Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is just an informer or relator.

                                                                 REPORTABLE

                                                              

                IN THE SUPREME COURT OF INDIA


               CRIMINAL APPELLATE JURISDICTION


              CRIMINAL APPEAL NO. 1376  OF 2004




Muthu Karuppan                                               .... Appellant(s)



             Versus



Parithi Ilamvazhuthi & Anr.                                    .... Respondent(s)









                              J U D G M E N T


P. Sathasivam, J.


1)     This   appeal   is   filed   against   the   final   judgment   and   order



dated   29.10.2004   passed   by   the   Division   Bench   of   the   High



Court of Judicature at Madras in Contempt Petition No. 397 of



2001   whereby   the   High   Court   held   the   respondents   therein



guilty   of   the   offence   punishable   under   Section   2   (c)   of   the



Contempt   of   Courts   Act,   1971   (in   short   `the   Act')   and



sentenced   to   undergo   simple   imprisonment   for   7   days   under



Section 12 of the Act.





                                                                                  1


2)     Brief Facts:


(a)    Parithi   Ilamvazhuthi-Respondent   No.   1   herein   was



elected   as   Member   of   Legislative   Assembly   (in   short   `MLA')   of



the   Egmore   Constituency,   Chennai   in   the   Elections   held   on



10.05.2001   to   the   Tamil   Nadu   State   Legislative   Assembly.



Large   scale   violence   and   several   attempts   of   booth   capturing



were reported on the day of election.   In respect of the same,



Crime   No.   958   of   2001   was   registered   against   his   opposite



party candidate John Pandian and others for various offences.



Similarly,   Crime   No.   960   of   2001   was   registered   against



Respondent   No.   1   by   one   David   for   various   offences.   John



Pandian was arrested on 10.05.2001 and remanded to judicial



custody.        Respondent   No.   1   filed   an   application   for



anticipatory   bail  being   Crl.   M.P.   No.   6244   of   2001   before   the



Sessions   Court,   Chennai   and   the   same   was   dismissed   on



16.05.2001   stating   that   the   investigation   is   at   an   early   stage



and enlargement would hamper the investigation.



(b)     On   17.05.2001,   Respondent   No.   1   was   arrested   and



remanded   to   judicial   custody.     On   the   same   day,   Muthu



Karuppan-the            appellant         herein         was         appointed         as





                                                                                        2


Commissioner   of   Police,   Greater   Chennai   City   and   assumed



charge.     On   21.05.2001,   Respondent   No.   1   moved   an



application for bail being Crl. M.P. No. 1379 of 2001 before the



XIV Metropolitan Magistrate which was dismissed on the same



day.   On 22.05.2001, Respondent No. 1 moved an application



for bail being Crl. M.P. No. 6277 of 2001 before the Principal



Sessions Court, Chennai mainly on the ground that he has to



attend the Assembly which has commenced on 22.05.2001 to



take   oath   as   MLA.     On   23.05.2001,   Respondent   No.   1   was



granted conditional bail by the Sessions Judge.



(c)     On   24.05.2001,   Rajendra   Kumar,   Inspector   of   Police,



(L&O),   Tamil   Nadu-Respondent   No.   2   herein,   filed   an



application for cancellation of bail being Crl. O.P. No. 9352 of



2001 before the High Court of Madras and sought for stay of



bail   granted   to   Respondent   No.   1   herein.     On   the   same   day,



learned   single   Judge   of   the   High   Court   stayed   the   order   of



grant   of   bail   and   ordered   notice   to   Respondent   No.   1   on   the



ground that the victim, namely, David is in a serious condition



and   the   accused   is   in   police   custody.     On   28.05.2001,   on



receipt   of   the   said   notice,   Respondent   No.   1   filed   a   counter





                                                                                3


affidavit   submitting   that   the   statement   of   Respondent   No.   2



regarding police custody is false.  On 29.05.2001, Respondent



No. 2 filed his reply affidavit admitting that it was a mistake by



oversight and the same is neither willful nor wanton.



(d)     On   30.05.2001,   the   petition   for   cancellation   of   bail   was



dismissed by the High Court holding that no ground was made



out   for   cancellation   of   the   bail.   After   the   order   dated



30.05.2001, Respondent No. 1 filed Contempt Application No.



397   of   2001   before   the   High   Court   stating   that   on   the



direction,   supervision   and   knowledge   of   the   appellant   herein,



Respondent   No.   2   moved   an   application   to   cancel   the   bail



granted   to   him   on   the   basis   of   false   statement   thereby



prevented him from attending the Assembly.  



(e)  On 29.10.2004, the Division Bench of the High Court held



the respondents therein guilty of the offence punishable under



Section 2(c) of the Act and  sentenced them to undergo simple



imprisonment for 7 days under Section 12 of the Act.



(f)     Aggrieved   by   the   judgment   and   order   of   the   High   Court,



appellant herein filed Criminal Appeal No. 1376 of 2004 before



this Court and on 13.12.2004, this Court admitted the appeal





                                                                               4


and   stayed   the   operation   of  the   impugned   order   insofar   as   it



relates  to the appellant.  Respondent  No. 2  also filed Criminal



Appeal No. 1500 of 2004 before this Court and by order dated



05.01.2005, this Court dismissed the appeal on merits holding



that the case of the Commissioner of Police stands entirely on



a different footing.    



3)    Heard   Mr.   A.K.   Ganguli,   learned   senior   counsel   for   the



appellant   and   Mr.   Altaf   Ahmed,   learned   senior   counsel   for



respondent No.1 and Mr. S. Ravi Shankar, learned counsel for



respondent No.2.



4)    Before   going   into   the   correctness   or   otherwise   of   the



impugned order of the Division Bench punishing the appellant



for   the   offence   under   Section   2(c)   of   the   Act   and   sentencing



him   under   Section   12   of   the   Act   to   undergo   simple



imprisonment for 7 days, it is useful to refer the facts leading



to   initiation   of   contempt   proceeding.     It   is   the   grievance   of



Respondent No. 1 that after the grant of bail,  Respondent No.



2  filed a false affidavit in Criminal O.P. No. 9352 of 2001 that



the  police   custody   had  been  ordered  by   the   XIV   Metropolitan



Magistrate on 23.05.2001, based on which, the learned single





                                                                               5


Judge   of   the   High   Court   stayed   the   order   of   grant   of   bail



passed   in   favour   of  Respondent   No.   1.     After   preliminary



examination,   the  Division   Bench,  by   order  dated   20.06.2001,



issued notice to  Respondent No. 2  herein to show cause as to



why contempt proceeding against him should not be initiated



for   having   made   false   statement   with   intent   to   mislead   the



Court.   In   the   same   proceeding,   the   Division   Bench   directed



issuance   of   notice   to   the   Commissioner   of   Police-appellant



herein  as  to  the  averments   of an   elected   MLA  being   in  police



custody   could   not   reasonably   have   been   made  prima   facie



without   the   knowledge   of   the   Commissioner,   more   so,   when



the election had just taken place and the elected member was



required to take oath, but by reason of his detention was being



prevented   from   taking   oath.     In   the   same   paragraph,   it   was



further stated that the extent to which the Commissioner had



knowledge   about   the   filing   of   the   petition   for   cancellation   of



bail, the instructions, if any, he had given in that regard, the



persons   to   whom   such   instructions   had   been   given   and   the



nature   of   instructions   shall   also   be   disclosed   by   the



Commissioner in his affidavit.





                                                                               6


5)     Based  on  the   notice   issued  by   the  Division  Bench  in  its



order dated 20.06.2001, the appellant-Commissioner of Police,



Chennai City, at the relevant time and the second respondent



Inspector   of   Police   (L&O),   Chennai   filed   separate   affidavits



explaining their stand.



6)     In  order   to  understand   the   above   issue,   it  is  relevant  to



refer   Section   2(c)   of   the   Act   which   defines   criminal   contempt



as:



       "(c) "criminal contempt" means the publication (whether

       by   words,   spoken   or   written,   or   by   signs,   or   by   visible

       representation, or otherwise) of any matter or the doing

       of any other act whatsoever which-



       (i)      scandalizes   or   tends   to   scandalize,   of   lowers   or

                tends to lower the authority of, any court; or

       (ii)     prejudices, or interferes or tends to interfere with,

                the due course of any judicial proceeding; or

       (iii)    interferes   or   tends   to   interfere   with,   or   obstructs

                or tends to obstruct, the administration of justice

                in any other manner."



