Section 5 (2) and 7 of the Prevention of Corruption Act, & Section 306 & 460 of Cr.P.C. - Granted Pardon - sec.164 Cr.P.C. statement of one of the accused was record - prosecution applied for grant of pardon as the accused by becoming approver filled the links and as his role is negligible one - Magistrate tender pardon - later after the cross examination of approver it is challanged before special court that the pardon could have been granted only by the Special Judge under Section 5(2) of the PC Act and not by the Metropolitan Magistrate, being not a designated Court under the PC Act. It was also contended that the Magistrate did not have any power to grant pardon. - High court and Apex court confirmed the trail court order and dismissed appeal = P.C. Mishra …. Appellant Versus State (C.B.I.) & Anr. …. Respondents = 2014 (March . Part) judis.nic.in/supremecourt/filename=41345

 Section 5 (2) and 7 of the  Prevention  of  Corruption  Act, & Section 306  & 460 of Cr.P.C. - Granted Pardon - sec.164 Cr.P.C. statement of one of the accused was record - prosecution applied for grant of pardon as the accused by becoming approver filled the links and as his role is negligible one - Magistrate tender pardon - later after the cross examination of approver it is challanged before special court that the  pardon  could  have  been granted only by the Special Judge under Section 5(2) of the PC Act and  not by the Metropolitan Magistrate, being not a designated Court under  the  PC Act.   It was also contended that the Magistrate did not have any power  to grant pardon. - High court and Apex court confirmed the trail court order and dismissed appeal =

 whether  the
pardon granted by the Metropolitan  Magistrate,  Tis  Hazari,  Delhi,  under
Section 306 Cr.P.C.  to the second Respondent, against  whom  R.C.  No.15(A)
96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption  Act,
1988 was registered by the  Central  Bureau  of  Investigation,  is  legally
sustainable.=
 Both  the  accused
persons were arrested by the CBI on  1.3.1996  and,  during  the  course  of
investigation, an application was filed by the co-accused Ravi Bhatt  before
the Special Judge, CBI,  for  recording  his  confessional  statement  under
Section 164 Cr.P.C.,  which  was  marked  by  Special  Judge  to  the  Chief
Metropolitan  Magistrate,  who  assigned  the  same  to   the   Metropolitan
Magistrate and the statement of second Respondent under Section 164  Cr.P.C.
was  recorded  on  7.8.1996.
The  CBI,  on  investigation,  noticed  that  the   second
Respondent was not a leading accused in  the  case  and  it  was  considered
necessary to take him as an approver to prove the various missing  links  in
the chain of circumstantial evidence, which was otherwise not  available  to
the investigating agency.  Consequently, the  CBI  on  24.10.1996  filed  an
application under Section 306 Cr.P.C. before the Special Judge, Tis  Hazari,
Delhi for grant of  pardon  to  the  second  Respondent,  Ravi  Bhatt.   The
Special Judge marked that application  to  the  learned  Chief  Metropolitan
Magistrate for the said purpose, who,  in  turn,  marked  the  same  to  the
Metropolitan Magistrate.

4.    The Metropolitan Magistrate examined the application of  the  CBI  and
passed an order dated 2.11.1996,  in  exercise  of  powers  conferred  under
Section 306 Cr.P.C., holding that it was a fit case where pardon  should  be
granted to the second accused  to  enable  the  prosecution  to  unveil  all
circumstances of the case and to unearth the truth,  stating  the  following
reasons :
      “Accused Sh. Ravi Bhatt is a privy to the  offence.   He  is  not  the
      principal/leading accused in this case.  It is not  mentioned  in  the
      written complaint of the  complainant  that  accused  Sh.  Ravi  Bhatt
      demanded Rs.4000/- from him.  The role  played  by  him,  however,  is
      minimal.  Considering that the matter relates  to  corruption  in  the
      Government Department and no direct independent evidence is available,
      I think it appropriate to obtain evidence of  the  accused,  Sh.  Ravi
      Bhatt in order to prove the various missing links in the chain of  the
      circumstantial evidence which  are  not  otherwise  available  to  the
      investigating agency.   The offence mentioned in the  FIR  is  triable
      exclusively by the Court  of  a  Special  Judge  appointed  under  the
      Criminal Law Amendment Act, 1952 (46 of 1952).”
The above  mentioned  order  was  not  challenged  and  has  attained
finality.=

The Appellant moved an application under the proviso to  Section  234
Cr.P.C. for  the  first  time,  before  the  Special  Judge  on  24.7.2008,
questioning  the  pardon  granted  to  second  Respondent  by  the  learned
Metropolitan Magistrate on 2.11.1996 in exercise of powers conferred  under
Section 306 Cr.P.C.  It was contended  that  the  pardon  could  have  been
granted only by the Special Judge under Section 5(2) of the PC Act and  not
by the Metropolitan Magistrate, being not a designated Court under  the  PC
Act.   It was also contended that the Magistrate did not have any power  to
grant pardon.  The Special Judge rejected the application vide order  dated
31.10.2008 holding that the Metropolitan Magistrate had the power to  grant
pardon during investigation under Section  306  Cr.P.C.  and  even  if  the
Magistrate was not empowered by law to tender a pardon and  the  order  was
passed in good faith, then such an order is  protected  under  Section  460
Cr.P.C. Aggrieved by the same, the Appellant filed Criminal Revision  being
Crl. M.C. No.3514 of 2008  before  the  High  Court  of  Delhi,  which  was
dismissed by the High Court vide its order dated 6.11.2008,  against  which
this appeal has been preferred.=

