“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.__174___ OF 2013
(Arising out of SLP (Criminal) No. 4883 of 2008)
Rajiv Thapar & Ors. …. Appellants
Versus
Madan Lal Kapoor …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on
30.11.1991. After her marriage, Dr. Monica Thapar got admission in a Post
Graduate Diploma course in Gynaecology (DGO) at Medical College, Surat, in
June 1992.
Accordingly, she started working as a Resident at the aforesaid
Medical College. At his own request, Rajiv Thapar, who was (and still is)
a member of the Indian Revenue Services, was transferred from Ahmedabad to
Surat.
On 16.9.1992, while the husband and wife were living at Surat, Dr.
Monica Thapar fell ill.
For her treatment, she was admitted to Mahavir
Hospital, Surat. She was diagnosed as suffering from Malaria. Having been
treated for the same, she was discharged on 20.9.1992.
Two days
thereafter, Dr. Monica Thapar again fell ill on 22.9.1992. This time, she
was taken to Medical College, Surat i.e., the hospital where she was
herself working as a Resident.
She was first examined by a radiologist,
and thereafter, by Dr. Girish Kazi, a cardiologist. It was suspected, that
she has a hole in her heart.
Based on the aforesaid diagnosis, Dr.
Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The
said echo-cardiography confirmed the presence of a large hole in her heart.
On the advice of doctors who attended on Dr. Monica Thapar at Medical
College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on
24.9.1992.
While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar
allegedly suffered a massive heart attack on 26.9.1992.
The same supposedly proved fatal.
3. The factum of death of Dr. Monica Thapar was conveyed to the
immediate family of Rajiv Thapar, as well as to the family of the deceased.
A decision was taken to cremate the dead body at Delhi. Accordingly,
after embalming the body of Dr. Monica Thapar, it was transported by rail
to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar including
her father Madan Lal Kapoor (respondent-complainant herein) were present at
the time of arrival of the body at Delhi.
4. Madan Lal Kapoor made a complaint to the Police Control Room
alleging, that he suspected that his daughter had been poisoned. This
suspicion was based on the fact, that the body had turned blue. On the
aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of
powers vested in him under Section 176 of the Code of Criminal Procedure
(hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings.
In the first instance, the body of the deceased was subjected to a post-
mortem examination, for which the following Medical Board was constituted:-
(i) Dr. Bharat Singh, Medical Superintendent, Civil Hospital,
Delhi.
(ii) Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi.
(iii) Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital,
New Delhi.
(iv) Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant
Hospital, New Delhi.
The Medical Board came to the conclusion, that Dr. Monica Thapar had died
of cardiac decomposition. The final opinion of the Medical Board, was
recorded in a report dated 28.9.1992, in the following words:-
“OPINION In view of the clinical reports submitted and post
mortem findings observed, the Board of Direcors is of the
opinion that, death is consequent to cardiac decompensation due
to enlarged atrial septal defect & pulmonary hypertension. No
definite opinion can be given about falciparm Malaria,
histopathological assessment.
Viscera is preserved for chemical analysis as desired by
SDM. Time since death is about 48 hours and is consistent with
the history.”
(emphasis is ours)
During the post-mortem examination, samples from the stomach, intestine,
liver, spleen, kidney and blood of the deceased’s body were taken. These
samples were sent for chemical examination to the Central Forensic Science
Laboratory, New Delhi. The report of the Forensic Laboratory dated
9.2.1993, recorded the following conclusions:-
“SPECIFICATION OF THE ARTICLE CONTAINED IN THE PARCEL
1. Parcel contained:
(a) One wide-mouth bottle containing stomach, intestine
with contents, Exhbt 1a.
(b) One wide mouth bottle containing liver, spleen &
kidney, Exhbt 1b.
(c) One phial containing few drops blood, Exhbt 1c.
xxx xxx xxx
RESULTS OF ANALYSIS
The Exhibit nos. 1a, 1b and 1c gave negative tests for
common poisons.”
It is therefore apparent, that the Central Forensic Science Laboratory, New
Delhi, having analysed the samples from the stomach, intestine, liver,
spleen, kidney and blood, concluded that the same did not contain any
“common poison”.
5. Insofar as the inquest proceedings initiated by the Sub-Divisional
Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are
concerned, it would be relevant to mention, that Madan Lal Kapoor (the
respondent-complainant herein) the father of the deceased, in the first
instance, refused to record any statement before the SDM, Delhi, on the
ground that he would record his statement only after the receipt of the
post-mortem report. Even on the receipt of the post-mortem report, the
said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record
their statements before the SDM, Delhi, on the assertion, that the mother
of the deceased knew the facts best of all, and as such, her statement
needed to be recorded first of all. It was pointed out, that her statement
could not be recorded immediately because she was in a state of shock. It
may be noted, that neither the mother nor the brother of Dr. Monica Thapar
appeared before the SDM, Delhi, to record their statements. Madan Lal
Kapoor had sought time thrice, from the SDM, Delhi, to get the statement of
his wife recorded. Madan Lal Kapoor, father of the deceased, however,
eventually recorded his statement before the SDM, Delhi, even though the
mother of the deceased had not appeared before the Magistrate to record her
statement.
6. The SDM, Delhi, during the course of inquest proceedings, recorded
the statements of the following accused persons:-
(i) Rajiv Thapar (husband of the deceased; appellant no. 1
herein).
(ii) Kusum Thapar (mother-in-law of the deceased; appellant no.
5 herein).