7)     Giving   false   evidence   by   filing   false   affidavit   is   an   evil



which   must   be   effectively   curbed   with   a   strong   hand.



Prosecution should be ordered when it is considered expedient



in   the   interest   of   justice   to   punish   the   delinquent,   but   there



must   be   a  prima   facie  case   of   "deliberate   falsehood"   on   a





                                                                                       7


matter   of   substance   and   the   court   should   be   satisfied   that



there is a reasonable foundation for the charge.



8)    In   a   series   of   decisions,   this   Court   held   that   the



enquiry/contempt proceedings should be initiated by the court



in exceptional circumstances where the court is of the opinion



that   perjury   has   been   committed   by   a   party   deliberately   to



have   some   beneficial   order   from   the   court.     There   must   be



grounds of a nature higher than mere surmise or suspicion for



initiating   such   proceedings.     There   must   be   distinct   evidence



of   the   commission   of   an   offence   by   such   a   person   as   mere



suspicion   cannot   bring   home   the   charge   of   making   false



statement,   more   so,   the   court   has   to   determine   as   on   facts



whether it is expedient in the interest of justice to enquire into



offence which appears to have been committed.



9)    The contempt proceedings being quasi criminal in nature,



burden   and   standard   of   proof   is   the   same   as   required   in



criminal   cases.     The   charges   have   to   be   framed   as   per   the



statutory   rules   framed   for   the   purpose   and   proved   beyond



reasonable doubt keeping in mind that the alleged contemnor



is   entitled   to   the   benefit   of   doubt.     Law   does   not   permit





                                                                             8


imposing   any   punishment   in   contempt   proceedings   on   mere



probabilities,   equally,   the   court   cannot   punish   the   alleged



contemnor without any foundation merely on conjectures and



surmises.   As observed above, the contempt proceeding being



quasi  criminal   in   nature   require   strict   adherence   to   the



procedure   prescribed   under   the   rules   applicable   in   such



proceedings.



10)    In   exercise   of   the   powers   conferred   on   the   High   Court



under Articles 215 and 225 of the Constitution of India and in



terms   of   Section   23   of   the   Act,   the   Madras   High   Court



Contempt of Court Rules, 1975 (in short `the Rules') have been



framed.     The   said   Rules   prescribe   procedure   for   initiating



contempt and various steps to be adhered to.  By drawing our



attention to the Rules, Mr. Ganguli, learned senior counsel for



the   appellant   submitted   that   Rules   4   and   8   have   not   been



complied with.  By emphasizing the principles in paras 12 and



16 of the decision of this Court in  R.S. Sujatha  vs.  State of


Karnataka   &   Ors.,  2010   (12)   Scale   556,   learned   senior


counsel submitted that the contempt proceedings being  quasi



criminal   in   nature   require   strict   adherence   to   the   procedure





                                                                             9


prescribed under the rules applicable to such proceedings.  He



also pointed out that while sending notice, relevant documents



have   not   been   enclosed   and   the   consent   of  Advocate   General



was   not   obtained   for   initiating   contempt   proceedings   against



the   appellant.     Insofar   as   the   documents   referred   to   being



certain   orders   of   the   court,   no   serious   objection   was   taken



note of for not sending the same.




Consent of the Advocate General


11)    The   relevant   provision   which   deals   with   cognizance   of



criminal   contempt   in   other   cases   is   Section   15   of   the   Act



which reads as under:



       "15.  Cognizance   of   criminal   contempt   in   other

       cases.--(1)   In   the   case   of   a   criminal   contempt,   other

       than a contempt referred to in Section 14, the Supreme

       Court   or   the   High   Court   may   take   action   on   its   own

       motion or on a motion made by--

              (a) the Advocate-General, or

              (b) any other person, with the consent in writing to

              the Advocate-General, or

              (c)   in   relation   to   the   High   Court   for   the   Union

              territory of Delhi, such Law Officer as the Central

              Government   may,   by   notification   in   the   Official

              Gazette,   specify   in   this   behalf,   or   any   other

              person,   with   the   consent   in   writing   of   such   Law

              Officer."





                                                                                    10


The   whole   object   of   prescribing   procedural   mode   of   taking



cognizance is to safeguard the valuable time of the Court from



being   wasted   by   frivolous   contempt   petitions.  In  State   of


Kerala  vs.  M.S.   Mani   &   Ors.,  (2001)   8   SCC   82,   this   Court


held   that   the   requirement   of   obtaining   prior   consent   of   the



Advocate   General   in   writing   for   initiating   proceedings   of



criminal   contempt   is   mandatory   and   failure   to   obtain   prior



consent would render the motion non-maintainable.   In case,



a party obtains consent subsequent to filing of the petition, it



would not cure the initial defect and thus, the petition would



not become maintainable.




12)    In  Bal Thackrey  vs.  Harish Pimpalkhute & Anr.,  AIR



2005 SC 396, this Court held that in absence of the consent of



the Advocate General in respect of a criminal contempt filed by



a party under Section 15 of the Act, taking suo motu action for



contempt without a prayer, was not maintainable.




13)    However, in Amicus Curiae vs. Prashant Bhushan and


Anr., (2010) 7 SCC 592, this Court has considered the earlier


judgments and held that in a rare case, even if the cognizance





                                                                           11


is deemed to have been taken in terms of Rule 3(c) of the Rules



to   Regulate   Proceedings   for   Contempt   of   the   Supreme   Court,



1975,   without   the   consent   of   the   Attorney   General   or   the



Solicitor   General,   the   proceedings   must   be   held   to   be



maintainable in view of the fact that the issues involved in the



proceedings had far reaching greater ramifications and impact



on   the   administration   of   justice   and   on   the   justice   delivery



system   and   the   credibility   of   the   court   in   the   eyes  of   general



public.




14)    It   is   clear   from   the   recent   decision   of   this   Court   in


Prashant  Bhushan's  case   (supra)  that   if   the   issue   involved


in the proceedings had greater impact on the administration of



justice   and   on   the   justice   delivery   system,   the   court   is



competent   to   go   into   the   contempt   proceedings   even   without



the consent of the Advocate General as the case may be.




15)    Now,  coming  to the  merits of  the  impugned order  of the



High Court,  contempt   proceeding was initiated  mainly on the



basis of a false statement made on oath by  Respondent No. 2



which resulted in stay of the bail order passed by the Sessions





                                                                                12


Judge,   Chennai   in   favour   of   the  Respondent   No.   1,   and



prevented   him   from   taking   oath   in   the   Assembly.     Inasmuch



as   the   High   Court   has   dealt   with   the   issue   elaborately   on



factual aspects and we also adverted to the same in the earlier



part   of   our   judgment,   there   is   no   need   to   traverse   the   same



once   again.     In   respect   of   violence   on   the   day   of   election,



Respondent   No.   1  was   arrested   and   remanded   to   judicial



custody   on   17.05.2001.     On   the   same   day,   that   is,   on



17.05.2001,  the  appellant was appointed  as  Commissioner of



Police,   Greater   Chennai   City   and   assumed   charge.     On



21.05.2001, Respondent No. 1 moved an application for bail in



Crl.   M.P.   No.   1379   of   2001   before   the   XIV   Metropolitan



Magistrate   which   was   dismissed   on   the   same   day.     On



22.05.2001,  Respondent   No.   1  moved   an   application   for   bail



before   the   Sessions   Judge   in   Crl.   M.P.   No.   6277   of   2001



mainly   on   the   ground   that   as   the   new   Assembly   Session



commences   on   22.05.2001,   he   has   to   take   oath   and   further



the   victim,   namely,   David   has   also   been  discharged  from   the



hospital.     On   23.05.2001,  Respondent   No.   1  was   granted



conditional   bail  by   the   Sessions   Judge   mainly  on  the   ground





                                                                              13


that   he   has   to   take   oath   as   MLA.     It   is   further   seen   that



against grant of bail to  Respondent No. 1, Inspector of Police-



Respondent No. 2 filed an application being Crl. O.P. No. 9352



of 2001 on 24.05.2001 for cancellation of bail with application



for   stay   before   the   High   Court.     On   the   same   day,   vacation



Judge   of   the   High   Court   stayed   the   order   of   grant   of   bail   to



