have been written at the instance of Joginder. Be
that as it may, even assuming that it was a plea in the
statement recorded under Section 313 CrPC that he had
written the letters being pressurized by the police, the
said stand does not deserve to be accepted on two
grounds, namely, i) he had not made that allegation when
the letters were shown to him by the Additional Chief
Judicial Magistrate, PW-11, and in fact he had admitted
the correctness of the letters and ii) that in the crossexamination of the witnesses barring a bald question to
PW-12, nothing has been put with regard to the letters.
It is apt to be stated here that the Additional Chief Judicial
Magistrate has been examined as PW-11 by the
prosecution and has unequivocally proven the fact that
the letters were produced before him and the accusedappellant had identified the letters and admitted his
signature. Nothing has been elicited in the crossPage 238 2
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examination. Similarly, there has been really no crossexamination of any of the witnesses that the letters were
written under pressure of police.
24. In this context, we may usefully refer to the
authority in State of U.P. V. Nahar Singh16, wherein
the Court has dealt with the effect of absence of crossexamination. True it is, the factual matrix was different
therein, but the observations are salient. In the said
case, it has been held:
13. ……In the absence of cross-examination on
the explanation of delay, the evidence of PW 1
remained unchallenged and ought to have been
believed by the High Court. Section 138 of the
Evidence Act confers a valuable right of crossexamining the witness tendered in evidence by
the opposite party. The scope of that provision is
enlarged by Section 146 of the Evidence Act by
allowing a witness to be questioned:
(1) to test his veracity,
(2) to discover who he is and what is his
position in life, or
(3) to shake his credit by injuring his
character, although the answer to such
questions might tend directly or
indirectly to incriminate him or might
expose or tend directly or indirectly to
expose him to a penalty or forfeiture.
16 (1998) 3 SCC 561
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14. The oft-quoted observation of Lord
Herschell, L.C. in Browne v. Dunn17 clearly
elucidates the principle underlying those
provisions. It reads thus:
“I cannot help saying, that it seems to
me to be absolutely essential to the
proper conduct of a cause, where it is
intended to suggest that a witness is not
speaking the truth on a particular point, to
direct his attention to the fact by some
questions put in cross-examination
showing that that imputation is intended
to be made, and not to take his evidence
and pass it by as a matter altogether
unchallenged, and then, when it is
impossible for him to explain, as perhaps
he might have been able to do if such
questions had been put to him, the
circumstances which, it is suggested,
indicate that the story he tells ought not
to be believed, to argue that he is a
witness unworthy of credit. My Lords, I
have always understood that if you intend
to impeach a witness, you are bound,
whilst he is in the box, to give an
opportunity of making any explanation
which is open to him; and, as it seems to
me, that is not only a rule of professional
practice in the conduct of a case, but it is
essential to fair play and fair dealing with
witnesses.”
Be it stated in the said case, this Court did not
approve the conclusion of the High Court that the
explanation for the delay was not at all convincing and
the said view was expressed as there was no cross-
17 (1893) 6 R 67
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examination. In the instant case, in the absence of crossexamination of the witness, barring a bald suggestion to
PW-12, we are inclined to hold that the appellant was the
author of the letters and the same were not written under
any pressure.
25. Apart from what we have stated hereinabove, it is
also important that kidnapped boy was recovered at
railway station. The accused has not explained how the
child could be brought to Delhi. Harpal has categorically
deposed that he had seen Anand with Vinod Kumar. The
learned trial Judge has noted certain discrepancies in the
evidence of Harpal, but without any justifiable reason.
The learned trial Judge has really niggled on unimportant
and unnecessary details. It is quite natural on the part of
Harpal to pose a question to Vinod Kumar as he was
slightly anxious to see a domestic help taking a child.
This is inherent in human nature and, therefore, the
version of Harpal could not have been ignored. These
aspects, in our view, weigh quite heavily against the
accused.
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26. Tested from the aforesaid angles, we are disposed to
think that the judgment of reversal by the High Court is
absolutely defensible and does not warrant any
interference. Resultantly, the appeal, being devoid of
merit, stands dismissed.
………………………………….J.
[DIPAK MISRA]
………………………………….J.
[N.V. RAMANA]
NEW DELHI
JANUARY 08, 2015.
Page 242 3
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1247 OF 2012
V.K. MISHRA & ANR. …Appellants
Versus
STATE OF UTTARAKHAND & ANR. …Respondents
With
CRIMINAL APPEAL NO. 1248 OF 2012
RAHUL MISHRA …Appellant
Versus
STATE OF UTTARAKHAND & ANR. …Respondents
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated
26.09.2011 passed by the High Court of Uttarakhand at
Nainital in Criminal Appeal No.42 of 2002, whereby High
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Court confirmed the conviction of the appellants under Section
304B, 498A IPC and under Sections 3 and 4 of the Dowry
Prohibition Act and the sentence of imprisonment for life was
imposed on each of them.
2. Brief facts which led to filing of these appeals are as
under:- Deceased-Archana was given in marriage to accused
Rahul Mishra on 28.06.1997. Before marriage and after the
engagement, Dr. Hirday Narayan Tripathi, father of the
deceased, had given a sum of Rs.50,000/- each on three
occasions and Rs.63,200/- on 11.07.1997 and also gifted
jewellery worth Rs.2,00,000/- to Archana. Archana, after
return from honeymoon, visited her parents house and
complained several times to her father, mother and brother
about the continuous harassment and torture meted out to
Archana by her in-laws and husband and that they used to
abuse her in connection with demand of dowry. Between
09.08.1997 to 10.08.1997, Archana visited her parents house.
On 09.08.1997, Archana informed her brother-Santosh (PW-2)
about the demand of Rs. 5,00,000/- by the appellants and
PW-2 told Archana that he will talk to the appellants. On
10.08.1997, appellant Rahul came to Archana’s house and
2
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had taken back Archana to his house. On 10.08.1997,
PW2-Santosh Kumar visited the house of the accused and
tried to pacify the accused regarding their demand of
Rs. 5,00,000/-; but the accused persisted in their demand. On
13.08.1997, PW1-Dr. Hirday Narayan Tripathi visited various
institutions to find job for Archana. On the same day,
Archana was admitted in the hospital as a suspected case of
poisoning and she died due to poisoning. Law was set in
motion by PW1-Dr. Hirday Narayan Tripathi and on the basis
of the complaint, FIR was registered against the accused in
FIR Case No.571/1997 under Sections 306 and 498A IPC at
P.S. Kotwali, Dehradun. After investigation, charge-sheet was
filed and charges were framed against the appellants-accused
by the trial court under Sections 304B, 498A IPC and under
Sections 3 and 4 of the Dowry Prohibition Act.
3. To substantiate charges against the accused,
prosecution has examined 14 witnesses. When the accused
were questioned under Section 313 Cr.P.C. about the
incriminating evidence and circumstances, the accused denied
demand of any dowry and pleaded that they are innocent.
Upon consideration of evidence, trial court-Additional Sessions
3
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Judge, Dehradun vide judgment dated 04.02.2002 convicted
the appellants under Section 304B IPC and sentenced them to
undergo rigorous imprisonment for life. The appellants were
also convicted under Section 498A IPC and each of them was
sentenced to undergo rigorous imprisonment for three years
with a fine of Rs.2,000/- each with default clause. They were
also convicted under Sections 3 and 4 of the Dowry
Prohibition Act and were sentenced to undergo rigorous
imprisonment for one year with a fine of Rs.1,000/- each with
default clause. All the sentences were ordered to run
concurrently. Aggrieved by the verdict of conviction, the
appellants preferred an appeal before the High Court which
came to be dismissed confirming the conviction and sentence
imposed on the accused by the trial court.
4. The learned counsel for the appellants contended
that in the FIR lodged by the father of the deceased or in his
earlier statement recorded by the police neither there was
mention of any dowry demand made by the appellants nor of
any harassment meted out to his daughter. It was contended
that PW2-brother of the deceased made a false statement for
the first time on 18.08.1997 i.e. five days after the death of
4
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Archana stating that the parents-in-laws of the deceased were
raising dowry demand of Rs.5,00,000/- and also made
allegations regarding cruelty and harassment in connection
therewith. It was submitted that PW-2 kept silent for about
eight days from the date of the alleged dowry demand and the
cruelty and while so, the trial court and the High Court erred
in placing reliance upon the evidence of PW-1 and PW-2 to
record the verdict of conviction. It was contended that entire
investigation was flawed as regards the suicide note and the
letter written by the deceased to her brother-in-law and no
detailed investigation was carried out viz. the inland letter
dated 10.08.1997 received by the deceased which according to
the appellants contained threats from a dejected lover and
sample of vomitus taken was either changed or tampered. It
was vehemently contended that the courts below were not
right in recording the conviction based on the evidence of
PW-1, PW-2 and PW-3 which were purely hearsay and full of
contradictions and thus lacked credibility apart from being
clearly an afterthought.
5. Learned counsel for the respondents submitted that
the prosecution adduced cogent and consistent evidence to
5
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prove the dowry demand and that deceased-Archana was
highly educated girl and very sensitive who ended her life only
due to the appellants’ greed for dowry and the appellants
subjecting her to cruelty and harassment in connection with
the demand of dowry. It was submitted that upon proper
appraisal of evidence, the trial court as well as the High Court
rightly convicted the appellants and the verdict of conviction
and sentence of imprisonment imposed on the appellants
warrant no interference.
6. We have given our thoughtful consideration to the
contentions urged by the counsel for the parties and perused
the impugned judgment and the materials on record.
7. In order to attract application of Section 304B IPC,
the essential ingredients are as follows:-
1. The death of a woman should be caused by burns or
bodily injury or otherwise than under a normal
circumstance.
2. Such a death should have occurred within seven years
of her marriage.
3. She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.
4. Such cruelty or harassment should be for or in
connection with demand of dowry.
5. Such cruelty or harassment is shown to have been
meted out to the woman soon before her death.
6
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On proof of the essential ingredients mentioned above, it
becomes obligatory on the court to raise a presumption that
the accused caused the dowry death. A conjoint reading of
Section 113B of the Evidence Act and Section 304B IPC shows
that there must be material to show that soon before her
death the victim was subjected to cruelty or harassment.
‘Soon before’ is a relative term and it would depend upon
circumstance of each case and no strait-jacket formula can be
laid down as to what would constitute a period ‘soon before
the occurrence’. There must be inexistence a proximate live
link between the facts of cruelty in connection with the
demand of dowry and the death. If the alleged incident of
cruelty is remote in time and has become stale enough not to
disturb mental equilibrium of the woman concerned it would
be of no consequence. The evidence and material on record to
be examined whether there is evidence to prove that ‘soon
before the occurrence’, deceased-Archana was subjected to
torture and harassment in connection with demand of dowry
and whether the courts below are right in convicting the
appellants under Section 304B IPC.
7
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8. In his evidence, PW1-Dr. Hirday Narayan Tripathi,
father of the deceased, stated Archana was highly educated
girl i.e. M.Sc. B.Ed and that the marriage was solemnized with
Rahul Mishra on 28.06.1997. He deposed that after the
engagement of his daughter-Archana on 07.02.1997,
demands of dowry started from the side of groom for a
motor-cycle, a sum of Rs.2,00,000/- etc. In his evidence PW-1
stated that amount was given to the accused persons both
before marriage and also after marriage-(a) Rs.50,000/- on
24.02.1997; (b) Rs. 50,000/- on 14.03.1997; (c) Rs.50,000/-
on 05.05.1997 and (d) Rs.63,200/- on 11.07.1997 and that he
raised money by sale of his land and by drawing money from
his GPF. PW-1 further stated that the demands were raised
for TV, washing machine, dining table, chairs and almirah etc.
He has stated that his daughter came after three days of
pagphera’ and she told that the appellants are treating her
cruelly demanding balance amount. PW-1 told his daughter
that as he has no money, he will be paying them Rs.10,000/-
from his salary. Archana asked her father to shut the mouth
of the appellants by throwing money on their face by
withdrawing the amount from her own account and
8
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accordingly they paid Rs.63,200/- to the appellants and the
appellants still unsatisfied made demand for money for
starting the new business. Deceased-Archana also told her
parents over phone that her in-laws were pressurizing her for
money in order to start a new business. PW-1 stated that in
the last week of July 1997, the appellant V.K. Mishra
telephonically demanded money for starting new business and
due to PW-1’s inability to fulfill the demand, the accused
persons’ attitude towards Archana worsened and they
threatened her to throw out of the matrimonial house.
9. PW-1 further stated that Archana feeling depressed
and being a determined girl decided to take up a job and two
or three days prior to 06.08.1997 in the night she came to her
parental house to collect her certificates of educational
qualification and other materials. PW-1 stated that on
13.08.1997 in search of job for his daughter he went to
Central School and also Indian Institute of Petroleum and in
the evening he wanted to inform his daughter about his efforts
and that there being no vacancy. But before that PW-1 made
a phone call to his wife who asked him to reach Doon Hospital
immediately as Archana was seriously ill and when he reached
9
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the hospital, he was informed by the appellant V.K. Mishra
that Archana consumed poison and died. PW-1 stated that his
elder son-Santosh Kumar (PW-2) returned from Bombay on
15.08.1997, who also informed him about the demand of
Rs.5,00,000/- by the accused persons from Archana.
10. Evidence of PW-1-complainant is assailed by the
appellants contending that in the complaint lodged by him it is
not mentioned that any kind of dowry demand was ever made
and that allegation of demand of dowry is flawed as the same
was neither mentioned in the FIR nor in his statement
recorded by the investigating officer. It was also submitted
that the details of payment of dowry was also not made clear
by PW-1 either in the FIR or in his statement and evidence in
the Court is only an exaggeration and no weight could be
attached to the same.
11. Of course, in the FIR, PW-1 had not given the
details of the money paid to the accused. But in his complaint
PW-1 had categorically stated that the appellants had been
torturing Archana with their cruel behaviour and Archana
complained the same to him and that he advised her to
compromise with the situation and create a healthy
10
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atmosphere. In the FIR, though, there is no specific mention
about the demand of dowry, cruelty and torture alleged in the
FIR could have been only in connection with demand of money
or jewels. Marriage of Archana with accused-Rahul Mishra
was solemnized only on 28.6.1997 and Archana was yet to
settle down in the house of her in-laws. Both the families were
almost of same social and economic status. It is not the case
of the defence that the alleged cruelty could only be the
matrimonial skirmishes due to normal wear and tear of the
matrimonial house. As noticed earlier, money was given by
PW-1 both prior to marriage and after the marriage on
11.07.1997 also. Viewed in that context, the alleged cruelty
and torture could have been only in the context of demand of
money or jewellery.
12. FIR is not meant to be an encyclopedia nor is it
expected to contain all the details of the prosecution case. It
may be sufficient if the broad facts of the prosecution case are
stated in the FIR. Complaint was lodged within few hours
after the tragic event. PW-1 has lost his young daughter just
married before six weeks in unnatural circumstances. Death
of a daughter within few days of the marriage, the effect on the
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mind of the father-PW1 cannot be measured by any yardstick.
While lodging the report, PW-1 must have been in great shock
and mentally disturbed. Because of death of his young
daughter being grief stricken, it may not have occurred to
PW-1 to narrate all the details of payment of money and the
dowry harassment meted out to his daughter. Unless there are
indications of fabrication, prosecution version cannot be
doubted, merely on the ground that FIR does not contain the
details.
13. Mr. K.T.S. Tulsi, learned Senior Counsel for the
appellants submitted that FIR contains only allegations of
torture and cruel behavior on the part of the appellants
towards the deceased and in his statement recorded by the
police under Section 161 Cr.P.C., PW-1 had not stated
anything about the alleged dowry demand whereas in his
statement recorded by the police, PW-1 had only stated about
many restrictions imposed on his daughter due to which
Archana felt suffocated. Contending that there were no
allegations of cruelty in connection with dowry demand or any
such conduct of the appellants which could have driven
Archana to commit suicide either in the FIR or in the
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statement of PW-1 recorded on the next day by the
investigating officer, the learned Senior Counsel urged and
tried to persuade us to look into the statement of PW-1
recorded under Section 161 Cr.P.C.
14. Section 161 Cr.P.C. titled “Examination of witnesses
by police” provides for oral examination of a person by any
investigating officer when such person is supposed to be
acquainted with the facts and circumstances of the case. The
purpose for and the manner in which the police statement
recorded under Section 161 Cr.P.C can be used at any trial are
indicated in Section 162 Cr.P.C. Section 162 Cr.P.C. reads as
under:
162. Statements to police not to be signed–Use of
statements in evidence.–(1) No statement made by any person
to a police officer in the course of an investigation under this
Chapter, shall, if reduced to writing, be signed by the person
making it; nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any
offence under investigation at the time when such statement
was made:
Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement
has been reduced into writing as aforesaid, any part of
his statement, if duly proved, may be used by the
accused, and with the permission of the Court, by the
prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act,
1872 (1 of 1872); and when any part of such
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statement is so used, any part thereof may also be
used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in
his cross-examination.
(2) Nothing in this section shall be deemed to apply to
any statement falling within the provisions of clause (1) of
section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to
affect the provisions of section 27 of that Act.
Explanation.- An omission to state a fact or
circumstance in the statement referred to in
sub-section (1) may amount to contradiction if the
same appears to be significant and otherwise relevant
having regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particular context shall be a
question of fact.
15. Section 162 Cr.P.C. bars use of statement of
witnesses recorded by the police except for the limited purpose
of contradiction of such witnesses as indicated there. The
statement made by a witness before the police under Section
161(1) Cr.P.C. can be used only for the purpose of
contradicting such witness on what he has stated at the trial
as laid down in the proviso to Section 162 (1) Cr.P.C. The
statements under Section 161 Cr.P.C. recorded during the
investigation are not substantive pieces of evidence but can be
used primarily for the limited purpose:- (i) of contradicting
such witness by an accused under Section 145 of Evidence
Act; (ii) the contradiction of such witness also by the
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prosecution but with the leave of the Court and (iii) the
re-examination of the witness if necessary.
16. Court cannot suo moto make use of statements to
police not proved and ask question with reference to them
which are inconsistent with the testimony of the witness in the
court. The words in Section 162 Cr.P.C. “if duly proved”
clearly show that the record of the statement of witnesses
cannot be admitted in evidence straightway nor can be looked
into but they must be duly proved for the purpose of
contradiction by eliciting admission from the witness during
cross-examination and also during the cross-examination of
the investigating officer. Statement before the investigating
officer can be used for contradiction but only after strict
compliance with Section 145 of Evidence Act that is by
drawing attention to the parts intended for contradiction.
17. Section 145 of the Evidence Act reads as under:
145. Cross-examination as to previous statements in
writing.- A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing, and
relevant to matters in question, without such writing being
shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the
writing can be proved, be called to those parts of it which are to
be used for the purpose of contradicting him.
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18. Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous statement
reduced into writing, the attention of such witness must be
called to those parts of it which are to be used for the
purpose of contradicting him, before the writing can be used.
While recording the deposition of a witness, it becomes the
duty of the trial court to ensure that the part of the police
statement with which it is intended to contradict the witness
is brought to the notice of the witness in his
cross-examination. The attention of witness is drawn to that
part and this must reflect in his cross-examination by
reproducing it. If the witness admits the part intended to
contradict him, it stands proved and there is no need to
further proof of contradiction and it will be read while
appreciating the evidence. If he denies having made that part
of the statement, his attention must be drawn to that
statement and must be mentioned in the deposition. By this
process the contradiction is merely brought on record, but it is
yet to be proved. Thereafter when investigating officer is
examined in the court, his attention should be drawn to the
passage marked for the purpose of contradiction, it will then
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be proved in the deposition of the investigating officer who
again by referring to the police statement will depose about the
witness having made that statement. The process again
involves referring to the police statement and culling out that
part with which the maker of the statement was intended to be
contradicted. If the witness was not confronted with that part
of the statement with which the defence wanted to contradict
him, then the court cannot suo moto make use of statements
to police not proved in compliance with Section 145 of
Evidence Act that is, by drawing attention to the parts
intended for contradiction.
19. In the case at hand, PW-1 was not confronted with
his statement recorded by the police under Section 161
Cr.P.C. to prove the contradiction nor his statement marked
for the purpose of contradiction was read out to the
investigating officer. When neither PW-1 nor the investigating
officer were confronted with the statement and questioned
about it, PW-1’s statement recorded under Section 161 Cr.P.C.
cannot be looked into for any purpose much less to discredit
the testimony of PW-1 and the prosecution version.
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20. PW-1 in his evidence clearly stated that one year
before the marriage he had sold his land for Rs.2,50,000/-
and he has stated that he withdrew the money from the banks
three-four months prior to marriage. PW-1 further stated that
he withdrew Rs.1,00,000/- from his G.P.F account one year
before the marriage and deposited the money in his Central
Bank Account, D.B.S. College Branch and whenever he
needed, he used to withdraw money from his account. In his
evidence, PW-1 has clearly narrated about the details of
money paid to the appellants i.e. payment of amount of
Rs.11,000/- and Rs.15,000,/- was given on the occasion of
‘Tika’ ceremony’, Rs. 50,000/- each paid on three different
dates; fixed deposit amount of Rs.63,000/- left in the account
of Archana which was matured was also withdrawn and paid
to the appellants on 11.07.1997. Evidence of PW-1 regarding
making payments to the appellants is cogent and consistent
and is amply strengthened by the bank statements.
Non-mention of details of money paid to the appellants and
the demand of dowry and cruelty and harassment meted out
to Archana in the statement of PW-1 does not affect the
credibility of PW-1. As rightly observed by the High Court, it
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cannot be expected from a father to narrate everything when
he himself was in agony due to death of his own daughter.
21. PW2-Santosh Kumar, brother of deceased-Archana
is a Geologist working as a Surveyor in Tehri Dam. In Tehri,
PW-2 has a quarter and his family resides with him at Tehri
and sometimes at Dehradun. In August, as PW-2 has to go to
Bombay for treatment of his wife, PW-2 took leave for four
days from 11.08.1997 and he went to Dehradun on
07.08.1997. In his evidence, PW-2 stated that on 09.08.1997
his sister Archana came to the parental house and told him
that she is continuously tortured by the appellants and that
they are demanding dowry of Rs.5,00,000/- and asked him
not to tell it to the parents as they will not be in a position to
arrange such a big amount of Rs.5,00,000/- and will be
worried. PW-2 further stated that in order to settle the matter
amicably, on the evening of 10.08.1997 he went to the
matrimonial house of his sister where he saw mother-in-law,
father-in-law and husband of Archana scolding her for not
bringing the amount of Rs. 5,00,000/-. The appellant-Neelima
Mishra (mother-in-law), told PW-2 “…Santosh open your ears
and listen if you do not return back immediately after arranging
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Rs.5,00,000/-, you keep your sister at your home….”. PW-2
deposed that the appellant V.K. Mishra asked him about the
saving details of PW-2 and all other brothers and their father.
PW-2 tried to convince them politely and touched their feet but
in vain. PW-2 stated that as he had to go to Delhi and then to
Bombay and it was raining heavily and he rushed to the hotel,
and stayed in the hotel for the whole night and next day in the
night he took bus from Dehradun to Delhi and then reached
Bombay by train on 13.08.1997. On 14.08.1997, PW-2 got the
information that Archana died and on 15.08.1997, PW-2 came
to Delhi by air and from Delhi to Dehradun by taxi. PW-2
stated that due to VIP visit he was not immediately examined
by the police and that his statement was recorded only on
18.08.1997.
22. Evidence of PW-2 is assailed contending that PW-2
did not allege any dowry demand prior to 09.08.1997 and the
alleged demand of dowry is clearly an afterthought. It was
contended that the stay of PW-2 in hotel at Dehradun on the
night of 10.08.1997 and till his departure to Delhi on
11.08.1997, despite his parents’ house being situated at
Dehradun is unnatural and PW-2 is not a reliable witness.
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PW-2’s evidence is further assailed contending that PW-2
could not have met his sister on 09.08.1997 nor he visited
Archana’s matrimonial house on 10.08.1997 as he was
granted leave only from 11.08.1997 to 14.08.1997 and his
presence in Dehradun on 09.08.1997 and 10.08.1997 is
highly doubtful. Evidence of PW-2 is further assailed
contending that his parental house situated at Dehradun, it is
quite unnatural that PW-2 claims to have stayed in a hotel at
Dehradun and strangely after the alleged demand of
Rs.5,00,000/-, strangely PW-2 did not choose to contact his
parents and informed them about the alleged demand even
though PW-2 stayed in hotel at Dehradun till 11.08.1997.
It was submitted that PW-2 had not taken written permission
from his department to leave the project station at Tehri prior
to 11.08.1997 and stay of PW-2 in hotel which is only
4-5 kms. away from his parental house raises serious doubt
about his testimony. It was further submitted that statement
of PW-2 that there was a dowry demand of Rs.5,00,000/- was
recorded only on 18.08.1997 whereas PW-2 returned to
Dehradun even on 15.08.1997.
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23. Contentions urged assailing credibility of PW-2 do
not merit acceptance. PW-2 in his evidence had clearly stated
that he had come to Dehradun from Tehri on 7.08.1997 and
was in his parents house till 3.00 pm on 10.08.1997 when he
left for the hotel. PW-2 clearly explained the reason for his
stay at hotel stating that distance of his father’s house from
Dehradun bus stand is 4-5 kms. and as he wanted to settle
the matter with the in-laws of his sister-Archana about their
additional demand of dowry for Rs.5,00,000/-, he left his
home to the hotel with his luggage at 3.00 o’clock perhaps to
settle the matter with in-laws of Archana and in order to save
time to take the bus on the night of 10.08.1997, PW-2 might
have stayed in the hotel at Dehradun. In his evidence, PW-2
clearly stated that he had taken permission to be away from
Tehri from 07.08.1997 to 10.08.1997 and that he took leave
from 11.08.1997 for three-four days to go to Bombay in
connection with his wife’s treatment in Bombay. PW-2’s
evidence that he met Archana at their parental home on
09.08.1997 and that Archana informed him about the demand
of Rs.5,00,000/- and cruelty meted out to her and that he
proceeded to the house of the appellants to settle the dispute
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amicably is quite natural and inspires confidence. PW-2 acted
like a loving brother and probably he did not want to give
tension to his old parents and on seeing the urgency of the
matter, went to the appellants’ house to convince them. By
perusal of evidence of PW-2, it is seen that he remained
consistent throughout his cross-examination and nothing
substantial was elicited to discredit his version. Merely
because PW-2 has not produced documents showing the
permission granted to him to be away from the headquarters
Tehri from 07.08.1997 to 10.08.1997, version of PW-2 cannot
be doubted. The reasons stated by PW-2 for his stay in hotel
is quite convincing and the contention assailing the credibility
of PW-2 was rightly rejected by the trial court and the High
Court.
24. It has been further contended on behalf of the
appellants that there was delay in recording the statement of
PW-2 by the investigating officer and therefore his evidence
should be viewed with suspicion, especially when he did not
disclose about the alleged dowry demand before he left for
Dehradun or till his statement was recorded by the police. In
this context as pointed out earlier, PW-2 went to Mumbai for
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treatment of his wife and on 14.08.1997 he was informed
about death of Archana and on the next day he returned to
Delhi by air and from Delhi he reached Dehradun by taxi. In
his evidence PW-2 stated that the police being busy in the
programme of Ms. Mayawati, the then Chief Minister of Uttar
Pradesh on 17.08.1997, the police did not examine and record
his statement and it was only on 18.08.1997 his statement
was recorded by the investigating officer. Considering the
evidence of PW-2, it cannot be said that the prosecution was
deliberately taking time with a view to concoct a false case and
decide about the shape to be given to the case. It is pertinent
to point out that on the delayed examination of PW-2, no
question was put to the investigating officer (PW-14) by the
defence. Had such question been put to PW-14, he would
have certainly explained the reason for not examining PW-2
from 15.08.1997 to 17.08.1997. Having not done so, the
appellants are not right in contending that there was delay in
recording the statement of PW-2.
25. It cannot be held as a rule of universal application
that the testimony of a witness becomes unreliable merely
because there is delay in examination of a particular
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witness. In Sunil Kumar & Anr. vs. State of Rajasthan,
(2005) 9 SCC 283; it was held that the question of delay in
examining a witness during investigation is material only if it
is indicative and suggestive of some unfair practice by the
investigating agency for the purpose of introducing a core of
witness to falsely support the prosecution case. As such there
was no delay in recording the statement of PW-2 and even
assuming that there was delay in questioning PW-2, that by
itself cannot amount to any infirmity in the prosecution case.
26. PW3-Sharad Kumar Tripathi, another brother of the
deceased narrated the incident that took place on 13.08.1997
in the evening at about 3.10 p.m. a phone call was received by
him from the appellant-Rahul Mishra who asked him to reach
his home immediately with my father and disconnected the
phone. PW-3 stated that he heard voices of scolding and
crying someone from background and so he called him and
appellant-Rahul Mishra received the phone and asked him to
come immediately with his father and disconnected the phone.
When PW-3 called again, appellant V.K. Mishra came on line,
who shouted at PW3 at a very high tone asking him to take his
sister and that they will not keep her. When PW-3 reached
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there, one of the tenants in the appellants’ house told him that
white froth was coming out of Archana’s mouth and that she
was taken to Doon Hospital and PW-3 rushed to the hospital
where he came to know that Archana consumed ‘Baygon’
poison and died of poisoning.
27. Vijay Kumar Sharma (PW-6), tenant-neighbour of
the accused, has stated that he has never heard any shouting,
screaming from the house of the appellants and the couple
was living happily. Placing reliance upon the evidence of this
witness, appellants contended that had there been any dowry
demand, there would have been disharmony among the couple
which would have definitely been known to neighbours like
PW-6. It is to be noted that in a case where demand of dowry
is alleged such demands are confined within the four walls of
the house and known only to the members of both sides of the
family. In such cases, independent and direct evidence with
regard to the occurrences is ordinarily not available. That is
why the Legislature has introduced Sections 113A and 113B
in the Evidence Act by permitting presumption to be raised in
certain circumstances. Evidence of PW-6, in our view, does not
in anyway advance the case of the appellants.