(iii) Sangeeta Thapar (wife of the brother-in-law of the
deceased; appellant no. 4 herein).
In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria
(a colleague of the deceased at Medical College, Surat). Insofar as the
accusations and counter allegations are concerned, it is not essential to
refer to the statements of any of the rival parties. It is however,
appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the
same is not available on the record of the case, reference thereto in the
inquest report, is being extracted hereunder:-
“Statement of Mr. Pritu Dhalaria
Sh. Pritu Dhalaria stated that Monika Thapar was known to him
from the date she got admission in the Medical College in June,
92. And he regards her as his elder sister. He further stated
that both Monika and Rajeev were happy and living a happy
married life. On 17th September, 1992, he came to know that
Monika was ill and admitted in the Mahavir Hospital. In the
evening of 17.9.1992, when he met Monika he came to know that
she was suffering from Malaria. And on 24.9.1992, he came to
know that she was admitted in the Urmil Heart Hospital. He
further stated after Echo-Cardiography doctor declared that
Monika was suffering from A.S.D. (Larger Hole in Heart) and
pulmonary Hypertension. He stated that on 26.9.1992, at about
2.00-2.15 p.m., Monika’s situation became serious. And inspite
of all attempts of doctors, she got heart attack and died on
3.30 p.m. He also stated that the MS of Civil Hospital, Surat,
Dr. Khanna was present alongwith the other doctors at that
time.”
(emphasis is ours)
7. The statement of Dr. Pritu Dhalaria fully coincides with the version
expressed by the appellants-accused. That Dr. Monica Thapar had two bouts
of illness. In the first episode, she was diagnosed as suffering from
Malaria. She was treated for the same and discharged. Thereafter, she was
diagnosed with a large hole in her heart, on the basis of an echo-
cardiography. She died of a massive heart attack on 26.9.1992. At the
time of her death, Dr. Khanna and other doctors of the Civil Hospital,
Surat, were present.
8. The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the
following conclusions:-
“Conclusion
Allegation levelled by Shri Madan Lal Kapoor, father of the
deceased regarding harassment and dowry death, it appears that
allegation are not correct in the light of the fact of Natural
death in the statements the husband and in laws of the deceased
produced photocopies of letters written by Sh. Madan Lal Kapoor
and Rajiv Kapoor. Perusal of the letter shows that both the
families enjoyed a normal happy relationship and not an
abnormal and strained relation till the death of Monika.
Sh. Rajeev Thapar has produced copy of telephone Bill of
residential phone shows the Telephone Cells are made to Madan
lal phone No.574390 at Mohali Chandigarh on 17.09.92, 21.09.92,
24.09.92 and 25.09.92 during the course of illness of Monika
Sh. Rajeev Kapoor, the brother of the deceased well aware
of the situation of Monika as per his letter dated 22nd
September, 92 and at that time the families are enjoying a very
good relationship. So it is not possible in these circumstances
that Monkka was harassed by her in-laws. The few lines as
under:-
“How are you Now? I hope by now you will have
recovered from Malaria. We should have faith in God.
Please give top priority to your health.
Off and on I go to Janakpuri, all are very nice
there, very affectionate and very caring. You must be knowing
that Sanjay Bhai Saheb have been promoted to the rank of
Squadron Leader..
The brother is no likely to praise the family of his
sister’s in-laws in case his sister is being harassed for dowry.
Statement of Sh. Pritu, Colleague of Mrs. Monika, also
shows that Monika and Rajiv enjoyed a very happy and cordial
relationship, which also shows that allegations of harassment
does not appear to be correct. According to the statements
given before me Monika stayed with her in-laws in Delhi only for
4-5 days. Hence the charged of harassment levelled does not
appear to be correct. From the statement and evidence produced
before me, it does not appear that she was being harassed.
Report of Sh. S.K. Pathi M.d. Radiologist during the treatment
of Monika.
“Mild Cardiac enlargement with dilated pulmonary vessels
and evidence of Pulmonary Dedema. Advise:
Echocardiography.”
Report of Dr. J.C. Damaswala M.D. during the treatment of
Monika.
“Large osteum secundum ASD Measuring 3.0 cm with Ltd. To
Rt. Shunt on colour flow and conventional Doppler.”
Death certificate issued by Urmil Heart and Lung Centre:-
Cause of Death: Cardio-Respiratory arrest due to Malaria ASD C
Pulmonary Hypertension.
The post-mortem of the dead body revels that death is due
to Cardiac de-compensation due to enlarged atrial Septal Defect
and pulmonary Hypertension (As per board of doctors)
The CFSL report of the viscera reveals negative tests for
common poison.
Inquest proceedings started on 27.09.1992 and till now
mother of the deceased has not come forward to give her
statement. Father of the deceased visited SDM office three
times but never brought his wife for recording statement. Now
there is no point in waiting for her statement when death is
proved natural and beyond any doubt.
The case of the death is clearly determined to be natural
inquest proceedings under Section 176 Cr.PC may be closed as
foul play in the death of Smt. Monika Thapar is completely
ruled out and the allegation made in the PCR called on
29.09.1992 have not been turned out by the evidence on record.
Sd/-
Sub-Divisional Magistrate, Kotwali, Delhi.