Respondent   No.   1  till   29.05.2001   on   the   ground   that   victim,



namely,   David   is   in   serious   condition   and   the   accused



Respondent   No.   1   is   in   police   custody.     By   pointing   out   that



the information furnished by Respondent No. 2 in his affidavit



filed in support of the application for stay of the order of grant



of bail regarding his police custody is false,  Respondent No. 1



filed a counter affidavit praying for vacation of the stay granted



by the High Court.  On 29.05.2001, Respondent No. 2 filed his



reply   affidavit   submitting   that   on   23.05.2001   application



seeking   police   custody   of   other   8   accused   were   made   and   in



the affidavit filed in support of the petition to cancel the bail,



by   oversight,   it   was   mentioned   that   police   custody   was   also



obtained in respect of the Respondent No. 1.  He also conveyed



to the court that it is a mistake by oversight and the same is





                                                                                 14


neither   willful   nor   wanton.     On   going   through   the   material



placed, the  learned Single Judge,  by order dated 30.05.2001,



dismissed Crl. O.P. No. 9352 of 2001 filed by  Respondent No.



2  to   cancel   the   bail   granted   to   the   first   respondent   by   the



Sessions Judge.



16)    The   Division   Bench,   based   on   the   materials   placed   by



Respondent   Nos.   1   and   2   concluded   that  Respondent   No.   2



has   filed   a   false   affidavit   knowing   well   the   contents   of   the



same are false in order to mislead the court for preventing the



petitioner therein, an MLA, from coming out of the jail thereby



restrained   him   from   attending   the   Assembly.     Though



Respondent No. 2 filed Crl. Appeal No. 1500 of 2004, the same



was dismissed by this Court on 05.01.2005.  While dismissing



the appeal of Respondent No. 2, this Court made the following



observation which is relevant and is reproduced hereunder:



       "Heard learned counsel for the appellant.



       It   has   been   pointed   out   that   the   appeal   filed   by   the

       Commissioner   of   Police   has   been   admitted   by   this

       Court.     In   our   view,   the   case   of   the   Commissioner   of

       Police   stands   entirely   on   a   different   footing.     So   far   as

       the appellant is concerned, we do not find any merit in

       his appeal.



       Accordingly, the appeal is dismissed."





                                                                                        15


17)    The   Division   Bench,   by   the   impugned   order,   proceeded



on   the   fact   that   the   Commissioner   of   Police-appellant   herein



was   aware   of   the   arrest   of  Respondent   No.   1  and   also   of   the



fact that as an elected MLA because of the wrong information



by  Respondent No. 2, the High Court stayed the order of bail



and he was prevented from assuming office as MLA and dealt



with the matter and finally convicted him under Section 2(c) of



the  Act.    It is   the  definite   stand  of  the   appellant  that  he  was



never consulted by the subordinate police officers before filing



of the application for cancellation of bail and he was not aware



of   the   contents   of   the   said   affidavit   and   as   such   he   was   not



responsible.     It   is   also   his   claim   that   when   the   incorrect



statement made in the affidavit filed in support of the petition



was brought to his notice by Mr. Christopher Nelson, Deputy



Commissioner of Police on 28.05.2001, he directed him to give



instruction   to  Respondent   No.   2  to   file   a   proper   affidavit   and



as  such,  he  was  never  a  party  to  the  said   false  affidavit   and,



therefore, he is not liable for contempt.





                                                                                 16


18)    It   is   seen   from   the   written   statement   made   by   the



appellant   before   the   High   Court   that   he   was   informed   about



the   arrest   of   MLA-Respondent   No.   1  and   the   same   has   been



conveyed to the  Speaker as well  as the Chief Secretary.   It is



the   stand   of   the   Division   Bench   that   the   Commissioner   of



Police   must   have   been   informed   by   the   subordinate   Police



Officers not only about the arrest of Respondent No. 1 but also



his release by the Sessions Judge to enable him to inform the



Speaker   and   the   Government.     However,   according   to   the



Division   Bench,   the   Commissioner   did   not   clearly   indicate



either in the counter affidavit or in the written statement that



he was informed about the bail order passed by the Sessions



Judge on 23.05.2001.  The High Court has also referred to the



general powers of the Commissioner of Police with reference to



certain   standing   orders   issued   by   the   Government.     There   is



no dispute that the Commissioner of Police being Head of the



Police Force of the City, if he comes across the arrest/release



of an elected MLA, he is duty bound to inform the Speaker as



well  as  the   Government.    However,  it  is  his  definite  case  and



asserted   that   he   was   not   aware   of   the   information   furnished





                                                                           17


by   Respondent   No.   2   for   cancellation   of   bail   granted   by   the



Sessions   Judge   and   the   ultimate   stay   order   passed   by   the



High Court.



19)    In order to refute the claim of the Commissioner of Police,



the   Division   Bench   heavily   relied   on   the   presence   of   K.



Anthonisamy,   Assistant   Commissioner   of   Police   and   C.



Chandrasekar, Deputy Commissioner of Police in the office of



the   Public   Prosecutor   along   with  Respondent   No.   2  who   filed



an affidavit praying for cancellation of the bail.   It is true that



both   Assistant   Commissioner   of   Police   and   Deputy



Commissioner   of   Police   in   their   respective   affidavits   admitted



their presence in the office of the Public Prosecutor and their



interaction   with   one   Mr.   Raja,   the   then   government   counsel.



It is relevant to refer the information furnished in the form of



an   affidavit   dated   04.04.2003   by   Christopher   Nelson.



According to him, he joined as Deputy Commissioner of Police,



Law   and   Order,   Triplicane,   District   Chennai   City   on



26.05.2001.   He asserted that he was not aware of the details



of   the   case   in   question   prior   to   26.05.2001.     The   last   two





                                                                            18


paragraphs, namely, paras 6 and 7 of his affidavit filed before



the Division Bench are relevant which read thus:



      "6.  I respectfully state that Thiru K. Antony Samy, who

      was   then   Assistant   Commissioner   of   Police,   (Law   &

      Order),   Kilpauk   Range,   Chennai-7   informed   me   on

      28052001,   that   the   aforesaid   Parithi   Ilamvazhuthi   had

      filed   a   counter   affidavit   before   the   Hon'ble   High   Court,

      seeking   to   reject   the   application   of   cancellation   of   bail

      on the ground that some incorrect information was filed

      by  the  first  respondent     I was  further  informed  that  in

      the   affidavit   filed   by   the   first   respondent   seeking

      cancellation   of   bail   on   24.05.2001.     It   has   been   stated

      that   for   granting   police   custody   the   XIV   Metropolitan

      Magistrate   by   his   order   dated   23.052001   had   directed

      that some accused to be produced on 28.052001.



      7     I,   respectfully   submit   that   on   the   very   same   day,   I

      informed   the   commissioner   of   Police,   the   second

      respondent   about   the   allegations   of   mistake   in   the

      affidavit   filed   by   the   investigation   officer,   the   first

      respondent   herein,   I   was   directed   by   the   second

      respondent        herein   to   instruct   the                Assistant

      Commissioner   of   Police   to   file   a   fresh   affidavit,   if

      necessary before the High Court, explaining the alleged

      mistake   in   the   affidavit   filed   by   the   first   respondent

      earlier.       In   compliance   thereof,   I   instructed   Thiru

      Antony   Samy,   the   Assistant   Commissioner   of   Police,

      Law   &   Order,   Kilpauk   Range,   to   see   that   a   proper

      affidavit   is   filed   by   the   inspector   concerned   before   the

      Hon'ble High Court, explaining the circumstances under

      which   alleged   mistake   appeared   in   the   affidavit   filed

      earlier by him.   Accordingly, such an affidavit was filed

      before the Hon'ble High Court on 29.052001."