             In Bangaru Laxman (supra), this Court has stated  that  the  power  of
Special Judge to grant pardon is an unfettered power and  held  that,  while
trying the offences, the Special Judge has dual power of a Special Judge  as
well as that of a Magistrate.  This Court,  while  interpreting  Section  5,
then went on to say as follows :-
      40. Thus, on a harmonious reading of Section 5(2) of the PC  Act  with
      the provisions of Section 306, specially Section 306(2)(a) of the Code
      and Section 26 of the PC Act, this Court is of the  opinion  that  the
      Special Judge under the PC Act, while trying offences,  has  the  dual
      power of the Sessions Judge as well as that of a  Magistrate.  Such  a
      Special Judge conducts the proceedings under the court both  prior  to
      the filing of charge-sheet as well as  after  the  filing  of  charge-
      sheet, for holding the trial.


      41. ………………. Since this Court has already held that the  Special  Court
      is clothed with the magisterial power of remand, thus in  the  absence
      of a contrary provision, this Court cannot hold that  power  to  grant
      pardon at the stage of investigation can  be  denied  to  the  Special
      Court.


      42. In view of the discussion made above, this Court is of the opinion
      that the power of granting pardon, prior to the filing of the  charge-
      sheet, is within the domain of  judicial  discretion  of  the  Special
      Judge before whom such a prayer is made, as in the instant case by the
      prosecution.”


14.    Bangaru  Laxman  (supra),  therefore,   emphasizes   the   concurrent
jurisdiction of the Special Judge as well as the Chief  Judicial  Magistrate
or Metropolitan Magistrate to grant pardon during  investigation,  but  does
not say that the Metropolitan Magistrate has  no  power  under  Section  306
Cr.P.C. to grant pardon during  the  investigation  i.e.  before  filing  of
charge-sheet before the Special Judge. During investigation,  in  our  view,
both the Special Judge as well as the Magistrate acting  under  Section  306
Cr.P.C. have concurrent jurisdiction to  entertain  application  of  pardon,
which facilitates proper  investigation  of  the  crime.   But,  as  already
indicated, after the committal of  the  case,  the  pardon  granted  by  the
Magistrate is not a curable irregularity.

15.   We may, in this regard, refer to Section 460 Cr.P.C. which  refers  to
nine kinds of crurable irregularities, provided they are caused  erroneously
and in good faith.  Irregularity caused while granting pardon is dealt  with
in Section 460(g) Cr.P.C.   The relevant  part  of  that  Section  reads  as
follows :-
      “460. Irregularities which do not vitiate proceedings.


      If any Magistrate not empowered by law to  do  any  of  the  following
      things, namely:-


      (g) to tender a pardon under section 306;


      erroneously in good faith does that thing, his proceedings  shall  not
      be set aside merely on the ground of his not being so empowered.”

       Section  461  Cr.P.C.  speaks   of   irregularities   which   vitiate
proceedings.

16.   We have already held, both the  Magistrate  as  well  as  the  Special
Judge has concurrent jurisdiction in  granting   pardon  under  Section  306
Cr.P.C. while the investigation is going on.  But,  in  a  case,  where  the
Magistrate has exercised his jurisdiction under  Section  306  Cr.P.C.  even
after the appointment of a Special Judge under the PC Act and has passed  an
order granting pardon, the same is only a curable irregularity,  which  will
not vitiate the proceedings, provided the order is  passed  in  good  faith.
In fact, in the instant case, the Special Judge  himself  has  referred  the
application to  Chief  Metropolitan  Magistrate/Metropolitan  Magistrate  to
deal with the  same  since  the  case  was  under  investigation.   In  such
circumstances, we find  no  error  in  Special  Judge  directing  the  Chief
Metropolitan Magistrate or the Metropolitan Magistrate to  pass  appropriate
orders on the application of CBI in granting pardon to second Respondent  so
as to facilitate the investigation.

17.   Appeal lacks merit and the same is dismissed.

2014 (March . Part) judis.nic.in/supremecourt/filename=41345
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                    REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1310 OF 2010

P.C. Mishra                             …. Appellant

                                   Versus

State (C.B.I.) & Anr.                        …. Respondents





                               J U D G M E N T



K.S. Radhakrishnan, J.


1.    We are, in this  appeal,  concerned  with  the  question  whether  the
pardon granted by the Metropolitan  Magistrate,  Tis  Hazari,  Delhi,  under
Section 306 Cr.P.C.  to the second Respondent, against  whom  R.C.  No.15(A)
96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption  Act,
1988 was registered by the  Central  Bureau  of  Investigation,  is  legally
sustainable.