6.7.1993”
A perusal of the inquest report reveals that the SDM, Delhi, concluded that
“… foul play in the death of Smt. Monika Thapar is completely ruled out…”
The SDM, Delhi, also held “…death is proved natural and beyond any doubt…”
9. On 29.9.1992, Madan Lal Kapoor (the respondent-complainant), father
of the deceased Dr. Monica Thapar, filed a complaint before the
Commissioner of Police, Delhi. Prior thereto, on the same issue, he had
filed similar complaints before the Police Commissioner, Surat, Police
Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy.
Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura, New
Delhi. The aforesaid complaints had been filed by the father of the
deceased praying for registration of a First Information Report, interalia,
under Sections 304B and 498A of the Indian Penal Code. Since the
complaints filed by Madan Lal Kapoor did not bear any fruitful result, he
filed a criminal complaint before the Metropolitan Magistrate, Delhi on
6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning.
Relevant portion of the complaint made by Madan Lal Kapoor (the respondent-
complainant) is being extracted hereunder:-
“10. That in the second week of September, 1992, accused no.1
Rajiv Thapar called his mother from Delhi, on the false pretext
that Monika was pregnant and needed care. As a matter of fact,
it was in the pursuance of the conspiracy hatched by the accused
themselves to do away with the life of Monika in some mysterious
manner and on the pretext the mother of Rajiv Thapar accused
no.1 was called from Delhi, and sometimes thereafter on that
pretext she was admitted in some hospital of their choice, where
the conspiracy could be implemented.
11. That on 26.9.1992 the complainant enquired on telephone
from accused no.2 about the welfare of his daughter but now she
was quite alright and there was nothing worry about her. The
complainant enquired from him about the details of her illness
and hospital where she was admitted, but accused no.2 did not
disclose as the voice of Mr. Thapar accused no.2 was some what
in co-herent on the phone, the complainant suspected something
wrong, when the complainant told him that he along with his wife
was going to Surat, accused no.2 told him that there was no need
of going and everything was alright, but when the complainant
told him in clear term that he apprehended something wrong
regarding the illness of his daughter, on which accused no.2
told the complainant on phone that Monika had expired.
12. That accused no.2 in conspiracy with his co-accused did not
disclosed the kind of illness, of the treatment she was given
with a criminal intention that the complainant and his wife may
not able to see their daughter and give her proper treatment.
Mrs. Monika was not suffering from any disease. Of course, due
to constant harassment, torture, physical and violent and mental
torture, her health had broken down and she fell ill. Her death
was due to constant torture for not meeting the illegal demand
of a Maruti Car.
13. That the dead body of Monika was brought to Delhi under
mysterious circumstances, no permission was obtained for taking
dead body from Surat to Delhi in the train.
14. That the complainant and his wife reached Delhi and saw
some poisonous substance had been administered to her, on this
report of the complainant, the post-mortem was conducted at
Delhi.
15. That the complainant was moved hell and earth in the
matter. He has given complaint to police Commissioner, Surat.
Deputy Commissioner, Athwa Crime Women Cell, South, Moti Bagh,
Nanakpura, New Delhi, Police Officer Incharge, Umra , Police
Station, Athwa Lines, Surat and another authority; but no action
has been taken, even the copy of the Post Mortem Report has not
been supplied to the complainant.
16. That the death of Mrs. Monika took place within a year of
her marriage under mysterious circumstances on account of demand
of dowry which demand was not met and thereafter she was
tortured mentally and physically and leading to her illness and
in that condition she was administered some poisonous matter.
The accused have committed serious offences under Sections
304B/120B/498A/109 I.P.C. They be tried according to law and
convicted.
Sd/-
Dated 6.7.93 Madan Lal Kapoor
Complainant”
(emphasis is ours)
10. The complaint extracted above, reveals mere aspersions, based on
suspicion. The complaint did not express any concrete fact disclosing how
the appellants-accused were responsible for having taken his daughter’s
life. In fact, the narration of facts hereafter reveal, the shifting
stance of the father of the deceased, about the cause of his daughter’s
death. On 24.5.1995, Madan Lal Kapoor (the respondent-complainant)
examined himself and his son Rajiv Kapoor before the Metropolitan
Magistrate, Delhi in order to substantiate the allegations levelled by him
in respect of the unnatural death of his daughter Dr. Monica Thapar. Based
on the statements made by Madan Lal Kapoor (the respondent-complainant) and
his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated
24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi, while
summoning the accused, recorded the following observations:-
“It is further alleged that at the time of her death she was
doing Diploma in Gynaecology in territories at Surat where his
son in law was employed. The complainant did not receive any
telephone call either from his daughter or son in law and he
therefore rang up to Ramesh Thapar at Delhi to enquire about the
welfare of his daughter and Ramesh Thapar told him on telephone
that his wife Kusum Thapar had been called to Surat to look
after his daughter as she was said to be pregnant but
subsequently she was aborted. The complainant enquired from him
as to the particulars of the hospital where she was admitted and
what was the ailment she was suffering from, she replied that
her daughter was quite all right and he should not worry about
her welfare again insisted to given particulars of the hospital
and the complainant suspected that her in-laws were not behaving
with her properly and were harassing, therefore, he insisted
that he himself and his wife shall go to Surat and he told him
that he suspected some foul play in the matter on which Ramesh
Thapar told him from Delhi that his daughter Monika has already
expired, and he enquired as to where she will be cremated. The
accused brought the dead body of his daughter from Surat to
Delhi but they did not allow him and his family members to see
the dead body but on their insistence, they saw the dead body of
his daughter and he saw that the face and mouth of his daughter
was blue. He suspected that her daughter has been given some
poisonous matter, as a result of which she had died. He
informed the police and the police came and got the post mortem
of the dead body conducted, but thereafter nothing was done by
police in this matter. He sent a registered letter to the
Police Commissioner, Delhi and he went to Surat and filed a
complaint before the Police Commissioner but nothing was done.