It   is   clear   at   least   from   para   7   that   when   the   information



relating   to   making   wrong   statement   at   the   instance   of



Respondent   No.   2          was   brought   to   the   notice   of   the




                                                                                      19


Commissioner of Police, he directed the Deputy Commissioner



of Police to instruct the Assistant Commissioner of Police and



Inspector of Police to file fresh affidavit explaining the alleged



mistake in the affidavit filed by Respondent No. 2 earlier.  It is



also   seen   that   pursuant   to   the   said   direction   of   the



Commissioner   of   Police,   the   Deputy   Commissioner   of   Police



instructed   one   K.   Anthonisamy,   Assistant   Commissioner   of



Police   to   see   that   proper   affidavit   is   filed   by   the   Inspector



concerned before the High Court explaining the circumstances



under   which   the   mistake   appeared   in   the   affidavit   filed   on



earlier occasion.  Pursuant to the notice by the Division Bench



of the High Court, C. Chandrasekar, Deputy Commissioner of



Police at Triplicane also filed an affidavit to the effect that after



knowing   the   grant   of   bail   by   the   Principal   Sessions   Judge,



Chennai   releasing         Respondent   No.   1         after   considering



seriousness   of   the   case   and   after   discussion   with   "superior



officers"   it   has   been   decided   to   move   an   application   for



cancellation of the bail in the High Court.  The Division Bench



relying   on   the   statement   of   the   above   officer   concluded   that



the Commissioner  of Police was consulted and it was he who





                                                                              20


instructed   the   subordinate   Police   Officers   to   move   an



application   for   stay   of   grant   of   bail.     Though   in   para   4,   the



deponent   of   the   affidavit,   namely,   C.   Chandrasekar   has



mentioned   that   "after   discussion   with   superior   officers"   it   is



not clear whether he consulted the Commissioner of Police i.e.



appellant herein on the relevant issue.



20)    K. Anthonisamy, Deputy Commissioner of Police, CBCID,



Chennai   Range   who   was   working   as   an   Assistant



Commissioner   of   Police   at   Kilpauk   Chennai   during   the



relevant period also swore an affidavit on 24.09.2004.  In para



4,   he   also   mentioned   that   after   discussion   with   "superior



officers"   and   on   instructions,   it   was   decided   to   file   an



application   for   cancellation   of   bail   in   the   High   Court.     Here



again,   the   Division   Bench   has   concluded   that   the



Commissioner   of   Police   ought   to   have   been   consulted   by   the



Assistant Commissioner of Police and only with his knowledge



petition was filed for cancellation of bail.   The above averment



in  para  4  merely  mentions  discussion  with  "superior  officers"



and   there   is   no   specific   reference   to   the   Commissioner   of



Police who is the Head of the Police Force in the Chennai City.





                                                                                 21


In the same way, in para 5 also, the deponent of the affidavit



has mentioned that after the grant of stay by the High Court,



he   intimated   the   development   to   his   superior   officers.     Here



again,  he  has  not specifically  informed  the   court  that he  had



intimated   to   the   Commissioner   of   Police.     Like   Mr.   Nelson,



Deputy   Commissioner   of   Police,   he   also   informed   the   court



that on coming to know the discrepancy in the affidavit dated



24.05.2001   filed   by   the   Inspector   of   Police   for   cancellation   of



the   bail,   he   was   directed   by   the   Commissioner   of   Police   to



rectify the discrepancy immediately.   Accordingly,  Respondent



No.   2  filed   the   reply   affidavit   narrating   all   the   facts   on



29.05.2001.



21)    The   analysis   of   affidavits   of   the   Inspector   of   Police,



Assistant   Commissioner   and   Deputy   Commissioner   of   Police



show   that   there   is   no   acceptable   material   that   the   affidavit



containing   wrong   information   filed   by  Respondent   No.   2  for



cancellation   of   bail   and   stay   of   bail   order   was   made   at   the



instance   of   the   Commissioner   of   Police.     We   have   already



pointed   out   that   the   appellant   has   assumed   charge   as   the



Commissioner of Police only on 17.05.2001 i.e. after formation





                                                                              22


of the new government.  The violence in respect of election that



took place on 10.05.2001, particularly, the incident relating to



Respondent No. 1  was one week before his taking over charge



as Commissioner of Police.   It is brought to our notice that at



the relevant time i.e. in 2001, the office of the Commissioner of



Police   was   headed   by   him   and   there   were   4   Joint



Commisioners   of   Police,   15   Deputy   Commissioners   of   Police,



64   Assistant   Commissioners   of   Police   besides   235   Inspectors



of Police including SHOs of 83 Police Stations, 6 out posts and



under whom there were 803 Sub-Inspectors of police and Spl.



Sub-Inspectors   and   9665   Head   Constables   and   Police



Constables.  It is further brought to our notice that the City of



Chennai   is   divided  into  six   districts   and   each   one   of   them   is



headed   by   Deputy   Commissioner   of   Police   of   the   rank   of



Superintendent   of   Police.     It   is   also   clear   that   when   the



information about mentioning wrong statement in the affidavit



filed by  Respondent No. 2  against the grant of bail order was



brought   to   the   notice   of   the   appellant   on   28.05.2001   by



Deputy   Commissioner   of   Police,   namely,   Christopher   Nelson,



the   appellant   herein   immediately   asked   him   to   direct





                                                                              23


Respondent No.2 to file proper affidavit before the High Court



and clarify the matter by placing proper facts.   It is also clear



from   the   affidavit   of   the   government   counsel   E.   Raja   that   he



himself   drafted   the   affidavit   purely   on   the   instructions   of



Respondent   No.   2   and   that  the   appellant   herein   had   no



personal knowledge nor did he instruct the counsel to prepare



affidavit   or   petition   to   move   for   cancellation   of   the   bail.     As



rightly pointed out by Mr. Ganguli, learned senior counsel for



the appellant, in the later part of the order dated 20.06.2001,



the then Division Bench ordered notice to the Commissioner of



Police (the appellant herein) seeking an explanation about the



serious   allegations   made   by  Respondent   No.   1  in   para   12   of



the   contempt   petition.     Pursuant   to   the   same,   the   appellant



filed   counter   affidavit   setting   out   hierarchy   of   officials



functioning   under   the   Commissioner   of   Police,   Greater



Chennai   City,   the   circumstances   under   which   he   was



informed about the incorrect affidavit filed by  Respondent No.



2  in the case and the directions issued by him to correct  the



mistake in the proceedings relating to the cancellation of bail



of  Respondent   No.   1.     We   have   already   pointed   out   that   the





                                                                                 24


author   of   the   affidavit,   namely,  Respondent   No.   2  has   not



stated that it was filed under the instructions of the appellant



herein, in fact,  this  fact was accepted  by  the  Division Bench.



As  a  matter   of fact,  Respondent   No.  2  has  specifically   denied



the allegation that the application for cancellation of bail was



moved  under  the direction,  supervision  and knowledge of the



appellant.     The   two   officers,   namely,   Assistant   Commissioner



of   Police   and   Deputy   Commissioner   of   Police   without



specifying   the   name   of   Commissioner   of   Police   have   merely



mentioned   that   they   had   consulted   their   "superior   officers"



before filing the application for cancellation of bail.



22)    Apart from specific information in the form of an affidavit



highlighting   his   stand   before   the   Division   Bench   which   dealt



with   the   contempt   petition,   the   appellant   had   also   tendered



unconditional   apology   which   was   not   even   referred   to   before



passing   orders   sentencing   the   appellant   herein   to



imprisonment.     When   a   city   like   Chennai   is   managed   by



several police officers from the level of police constable to the



Commissioner   of   Police,   in   the   absence   of   specific   reference



about   consultation   with   the   Commissioner   of   Police   or





                                                                          25


direction   to the  two  officers,  namely,  Assistant  Commissioner



of   Police   and   Deputy   Commissioner   of   Police   merely   because



both   of   them   attended   the   office   of   the   Public   Prosecutor   for



preparation of an application for cancellation of bail based on



the affidavit of the Inspector of Police, it cannot be presumed



and   concluded   that   the   appellant   was   responsible   for   giving



incorrect   information   by  Respondent   No.   2  before   the   High



Court.