2.    The Central Bureau of Investigation (CBI) registered R.C. No.15(A)  96
DLI dated 29.2.1996 under Section 7 of the  Prevention  of  Corruption  Act,
1988 (for short “PC Act”) on receipt of a  written  complaint  on  29.2.1996
from Gulshan Sikri, proprietor  of  M/s  Filtrex  India,  Nangal  Raya,  New
Delhi, against P.C. Mishra, the then Assistant  Commissioner  of  Sales  Tax
(Appeals), Appellant herein, for demanding Rs.4,000/- as bribe for  settling
the appeal filed  against the order of Sales Tax Officer.

3.    CBI, on 1.3.1996, laid a trap and the  accused,  PC  Mishra,  and  his
Reader Ravi Bhatt, second Respondent herein, were  caught  red-handed  while
demanding and accepting the bribe from the  complainant.  Both  the  accused
persons were arrested by the CBI on  1.3.1996  and,  during  the  course  of
investigation, an application was filed by the co-accused Ravi Bhatt  before
the Special Judge, CBI,  for  recording  his  confessional  statement  under
Section 164 Cr.P.C.,  which  was  marked  by  Special  Judge  to  the  Chief
Metropolitan  Magistrate,  who  assigned  the  same  to   the   Metropolitan
Magistrate and the statement of second Respondent under Section 164  Cr.P.C.
was  recorded  on  7.8.1996.   During  the  course  of  investigation,   the
witnesses had been examined and records scrutinized and it  transpired  that
the co-accused Ravi Bhatt had accepted the bribe money for and on behalf  of
the  Appellant.   The  CBI,  on  investigation,  noticed  that  the   second
Respondent was not a leading accused in  the  case  and  it  was  considered
necessary to take him as an approver to prove the various missing  links  in
the chain of circumstantial evidence, which was otherwise not  available  to
the investigating agency.  Consequently, the  CBI  on  24.10.1996  filed  an
application under Section 306 Cr.P.C. before the Special Judge, Tis  Hazari,
Delhi for grant of  pardon  to  the  second  Respondent,  Ravi  Bhatt.   The
Special Judge marked that application  to  the  learned  Chief  Metropolitan
Magistrate for the said purpose, who,  in  turn,  marked  the  same  to  the
Metropolitan Magistrate.

4.    The Metropolitan Magistrate examined the application of  the  CBI  and
passed an order dated 2.11.1996,  in  exercise  of  powers  conferred  under
Section 306 Cr.P.C., holding that it was a fit case where pardon  should  be
granted to the second accused  to  enable  the  prosecution  to  unveil  all
circumstances of the case and to unearth the truth,  stating  the  following
reasons :
      “Accused Sh. Ravi Bhatt is a privy to the  offence.   He  is  not  the
      principal/leading accused in this case.  It is not  mentioned  in  the
      written complaint of the  complainant  that  accused  Sh.  Ravi  Bhatt
      demanded Rs.4000/- from him.  The role  played  by  him,  however,  is
      minimal.  Considering that the matter relates  to  corruption  in  the
      Government Department and no direct independent evidence is available,
      I think it appropriate to obtain evidence of  the  accused,  Sh.  Ravi
      Bhatt in order to prove the various missing links in the chain of  the
      circumstantial evidence which  are  not  otherwise  available  to  the
      investigating agency.   The offence mentioned in the  FIR  is  triable
      exclusively by the Court  of  a  Special  Judge  appointed  under  the
      Criminal Law Amendment Act, 1952 (46 of 1952).”


5.    The above  mentioned  order  was  not  challenged  and  has  attained
finality.  Later, charges were framed under Sections 7  and  13(1)(d)  read
with Section 13(2) of the PC Act against the  Appellant  vide  order  dated
8.2.2000 after getting sanction.  Trial proceeded in the Court  of  Special
Judge  and  evidence  was  concluded  as  against  the  Appellant.   Second
Respondent, Ravi Bhatt, was examined as PW9 by the prosecution and was also
cross-examined by the Appellant.

6.    The Appellant moved an application under the proviso to  Section  234
Cr.P.C. for  the  first  time,  before  the  Special  Judge  on  24.7.2008,
questioning  the  pardon  granted  to  second  Respondent  by  the  learned
Metropolitan Magistrate on 2.11.1996 in exercise of powers conferred  under
Section 306 Cr.P.C.  It was contended  that  the  pardon  could  have  been
granted only by the Special Judge under Section 5(2) of the PC Act and  not
by the Metropolitan Magistrate, being not a designated Court under  the  PC
Act.   It was also contended that the Magistrate did not have any power  to
grant pardon.  The Special Judge rejected the application vide order  dated
31.10.2008 holding that the Metropolitan Magistrate had the power to  grant
pardon during investigation under Section  306  Cr.P.C.  and  even  if  the
Magistrate was not empowered by law to tender a pardon and  the  order  was
passed in good faith, then such an order is  protected  under  Section  460
Cr.P.C. Aggrieved by the same, the Appellant filed Criminal Revision  being
Crl. M.C. No.3514 of 2008  before  the  High  Court  of  Delhi,  which  was
dismissed by the High Court vide its order dated 6.11.2008,  against  which
this appeal has been preferred.