The complainant suspect that his daughter has been admitted
because his daughter had not brought sufficient dowry according
to the status and had also failed to fulfill the demands of
above named accused persons of bringing dowry and Maruti Car and
cash.
I have carefully considered the argument put forward by
Ld. Counsel for complainant. I have also carefully gone through
the complaint and have carefully considered the preliminary
evidence adduced by the complainant in support of his case, and
from the material on record in my considered opinion, there are
sufficient grounds for proceedings against all the accused
persons for committing offence punishable u/s.
304B/498A/406/120B IPC.
Accordingly, I order that accused Rajiv Thapar, Ramesh
Thapar, Sangeet Thapar and Mrs. Kusum Thapar be summoned for
19.12.1995 on filing of PF.”
11. The appellants assailed the aforesaid summoning order dated
24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the
High Court of Delhi (hereinafter referred to as, the High Court). The
challenge raised was primarily on the ground, that Madan Lal Kapoor (the
respondent- complainant) had suppressed vital material, in his complaint.
It was alleged, that the complainant did not disclose the particulars of
the post-mortem examination, the report of the Central Forensic Science
Laboratory, as also, the inquest report. The High Court dismissed the
aforesaid petition summarily on the premise, that the same had been
prematurely filed. Accordingly, liberty was granted to the appellants to
move the trial Court, if they were so advised, for seeking a recall of the
summoning order (dated 24.8.1995). Immediately, on the disposal of the
petition by the High Court, the appellants moved an application before the
Metropolitan Magistrate, Delhi, praying for a recall of the summoning order
dated 24.8.1995. The aforesaid application was dismissed by the
Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of
the opinion that at this stage, there is no ground to review or recall the
order dated 24.8.1995 passed by my L.D. Predecessor, whereby he summoned
the accused for the above stated offences after taking cognizance…”
12. Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary
evidence. Based thereon, and having formed an opinion, that there was
sufficient material to proceed against the accused under Sections 498, 496,
304B read with Sections 120-B of the Indian Penal Code, the Metropolitan
Magistrate, Delhi, committed the case to the Court of Sessions, as the
offence under Section 304B is exclusively triable by a Court of Sessions.
13. While examining the matter further, with the pointed object of either
discharging the accused (under Section 227 of the Cr.P.C.) or framing
charges against them (under Section 228 of the Cr.P.C.), the Additional
Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the
respondent-complainant) had not brought the following
record/material/documents to the notice of the Metropolitan Magistrate,
Delhi:-
(i) The post-mortem report dated 28.9.1992.
(ii) The inquest report dated 6.4.1993.
(iii) The correspondence made by the respondent and his son.
The Additional Sessions Judge, Delhi also felt, that the Metropolitan
Magistrate, Delhi, had not fully complied with the provisions of Section
202 of the Cr.P.C. (requiring him to enquire into the case himself).
Therefore, the Additional Sessions Judge, Delhi examined the allegations
made in the complaint in conjunction with all of the aforesaid material.
14. Since the learned counsel representing Madan Lal Kapoor (the
respondent-complainant) had raised an additional plea (before the
Additional Sessions Judge, Delhi), that the deceased was also suspected of
having been strangulated to death, the Additional Sessions Judge, Delhi
summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of the
Medical Board, which had conducted the post-mortem examination). The
Additional Sessions Judge, Delhi, sought clarifications on the allegations
of strangulation, from the two doctors. The Court also recorded the
statement of Dr. Amit Banerjee.
15. The Additional Sessions Judge, Delhi then heard detailed arguments on
charge. Upon consideration, the Additional Sessions Judge, Delhi, recorded
detailed findings, which are being summarized hereunder:-
(i) The inquest proceedings conducted by the SDM, Delhi, which
interalia contained the broad facts of the married life of
the deceased, were inconsistent with the theory of
harassment extracted in the complaint.
(ii) The accused Rajiv Thapar, husband of Dr. Monica Thapar
(deceased) had been seeking medical advice, and had been
getting the deceased’s medical treatment at Surat,
whereupon it came to be discovered, that she had a large
hole in her heart.
(iii) The Medical Board which conducted the post-mortem
examination on the body of the deceased, confirmed the
conclusion certified by Urmil Heart and Lung Centre, Surat,
that her death occurred because of cardiac de-compensation,
and that Dr. Monica Thapar had died a natural death.
(iv) The plea of strangulation raised on behalf of the
complainant was held to be unsubstantiated consequent upon
the clarification rendered by Dr. L.T. Ramani and Dr. Amit
Banerjee.
(v) The post-mortem report and the Central Forensic Science
Laboratory’s report, which recorded a negative opinion on
poisoning, were taken into consideration to conclude, that
the death of Dr. Monica Thapar was not due to poisoning.
(vi) The statement made by Dr. Pritu Dhalaria, a colleague of
the deceased at the Medical College, Surat, referred to in
the inquest proceedings (relevant portion extracted above),
was relied upon to disbelieve the theory of foul play, in
the death of Dr. Monica Thapar.
(vii) Based on the facts recorded in the inquest report, as also
in the statement of Dr. Pritu Dhalaria, that Dr. Monica
Thapar had died after her admission and treatment in the
Urmil Heart and Lung Centre, Surat, it was deduced, that
Rajiv Thapar, the husband of the deceased could have
neither strangulated nor poisoned the deceased, while she
was admitted for treatment at the Urmil Heart and Lung
Centre, Surat.