23)     We   have   already   pointed   out   that   while   dealing   with



criminal   contempt   in   terms   of   Section   2(c)   of   the   Act,   strict



procedures   are   to   be   adhered.   In   a   series   of   decisions,   this



Court   has   held   that   jurisdiction   to   initiate   proceedings   for



contempt   as   also   the   jurisdiction   to   punish   for   contempt   are



discretionary with the court.  Contempt generally and criminal



contempt   certainly   is   a   matter   between   the   court   and   the



alleged contemnor.   No one can compel or demand as of right



initiation   of   proceedings   for   contempt.     The   person   filing   an



application   or   petition   before   the   court   does   not   become   a



complainant   or   petitioner   in   the   proceedings.     He   is   just   an



informer   or   relator.     His   duty   ends   with   the   facts   being





                                                                              26


brought to the notice of the court.  It is thereafter for the court



to act on such information or not. [Vide Om Prakash Jaiswal



vs.  D.K. Mittal, (2000) 3 SCC 171]   Further Section 15 of the



Act as well as the Madras High Court Contempt of Court Rules



insist   that,   particularly,   for   initiation   of   criminal   contempt,



consent   of   the   Advocate   General   is   required.     Any   deviation



from the prescribed Rules should not be accepted or condoned



lightly   and   must   be   deemed   to   be   fatal   to   the   proceedings



taken to initiate action for contempt.   In the present case, the



above   provisions   have   not   been   strictly   adhered   to   and   even



the notice issued by the then Division Bench merely sought for



explanation from the appellant about the allegations made by



Respondent No. 1.



24)    We have already noted that Rajendra Kumar, Inspector of



Police, (L&O), G-1, Vepery Police Station, Chennai-7 who made



an   incorrect/false   statement   for  cancellation  of  bail  has  been



rightly punished by the Division Bench of the High Court and



this   Court   affirmed   the   same   by   dismissing   his   special   leave



petition.





                                                                            27


25)    In view of the above discussion and conclusion, the order



of the High Court  convicting the appellant  under  Section  2(c)



of   the   Act   and   sentencing   him   under   Section   12   to   undergo



simple imprisonment for seven days is set aside.  The appeal is



allowed.                        



                                                              



                                        .................................................J.

                                      (P. SATHASIVAM)

                                                          

                                      





                                       ...............................................J.

                                       (H.L. GOKHALE)

NEW DELHI;

APRIL 15, 2011.            





                                                                           28

Section 188 of Cr.P.C. reads as follows: Offence committed outside India: When an offence is committed outside India--- a) by a citizen of India, whether on the high seas or elsewhere; or b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

THE HON'BLE MR. JUSTICE RAJA ELANGO      
CRIMINAL PETITION Nos.2976 of 2009 and 4921 of 2010  

01-03-2011

Crl.P.No.2976 of 2009

Mr.Rajesh Gutta,S/o.late Apparao Gutta,Age 33 years,R/o.12727 Vista Del
NorteApt # 508, San Antonio TX 78216, USA

1.State of A.P., Through P.P.,High Court of A.P., Hyderabad AND 2 OTHERS

Counsel for the Petitioners:  MR. RAJA GOPALLAVAN TAYI,  

Counsel for the Respondent No.1: PUBLIC PROSECUTOR.    

^Counsel for the Respondent No.2: MR.C.PRAVEEN KUMAR    

CRIMINAL PETITION Nos.2976 of 2009 and 4921 of 2010  

:COMMON ORDER:    


Since the de facto complainant in both the petitions is one and the same and the
petitioners are the husband and mother-in-law of the daughter of the complainant
respectively, both the petitions heard together and are being disposed of by
this common order.
Petitioners approach this Court with a prayer to quash the proceedings against
them in C.C.No.507 of 2006 on the file of the XIII Additional Chief Metropolitan
Magistrate, Hyderabad, whereby they are facing charge for the offence punishable
under Sections 498-A, 494 and 511 of IPC and 3 and 4 of the Dowry Prohibition
Act.

 Heard both sides.
The marriage of the de facto complainant's daughter with the petitioner in
Crl.P.No.2976 of 2009 took place in the year 2004.  The complaint is lodged on
31.07.2006.  For the disposal of this petition, for better appreciation this
Court is of the view that the entire complaint can be reproduced even though it
is in length:
Date: 31st July 2006.
To
The Station House Officer,
Malakpet,
Hyderabad.

Sub:    Complaint regarding demand for dowry, accepting dowry, demand for
additional dowry and subjecting my daughter Mrs.Pallavi to extreme cruelty on
failure to meet the said demands.

Sir/Madam,
1. I, Ram Mohan Rao, V.Pasupuleti, a native of Hyderabad and residing in U.S.A.
submit the following facts with regard to the offences committed by my Son-in-
law Mr.Rajesh Gutta and his family members in subjecting my daughter Mrs.Pallavi
to extreme cruelty during her matrimonial life in India especially in Hyderabad
and later on in U.S.A., for demanding dowry before the marriage and for unlawful
demands after the marriage and planning for bigamy.
2. I state that during the middle of the year 2004, I was looking for a marriage
alliance for my daughter a graduate with Honours in Chemistry and working as a
supervisor in a pharmaceutical company in Philadelphia, Pennsylvania, U.S.A.  I
got the reference of Mr.Rajesh Gutta residing in Birmingham, Alabama State,
U.S.A. in July 2004 through Bharat matrimony website.  I contacted him over
phone and found out details of his family members, given as Smt.Swarajya Lakshmi
(mother), Satish Gutta (Younger brother) Sakhamuri Rama Chandra Rao (adopted
father), S. Parvathi Devi(adopted mother). On my invitation Mr.Rajesh visited my
house on 29.08.2004 and then I contacted his elders in India for the alliance.
I was shocked at the terms and pre-conditions put forth for finalizing the
alliance, which included payment of Rs.15 lakhs dowry before marriage (document
enclosed), a diamond ring for the bridegroom and expensive clothes for their
relatives numbering 13 families.  Though I was opposed to the practice of dowry
demand, I was forced to accept the same.
3.  I state that on account of the above 'dowry' demands by the said persons and
insistence for payment of dowry before marriage, I transferred 30,000/- U.S.
dollars to bank account No.001-1-427374/602601508969 of Mrs.Gutta Swarajya
Lakshmi maintained in ICICI bank in India on 12th October 2004 as per their
demand (document enclosed).
4.  On 4th Nov-2004 the above said persons visited our house at Plot No.166, Sri
Puram Colony, Malakpet, Hyderabad - 500 016 and insisted that an additional
amount of Rs.2,50,000/- must be paid to Smt.G.Swarajya Lakshmi, Rs.1,50,000/-
being to complete the agreed sum of Rs.15.00 lakhs towards dowry and
Rs.1,00,000/- for jewellery for the bridegroom, I obtained a Demand Draft for
Rs.2,50,000/- bearing No.0717843372 drawn on SBI, Main Branch, Hyderabad on 16th
November 2004 favoring Mrs.G.Swarajya Lakshmi i.e. two days before the marriage
scheduled on 18th November 2004.
5.  I state that the marriage of my daughter with Mr.Rajesh Gutta was performed
as per Hindu rights and traditions on 18th November, 2004 at Jaya Gardens,
Somajiguda, Hyderabad (documents & photographs enclosed) in the most befitting
manner and registered in Court on 20th November, 2004 (document enclosed).
6. Immediately after the marriage Mrs.G.Swarjya Lakshmi demanded that I should
pay an additional sum of Rs.1,50,000/- towards Adapaduchu Katnam at the marriage
venue for his cousin sisters, two of whom were living abroad while the third
sister Mrs.Sashikala residing in India. This amount was paid in cash to
Mrs.Sashikala who attended the wedding.
7.  I state that after the marriage of my daughter she was in India till 27th
November, 2004 and immediately after the marriage, my son-in-law, his mother and
his younger brother started humiliating my daughter with nasty comments for
trivial issues.  On the day of their marriage my son-in-law informed my daughter
that he was offered Rs.50.00 Lakhs as dowry for an Australian alliance but
married my daughter, as she was a U.S. Citizen.
8.  I state that before the marriage Mr.Rajesh was staying at Alabama and my
daughter was employed in Philadelphia, Pennsylvania and both of them had
mutually decided that after the marriage my daughter will continue her job and
commute to Alabama.  In February/March 2005, Mr.Rajesh my son-in-law forced my
daughter to resign her job threatening that he would abandon her and the
marriage if she did not leave the job and move to Alabama.
9. I submit that after my daughter joined him at Alabama, my son-in-law started
demanding for more money on some pretext of the other including purchase of a
flat in Chennai, India.
10. In June 2005 my son-in-law forced my daughter to increase the credit limit
of her credit card and made her transfer 8,000/- US dollars for clearing his
pre-marital debts.  On resistance my daughter was frequently subjected to
physical assault and cruelty.
11. In Sep.2005 when my daughter and my son-in-law came to India for 15 days my
daughter's mother-in-law humiliated, abused and insulted her and most of the
times she was put under house-arrest.
12.     When my daughter returned to U.S. on 25th Sep.2005 along with her husband
she was in nervous wreck condition on account of the continuous harassment by
her husband and mother-in-law.  My daughter came to our house on 30th Sep. 2005
in order to regain normally and requested her husband to come over to
Philadelphia to sort out the issues but he refused. The conduct of my son-in-law
and his close relatives namely. Mrs. G. Swarajya Lakshmi, Mr.Rama Chandra Rao
and Mrs. Parvathi resulted in my daughter going into a state of depression,
which drove her to a suicidal mood on several occasions.
13.     On 14th Oct.05 my son-in-law came to my house, apologized for his cruel
behavior and actions and made a firm commitment that he would change his
behavior towards my daughter. It was a great news for all of us and my daughter
showed her willingness to join her husband in the 1st week of Nov'2005.
14. All of us went to Alabama on 4th Nov.2005 but my son-in-law was not present
at the house. To my daughter's surprise she found an envelope containing a
credit card in her name, which she had never applied. On enquiry she came to
know that her husband had obtained a credit card in her name using her social
security number and 5,000/- U.S. dollars had already been withdrawn through the
said card.  This act of my son-in-law was nothing but an identity-theft and
fraud. Anticipating further fraudulent transactions by her husband my daughter
alerted the Credit Card Bureau.
15. Immediately after we returned from Alabama my son-in-law rang to my daughter
and requested her to join him.  Smelling a foul-play of being killed she did not
go.
16. We came to know through reliable sources that my son-in-law has been
planning to get married again though his marriage with my daughter was still
subsisting. This was confirmed when we checked his profile on websites of two
reputed marriage bureaus (Bharat Matrimonial & Kaakateeya Matrimonial)
(documents enclosed) wherein he had renewed his profile for marriage on 22nd
Oct.2005, claiming himself to be a 27 year old eligible bachelor, which is
nothing but clear case of attempting to commit bigamy.
17.     Simultaneously my son-in-law started making false accusations
assassinating my daughter's character and filed for divorce in December 2005.
The above acts had a severe effect on my daughter's physical and emotional
condition due to which she went into a state of acute depression.
18. The present miserable state of my daughter is because of the greed of my
son-in-law and his parents in demanding additional dowry for monetary gains and
continued harassment and mental & physical torture by the above said persons.
19. We have recently come to know through reliable sources that my Son-in-law
Mr.Rajesh Gutta is getting married again, scheduled to be held in USA in the
first week of August'2006.
20. I also bring to your kind notice that my daughter's mother-in-law
Smt.Swarajya Lakshmi Gutta, presently staying in Chennai, will leave for USA in
the early hours of Tuesday the 1st August 2006 to attend her elder son's
marriage.  We are also informed that the younger brother of my son-in-law will
also reach USA from London by the time of the marriage.
I state that I have come to Hyderabad only to register this complaint as the
marriage was performed as per Hindu rights and traditions at Hyderabad and also
registered at Hyderabad and therefore I request you to register this FIR and
initiate appropriate actions.  Additional documents / details will be submitted
in due course of time.
Once again I request you to kindly initiate immediate action in preventing Mrs.
Swarajya Lakshmi Gutta, one of the accused, from leaving India from Chennai to
USA.
As the accused are residing in Chennai and in U.S.A for which a specialized
investigating agency is necessary to bring the culprits to book, therefore, I
request you to take necessary action against the following persons.........."