7.    Shri P.C. Mishra, the Appellant, appeared  in  person  and  submitted
that the learned Metropolitan Magistrate has committed  a  grave  error  in
granting pardon to the second Respondent, that too,  without  hearing  him.
Shri Mishra submitted that the order passed  by  the  learned  Metropolitan
Magistrate  on  2.11.1996  is  without  jurisdiction,  since  no  power  is
conferred on him to grant pardon to second  Respondent  as  the  matter  is
already seized before the Special Judge appointed under Section 3 of the PC
Act.  It was pointed out that Section 5(2) of the PC  Act  deals  with  all
matters pertaining to offences under  the  Prevention  of  Corruption  Act,
starting  from  registration  of  FIR  to  passing   of   final   judgment.
Consequently, it was only Special Judge, who could have granted  pardon  to
the second Respondent and not the  Metropolitan  Magistrate.   Shri  Mishra
also placed considerable reliance on the  Constitution  Bench  judgment  of
this Court in A.R. Antulay v. Ramdas Sriniwas Nayak and  another  (1984)  2
SCC  500  and  various  other  decisions  in  support  of  his  contention.
Further, it was pointed out that the Special Act lays down  some  procedure
under which the Special Judge has to function and no other procedure, apart
from what has been prescribed by the PC Act, could be followed.  In support
of his contention reliance was placed on the  judgment  of  this  Court  in
Dilawar Singh v. Parvinder Singh alias Iqbal Singh and  another  (2005)  12
SCC 709 to emphasise the power of the Special Judge under Section  5(2)  of
the PC Act.  Reliance was also placed on the  judgment  of  this  Court  in
Harshad S. Mehta and others v. State of Maharashtra  (2001) 8 SCC  257  and
Bangaru Laxman v. State (through CBI) and another (2012) 1 SCC 500.  It was
also pointed out that since the issue with regard to the jurisdiction could
be raised at any point of time, the contention of the Respondents that  the
order of 1996 was challenged only in the year  2008  cannot  be  sustained.
Further, it was also pointed out that the learned  Metropolitan  Magistrate
had granted pardon under Section 306 Cr.P.C. without issuing notice to  the
Appellant which has caused serious prejudice to him.

8.    Shri Rajiv Nanda, learned counsel appearing for  the  CBI,  submitted
that the application for pardon could be moved by the  prosecution  at  the
stage of investigation, till its culmination and in the  instant  case  the
application for pardon was  moved  by  the  prosecution  at  the  stage  of
investigation and that too after recording  the  statement  of  Ravi  Bhatt
under Section 164 Cr.P.C.   Learned Metropolitan Magistrate, it was pointed
out, has exercised his jurisdiction  to  grant  pardon  under  Section  306
Cr.P.C. at the investigation stage.  The  Special  Judge,  in  the  instant
case, had directed the Chief Metropolitan Magistrate  or  the  Metropolitan
Magistrate to deal with the application for pardon, since the case  was  at
the investigation stage.   In any view, it was submitted, even if there was
some irregularity in the order passed by the Metropolitan Magistrate,  that
irregularity was a curable irregularity in view of Section 460(g) Cr.P.C.

9.    Ms. V. Mohana, learned Amicus Curiae addressed elaborate arguments on
the scope of Sections 306 and 460 Cr.P.C. as well  as  the  powers  of  the
Special Judge under Section 5(2) of the PC  Act.    Learned  Amicus  Curiae
pointed out that power of the  Magistrate  during  investigation  to  grant
pardon is not taken away or deprived by the provisions of the PC  Act.   In
any view, the order passed by  the  Metropolitan  Magistrate  is  protected
under Section 460(g) Cr.P.C. since the Magistrate had acted bona  fide  and
in good faith.   Learned Amicus Curiae  also submitted, assuming  that  the
Special Judge under the PC Act  also  has  power  to  grant  pardon  during
investigation,  that  will  not  take  away  the  inherent  powers  on  the
Magistrate during investigation to grant  pardon  while  exercising  powers
under Section 306 Cr.P.C. Learned Amicus Curiae further submitted that  the
order granting pardon was passed  as  early  as  on  2.11.1996,  which  was
revisable and, since no revision had been filed,  the  order  had  attained
finality and hence the same could not have been challenged by the Appellant
at the fag end of the trial, in which, it was pointed  out,  he  had   been
convicted by the Special Judge vide his judgment dated 24.5.2010.