Based, interalia, on the aforesaid evaluation of the complaint filed by
Madan Lal Kapoor (the respondent-complainant), the Additional Sessions
Judge, Delhi concluded, that no prima facie case was made out against the
appellants/accused either under Section 304B of the Indian Penal Code or
under Section 498 of the Indian Penal Code. The Additional Sessions Judge,
Delhi, accordingly discharged the appellants/accused by an order dated
7.8.1999.
16. Dissatisfied with the order dated 7.8.1999 passed by the Additional
Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant) filed
a Criminal Revision Petition (bearing no. 42 of 2000) in the High Court.
The aforesaid Criminal Revision Petition was dismissed in default on
11.8.2005. The order dated 11.8.2005 was assailed through a Special Leave
Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court. The
aforesaid Special Leave Petition was allowed by this Court on 31.8.2007.
The matter was remanded back to the High Court for adjudication on merits.
It is thereupon, that the High Court passed the impugned order dated
8.5.2008, setting aside the order dated 7.8.1999 passed by the Additional
Sessions Judge, Delhi. The instant order dated 8.5.2008 is the subject
matter of challenge in the present appeal.
17. A perusal of the order of the High Court would reveal that the
Additional Sessions Judge, Delhi, had primarily relied on certain
observations made in the judgment rendered by this Court in Satish Mehra
Vs. Delhi Administration, (1996) 9 SCC 766:-
“15. But when the Judge is fairly certain that there is no
prospect of the case ending in conviction the valuable time of
the Court should not be wasted for holding a trial only for the
purpose of formally completing the procedure to pronounce the
conclusion on a future date. We are mindful that most of the
Sessions Courts in India are under heavy pressure of work-load.
If the Sessions Judge is almost certain that the trial would
only be an exercise in futility or a sheer waste of time it is
advisable to truncate or snip the proceedings at the stage of
Section 227 of the Code itself”
Madan Lal Kapoor (the respondent-complainant), before the High Court, had
relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi (2005)
1 SCC 568, to contend that the judgment relied upon by the Additional
Sessions Judge, Delhi, having been overruled, had resulted in an erroneous
conclusion. For the same proposition, reliance was placed on the judgment
of this Court in Suresh Kumar Tekriwal Vs. State of Jharkhand, (2005) 12
SCC 278. On behalf of the complainant, reliance was also placed on the
decision in State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, to
contend, that only the material placed on record by the prosecution, could
be gone into at the time of framing charges. And if, on the basis of the
said material, the commission of the alleged offence was prima facie made
out, the charge(s) was/were to be framed. At the stage of framing of
charges, it was submitted, that the requirement was not to determine the
sufficiency (or otherwise) of evidence to record a conviction. For this,
reliance was placed on State of M.P. Vs. Mohanlal Soni (2000) 6 SCC 338,
wherein this Court had concluded, that the requirement was a satisfaction,
that a prima facie case was made out. On behalf of Madan Lal Kapoor,
reliance was also placed on State of A.P. Vs. Golconda Linga Swamy (2004) 6
SCC 522, to contend that at this stage, meticulous examination of the
evidence was not called for.
18. As against the submission advanced on behalf of Madan Lal Kapoor (the
respondent-complainant), the appellants/accused contended, that the Court
was justified in considering the material on the record of the case, and on
the basis thereof, to arrive at a just and reasonable conclusion. In this
behalf, it was averred that the post-mortem report, the report of the
Central Forensic Science Laboratory, the inquest proceedings recorded by
the SDM, Delhi, and the letters addressed by the family members of the
complainant (duly noticed in the inquest proceedings), were a part of the
record of the case, and as such, were to be taken into consideration while
passing the orders contemplated under Sections 227 and 228 of the Cr.P.C.
The submission advanced on behalf of Madan Lal Kapoor (the respondent-
complainant) before the High Court, was accepted. The High Court arrived
at the conclusion, that the Additional Sessions Judge, Delhi had
erroneously placed reliance on the decision rendered by this Court in
Satish Mehra Vs. Delhi Administration (supra), which had already been
overruled by the judgment rendered by a larger Bench in State of Orissa Vs.
Debendra Nath Padhi (supra).
19. While considering the contention advanced on behalf of the
appellants/accused, the High Court concluded, that the
material/documents/record which the complainant was placing reliance on,
did not fall within the ambit and scope of the term “record of the case”
contained in Section 227 of the Cr.P.C. According to the High Court, the
record of the case referred to in Section 227 of the Cr.P.C. was only such
record, documents and articles which, on consideration by the Magistrate,
are sent to the Court of Sessions, consequent upon passing an order of
commitment. The material and documents relied upon by the
appellants/accused in the present controversy would, therefore, not fall
within the zone of consideration at the hands of the Court of Session under
Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the
behest of the appellants/accused were declined. For the aforesaid reasons,
the High Court accepted the Criminal Revision Petition filed by Madan Lal
Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by
the Additional Sessions Judge, Delhi was accordingly quashed. The parties
were accordingly directed to participate in the further proceedings before
the Court of Sessions.