On the basis of the said complaint, the Investigating Officer registered FIR and
examined the witnesses.  The statement of L.W.1 who is the complainant herein is
reproduction of the complaint.  The aggrieved party, wife of the complainant, is
not examined by the Investigating Officer as envisaged under the provisions of
the Code of Criminal Procedure.  It is stated in the charge sheet that he has
contacted the said witness and she confirmed the contents of the complaint, but
he has not recorded any statement by examining her personally and also the
Investigating Agency relied on the statement forwarded by the said witness
attested by a notarized public.  This court is of the view that the said
procedure and reliance on the statement is not legally acceptable.  The reading
of Section 162 Cr.P.C. runs as follows:
   Section 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 an 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 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.

It is the admitted case of the respondent that she has forwarded a statement
attested by a notarized public signed by her.  The section specifically prevent
the officer from obtaining signature in the statements recorded under Section
162 Cr.P.C. and also the Section 161 clearly speaks about the manner with which
the investigation be conducted and the statements to be recorded.
Section 161 Cr.P.C. also runs as follows:
        "Examination of witnesses by police - 1) Any police officer making an
investigation under this Chapter, or any police officer not below such rank as
the State Government may, by general or special order, prescribe in this behalf,
acting on the requisition of such officer, may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
2) Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which would
have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section; and if he does so, he shall make a
separate and true record of the statement of each such person whose statement he
records.

In which it is clearly stated that the police Officer has to question the victim
girl, witnesses and contradict the witnesses and record the same.  In the
present case, the statement of the victim girl is concerned, the investigation
officer stated in the charge sheet that he has contacted her and she confirmed
the contents of the complaint given by the complainant.  This Court is of the
view that the Investigating Officer has to confirm the allegations mentioned in
the complaint with the aggrieved person.  This Court is of the view that the
Officer, who is investigating the case, should record the statement as per the
above said provisions.  The first duty of the Investigating Officer is to find
out the probability and truthfulness of her complaint unless otherwise the
complainant's version appraised by the Investigating Officer with the facts and
circumstances of the case.  Merely recording the statement as stated by the
witnesses cannot be called as investigation.  Investigation includes examination
of the witnesses, confronting the witnesses on the basis of materials collected
by the Investigating Officer and also the version of the person who is aggrieved
because of the said complaint.  Mere reproduction of the complaint without
proper examination cannot be called as statement recorded during investigation.
The entire reading of the complaint and charge sheet, it is evident that the
entire occurrence took place in the United States of America.  The allegations
contained in the complaint also regarding the occurrences in the United States
of America.  Of course, the offence committed by a person, which is punishable
under the law in India, he can be prosecuted for the offence committed abroad.
But, at the same time Section 188 of Cr.P.C. mandates that no court shall take
cognizance except the previous sanction by the Central Government when an
offence is committed outside the jurisdiction of India.

Section 188 of Cr.P.C. reads as follows:
Offence committed outside India:
When an offence is committed outside India---
a) by a citizen of India, whether on the high seas or elsewhere; or
b) by a person, not being such citizen, on any ship or aircraft registered in
India,
he may be dealt with in respect of such offence as if it had been committed at
any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this
Chapter, no such offence shall be inquired into or tried in India except with
the previous sanction of the Central Government.

In such a case, the cognizance taken by the learned Magistrate also bad in law.
Further, on perusal of the complaint and charge sheet, the main allegations are
as follows:
1. The complainant's daughter was humiliated in front of others in U.S.A.;
2. To the surprise of the complainant's daughter, she saw a credit card which is
in the house of the accused for which she has not applied;
3. The husband insisted her to enhance the credit limit for the credit card
which was in her possession;
4. The petitioner in Crl.P.No.2976 of 2009 informed as he is unmarried one and
tried to have another marriage and also he is subscribing in the matrimonial web
site even after the marriage; and
In the last portion of the complaint, it is stated that the petitioner in
Crl.P.No.2976 of 2009 tried to marry another lady and to celebrate the said
marriage, he tried to go to abroad.
And in the said complaint, here and there some references were made regarding
the demand of dowry.  It is well settled that mere demand of dowry will not
attract an offence under Section 498-A IPC.
        Section 498-A IPC runs as follows:
        Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty, shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, "cruelty" means---(a) any willful
conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to
her to meet such demand.
        There are two elements in the above said section which includes the
explanation, which clearly indicates 'cruelty' means by way of harassment
driving a woman to commit suicide or to suffer with injury, second element of
the said section indicates that the harassment should be in connection with
demand of dowry.
On the entire reading of the complaint, the above said ingredients are totally
not attracted, more particularly, the petitioner in Crl.P.No.4921 of 2010
against the mother-in-law of the victim girl.
Further the learned counsel for the respondent is not in a position to inform
why the wife of the petitioner has not lodged the complaint and what prevented
her from lodging a complaint.  Even based on the present complaint, which is in
the nature of hearsay, this Court is of the view that no offence made out as
alleged in the charge sheet.
Hence, the proceedings against the petitioners in C.C.No.507 of 2006 on the file
of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, are hereby
quashed.
 With the above observation, both the Criminal Petitions are allowed.  The
miscellaneous petitions, if any, filed along with the criminal petitions shall
stand closed.