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28. Defence placed much reliance upon three
documents: (i) the suicide note written by the deceased;
(ii) inland letter allegedly found in the trunk and lapses in the
investigation and (iii) the letter said to have been written by
the deceased victim to her brother-in-law. The appellants
vehemently contended that PW-14-investigating officer failed
to carry out fair investigation regarding the above three
documents and submitted that those three documents become
more vital on account of belated and self-contradictory
evidence with regard to demand of dowry.
29. Mr. Mukesh Giri, learned Addl. Advocate General
appearing for the State, and Mr. Ratnakar Dash, learned
Senior Counsel appearing for the informant submitted that the
appellants have fabricated three letters probably on legal
advice and produced the same at a belated stage while making
application for bail and the appellants have not taken any
steps to prove the genuineness of the documents and rightly
those documents were rejected by the trial court as well as by
the High Court.
30. So far as the suicide note is concerned, Archana is
said to have stated that she is taking the step “suicide”
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because her mental condition is not good and that nobody
should be held responsible for her act. It is pertinent to note
that suicide note was not discovered during investigation but
it was later produced by the appellants. When PW-1 (father of
Archana) was confronted with the suicide note, PW-1 denied it
to be in the hand writing of Archana. Appellants have not
taken steps to prove the suicide note to be in the hand writing
of Archana. Even assuming the suicide note to be true, the
fact remains that the death of Archana was unnatural. The
contents of the suicide note does not affect consistent version
of PW-1 and PW-2.
31. Another document relied upon by the appellants is
an inland letter dated 10.08.1997 purportedly written by a
person with whom Archana is said to have had love affair.
According to the appellants Archana had love affair before her
marriage with a boy who after Archana’s marriage started
blackmailing her to reveal the love affair and the alleged
abortion and due to this reason Archana became upset and
committed suicide by consuming poison. Paper No.7 Kha/1
was submitted to the court of sessions during the hearing of
bail application of the accused. Learned Senior Counsel for
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the accused Mr. Luthra and Mr. K.T.S. Tulsi contended that
investigating officer had not taken any efforts to investigate
about this significant lead which would have knocked the
foundation of the complainant’s case raising bonafide doubts.
Assailing the credibility of the investigation, interalia, the
following contentions were raised:
(a) There was no investigation about the classmates or
friends from whom the identity of the writer of the letter
could have been established;
(b) Investigating officer had neither tried to ascertain the
date, time and place of movement of the
deceased-Archana during her stay at the house of her
parents nor did he ascertain the people who visited her
when she was at home nor whom the deceased visited
while she was there;
(c) Though in the letter it was stated that Archana’s
brother-Santosh knows about the affair there was no
investigation by PW-14 in this regard;
(d) The investigating officer did not make any efforts to
establish the identity of purported friend one Singh Sahib
referred to in the letter nor any effort made to recover the
letters mentioned in the said inland letter Kha7/1.
Contending that investigating officer made no efforts to
conduct an impartial investigation, the learned Senior Counsel
submitted that the investigating officer made no efforts to
conduct impartial investigation which coupled with the
embellishments in the prosecution case regarding the demand
of dowry raise serious doubts arise about the prosecution
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case. Learned Senior Counsel further submitted that there is
a serious lapse on the part of the investigating officer in
ascertaining the truth which entitles the accused to urge the
Court to draw an adverse inference against the prosecution
and investigation under Section 114(g) of the Evidence Act
and placed reliance upon the judgments of this Court in
Tomaso Bruno & Anr. vs. State of U.P., (2015) 1 SCALE 498
and Mussauddin Ahmed vs.State of Assam, (2009) 14 SCC
541.
32. Refuting the contention of the appellants on the
lapses in the investigation and contending that any lapse in
the investigation does not affect the core of the prosecution
case, the respondents have placed reliance upon the judgment
of this Court in State of Karnataka vs. K. Yarappa Reddy,
(1999) 8 SCC 715, wherein this Court held as under:
“…..It can be a guiding principle that as investigation is not
the solitary area for judicial scrutiny in a criminal trial, the
conclusion of the court in the case cannot be allowed to
depend solely on the probity of investigation. It is well-nigh
settled that even if the investigation is illegal or even
suspicious the rest of the evidence must be scrutinized
independently of the impact of it. Otherwise the criminal trial
will plummet to the level of the investigating officers ruling
the roost. The court must have predominance and
pre-eminence in criminal trials over the action taken by
investigating officers. Criminal justice should not be made a
casualty for the wrongs committed by the investigating
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officers in the case. In other words, if the court is convinced
that the testimony of a witness to the occurrence is true the
court is free to act on it albeit the investigating officer’s
suspicious role in the case….”
33. Inland letter Kha7/1 was not discovered during
investigation but the same was produced by the accused in a
bail application filed on 29.08.1997. Thereafter on the request
made by the accused, investigating officer was directed to
investigate upon the same. As noticed earlier, the inland letter
was not discovered during the investigation; but
brother-in-law of Archana is said to have discovered the inland
letter and also the letter allegedly written by Archana to her
brother-in-law from the suitcase of deceased-Archana.
Brother-in-law who is said to have discovered those letters was
not examined in the court. No explanation is forthcoming
from the accused as to why the same was not handed over to
the investigating officer. We have also perused the original of
the inland letter and the postal seal in the said letter was not
clear. In his evidence PW14-investigating officer had
specifically stated that he tried to ascertain from which post
office the inland letter was dispatched but he could not
identify the same. When the seal on the inland letter was not
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clear, investigating officer cannot be faulted in conducting
further investigation in connection with the said inland letter.
The fact that it was produced on 29.08.1997 along with the
bail application raises doubts about the genuineness of the
said inland letter. When bail application was filed, by that
time possibly there would have been legal advice and
deliberations. The possibility of such an inland letter being
fabricated to create evidence to make a possible defence
cannot be ruled out and rightly the courts below recorded
concurrent findings rejecting the said letter.
34. Deceased-Archana was an educated girl. If really
she was in love with a boy, she could have married him even
against the wishes of her parents. As to the genuineness of
the inland letter, as pointed out by the trial court, it is difficult
to believe that deceased Archana had preserved the same so
that it may reach the hands of her husband and her in-laws.
Considering the defence plea regarding the inland letter, the
trial court rightly observed that it is natural that a sensible
lady after marriage would not have kept it so safely.
35. Insofar as the letter allegedly written by the
deceased to Rahul’s brother-in-law, like two other documents,
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this letter was also not recovered during investigation but
produced by the accused along with the bail application.
Having written such a letter to her brother-in-law, it is strange
that without posting the same, the deceased would have kept
the letter in the suitcase. When confronted with the letter,
PW-1 denied it to be in the hand writing of Archana. The
accused had also not taken any steps to send the documents
to hand writing expert for obtaining the opinion of the hand
writing expert by summoning the admitted writings of
deceased-Archana. If the investigating officer had omitted to
do the investigation regarding the documents produced by the
accused in the court, the accused could have taken steps to
prove the documents to substantiate their defence. Having
not done so, the accused cannot turn round and contend that
there were lapses on the part of the investigation which vitally
affect the prosecution case.
36. The investigating officer is not obliged to anticipate
all possible defences and investigate in that angle. In any
event, any omission on the part of the investigating officer
cannot go against the prosecution. Interest of justice demands
that such acts or omission of the investigating officer should
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not be taken in favour of the accused or otherwise it would
amount to placing a premium upon such omissions.
37. In Sher Singh @ Partapa vs. State of Haryana,
(2015) 1 SCR 29, it had been held therein that the use of
word ‘shown’ instead of ‘proved’ in Section 304B IPC indicates
that the onus cast on the prosecution would stand satisfied on
the anvil of a mere preponderance of probability. In other
words, ‘shown’ will have to be read up to mean ‘proved’ but
only to the extent of preponderance of probability. Thereafter,
the word ‘deemed’ used in that Section is to be read down to
require an accused to prove his innocence, but beyond
reasonable doubt. The ‘deemed’ culpability of the accused
leaving no room for the accused to prove innocence was,
accordingly, read down to a strong ‘presumption’ of his
culpability. The accused is required to rebut this presumption
by proving his innocence. The same view was reiterated in
Ramakant Mishra @ Lalu etc. vs. State of U.P.,
2015 (3) SCALE 186.
38. Where the prosecution has shown that ‘soon before
her death’ the deceased was subjected to cruelty or
harassment by the husband or in-laws in connection with
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demand for dowry, the presumption under Section 113B of
Evidence Act arises and the Court shall presume that such
person who had subjected the woman to cruelty or
harassment in connection with any demand for dowry shall be
presumed to have caused the dowry death. The presumption
that arises in such cases may be rebutted by the accused.
39. Prosecution has established beyond reasonable
doubts that ‘soon before her death’ Archana was subjected to
cruelty and harassment by her husband and her in-laws in
connection with demand of dowry. The accused were not
successful in rebutting the presumption raised under Section
113B of the Evidence Act. Concurrent findings of the courts
below convicting the appellants under Section 304B IPC is
based upon proper appreciation of evidence and convincing
reasons. The courts below rightly convicted the appellants
under Sections 304B and 498A IPC and Sections 3 and 4
Dowry Prohibition Act and in exercise of jurisdiction under
Article 136 of the Constitution of India, we find no ground
warranting interference with the conviction of the appellants.
40. For the offence under Section 304B IPC, the
punishment is imprisonment for a term which shall not be
35
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Page 36
less than seven years but which may extend to imprisonment
for life. Section 304B IPC thus prescribes statutory minimum
of seven years. In Kulwant Singh & Ors. vs. State of Punjab,
(2013) 4 SCC 177, while dealing with dowry death Sections
304B and 498A IPC in which death was caused by poisoning
within seven years of marriage conviction was affirmed. In the
said case, the father-in-law was about eighty years and his
legs had been amputated because of severe diabetes and
mother-in-law was seventy eight years of age and the Supreme
Court held impermissibility of reduction of sentence on the
ground of sympathy below the statutory minimum.
41. As per prison records, the accused-Rahul Mishra is
in custody for more than five years which includes remission.
Bearing in mind the facts and circumstances of the case and
the occurrence was of the year 1997 and that the accused
Rahul Mishra is in custody for more than five years, interest
of justice would be met if life imprisonment awarded to him is
reduced to imprisonment for a period of ten years. Appellants
V.K. Mishra and Neelima Mishra, each of them have
undergone imprisonment of more than one year. Appellants
No. 1 and 2 are aged about seventy and sixty four years and
36
Page 278
Page 37
are said to be suffering from various ailments. Considering
their age and ailments and facts and circumstances of the
case, life imprisonment imposed on appellants V.K. Mishra
and Neelima Mishra is also reduced to imprisonment of seven
years each.
42. In the result while we uphold the conviction of the
appellants under Section 304B IPC and other offences,
sentence of life imprisonment imposed on Rahul Mishra is
reduced to ten years. So also the sentence of life imprisonment
imposed on V.K. Mishra and Neelima Mishra is reduced to
seven years each. The conviction of the appellants for other
offences and sentence of imprisonment imposed on each one
of them are confirmed. Judgment of the High Court shall
stand modified to the above extent and the appeals partly
allowed and disposed off.
…………………………J.
(T.S. THAKUR)
…………………………J.
(R.K. AGRAWAL)
…………………………J.
(R. BANUMATHI)
New Delhi;
July 28, 2015
37
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Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1706 OF 2008
R. Kuppusamy …Appellant
Versus
State Rep. by Inspector of Police,
Ambeiligai …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. The short question that falls for determination in this appeal
by special leave is whether the Courts below were justified in
convicting the appellant for the offence of murder punishable under
Section 302 IPC and in awarding imprisonment for life to him on the
basis of an extra-judicial confession that he is alleged to have made
before the Village Administrative Officer, Veriappur, (VAO for short).
The extra judicial confession was, according to the prosecution,
reduced to writing by the VAO and found sufficient by the trial Court
as also by the High Court to hold the appellant guilty of having
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Page 2
committed the offence with which he was charged. That finding and
the consequent orders recorded by the Courts below have been
assailed by learned counsel for the appellant who argued that the
making of the confessional statement was, in the facts and
circumstances of the case, not only improbable but wholly
unsupported and uncorroborated by any independent evidence.
Relying upon several decisions of this Court, it was argued that the
extra judicial confession was by its very nature a weak type of
evidence which ought to be corroborated by independent evidence in
order to support a conviction of the maker of the confession. No such
corroboration was, according to Ms. Mahalakshmi Pavani forthcoming
in the instant case, which rendered the conviction and order of
sentence passed by the Courts below unsustainable in law.
2. Before we refer to the evidence adduced by the prosecution at
the trial in support of the charge framed against the appellant we
may briefly recapitulate the factual matrix in which the offence is
alleged to have been committed. According to the prosecution the
appellant is a resident of Veriappur village of Annamalaiputhur village
within the police station limits of Oddanchatram. He got married to
one Yuvarani nearly two years before the incident. Within about 10
months of the marriage, the couple was blessed with a female child
whom they named Savitha. The prosecution case is that the accusedPage 281
Page 3
appellant had developed some suspicion about the birth of the child
though it is not very clear whether the suspicion was about the
paternity of the child or the child being unlucky for the family. Be that
as it may, around the time the incident occurred the appellant is said
to have visited his village to perform the mundan ceremony of the
child who was just about 10 months old. His parents were not,
however, much excited about the mundan ceremony to be followed
by the feast. They are alleged to have told the appellant that ever
since the child was born, the family was facing problems. The
prosecution version further is that since the appellant had already
developed a suspicion about the child, he at about 11.00 a.m. on 18th
March, 2005 picked up the child and threw her in a well resulting in
the child’s death by drowning. After throwing the child into the well
the appellant is alleged to have gone to PW-5 Sakthivel, Vice
President of Veripur Panchayat Board, and told him that he had
thrown his daughter into the well. PW-5 Sakthivel is said to have
advised the appellant to go to PW-1 S.K. Natarajan, Village
Administrative Officer of Veriappur. The appellant accordingly went to
PW-1 S.K. Natarajan and narrated the incident to him. PW-1 S.K.
Natarajan is alleged to have recorded the statement made by the
appellant and taken the appellant along with him to the police station
where the former lodged the first information report regarding the
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incident and produced the extra judicial confession made by the
appellant before the police.
3. A case was in the above backdrop registered in the police
station at Amblikkai under Section 302 IPC and investigation started
in the course whereof the dead body of the child was subjected to
post-mortem which revealed that the child had died because of
drowning. A charge sheet was eventually laid by the police against
the appellant for committing the murder of his daughter to which
charge the appellant pleaded not guilty resulting in his trial before the
Court of Sessions at Dindigul.
4. At the trial the prosecution examined as many as 11 witnesses
in support of its case. The appellant did not choose to lead any
evidence in his defence but pleaded innocence and false implication in
the statement made by him under Section 313 Cr.P.C. The trial Court
eventually came to the conclusion that the charge framed against the
appellant stood proved on the basis of the extra judicial confession
made by him before PW-1 S.K. Natarajan, Village Administrative
Officer of Veriappur. The Court accordingly pronounced him guilty and
sentenced him to undergo life imprisonment. Aggrieved by the order
passed by the trial Court, the appellant preferred Criminal Appeal
No.224 of 2005 before the High Court of Madras. The High Court
concurred with the view taken by the trial Court and dismissed the
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appeal. In the process, the High Court affirmed the finding recorded
by the trial Court that the appellant had indeed made an extra judicial
confession which was, according to the High Court, reliable and
provided a safe basis for the Court to hold him guilty. The present
appeal assails the correctness of the aforementioned judgments and
orders as already noticed above.
5. It is common ground that there is no eye witness to the
occurrence leading to the death of the unfortunate female child who
was just about ten months old. The prosecution case rests entirely
on the extra judicial confession attributed to the appellant which has
been found by the trial Court as also the High Court to be voluntary
and truthful. That a truthful extra judicial confession made voluntarily
and without any inducement can be made a basis for recording a
conviction against the person making the confessions was not
disputed before us at the hearing. What was argued by Ms.
Mahalakshmi Pavani, counsel appearing for the appellant, was that an
extra judicial confession being in its very nature an evidence of a
weak type, the Courts would adopt a cautious approach while dealing
with such evidence and record a conviction only if the extra judicial
confession is, apart from being found truthful and voluntary, also
corroborated by other evidence. There was, according to the learned
counsel, no such corroboration forthcoming in the present case which
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Page 6
according to her was sufficient by itself to justify rejection of the
confessional statement as a piece of evidence against the appellant.
Reliance, in support of the contention urged by the learned counsel,
was placed upon the decisions of this Court in Gura Singh v. State
of Rajasthan (2001) 2 SCC 205 and Sahadevan and Anr. v.
State of Tamil Nadu (2012) 6 SCC 403. In Gura Singh’s case
(supra) a two-Judge Bench of this Court was also dealing with an
extra judicial confession and the question whether the same could be
made a basis for recording the conviction against the accused. This
Court held that despite the inherent weakness of an extra judicial
confession as a piece of evidence, the same cannot be ignored if it is
otherwise shown to be voluntary and truthful. This Court also held
that extra judicial confession cannot always be termed as tainted
evidence and that corroboration of such evidence is required only as a
measure of abundant caution. If the Court found the witness to whom
confession was made to be trustworthy and that the confession was
true and voluntary, a conviction can be founded on such evidence
alone. More importantly, the Court declared that Courts cannot start
with the presumption that extra judicial confession is always suspect
or a weak type of evidence but it would depend on the nature of the
circumstances, the time when the confession is made and the
credibility of the witnesses who speak about such a confession and
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whether the confession is voluntary and truthful.
6. In Sahadevan’s case (supra) a two-Judge Bench of this Court
comprehensively reviewed the case law on the subject and concluded
that an extra judicial confession is an admissible piece of evidence
capable of supporting the conviction of an accused provided the same
is made voluntarily and is otherwise found to be truthful. This Court
also reiterated the principle that if an extra judicial confession is
supported by a chain of cogent circumstances and is corroborated by
other evidence, it acquires credibility. To the same effect are the
decisions of this Court in Balbir Singh and Anr. V. State of Punjab
1996 (SCC) Crl. 1158 and Jaspal Singh @ Pali v. State of
Punjab (1997) 1 SCC 510.
7. It is unnecessary, in the light of above pronouncements, to
embark upon any further review of the decisions of this Court on the
subject. The legal position is fairly well-settled that an extra judicial
confession is capable of sustaining a conviction provided the same is
not made under any inducement, is voluntary and truthful. Whether
or not these attributes of an extra judicial confession are satisfied in a
given case will, however, depend upon the facts and circumstances of
each case. It is eventually the satisfaction of the Court as to the
reliability of the confession, keeping in view the circumstances in
which the same is made, the person to whom it is alleged to have
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been made and the corroboration, if any, available as to the truth of
such a confession that will determine whether the extra judicial
confession ought to be made a basis for holding the accused guilty.
8. In the case at hand the trial Court as also the first Appellate
Court have both found the extra judicial confession attributed to the
appellant to be voluntary, truthful and unaffected by any inducement
that could render it unreliable or unworthy of credence. Having heard
learned counsel for the parties at considerable length and having
gone through the evidence adduced at the trial, we are of the view
that the conclusion drawn by the Courts below is not vitiated by any
error of fact or law. The confessional statement in the case at hand
has been made by the appellant almost immediately after the
commission of the crime. The appellant is alleged to have gone over
to PW-1 S.K. Natarajan, Village Administrative Officer, who was the
concerned Village Administrative Officer of Veriappur and narrated to
the witness the genesis of the incident leading to his throwing baby
Savitha into the well at a short distance from his house. PW-1 S.K.
Natarajan recorded the confessional statement of the appellant,
which was marked Exh. P-1 at the trial, and got the same signed
from the appellant and took the appellant with him to the
jurisdictional police station. At the police station PW-1 S.K. Natarajan
got the first information report regarding the incident registered as
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Crime No.61/05 setting legal process into motion in the course
whereof Investigating Officer was taken to the well by the appellant in
which he had thrown the child. At the well, the Inspector of police
prepared the Mahazar which was signed by the witness including PW-
1 S.K. Natarajan himself and took charge of the dead body of the
child which had, by that time, been brought out of the well. A towel
lying about 20 ft. from the well was also seized.
9. PW-1 S.K. Natarajan was cross-examined at length but there
is nothing in the cross-examination that could possibly discredit his
deposition. No enmity has ever existed between the witness and the
appellant to suggest a false implication of the appellant. The only
significant suggestion made in the course of the cross-examination, is
that the confessional statement was not recorded by the witness in
his office as stated by him but at the police station and in the
presence of the sub-inspector concerned. This suggestion has been
denied by the witness including the suggestion that the statement
ought to have been recorded in the prescribed form under the rules
and the reason why it was not so recorded was because the
statement had been put in black and white at the police station using
an ordinary white paper. The witness stated that the statement was
recorded on a plain paper because the prescribed forms were not
readily available in his office.
Page 288
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10. The deposition of PW-1 S.K. Natarajan inspires confidence in
the absence of any material deficiency in the same either in terms of
what has been recorded by him or the procedure that he followed
while doing so. More importantly, there is no suggestion that this
witness had any animosity or other reason which would impel him to
go so far as to involve the appellant in a case of murder. Courts
below have, in our opinion, correctly appreciated the deposition of
this witness and found him to be reliable. The concurrent finding of
fact returned by the two Courts, has not, in our opinion caused any
miscarriage of justice to warrant our taking a different view.
11. Coming to the question whether the statement was
corroborated by other evidence, we find that such corroboration is
indeed forthcoming in the form of medical evidence and the
deposition of other witnesses. The medical evidence adduced in the
case suggests that the death of the deceased child was homicidal and
that the same was caused by drowning. The deposition of PW-10 Dr.
A. Muthusamy, in our opinion, is clear on this aspect, although it was
vehemently contended by Ms. Mahalakshmi Pavani, that the doctor
had not mentioned the presence of water in the lungs of the child
which, according to her, showed that the story of the child dying by
drowning was unsupported by medical evidence. The fact, however,
remains that the doctor has reported the lungs of the deceased to be
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congested. Congestion of lungs implies presence of excess fluids in
the lungs, a sign suggesting that the child would have inhaled excess
fluid while in water. In addition, there is a finding by the doctor that
there was 200 MLs. of watery fluid even in the stomach of the
deceased. According to Modi’s Jurisprudence and Toxicology, the
presence in the stomach of a certain quantity of water is regarded as
an important sign of death by drowning. It is almost impossible for
water to get into the stomach, if a body is submerged after death.
12. All this suggests that the death was caused by taking in water
which one usually does while struggling in a drowning situation.
Absence of any other marks on the body of the child also supports
the prosecution case that the deceased had indeed died of drowning.
The confessional statement thus gets sufficient corroboration as to
the cause of the death of the child.
13. That apart the depositions of other witnesses examined before
the trial Court also lend corroboration to the prosecution version. For
instance PW-2 Kanakaran deposed that he was plucking chilly in his
field near the field of the appellant on the fateful day. At around
12.00 noon the witness heard someone crying at Chelimedu. The
witness and other persons in the vicinity rushed and looked into the
well only to find the dead body of the child floating. The witness
descended into the well and picked up the child and brought her out.
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The child was dead. The wife of the appellant was crying and saying
that the child had been thrown into the well and that the appellant
had killed her.
14. In cross-examination the witness expressed ignorance about
any ‘mundan’ ceremony or arrangements for the same having been
made by the appellant and that he had no invitation for any such
ceremony. The wife of the appellant was, according to the witness,
saying that the appellant ‘suspected the birth’ of the child meaning
thereby that the appellant was either suspicious about the paternity
of the child or her being unlucky for the family.
15. To the same effect is the statement of PW-3 Palanisamy
according to whom the wife of the appellant was crying aloud.
Persons from the nearby fields came running to the well and so did
this witness. The appellant’s wife was heard saying that the child had
been killed. Kanakaran PW-2 climbed down the well and brought the
body of the child out and kept the same on the western side of the
well. Inspector of police reached in due course and interrogated him.
16. PW-4 Manoharan was declared hostile but was cross-examined
and confronted with the statement made before the police regarding
the appellant having been seen by him walking away from the place
of occurrence under tension. PW-5 Sakthivel, President of Veripur
Panchayat Board, stated that the appellant had come to him and told
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him that the child had fallen into the well and asked him as to what
he should do in the matter. He had told him to go to Maniakarar. This
witness was also declared hostile and confronted with the statement
made before the police under Section 161 of the Cr.P.C.
17. Statement of PW-6 Palaniammal who happened to be the
grandmother of the deceased child is also significant. This witness
stated that the child was born 10 months after the marriage of the
appellant. The wife of the appellant had stayed on with her parents’
for seven months after the child was born. She was finally brought to
her matrimonial house by the witness and the appellant. Three
months later, on 18th March, 2005 the appellant returned from
Pondicherry where he worked and told her that he had come for
performing the ‘mundan’ ceremony of his daughter and asked the
witness why she was going to the field when such a ceremony was
being held. The witness stated that if the ceremony had to be
organised he should have informed them ten days earlier so that they
could have arranged to perform the ceremony in a grand manner.
The witness told him that since she had engaged two persons for
picking groundnuts, he should take his father and perform the
mundan. In due course, the father of the appellant also reached the
field and while picking up groundnuts along with the labourers, they
received the information that the child was missing. They rushed back
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only to find the child floating in the well. The presence of the
appellant in the village on the date of the occurrence is established by
the deposition of this witness and so is the fact that the parents of
the appellant were not much concerned or happy to join the proposed
mundan ceremony. The prosecution case, it is important to note, is
that ever since the child’s birth, there were problems between the
appellant and his parents regarding the child being unlucky for the
family which resulted in the unfortunate incident of the appellant
throwing the child into the well.
18. It is manifest from the above that there is considerable
corroborative evidence on record to support the extra judicial
confessional statement of the appellant in which the appellant has
referred to some kind of suspicion and disagreement between him
and his parents regarding the child because of which he threw the
child into the well. Suffice it to say that it is not one of those cases
where the confessional statement is made to a person whose
credibility is suspected nor is it a case where there is no corroboration
forthcoming from other evidence on record. On both counts the view
taken by the Courts below appears to us to be perfectly justified. The
same, therefore, warrants no interference from us under Article 136
of the Constitution.
19. In the result this appeal fails and is hereby dismissed.
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…………………………………..………….…J.
(T.S. THAKUR)
…………………………………………………J.
(SUDHANSU JYOTI
MUKHOPADHAYA)
New Delhi
February 19, 2013
Page 294
Supreme Court of India
State Of U.P. vs M.K. Anthony on 6 November, 1984
Equivalent citations: AIR 1985 SC 48, 1985 CriLJ 493, 1984 (2) SCALE 728, (1985) 1 SCC 505
Author: D Desai
Bench: D Desai, R Misra
JUDGMENT D.A. Desai, J.
1. Respondent M.K. Anothony was prosecuted for having committed murder of his wife Smt. Anna
Kutti and his two children-a son Sajji aged 6 years and a daughter Rita aged 4 years during the night
between February 26 and 27, 1973. Learned Sessions Judge, Jhansi convicted him for having
committed murder of the afore-mentioned three persons and awarded him maximum penalty under
the law. An appeal preferred by the respondent with the reference made by the learned Sessions
Judge under Section 366 of the CrPC, 1973 for confirmation of the sentence came up before a
division bench of the Allahabad High Court. The High Court gave the respondent the benefit of
doubt and acquitted him. Hence this appeal by special leave.
2. Prosecution case briefly stated is that the respondent, a resident of Kerala, was serving as a clerk
in the Cash Office of the Central Railway at Jhansi. At the relevant time he was staying with his wife
deceased Anna Kutty and two children deceased Sajji and deceased Rita at Jhansi in a quarter of
R.P.F. in Laxminagar. Smt. Anna Kutty was admitted in the hospital popularly known as German
Hospital for some genealogical disorder. A surgical operation was performed on February 22. 1973.
When Smt. Anna Kutty was confined in the hospital the respondent had left his two minor children
with one V.S. Radhakrishnan Nair, PW. 1. The minor operation performed on Smt. Anna Kutty
revealed that she had a tumor in the uterus and a major operation which may cost around Rs. 600/-
was considered necessary. After consulting PW-1-Nair it was decided that Smt. Anna Kutty be taken
to Kerala for arranging the major operation. Respondent had to pay the hospital Rs. 206/- in all. As
the accused did not have the necessary cash he requested PW-1 Nair to advance a loan but as Nair
was not in a position to do so, at his instance Shri Krishana Tiwari PW 14 on February 26, 1973
advanced a loan of Rs. 206/- in two instalments to the respondent. When Smt. Anna Kutty was
being brought home from the hospital, on the way the respondent picked up his two children from
the house of Nair and requested Sh. Nair to send his wife to the house of the respondent to look after
his ailing wife and for preparing food for the children. Accordingly, on February 27, 1973 around 10
A.M. Nair went with his wife and the children to the house of the respondent. He knocked on the
door of the quarter in occupation of the respondent but there was no response. Wife of Sh. Nair
called out the wife of the respondent but received no response. On pushing the door it was found to
be bolted from inside. There was a window by the side of the door covered with a screen. On pushing
aside the screen Nair and his wife were struck with horror by the scene as they found Smt. Anna
Kutty and the two children of the respondent lying on the ground and their clothes soiled with
blood. As the wife of Nair was shocked at the site she was taken to her house and Nair rushed to the
office where the respondent was serving and told him what he had seen. One Prabhakar Malyali, a
friend of the respondent and a colleague in his office was summoned and he was asked to arrange
for ambulance. One Sh. V.M. Phillips PW 12 also a common friend of Nair and the respondent met
them on the way and he also accompanied Nair and the respondent to his house. The respondent on
reaching his house peeped from the window and started raising screems. In the meantime Phillips
State Of U.P. vs M.K. Anthony on 6 November, 1984
Indian Kanoon – http://indiankanoon.org/doc/1381651/ 1
Page 295
PW 12 went toward the back door and found the three back doors of the house closed but not bolted.