20. We have considered the submissions advanced at the behest of the
rival parties. We are of the view, that in the facts and circumstances of
this case, the High Court had before it an exhaustive and detailed order
passed by the Additional Sessions Judge, Delhi, it ought to, therefore,
have examined the controversy, while keeping in mind the inherent power
vested in it under Section 482 of the Cr.P.C. specially because the
Additional Sessions Judge in his order dated 7.8.1999, had concluded, on
the basis of the material relied upon by the accused, that no case was made
out against the accused. This according to learned counsel, was
permissible in view of the inherent jurisdiction vested in the High Court
under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being
extracted hereunder:-
“482. Saving of inherent power of High Court
Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be
necessary to give effect to any order this Code, or to prevent
abuse of the process of any court or otherwise to secure the
ends of justice.”
The discretion vested in a High Court under Section 482 of the Cr.P.C. can
be exercised suo-moto to prevent the abuse of process of a court, and/or to
secure the ends of justice. This Court had an occasion to examine the
matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally
the said judgment was heavily relied upon by the learned counsel for the
respondent-complainant), wherein it was held thus:-
“29. Regarding the argument of accused having to face the trial
despite being in a position to produce material of unimpeachable
character of sterling quality, the width of the powers of the
High Court under Section 482 of the Code and Article 226 of
Constitution of India is unlimited whereunder in the interests
of justice the High Court can make such orders as may be
necessary to prevent abuse of the process of any Court or
otherwise to secure the ends of justice within the parameters
laid down in Bhajan Lal's case.”
(emphasis is ours)
Recently, this Court again had an occasion to examine the ambit and scope
of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar &
Ors., (2008) 14 SCC 1,
wherein in the main order it was observed, that the
width of the powers of the High Court under Section 482 of the Cr.P.C. and
under Article 226 of the Constitution of India, was unlimited. In the
instant judgment, this Court held that the High Court could make such
orders as may be necessary to prevent abuse of the process of any court, or
otherwise to secure the ends of justice. In a concurring separate order
passed in the same case, it was additionally observed, that
under Section
482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained.
The aforesaid parameters shall
be kept in mind while we examine whether the High Court ought to have
exercised its inherent jurisdiction under Section 482 of the Cr.P.C. in the
facts and circumstances of this case.
21. The High Court, in exercise of its jurisdiction under Section 482 of
the Cr.P.C., must make a just and rightful choice. This is not a stage of
evaluating the truthfulness or otherwise of allegations levelled by the
prosecution/complainant against the accused. Likewise, it is not a stage
for determining how weighty the defences raised on behalf of the accused
is. Even if the accused is successful in showing some suspicion or doubt,
in the allegations levelled by the prosecution/complainant, it would be
impermissible to discharge the accused before trial. This is so, because
it would result in giving finality to the accusations levelled by the
prosecution/complainant, without allowing the prosecution or the
complainant to adduce evidence to substantiate the same. The converse is,
however, not true, because even if trial is proceeded with, the accused is
not subjected to any irreparable consequences. The accused would still be
in a position to succeed, by establishing his defences by producing
evidence in accordance with law. There is an endless list of judgments
rendered by this Court declaring the legal position, that in a case where
the prosecution/complainant has levelled allegations bringing out all
ingredients of the charge(s) levelled, and have placed material before the
Court, prima facie evidencing the truthfulness of the allegations levelled,
trial must be held.
22. The issue being examined in the instant case is the jurisdiction of
the High Court under Section 482 of the Cr.P.C., if it chooses to quash the
initiation of the prosecution against an accused, at the stage of issuing
process, or at the stage of committal, or even at the stage of framing of
charges. These are all stages before the commencement of the actual trial.
The same parameters would naturally be available for later stages as well.
The power vested in the High Court under Section 482 of the Cr.P.C., at
the stages referred to hereinabove, would have far reaching consequences,
inasmuch as, it would negate the prosecution’s/complainant’s case without
allowing the prosecution/complainant to lead evidence. Such a
determination must always be rendered with caution, care and
circumspection. To invoke its inherent jurisdiction under Section 482 of
the Cr.P.C. the High Court has to be fully satisfied, that the material
produced by the accused is such, that would lead to the conclusion, that
his/their defence is based on sound, reasonable, and indubitable facts; the
material produced is such, as would rule out and displace the assertions
contained in the charges levelled against the accused; and the material
produced is such, as would clearly reject and overrule the veracity of the
allegations contained in the accusations levelled by the
prosecution/complainant. It should be sufficient to rule out, reject and
discard the accusations levelled by the prosecution/complainant, without
the necessity of recording any evidence. For this the material relied upon
by the defence should not have been refuted, or alternatively, cannot be
justifiably refuted, being material of sterling and impeccable quality.
The material relied upon by the accused should be such, as would persuade a
reasonable person to dismiss and condemn the actual basis of the
accusations as false. In such a situation, the judicial conscience of
the High Court would persuade it to exercise its power under Section 482 of
the Cr.P.C. to quash such criminal proceedings, for that would prevent
abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would
delineate the following steps to determine the veracity of a prayer for
quashing, raised by an accused by invoking the power vested in the High
Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is
sound, reasonable, and indubitable, i.e., the material is of
sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would
rule out the assertions contained in the charges levelled
against the accused, i.e., the material is sufficient to reject
and overrule the factual assertions contained in the complaint,
i.e., the material is such, as would persuade a reasonable
person to dismiss and condemn the factual basis of the
accusations as false.
(iii) Step three, whether the material relied upon by the accused, has
not been refuted by the prosecution/complainant; and/or the
material is such, that it cannot be justifiably refuted by the
prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an
abuse of process of the court, and would not serve the ends of
justice?