10.   We are, in this appeal, concerned with the correctness  or  otherwise
of the order passed by the Magistrate in granting pardon exercising  powers
under Section 306 Cr.P.C. during the course of investigation  of  the  case
and before the submission of the charge-sheet  before  the  Special  Judge.
The CBI, as already stated, had filed an application for  grant  of  pardon
before the Special Judge at a stage when investigation was going on and the
Special Judge, in its wisdom, thought it appropriate that  the  application
be dealt with by the Chief Metropolitan Magistrate, since investigation was
not over  and  charge-sheet  was  not  submitted  before  him.   The  Chief
Metropolitan Magistrate, however, assigned the matter to  the  Metropolitan
Magistrate.  Situation would have been different if the  investigation  was
over, charge-sheet had been submitted and the charges were  framed  against
the accused. In our  view,  at  the  stage  of   investigation,  the  power
conferred on the Magistrate under  Section  306  Cr.P.C.  (Section  337  of
Cr.P.C. 1898 Old Code) has not been taken away, even  if  the  offence  can
ultimately be tried by a Special Judge.  Section 306 Cr.P.C. is  applicable
in a case where the order of committal has not been passed,  while  Section
307 Cr.P.C. is applicable after  the  committal  of  the  case  before  the
judgment is pronounced.  This Court in A. Devendran v. State of Tamil  Nadu
(1997) 11 SCC 720 opined that after committal of the  case,  the  power  to
grant pardon vests in the Court to which the case has  been  committed  and
the pardon granted by the  Chief  Judicial  Magistrate  is  not  a  curable
irregularity. For easy reference, we refer to Section  306  Cr.P.C.,  which
reads as follows :


      306. Tender of pardon to accomplice.


      (1)    With a view to obtaining the evidence of any person supposed to
      have been directly or indirectly concerned in or privy to  an  offence
      to which this section applies, the  Chief  Judicial  Magistrate  or  a
      Metropolitan Magistrate at any stage of the investigation  or  inquiry
      into, or the trial of, the offence, and the Magistrate  of  the  first
      class inquiring into or trying  the  offence,  at  any  stage  of  the
      inquiry or trial, may tender a pardon to such person on  condition  of
      his making  a  full  and  true  dis-  closure  of  the  whole  of  the
      circumstances within his knowledge relative  to  the  offence  and  to
      every other person concerned, whether as principal or abettor, in  the
      commission thereof.


      (2)    This section applies to-


      (a)   any offence triable exclusively by the Court of  Session  or  by
           the Court of a Special Judge appointed under  the  Criminal  Law
           Amendment Act, 1952 (46 of 1952 );


      (b)   any offence punishable with imprisonment  which  may  extend  to
           seven years or with a more severe sentence.


      (3)   Every Magistrate who tenders a pardon  under  sub-  section  (1)
      shall record-


      (a)   his reasons for so doing;


      (b)   whether the tender was or was not accepted by the person to whom
           it was made, and shall, on  application  made  by  the  accused,
           furnish him with a copy of such record free of cost.


      (4)   Every person accepting  a  tender  of  pardon  made  under  sub-
      section (1)-


      (a)   shall be examined as a witness in the Court  of  the  Magistrate
           taking cognizance of the offence and in the subsequent trial, if
           any;


      (b)   shall, unless he is already on  bail,  be  detained  in  custody
           until the termination of the trial.


      (5)   Where a person has, accepted a tender of pardon made under  sub-
      section (1)  and  has  been  examined  under  sub-  section  (4),  the
      Magistrate taking cognizance of the offence shall, without making  any
      further inquiry in the case,-


      (a)   commit it for trial-
           (i)   to the  Court  of  Session  if  the,  offence  is  triable
           exclusively by that Court or if the Magistrate taking cognizance
           is the Chief Judicial Magistrate;


           (ii)  to a Court of Special Judge appointed under  the  Criminal
           Law Amendment Act, 1952 (46 of 1952 ), if the offence is triable
           exclusively by that Court;
      (b)   in any other case, make over the  case  to  the  Chief  Judicial
           Magistrate who shall try the case himself.”

11.   Power to grant  pardon  enjoined  under  Section  306  Cr.P.C.  is  a
substantial power and the reasons for tendering pardon  must  be  recorded.
It is for the prosecution to ask that a particular accused, out of several,
may be granted pardon, if it thinks that it is necessary in the interest of
successful prosecution of other offenders or else the conviction  of  those
offenders would not be easy.  This Court in State of U.P. v.  Kailash  Nath
Agarwal and others (1973) 1 SCC 751 recognised the power  of  the  District
Magistrate to grant pardon at the investigation stage.  This Court in Kanta
Prashad v. Delhi Administration  AIR  1958  SC  350  had  the  occasion  to
examine the scope of Section 337 and 338 of the old Code (Cr.P.C. 1898) vis-
à-vis the powers of a Special Court  constituted  under  the  Criminal  Law
(Amendment) Act, 1952.  This  Court  held  that,  reading  the  proviso  to
Section 337 and provisions of Section 338 together, the District Magistrate
is empowered to tender a pardon even after a commitment, if  the  Court  so
directs.  It was also held that under Section  8(2)  of  the  Criminal  Law
(Amendment) Act, 1952, the Special Judge has also  been  granted  power  to
tender pardon.  The conferment of this power on the Special Judge in no way
deprives the District Magistrate of his  power  to  grant  a  pardon  under
Section 337 of the Code.  It was held if at  the  time  when  the  District
Magistrate tenders the pardon, the case was not before the  Special  Judge,
then there is no illegality committed by the District Magistrate.