Phillips entered the house and opened the latch of the front door. In the meantime Prabhakar
Malyali accompanied by the railway doctor arrived with an ambulance. The railway doctor examined
Smt. Anna Kutty and the two children of the respondent and declared that they were dead. He also
found that there was a cut on the neck of each of the victims. The railway doctor asked Nair to
immediately report the matter to the police. The scene did not disclose any tampering with the
articles in the house. Nair rushed to police station at Prem Nagar and logged the report at 12.15
noon. Sh. K.B. Dikshit, PW 13 a Sub-Inspector of Police, registered the offence and recorded the
statement of Nair and reached the scene of occurrence and commenced investigation. On March 1,
1973 around 7.15 A.M. Nair went to the house of the accused and while they were discussing how the
tragedy occurred, in the course of which Nair stated that whoever was responsible for the murder of
such charming dear children would not be forgiven by God. At that stage, the respondent started
weeping, then got up and went near the photo of Jesus Christ hanging in the room, muttered
something and then confessed in Malyalam language to Nair. Nair PW 1 in his evidence reproduces
the confession by the respondent in the following words :
My wife had fatal disease and he was in trouble without money. Just now he would have required
Rs. 600/- for operation, he was already debted. He had already borrowed Rs. 200/- through me and
could not get help anymore from others, therefore he had murdered his wife and children.
The respondent was arrested in the course of investigation. After the charge-sheet was submitted,
the learned Magistrate committed the case, to the Court of Sessions for trial.
3. Before the learned Sessions Judge, 16 witnesses were examined on the side of the prosecution
including PW 1 Nair and PW 9 Jagdish Singh before whom another extra judicial confession was
made by the respondent, PW 12 V.M. Phillips who accompanied Nair and the respondent to his
house on February 27, 1973, Krishna Kumar Tiwari, PW 14, who advanced a loan of Rs. 206/- to the
respondent at the instance of Nair. The respondent did not examine any witness in his defence.
4. The respondent in his defence denied having committed any offence and disclaimed any
knowledge as to how his wife and children were murdered. He said that witness Nair was suspected
for having participated in committing murder of one Shri S.A. Nair and was under the police
pressure. He escaped by giving false evidence. He also alleged that he had a suspicion that Nair
might have committed murder of his wife and two children of the respondent. He alleged that PW 9
Jagdish is a bad character and always under the thumb of the police because he was running a
gambling den in his house. Same allegation was made against PW 14 Krishna Kumar Tiwari
simultaneously denying the loan of Rs. 206/- taken from him as alleged by Sh. Nair. He alleged that
witness Nair has misappropriated the ornaments of the respondent and also he has taken away a
box in which he had kept Rs. 2,000/- He further stated that during the fateful night between
February 26, and 27, 1973 around 3.30 A.M. he had gone to the railway station to arrange for the
reservation for the journey of his wife and children and he was not present in the house since then.
It was suggested on his behalf that he returned to his house around 1 noon on February 26 1973
when he was informed about the death of his wife and children by a policeman. He did not examine
any witness in his defence.
State Of U.P. vs M.K. Anthony on 6 November, 1984
Indian Kanoon – http://indiankanoon.org/doc/1381651/ 2
Page 296
5. The learned Sessions Judge after evaluating the evidence held that the case depends upon two
extra-judicial confessions and certain circumstances proved by the prosecution. In Paragraph 185 of
the Judgment he has summarised the circumstances held proved by him. The learned Sessions
Judge held that the extra-Judicial confessions made to Nair PW 1 and Jagdish Singh PW 9 are
satisfactorily proved. He also held that the respondent had the opportunity to commit murder
during the night between February 26 and 27, 1973 and that his conduct when he returned with Nair
to his quarter after he was informed of what Nair had seen in his quarter, was unnatural inasmuch
as he neither knocked on the door when reached his house nor accompanied railway doctor inside
the house. It was also held proved that, as no article in the house was disturbed any possibility of
theft, robbery or decoity was excluded. Recovery of a knife at the instance of the respondent stained
with blood was held proved. He accepted the evidence that nails of the respondent were stained with
blood. The learned Judge also believed that the respondent because of his poverty was unable to
arrange for the operation of his wife and he was hard pressed and found an escape route by
committing murder of his wife and two children and this was clearly the motive for committing
murder.
6. The High Court did not accept the evidence of Nair PW 1 and Jagdish Singh PW 9 about the
extra-Judicial confession respondent is alleged to have made to them on March 1, 1973. The High
Court rejected the submission on behalf of the respondent that as Smt. Anna Kutty was suffering
from genealogical disorder and was therefore, disgusted with the life, so she decided to put an end to
it and knowing that there would be none to look after her children she first murdered her two
children and then committed suicide. The High Court also held that the prosecution had failed to
prove that the respondent had a motive to commit crime and that explanation offered by the
respondent that be had left his house at 3.30 A.M. during the fateful night was a reasonable
explanation. Finding of the blood-stains on the nails of the respondent was considered an innocuous
circumstance because it was not established that the blood was of human origin. The High Court
held that the fact that the respondent had an opportunity to commit the crime on the fateful night
and that his action in not knocking on the door when he returned to his quarter with Nair and not
accompanying the doctor inside the house were circumstances of neutral character. The High Court
accordingly held that the case is not proved beyond doubt and acquitted the respondent.
7. This being an appeal against an order of acquittal by the High Court, it would be necessary to find
out whether the view taken by the High Court of the evidence as well as circumstances proved by the
prosecution is reasonable or as such as would not call for interference by this court in an appeal
under Article 136. It must also be remembered that the most important piece of evidence against the
respondent is of extra-judicial confession alleged to have been made by him to PW 1 Nair and PW 9
Jagdish Singh on March 1, 1973. If the High Court committed a serious error in evaluating the
evidence of afore-mentioned two witnesses and if we hold that the evidence given by the
aforementioned two witnesses is reliable, credible and trustworthy, the next question is whether
conviction can be based on extra-judicial confession or they need corroboration. If corroboration is
considered necessary whether the circumstances held proved by the prosecution provide
incriminating evidence against the respondent as would render some corroboration to the evidence
of PW 1 Nair and PW 9 Jagdish Singh.
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8. PW 1 Nair was at the relevant time serving as a senior clerk in the Accounts Office in the Central
Railway at Jhansi. The respondent was at that time a clerk in the Cash Office. The wife of Sh. Nair
and deceased Anna Kutty, wife of the respondent both belonged to Kadayanacedu District Alpha in
Kerala State. Nair says since the arrival of the family members of the respondent at Jhansi seven to
eight months prior to the occurrence they were on friendly terms and the families were on visiting
terms. He then speaks about the fact that Smt. Anna Kutty was admitted in the hospital Known as
German Hospital on February 21, 1973. He deposed that on the same day in the evening respondent
came to his house accompanied by his son and daughter and requested him to keep the children at
his house as the wife of the respondent was admitted in the hospital. He speaks about the minor
operation performed on Smt. Anna Kutty, on the next day which revealed a tumor in her uterus and
the suggested major operation involving a cost of Rs. 600/-. He speaks about two loans one in the
amount of Rs. 100/- on February 22, 1973 and another in the amount of Rs. 106/- on February 26,
1973, and as he himself was short of funds, at his request PW 14 Krishan Kumar Tiwari advanced the
loan. PW 14, Krishan Kumar Tiwari has given evidence to that effect. He also speaks about the
respondent accompanied by his wife coming to his house on February 26, 1973, in the evening
around 7.30 P.M. and then he left with both his children for his house. While leaving the respondent
told Nair that since Smt. Anna Kutty’s condition was serious Nair’s wife should go to his house to
cook food for the children. The distance between the two houses is about a furlong and a half. On the
next day around 10 AM he went to the house of the respondent with his wife and children and then
what transpired has been stated by him and which has been reproduced, a little while earlier. He
stated in his evidence that on March 1, 1973 around 7.30 A.M. he went to the house of the accused
and when both of them were talking about the murder of the wife of the respondent and the two
children, he just asked him what must have happened. He then stated that he spoke that whoever
committed the murder of such charming lovely children would not be forgiven by God. Thereupon,
according to him the respondent started weeping, stood up, went near the photo of Christ and then
he spoke to him in Malyalam language which has been translated and extracted hereinbefore. He
further stated that the respondent told him that after the murder of his wife he was worried who
would look after his children and how he would maintain them and he then killed his Child red also.
Evidence shows that respondent and Nair were on friendly terms. Nair went out of his way to help
the respondent in procuring the loans from Sh. Krishan Kumar Tiwari. That part of his evidence is
borne out by the evidence of PW 14 Krishan Kumar Tiwari because there is no reason to disbelieve
either Nair or Tiwari on this point. It is in evidence that while returning with Smt. Anna Kutty from
the Hospital on the previous evening, the respondent on the way went to the house of Nair to pick
up his children and at that time requested Nair to send his wife to the house of the respondent on
the next day in the morning to help ailing Anna Kutty and to look after the children. Nair agreed and
when he accompanied by his wife went to the quarter of the respondent on February 27, 1973 in the
morning at 10 A.M. this ghastly crime came to light. In the cross-examination it was suggested that
one S.A. Nair was murdered some-time back and that the witness Nair was suspected of having
participated in the murder of S.A. Nair and that he was under pressure from the police. There is
absolutely no substance in the first part of of the suggestion and the learned Sessions Judge rightly
rejected the same and therefore the second part becomes meaningless. Similarly there was no
substance in the suggestion that Nair misappropriated the ornaments of the wife of the respondent.
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9. Was the High Court justified in rejecting the evidence of Nair ? The High Court rejected the
evidence of this witness on the ground that there was an omission with respect to the reason why
respondent committed murder of his two children in that in his evidence in the committing
Magistrate’s Court he had not stated that the respondent told him the reason why he committed
murder of his children. Another reason was that, according to the witness, respondent while making
the confession stated that he would need Rs. 600/-for the operation of his wife, while PW 6 Dr.
Faustian who attended on Smt. Anna Kutty in German Hospital stated in her evidence that she had
told the respondent to be prepared with a sum of Rs. 200/-to Rs. 400/-in connection with the
operation of his wife and therefore, according to the High Court the respondent could have never
told Nair that he would need Rs. 600/- in connection with the operation of his wife. Another reason
which persuaded the High Court not to accept the evidence of this witness was that witness Nair
admitted in his cross-examination that after the respondent confessed before him he conveyed this
information to the investigating officer who came to his house around 9 AM and the investigating
officer recorded his statement and obtained his signature thereon and this was contrary to the
mandatory provision of Section 162 of the CrPC because the investigating officer is not entitled to
obtain signature of a witness on the statement made in course of the investigation. Yet another
reason which persuaded the High Court to reject the evidence of Nair is that Nair admitted in his
cross-examination that he went to the quarter of the accused on March 1, 1973 as he had heard a
rumour that the respondent was confessing to his having killed his wife and children but there is no
material on record to show that there was such a rumour in the locality. From this circumstance the
High Court concluded that there was no reason for Nair to go to the house of the respondent on
March 1, 1973 around 7.30 AM when the respondent was alleged to have made the confession. The
High Court concluded that the witness has given no explanation for being present at the quarter at
the time of alleged confession made to him and therefore no reliance could be placed on his
evidence. Are these reasons valid and weighty to reject the evidence of Nair ? In our opinion, the
reasons which impelled the High Court to reject the testimony of witness Nair are apart from being
irrelevant are wholly un-convincing and unacceptable. Let it not be forgotten that despite all
protestation to the contrary evidence of Nair shows that he was a good friend of the respondent. His
wife and deceased Anna Kutty hailed from the same village. Both the families were on friendly terms
and were visiting each other. Their houses were at a distance of a kilometer and a half. Both were
serving at the same place and in the same establishment but in two different branches. Nair was the
one to whom the respondent approached in his dire necessity of money to pay the bill of the German
Hospital and even though Nair did not have the necessary cash he went out of his way to request PW
14 Krishan Kumar Tiwari to lend the amount. At the request of the respondent, Nair went to his
house on February 27, 1973 to leave his wife and children to assist Smt. Anna Kutty and to prepare
food for her and her children. If the allegation of police pressure as he was suspected for having
participated in the murder of S.A.Nair or that Nair him-self was a suspect for the murder of Smt.
Anna Kutty and her two children being utterly devoid of sense and substance are rejected as a
fulminations of the accused trying to throw dust on an otherwise reliable and trustworthy witness,
the evidence of witness Nair a close dear friend of the accused was rightly treated by the learned
Sessions Judge as truthful and reliable, convincing and trustworthy. If the investigating officer did
obtain the signature of Nar an intimate friend of the respondent speaking about the confession of
the respondent, it may be that it may be a violation of Section 162 of the CrPC but no attempt was
made to verify this fact by referring to the case diary. The court is always entitled to look into the
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case diary. Assuming that Nair’s admission that his signature was obtained on the statement
recorded by the investigating officer on March 1, 1973, is correct, it does not render his evidence
inadmissible. It merely puts the court on caution and may necessitate in depth scrutiny of the
evidence. But the evidence on this account cannot be rejected outright. Section 162 of the CrPC does
not provide that evidence of a witness given in the court becomes inadmissible if it is found that the
statement of the witness recorded in course of the investigation was signed by the witness at the
instance of the investigating officer. Such is not the effect of Contravention of Section 162 CrPC.
Similarly the reason for rejecting his evidence why Nair went to the house of the respondent as
being induced by a rumour is not convincing and is equally untenable, because Nair being a friend
would visit the house of the respondent as frequently as possible as a great calamity had befallen the
respondent. Rumour or no rumour one cannot reject the testimony of an otherwise reliable witness
on such flimsy ground. Lastly some minor variations in the language used by the witness while
giving evidence before the committing Magistrate and before the Sessions court in respect of the
extra judicial confession, if there is a substantial reproduction, could not permit a total rejection of
his evidence.
10. While appreciating the evidence of a witness, the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the
deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to
find out whether it is against the general tenor of the evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies
on trivial matters not touching the core of the case, hyper-technical approach by taking sentences
torn out of context here or there from the evidence, attaching importance to some technical error
committed by the investigating officer not going to the : root of the matter would not ordinarily
permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had
the opportunity to form the opinion about the general tenor of evidence given by the witness, the
appellate court which had not this benefit will have to attach due weight to the appreciation of
evidence by the trial court and unless there are reasons weighty and formidable it would not be
proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial
details. Even honest and truthful witnesses may differ in some details unrelated to the main incident
because power of observation, retention and reproduction differ with individuals. Cross
examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence
of this witness, a friend and well-wisher of the family carefully giving due weight to the comments
made by the learned Counsel for the respondent and the reasons assigned to by the High Court for
rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this
witness by the trial court, we have no hesitation in holding that the High Court was in error in
rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.
11. The next witness who speaks about the dying declaration is witness PW 9 Jagdish Singh. He
stated in his evidence that he was occupying the quarter adjacent to the quarter in which the
respondent was staying with his family. He came to know about the murder of Smt. Anna Kutty and
two children of respondent on February 27, 1973 at about 10.30. A.M. He also deposed that he knew
that Smt. Anna Kutty was taken to the hospital. He stated that on March I, 1973 in the morning
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between 8.15 A.M. and 8.30 A.M. he went to the quarter of the respondent as he saw women and
children standing in the varandah. He saw Nair leaving the quarter at about that time. He described
Nair as a friend and well-wisher of the respondent, and stated that he often used to visit the
respondent’s house. He then stated that the respondent was seen sitting in the adjoining room of his
quarter and witness approached and asked him what has been found about the murder. He then
deposed that the respondent exclaimed to God to excuse him that he had committed mistake as he
had murdered his wife and two children. The witness asked him why he had done so when the
respondent replied that he was disappointed by the disease of his wife, therefore he had done so.
The witness stated that he left the place immediately thereafter. The learned Sessions Judge has
reproduced the extra-judicial oral confession made by the respondent to witness Jagdish Singh as
under :
Oh God Pardon me, I have done blunder, I have murdered my wife and children…. Being
disappointed by the disease of my wife, I have done so.
While scrutinising the evidence the learned Sessions Judge also observed that the witness has
reproduced the exact words and he was satisfied that it was a truthful reproduction of what the
respondent uttered. He then proceeded to examine the allegation made in the cross-examination of
the witness and denied by him that as the witness was running a gambling den he was always under
the police pressure. An commission was brought on record with reference to his statement recorded
in the course of the investigation that he had not stated that he heard a rumour in the locality that
respondent has confessed his crime. After taking note of these aspects of his evidence, the learned
Judge held that he was satisfied that the evidence of the witness is reliable and that the respondent
did make the extra-judicial oral confession to him.
12.The High Court rejected the evidence of this witness on the ground that he had not stated in his
statement in the course of investigation that he had heard a rumour that the respondent was
confessing that he has killed his wife and children. The High Court, in our opinion, erred in reaching
a substantive conclusion about the absence of rumour in the locality from the omission in the police
statement. For this reason alone, the High Court held that the witness has given inconsistent version
for being present at the quarter of the accused at the time of alleged confession made to him and
since no reliance can be placed on the evidence of this witness for his being present at the house of
the accused at the time of the alleged confession made to him, it would, according to the High Court
not be safe to rely upon his evidence that the accused confessed to him that he had killed his wife
and two children. This is hardly a valid reason for rejecting the evidence of a neighbour to whom a
stray unsupported by evidence suggestion that he was running a gambling den, studiously denied
was thrown. The common course of human conduct would show that where the calamity has
befallen a neighbour, persons who would be visiting the victim of the calamity are neighbours and
friends not strangers, outsiders or enemies. And the cccccccccccccccccccommission is on a point
which has hardly any significance. The witness is a colleague and a neighbour and no Suggestion is
made that he is inimical to the respondent. Therefore, in our opinion, the High Court was in error in
rejecting the evidence of this witness.
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13. Once we accept the evidence of PW 1 Nair and PW 9 Jagdish Singh, it is satisfactorily established
that on March 1, 1973 between 7.30 and 8.30 A.M. on two different occasions before two
independent persons the accused confessed having committed murder of his wife and two children.
He confessed the motive for committing the murder. Undoubtedly the motive is economic
destitution, the utter helplessness of a person belonging to lower middle class to provide for the
operation of his wife. It is not a motive for gain or for satisfying lust or wreaking Vengeance but it is
hone-the-less a motivation for committing the crime. It is thus satisfactorily established that the
respondent frankly confessed having committed murder of his wife and two children to his friend
and a neighbour and gave reasons for that dastardly crime.
14. The next question is whether the evidence as to extra-judicial confession is by itself trustworthy
and credible or are there any circumstances which may tend to devalue its credibility and hence the
need for corroboration to the extra-judicial confession before placing implicit reliance on them.
15. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial
confession cannot be relied upon unless corroborated by some other credible evidence. The courts
have considered the evidence of extra-judicial confession a weak piece of evidence. See Jagta v. State
of Haryana and State of Punjab v. Bhajan Singh and Ors. In Sahoo v. State of U.P. , it was held that
‘an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle
the pricked conscience; an argument to find excuse or justification for his act; or a penitent or
remorseful act of exaggeration of his part in the crime.’ Before evidence in this behalf is accepted, it
must be established by cogent evidence what were the exact words used by the accused. The Court
proceeded to state that even if so much was established, prudence and justice demand that such
evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece
of evidence. In that case, the evidence was that after the commission of murder the accused was
heard muttering to himself that he has finished the deceased. The High Court did not interfere with
the conviction observing that the evidence of extra-judicial confession is corroborated by
circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR 661, this Court
observed that the law does not require that evidence of an extra-judicial confession should in all
cases be corroborated. It thus appears that extra-judicial confession appears to have been treated as
a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon
unless corroborated. If the evidence about extra-judicial confession comes from the mouth of
witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in
respect of whom nothing is brought out which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused; the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing
is omitted by the witness which may militate against it, then after subjecting the evidence of the
witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial
confession can be accepted and can be the basis of a conviction. In such a situation to go in search of
corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of
extra-judicial confession is reliable, trust-worthy and beyond reproach the same can be relied upon
and a conviction can be founded thereon.
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16. We find the evidence of PW 1 Nair and PW 9 Jagdish Singh speaking about the extra-judicial
confession wholly trustworthy and reliable.
17. However, as the High Court has taken a different view of the evidence, as a measure of abundant
caution and to put the matter beyond the slightest pale of controversy, we now proceed to examine
the circumstantial evidence which would lend assurance to the extra-judicial confession spoken to
by the afore-mentioned two witnesses.
18. The first circumstance is the plight of helplessness in which the respondent was found at the
relevant time on account of the illness of his wife, the necessity for an operation, non-availability of
funds for the same and the loans taken by him for payment to the German Hospital where the
deceased was kept for a few days just preceding the day of occurrence; impelling the respondent to
commit murders. Evidence of PW 1 Nair and PW 14 Krishan Kumar Tiwari would unquestionably
establish that the respondent was hard-pressed for funds and he had to borrow a small sum like Rs.
200/- to pay to the German Hospital for treatment given to his wife. Evidence in this behalf is
trustworthy and reliable and would lend assurance to the fact that the suggested operation and need
for Rs. 600/- would render the respondent so helpless that in his exasperation he found the way out
by putting an end to his wife’s life and in her absence, the emerging situation would Impel him to
commit murder of his two young kinds. This part of the prosecution case is satisfactorily established
and would provide motivation and would lend assurance to the evidence furnished by the
extra-judicial confession.
19. The second circumstance relied upon by the prosecution is that the respondent had the
opportunity to commit murder of his wife and children during the night between February 26 and
27, 1973. Mrs. Anna Kutty the wife of the respondent was brought from the hospital to his quarter in
the evening on February 26, 1973. During the period Smt. Anna Kutty was kept in the hospital, the
two children of the respondent were left at the house of PW 1 Nair. While returning from the
hospital to his quarter with his wife, according to the evidence of PW 1 Nair, the respondent came to
his quarter to pick up his two children and then all of them went to the quarter of the respondent
and at that time he told Nair that he should send his wife to his quarter on the next day in the
morning to look after the ailing Smt. Anna Kutty and to cook food for the children. When this part of
the evidence of Nair was put to the respondent in his statement under Section 313 the only reply was
that the statement is incorrect. There is hardly any cross-examination of witness Nair on this part of
his evidence. Once this part of the evidence of Nair is accepted, it is satisfactorily established that
the respondent returned with his wife and two children to his quarter in the evening on February 26,
1973. It must be remembered that Smt. Anna Kutty and the two children were found murdered in
the quarter of the respondent during the night between February 26 and 27, 1973. And the crime
came to light around 10 A.M. on the next day i.e. February 27, 1973. During the night the respondent
had the opportunity to commit murder of his wife and children. In this connection, the respondent
has stated that he had left his house around 3.30 A.M. during the fateful night and he went to the
railway station at Jhansi in connection with reservation for his wife and after obtaining the
reservation he went directly to his office and around 1 P.M. in the noon he was informed by a
policeman that his wife and children were murdered. The prosecution has led evidence to show that
the respondent applied for reservation for the journey of his wife from Jhansi to Kerala on February
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27, 1973 around 9.30 A.M PW 7 Sukh Darshan Singh deposed that he was a clerk in charge of
third-class reservation at Jhansi railway station in February, 1973 He had brought the reservation
register and after referring to the enter) he deposed that on February 27, 1973 at about 9.30 A.M.
Mr. M.K Anthony (that is the name of the respondent) had filed an application which he produced.
He also produced the railway pass on which the witness put the endorsement about the journey and
the number of train Exh. KA-15. On the strength of this endorsement he issued the reservation slip
KA-16. He also deposed that the reservation hours are from 9 A.M. to 4.30 P.M. With reference to
the evidence of this witness, the respondent stated in his statement that what he has stated is not
correct and reiterated that he applied for reservation at 3.30 A.M. In this connection it is also
necessary to refer to the evidence of one Vinod Kumar Roosia PW 11 who was examined to prove the
inquest panchnama. In the cross-examination a suggestion was made to him that the respondent
was keen to take his wife to Kerala and therefore he had got the pass issued and obtained
reservation. He deposed that on February 27, 1973 about 6-6.30 A.M., a quarrel had taken place
between respondent and the ticket collector about he time when the application was presented. It is
very surprising that this-wit ness should have been asked these questions though obviously he was
not a witness called by the prosecution to prove anything with regard to the reservation obtained by
the respondent. It was however contended before the learned Sessions Judge that if the evidence of
witness Roosia is believed it would bear out the statement of the respondent that he had gone for
reservation very early in the morning as he had to stand in the queue and a quarrel had taken place
between him and the ticket collector. The learned Sessions Judge after meticulously examining the
evidence of witness Roosia rejected it and after rejecting this part of the defence version the learned
Sessions Judge accepted the evidence of PW 7 Sukh Darshan Singh and held that the application for
reservation was presented at about 9.35 A.M. Apart from this evidence unless it is shown that at the
railway station Jhansi third class reservation office is open round the clock, it is impossible to
believe that the respondent would leave his house at the unearthly hour of 3.30 A.M. in order to
stand in the queue for obtaining the reservation for his wife and children. Let it not be forgotten that
he was a railway employee and he must be aware when the reservation office would open. If the
reservation office was to open around 9 A.M. it is difficult to believe that from 3.30 A.M. the
respondent would be standing in a queue for obtaining reservation. Therefore the learned Sessions
Judge rightly rejected the statement of the respondent that he had left his house at about 3.30 A.M.
The High Court while dealing with this aspect of the case first referred to the statement made in the
First Information Report lodged by Nair that the respondent had gone to attend his duty at 3.30 A
M. during the fateful night. The High Court then called in aid the statement made by PW 11 Roosia
that he had seen a quarrel taking place around 6-6.30 A.M. between the respondent and a ticket
collector. The High Court also referred to the evidence of Roosia in which he has stated that the
respondent claimed before the reservation clerk that he had made an application for reservation
around 12 mid-night. The High Court overlooked this fact that witness Roosia was examined for
proving the inquest panchanama and that he had gone out of his way to make a statement which
may help the respondent. At its best, the evidence of PW 11 Roosia that the respondent was at the
railway station around 6.30 A.M. is of an innocuous nature, though we must frankly confess that
that part of his evidence fails to inspire confidence and the reasons given by the learned Sessions
Judge for rejecting the same are convincing. Even the High Court making a passing observation
about this evidence observed that even if the evidence of PW 11 Roosia fell short of proving
affirmatively that the respondent left his residence at about 3.30 A.M. certainly did not rule out the
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reasonableness of the explanation of the respondent. We fail to make out whether the High Court
holds the evidence of PW 11 Roosia acceptable or otherwise. However, in order to bolster up this
evidence the High Court called in aid the statement made in the First Information Report lodged by
PW 1 Nair in which it was stated that the respondent had left his quarter around 3 30 A M and this
was treated as prosecution case itself. Let it not be forgotten that the First Information Report was
lodged after 10 A.M. on February 27 1973 when after the respondent on being informed by Nair
about the murder of Smt Anna Kutty and her two children came to his house. Thereafter PW 1 Nair
went to lodge information of the offence and obviously the fact that respondent was alleged to have
left his house around 3.30 A.M. during the night was given to him by none other than the
respondent himself, Nair obviously had no reason to suspect the bonafides of the respondent at that
time. The statement thus found its place in the First Information Report as the self-serving
declaration of the respondent himself for preparing in advance his defence and would have no
probative value. Once the evidence of PW 11 Roosia and the statement in the First Information
Report are excluded as unworthy of credit the explanation of the respondent that he had left his
house at 3.30 A.M. could not be accepted because it seems contrary to the credible evidence of PW 7
Sukh Darshan Singh The High Court in our opinion, was in error in holding that the explanation
offered by the respondent for being not present at his house is reasonable. In fact the explanation is
an attempt by the respondent to extricate himself from the inconvenient position in which he found
himself and must be rejected as unworthy of credit It is thus satisfactorily established that the
respondent had the opportunity to commit murder of his wife and two children during the night
between February 26 and 27, 1973. This would provide further corroboration to the evidence
furnished by the dying declaration. Therefore the reasons which weighed with the High Court for
holding that the prosecution has failed to establish that respondent had a motive to commit the
murder and that he made the extra-judicial confession and that the explanation offered was
reasonable do not carry conviction.
20. The prosecution also relied upon an additional piece of evidence namely that after the
respondent was arrested on March 1, 1973 the investigating officer PW 13 K.D. Dixit interrogated the
respondent and on the information given by the respondent he examined the hands of the
respondent and felt that there was some reddish spots on his nails whereupon he got cut the nails of
the respondent with the help of barber Lal Ram. The nails were kept in a sealed envelope and were
sent to the chemical analyser whose report Exh. KA-41 shows that the nails were stained with blood.
However the nails appear not to have been sent to Serologist and therefore it could not be said that
the blood was of human origin. Obviously it would be far felicities to hold that the blood stains
found on the nails of the respondent were of blood of animal origin. As the High Court has attached
no importance to this aspect for the reasons herein mentioned we do not propose to call in aid this
statement.
21. So far as the recovery of knife is concerned the same was recovered on the information given by
the respondent after he was arrested on Match 1, 1973. The knife was recovered from what is
described as Jali above the water tank the water of which had a reddish tinge. The knife was
wrapped in a piece of cotton cloth. This knife is shown to be stained with human blood. However the
High Court while examining this part of the prosecution case observed that the witness Kailash
Narain PW 5 who was examined to prove the recovery of Knife, stated that he was occupying
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Quarter No. 780 but the witness admitted that the quarter was not allotted to him. The witness also
admitted that a quarrel had taken place between his father and the the kedar in August, 1972 and
therefore he came to occupy Quarter No. 780 without an allotment order. The High Court found this
circumstance sufficient to come to the conclusion that the witness could not be staying in Quarter
No. 780 and therefore he could not be present and could not have been summoned to be a witness.