The trial court on the basis of evidence found that the pronote and receipt were executed by the defendant in favour of the plaintiff. However, the trial court rejected the plaintiff's claim by holding that the said documents were not duly stamped as required under the provisions of Indian Stamps Act. It was found by the trial court that the stamps which were affixed on the pronote were removed from another document and affixed on the said pronote.

                                                              REPORTABLE


                  IN THE SUPREME COURT OF INDIA


                  CIVIL APPELLATE JURISDICTION


                  CIVIL APPEAL NO. 5140 OF 2004


Gurmukh Singh                                ..           Appellant


      -versus-


Jaswant Kaur                                 ..           Respondent




                           J U D G M E N T




Markandey Katju, J.




1.    This appeal has been filed against the judgment and order dated


11.8.2003 in R.S.A. No.1069 of 2002 of the High Court of Punjab and


Haryana at Chandigarh.




2.    Heard learned counsel for the parties and perused the record.




3.    The   plaintiff-appellant   had   filed   a   suit   for   recovery   of


Rs.2,31,000/-.   He claimed that the defendant had executed a pronote


and receipt dated 2.5.1994 whereby the defendant had borrowed a sum


                                                                                          2



of Rs.1,50,000/- from the plaintiff and agreed to repay the same along


with interest @ 2% per annum on demand.  Since the defendant had not


paid the aforesaid amount, the suit was filed.




4.     The   defendant-respondent   contested   the   suit   and   denied   the


execution   of   the   pronote   and   receipt   in   favour   of   the   plaintiff.     She


alleged that the aforesaid pronote and receipt were forged and fictitious


documents.  





5.     The trial court on the basis of evidence found that the pronote and


receipt   were   executed   by   the   defendant   in   favour   of   the   plaintiff.


However,   the   trial   court   rejected   the   plaintiff's   claim   by   holding   that


the   said   documents   were   not   duly   stamped   as   required   under   the


provisions of Indian Stamps Act.  It was found by the trial court that the


stamps which were affixed on the pronote were removed from another


document and affixed on the said pronote.





6.     The first appellate court and the High Court have agreed with the


view of the trial court.  Thus all the three courts below decided against


the appellant.


                                                                                      3



7.    The   findings   of   the   courts   below   are   findings   of   fact   and   we


cannot interfere with the same in this appeal.   The finding is that the


stamps which have been affixed were removed from other documents,


and hence, it has rightly been said that such a pronote cannot be taken


into consideration.





8.    Thus there is no force in this appeal and it is dismissed. No costs.





                                           ...................................J.

                                           (Markandey Katju)





                                           ...................................J.

                                           (Gyan Sudha Misra)


New Delhi;

April 04, 2011

In the present case, the facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child, which means there is delay of over 8 months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was 5 no offence under Section 376 IPC because sex with a woman above 16 years of age with her consent is not rape. 14. For the reasons given above, the appeal is allowed. The impugned judgment and order of the High court is set aside 15. Apart from the above, the appellant has stated in an affidavit filed in this Court that he has agreed to transfer two acres of land situated in Palavanahalli due to breach of promise to marry Rathnamma and she has given her consent to accept the same. 16. The appellant is directed to give/transfer two acres of land as stated in the affidavit filed before Court to Rathnamma within three months from the date of this judgment.

                                                                                       1



                                                                         Reportable
                                                                          


                 IN THE SUPREME COURT OF INDIA


                CRIMINAL APPELLATE JURISDICTION


                CRIMINAL APPEAL NO. 1499 OF 2004


K. P. Thimmappa Gowda                                     ..              Appellant


      -versus-


State of Karnataka                                        ..          Respondent




                              J U D G M E N T


MARKANDEY KATJU, J.




1.      This   appeal   has   been   filed   against   the   impugned   judgment   dated


17.9.2004 passed by the High Court of Karnataka in Criminal Appeal No.


149 of 1999.




2.    The facts of the case have been stated in the impugned judgment of


the High Court and the trial court and we are not repeating the same except


where necessary.




3.    The trial court had acquitted the appellant in the criminal case, but the


High Court reversed the judgment and convicted the appellant under Section


                                                                                               2



376   IPC   and   sentenced   him  to   imprisonment   of   7   years   and   a   fine   of   Rs.


10,000/-, and also sentenced him to imprisonment of 1 year under Section


417 IPC and a fine of Rs. 10,000/-, both sentences to run concurrently.




4.      The case of the prosecution is that on 4.1.1996 the appellant raped one


Rathnamma aged 18 years, but he assured her that he would marry her and


asked her to keep quiet.  It is alleged that subsequently also the appellant had


sex with Rathnamma several times and assured her that he would marry her.


Rathnamma became pregnant, but the appellant refused to marry her.  Hence


an FIR was registered in the police station on 4.1.1996 against the appellant


under Section 376 IPC.




5.      In   the   trial   court   the   appellant   contended   that   Rathnamma   was   20


years   of   age   at   the   relevant   time   and   she   had   admitted   in   her   cross-


examination   that   she   had   sexual   intercourse   with   the   appellant   nearly   100


times.  It was submitted that this showed that she was a consenting party and


hence   no   case   under   Section   376   IPC   is   made   out   against   the   appellant.


Rathnamma's   mother   Gowramma   PW-11   stated   in   her   evidence   that


Rathnamma was 18 years of age.  Hence she was above 16 years of age and


there could be no rape since there was consent.


                                                                                                 3



6.      The trial court accordingly held that there was no rape as Rathnamma


was   above   16   years   of   age   and   had   consented   to   the   act.     Subsequently


Rathnamma gave birth to a female child  on 25.1.1996.




7.      The trial court held that the version of Rathnamma that the appellant


gagged her mouth and raped her is not believable.   The fact that her child


was born on 25.1.1996 means that the conception was in the month of April,


1995.  This was disclosed to her parents somewhere in the month of July or


August in 1995 and there was a Panchayat which failed.




8.      The   complaint   was  filed  on  4.1.1996  i.e.  just   a  few  days  before   the


birth of the child and not when the sexual act had taken place.   Thus there


was   a   delay   of   over   8   months   in   filing   the   complaint   which   has   not   been


properly explained.




9.      For   the   reasons   given   above,   the   trial   court   disbelieved   the


prosecution version and acquitted the appellant.




10.     In the appeal filed by the State Government the High court reversed


the   finding   of   the   trial   court   and   held   that   the   appellant   had   raped


Rathnamma and had promised to marry her.  It was observed that since the


accused   had   given   the   impression   that   he   would   honour   his   promise   of


                                                                                                 4



marrying her, this fact was not disclosed by her to anybody, including her


mother.




11.     Admittedly, the appellant has married another woman. We are of the


opinion that the appellant deserves the benefit of doubt because on careful


consideration   of   the   evidence   on   record,   it   cannot   be   said   that   the


prosecution has been able to prove its case beyond reasonable doubt.




12.     In criminal cases, the rule is that the accused is entitled to the benefit


of doubt. If the court is of the opinion that on the evidence two views are


reasonably possible, one that the appellant is guilty, and the other that he is


innocent, then the benefit of doubt goes in favour of the accused.