If the answer to all the steps is in the affirmative, judicial
conscience of the High Court should persuade it to quash such criminal
proceedings, in exercise of power vested in it under Section 482 of
the Cr.P.C. Such exercise of power, besides doing justice to the
accused, would save precious court time, which would otherwise be
wasted in holding such a trial (as well as, proceedings arising
therefrom) specially when, it is clear that the same would not
conclude in the conviction of the accused.
24. The complaint made by Madan Lal Kapoor (the respondent-complainant)
proceeds on the assumption, that his daughter Dr. Monica Thapar was
administered poison. The said assumption was based on the fact, that the
respondent-complainant, (as also the members of his family), found the body
of their daughter had turned blue when they laid their eyes on it for the
first time after her death. The motive disclosed in the complaint is non-
cordiality of relations between the deceased Dr. Monica Thapar, and the
family members of her husband (the appellants herein), on account of non-
fulfillment of dowry demands. Insofar as the allegation, that the
appellants had poisoned Dr. Monica Thapar to death is concerned, the
appellants have placed reliance on the post-mortem report dated 28.9.1992,
chemical analysis findings recorded in the Central Forensic Science
Laboratory’s report dated 9.2.1993, the inquest report dated 6.7.1993, and
the order passed by the Additional Sessions Judge, Delhi, dated 7.8.1999.
It is clear, that Madan Lal Kapoor (the respondent-complainant), was
associated with the investigative process from the very moment the body of
Dr. Monica Thapar arrived at Delhi. It was at his instance, that the post-
mortem examination was conducted. The body of the deceased, after the same
was subjected to the post-mortem examination, was handed over jointly to
Madan Lal Kapoor (the father of the deceased) and to Rajiv Thapar (the
husband of the deceased). The cremation of the body of Dr. Monica Thapar
was carried out jointly by the two families. A high level Medical Board,
constituted for conducting the post-mortem examination, in unequivocal
terms returned a finding, that “cardiac decompensation due to enlarged
atrial septal defect & pulmonary hypertension” was the cause of Dr. Monica
Thapar’s death. It would be pertinent to notice, that samples from the
stomach, intestine, liver, spleen, kidney and blood of the deceased’s body
were taken for forensic examination in order to verify the allegation of
poisoning levelled by Madan Lal Kapoor. The Central Forensic Science
Laboratory, New Delhi, in its report dated 9.2.1993 negatived the aforesaid
allegation by concluding, that the samples did not indicate the presence of
any common poisoning substance. Relying on the inquest report dated
6.7.1993, rendered by the SDM, Delhi, it was sought to be asserted, that
echo-cardiography conducted at the Urmil Heart and Lung Centre, Surat,
disclosed the presence of a large hole in Dr. Monica Thapar’s heart. Even
according to the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had
suffered a massive heart attack, and had died at the said hospital on
26.9.1992. It was the submission of the learned counsel for the
appellants, that the aforesaid material is evidence of sterling quality
which was sufficient to demonstrate, that there was not the remotest
possibility, that the trial against the appellants would lead to their
conviction.
25. The evidence, relied upon by the appellant has not been contested or
refuted by Madan Lal Kapoor (the respondent-complainant), even though he
was aware of the same when he filed the complaint. During the course of
the proceeding before the committing Magistrate, and even before Sessions
Court and the High Court, the appellants had placed emphatic reliance on
the material referred to above. The same remained unrefuted in the
pleadings filed on behalf of Madan Lal Kapoor. During the course of
hearing at the stages referred to above, the veracity of the
documents/material referred to above was not contested. The aforesaid
position has subsisted even before this Court. It was accordingly
submitted on behalf of the appellants, that even if trial is allowed to
proceed against the appellants, at the culmination thereof, it would be
impossible to return a finding of guilt against any of the accused.
26. According to the learned counsel for the appellants, the material in
the nature of the post-mortem report, the Central Forensic Science
Laboratory’s report, as also the inquest report, would be sufficient to
exculpate the appellants from the allegations and accusations levelled in
the complaint.
27. We are one with the aforesaid submission.
From the
documents/material relied upon by the appellants, for exactly the same
reasons as have been projected on behalf of the appellants, we are
satisfied to conclude, that the death of Dr. Monica Thapar was not caused
by poisoning.
Merely because her body had turned blue, when it arrived at
Delhi, in our view, is not a sufficient basis to infer that she had been
poisoned to death.
In fact material relied upon by the appellants is
sufficient to condemn the factual basis of the accusation as false.
28. It also needs to be noticed, that Madan Lal Kapoor (the respondent-
complainant) took a summersault before the Additional Sessions Judge, Delhi
by alleging, that Dr. Monica Thapar had been strangulated by the
appellants, (even though the assertion in the complaint was, that she had
been poisoned to death). To determine the veracity of the allegation of
strangulation, as the cause of her death, the Additional Sessions Judge,
Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, New
Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant
Hospital, New Delhi (members of the Medical Board which had conducted the
post-mortem examination) to clarify the altered accusation levelled by
Madan Lal Kapoor. The aforesaid doctors, as is apparent from the order
dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, opined in
the negative. They affirmed, that the death of Dr. Monica Thapar had not
been caused by strangulation. We are therefore satisfied to affirm, that
the death of Dr. Monica Thapar has not been shown to have been caused by
strangulation. On an overall examination of the matter, we have no other
option, specially in the absence of any submission to the contrary, but to
conclude, that the material relied upon by the appellants would lead to the
indubitable conclusion, that Dr. Monica Thapar had not died on account of
having been strangulated.