Frankly the reasons for which the evidence of the witness is rejected are hardly convincing. The
learned Sessions Judge had accepted the evidence of the witness and we are in agreement with him.
It is thus satisfactorily established that that the blood stained knife was recovered on the
information given by the respondent from the very quarter in which Smt. Anna Kutty and her two
children were murdered.
22. There are other circumstances not weighty enough to engage our attention because on the
evidence as herein discussed, we are wholly satisfied that the respondent was responsible for
committing murder of his wife and two children. Two dying declarations themselves provide
credible evidence against the respondent. To put the matter beyond the pale of controversy the
circumstantial evidence herein discussed render them wholly reliable and the charge is brought
home to the respondent beyond the slightest shadow of doubt. The evaluation of the evidence by the
High Court is improper and its view is utterly unreasonable and has to be discarded. The High Court
was accordingly in error in interfering with the conviction of the respondent as recorded by the
learned Sessions Judge.
23. The last question is what sentence should be imposed upon the respondent. The learned
Sessions Judge has imposed maximum penalty that could be imposed under the law namely
sentence of death. The murder of near and dear ones including two innocent kids is gruesome. We
must however be careful lest the shocking nature of crime may induce an Instinctive reaction to the
dispassionate analysis of the evidence both as to offence and the sentence. One Circumstance that
stands out in favour of the respondent for not awarding capital punishment is that the respondent
did not commit murder of his near and dear ones actuated by any lust, sense of vengeance or for
gain. The plight of an economic have-not sometimes becomes so tragic that the only escape route is
crime. The respondent committed murder because in his utter helplessness he could not find few
chips to help his ailing wife and he saw the escape route by putting an end to their lives. This one
circumstance is of such an overwhelming character that even though the crime is detestable we
would refrain from imposing capital punishment. The respondent should accordingly be sentenced
to suffer imprisonment for life.
24. Accordingly this appeal succeeds and is allowed and the judgment and order of the High Court
acquitting the respondent is quashed and set aside and the order convicting the respondent made by
the learned Sessions Judge is restored but the sentence is commuted to one for life imprisonment.
The respondent shall suffer imprisonment for life. He shall surrender to custody to serve out the
sentence.
State Of U.P. vs M.K. Anthony on 6 November, 1984
Indian Kanoon – http://indiankanoon.org/doc/1381651/ 12
Page 306
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 82 OF 2008
JUGENDRA SINGH …..……..Appellant
Versus
STATE OF U. P. ………Respondent
J U D G M E N T
Dipak Misra, J.
From the days of yore, every civilised society has developed
various kinds of marriages to save the man from the tyranny of
sex, for human nature in certain circumstances has the
enormous potentiality of exhibiting intrigue, intricacy and
complexity, in a way, a labyrinth. Instances do take place where
a man becomes a slave to this tyrant and exposes unbridled
appetite and lowers himself to an unimaginable extent for
gratification of his carnal desire. The case at hand graphically
exposes the inferior endowments of nature in the appellant who
Page 307
Page 2
2
failed to husband his passion and made an attempt to commit
rape on a nine year old girl and the tears of the child failed to
have any impact on his emotion and even an iota of compassion
did not surface as if it had been atrophied and eventually he
pressed her neck which caused instant death of the nervous
young girl.
2. Presently, we shall proceed with the narration. The facts as
unfolded by the prosecution, in brief, are that on 24.06.1994,
Vineshwari along with her brother, Dharam Veer, aged about five
years, was having a bath in the water that had accumulated in
front of the house of the informant, Pitambar, their father, due to
a crack in the nearby canal. Kali Charan and Ganeshi, PW 2,
were grazing their cattle in the field situate at a short distance.
The accused-appellant, a resident of the village, cajoled
Vineshwari to accompany him to the nearby field belonging to
one Layak Singh. The younger brother, Dharam Veer, innocently
followed them. At that juncture, the appellant took off her
undergarment and with the intention to have intercourse flung
her on the ground. The young girl cried aloud and her brother,
the five year old child, raised an alarm. Kali Charan and Ganeshi
who had seen the accused taking the girl followed by the brother
Page 308
Page 3
3
to the field of Layak Singh rushed to the place and shouted for
Pitambar, PW-1. Hearing the shout, Pitambar with his elder son
Harpal rushed to the spot and witnessed that the accused was
pressing the neck of Vineshwari. By the time they could reach
the spot, the accused made an effort to run away but he was
apprehended. However, unfortunately by that time, the girl had
already breathed her last. Leaving the accused in the custody of
the villagers, Pitambar went to the police station and lodged an
FIR.
3. After the criminal law was set in motion, the accused was
arrested and the investigating officer, Balvir Singh, PW 7,
reached the spot and carried out the investigation. The dead
body of the deceased was sent for post mortem. The
Investigating Officer seized the garment of the deceased, the
clothes of the accused and certain other articles and prepared
the seizure memo. After recording the statements of the
witnesses under Section 161 of the Code of Criminal Procedure
and completing further investigation, the prosecution submitted
the chargesheet under Sections 302 and 376 read with 511 of the
Indian Penal Code (for short “the IPC”) before the competent
Page 309
Page 4
4
court which in turn committed the matter to the Court of Session
wherein it was registered as S.T. No. 1098 of 94.
4. The plea of the defence was one of denial and false
implication.
5. The accused chose not to adduce any evidence.
6. In order to prove its case, the prosecution examined eight
witnesses, namely, Pitamber @ Pita, PW-1 (father of the
deceased), Ganeshi, PW-2, Dharam Veer, PW-3, Dr. S.K. Sharma,
PW-4, Head Constable Mahfooj Khan, PW-5, Dr. S.R.P. Mishra,
PW-6, Balvir Singh, S.I., PW-7 and Constable Vinod Kumar, PW-
8.
7. Pitamber @ Pita PW-1 stated on oath that the accused
influenced his daughter Vineshwari, who was taking bath in the
canal water to accompany him to the nearby field. He has
further stated that the accused attempted to commit rape on his
daughter and ultimately strangulated her throat that caused her
death. Ganeshi, PW-2 deposed that he along with Kali Charan
was there. On hearing the cry of the girl, he and Kali Charan
went to the field of Layak Singh and found that the accused was
trying to commit rape on Vineshwari and tied a shirt on her neck.
Page 310
Page 5
5
Dharam Veer, PW-3, could not be examined because he was
unable to grasp the questions.
8. Dr. S.K. Sharma, PW-4 conducted the post mortem of
Vineshwari and found the following anti-mortem injuries:-
(1) Abrasion 5 cm. X 1 cm. over Rt. Ramus of jaw
extending neck region.
(2) Abrasion 3 cm. X 1 cm. over left Supra Clovicular
region.
No injury was found on the private parts and/or thighs nor
on chest and buttocks. However, two vaginal smears were
prepared and sent for pathological examination.
Over eternal pericardium larynxes and both the lungs of the
deceased, deposits of blood were found. Except this, the liver,
pancreas, spleen and both kidneys were filled with blood. On
interior examination, Larynx, Trachea, Bronchi and Lungs were
found congested. According to Dr. S.K. Sharma, the death of the
deceased took place due to asphyxia as a result of throttling.
Page 311
Page 6
6
9. Dr. S.R.P. Mishra, PW-6 examined the accused Jugendra
and found certain contusions, abrasions and superfluous
injuries on his body.
10. Balvir Singh, S.I., PW-7 proved the site plan, recovery memo
of underwear of Vineshwari, panchnama, report to C.M.O. and
chargesheet.
11. The learned trial Judge appreciating the evidence on record
found that there were discrepancies and contradictions in the
testimony of the witnesses; that it was difficult to believe that the
accused was laying upon the deceased in the presence of Kali
Charan and Ganeshi; that the deposition of witnesses that they
had found blood on the spot had not received corroboration from
the examination of Dr. S. K. Sharma, P. W. 4, who had deposed
that the blood had not oozed out from the body of the deceased
girl; that the colour of the under garment of the girl as stated by
her father did not tally with the colour described in the recovery
memo; that as per the medical report there was no injury on the
private parts of the deceased; that there was difference in the
time mentioned by the witnesses as regards the lodging of the
FIR inasmuch as the investigating officer arrived at the spot
Page 312
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7
between 1.30 to 2.00 p.m. whereas the FIR was lodged at 2.45
p.m.; and that the colour of the shirt was not properly stated by
the witnesses. Because of the aforesaid findings, the trial court
came to the conclusion that the prosecution had failed to prove
its case beyond reasonable doubt and accordingly acquitted the
accused of the charge.
12. The aforesaid judgment of acquittal came to be challenged
before the High Court in Criminal Appeal No. 2644of 1998 on the
ground that the view expressed by the learned trial Judge was
totally perverse since minor discrepancies and contradictions had
been magnified and the real evidence had been ignored. It was
also put forth that the trial court failed to appreciate the fact that
the accused was apprehended at the spot and nothing had been
brought on record to dislodge the same. It was also urged that
the view expressed by the trial court was totally unreasonable
and defied logic in the primary sense.
13. The High Court perused the evidence on record and opined
that unnecessary emphasis had been laid on minor discrepancies
by the trial court and the view expressed by it was absolutely
perverse and remotely not a plausible one. Being of this view, it
Page 313
Page 8
8
over-turned the judgment of acquittal to that conviction and
sentenced the accused to undergo life imprisonment for the
offence under Section 302 IPC and to undergo rigorous
imprisonment for ten years for the offence under Section 376
read with 511 of IPC with the stipulation that both the sentences
shall run concurrently.
14. We have heard Mr. Lav Kumar Agrawal, learned counsel for
the appellant, and Mr. R. K. Dash, learned counsel for the State.
15. It is contended by Mr. Agrawal that the High Court has not
kept in view the parameters on which the judgment of acquittal is
to be interfered with and has converted one of acquittal to
conviction solely by stating that the judgment is perverse. It is
urged by him that the discrepancies and contradictions have
been discussed in detail by the trial court and he has expressed a
well reasoned opinion that the prosecution has failed to bring
home the charge, but the said conclusion has been unsettled by
the High Court by stating that the said discrepancies are minor
in nature. It is his further submission that the ocular evidence
has not received any corroboration from the medical evidence
Page 314
Page 9
9
and further the material particulars have been totally overlooked
and hence, the judgment of conviction is sensitively vulnerable.
16. Mr. Dash, learned senior counsel appearing for respondent,
has canvassed that the learned trial judge had treated the
ordinary discrepancies which are bound to occur when rustic
witnesses have been accentuated as if they are in the realm of
high degree of contradiction and inconsistency. It is submitted
by him that when the judgment of the trial court suffers from
perversity of approach especially in relation to the appreciation of
evidence and the view cannot be treated to be a possible one, no
flaw can be found with the judgment of reversal by the High
Court.
17. To appreciate the submissions raised at the bar and to
evaluate the correctness of the impugned judgment, we think it
appropriate to refer to certain authorities in the field which deal
with the parameters for reversing a judgment of acquittal to that
of conviction by the appellate court.
18. In Jadunath Singh and Others v. State of U.P.1, a three
Judge Bench of this Court has held thus:-
1 AIR 1972 SC 116
Page 315
Page 10
10
“This Court has consistently taken the view
that an appeal against acquittal the High
Court has full power to review at large all the
evidence and to reach the conclusion that
upon that evidence the order of acquittal
should be reversed. This power of the
appellate court in an appeal against acquittal
was formulated by the Judicial Committee of
the Privy Council in Sheo Swarup v. King
Emperor,2 and Nur Mohammad v. Emperor3.
These two decisions have been consistently
referred to in judgments of this Court as laying
down the true scope of the power of an
appellate court in hearing criminal appeals:
see Surajpal Singh v. State4 and Sanwat
Singh v. State of Rajasthan5.
19. In Damodar Prasad Chandrika Prasad and Others v.
State of Maharashtra6 it has been held that once the Appellate
Court comes to the conclusion that the view of the trial court is
unreasonable, that itself provides a reason for interference. The
two-Judge Bench referred to the decision in State of Bombay v.
Rusy Mistry,7 to hold that if the finding shocks the conscience of
the Court or has disregarded the norms of legal process or
substantial and grave injustice has been done, the same can be
interfered with.
2 61 Ind App 398 = AIR 1934 PC 227
3 AIR 1945 PC 151
4 1952 SCR 193 = AIR 1952 SC 52
5 (1961) 3 SCR 120 = AIR 1961 SC 715
6 AIR 1972 SC 622
7 AIR 1960 SC 391
Page 316
Page 11
11
20. In Shivaji Sahebrao Bobade and another v. State of
Maharashtra8, the three-Judge Bench opined that there are no
fetters on the plenary power of the Appellate Court to review the
whole evidence on which the order of acquittal is founded and,
indeed, it has a duty to scrutinise the probative material de novo,
informed, however, by the weighty thought that the rebuttable
innocence attributed to the accused having been converted into
an acquittal the homage of our jurisprudence owes to individual
liberty constrains the higher court not to upset the finding
without very convincing reasons and comprehensive
consideration. This Court further proceeded to state that the
cherished principles of golden thread to prove beyond reasonable
doubt which runs through the wave of our law should not be
stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. Emphasis was laid on the aspect that a balance has to
be struck between chasing chance possibilities as good enough to
set the delinquent free and chopping the logic of preponderant
probability to punish the marginal innocents.
21. In State of Karnataka v. K. Gopala Krishna9, it has been
held that where the findings of the Court below are fully
8 AIR 1973 SC 2622
9 AIR 2005 SC 1014
Page 317
Page 12
12
unreasonable or perverse and not based on the evidence on
record or suffer from serious illegality and include ignorance and
misreading of record, the Appellate Court will be justified in
setting aside such an order of acquittal. If two views are
reasonably possible and the view favouring the accused has been
accepted by the courts below, that is sufficient for upholding the
order of acquittal. Similar view was reiterated in Ayodhya
Singh v. State of Bihar and others.10
22. In Anil Kumar v. State of U.P.11, it has been stated that
interference with an order of acquittal is called for if there are
compelling and substantial reasons such as where the impugned
judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated.
23. In Girija Prasad (dead) by LRs. v. State of M. P.12, it has
been observed that in an appeal against acquittal, the Appellate
Court has every power to re-appreciate, review and reconsider the
evidence as a whole before it. It is, no doubt, true that there is a
presumption of innocence in favour of the accused and that
presumption is reinforced by an order of acquittal recorded by the
10 2005 9 SCC 584
11 2004 13 SCC 257
12 2007 7 SCC 625
Page 318
Page 13
13
trial court, but that is not the end of the matter. It is for
Appellate Court to keep in view the relevant principles of law to
re-appreciate and reweigh as a whole and to come to its own
conclusion in accord with the principle of criminal jurisprudence.
24. In State of Goa v. Sanjay Thakran13, it has been
reiterated that the Appellate Court can peruse the evidence and
interfere with the order of acquittal only if the approach of the
lower court is vitiated by some manifest illegality or the decision
is perverse.
25. In State of U. P. v. Ajai Kumar14, the principles stated in
State of Rajasthan v. Sohan lal15 were reiterated. It is worth
noting that in the case of Sohan Lal, it has been stated thus:-
“This Court has repeatedly laid down that as
the first appellate court the High Court, even
while dealing with an appeal against acquittal,
was also entitled, and obliged as well, to scan
through and if need be reappreciate the entire
evidence, though while choosing to interfere
only the court should find an absolute
assurance of the guilt on the basis of the
evidence on record and not merely because the
High Court could take one more possible or a
different view only. Except the above, where
the matter of the extent and depth of
consideration of the appeal is concerned, no
13 2007 3 SCC 755
14 AIR 2008 SC 1269
15 (2004) 5 SCC 573
Page 319
Page 14
14
distinctions or differences in approach are
envisaged in dealing with an appeal as such
merely because one was against conviction or
the other against an acquittal.”
26. In Chandrappa v. State of Karnataka16, this Court held
as under: –
“42 From the above decisions, in our
considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate court
on the evidence before it may reach its own
conclusion, both on questions of fact and of
law.
(3) Various expressions, such as,
“substantial and compelling reasons”, “good
and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to
curtail extensive powers of an appellate court
in an appeal against acquittal. Such
phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of the
16 (2007) 4 SCC 415
Page 320
Page 15
15
court to review the evidence and to come to its
own conclusion.
(4) An appellate court, however, must
bear in mind that in case of acquittal, there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that every
person shall be presumed to be innocent
unless he is proved guilty by a competent
court of law. Secondly, the accused having
secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the
finding of acquittal recorded by the trial court.”
27. In S. Ganesan v. Rama Raghuraman and others17, one of
us (Dr. B.S. Chauhan,J.), after referring to the decision in Sunil
Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra18,
considered various aspects of dealing with a case of acquittal and
after placing reliance upon earlier judgments of this Court,
particularly in Balak Ram v. State of U.P.19, Budh Singh v.
State of U.P.20, Rama Krishna v. S. Rami Reddy21, Aruvelu v.
State22 and Babu v. State of Kerala23, held that unless there
17 (2011) 2 SCC 83
18 (2010) 13 SCC 657
19 (1975) 3 SCC 219
20 (2006) 9 SCC 731
21 (2008) 5 SCC 535
22 (2009) 10 SCC 206
23 (2010) 9 SCC 189
Page 321
Page 16
16
are substantial and compelling circumstances, the order of
acquittal is not required to be reversed in appeal. Similar view
has been reiterated in Ranjitham v. Basvaraj & Ors.24 and State
of Rajasthan v. Shera Ram @ Vishnu Dutta25.
28. Keeping in view the aforesaid well-settled principles, we are
required to scrutinize whether the judgment of the High Court
withstands the close scrutiny or conviction has been recorded
because a different view can be taken. First we shall refer to the
ante mortem injuries which were found on the deceased – (i)
abrasion 5 cm x 1 cm over right ramus of jaw extending to the
neck and (ii) abrasion 3 cm x 1 cm over left supra clavicular
region. On internal examination, larynx, trachea and bronchi
were found congested. Both the lungs were congested. Brain was
congested. Partially digested food was found in the stomach.
Small and large intestine were half full. The doctor who
conducted the post mortem has opined that the cause of death
was due to asphyxia as a result of throttling.
29. PW-6 Dr. S.R.P. Mishra had examined the accused and had
found four contusions and two abrasions on his forehead, left
ear, neck, left side chest and right shoulder. The learned trial
24 (2012) 1 SCC 414
25 (2012) 1 SCC 602
Page 322
Page 17
17
Judge has given some emphasis on these injuries but the High
Court has expressed the view that when the accused was
apprehended at the spot by the witnesses, he had been given a
beating for the criminal act and hence, the minor injuries had no
significance.
30. The question is whether the trial court was justified in
coming to hold that there were discrepancies and contradictions
in the evidence of the witnesses and, therefore, the case of the
prosecution did not deserve acceptance. The discrepancies that
have been found have been described while we have dealt with
the trial court judgment. The medical report clearly says that the
death was caused due to asphyxia as a result of throttling. PW-4,
the surgeon, who has conducted the autopsy, stated that the
deceased was wearing a shirt. PW-1, the father, has stated that
she was strangulated by a bush shirt. The learned trial Judge
has given much emphasis by drawing a distinction between a
shirt and a bush shirt. The High Court has treated that it is not
a material contradiction. In the FIR, it was clearly mentioned
that the accused strangulated the deceased with the help of her
shirt. The medical report supports the same and, therefore, the
nature of the shirt which has been given importance by the
Page 323
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18
learned trial Judge, in our considered opinion, has been rightly
not accepted. The learned trial Judge has doubted the testimony
of Ganeshi, PW-2, that he had not seen the children taking the
bath and further he has also opined that it would not have been
possible for the accused to lay upon the deceased in their
presence. In this regard, the distance has been taken into
consideration to discard the testimony. The High Court has
perused the testimony or deposition of PW-2 wherefrom it is
evincible that the spot was at the distance of 100 paces where he
was grazing the cattle. The Investigating Officer has deposed that
there was water in about half kilometre area as there was a crack
in the canal as a consequence of which water was flowing in front
of the house of the informant. Thus, the High Court has opined
that the variance with regard to the details of distance cannot be
made the edifice to discard their testimony. The High Court has
treated Ganeshi as a natural and neutral witness and it has also
observed that his evidence could not have been thrown overboard
on the ground of absence of precise description of distance and
the fact that he had not seen the children bathing in the water.
That apart, the inference by the trial court is that when they had
arrived on the scene, the accused could not have been laying on
Page 324
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19
the deceased in their presence. On a perusal of his deposition as
well as analysis made by the learned trial Judge, it is evident that
there was some time gap and distance. The accused was laying
on the deceased and throttled her neck with the shirt. The other
witnesses had arrived after five to ten minutes. The High Court
has taken note of the distance, time and the age of the deceased
and has found that the reasoning ascribed by the trial court to
disbelieve the version of PW-2 is unacceptable.
31. The learned trial Judge has noticed that both Pitambar and
Ganeshi had deposed that they had seen blood on the spot,
though the medical report clearly showed that there was no
oozing of blood from any part of the body of the deceased and
further that there was no injury on the private parts of the girl. It
is apt to note here that there was some frothy liquid coming out
from the nose of the deceased. The High Court, while analysing
the said evidence, has observed that the witnesses though had
stated to have seen blood on the spot in their cross-examination,
yet that would not really destroy the version of the prosecution
regard being had to the many other facts which have been proven
and further there was no justifiable reason to discard the
Page 325
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20
testimony of the father and others who were eye witnesses to the
occurrence.
32. The learned trial Judge has taken note of the fact that PW-1
had stated in his cross-examination that the underwear of the
deceased was printed green in colour while PW-2 had stated that
the colour of the underwear was red in colour and according to
the recovery memo, the colour was red, white and yellow. The
High Court has perused the memo, Ext. Ka2, prepared by the
Investigating Officer wherein it has been described that the
printed underwear was of red, white, yellow and black colour.
That apart, when the witnesses were deposing almost after a
span of three years, it was not expected of them to remember the
exact colour of the printed underwear. In any case, the High
Court has observed that the said discrepancy, by no stretch of
imagination, could be treated as a discrepancy of any
significance.
33. Another aspect which has weighed with the learned trial
Judge was about the time of the lodging of the FIR. The said
timing has no bearing on the case of the prosecution inasmuch
Page 326
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21
as rustic and uneducated villagers could not have been precise
on the time concept.
34. At this juncture, we may remind ourselves that it is the duty
of the court to shift the chaff from the grain and find out the
truth from the testimony of the witnesses. A testimony of the
witness is required to inspire confidence. It must be
creditworthy. In State of U.P. v. M.K. Anthony26, this Court has
observed that in case of minor discrepancies on trivial matters
not touching the core of the case, hypertechnical approach by
taking the sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer and not going to the root of
the matter would not ordinarily permit rejection of the evidence
as a whole.
35. In Rammi alias Rameshwar v. State of Madhya
Pradesh27, this Court has held as follows: –
“24. When eye-witness is examined at length
it is quite possible for him to make some
discrepancies. No true witness can possibly
escape from making some discrepant details.
Perhaps an untrue witness who is well tutored
can successfully make his testimony totally
26 AIR 1985 SC 48
27 AIR 1999 SC 3544
Page 327
Page 22
22
non-discrepant. But Courts should bear in
mind that it is only when discrepancies in the
evidence of a witness are so incompatible with
the credibility of his version that the Court is
justified in jettisoning his evidence. But too
serious a view to be adopted on mere
variations falling in the narration of an
incident (either as between the evidence of two
witnesses or as between two statements of the
same witness) is an unrealistic approach for
judicial scrutiny.”
36. In Appabhai and another v. State of Gujarat28, this
Court has ruled thus: –
“The Court while appreciating the evidence
must not attach undue importance to minor
discrepancies. The discrepancies which do not
shake the basic version of the prosecution case
may be discarded. The discrepancies which
are due to normal errors of perception or
observation should not be given importance.
The errors due to lapse of memory may be
given due allowance. The Court by calling into
aid its vast experience of men and matters in
different cases must evaluate the entire
material on record by excluding the
exaggerated version given by any witness.
When a doubt arises in respect of certain facts
alleged by such witness, the proper course is
to ignore that fact only unless it goes into the
root of the matter so as to demolish the entire
prosecution story. The witnesses nowadays go
on adding embellishments to their version
perhaps for the fear of their testimony being
rejected by the Court. The courts, however,
should not disbelieve the evidence of such
28 AIR 1988 SC 696
Page 328
Page 23
23
witnesses altogether if they are otherwise
trustworthy.”
37. Judged on the aforesaid principles of law, we are of the
considered opinion that the learned trial Judge had given
unnecessary importance on absolutely minor discrepancies
which do not go to the root of the matter and the High Court has
correctly treated the analysis to be perverse. Quite apart from
that, it is noticeable from the judgment of the trial court that the
learned trial Judge has proceeded on a wrong footing by saying
that the case of the prosecution was that the accused had
committed rape on the deceased whereas on a perusal of the FIR,
it is quite clear that the allegation was that the accused has
pulled the underwear of the girl with the intention to commit
rape. Similar is the testimony of Ganeshi (PW-1) who has stated
that the accused was laying on the girl. It is difficult to
understand how the learned trial Judge has conceived that the
case of the prosecution was that the accused had committed
rape.
38. Thus, from the aforesaid analysis, there can be no trace of
doubt that the view taken by the learned trial Judge was
absolutely unreasonable, perverse and on total erroneous
Page 329
Page 24
24
appreciation of evidence contrary to the settled principles of law.
It can never be treated as a plausible view. In our considered
opinion, only a singular view is possible that the accused had
made an attempt to commit rape and he was witnessed while he
was strangulating the child with a shirt. The result was that a
nine year old child breathed her last. The reasoning ascribed by
the learned trial Judge that she did not die because of any injury
makes the decision more perverse rather than reasonable. That
apart, nothing has been brought on record to show that there
was any kind of enmity between the family of the deceased and
that of the accused appellant. There is no reason why the father
and the other witnesses would implicate the accused appellant in
the crime and would spare the real culprit. Quite apart from the
above, he was apprehended on the spot. The accused had taken
the plea that the deceased had died as she had drowned in the
water. The medical report runs absolutely contrary inasmuch
there was no water in her stomach or in any internal part of the
body. There was no motive on the part of any of the witnesses to
falsely involve the accused in the crime. In view of our aforesaid
analysis, we entirely agree with the view expressed by the High
Court.
Page 330
Page 25
25
39. Before parting with the case, we may note that the appellant
has created a situation by which a nine year old girl who believed
in him as a co-villager and went with him in total innocence
breathed her last before she could get into her blossom of
adolescence. Rape or an attempt to rape is a crime not against
an individual but a crime which destroys the basic equilibrium of
the social atmosphere. The consequential death is more
horrendous. It is to be kept in mind that an offence against the
body of a woman lowers her dignity and mars her reputation. It
is said that one’s physical frame is his or her temple. No one has
any right of encroachment. An attempt for the momentary
pleasure of the accused has caused the death of a child and had
a devastating effect on her family and, in the ultimate eventuate,
on the collective at large. When a family suffers in such a
manner, the society as a whole is compelled to suffer as it creates
an incurable dent in the fabric of the social milieu. The cry of the
collective has to be answered and respected and that is what
exactly the High Court has done by converting the decision of
acquittal to that of conviction and imposed the sentence as per
law.
Page 331
Page 26
26
40. Consequently, the appeal, being sans merit, stands
dismissed.
……………………………………….J.
[Dr. B. S. Chauhan]
……………………………………….J.
[Dipak Misra]
New Delhi;
May 29, 2012
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.255 OF 2013
1) Dr. Ravindra s/o Kadu Patil,
Age­36 years, Occu:Doctor,
2) Dr. Sudarshana w/o Vinay Sonwane,
Age­32 years, Occu:Doctor,
Both R/o­Suvidha Hospital &
Sonography Centre, Shikshak Colony,
Pachora Road, Jamner, Tq­Jamner,
Dist­Jalgaon.
…PETITIONERS
VERSUS
The State of Maharashtra,
Through Dr. B.r. Sonwane,
Age­58 years, Occu:Service,
the Medical Superintendent Class­I,
Sub­District Hospital Jamner,
Dist­Jalgaon.
…RESPONDENT

Shri B.R. Kedar Advocate for Petitioners.
Shri S.V. Kurundkar, Public Prosecutor with
Shri V.D. Godbharle and Mrs. S.G. Chincholkar,
A.P.P. for Respondent Nos.1 and 2.

CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 8TH APRIL,2014.
DATE OF PRONOUNCING JUDGMENT: 9TH MAY, 2014.
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JUDGMENT :
1. The present Petition has been filed to
quash complaint filed by Appropriate Authority
(hereafter referred as “complainant”) under the
provisions of Pre­conception and Pre­natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (hereafter referred as “Act”)
and the Pre­conception and Pre­natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules,
1996 (hereafter referred as “Rules”).
2. The Petition is Admitted and has been
heard finally. Learned counsel for the Petitioner
as well as learned Public Prosecutor for the
Respondents submitted elaborate arguments. With
this matter some other similar matters were also
argued and Counsel for Petitioners adopted
arguments of each other on law points to request
for quashment of Criminal Trials against accused.