12.    The  scope  of  above-mentioned  provisions  again   came   up   for
consideration before this Court in Kailash Nath  Agarwal  (supra),  wherein
this Court after referring  to  its  earlier  judgment  in   Kanta  Prashad
(supra) held as follows:-


      “It will be noted from this decision that emphasis is laid on the fact
      that the proviso to Section 337 contemplates  concurrent  jurisdiction
      in the District Magistrate and in the Magistrate making an inquiry  or
      holding the trial to tender pardon. It is  also  emphasised  that  the
      conferment of the power to grant pardon on the Special Judge does  not
      deprive the District Magistrate of his power  to  grant  pardon  under
      Section 337.”

13.   In Bangaru Laxman (supra), this Court has stated  that  the  power  of
Special Judge to grant pardon is an unfettered power and  held  that,  while
trying the offences, the Special Judge has dual power of a Special Judge  as
well as that of a Magistrate.  This Court,  while  interpreting  Section  5,
then went on to say as follows :-
      40. Thus, on a harmonious reading of Section 5(2) of the PC  Act  with
      the provisions of Section 306, specially Section 306(2)(a) of the Code
      and Section 26 of the PC Act, this Court is of the  opinion  that  the
      Special Judge under the PC Act, while trying offences,  has  the  dual
      power of the Sessions Judge as well as that of a  Magistrate.  Such  a
      Special Judge conducts the proceedings under the court both  prior  to
      the filing of charge-sheet as well as  after  the  filing  of  charge-
      sheet, for holding the trial.


      41. ………………. Since this Court has already held that the  Special  Court
      is clothed with the magisterial power of remand, thus in  the  absence
      of a contrary provision, this Court cannot hold that  power  to  grant
      pardon at the stage of investigation can  be  denied  to  the  Special
      Court.


      42. In view of the discussion made above, this Court is of the opinion
      that the power of granting pardon, prior to the filing of the  charge-
      sheet, is within the domain of  judicial  discretion  of  the  Special
      Judge before whom such a prayer is made, as in the instant case by the
      prosecution.”


14.    Bangaru  Laxman  (supra),  therefore,   emphasizes   the   concurrent
jurisdiction of the Special Judge as well as the Chief  Judicial  Magistrate
or Metropolitan Magistrate to grant pardon during  investigation,  but  does
not say that the Metropolitan Magistrate has  no  power  under  Section  306
Cr.P.C. to grant pardon during  the  investigation  i.e.  before  filing  of
charge-sheet before the Special Judge. During investigation,  in  our  view,
both the Special Judge as well as the Magistrate acting  under  Section  306
Cr.P.C. have concurrent jurisdiction to  entertain  application  of  pardon,
which facilitates proper  investigation  of  the  crime.   But,  as  already
indicated, after the committal of  the  case,  the  pardon  granted  by  the
Magistrate is not a curable irregularity.

15.   We may, in this regard, refer to Section 460 Cr.P.C. which  refers  to
nine kinds of crurable irregularities, provided they are caused  erroneously
and in good faith.  Irregularity caused while granting pardon is dealt  with
in Section 460(g) Cr.P.C.   The relevant  part  of  that  Section  reads  as
follows :-
      “460. Irregularities which do not vitiate proceedings.


      If any Magistrate not empowered by law to  do  any  of  the  following
      things, namely:-


      (g) to tender a pardon under section 306;


      erroneously in good faith does that thing, his proceedings  shall  not
      be set aside merely on the ground of his not being so empowered.”

       Section  461  Cr.P.C.  speaks   of   irregularities   which   vitiate
proceedings.

16.   We have already held, both the  Magistrate  as  well  as  the  Special
Judge has concurrent jurisdiction in  granting   pardon  under  Section  306
Cr.P.C. while the investigation is going on.  But,  in  a  case,  where  the
Magistrate has exercised his jurisdiction under  Section  306  Cr.P.C.  even
after the appointment of a Special Judge under the PC Act and has passed  an
order granting pardon, the same is only a curable irregularity,  which  will
not vitiate the proceedings, provided the order is  passed  in  good  faith.
In fact, in the instant case, the Special Judge  himself  has  referred  the
application to  Chief  Metropolitan  Magistrate/Metropolitan  Magistrate  to
deal with the  same  since  the  case  was  under  investigation.   In  such
circumstances, we find  no  error  in  Special  Judge  directing  the  Chief
Metropolitan Magistrate or the Metropolitan Magistrate to  pass  appropriate
orders on the application of CBI in granting pardon to second Respondent  so
as to facilitate the investigation.