29. We shall now advert to the allegation made in the complaint by Madan
Lal Kapoor, that there was non-cordiality of relations between the deceased
Dr. Monica Thapar, and her in-laws.
Telephone bills demonstrate, that
phone calls were regularly made from the residence of Rajiv Thapar
(appellant no. 1), to the maternal family of Dr. Monica Thapar.
The family
of the husband of Dr. Monica Thapar was in consistent and regular contact
with the other family members also.
This relationship is shown to have
been subsisting even at the time of the illness of Dr. Monica Thapar which
proved to be fatal.
Of utmost importance is a letter written by Rajiv
Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the
respondent-complainant).
In a letter dated 22.9.1992, just four days
before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered
praise on the immediate family of Rajiv Thapar residing at Delhi.
His
letter to his sister describes her in-laws in Delhi, as “very affectionate
and very caring”.
The telephone bills, as also the letter addressed by
Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling
quality.
Neither of the said materials has been controverted, either on
veracity or on truthfulness.
All this, in our opinion, would undoubtedly
and inevitably result in concluding, that the relationship between the two
families was cordial and affectionate.
Clearly contrary to what has been alleged in the complaint.
30. Even though the statement of Dr. Pritu Dhalaria has been relied upon
by the SDM, Delhi in the inquest report, which completely knocks out all
the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are
of the view, that it would be improper to make any reference thereto in
deciding the present controversy.
Reliance on the statement of Dr. Pritu Dhalaria
would be permissible only after the same is recorded by a court on
oath, whereupon, he has to be subjected to cross-examination.
Only then,
his statement would acquire credibility for reliance.
Any fact situation
based on the oral testimony, by one or the other party, cannot be the basis
of a determination, akin to the one in hand.
31. We are persuaded to conclude from the facts and circumstances of the
case exhaustively discussed in the foregoing paragraphs, that all the steps
delineated in the paragraph 23 above, can be answered in the affirmative,
on the basis of the material relied by the accused,
more particularly, the
post-mortem examination report dated 28.9.1992 conducted by a Medical Board
comprising of four doctors, whose integrity has not been questioned by the
respondent-complainant;
the chemical analysis findings contained in the
Central Forensic Science Laboratory’s report dated 9.2.1993 which has not
been disputed by the respondent-complainant;
the inquest report of the SDM,
Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by
involving the respondent-complainant;
the letter of Rajiv Kapoor (the
brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar
just four days before her death, the contents and authenticity whereof are
not subject matter of challenge at the hands of the respondent-complainant;
and finally, the telephone bills produced by the appellants-accused
substantiating consistent and regular contact between the rival families,
which have not been questioned.
We, therefore, have no hesitation in
concluding, that the judicial conscience of the High Court ought to have
persuaded it, on the basis of the material examined by it, to quash the
criminal proceedings initiated against the appellants-accused.
We,
therefore, hereby quash the aforesaid proceedings.
32. Despite the conclusion recorded hereinabove,
we are of the view, that
in the facts and circumstances of this case,
there should have been no
difficulty whatsoever for the High Court to have exercised its judicial
conscience for invoking the power vested in it under Section 482 of the
Cr.P.C.
From the narration of the facts recorded above, it emerges, that
even though the respondent-complainant Madan Lal Kapoor, in his complaint
dated 6.7.1993, adopted a clear and categoric stance,
that his daughter Dr.Monica Thapar had been poisoned to death,
before the Additional Sessions Judge, Delhi,
the respondent-complainant ventured to suggest,
that the appellants-accused had strangulated her.
The Additional Sessions Judge,
Delhi, summoned two of the doctors who were members of the Medical Board
which had conducted the post-mortem examination, and sought clarifications
from them.
He also recorded the statement of one of the said doctors.
The
Additional Sessions Judge, thereupon, ruled out the plea of strangulation.
When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died,
the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father
who had lost his daughter within one year of her marriage.
The matter
needed to have been evaluated, on the basis of one of the parameters laid
down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC
335, namely,
whether the criminal proceedings initiated by Madan Lal Kapoor
(the respondent-complainant) were actuated by malice and ulterior motive
for wreaking vengeance on the accused with a view to spite him due to some
private/personal grudge.
There is yet another reason emerging from the
facts of the case which needed to be kept in mind. Madan Lal Kapoor (the
respondent-complainant) had continued to represent before the SDM, Delhi,
that he would produce the mother of the deceased, who knew the facts best
of all.
Despite that, the mother of the deceased did not appear in the
inquest proceedings to record her statement, even though a number of
opportunities were afforded to the respondent-complainant to produce her.
The permissible inference is that he was himself not privy to the facts.
The fact that the mother of the deceased had not appeared to record a
statement against the appellants-accused has to have some
reason/justification.
Would a mother who believes that her daughter had
been poisoned/strangulated, restrain herself from recording her statement,despite the persuasion of her husband? Probably not.
The instant factual
position has been recorded hereinabove, not for the sake of determination
of the present controversy.
In a factual situation not as clear as the one
in hand, facts such as these, could be taken into consideration by a High
Court for recording its satisfaction, on the parameters formulated above.
33. For the reasons recorded hereinabove, criminal proceedings against
the appellants-accused are hereby set aside. The order of the High Court
is accordingly also set aside, but on grounds different from those taken
into consideration by the High Court. The instant appeal, accordingly
succeeds.
…………………………….J.
(D.K. Jain)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 23, 2013.