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3. The Petitioners claim that Petitioner
No.2 is running her Maternity Home wherein
Petitioner No.1 is running his registered
sonography centre under the name and style as
“Suvidha Hospital and Sonography Centre” at
Jamner. It is claimed that the Petitioners are
running hospital and registered sonography centre
without any complaints and complying all the
provisions of the Act and Rules. It is claimed
that the permission to run the sonography centre
was to expire on 17th November, 2011 and
Petitioner No.1 had applied for renewal on 14th
October, 2011 but it has been granted only on 3rd
November, 2012 with effect from 17th November,
2011, for five years. The Petition makes
grievances as to how inspite of applying for
renewal on time, there was delay. According to the
Petitioners, Respondent purporting to be
Appropriate Authority, conducted Panchnama of the
sonography machine on 1st December 2011 and issued
notice and sealed the sonography machine on 5th
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December, 2011. Petition gives particulars as to
how Petitioners moved the Courts and Judicial
Magistrate, First Class, Jamner, vide order dated
19th May, 2012 directed to open seal of sonography
machine and so Writ Petition No.2121 of 2012 filed
by the Petitioner No.1 in the High Court came to
be withdrawn on 20th June, 2012. According to the
Petitioners, Respondent had given notice dated 9th
December, 2011 (Exhibit G) claiming violation of
the provisions of the Act and Rules. The
Petitioners gave the appropriate reply on 12th
December, 2011. According to the Petitioners, even
the District Advisory Committee accepted the
explanation of the Petitioners and recommended to
open the seal of the sonography machine. However,
according to the Petitioners, the Respondent filed
complaint bearing R.C.C. No.56 of 2012 before the
Court of J.M.F.C., Jamner alleging offence under
Sections 4(3), 5, 6, 27 read with Sections 23, 25
and 28 and Rules 9(1)(4), 10(1­A) of the Act and
Rules. Claim is that the Petitioners had not
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committed any offence and the complaint deserves
to be quashed. It is claimed that it is wrong for
the Respondent to allege that there were
irregularities in maintaining F Form register and
taking signatures of the pregnant woman on
declaration when on­line reports submitted by the
Petitioners were complete in all respects. It is
submitted that on­line forms submitted were
complete in all respects. The Petitioners claim
that deficiencies pointed out were not there and
that there were complete compliances of the
provisions of the Act and Rules.
4. On behalf of the Respondent, affidavitin­reply has been filed. It is claimed that during
the visit to the hospital of the Petitioners, it
was found that on 15th May, 2011 and 9th June,
2011 accused conducted sonography on pregnant
woman Nayana Sunil Gaikwad and Shabana Tadvi,
however in F Forms, column No.4 i.e. number of
children was not filled. On 27th January, 2011 and
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23rd April, 2011 the accused had conducted
sonography on two pregnant women, Sarita Gosavi
and Parvatabai Dahatonde but in inspection it was
found that declaration forms of both the patients
in Form F were not maintained and their
signatures/thumb impressions were not obtained. It
was noticed that on 17th May, 2011 one Maya
Jadhav, pregnant woman was examined but her F Form
was not completely filled up and column No.17 was
left blank. On 23rd November, 2010 accused
examined one Seema Kalse and in Form F in column
No.14 it is shown that there is “missed abortion”
and in column No.18 it was shown ­ advise for
M.T.P., however in column No.19 nothing was
written and it was left blank. Therefore
complainant seized registers of F Forms, M.T.P.
registers from 1st August, 2011 and prepared
Panchnama. Show cause notice was issued to accused
on 9th December, 2011 and accused replied on 12th
December, 2011. In reply, the Petitioners supplied
on­line F Forms but Petitioner manipulated the
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declaration of Savita Gosavi and Parvatabai
Dahatonde, while declaration forms of Savita
Gosavi and Parvatabai Dahatonde were without
signatures/thumb impressions when the record was
seized by the complainant. Thus, the complaint was
filed. The complaint filed makes out prima facie
case. The Respondent wants the Petition to be
rejected.
5. It has been argued by the learned counsel
for the Petitioners that the sonography centre was
registered in the name of Petitioner No.1 and
Petitioner No.2 was not concerned and only the
hospital is of Petitioner No.2 and thus, she has
been wrongly added as an accused in the complaint.
The counsel strenuously argued as to how the
Petitioners had applied for renewal of permission
but the Authorities delayed the same. It was
argued that in notice dated 9th December, 2011
(Exhibit G) complainant informed about the errors
in F Form. According to the counsel, there were
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correct compliances of filling of F Forms which
were submitted on­line and there was no intention
not to correctly fill up the printed F Forms.
Regarding deficiencies pointed out that the office
copies of the concerned documents did not bear
thumb impressions of the patients concerned, the
argument is that the Petitioners collected the
originals from the patients which had the thump
impressions and thus, according to the counsel,
there were no defects. Regarding other
deficiencies pointed out also, the argument is
that on­line forms submitted by the concerned
contain all the information and in printed forms
some columns remained to be filled in. The counsel
referred to the explanations given in reply letter
dated 12th December, 2011 to argue that the
Petitioners had properly explained and thus there
were no deficiencies or inaccuracies. It was
submitted that filling of F Forms by the
Petitioners was not necessary as what the
Petitioner No.1 is running is sonography centre
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and Rule 9(4) refers to Genetic Clinic and does
not refer to Sonography Centre and so it was
not necessary for the Petitioners to keep F Forms.
The counsel for Petitioners referred to Para 2 of
the complaint where it is averred that Petitioner
No.1 is the owner of the sonography centre and
also handler of sonography machine and that
Petitioner No.2 is also handler of the
sonography machine in the said hospital. The
argument is that the certificate of registration,
Exhibit B filed on record shows that only
Petitioner No.1 is the handler of the machine and
thus the complaint against Petitioner No.2 is not
maintainable. It is argued that in view of on­line
keeping of records, manual maintenance of records
is not necessary.
6. After referring to the various provisions
of the Act, reference was made to the case of Dr.
Pratidnya Jayesh Shinde and another vs. Dr.
Rameshchandra Kisan Savkare and another, reported
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in 2014 ALL M.R.(Cri) 681. In that matter,
proceeding was quashed as the complaint was silent
as to how responsibility of maintaining records
was cast upon the concerned Applicants as were
before the Court. Reliance is also placed on the
Judgment in the case of Dr. Alka w/o Anant Gite
and another vs. The State of Maharashtra in
Criminal Application No.3500 of 2011 decided on
11th May, 2012. Referring to that Judgment,
submission is that inadvertently if a column is
blank, it cannot attract offence. Relying on the
case of “Dr. Mrs. Uma Shankar Rachewad vs.
Appropriate Authority”­ Criminal Writ Petition No.
407 of 2011, decided on 19th April, 2012, it is
submitted that writing of “N.A.” i.e. NonApplicable does not amount to incomplete filling
of Form. Judgment in the case of Dr. Ravindra s/o
Shivappa Karmudi vs. The State of Maharashtra in
Criminal Application No.757 of 2012 decided on 3rd
May, 2012, was referred to submit that F Form was
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incomplete does not mean criminal offence is
there. Reliance was also placed on the Judgment
in the matter of Dr. Tushar Rangrao Patil vs.
Appropriate Authority in Criminal Writ Petition
No.406 of 2011 decided on 2nd May, 2012. These are
matters decided by learned Single Judge of this
Court. The submission is that in those matters
also although there were defects in maintaining of
Form F, the Petitioners therein were given benefit
and the concerned cases against those Petitioners
were quashed. Thus it is argued that the Petition
needs to be allowed.
7. Learned Public Prosecutor submitted that
even if on­line Form is submitted, keeping of hard
copies as per the provisions of the Act is
necessary. In the matter of “Radiological and
Imaging Association vs. Union of India, reported
in A.I.R. 2011 Bom. 171, observations in Para 27
show that in every field electronic filing is to
be followed by submitting paper documents. The Act
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and Rules require maintaining of Records basically
in form of documents in hard copies. Record in
electronic form is additional, to be kept for
processing and checking. It is argued that there
were various deficiencies in maintaining of the F
Forms and records as has been clearly given in
details in the affidavit­in­reply. The Public
Prosecutor referred to contents of the complaint
where specific details are given as to how the
concerned F Forms were not filled and records were
not properly maintained. The submission is that
the complaint supported by documents, clearly
makes out offence for which the Petitioners have
been charged.
8. To appreciate the controversy, it would
be appropriate to keep in view certain provisions
of the Act.
. Portions relevant from Section 4 of the
Act are as under:­
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4. Regulation of pre­natal
diagnostic techniques.­ On and from
the commencement of this Act,­
(1) no place including a registered
Genetic Counselling Centre or
Genetic Laboratory or Genetic Clinic
shall be used or caused to be used
by any person for conducting prenatal diagnostic techniques except
for the purposes specified in clause
(2) and after satisfying any of the
conditions specified in clause (3);
(2) no pre­natal diagnostic
techniques shall be conducted except
for the purposes of detection of any
of the following abnormalities,
namely:­
(i) …….. (iv)………
(ii)…….. (v)……….
(iii)……. (vi)………
(3) no prenatal diagnostic
techniques shall be used or
conducted unless the person
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qualified to do so is satisfied for
reasons to be recorded in writing
that any of the following conditions
are fulfilled, namely:­
(i) …….. (ii)………
(iii) …….. (iv)………
(v) ……..
Provided that the person conducting
ultra sonography on a pregnant woman
shall keep complete record thereof
in the clinic in such manner, as may
be prescribed, and any deficiency or
inaccuracy found therein shall
amount to contravention of
provisions of section 5 or section 6
unless contrary is proved by the
person conducting such ultra
sonography;
(4)………….
(5)………….”
. With reference to the above proviso as
regards keeping of records, relevant portions of
Rule 9 are as under:­
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9. Maintenance and preservation of
records.­ (1) Every Genetic
Counselling Centre, Genetic
Laboratory, Genetic Clinic including
a Mobile Genetic Clinic, Ultrasound
Clinic and Imaging Centres shall
maintain a register showing, in
serial order, the names and
addresses of the men or women given
genetic counselling, subjected to
pre­natal diagnostic procedures or
pre­natal diagnostic tests, the
names of their spouse or father and
the date on which they first
reported for such counselling,
procedure or test.
(2) The record to be maintained by
every Genetic Counselling Centre, in
respect of each woman counselled
shall be as specified in Form D.
(3) The record to be maintained by
every Genetic Laboratory, in respect
of each man or woman subjected to
any pre­natal diagnostic
procedure/technique/test shall be as
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specified in Form E,
(4) The record to be maintained by
every Genetic Clinic including a
Mobile Genetic Clinic, in respect of
each man or woman subjected to any
pre­natal diagnostic procedure/
technique/test, shall be as
specified in Form F.
(5)……….
(6)……….
(7)……….
(8)……….”
. In Rule 10 conditions for conducting prenatal diagnostic procedures are prescribed, which
includes obtaining written consent as prescribed
in Form G in a language the person undergoing the
procedure understands.
. Section 20 of the Act deals with
cancellation or suspension of the registration.
Sub­section (1) and (2) deal with giving of notice
and reasonable opportunity before suspending or
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cancelling registration of the Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic. Subsection (3) of Section 20 reads as under:­
“(3) Notwithstanding anything
contained in sub­sections (1) and
(2), if the Appropriate Authority is
of the opinion that it is necessary
or expedient so to do in the public
interest, it may, for reasons to be
recorded in writing, suspend the
registration of any Genetic
Counselling Centre, Genetic
Laboratory or Genetic Clinic without
issuing any such notice referred to
in sub­section (1).”
9. The learned Public Prosecutor submitted
that the cases under the Act are treated as
warrant cases instituted otherwise than on police
report. It has been argued that major or minor
violation in the keeping of records is immaterial.
10. Scheme of the Act and Rules need to be
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appreciated:
(A). Proviso below Section 4(3) of the Act
shows that persons conducting ultra sonography on
a pregnant woman are required to keep complete
record thereof in the clinic in such manner as may
be prescribed and any deficiency or inaccuracy
found therein shall amount to contravention of
provisions of Section 5 or Section 6 of the Act
unless contrary is proved by the person conducting
such ultra sonography. Section 5 of the Act
relates to taking written consent of pregnant
woman and prohibition of communicating the sex of
foetus. Section 6 of the Act prohibits
determination of sex by Genetic Counselling Centre
or Genetic Laboratory or Genetic Clinic or any
person. Rule 9 relates to maintenance and
preservation of records and this inter­alia
includes keeping record in respect of each man or
woman subjected to any pre­natal diagnostic
procedure/technique/test in specified Form F.
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Although sub­rule (4) of Rule 9 refers to Genetic
Clinic, definition of “Genetic Clinic” as in
Section 2(d) of the Act specifies that Genetic
Clinic means a clinic, institute, hospital,
nursing home or any place, by whatever name
called, which is used for conducting pre­natal
diagnostic procedures. Thus, all such places are
covered where pre­natal diagnostic procedures are
being conducted and all persons doing the same are
also covered, and as per the statute, maintaining
of proper records and Form F as prescribed, is
mandatory.
(B). Section 5 requires taking written consent
of the pregnant woman and prohibits communication
of sex of foetus. In this regard Form G is
prescribed in Rule 10. (According to the Public
Prosecutor Section 5(2) of the Act prohibits
communicating of sex of the foetus by words,
signs, or in any other manner and thus according
to him displaying of even photographs of Gods and
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Goddess where pre­natal diagnostic procedures are
conducted, is not permissible, as the same gives
opportunity to convey sex of foetus by signs or in
other manners.)
(C). Section 23 of the Act shows that medical
geneticist, gynecologist, registered medical
practitioner or any person who owns a Genetic
Counselling Centre, a Genetic Laboratory or a
Genetic Clinic or is employed in such a Centre,
Laboratory or Clinic and renders his professional
or technical services to or at such a Centre,
Laboratory or Clinic, whether on an honorary basis
or otherwise, and who contravenes any of the
provisions of the Act or rules made thereunder is
also liable for punishment. Under Section 23 of
the Act, the owner of Centre, Laboratory, Clinic
who takes professional services to run the Centre
where pre­natal diagnostic techniques are
conducted, is also liable, if any provisions of
the Act or Rules are contravened.
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(D). Under Section 26 of the Act, with
reference to companies, the word “company” means
any body corporate and includes a firm and other
association of individuals and such persons are
also liable, when offences by Companies are there.
(E). In view of Section 3(3) of the Act, prenatal diagnostic techniques can be conducted only
at place registered and any change has to be
reported. Under Rule 13 every change of employee,
place, address and equipment installed has to be
informed to the Appropriate Authority.
11. I have heard learned counsel for the
Petitioner as well as learned Public Prosecutor.
Record has been perused. The criminal case filed
by the Appropriate Authority in the lower Court
supported by documents shows the deficiencies and
inaccuracies found and necessary particulars are
there. Counsel for Petitioner has strenuously
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tried to demonstrate that either the defects
alleged are not there or even if they are there,
they are insignificant. The Petitioner is trying
to give reasons as to how the Form was maintained
and if there are lacunae, what is the explanation.
12. The Full Bench of High Court of Gujarat
in Suo Motu vs. State of Gujarat, reported in 2009
CRI.L.J. 721, considered effects of non
maintaining records properly under this Act. It
was held that criminal consequences are attracted
and there can also be suspension of the
registration. Para 8 of the Judgment reads as
under:­
“8. It needs to be noted that improper
maintenance of the record has also
consequences other than prosecution
for deemed violation of section 5 or
6. Section 20 of the Act provides for
cancellation or suspension of
registration of Genetic Counselling
Centre, Genetic Laboratory or Genetic
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Clinic in case of breach of the
provisions of the Act or the Rules.
Therefore, inaccuracy or deficiency in
maintaining the prescribed record
shall also amount to violation of the
prohibition imposed by section 6
against the Genetic Councelling
Centre, Genetic Laboratory or Genetic
Clinic and expose such clinic to
proceedings under section 20 of the
Act. Where, by virtue of the deeming
provisions of the proviso to subsection (3) of section 4,
contravention of the provisions of
section 5 or 6 is legally presumed
and actions are proposed to be taken
under section 20, the person
conducting ultrasonography on a
pregnant woman shall also have to be
given an opportunity to prove that the
provisions of section 5 or 6 were not
violated by him in conducting the
procedure”
……………………………….
“It would also be improper and
premature to expect or allow the
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person accused of inaccuracy or
deficiency in maintenance of the
relevant record to show or prove that
provisions of section 5 or 6 were not
violated by him, before the deficiency
or inaccuracy were established in
court by the prosecuting agency or
before the authority concerned in
other proceedings.”
. In that Judgment of Full Bench,
mentioned above, opinion (iv) recorded in
Para 9, is as under:­
“(iv). Deficiency or inaccuracy in
filling Form F prescribed under Rule 9
of the Rules made under the PNDT Act,
being a deficiency or inaccuracy in
keeping record in the prescribed
manner, it is not a procedural lapse
but an independent offence amounting to
contravention of the provisions of
section 5 or 6 of the PNDT Act and has
to be treated and tried accordingly.
It does not, however, mean that each
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inaccuracy or deficiency in maintaining
the requisite record may be as serious
as violation of the provisions of
section 5 or 6 of the Act and the Court
would be justified, while imposing
punishment upon conviction, in taking a
lenient view in cases of only
technical, formal or insignificant
lapses in filling up the forms. For
example, not maintaining the record of
conducting ultrasonography on a
pregnant woman at all or filling up
incorrect particulars may be taken in
all seriousness as if the provisions of
section 5 or 6 were violated, but
incomplete details of the full name and
address of the pregnant woman may be
treated leniently if her identity and
address were otherwise mentioned in a
manner sufficient to identify and trace
her.”
13. It is clear that it would be premature to
accept explanations regarding inaccuracies or
deficiencies before trial takes place. It is
further apparent that if the lapse is
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insignificant, the benefit would go to the accused
at the time of sentence, but claiming that
deficiencies in Form F and keeping Records are
insignificant, cannot be reason to claim that no
offence is there and to discharge the accused.
14 (A). Reference needs to be made to the
case of Sujit Govind Dange (Dr.) and another vs.
State of Maharashtra and others, reported in
2013(2) Bom.C.R. 351. In that matter Division
Bench of this Court held that any deficiencies
noticed in maintaining the record, in specially
Form F, attracts the provisions of the Act.
(B). The Division Bench of this Court
considered the objects and reasons of the Act and
as to how the Act was necessary to control menace
of female foeticide. In Para 29, while considering
Section 4 of the Act, it was observed with
reference to Rule 9, as under:­
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“29. Considering the object of the
Act, the maintenance and preservation
of records as per rule 9 is an
important statutory duty cast upon the
person (Doctor) conducting ultra
sonography on a pregnant woman and,
therefore, any deficiency or
inaccuracy found in this regard
amounts to contravention of the
provisions of section 5 or 6 of the
Act unless contrary is proved by the
person (Doctor) conducting such ultra
sonography”.
(C). In that matter also arguments were raised
that the discrepancies were minor in nature or
that they were only inaccuracies. The Hon’ble
Division Bench in Para 30 held as under:­.
“30. It is important to note that in
order to prohibit abuse of these
prenatal diagnostic techniques, the
Legislature has incorporated a proviso
to sub­section (3) of section 4 of the
Act which stipulates that any
deficiency or inaccuracy found in
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maintaining and preserving complete
record in a manner prescribed by the
person conducting ultrasonography on a
pregnant woman shall amount to
contravention of the provisions of
section 5 or section 6 unless contrary
is proved by the person conducting
such ultrasonography. This provision,
in our view, is completely consistent
with the objectives of the Act and has
been introduced to prohibit abuse of
the pre­natal diagnostic techniques by
the person conducting ultra sonography
on a pregnant woman”.
………………………………..
“The contention of the petitioner that
the discrepancy was of a minor nature
is wholly misconceived. Neither the
provisions of the Act nor that of the
Rules provide or define minor or
major deficiencies or inaccuracies.
On the other hand, it requires strict
compliance of every provision of the
Act and the Rules. Considering the
objectives to be achieved, strict
punishment is provided for violating
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29
the conditions prescribed under the
Act. The contentions canvassed by the
petitioner, in this regard, therefore,
are devoid of substance and are
rejected”.
(D). With reference to Sub­section (3) of
Section 20 of the Act, the Hon’ble Division Bench
recorded in Para 39, as under:­
“The observations made by the
Division Bench in (Malpani
Infertility Clinic Pvt. Ltd. &
others Vs. Appropriate Authority
PNDT Act & others), reported in
2005(1) Bom.C.R. 595 (supra) clearly
show that the Division Bench in view
of the fact that prosecution was
launched against the petitioner in
the said case, it was held to be
sufficient reason for the
authorities to take recourse to subsection (3) of Section 20 of the
Act. In the instant case, the
Petitioner having admitted the
existence of deficiency and
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inaccuracy in keeping and
maintaining the record including
form ’F’ has resulted in
contravention of the provisions
contained in section 5 or 6 and,
therefore, would amount to an
offence and can be treated to be
sufficient reason for the
Appropriate Authority to invoke the
provisions of sub­section (3) of
section 20 of the Act, in the larger
public interest and, therefore, the
action of suspension of registration
of the Genetic Centre of the
petitioner is sustainable in law
till such time contrary is proved by
the petitioner.”
(E). Para 38 of the Judgment of the Division
Bench recorded that:­
“38. Rule 9(1) requires that every
Genetic Counselling Centre, Genetic
laboratory, Genetic Clinic, etc.,
shall maintain a register showing, in
serial order, the names and addresses
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of the men or women given genetic
counselling, subjected to pre­natal
diagnostic procedure or pre­natal
diagnostic tests, the names of their
spouse or father and the date on which
they first reported for such
counselling, procedure or test. Subrule (4) of rule 9 stipulates the
record to be maintained by every
Genetic Clinic, in respect of each man
or woman subjected to any pre­natal
diagnostic procedure/technique/test,
shall be as specified in Form ‘F’. In
the instant case, the petitioner has
admitted existence of discrepancies,
irregularities in maintenance of Form
‘F’ which has undoubtedly resulted in
causing deficiency or inaccuracy in
maintaining and preserving the record
and, therefore, as per proviso to subsection (3) of section 4 of the Act,
resulted in contravention the
provisions of section 5 or 6 of the
Act and would amount to an offence,
unless contrary is proved by the
petitioner who has conducted such
ultrasonography test.”
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15. Keeping in view the observations of the
Hon’ble Division Bench in the case of “Sujit
Govind Dange”, mentioned above, there remains no
doubt that deficiencies or inaccuracies in the
maintaining of record and Form F attract the
provisions of Section 5 or 6 of the Act. I am
bound by the Judgment of the Division Bench of
this Court.
16. When the complaint has been filed under
this Act showing the inaccuracies and deficiencies
in the keeping of record, and complainant has
documents to support disclosing sufficient grounds
to proceed in the light of provisions of this Act
and Rules, this Court cannot, before holding of
the trial, sit in Judgment whether or not the
Record has been kept properly; or Form F concerned
has been properly filled or improperly filled; or
whether or not the deficiencies pointed out are
serious or insignificant. When complaint has been
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filed pointing out deficiencies or inaccuracies,
before trial it would not be proper for this Court
to consider the arguments that what is pointed out
is no deficiency or no inaccuracy. It would be
prejudging the matter. As per Proviso of Section
4(3) “any” deficiency or inaccuracy in keeping of
complete record “shall amount to contravention” of
Section 5 or 6 “unless contrary is proved.”
Naturally, the contrary can be “proved” only at
the trial. Appropriate Authority under the Act is
Public Servant acting in discharge of official
duty and has to act with responsibility. Keeping
in view the Judgments discussed above, in such
serious matters, it would be inappropriate to
interfere when prima facie case is made out.
17. It cannot be said, at present, that there
is no sufficient ground for proceeding. Keeping in
view Aims and Objects of the Act and Scheme of the
Act and Rules referred above and stringent and
specific provisions not tolerating any (means­
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any) deficiency or inaccuracy in keeping complete
records, I am unable to accept the explanatory
arguments in defence or to invoke writ
jurisdiction, inherent power or revisional
jurisdiction to quash the proceedings at the
threshold when sufficient grounds to proceed are
made out in the complaint.
. For reasons mentioned, arguments in
favour of State have substance, and submissions
for Petitioner to quash process or Complaint need
to be discarded. Defences being raised, can be
considered at the time of trial. The Petition
stands rejected.
[A.I.S. CHEEMA, J.]
asb/MAY14
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1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
1. S.B.CR. MISC. PETITION NO. 1604/2012
DR.(SMT.) TEJ SHARMA
VS.
STATE OF RAJASTHAN
2. S.B.CR. MISC. PETITION NO. 1507/2010
INDERJEET SINGH & ANR.
VS.
STATE OF RAJASTHAN & ANR.
3. S.B.CR. MISC. PETITION NO. 1906/2011
DR.KAILASH CHANDRA KABRA
VS.
STATE OF RAJASTHAN & ANR.
4. S.B. CRL.REVISION PETITION NO. 504/2012
DR.ARUN KUMAR PARIHAR & ANR.
VS.
STATE OF RAJASTHAN & ANR.
5. S.B.CR. MISC. PETITION NO. 1011/2012
DR.(SMT.) ARUNA SINGHI
VS.
STATE OF RAJASTHAN
6. S.B.CR. MISC. PETITION NO. 1318/2012
SMT.PRAGATI GUPTA & ANR.
VS.
STATE OF RAJASTHAN & ORS.
7. S.B.CR. MISC. PETITION NO. 1605/2012
DR.SUSHIL KUMAR AASERI
VS.
STATE OF RAJASTHAN
8. S.B.CR. MISC. PETITION NO. 1606/2012
DR.S.P.GUPTA
VS.
STATE OF RAJASTHAN
9. S.B.CR. MISC. PETITION NO. 1608/2012
DR.BIHARI LAL BANSAL
VS.
STATE OF RAJASTHAN
10. S.B.CR. MISC. PETITION NO. 1668/2012
DR.MAMTA GUPTA
VS.
STATE OF RAJASTHAN
Page 367
2
11. S.B.CR. MISC. PETITION NO. 1670/2012
DR.S.P.GUPTA
VS. STATE OF RAJASTHAN
12. S.B.CR. MISC. PETITION NO. 1676/2012
DR.SURENDRA SHARMA & ANR.
VS.
STATE OF RAJASTHAN
13. S.B.CR. MISC. PETITION NO. 1677/2012
DR.BIHARI LAL BANSAL
VS. STATE OF RAJASTHAN
14. S.B.CR. MISC. PETITION NO. 1733/2012
PALI DIAGNOSTIC CLINIC
VS.
STATE OF RAJASTHAN
15. S.B.CR. MISC. PETITION NO. 1739/2012
SURESH GUPTA
VS.
STATE OF RAJASTHAN
16. S.B.CR. MISC. PETITION NO. 1740/2012
SURESH GUPTA
VS.
STATE OF RAJASTHAN
17. S.B.CR. MISC. PETITION NO. 1742/2012
DR.BANSHIDHAR GUPTA
VS.
STATE OF RAJASTHAN
18. S.B.CR. MISC. PETITION NO. 1743/2012
DR.BANSHIDHAR GUPTA
VS.
STATE OF RAJASTHAN
19. S.B.CR. MISC. PETITION NO. 1744/2012
DR.R.K.SETHI
VS.
STATE OF RAJASTHAN
20. S.B.CR. MISC. PETITION NO. 1745/2012
DR.NARESH SANKLECHA
VS.
STATE OF RAJASTHAN
21. S.B.CR. MISC. PETITION NO. 1746/2012
DR.R.K.SETHI
VS.
STATE OF RAJASTHAN
Page 368
3
22. S.B.CR. MISC. PETITION NO. 1747/2012
DR.NARESH SANKLECHA
VS.
STATE OF RAJASTHAN
23. S.B.CR. MISC. PETITION NO. 1748/2012
DR.MONIKA SETHI
VS.
STATE OF RAJASTHAN
24. S.B.CR. MISC. PETITION NO. 1826/2012
DR.RAKESH MIDHA
VS.
STATE OF RAJASTHAN
25. S.B.CR. MISC. PETITION NO. 1829/2012
DR.GURPREET SINGH
VS.
STATE OF RAJASTHAN
26. S.B.CR. MISC. PETITION NO. 1834/2012
DR.NARENDRA KUMAR & ANR.
VS.
STATE OF RAJASTHAN
27. S.B.CR. MISC. PETITION NO. 1856/2012
DR.KAUSHAL NARAYAN MUTHA
VS.
STATE OF RAJASTHAN & ANR.
28. S.B.CR. MISC. PETITION NO. 1857/2012
DR.PRAVEEN KUMAR JAIN & ANR.
VS.
STATE OF RAJASTHAN
29. S.B.CR. MISC. PETITION NO. 1864/2012
DR.RENU SETIA & ANR.
VS.
STATE OF RAJASTHAN
30. S.B.CR. MISC. PETITION NO. 1865/2012
DR.RENU SETIA & ANR.
VS.
STATE OF RAJASTHAN
31. S.B.CR. MISC. PETITION NO. 1867/2012
DR.O.P.MEWARA
VS.
STATE OF RAJASTHAN & ORS.
32. S.B.CR. MISC. PETITION NO. 1872/2012
DR.R.K.SETHI
VS. STATE OF RAJASTHAN
Page 369
4
33. S.B.CR. MISC. PETITION NO. 1912/2012
DR.SHOPAT RAI
VS.
STATE OF RAJASTHAN
34. S.B.CR. MISC. PETITION NO. 1913/2012
DR.SHOPAT RAI
VS.
STATE OF RAJASTHAN
35. S.B.CR. MISC. PETITION NO. 1914/2012
DR.SHOPAT RAI
VS.
STATE OF RAJASTHAN
36. S.B.CR. MISC. PETITION NO. 1923/2012
DR.SATYA NARAIN MITTAL
VS.
STATE OF RAJASTHAN & ORS.
37. S.B.CR. MISC. PETITION NO. 1924/2012
DR.HARNEK SINGH & ORS.
VS.
STATE OF RAJASTHAN & ORS.