17.   Appeal lacks merit and the same is dismissed.


                                        ……..……………………J.
                                        (K.S. Radhakrishnan)


                                        ……..……………………J.
                                        (Vikramajit Sen)
New Delhi,
March 27, 2014.

Sec.498 A, Sec.306 and Sec.304 B IPC - Letters of deceased were misread by the trial court and Trial court and High court went on assumptions and presumptions with out any valid evidence and discarded the evidence of defence with out assigning valid reasons-Epilepsy is not a Psychiatrist problem. It is a disease of nerves system and a MD (Medicine) could treat the patient of Epilepsy - Apex court held that it was an accident only occurred due to epilepsy in the kitchen while preparing food , prosecution failed to prove dowry harassment etc., = Mangat Ram .. Appellant Versus State of Haryana .. Respondent =2014 (March. Part ) judis.nic.in/supremecourt/filename=41344

  Sec.498 A, Sec.306 and Sec.304 B IPC -  Letters of deceased were misread by the trial court and Trial court and High court went on assumptions and presumptions with out any valid evidence and discarded the evidence of defence with out assigning valid reasons-Epilepsy is not a Psychiatrist problem.  It is  a  disease  of  nerves system and a MD (Medicine) could treat the patient of  Epilepsy -  Apex court held that it was an accident only occurred due to epilepsy in the kitchen while preparing food , prosecution failed to prove dowry harassment etc., =
 The appellant Mangat Ram,  a  member  of  SC  community,  married  the
deceased Seema, a member of the Aggarwal community on 13.7.1993  at  Ambala.
Few months after the marriage, on 15.9.1993, according to  the  prosecution,
the appellant sprinkled kerosene oil on the body of  the  deceased  and  set
her on fire, having failed to meet the dowry demand.   On  hearing  the  hue
and cry, neighbours assembled and took her to  the  Civil  Hospital,  Gohana
and, later, she was shifted to the Medical  College  and  Hospital,  Rohtak,
where she died on 17.9.1993.   The appellant, along  with  his  parents  and
sister, were charge-sheeted for the offences punishable under Sections  498-
A and 304-B IPC.=
The  trial  Court,   after
appreciating the oral and documentary evidence, came to the conclusion  that
an offence under Section 498-A IPC was made out against the  appellant,  but
not against the other three accused persons.  
The  trial  Court  also  found
that no offence under Section 304-B IPC was made  out  against  the  accused
persons, including the appellant.  
However, it  was  held  that  an  offence
under Section 306 IPC was made out against the appellant, though  no  charge
was framed under that section.  
After  holding  the  appellant  guilty,  the
trial Court convicted the appellant under Section 498-A  IPC  and  sentenced
him to undergo imprisonment for three years and to pay a fine of  Rs.1,000/-
, in default, to further undergo rigorous imprisonment (RI) for six  months.
  
The appellant was also convicted under Section 306 IPC  and  sentenced  to
undergo imprisonment for a period of seven  years  and  to  pay  a  fine  of
Rs.4,000/-, in default, to further undergo RI for two years.

Conclusion 

We have every reason to believe that, in the instant case,  the  death
was accidental, for the following reasons.
    - Though not proved in  her  dying  declaration,  it  has  come  out  in
      evidence that the deceased was suffering from Epilepsy  for  the  last
      three years i.e. before 15.3.1993, the date of incident.  
This fact is
      fortified by the evidence of Dr. Kuldeep, who  was  examined  as  DW1.
      He deposed that the deceased was suffering from Epilepsy and was under
      his treatment from 23.12.1992 to 2.4.1993 at Kuldeep Hospital,  Ambala
      City.  
His evidence was brushed aside by the trial Court on the ground
      that Dr. Kuldeep was  not  a  Psychiatrist.  
 It  may  be  noted  that
      Epilepsy is not a Psychiatrist problem.  It is  a  disease  of  nerves
      system and a MD (Medicine) could treat the patient of  Epilepsy.   
The
      reasoning given by the trial Court for brushing aside the evidence  of
      DW1 cannot be sustained.   
Therefore, the possibility of an accidental
      death, since she was suffering from Epilepsy,  cannot  be  ruled  out.
      
Evidently, she was in the kitchen and, might be,  during  cooking  she
      might have suffered Epileptic symptoms and fell down on the gas  stove
      and might have caught fire, resulting her ultimate death.
    - 
DW2, ASI Ram Mohan, the Investigating Officer  of  the  case,  deposed
      that he had recorded the statements of the deceased  wherein  she  had
      stated that she was suffering from Epilepsy for the last  three  years
      before the incident and that on  15.9.1993  while  she  was  preparing
      meals on stove, she had an attack of fits and fell on  the  stove  and
      caught fire.  
She had also deposed at that time that her  husband  was
      away at duty at Madhuban, Karnal.  
In our view, the  evidence  of  DW2
      has to be appreciated in the light of overall facts and  circumstances
      of the case.


29.   Taking into consideration all aspects of the matter,  we  are  of  the
view that the prosecution has not  succeeded  in  establishing  the  offence
under  Section  498-A  and  Section   306   IPC   against   the   appellant.
Consequently, the appeal is allowed and the conviction and sentence  awarded
by the trial Court and confirmed by the High Court, are set aside.