13.     In the present case, the facts are that Rathnamma herself stated in her


evidence that she had sex with the appellant  on several occasions.  It is also


an   admitted   fact   that   the   FIR   against   the   appellant   was   lodged   just   a   few


days before the birth of Rathnamma's child, which means there is delay of


over 8 months in lodging the FIR.  The finding of the trial court, which has


not been disturbed by the High Court, is that Rathnamma was about 18 years


of age at the relevant time.  On these facts a view is reasonably possible that


Rathnamma had sex with the appellant with her consent and hence there was


                                                                                               5



no offence under Section 376 IPC because sex with a woman above 16 years


of age with her consent is not rape.  




14.     For   the   reasons   given   above,   the   appeal   is   allowed.     The   impugned


judgment and order of the High court is set aside




15.     Apart from the above, the appellant has stated in an affidavit filed in


this   Court   that   he   has   agreed   to   transfer   two   acres   of   land   situated   in


Palavanahalli   due   to   breach   of   promise   to   marry   Rathnamma   and   she   has


given her consent to accept the same.




16.     The appellant is directed to give/transfer two acres of land as stated in


the affidavit filed before Court to Rathnamma within three months from the


date of this judgment.





                                                        ................................J.

                                                          (Markandey Katju)





                                                             ................................J.

                                                          (Gyan Sudha Misra)


New Delhi:

April 04, 2011

the present case did not fall under the category of the rarest of the rare cases in the light of the fact that the appellant was a young man of 28 years on the date of the incident and that the offence had been committed by him (as per the prosecution story) while he was in an inebriated condition and after a quarrel with his wife. We cannot also ignore the fact that he was a rickshaw puller and a migrant in Chandigarh with the attendant psychological and economic pressures that so often overtake and overwhelm such persons. Village Kishangarh is a part of the Union Territory of Chandigarh and a stone throw from its elite Sectors that house the Governors of Punjab and Haryana, the Golf Club, and some of the cities most important and opulent citizens. It goes without saying that most such neighbourhoods are often the most unfriendly and indifferent to each others needs. Little wonder his frustrations apparently came to the fore leading to the horrendous incident. Nevertheless keeping in view the overall picture and in the light of what has been mentioned above, we feel that the ends of justice would be met if the -5- appeal is allowed to the extent that the death sentence is substituted by a term of life imprisonment. We accordingly dismiss the appeals but commute the sentence from death to life.

                                                 REPORTABLE

                   IN THE SUPREME COURT OF  INDIA
                         CRIMINAL APPELLATE JURISDICTION                

                            CRIMINAL APPEAL NOS. 739-740  OF 2009




       KAMLESHWAR PASWAN                         ..  APPELLANT(S)

                        vs.

       STATE OF U.T. CHANDIGARH                  ..  RESPONDENT(S)





                                                                               O
                                                                      R D E R





             This is indeed a very unfortunate case.

             On 15th  January, Gurnam Singh (PW.3), a resident of

     House No.1 in village Kishangarh in the Union Territory of

     Chandigarh, had gone to meet a servant of one Milkha Singh

     for some personal work.  As he reached the house of Pritam

     Singh,  he   found  a   woman  standing   outside  shouting   "killed

     them-killed   them".     PW.3,   Gurnam   Singh,   also   heard   the


voice of a screaming child from inside the house of Pritam

Singh.        PW.3   forced   open   the   door   and   saw   the

accused/appellant   Kamleshwar   Paswan   beating   his   three

children with a wooden stick and Yashoda, the daughter of

the appellant, lying on one side with serious injuries.  He

also   noticed   that   the   appellant's   sons   Sunil   Paswan   and

Suraj   Paswan   (aged   one   and   three   years   respectively)   had

also   suffered   injuries   and   were   unconscious.   Gurnam   Singh





PW   accompanied   by   Sunaina   (DW.2),   the   wife   of   the

accused/appellant, took the children to Sharma Clinic in





                                  -2-

village   Kishangarh.     The   Doctor   told   them   that   as   the


children were in a serious condition they should be taken

to the PGI, Chandigarh.  In the meantime a vehicle from the

Police Control Room reached Sharma Clinic and PW.3 and DW.2

along   with   the   three   injured   children   were   taken   to   the

General Hospital, Sector 16, Chandigarh which referred them

further to the PGI, for treatment.  In the PGI PW.3 made a

statement   to PW.14 SI Sunehara Singh narrating the above

facts   on   which   a   First   Information   Report   was   registered





under Section 307 of the IPC at Police Station, Manimajra

in   the   Union   Territory   of   Chandigarh.     The   two   boys

thereafter died and case under Section 302 of the IPC was

added on.   PW.14 also visited the place of occurrence and

made   the       necessary   investigations.     A   challan   was

ultimately filed under Sections 302 and 308 of the IPC and

the   appellant   was   committed   to   stand   trial.     The   Trial

Court relying on the eye witnesses account of PW.1 Vinod,


PW.2-Anil Kumar, the immediate neighbours of the appellant

and   his   family   and   PW.3   Gurnam   Singh   held   that   the   case

against the appellant stood proved beyond doubt.   Sunaina,

the wife of   the appellant, however, appeared as a defence

witness   and   gave   a   statement   that   the   three   children   had

received injuries accidently and that the appellant had no

role to play.   The Trial Court relying on evidence of the

three prosecution witnesses mentioned above





                                   -3-




as   supported   by   the   medical   evidence   given   by   PW.4-Dr.


Dlbar Singh, who had conducted the post-mortem examination

on   the   dead   bodies   and   had   also   examined   the   injuries   on

Yashoda, convicted the appellant under Section 302 and 307

of the IPC and sentenced him to death for the murder of his

two sons. No separate sentence was awarded for the offence

under   Section   307   of   the   IPC.     The   matter   was   thereafter

referred   to   the   High   Court   for   the   confirmation   of   the

death sentence and the appellant also filed an appeal.  The





High   Court   has,   by   the   impugned   judgment,   confirmed   the

death   sentence   and   dismissed   the   appeal.       The   matter   is

before us in these circumstances.

         We   have   heard   the   learned   counsel   for   the   parties

very carefully. We see that the case of the prosecution is

clearly spelt out from the evidence.  No fault can be found

with the eye-witness account of  PWs. 1, 2 and 3 and their

statements   are   clearly   supported   by   the   evidence   of   the


Doctor PW.4.  The defence story projected by DW.2, the wife

of   the   appellant,   is   on   the   face   is   unacceptable   as   the

Doctor   opined   that   the   injuries   suffered     by   the   three

victims could not have been caused in the manner suggested

by   her.     The   very   nature   of   the   injuries   clearly   reveal

that they were   the result of a direct attack in a brutal

and violent fashion with a lathi.





                                   -4-




         Mrs.   S.Usha   Reddy,   the   Legal   Aid   Counsel   for   the

appellant,   has   however   pointed   out   that   the   present   case


did not fall under the category of  the rarest of the rare

cases  in   the   light   of   the   fact   that   the   appellant   was   a

young man of 28 years on the date of the incident and that

the   offence   had   been   committed   by   him   (as   per   the

prosecution story) while he was in an inebriated condition

and  after a quarrel with his wife.  We cannot also ignore

the   fact   that   he   was   a   rickshaw   puller   and   a   migrant   in

Chandigarh   with   the   attendant   psychological   and   economic





pressures   that   so   often   overtake   and   overwhelm   such

persons.     Village   Kishangarh   is   a   part   of   the   Union

Territory   of   Chandigarh   and   a   stone   throw   from   its   elite

Sectors that house the Governors of Punjab and Haryana, the

Golf   Club,   and   some   of   the   cities   most   important   and

opulent   citizens.     It   goes   without   saying   that   most   such

neighbourhoods   are   often   the   most   unfriendly   and

indifferent   to   each   others   needs.     Little   wonder   his


frustrations   apparently     came   to   the   fore   leading   to   the

horrendous   incident.     Nevertheless   keeping   in   view   the

overall picture and in the light of what has been mentioned

above, we feel that the ends of justice would be met if the





                                  -5-




appeal is allowed to the extent that the death sentence is

substituted by a term of life imprisonment.


          We   accordingly  dismiss   the  appeals   but  commute   the

sentence from death to life.




                                         .................J.
                                         (HARJIT SINGH BEDI)

                                                              
                                                              
                                        ....................J.
                                  (CHANDRAMAULI KR. PRASAD)



                                                                       New





Delhi,
January 11, 2011.