38. S.B.CR. MISC. PETITION NO. 1925/2012
DR.SATYA NARAIN MITTAL
VS.
STATE OF RAJASTHAN & ORS.
39. S.B.CR. MISC. PETITION NO. 1927/2012
DR.SATYA NARAIN MITTAL
VS.
STATE OF RAJASTHAN & ORS.
40. S.B.CR. MISC. PETITION NO. 1928/2012
DR.HARNEK SINGH & ORS.
VS.
STATE OF RAJASTHAN & ORS.
41. S.B.CR. MISC. PETITION NO. 1929/2012
DR.RAJENDRA GUPTA
VS.
STATE OF RAJASTHAN
42. S.B.CR. MISC. PETITION NO. 1930/2012
DR.RAJENDRA GUPTA
VS.
STATE OF RAJASTHAN
43. S.B.CR. MISC. PETITION NO. 1931/2012
DR.RAJENDRA GUPTA
VS.
STATE OF RAJASTHAN
Page 370
5
44. S.B.CR. MISC. PETITION NO. 1939/2012
DR.VISHWANATH DAS
VS.
STATE OF RAJASTHAN
45. S.B.CR. MISC. PETITION NO. 1940/2012
DR.SATYA NARAIN MITTAL
VS.
STATE OF RAJASTHAN & ORS.
46. S.B.CR. MISC. PETITION NO. 1953/2012
DR.PRAKASH CHAND BANSAL
VS.
STATE OF RAJASTHAN
47. S.B.CR. MISC. PETITION NO. 1955/2012
DR.ANAMIKA JAIN
VS.
STATE OF RAJASTHAN
48. S.B.CR. MISC. PETITION NO. 2013/2012
DR.SHARDA TOSHNIWAL & ANR.
VS.
STATE OF RAJASTHAN & ANR.
49. S.B.CR. MISC. PETITION NO. 2154/2012
DR.RAJKUMAR GARG
VS.
STATE OF RAJASTHAN
50. S.B.CR. MISC. PETITION NO. 2179/2012
DR.RAJESH GAUR
VS.
STATE OF RAJASTHAN & ANR.
51. S.B.CR. MISC. PETITION NO. 2221/2012
DR.RAJENDRA KUMAR
VS.
STATE OF RAJASTHAN
52. S.B.CR. MISC. PETITION NO. 2226/2012
BHUPAT DESAI & ANR.
VS.
STATE OF RAJASTHAN & ORS.
53. S.B.CR. MISC. PETITION NO. 2227/2012
BHUPAT DESAI & ANR.
VS.
STATE OF RAJASTHAN & ORS.
54. S.B.CR. MISC. PETITION NO. 2238/2012
DR.HARISH KHATRI
VS.
STATE OF RAJASTHAN
Page 371
6
55. S.B.CR. MISC. PETITION NO. 2239/2012
DR,HARISH KHATRI
VS.
STATE OF RAJASTHAN
56. S.B.CR. MISC. PETITION NO. 2256/2012
FATEH CHAND & ANR.
VS.
STATE OF RAJASTHAN
57. S.B.CR. MISC. PETITION NO. 2259/2012
FATEH CHAND & ANR.
VS.
STATE OF RAJASTHAN
58. S.B.CR. MISC. PETITION NO. 2266/2012
DR.SHANKER LAL
VS.
STATE OF RAJASTHAN
59. S.B.CR. MISC. PETITION NO. 2274/2012
DR.MOOL CHAND & ANR.
VS.
STATE OF RAJASTHAN
60. S.B.CR. MISC. PETITION NO. 2279/2012
DR.KRISHAN LAL BANSAL
VS.
STATE OF RAJASTHAN & ANR.
61. S.B.CR. MISC. PETITION NO. 2280/2012
DR.KRISHAN LAL BANSAL
VS.
STATE OF RAJASTHAN & ANR.
62. S.B.CR. MISC. PETITION NO. 2282/2012
DR.VIJAY ARORA
VS.
STATE OF RAJASTHAN & ANR.
63. S.B.CR. MISC. PETITION NO. 2283/2012
DR.VIJAY PRAKASH
VS.
STATE OF RAJASTHAN & ANR.
64. S.B.CR. MISC. PETITION NO. 2284/2012
DR.VIJAY PRAKASH & ANR.
VS.
STATE OF RAJASTHAN & ANR.
65. S.B.CR. MISC. PETITION NO. 2285/2012
DR.SHAILEE AGARWAL
VS.
STATE OF RAJASTHAN
Page 372
7
66. S.B.CR. MISC. PETITION NO. 2286/2012
BHANWAR LAL & ANR.
VS.
STATE OF RAJASTHAN
67. S.B.CR. MISC. PETITION NO. 2287/2012
DR.VIJAY ARORA
VS.
STATE OF RAJASTHAN & ANR.
68. S.B.CR. MISC. PETITION NO. 2293/2012
DR.VIJAY MAKKAD
VS.
STATE OF RAJASTHAN & ORS.
69. S.B.CR. MISC. PETITION NO. 2295/2012
DR.VIJAY MAKKAD
VS.
STATE OF RAJASTHAN & ORS.
70. S.B.CR. MISC. PETITION NO. 2318/2012
DR.GOPAL LADDHA
VS.
STATE OF RAJASTHAN
71. S.B.CR. MISC. PETITION NO. 2319/2012
DR.KAUSHAL KISHORE SHARMA
VS.
STATE OF RAJASTHAN
72. S.B.CR. MISC. PETITION NO. 2324/2012
DR.ARVIND JAIN & ANR.
VS.
STATE OF RAJASTHAN & ORS.
73. S.B.CR. MISC. PETITION NO. 2325/2012
DR.ANIL CHOUDHARY
VS.
STATE OF RAJASTHAN & ORS.
74. S.B.CR. MISC. PETITION NO. 2336/2012
DR.P.S.KHURANA
VS.
STATE OF RAJASTHAN & ANR.
75. S.B.CR. MISC. PETITION NO. 2337/2012
DR.RAKESH BANSAL & ANR.
VS.
STATE OF RAJASTHAN & ANR.
76. S.B.CR. MISC. PETITION NO. 2340/2012
DR.P.S.KHURANA
VS.
STATE OF RAJASTHAN & ANR.
Page 373
8
77. S.B.CR. MISC. PETITION NO. 2341/2012
DR.P.S.KHURANA
VS.
STATE OF RAJASTHAN & ANR.
78. S.B.CR. MISC. PETITION NO. 2342/2012
DR.PREM RATAN CHHIMPA
VS.
STATE OF RAJASTHAN & ORS.
79. S.B.CR. MISC. PETITION NO. 2343/2012
DR.PREM RATAN CHHIMPA
VS.
STATE OF RAJASTHAN & ORS.
80. S.B.CR. MISC. PETITION NO. 2346/2012
DR.RAKESH BANSAL
VS.
STATE OF RAJASTHAN & ANR.
81. S.B.CR. MISC. PETITION NO. 2353/2012
DR.PUKHRAJ BOHRA
VS.
STATE OF RAJASTHAN
82. S.B.CR. MISC. PETITION NO. 2370/2012
DR.RAMESH JANGID
VS. STATE OF RAJASTHAN
83. S.B.CR. MISC. PETITION NO. 2391/2012
BHANWAR LAL & ANR.
VS.
STATE OF RAJASTHAN
84. S.B.CR. MISC. PETITION NO. 2426/2012
DR.ANIL CHOUDHARY
VS.
STATE OF RAJASTHAN & ORS.
85. S.B.CR. MISC. PETITION NO. 2427/2012
DR.ANIL CHOUDHARY
VS.
STATE OF RAJASTHAN & ORS.
86. S.B.CR. MISC. PETITION NO. 2428/2012
DR.JAIRAJ YADAV
VS.
STATE OF RAJASTHAN & ORS.
87. S.B.CR. MISC. PETITION NO. 2495/2012
DR. SHYAM SUNDER BANSHAL
VS.
STATE OF RAJASTHAN & ANR.
Page 374
9
88. S.B.CR. MISC. PETITION NO. 2496/2012
DR. TOSHER S. CONTRACTOR
VS.
STATE OF RAJASTHAN
89. S.B.CR. MISC. PETITION NO. 2497/2012
DR. TOSHER S. CONTRACTOR
VS.
STATE OF RAJASTHAN
90. S.B.CR. MISC. PETITION NO. 2521/2012
DR.MAHAVEER PRASAD BANSAL
VS.
STATE OF RAJASTHAN
91. S.B.CR. MISC. PETITION NO. 2522/2012
DR.MAHAVEER PRASAD BANSAL
VS.
STATE OF RAJASTHAN
92. S.B.CR. MISC. PETITION NO. 2523/2012
DR.MAHAVEER PRASAD BANSAL
VS.
STATE OF RAJASTHAN
93. S.B.CR. MISC. PETITION NO. 2551/2012
DR. BHARTI BANSAL
VS.
STATE OF RAJASTHAN
94. S.B.CR. MISC. PETITION NO. 2552/2012
DR. BHARTI BANSAL
VS.
STATE OF RAJASTHAN
95. S.B.CR. MISC. PETITION NO. 2557/2012
DR. VISHAL GUPTA & ORS.
VS.
STATE OF RAJASTHAN & ANR.
96. S.B.CR. MISC. PETITION NO. 2570/2012
DR.RAJENDRA KUMAR & ANR.
VS.
STATE OF RAJASTHAN
97. S.B.CR. MISC. PETITION NO. 2573/2012
DR.PRATAP MIDDHA
VS.
STATE OF RAJASTHAN
98. S.B.CR. MISC. PETITION NO. 2575/2012
DR.H.M.KELA
VS.
STATE OF RAJASTHAN
Page 375
10
99. S.B.CR. MISC. PETITION NO. 2576/2012
DR.H.M.KELA
VS.
STATE OF RAJASTHAN
100. S.B.CR. MISC. PETITION NO. 2577/2012
DR.H.M.KELA
VS.
STATE OF RAJASTHAN
101. S.B.CR. MISC. PETITION NO. 2636/2012
DR.JAGDISH KOTHARI
VS.
STATE OF RAJASTHAN
102. S.B.CR. MISC. PETITION NO. 2637/2012
NEW KRISHNA SONOGRAPHY CENTRE &
ANR.
VS.
STATE OF RAJASTHAN
103. S.B.CR. MISC. PETITION NO. 2713/2012
DR.SATYA DEO SINGH MEHTA
VS.
STATE OF RAJASTHAN
104. S.B.CR. MISC. PETITION NO. 2744/2012
SURESH KATARIA & ANR.
VS.
STATE OF RAJASTHAN & ANR.
105. S.B.CR. MISC. PETITION NO. 2900/2012
PRACHI MEDICAL CARE & ORS.
VS.
STATE OF RAJASTHAN
106. S.B.CR. MISC. PETITION NO. 2944/2012
DR.ARVIND SHARMA
VS.
STATE OF RAJASTHAN & ORS.
107. S.B.CR. MISC. PETITION NO. 2964/2012
DR.MAHAVEER PRASAD BANSAL & ANR.
VS.
STATE OF RAJASTHAN & ORS.
108. S.B.CR. MISC. PETITION NO. 170/2013
SMT.NUTAN PARMAR & ANR.
VS.
STATE OF RAJASTHAN
109. S.B.CR. MISC. PETITION NO. 183/2013
DR.MANJULA GUPTA
VS.
STATE OF RAJASTHAN
Page 376
11
110. S.B.CR. MISC. PETITION NO. 262/2013
DR.HARMEET KOCHAR
VS.
STATE OF RAJASTHAN
111. S.B.CR. MISC. PETITION NO. 281/2013
KANWALJEET SINGH
VS.
STATE OF RAJASTHAN & ORS.
112. S.B.CR. MISC. PETITION NO. 348/2013
DR.ANAMIKA JAIN
VS.
STATE OF RAJASTHAN
113. S.B.CR. MISC. PETITION NO. 349/2013
DR.ANAMIKA JAIN
VS.
STATE OF RAJASTHAN
114. S.B.CR. MISC. PETITION NO. 417/2013
DR.PRAMOD BEDI
VS.
STATE OF RAJASTHAN & ANR.
115. S.B.CR. MISC. PETITION NO. 443/2013
DR.PARMOD BEDI
VS.
STATE OF RAJASTHAN & ANR.
116. S.B.CR. MISC. PETITION NO. 472/2013
DR.PARMOD BEDI
VS.
STATE OF RAJASTHAN & ANR.
117. S.B.CR. MISC. PETITION NO. 490/2013
SNEH HOSPITAL & MATERNITY CENTER & ORS.
VS.
STATE OF RAJASTHAN
118. S.B.CR. MISC. PETITION NO. 646/2013
DR.SHRAVAN KUMAR MODI
VS.
STATE OF RAJASTHAN & ANR.
119. S.B.CR. MISC. PETITION NO. 665/2013
DR.GOPAL CHAND GANDHI
VS.
STATE OF RAJASTHAN
120. S.B.CR. MISC. PETITION NO. 691/2013
DR.PRADEEP GARG
VS.
STATE OF RAJASTHAN
Page 377
12
121. S.B.CR. MISC. PETITION NO. 716/2013
DR.SYMAN
VS.
STATE OF RAJASTHAN
122. S.B.CR. MISC. PETITION NO. 739/2013
DR.PRADEEP GARG
VS.
STATE OF RAJASTHAN
123. S.B.CR. MISC. PETITION NO. 740/2013
DR.PRADEEP GARG
VS.
STATE OF RAJASTHAN
124. S.B.CR. MISC. PETITION NO. 782/2013
DR.PRAMOD BEDI
VS.
STATE OF RAJASTHAN & ANR.
125. S.B.CR. MISC. PETITION NO. 797/2013
DR.KAILASH CHANDRA SONGARA
VS.
STATE OF RAJASTHAN
126. S.B.CR. MISC. PETITION NO. 809/2013
DR.K.K.RASTOGI
VS.
STATE OF RAJASTHAN
127. S.B.CR. MISC. PETITION NO. 810/2013
DR.K.K.RASTOGI
VS.
STATE OF RAJASTHAN
128. S.B.CR. MISC. PETITION NO. 811/2013
DR.K.K.RASTOGI
VS.
STATE OF RAJASTHAN
129. S.B.CR. MISC. PETITION NO. 812/2013
DR.K.K.RASTOGI
VS.
STATE OF RAJASTHAN
130. S.B.CR. MISC. PETITION NO. 814/2013
DR.KAILASH CHANDRA SONGARA
VS.
STATE OF RAJASTHAN
131. S.B.CR. MISC. PETITION NO. 927/2013
RAJA RAM
VS.
STATE OF RAJASTHAN & ANR.
Page 378
13
132. S.B.CR. MISC. PETITION NO. 934/2013
RAJA RAM
VS.
STATE OF RAJASTHAN & ANR.
133. S.B.CR. MISC. PETITION NO. 935/2013
RAJA RAM
VS.
STATE OF RAJASTHAN & ANR.
134. S.B.CR. MISC. PETITION NO. 959/2013
DR.ARCHANA JAIN
VS.
STATE OF RAJASTHAN & ORS.
135. S.B.CR. MISC. PETITION NO. 1337/2013
AMIT X-RAY & LAB
VS.
STATE OF RAJASTHAN & ANR.
136. S.B.CR. MISC. PETITION NO. 1369/2013
DR.BHIKHA RAM
VS.
STATE OF RAJASTHAN
137. S.B.CR. MISC. PETITION NO. 1370/2013
DR.BHIKHA RAM
VS.
STATE OF RAJASTHAN
138. S.B.CR. MISC. PETITION NO. 1476/2013
DR.R.C.MEHTA
VS.
STATE OF RAJASTHAN
139. S.B.CR. MISC. PETITION NO. 1769/2013
DR. H.M. KELA
VS.
STATE OF RAJASTHAN
140. S.B.CR. MISC. PETITION NO. 2270/2013
DR. AMAR SETIA
VS.
STATE OF RAJASTHAN
141. S.B.CR. MISC. PETITION NO. 2271/2013
DR. RENU SETIA
VS.
STATE OF RAJASTHAN
142. S.B.CR. MISC. PETITION NO. 199/2014
DR.PRATHVI SINGH
VS.
STATE OF RAJASTHAN & ANR.
Page 379
14
143. S.B.CR. MISC. PETITION NO. 1288/2014
DR.SUDARSHAN GOSWAMI
VS.
STATE OF RAJASTHAN & ANR.
144. S.B.CR. MISC. PETITION NO. 3250/2014
DR.RASHMI RAJVANSHI
VS.
STATE OF RAJASTHAN
145. S.B.CR. MISC. PETITION NO. 163/2015
DR.HARISH MEHTA & ANR.
VS.
STATE OF RAJASTHAN
146. S.B.CR. MISC. PETITION NO. 201/2015
SATISH CHANDRA AGARWAL & ANR.
VS.
STATE OF RAJASTHAN
147. S.B.CR. MISC. PETITION NO. 202/2015
DR.NEERJA JHAMRIA
VS.
STATE OF RAJASTHAN
148. S.B.CR. MISC. PETITION NO. 203/2015
DR.PRAVEEN SHARMA
VS.
STATE OF RAJASTHAN
149. S.B.CR. MISC. PETITION NO. 371/2015
DR.PRAVEEN GARG
VS.
STATE OF RAJASTHAN
150. S.B.CR. MISC. PETITION NO. 533/2015
ABID MODI & ANR.
VS.
STATE OF RAJASTHAN & ANR.
151. S.B.CR. MISC. PETITION NO. 670/2015
DR.MITHLESH HARSH
VS.
STATE OF RAJASTHAN
152. S.B.CR. MISC. PETITION NO. 830/2015
DR.MITHLESH
VS.
STATE OF RAJASTHAN
153. S.B.CR. MISC. PETITION NO. 838/2015
AMOLAK CHAND @ ANN RAJ
VS.
STATE OF RAJASTHAN & ANR.
Page 380
15
154. S.B.CR. MISC. PETITION NO. 848/2015
AMOLAK CHAND @ ANN RAJ
VS.
STATE OF RAJASTHAN & ANR.
155. S.B.CR. MISC. PETITION NO. 1629/2015
SR. PRITHVI SINGH & ANR.
VS.
STATE OF RAJASTHAN & ANR.
156. S.B.CR. MISC. PETITION NO. 1668/2015
DR. ANAMIKA JAIN
VS.
STATE OF RAJASTHAN
157. S.B.CR. MISC. PETITION NO. 1832/2015
DR. STAYDEV SINGH MEHTA
VS.
STATE OF RAJASTHAN
Date of Order : 25th August 2015
PRESENT
HON’BLE MR JUSTICE VIJAY BISHNOI
Mr. Mahesh Bora, Sr. Advocate assisted by
Mr. Nishant Bora,
Mr. J.S. Choudhary, Sr. Advocate assisted by
Mr. Pradeep Choudhary,
Mr. B.L. Maheshwari, Sr. Advocate assisted by
Mr. R.K. Rathi,
Mr. Pankaj Sharma,
Mr. S.D. Purohit,
Mr. M.K. Garg,
Mr. Pankaj Gupta,
Mr. Sunil Joshi,
Mr. Ravi Bhansali,
Mr. Vineet Jain,
Mr. Pradeep Shah,
Mr. RDDS Kharlia,
Mr. V.K. Mathur,
Mr. Trilok Joshi,
Mr. B.S. Rathore,
Dr. S.S. Jodha,
Dr. Sachin Acharya,
Mr. S.K. Verma,
Mr. L.D. Khatri,
Mr. Rajendra Katariya,
Mr. Anuj Sahlot,
Mr. DLR Vyas,
Mr. Vinay Kothari,
Mr. Vinay Srivastava,
Dr. Nupur Bhati,
Mr. G.J. Gupta,
Page 381
16
Mr. S.P. Sharma,
Mr. D.S. Thind,
Mr. H.S. Shrimali,
Mr. M.M. Dhera,
Mr. Dhanesh Saraswat,
Mr. L.R. Punia,
Mr. R.J. Punia,
Mr. N.K. Bohra,
Mr. Sikander Khan,
Mr. Richin Surana, for the petitioners
Mr. Rajesh Panwar, Addl. Advocate General
assisted by Mr. Sunil Joshi,
Mr. Rajesh Bhati, for the respondent – State
BY THE COURT:
These criminal misc. petitions
under section 482 CrPC, including
S.B.Cr.Revision Petition No.504/2012 have
been filed by the petitioners being aggrieved
with the proceedings pending against them
under the provisions of Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) PCPNDT Act (hereinafter
referred to as ‘the PCPNDT Act’). In all the
cases, complaints have been filed against the
petitioners under section 28 of the PCPNDT
Act with the allegations that the petitioners
have contravened the provisions of the PCPNDT
Act and the Rules made thereunder known as
The Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection)
Rules, 1996 (hereinafter after referred to as
‘the Rules of 1996’). In some of the cases,
even charges have been framed by the courts
Page 382
17
below and the revision petitions have also
been dismissed by the revisional courts. In
some of the cases, cognizance has been taken
and the revision petitions have been
dismissed by the revisional courts. In some
of the cases, the petitioners have challenged
the order of taking cognizance before this
Court by way of these criminal misc.
petitions, whereas in some of the cases, the
petitioners have directly challenged the
complaints. The criminal revision petition
504/2012 is filed against the order of
framing charge against the petitioners for
the offences under sections 3(1) and 23(1) of
the PCPNDT Act.
Since common controversy is
involved in all these cases, the same are
tagged with each other by different orders
passed by this Court and, therefore, they are
being decided together by this common order.
Learned counsel for the petitioners
have challenged the proceedings pending
against them under the PCPNDT Act mainly on
the following grounds;
(i) That the allegations levelled
against the petitioners in the complaints are
mostly in respect of alleged irregularities
Page 383
18
committed by them in maintenance of records.
The other allegations are also in respect of
minor irregularities such as non-availability
of copy of the PCPNDT Act at the time of
inspection, non-display of notice in the
premises declaring that disclosure of sex of
foetus is prohibited under law and nondisplay of name and designation on the dress
worn by the nurse, employees and other
persons associated with the Genetic
Counselling Centre, Genetic Laboratory,
Genetic Clinic, Ultrasound Clinic, Imaging
Centre etc. It is contended that the said
irregularities are minor in nature and cannot
be equated with the major offences as
prescribed in sections 5 and 6 of the Act.
It is argued that such minor offences do not
fall within the ambit of section 23 of the
PCPNDT Act and only fall within the ambit of
section 25 of the said Act.
It is argued that the legislature
in its wisdom enacted section 25 for the
aforesaid category of offences and the
proposition of law on this point is very
clear that no provision can make the other
provision redundant or otiose. Merely because
of use of common expression in sections 23
Page 384
19
and 25, the said authorities are not allowed
to apply section 23 with virtually closed eye
in all cases involving the cases of minor
irregularities. The consequences of both
these provisions are very different and as
such, the consequences of section 23 are very
harsh, whereas the consequences of section 25
are not that harsh and of course, section 468
of the CrPC providing bar to taking
cognizance after lapse of the period of
limitation also comes into play depending
upon the provision, which is attracted. So
far as section 25 of the PCPNDT Act is
concerned, the period of limitation is one
year because the offence is punishable with
imprisonment not exceeding one year. But so
far as section 23 is concerned, the period of
limitation is three years as offence is
punishable with an imprisonment exceeding one
year. The authority in question in order to
avoid the application of section 468(2)(b) of
CrPC filed the complaint under section 23 of
the PCPNDT Act on wholly wrong and
misconceived basis.
(ii) That the complaints against the
petitioners alleging contravention of the
provisions of the PCPNDT Act and Rules made
Page 385
20
thereunder filed by the persons, who are not
authorized to file the complaint and,
therefore, as per the provisions of section
28 of the PCPNDT Act, the courts below have
erred in taking cognizance against the
petitioners.
(iii) That non-reaching of Form-F on the
fifth day of the month cannot be termed as a
violation of sub-rule (8) of Rule 9 of the
Rules of 1996 as the Rule speaks of only
sending such Form and not that the said Form
should be reached up to fifth day of the
month.
(iv) That in some of the cases, the
trial court without even condoning the delay
in filing the complaints, took cognizance
against the petitioners, though admittedly,
those complaints were filed after three years
from the date of inspection. It is contended
that the trial court before entertaining the
time barred complaints is required to hear
the accused before condoning the delay. In
support of the above contentions, learned
counsels for the petitioners have placed
reliance on decisions of this Court in Panney
Singh & Ors. vs. State of Rajasthan, 1980
CR
I.L.J.339 as well as the decision of
Page 386
21
Allahabad High Court in Ravi Dutt Sharma vs.
State of U.P., 2001 CRI.L.J.4408.
Per contra, Mr Rajesh Panwar –
learned Additional Advocate General has
argued that none of the provisions of the
PCPNDT Act classifies the offences as major
and minor. Section 23 of the PCPNDT Act deals
with certain class of persons and it is
provided that if either of the persons
referred in that section, contravenes any
provisions of the Act or Rules made
thereunder, shall be punishable with
imprisonment for a term which may extend to
three years or with fine. Whereas section 25
is in relation to those persons, who
contravene any of the provisions of this Act
or any rule made thereunder, for which no
penalty has been elsewhere provided in this
Act.
It is further contended that the
exigencies to be punishable under section 23
of the PCPNDT Act are clear, unambiguous and
admits of no doubt. It is provided that any
Medical Geneticist, Gynecologist, registered
Medical Practitioner or any person who owns a
genetic counseling centre, a genetic
laboratory or a genetic clinic or is employed
Page 387
22
in such a centre, laboratory or clinic and
renders his professional or technical
services to or at such centre, laboratory or
clinic, whether on an honorary basis or
otherwise, and who contravenes any of the
provisions of this Act or rules made
thereunder shall be liable to be punished.
Thus, the class of persons and nature of
violation of provisions of the Act and Rules
thereunder are well defined under section 23
of the PCPNDT Act.
So far as section 25 of the PCPNDT
Act is concerned, it starts viz “whoever
contravenes any of the provisions of this Act
or any rules made thereunder for which no
penalty has been elsewhere provided in this
Act. The section is clear in its language and
object as it starts as penalty for
contravention of the provisions of the Act or
rules for which no specific punishment is
provided.
It is argued that class of
defaulters have been defined in sections 23
and 25 of the PCPNDT Act separately and
independently as sections 23 and 25 classify
the offenders and not the offences and,
therefore, the contention of the petitioners
Page 388
23
that section 25 deals with the minor offences
such as maintenance of records etc. is not
tenable.
Learned Additional Advocate General
has further argued that all the complaints
against the petitioners have been filed by
competent persons i.e. either by the
appropriate authority or the officer
authorized by the appropriate authority and,
therefore, it cannot be said that the trial
courts have taken cognizance against the
petitioners without their being any complaint
by the authorized persons.
Learned Additional Advocate General
has further argued that non-maintenance of
the records cannot be termed as a procedural
lapse and is always an independent offence
for contravention of sections 5 or 6 of the
PCPNDT Act.
Learned Additional Advocate General
has further argued that in none of the cases,
the concerned court has taken cognizance
against any person on time barred complaints
without condoning the delay. It is contended
that as per section 473 CrPC, the trial court
has every power to extend the period of
limitation and can take the cognizance of
Page 389
24
offence after the expiry of limitation if it
is satisfied on the facts and cricumstances
of the case, the delay has been properly
explained or that it is necessary to do so in
the interest of justice. It is also contended
that there is no provision under the CrPC
which requires that before extension of
period of limitation, a Magistrate is
required to give opportunity of hearing to
the accused and therefore, the contention of
the petitioners to the effect that before
condoning the delay in filing the complaint,
no opportunity was provided to them is devoid
of force.
Learned Additional Advocate General
has also argued that in most of the cases,
the petitioners have challenged the order of
taking cognizance or framing charges by way
of revision petitions before the revisional
court and those revision petitions have been
dismissed and now they have filed these
criminal misc. petitions under section 482
CrPC, which are in fact second revision
petitions and those second revision petitions
are not maintainable as per the provisions of
section 397(3) CrPC and, therefore, they are
liable to be quashed and set aside.
Page 390
25
Learned Additional Advocate General
has also argued that in some of the cases the
petitioners have directly approached this
Court under section 482 CrPC against the
order of taking cognizance and those
petitions are also not maintainable because
the said orders are revisable and without
availing the remedy of revision, these
criminal misc. petitions are not
maintainable. Learned Additional Advocate
General has placed reliance on decision of
Hon’ble Supreme Court in Mohit alias Sonu &
Anr. vs. State of U.P. & Anr., 2013(3)
Criminal Court Cases 851 (S.C.) and of this
Court in Ashish Singhal vs. State of
Rajasthan & Anr., [2014] 0 Supreme (Raj) 467.
Heard learned counsels for the
rival parties and perused the material
available on record.
For the purpose of dealing with the
arguments of the learned counsels for the
petitioners to the effect that the offences
relating to non-maintenance of record etc.
are minor offences. it is apposite to refer
to the provisions of sections 23 and 25 of
the PCPNDT Act, which are as follows:
“23. Offences and penalties.–(1) Any medical
Page 391
26
geneticist, gynaecologist, registered medical
practitioner or any person who owns a Genetic
Counselling Centre, a Genetic Laboratory or a
Genetic Clinic or is employed in such a Centre,
Laboratory or Clinic and renders his professional
or technical services to or at such a Centre,
Laboratory or Clinic, whether on an honorary
basis or otherwise, and who contravences any of
the provisions of this Act or rules made
thereunder shall be punishable with
imprisonment for a term which may extend to
three years and with fine which may extend to
ten thousand rupees and on any subsequent
conviction, with imprisonment which may
extend to five years and with fine which may
extend to fifty thousand rupees.
(2) The name of the registered medical
practitioner shall be reported by the Appropriate
Authority to the State Medical Council
concerned for taking necessary action including
suspensioni of the registration if the charges are
framed by the court and till the case is disposed
of an on conviction for removal of his name
from the register of the Council for a period of
five years for the first offence and permanently
for the subsequent offence.
(3) Any person who seeks the aid of any
Genetic Counselling Centre, Genetic Laboratory,
Genetic Clinic or ultrasound clinic or imaging
clinic or of a medical geneticists, gynaecologist,
sonologist or imaging specialist or registered
medical practitoner or any other person for sex
selection or for conducting pre-natal diagnostic
gechniques on any pregnant woman for the
purposes other than those specified in subsection (2) of section 4, he shall be punishable
with imprisonment for a term which may extend
to three years and with fine which may extend
Page 392
27
to fifty thousand rupees for the first offence and
for any subsequent offence with imprisonment
which may extend to five years and with fine
which may extend to one lakh rupees.
(4) For the removal of doubts, it is hereby
provided, that the provisions of sub-section (3)
shall not apply to the woman who was
compellted to undergo such diagnostic
techniques or such selection.
25. Penalty for contravention of the
provisions of the Act or rules for which no
specific punishment is provided.–Whoever
contravenes any of the provisions of this Act or
any rules made thereunder, for which no penalty
has been elsewhere provided in this Act, shall be
punishable with imprisonment for a term which
may extend to three months or with fine, which
may extend to one thousand rupees or with both
and in the case of continuing contravention with
an additional fine which may extend to five
hundred rupees for every day during which such
contravention continues after conviction for the
first such contravention.”
From bare reading of section 23 of
the PCPNDT Act, it is clear that it referes
to a class of persons, who may violate the
provisions of the Act and Rules thereunder
and penalty has been provided for such
violations. However, section 25 of the PCPNDT
Act is in reference to any person, who may
contravene any of the provisions of the
PCPNDT Act or the Rules made thereunder, but
for which no penalty has been elsewhere
Page 393
28
provided in the PCPNDT Act.
It is not in dispute that all the
petitioners fall within the category of class
of persons as referred to in section 23 of
the PCPNDT Act. The scheme of PCPNDT Act does
not classify offences. The provisions of
sections 23 and 25 classify the offenders and
not the offences. At one hand, specific
penalty has been provided for certain class
of persons, who are referred in section 23 on
contravention of any provision of the PCPNDT
Act and the Rules made thereunder, whereas no
penalty has been provided for others, if they
do the same and section 25 is there to take
care of them.
A careful examination of the
provisions of the PCPNDT Act and the Rules of
1996 will reveal that no penalty has been
provided in the PCPNDT Act for many class of
persons and if such class of persons
contravene the provisions of the PCPNDT Act
or rules made thereunder, the provisions of
section 25 will applicable in their cases.
For example, in section 3A no penalty has
been provided for a person including a
specialist or a team of specialists in the
field of infertility, who shall conduct or
Page 394
29
cause to be conducted or aid in conducting by
himself or by any other person, sex selection
on a woman or a man or on both though it is
specifically barred. Similarly, in section 3B
no penalty has been provided for a person,
who sells any ultrasound machine or imaging
machine or scanner or any other equipment
capable of detecting sex of foetus to any
unregistered Genetic Counselling Centre, etc.
In the case of the petitioners, section 23 of
the PCPNDT Act is only applicable as all the
petitioners belong to the class of persons as
referred to in this section. Therefore, the
contention of the petitioners to the effect
that their action of contravening the
provisions of the PCPNDT Act and rules made
thereunder may be treated as minor offence is
bereft of any merit and liable to be
rejected.
The next argument of the
petitioners that the complaints against them
have not been filed by the appropriate
authority or by the authorized person is
without any merit because in every complaint,
the person, who has submitted the complaint
has clearly mentioned his/her authority to
file the complaint. It is worthwhile to note
Page 395
30
that every complaint is not required to be
filed by the appropriate authority only and
any person authorized by the appropriate
authority can also file complaint. The Full
Bench of Gujarat High Court in Suo Motu vs.
State of Gujarat reported in 2009 CriLJ 721
has held as under:
“5. A conjoint reading of the above provisions
would clearly indicate a well-knit legislative
scheme for ensuring a strict and vigilant
enforcement of the provisions of the Act directed
against female foeticide and misuse of pre-natal
diagnostic techniques. In fact, the use of those
techniques are restricted to the purpose of
detection of any of the abnormalities or diseases
enumerated in sub-section (2) of section 4 of the
Act. The provisions are stricter in case of
conduct of pre-natal diagnostic techniques on a
pregnant woman, requiring her written consent
and determination of sex of a foetus is prohibited
by the provisions of sections 5 and 6.
Constitution of ‘Appropriate Authority’ under
section 17 is clearly meant to ensure proper and
vigorous implementation of the Act; and it is
expressly prescribed as one of its functions to
take legal action against the use of any sexselection technique. That authority, where
appointed for the whole of a State or Union
Te
rritory, has to consist of three members. And
when it is appointed for a part of the State or a
Union Territory, it could consist of an officer of
such rank as the Government concerned may
deem fit.”
So far as the contention of the
Page 396
31
petitioners that non-reaching of Form-F to
the appropriate authority before the fifth
day of the month cannot be termed as a
contravention of sub-rule (8) of Rule 9 is
concerned, the same is also liable to be
rejected in view of the decision of
Coordinate Bench of this Court at Jaipur
Bench in S.B.Cr.Misc. Petition No.1828/2013,
Dr. Ravi Mohan Mahawar vs. State of Rajasthan
and Anr. and a bunch of criminal misc.
Petitions decided on 07.07.2015, wherein it
is held that the violation of various
provisions of the PCPNDT Act and rules made
thereunder in reference to Form ‘F’ and other
illegalities cannot be ignored. The relevant
portion of the order dated 07.07.2015 is
quoted hereunder:
“The other common argument raised by the
learned counsel for petitioners was in reference
to Form ‘F’. It was submitted that incomplete or
non-filling of Form ‘F’ does not amount to
offence. It is looking to the fact that Form ‘F’
can be submitted in the department on or before
appointed date, thus can be filled at any time. I
do not find substance in this argument. When
Form ‘F’ is to be filled before diagnosis, then
requirement aforesaid cannot be ignored. It
cannot be that details of the patient may be
noted on the loose paper and then filled in Form
‘F’ after lapse of few days. In that eventuality,
how signature/thumb impression of the patient
Page 397
32
would be obtained on the Form. It cannot be on
a blank Form. Form ‘F’ is to be filled so that all
21 the details of each patient are maintained and
are duly verified by her by putting thumb
impression or signature on the Form. In view of
above, I am unable to accept judgment of
Bombay High Court in the case of Dr. Alka
(supra) wherein filling of Form ‘F’, after few
days, is held to be permissible. The violation of
various provisions of the Act and Rules made
thereunder in reference to Form ‘F’ and other
illegalities cannot be ignored. The complaint so
as the order of cognizance and even order of
revisional court cannot be quashed on the
aforesaid ground.”
Full Bench of Gujarat High Court in
Suo Motu vs. State of Gujarat (supra) has
also taken into consideration the matter
regarding defficiency and inacuracy in
keeping the record in prescribed manner and
held as under:
“(iv) Deficiency or inaccuracy in filling
Form F prescribed under Rule 9 of the
Rules made under the PNDT Act, being a
deficiency or inaccuracy in keeping
record in the prescribed manner, it is not
a procedural lapse but an independent
offence amounting to contravention of
the provisions of section 5 or 6 of the
PNDT Act and has to be treated and tried
accordingly. It does not, however, mean
that each inaccuracy or deficiency in
maintaining the requisite record may be
as serious as violation of the provisions of
section 5 or 6 of the Act and the Court
Page 398
33
would be justified, while imposing
punishment upon conviction, in taking a
lenient view in cases of only technical,
formal or insignificant lapses in filling up
the forms. For example, not maintaining
the record of conducting ultrasonography
on a pregnant woman at all or filling up
incorrect particulars may be taken in all
seriousness as if the provisions of section
5 or 6 were violated, but incomplete
details of the full name and address of the
pregnant woman may be treated leniently
if her identity and address were otherwise
mentioned in a manner sufficient to
identify and trace her.”
This Court is of the opinion that
in the cases of only technical, formal or
insignificant lapses in filling up the forms
or maintenance of record, the trial court can
take a linient view while imposing punishment
upon conviction.
So far as another contention raised
on behalf of the petitioners to the effect
that the trial court has taken cognizance
against the petitioners on time barred
complaints without affording opportunity of
hearing to them, is also considered but for
rejection only.
Section 473 CrPC empowers the court
to extend period of limitation in certain
cases if it is satisfied on the facts and in
Page 399
34
the circumstances of the case that the delay
has been properly explained or that it is
necessary so to do in the interest of
justice.
In S.B.Cr. Misc. Petition
Nos.838/2015, 848/2015, 716/2013 and
670/2015, the trial court, after taking into
consideration the application under section
473 CrPC has found that the reasons for
filing the complaint with delay are
satisfactorily explained, therefore, before
taking cognizance, accepted the application
for extension of time while reserving the
right of the accused-persons to raise
objection regarding condoning the delay.
Later on when the accused-persons appeared
before it, the trial court has considered the
objections raised by them regarding delay and
decided the same.
In S.B.Cr.Misc. Petition Nos.
838/2015, 848/2015 and 670/2015, the
petitioners also approached the revisional
court against the rejection of their
objections regarding the condonation of delay
and the revisional court has rejected the
revision petitions. It is noticed that in
those revision petitions, the petitioners
Page 400
35
have not taken this ground that before
condoning the delay, no opportunity of
hearing was provided to them.
Be that as it may, the trial court
before taking cognizance against the
petitioners of the above mentioned petitions,
had condoned the delay after satisfying
itself from the reasons given in the
application for extension of time under
section 473 CrPC. Hence, no illegality can be
found in the orders passed by the trial
court.
Many of the petitioners have
approached this Court under section 482 CrPC
aganist the complaints or orders of taking
cognizance or framing of charges without
filing the revision petitions before the
revisional courts. The Hon’ble Supreme Court
in Mohit alias Sonu & Anr. vs. State of U.P.
& Anr.,(supra) has held as under:
“27. The intention of the Legislature
enacting the Code of Criminal Procedure
and the Code of Civil Procedure vis-a-vis
the law laid down by this Court it can safely
be concluded that when there is a specific
remedy provided by way of appeal or
revision the inherent power under Section
482 Cr.P.C. or Section 151 CPC cannot and
should not be restored to.”
Page 401
36
Thus, law laid down by the Hon’ble Supreme
Court in above referred case also disentitles
those petitioners to get any relief from this
Court under section 482 CrPC.
In some of the cases, the
petitioners have approached the revisional
courts against the orders of taking
cognizance or framing of charges and the
revisional courts have dimsissed those
revision petitions. However, the petitioners
have challenged the orders of revisional
court by way of criminal misc. petitions.
Essentially the criminal misc. petitions
filed by the petitioners against the orders
of the revisional courts are in fact second
revision petitions, which are specifically
barred as per the provisions of section 397
(3) CrPC.
A Coordinate Bench of this Court in
Ashish Singhal vs. State of Rajasthan & Anr.
(supra) has held as under:
“It would, further, be necessary to observe that
after exhausting the remedy of revision, a
petition under Section 482 of Cr.P.C. would not
be maintainable except in exceptional cases. It is
otherwise considered to be nothing but a second
revision petition barred by the provisions of
Cr.P.C., I do not find that a case of exceptional
Page 402
37
nature is made out for causing interference in the
order of Revisional Court to entertain this
petition under Section 482 of Cr.P.C., thus for all
these reasons and finding no merit in this
criminal misc. petition, it is dismissed.”
In the Cr. Misc. Petitions filed
against the orders of revisional courts, the
learned counsels have failed to show any
exceptional circumstances to maintain these
petitions, therefore, the same are also not
liable to be entertained.
I have also scanned the material
available on record in S.B.Cr.Revision
Petition No.504/2012 and found that the
petitioners have filed this revision petition
against the order passed by the Special
Additional Chief Judicial Magistrate (PCPNDT
Act Cases) Jodhpur Metropolitan without
filing the revision petition before the
concerned revisional court. Hence, the same
is not maintainable. Otherwise also, the
Special ACJM (PCPNDT Act Cases), after taking
into consideration the entire material
available on record has ordered for framing
of charges against the petitioners for the
offence punishable under section 3(1) and 23
(1) of the PCPNDT Act and after going through
the material available on record, this Court
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38
if of the opinion that sufficient evidence is
available on record to frame aforementioned
charges against the petitioners.
The judgments cited by the learned
counsels for petitioners need no elaboration
as facts of those cases are distinguishable
so as the ratio propounded therein.
In view of the above discussions, I
do not find any merit in these petitions.
Hence, all the criminal misc. petitions as
well as the revision petition
(S.B.Cr.Revision Petition No.504/2012) are
dismissed. Stay order passed by this Court
are vacated. Stay petitions also stand
dismissed.
Before parting with the matters, I
would like to add that it is not in dispute
that in Indian Society discrimination against
girl child still prevails either as there is
no change in the mind-set or there is also
insufficient education. Even after passing of
68 years of independence, we are not in a
position to change mental set-up which
favours a male child against a female.
Advance technology is being used for removal
of foetus. The misuse of modern science and
technology by preventing the birth of girl
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39
child by sex determination before birth and
thereafter abortion is evident from 2011
Census figures which reveal greater decline
in sex ratio in several States and the State
of Rajasthan is also not an exception. An
activity for sex selection has very grave
social consequences as it may result in
disturbing the balance in the male female
ratio. Earlier methods of female foeticide
were relatively confined to limited section
of the population but now-a-days by using the
morden scientific methods, which the PCPNDT
Act seeks to bring its purview, sex selection
has become a rampant phenomena which has
affected every strata of society. In view of
above fact situation, strict compliance of
the provisions of the PCPNDT Act and the
rules made thereunder is the need of the day.
As the cases against the
petitioners for the commission of offences
under the PCPNDT Act are pending before the
trial courts from long period, therefore, it
is directed that the trial courts shall try
and decide such cases with utmost priority.
[VIJAY BISHNOI],J.
m.asif/-
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R/CR.MA/10039/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 10039 of 2014
=============================================
PRIYAKANT MOHANLAL KAPADIA….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
=============================================
Appearance:
MR SAMIR J DAVE, ADVOCATE for the Applicant(s) No. 1
MR NIKHILESH J SHAH, ADVOCATE for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 23/03/2015
ORAL ORDER
[1] The applicant who is Doctor by profession has filed present
application under section 482 of the Code of Criminal Procedure (“the
Code” for short) seeking to quash the complaint at Annexure A
registered as Criminal Case No.1423 of 2013 on 15.10.2013 for the
offence under sections 4(3), 29 of the Pre­Conception and Pre­Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the
Act” for short) and Rules 9(1), 9(4), 9(6), 9(8), 10(1A) and 13 of the
the Pre­Conception and Pre­Natal Diagnostic Techniques (Prohibition of
Sex Selection) Rules, 1996 (“the Rules” for short).
[2] The gist of allegations as stated in the complaint reads as
under :­
“During the search and seizure procedure on studying the
records searched and produced by Dr. Kapadia, following
contraventions were observed :­
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1. A register with name and age of the pregnant women and men
subjected to the Sonography, with spouse name, address etc. is not
maintained at clinic since last 2 years (Rule 9(1) is contravened)
2. Deficiencies in Record keeping : On examination of 68 form “F”
of time period from 3/11/2012 to 26/09/2013 were found filled up
incompletely. Complete record of last 2 years was not produced
(Section 4(3) and 29 is contravened)
In these total 68 form “F” the deficiencies were encircled were
given serial no.1 to 68 and were seized on 5/10/2013 in presence of
the witnesses as the proof of the contravention of the Act. The
deficiencies and inaccuracies in form F is shown below :­
i. In Sr.No. 3,4,8,9,11,12,14,16,17,23,37,50 and 62 of Form
“F”, point no.4 “Number of children with sex of each child” was
not filled up by Dr. Kapadia.
ii. In Sr.No.4,12,17,19,21,23,26,27,28,36 and 50 of Form “F”,
point no.6 “Full address with Tel. No. if any” was not filled up
by Dr. Kapadia while Tel.No. Was not shown in Sr. No.1,2,3,5
to 11, 13 to 16, 18,20,22,24, 25, 29 to 35, 37 to 49, 51,52,
53, 55, 59, 60, 63, 66, 67 and 68 of Form F.
iii. Particulars in all seized 68 forms point no.7 “Referred by (full
name and address of Doctor (s) / Genetic Counseling Center”)
were not shown by Dr. Kapadia. While in point no.8 “Last
menstrual period / weeks of pregnancy” was not filled up in Sr.
No.41 of Form F.
iv. In Sr. No. 35, 38, 43 to 48 “Indication for pre­natal diagnosis”
is not filled up.
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v. Particulars in all seized 68 forms point no. 14 “Result of ….”
were not filled up by Dr. Kapadia.
vi. In Sr. No.1 to 41 of Form F, point no.15 “Date(s) on which
procedures carried out” is not filled up.
vii. Particulars in all seized 68 forms, points nos.17, 18 and 19
were not filled up by Dr. Kapadia.
viii. In Sr.No.9, 21, 36 and 41 of Form F in “Declaration of
pregnant women” part of the form “F” signature of pregnant
woman was not obtained by Dr. Kapadia and “Declaration of
Doctor / person conducting ultrasonography / image scanning”
part of Form “F” was not signed by Dr. Kapadia.
ix. Form “F” of Sr. No.45 to 46 and 47 to 48 were found both
original and carbon copies during the visit on 5/10/2013 and
there are reasons to believe that it was not sent with a view to
conceal the information from the appropriate authority
showing bad intention of not submitting form F (Rule 9(8) is
contravened).
Sixty eight (68) such forms were seized as evidence of
the offence marking the relevant parts of the form “F” with a circle
and putting sign of the witnesses and DAA with the date. These totally
68 forms “F” given serial no.1 to 68 were seized on 05/10/2013 in
presence of the witnesses, as the proof of the contraventions of the
Act. Thus section 4(3), 29 and the Rules 9(1), 9(4), 9(6), 9(8) are
contravened.
3. Registered Sonography machine at the time of clinic
registration LOGIQ BOOK was not found during the visit on
5/10/2013. As per Doctor’s statement if was not as Buy back scheme
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to the GE Company in September 2011 without any intimation to the
DAA and new ultrasonography machine LOGIQ – C5, Sr. No. 199687
WX5 of GE­ Medi Systems was installed at the clinic on dated
12/09/2011. That is also not informed to the DAA (Rule 13
contravened)
4. On date 13/09/2013, a decoy pregnant lade was sent at Dr.
Kapadia’s hospital for sonography purpose. Sonography was done
and complete file with sonography report, prescription and image
print of sonography done by Dr. Kapadia was given to the decoy, but
her form “F” was not filled up under the provisions of the PC and
PNDT Act. The decoy has given written statement to DAA to cooperate
be be a decoy for exposing the offenders of the PC and PNDT Act. After
undergoing the sonography, the decoy gave a written statement to
DAA that before, during and after the sonography on 13/09/203,
neither any form was filled up nor her signature was obtained by at
the clinic of Dr. Kapadia. This was confirmed by studying the form “F”
for September 2013 submitted by Dr. Kapadia where in the form “F”
of the decoy was not sent to the office of Appropriate Authority,
Ahmedabad. The statements of the decoy were shown to and read by
the witnesses during the procedure on 05/10/2013. This shows that
sonography of the decoy was done, form “F” was not filled up and was
not sent to DAA (Rule 9(4) and 9(8) contravened).
5. As per the directions of the Hon’ble Gujarat High Court’s oral
judgment dated 26/02/2010 in SCA No. 11531/2006, Dr. Kapadia
has not started online reporting in spite of repeated instructions and
also notice issued on dated 26/09/2013 and hence failed to obey the
order of Hon’ble Gujarat High Court (Annexure).
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The deficiencies and inaccuracies in record keeping as evident
from the facts mentioned above is the breach of provisions of the Act.
The decision for sealing of the USG machine of the clinic was taken to
obtain further evidence of the offence. Hence, ultrasound machine
Make – GE Medi System Model – Logiq C5 Sr.No.199687 WX 5 of the
accused was sealed in presence of the witnesses and placed at the
place, at the premises of the clinic of the accused as per written request
of Dr. Kapadia, after written assurance by Dr. Kapadia to safeguard
the machine and the seal applied to it.
A “panchnama” was done to document the transparency of the
procedure, a list of the documents seized was prepared and both were
signed by the witnesses and DAA handed over to Dr. Kapadia under
acknowledgment.”
[3] Learned advocate Mr. Dave for the applicant has urged that
on two grounds the complaint filed before the lower Court is required to
be quashed (1) search and seizure made at the clinic of the applicant
was not with two independent witnesses but they were from the very
District Panchayat where complainant is serving as District Health
Officer and functioning as appropriate authority under the Act and (2)
that prior to lodging the complaint no notice as contemplated under
section 20(1) of the Act was issued to the applicant and therefore, the
complaint itself is not maintainable.
[4] Learned advocate Mr. Shah and Ms. Jhaveri for respondents
submitted that the contents of the complaint do make out offences
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alleged against the applicant. Mr. Shah submitted that whether
witnesses who accompanied the complainant at the time of search and
seizure were independent or not, is a matter of appreciation of evidence
before the Court below. Mr. Shah submitted that the provisions of the
Act clearly authorize the appropriate authority to make search of the
place where breach of the Act is stated to have taken place and as stated
in the complaint, search and seizure was carried out with the witnesses
and as per provisions of section 30(2) of the Act, provisions of the Code
of Criminal Procedure relating to search and seizure are to apply as far
as possible and therefore, complaint at this stage cannot be quashed on
the ground that the search was not made with the help of independent
witnesses. Mr. Shah submitted that so far as service of notice as
provided under section 20(1) of the Act is concerned, same is for the
purpose of taking civil action and not for initiating any criminal action
for breach of provisions of the Act and the Rules.
[5] Having heard learned advocates for the parties, the Court
finds from the contents of the FIR that several breaches punishable
under the Act are alleged against the applicant.
[6] The Act is to provide for the prohibition of sex selection
before or after conception and for regulation of pre­natal diagnostic
techniques for the purposes of detecting genetic abnormalities or
metabolic disorders or chromosomal abnormalities or certain congenital
malformations or sex lined disorders and for the prevention of their
misuse for sex determination leading to female foeticide and for matters
connected therewith or incidental thereto.
[7] To achieve the object and purpose of the Act, various
provisions are made in the Act which read as under :­
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Section 4 Regulation of pre­natal diagnostic techniques. On and from the
commencement of this Act,­­
(1) no place including a registered Genetic Counselling Centre or Genetic
Laboratory or Genetic Clinic shall be used or caused to be used by any person
for conducting pre­natal diagnostic techniques except for the purposes
specified in clause (2) and after satisfying any of the conditions specified in
clause (3);
(2) no pre­natal diagnostic techniques shall be conducted except for the
purposes of detection of any of the following abnormalities, namely:­­
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex­linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the
Central Supervisory Board;
(3) no pre­natal diagnostic techniques shall be used or conducted unless the
person qualified to do so is satisfied that any of the following conditions are
fulfilled, namely:­­
(i) age of the pregnant woman is above thirty­five years;
(ii) the pregnant woman has undergone of two or more spontaneous
abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic
agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman has a family history of mental retardation
or physical deformities such as spasticity or any other genetic disease;
(v) any other condition as may be specified by the Central Supervisory
Board;
Provided that the person conducting ultrasonography on a pregnant
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women shall keep complete record thereof in the clinic in such
manner, as may be prescribed and any deficiency or inaccuracy found
therein shall amount to contravention of the provisions of section 5 or
section 6 unless contrary is proved by the person conducting such
utrasonography;
(4) no person including a relative or the husband of the pregnant woman
shall seek or encourage the conduct of any pre­natal diagnostic techniques on
her except for the purpose specified in clause (2).
(5). no person inducing a relative or husband of a woman shall seek or
encourage the conduct of any sex selection technique on her or him or both.
Section 5. Written consent of pregnant woman and prohibition of
communicating the sex of foetus.
(1) No person referred to in clause (2) of section 3 shall conduct the prenatal diagnostic procedures unless­­
(a) he has explained all known side and after effects of such procedures to
the pregnant woman concerned;
(b) he has obtained in the prescribed form her written consent to undergo
such procedures in the language which she understands; and
(c) a copy of her written consent obtained under clause (b) is given to the
pregnant woman.
(2) No person including the person conducting pre­natal diagnostic
procedures shall communicate to the pregnant woman concerned or her
relatives the sex of the foetus by words, signs or in any other manner.
Section 22 : ­ Prohibition of advertisement relating to pre – conception and
pre­natal determination of sex and punishment for contravention.
(1) No person, organisation, Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre having
ultrasound machine or imaging machine or scanner or any other technology
capable of undertaking determination of sex of foetus or sex selection shall
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issue, publish, distribute, communicate or cause to be issued, published,
distributed or communicated any advertisement in any form, including
internet, regarding facilities of pre­natal determination of sex available at
such Centre, Laboratory, Clinic or any other place.
(2) No person or organisation including Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or
cause to be issued, published, distributed or communicated regarding prenatal determination of pre conception selection of sex by any means
whatsoever, scientific or otherwise.
(3) Any person who contravenes the provisions of sub­section (1) or subsection (2) shall be punishable with imprisonment for a term which may
extend to three years and with fine which may extend to ten thousand
rupees.
Section 24 :­ Presumption in the case of conduct of pre­natal diagnostic
techniques. Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872), the court shall presume unless the contrary is proved that
the pregnant woman was compelled by her husband or the relative, as the
case may be, to undergo pre­natal diagnotic technique for the purposes other
than those specified in sub­section (2) of section 4 and such person shall be
liable for abetment of offence under sub­section (3) of section 23 and shall be
punishable for the offence specified under that section.
[8] Sub­section (1) of Section 20 provides for issuance of show
cause notice before taking any action for cancellation or registration of
Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic.
Sub – section (2) of Section 20 provides for taking of action after giving
reasonable opportunity of being heard. But such action as stated in subsection (2) is without prejudice to any criminal action that the authority
may take against the Center or Laboratory or Clinic.
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Sub­section (3) of Section 20 starts with non obstance clause and in
consonance with the object of the Act, it is provided that in public
interest the authority may even take action for suspending registration of
the clinic or laboratory by recording reasons even without issuing notice
under sub­section (1).
[9] From section 20 of the Act, it clearly appears that two
actions are independent to each other. One is civil action of cancellation
of registration and / or suspending registration and another is of taking
criminal action. If sub section (2) of section 20 provides for taking of
action of cancellation of registration without prejudice to any criminal
action, service of notice before taking criminal action, as submitted by
Mr.Dave is not required. However, Mr. Dave relied on Full Bench
decision of this Court in the case of Suo Motu v/s. State of Gujarat
reported in 2009 Cri.L.J. 721 and submitted that the Full Bench has
ruled that even for taking criminal action for breach of violation of
sections 5 and 6 of the Act, prior notice is must and if there is no notice,
then prosecution cannot be said to be validly instituted.
[10] Before the Full Bench, following questions were referred by
the learned Single Judge :­
“(i) Whether under the provisions of section 28 of the Preconception
and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994, a Court can take cognizance of an offence under the Act on
a complaint made by any officer authorised in this behalf by the
Appropriate Authority?
(ii) Whether the provisions of the proviso to sub­section (3) of section
4 of the PNDT Act require that the complaint should contain specific
allegations regarding the contravention of the provisions of sections 5
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and 6 of the Act?
(iii) Whether the burden lies on the authority to prove that there was
contravention of the provisions of section 5 or 6 of the PNDT Act?
(iv) Whether any deficiency of inaccuracy in filing Form­F as required
under the statutory provisions is merely a procedural lapse?”
[11] In the context of above said questions referred, the Full
Bench has held and observed in paragraph nos.8 and 9 as under :­
“8. It needs to be noted that improper maintenance of the record has
also consequences other than prosecution for deemed violation of
section 5 or 6. Section 20 of the Act provides for cancellation or
suspension of registration of Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic in case of breach of the provisions of the
Act or the Rules. Therefore, inaccuracy or deficiency in maintaining
the prescribed record shall also amount to violation of the prohibition
imposed by section 6 against the Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic and expose such clinic to proceedings
under section 20 of the Act. Where, by virtue of the deeming
provisions of the proviso to sub­section (3) of section 4, contravention
of the provisions of section 5 or 6 is legally presumed and actions are
proposed to be taken under section 20, the person conducting
ultrasonography on a pregnant woman shall also have to be given an
opportunity to prove that the provisions of section 5 or 6 were not
violated by him in conducting the procedure. Thus the burden shifts
on to the person accused of not maintaining the prescribed record,
after any inaccuracy or deficiency is established, and he gets the
opportunity to prove that the provisions of sections 5 and 6 were not
contravened in any respect. Although it is apparently a heavy burden,
it is legal, proper and justified in view of the importance of the Rules
regarding maintenance of record in the prescribed forms and the likely
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failure of the Act and its purpose if procedural requirements were
flouted. The proviso to sub­section (3) of section 4 is crystal clear
about the maintenance of the record in prescribed manner being an
independent offence amounting to violation of section 5 or 6 and,
therefore, the complaint need not necessarily also allege violation of
the provisions of section 5 or 6 of the Act. A rebuttable presumption of
violation of the provisions of section 5 or 6 will arise on proof of
deficiency or inaccuracy in maintaining the record in the prescribed
manner and equivalence with those provisions would arise for
punishment as well as for disproving their violation by the accused
person. That being the scheme of these provisions, it would be wholly
inappropriate to quash the complaint alleging inaccuracy or deficiency
in maintenance of the prescribed record only on the ground that
violation of section 5 or 6 of the Act was not alleged or made out in
the complaint. It would also be improper and premature to expect or
allow the person accused of inaccuracy or deficiency in maintenance of
the relevant record to show or prove that provisions of section 5 or 6
were not violated by him, before the deficiency or inaccuracy were
established in court by the prosecuting agency or before the authority
concerned in other proceedings.
9. Upon above analysis and appreciation of the scheme and provisions
of the Act and Rules made thereunder, opinion on issues referred to
the larger bench is as under:
(i) Under the provisions of section 28 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
(“the PNDT Act”), a Court can take cognizance of an offence under the
Act on a complaint made by any officer authorised in that behalf by
the Appropriate Authority.
(ii) The proviso to sub­section (3) of section 4 of the PNDT Act does
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not require that the complaint alleging inaccuracy or deficiency in
maintaining record in the prescribed manner should also contain
allegation of contravention of the provisions of section 5 or 6 of the
PNDT Act.
(iii) In a case based upon allegation of deficiency or inaccuracy in
maintenance of record in the prescribed manner as required under
sub­section (3) of section 4 of the PNDT Act, the burden to prove that
there was contravention of the provisions of section 5 or 6 does not lie
upon the prosecution.
(iv) Deficiency or inaccuracy in filling Form F prescribed under Rule 9
of the Rules made under the PNDT Act, being a deficiency or
inaccuracy in keeping record in the prescribed manner, it is not a
procedural lapse but an independent offence amounting to
contravention of the provisions of section 5 or 6 of the PNDT Act and
has to be treated and tried accordingly. It does not, however, mean
that each inaccuracy or deficiency in maintaining the requisite record
may be as serious as violation of the provisions of section 5 or 6 of the
Act and the Court would be justified, while imposing punishment
upon conviction, in taking a lenient view in cases of only technical,
formal or insignificant lapses in filling up the forms. For example, not
maintaining the record of conducting ultrasonography on a pregnant
woman at all or filling up incorrect particulars may be taken in all
seriousness as if the provisions of section 5 or 6 were violated, but
incomplete details of the full name and address of the pregnant
woman may be treated leniently if her identity and address were
otherwise mentioned in a manner sufficient to identify and trace her.
(v) The judgment in Dr.Manish C. Dave v. State of Gujarat
reported in 2008 (1) GLH 475 stands overruled to the extent it is
inconsistent with the above opinion. The references stand disposed
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accordingly.”
[12] As rightly submitted by Mr. Shah that the Full Bench has
nowhere laid down that absence of show cause notice under section
20(1) would in any way render prosecution invalid.
[13] It is pertinent to note that as per proviso to sub­section (3)
of section 4 of the Act, any deficiency or inaccuracy in keeping complete
record by the person conducting ultrasonography on female amounts to
contravention of section 5 and 6 of the Act, unless contrary is proved by
the person conducting such ultrasonography. As held by the Full Bench
deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the
Rules made under the Act, being a deficiency or inaccuracy in keeping
record in the prescribed manner, it is not a procedural lapse but an
independent offence amounting to contravention of the provisions of
section 5 or 6 of the Act and has to be treated and tried accordingly.
Section 23 of the Act makes contravention of any provisions of the Act
and Rules including section 5 and 6 of the Act and Rule 9 of the Rules
punishable.
[14] As stated above, sub­section (2) of section 20 is for taking
independent action of cancellation of registration without prejudice to
any criminal action. It would be profitable to reproduce observations
made by the Full Bench in Paragraph no.7 which reads as under :­
“7. As seen earlier, the Act and the Rules made thereunder provide for
an elaborate scheme to ensure proper implementation of the relevant
legal provisions and the possible loop­holes in strict and full
compliance are sought to be plugged by detailed provisions for
maintenance and preservation of records. In order to fully
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operationalise the restrictions and injunctions contained in the Act in
general and in sections 4, 5 and 6 in particular, to regulate the use of
prenatal diagnostic technique, to make the pregnant woman and the
person conducting the pre­natal diagnostic tests and procedures aware
of the legal and other consequences and to prohibit determination of
sex, the Rules prescribe the detailed forms in which records have to be
maintained. Thus the Rules are made and forms are prescribed in aid
of the Act and they are so important for implementation of the Act
and for prosecution of the offenders, that any improper maintenance
of such record is itself made equivalent to violation of the provisions of
sections 5 and 6, by virtue of the proviso to subsection (3) of section 4
of the Act. It must, however, be noted that the proviso would apply
only in cases of ultrasonography conducted on a pregnant woman.
And any deficiency or inaccuracy in the prescribed record would
amount to contravention of the provisions of sections 5 and 6 unless
and until contrary is proved by the person conducting such
ultrasonography. The deeming provision is restricted to the cases of
ultrasonography on pregnant women and the person conducting
ultrasonography is, during the course of trial or other proceeding,
entitled to prove that the provisions of sections 5 and 6 were, in fact,
not violated.”
[15] Therefore, for contravention of Act or Rules, a separate
criminal action can be taken under section 23 of the Act, for which no
show cause notice before taking such criminal action is required to be
issued under sub­section (1) of section 20 of the Act.
[16] Considering the allegations made in the FIR, the Court finds
that serious allegations as regards breach of provisions of the Act and
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Rules are made. In such view of the matter, it is not the case where
inherent powers under section 482 of the Code can be exercised in
favour of the applicant.
[17] As stated above, the question whether witnesses who
accompanied competent authority – complainant at the time of search
and seizure were independent or not, is a matter of appreciation during
trial and such ground is not available to the applicant to invoke powers
under section 482 of the Code.
[18] For the reasons stated above, the application is rejected.
Notice is discharged. Interim relief stands vacated.
(C.L.SONI, J.)
satish
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH JAIPUR
S.B. Criminal Misc. Petition No.1828/2013
Dr. Ravi Mohan Mahawar
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1126/2012
Dr. Neena
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2686/2012
Dr. Rajnish Sharma
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3352/2012
Dr. Ruchi Goyal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3539/2012
Dr. Pradeep Kumar Sharma
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3761/2012
Dr. Manju Rathi
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3998/2012
Dr. Manju Gochar
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.224/2013
Dr. Rakhi Jain
Versus
Dy. Director (RCH) and Authorized Officer State Appropriate Authority
AND
S.B. Criminal Misc. Petition No.2512/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
2
S.B. Criminal Misc. Petition No. 2513/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2530/2013
Dr. Prakash Mundra
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2531/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2532/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2533/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2568/2013
Dr. Ram Prakash Saini & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2641/2013
Dr. Sangeeta Agarwal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No. 2657/2013
Dr. Pradeep Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3003/2013
Dr. Chandra Bala Parnami
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.3004/2013
Prem Niketan Hospital & Anr.
Versus
State of Rajasthan & Ors.
3
AND
S.B. Criminal Misc. Petition No.3080/2013
Umesh Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3081/2013
Umesh Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3082/2013
Umesh Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3553/2013
Dr. Gaytri Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.3554/2013
Dr. Gaytri Sharma
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.4293/2013
Dr. J.K. Singhvi
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.361/2014
Vikram Singh Shekhawat & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.439/2014
Dr. Hemant Mishra
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2626/2013
Subhash Sharma
Versus
State of Rajasthan & Anr.
AND
4
S.B. Criminal Misc. Petition No.2017/2014
Kamla Memorial Diagnostic and Research Centre
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1114/2013
Carewell Diagnostic and Research Centre
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1207/2013
Hanuman Choudhary
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1226/2013
Dr. Deen Dayal Gupta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1316/2013
Dr. Ajay Agarwal & Anr.
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.1764/2013
Smt. Bidami Devi & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1813/2013
Dr. Moniya Goyal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.1873/2013
Dr. Sanjeev Bhargava
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2037/2013
Dr. Shardha Agarwal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2081/2013
Dr. Arun Sharma
Versus
State of Rajasthan
5
AND
S.B. Criminal Misc. Petition No.2160/2013
Mahesh Chand Sethi
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2178/2013
Dr. Laxmichand
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2196/2013
Dr. Harshvardhan
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2263/2013
Dr. Prithviraj Kucheria
Versus
State of Rajasthan
AND
S.B. Criminal Misc. Petition No.2405/2013
Beeju Samual & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2406/2013
Dr. Sunil Dutta
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2407/2013
Dr. Kaushalya Meena
Versus
State of Rajasthan & Ors.
AND
S.B. Criminal Misc. Petition No.2429/2013
Dr. Shardha Agarwal
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2454/2013
Dr. Sunil Saxena
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2455/2013
Dr. Nitin Kumar Gupta
6
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2456/2013
D.C. Hospital & Anr.
Versus
State of Rajasthan & Anr.
AND
S.B. Criminal Misc. Petition No.2511/2013
Dr. Rajeev Gupta
Versus
State of Rajasthan & Anr.
DATE OF ORDER : 7th July, 2015
HON’BLE MR. JUSTICE M.N. BHANDARI
Mr. A.K. Gupta with Mr. Harihar Nath Mishra, Mr. Prem Kumar
Sharma, Mr. Gaurav Gupta, Mr.Rahul Kamwar, Mr. Kapil Gupta,
Mr.Anurag Kulshreshtha, Mr. Jitendra Mitrucka, Mr. Sudhir Jain, Mr.
Dinesh Hissaria, Mr. Pankaj Gupta, Mr.Anurag Shukla, Mr. Vineet Mehta,
Mr. Sunil Kumar Singh, Mr. P.S. Sharma, Mr. Santosh Kumar Jain, &
Mr.Surendra Sharma, for PETITIONERS
Mr. G.S. Gill, Additional Advocate General with Mr. H.C. Kandpal –
for the State.
Ms. Vandana Sharma, Dy. Govt. Counsel
***
By these criminal misc. petitions, a challenge is made to the
complaint and subsequent orders of cognizance of the offence under
Pre Conception and Pre Natal Diagonistic Techniques (Prohibition of
Sex Selection) Act, 1994 (in short “the Act of 1994”).
A criminal complaint was filed against the petitioners apart
from others for violation of various provisions of the Act of 1994 and
the rules made thereunder. The complaint aforesaid was filed under
Section 28 of the Act of 1994. In pursuace to the complaint,
cognizance of offence was taken in majority of the cases. A challenge
to the complaint as well as order for cognizance of offence has been
7
made on various grounds.
Learned counsel for petitioners submitted that an inspection
was made by the person not authorized under the Act of 1994. A
reference of Section 17 & 17A of the Act of 1994 was given to show
as to who is authorized to inspect diagnostic lab or clinic, etc. As per
Sections 17 and 17A of the Act of 1994, authority of inspection lies
with the Appropriate Authority and the Advisory Committee. The
inspection can be made by the person having qualification as is
required for the Appropriate Authority or Advisory Committee under
Sections 17 & 17A of the Act of 1994. In the instant cases, inspection
was not caused by the authorised person, thus not only inspection
vitiates but subsequent complaint and the order of cognizance of
offence also.
Further, reference of Section 28 of the Act of 1994 is given to
show as to who is authorized to file complaint. As per Section 28,
complaint can be filed only by the appropriate authority or a person
authorised by the Central or the State Government. In the instant
cases, complaint was filed without authorization in favour of the
person and is not by the appropriate authority, hence, on that count
also, impugned complaint and the order of cognizance of offence
deserve to be quashed.
In few cases, complaint has been filed by the private person
without following provisions of Section 28(1)(b). No document was
8
produced to show that private person had given notice as is required
under Section 28(1)(b) of the Act of 1994.
A further reference of Section 17(4) of the Act of 1994 has
been given to show that competence for investigation of the
complaint for breach of provisions of the Act or the Rules made
thereunder lies only with the appropriate authority.
In the case of Dr. Rajnish Sharma (S.B. Criminal Misc. Petition
No.2686/2012), the FIR was registered prior to filing of the complaint.
It resulted in negative final report. A protest petition was filed but
negative final report was accepted and, thereupon, a private complaint
was filed by none else but an Advocate having personal bias against
the petitioner. After acceptance of negative final report, the complaint
was not maintainable. The revision petition was filed by the
petitioners but it was then dismissed hence additional ground has
been taken in one case regarding maintainability of the complaint
after acceptance of negative final report.
Learned counsel made reference of judgments of Apex Court in
the case of Babubhai Vs. State of Gujarat & Ors., reported in
(2010) 12 SCC 254, Poonam Chand Jain & Anr. Vs. Fazru,
reported in (2010) 2 SCC 631, Pramatha Nath Taluqdar Vs. Saroj
Ranjan Sarkar, reported in AIR 1962 SC 876 and in the case of
Mahesh Chand Vs. B. Janardhan Reddy & Anr., reported in 2003
(1) SCC 734 to support their arguments.
9
The other argument of the learned counsel for petitioners was
in reference to Form ‘F’ provided under the Act of 1994 and the Rules
made thereunder. The minor discrepancy or delay of few days in
filling Form ‘F’ is not an offence. The Form ‘F’ can be filled before 5th
day of the month as it is to be submitted on the aforesaid date, thus it
can be filled any time before it. The respondents ignored the aforesaid
and majority of the cases are in reference to minor discrepancy in
Form ‘F’ or delay therein. A reference of the judgment of Bombay
High Court in the case of Dr. Alka & Anr. Vs. The State of
Maharashtra & Anr., Criminal Application No.3500/2011,
decided on 11th May, 2012 has been given. Therein, Form ‘F’ was not
fo
und complete, thus notice was given followed by seizure of the
machine. It was held that non-filling of Form ‘F’ completely cannot be
said to be illegal. In view of judgment aforesaid, delay in filling of
Form ‘F’ cannot be taken to be in violation of the provisions of the
Act of 1994 and Rules made thereunder.
Learned counsel for petitioners further made reference of
Sections 12 and 30 of the Act of 1994. Section 30 refers about power
to search and seize the record etc. The provision aforesaid gives
powers to the appropriate authority to search and seize the record but,
in the instant cases, search was not made by the appropriate authority.
It is lastly contended that before issuance of process, learned
Magistrate failed to record his satisfaction for taking cognizance of
10
the offence and the order was passed in a cyclostyle manner. Some
petitioners challenged the order of cognizance of offence by
maintaining revisions but they were dismissed. A reference of
judgment of Apex Court in the case of Krishnan & Anr Vs.
Krishnaveni & Anr., reported in 1997 (4) SCC 241 has been given
to show maintainability of the petition under Section 482 Cr.P.C.
even after dismissal of the revision petitions. The prayer is
accordingly made to quash the complaint so as order of cognizance of
offence and order passed on the revision petitions.
Per contra, learned Additional Advocate General Shri G.S. Gill,
referring to the arguments of learned counsel for petitioners,
submitted that inspection of the diagnostic lab, clinic/hospital was
caused by the authorised person. Referring to Sections 17, 17A, 28
and 30 of the Act of 1994, it is submitted that inspection/search can
be made by the appropriate authority or a person authorised by it, thus
it is not necessary that in all the cases, search/inspection should be
caused only by the appropriate authority. The State of Rajasthan
issued Notification on 05.01.2012 by invoking Section 17(2) of the
Act of 1994. The notification was issued to authorise an officer at the
District level. The authority under Section 28(1) of the Act of 1994
fo
r filing complaint was also given. The search/inspection was
conducted by the person authorized and, finding violation of the
provisions of the Act of 1994 & Rules made thereunder, the
11
complaint was filed. The issue aforesaid was dealt with by the learned
Magistrate while passing order of cognizance. In few cases, even
revision petition was filed but finding no substance therein, it was
dismissed after dealing with all the issues raised herein. There is no
violation of Sections 17, 17A, 28 and 30 of the Act of 1994 and the
Rules made thereunder.
The petitioners have failed to take proper interpretation of the
provisions of the Act of 1994 while referring definition of
“Appropriate Authority” given under Section 2(a) of the Act of 1994.
The appropriate authority has been given various powers, which
includes investigation of the complaint for breach of the provisions of
the Act and the Rules made thereunder. Section 17(4) of the Act of
1994 does not provide about filing of the complaint on search.
Section 30 makes reference of search and seizure by the appropriate
authority or authorised person. The inspection was caused by the
authorised person as per Section 30. It is not necessary that
authorised person should possess the same qualification as is
provided for appropriate authority under Section 17 of the Act of
1994. In view of above, neither inspection/search is defective nor
filing of the complaint thereupon. The complaint can be filed by the
appropriate authority or a person authorised on behalf of the State
Governmen. In the instant cases, complaint was filed by the
authorised person, hence it was rightly entertained, followed by order
12
of cognizance.
In few cases, complaint has been filed by private persons but it
is after observing Section 28 of the Act of 1994. A prior notice was
given followed by a complaint. The private complainant had given
notice to the department on 12.11.2007 through registered post with
its acknowledgement. After notice, complaint was filed, thus it was in
compliance to Section 28(1)(b) of the Act of 1994.
In the case of Dr. Rajnish Sharma, FIR was registered followed
by negative final report. It was accepted on the ground that complaint
alone is maintainable, thus subsequent complaint is not barred. The
issue aforesaid was dealt with by the revisional court elaborately. So
far
as judgments referred by learned counsel for petitioners on the
aforesaid issues are concerned, none applies to the facts of this case.
In view of above, even after dismissal of the protest petition,
complaint was rightly filed and maintained. The revision petition was
dismissed considering the aforesaid issues and now these petitions
under Section 482 Cr.P.C. are nothing but second revision petition
and not maintainable in absence of gross abuse of process.
In view of violation of the provisions of the Act of 1994 and
Rules made thereunder, cognizance of offence has been taken. It is
largely in reference to discrepancy in the Form ‘F’, which is to be
filled before diagnosis. There was lapse on the part of the petitioners
to do so. Forms ‘F’ and ‘G’ have to be filled prior to diagnosis with
13
thumb impression of the patient. In case of lapse, it amounts to
violation of the provisions of the Act of 1994 and Rules made
thereunder. Learned Additional Advocate General has given reference
of one of the case of Dr. Ravi Mohan Mahawar (S.B. Criminal Misc.
Petition No.1828/2013). In the search operation, it was found that one
lady patient Seema was diagnosed and informed about sex of the
child and in the same way Smt. Babudi was also informed about it.
She felt happy when informed about birth of a male child. The search
was made after payment of Rs.6,000/- and therein it was found that
Form ‘F’ was not filled apart from violation of other provisions
detailed out in the complaint itself. The significance of Form ‘F’
comes out from the aforesaid itself. The submission of Form ‘F’ to the
department on the appointed date does not mean that it can be filled
as and when it is found convenient by the Diagnostic Centre. Looking
to all these facts and serious allegations against the petitioners,
process was issued by the court below after taking cognizance of the
offence and there is no illegality in it. A prayer is made for dismissal
of all the petitions.
I have considered rival submission made by the parties and
scanned the record carefully.
The complaint was filed for violation of provisions of the Act
of 1994 and Rules made thereunder. After filing of the complaint,
order for cognizance of offence was passed. A challenge to the order
14
of cognizance of offence has been made. In few petitions, it was
challenged by maintaining revision petitions. The revision petitions
were dismissed, thus order of cognizance so as the order passed on
the revision petitions, have been challenged.
The grounds for challenge are in reference to various
provisions of the Act of 1994, thus Sections 2(a), 17, 17A, 28 & 30
are quoted hereunder for ready reference:
“2(a) “Appropriate Authority” means the Appropriate Authority
appointed under section 17.”
“17. Appropriate Authority and Advisory Committee.- (1) The
Central Government shall appoint, by notification in the Official
Gazette, one or more Appropriate Authorities for each of the Union
territories for the purposes of this Act.
(2) The State Government shall appoint, by notification in the
Official Gazette, one or more Appropriate Authorities for the
whole or part of the State for the purposes of this Act having
regard to the intensity of the problem of pre-natal sex
determination leading to female foeticide.
(3) The officers appointed as Appropriate Authorities under subsection (1) or subsection (2) Shall be,-
(a) When appointed for the whole of the State or the Union
territory, consisting of the following three members
i) An officer of or above the rank of the Joint Director of Health
and Family Welfare-Chairperson;
ii) An eminent woman representing women’s organization; and
iii) An officer of Law Department of the State or the Union
territory concerned: Provided that it shall be the duty of the State
or the Union territory concerned to constitute multi-member State
or Union territory level Appropriate Authority within three months
of the coming into force of the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Amendment Act,
2002: Provided further that any vacancy occurring therein shall be
filled within three months of that occurrence.
15
(b) When appointed for any part of the State or the Union territory,
of such other rank as the State Government or the Central
Government, as the case may be, may deem fit.
(4) The Appropriate Authority shall have the following functions,
namely:–
(a) To grant, suspend or cancel registration of a Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic;
(b) To enforce standards prescribed for the Genetic Counselling
Centre, Genetic Laboratory and Genetic Clinic;
(c) To investigate complaints of breach of the provisions of this
Act or the rules made thereunder and take immediate action;
(d) To seek and consider the advice of the Advisory Committee,
constituted under sub-section (5), on application for registration
and on complaints for suspension or cancellation of registration;
(e) To take appropriate legal action against the use of any sex
selection technique by any person at any place, suo-motu or
brought to its notice and also to initiate independent investigations
in such matter;
(f) To create public awareness against the practice of sex selection
or prenatal determination of sex;
(g) To supervise the implementation of the provisions of the Act
and rules;
(h) To recommend to the CSB and State Boards modifications
required in the rules in accordance with changes in technology or
social conditions;
(i) To take action on the recommendations of the Advisory
Committee made after investigation of complaint for suspension or
cancellation of registration.
(5) The Central Government or the State Government, as the case
may be, shall constitute an Advisory Committee for each
Appropriate Authority to aid and advise the Appropriate Authority
in the discharge of its functions, and shall appoint one of the
members of the Advisory Committee to be its Chairman.
(6) The Advisory Committee shall consist of—
(a) Three medical experts from amongst gynaecologists,
obstetricians, paediatricians and medical geneticists;
(b) One legal expert;
(c) One officer to represent the department dealing with
information and publicity of the State Government or the Union
16
territory, as the case may be;
(d) three eminent social workers of whom not less than one shall
be from amongst representatives of women’s organisations.
(7) No person who has been associated with the use or promotion
of pre-natal diagnostic technique for determination of sex or sex
selection shall be appointed as a member of the Advisory
Committee.
(8) The Advisory Committee may meet as and when it thinks fit or
on the request of the Appropriate Authority for consideration of
any application for registration or any complaint for suspension or
cancellation of registration and to give advice thereon: Provided
that the period intervening between any two meetings shall not
exceed the prescribed period.
(9) The terms and conditions subject to which a person may be
appointed to the Advisory Committee and the procedure to be
followed by such Committee in the discharge of its functions shall
be such as may be prescribed.
“17A. Powers of Appropriate Authorities.- The Appropriate
Authority shall have the powers in respect of the following
matters, namely:-
a) Summoning of any person who is in possession of any
information relating to violation of the provisions of this Act or the
ru
les made thereunder;
b) Production of any document or material object relating to clause
(a);
c) Issuing search warrant for any place suspected to be indulging in
sex selection techniques or prenatal sex determination; and
d) Any other matter which may be prescribed.”
“28. Cognizance of offences. (1) No court shall take cognizance
of an offence under this Act except on a complaint made by–
(a) the Appropriate Authority concerned, or any officer authorised
in this behalf by the Central Government or State Government, as
the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than fifteen days in
the manner prescribed, to the Appropriate Authority, of the
alleged offence and of his intention to make a complaint to the
court.
Ex
planation.–For the purpose of this clause, “person” includes a
social organisation.
17
(2) No court other than that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence
punishable under this Act.
(3) Where a complaint has been made under clause (b) of
subsection (1), the court may, on demand by such person, direct
the Appropriate Authority to make available copies of the relevant
records in its possession to such person.”
“30. Power to search and seize records, etc. – (1) If the
Appropriate Authority has reason to believe that an offence under
this Act has been or is being committed at any Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic or any
other place, such Authority or any officer authorised thereof in
this behalf may, subject to such rules as may be prescribed, enter
and search at all reasonable times with such assistance, if any, as
such authority or officer considers necessary, such Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic or any
other place and examine any record, register, document, book,
pamphlet, advertisement or any other material object found
therein and seize and seal the same if such Authority or officer
has reason to believe that it may furnish evidence of the
commission of an office punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of
1974) relating to searches and seizures shall, so far as may be,
apply to every search or seizure made under this Act.”
Section 2(a) provides definition of “Appropriate Authority”,
whereas, Section 17 talks about appointment of appropriate authority
and advisory committee. The first argument of the learned counsel for
petitioners is in reference to Sections 17 & 17A of the Act of 1994. A
challenge is made to the inspection and complaint by an officer other
than appropriate authority. The perusal of Sections 17, 17A & 28
18
apart from Section 30 shows as to who can make search and seizure
and file complaint thereupon. Section 17 talks about appointment of
appropriate authority, however, search and even filing of the
complaint can be either by the appropriate authority or the State
Government and the officer authorized for it. In view of above, it
cannot be said that search can be conducted only by the appropriate
authority.
In the same manner, it is not necessary that the complaint has to
be filed by the appropriate authority but it can be filed by an officer
authorised by the appropriate authority or Central and the State
Government. In the instant cases, inspection followed by filing of the
complaint is by the authorised officer, thus cannot be said to be in
violation of the Act of 1994. The petitioners have failed to take notice
of the Notification issued for authorization. It was referred by the
learned Additional Advocate General Shri G.S. Gill.
A reference of Section 17(4) of the Act of 1994 has been given
to indicate duties of the appropriate authority. The appropriate
authority has been assigned with certain powers but it does not make
a reference of filing of the complaint by it under the said provision.
The authority for search and seizure apart from filing of the complaint
is separately provided under Section 28 & 30 of the Act of 1994. The
search and seizure can be made by the appropriate authority or by an
authorized officer. Section 17 or 17A does not exclude
19
inspection/search and filing of the complaint by the authorised
officer. Section 17 speaks about appointment and powers of
appropriate authority and advisory committee, whereas, Sections 28
& 30 of the Act of 1994 are for filing of complaint and search &
seizure. In view of above, argument of the learned counsel for
petitioners that inspection was not conducted by the appropriate
authority or complaint should have been filed by the appropriate
authority, cannot be accepted. The reference of authorization in
fa
vour of an officer has been given in the complaint itself.
In the case of Dr. Rajnish Sharma, no doubt, it is true that FIR
was earlier lodged followed by negative final report but it was given
on the ground of maintainability of the FIR as only complaint is
maintainable. The issue regarding maintainability of complaint was
considered by the revisional court in detail. The subsequent complaint
was maintainable as FIR was not sustainable in view of Section 28 of
the Act of 1994 where cognizance of offence is provided only on a
complaint. The negative final report was accepted as FIR was not
maintainable, thus complaint was rightly maintained followed by
order of cognizance of offence. I do not find that revisional court has
committed any error in recording its finding on the aforesaid issue.
The other argument in the case of Dr. Rajnish Sharma is
regarding filing of complaint by a private person. Section 28(1)(b) of
the Act provides for filing of complaint even by a private person. The
20
complaint therein was filed after notice to the department through
registered post as per Section 28(1)(b) of the Act, thus it cannot be
said that complaint would not be maintainable. It is not necessary that
all the complaints have to be filed by the appropriate authority but it
can be filed by the authorised officer and even by a private person,
provided procedure is followed for that. In the instant cases, the order
passed by the revisional court reveals that complaint was maintained
after following the procedure. I do not find any error in the order
passed by the revisional court.
The judgments cited by learned counsel for petitioners need no
elaboration as facts of those cases are distinguishable so as the ratio
propounded therein.
The other common argument raised by the learned counsel for
petitioners was in reference to Form ‘F’. It was submitted that
incomplete or non-filling of Form ‘F’ does not amount to offence. It is
looking to the fact that Form ‘F’ can be submitted in the department
on or before appointed date, thus can be filled at any time. I do not
find substance in this argument. When Form ‘F’ is to be filled before
diagnosis, then requirement aforesaid cannot be ignored. It cannot be
that details of the patient may be noted on the loose paper and then
filled in Form ‘F’ after lapse of few days. In that eventuality, how
signature/thumb impression of the patient would be obtained on the
Form. It cannot be on a blank Form. Form ‘F’ is to be filled so that all
21
the details of each patient are maintained and are duly verified by her
by putting thumb impression or signature on the Form. In view of
above, I am unable to accept judgment of Bombay High Court in the
case of Dr. Alka (supra) wherein filling of Form ‘F’, after few days, is
held to be permissible. The violation of various provisions of the Act
and Rules made thereunder in reference to Form ‘F’ and other
illegalities cannot be ignored. The complaint so as the order of
cognizance and even order of revisional court cannot be quashed on
the aforesaid ground.
In view of discussion made above, I do not find any substance
in any of the petitions, hence all the criminal misc. petitions are
dismissed. The stay earlier granted stands vacated with the aforesaid.
Before parting with the judgment, it would be necessary to
refer order of the Division Bench of this court in the case of Dr. S.K.
Gupta Vs. Union of India & Ors., D.B. Public Interest Litigation
No.3270/2012, dated 25.11.2014 where direction has been given for
expeditious disposal of the cases, thus the court below will take up
the cases at the earliest for its early disposal.
[M.N.BHANDARI], J.
FRBOHRA/1828CMP2013.doc
Certificate:
“All corrections made in the judgment/order have been incorporated in the judgment/order
being emailed.”
FATEH RAJ BOHRA, Sr. P.A.

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Author: savedaughters19

This is a coverage of my struggles to save my daughters.I am thank full to my parents not only for Not killing me ,but also helping me save my daughters... My dream- A big shelter house for women who want to give birth to their daughters and raise them up with dignity and self respect , but have to fight their own families to do so. Will have medical facilities and facilities for legal aid. will have training centers for vocational courses so that they can stand up on their own two feet and stop the dependency on their husbands for finances, A child care center run and managed by the inmates, A kitchen and a vegetable farm run and managed by the inmates. At present only a dream.... But with grace of God will become a reality. God will show the way and means to achieve the dream.

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