      2014 (March. Part ) judis.nic.in/supremecourt/filename=41344
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                         REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 696 OF 2009
Mangat Ram                              .. Appellant
                                   Versus
State of Haryana                        .. Respondent

                               J U D G M E N T

K. S. Radhakrishnan, J.


1.    The appellant Mangat Ram,  a  member  of  SC  community,  married  the
deceased Seema, a member of the Aggarwal community on 13.7.1993  at  Ambala.
Few months after the marriage, on 15.9.1993, according to  the  prosecution,
the appellant sprinkled kerosene oil on the body of  the  deceased  and  set
her on fire, having failed to meet the dowry demand.   On  hearing  the  hue
and cry, neighbours assembled and took her to  the  Civil  Hospital,  Gohana
and, later, she was shifted to the Medical  College  and  Hospital,  Rohtak,
where she died on 17.9.1993.   The appellant, along  with  his  parents  and
sister, were charge-sheeted for the offences punishable under Sections  498-
A and 304-B IPC.


2.    The prosecution, in order to bring home the offences, examined  PWs  1
to 7 and also produced various documents.  On the side of defence, DWs 1  to
5 were examined and the accused  appellant  got  himself  examined  as  DW6.
After the evidence was closed, the accused was questioned under Section  313
of  the  Code  of  Criminal  Procedure  (Cr.P.C.),  who   denied   all   the
incriminating  statements  made  against  him.    The  trial  Court,   after
appreciating the oral and documentary evidence, came to the conclusion  that
an offence under Section 498-A IPC was made out against the  appellant,  but
not against the other three accused persons.  The  trial  Court  also  found
that no offence under Section 304-B IPC was made  out  against  the  accused
persons, including the appellant.  However, it  was  held  that  an  offence
under Section 306 IPC was made out against the appellant, though  no  charge
was framed under that section.  After  holding  the  appellant  guilty,  the
trial Court convicted the appellant under Section 498-A  IPC  and  sentenced
him to undergo imprisonment for three years and to pay a fine of  Rs.1,000/-
, in default, to further undergo rigorous imprisonment (RI) for six  months.
  The appellant was also convicted under Section 306 IPC  and  sentenced  to
undergo imprisonment for a period of seven  years  and  to  pay  a  fine  of
Rs.4,000/-, in default, to further undergo RI for two years.

3.    Aggrieved by the conviction and sentence awarded by the  trial  Court,
the appellant preferred Criminal Appeal No. 592-SB of 1997, which when  came
up for hearing before the Division Bench of the High Court on 3.5.2007,  the
Court passed the following order:
    “Present:    Mrs. Ritu Punj, DAG, Haryana
                 Mrs. Harpreet Kaur Dhillon, Advocate
                 is appointed as Amicus Curiae.


    Heard


    Dismissed, reasons to follow.”


4.    Aggrieved by the said order, the appellant preferred  SLP  (Criminal)
No. 7578 of 2007 which was later converted into Criminal Appeal No. 182  of
2008.  The criminal appeal  came  up  for  hearing  before  this  Court  on
25.1.2008 and this Court deprecated the  practice  of  the  High  Court  in
disposing of the criminal appeals without recording reasons in  support  of
its decision.   Placing reliance on the judgments of this Court in State of
Punjab and others v. Jagdev Singh Talwandi  (1984)  1  SCC  596,  State  of
Punjab and others v. Surinder Kumar and others (1992) 1 SCC 489 and  Zahira
Habibulla H. Sheikh and another v. State of Gujarat and others (2004) 4 SCC
158, this Court set aside the judgment of the High Court and  directed  the
High Court to hear the appeal on merits.


5.    The High Court then considered the criminal appeal and dismissed  the
same on merits vide its judgment dated 27.5.2008 confirming the  conviction
and sentence awarded against the accused by the trial Court.  Aggrieved  by
the same, this appeal has been preferred.

6.    Mr. Satinder S. Gulati, learned counsel appearing for the  appellant,
took us elaborately through the oral and documentary  evidence  adduced  by
the parties and submitted that the judgment of the trial Court as  well  as
the High Court  is  based  on  conjunctures,  full  of  contradictions  and
surmises and there is no evidence  to  substantiate  the  charges  levelled
against the accused. Learned counsel submitted that there  was  a  complete
misreading of the oral and documentary evidence and, at  every  stage,  the
Courts below adopted its own strange reasoning which was  not  brought  out
from the deposition of the witnesses.  Learned counsel  pointed  out  that,
throughout the judgment of the trial Court as well as the High  Court,  one
can notice that the Courts below were prejudiced to the accused for  having
entered into an inter-caste marriage and opined that  the  plight  of  such
marriages would be discontentment and unhappiness. Learned counsel  pointed
out that there is sufficient evidence to conclude  that  the  deceased  was
suffering from Epilepsy for the last few years of  the  incident  and  that
death might have been caused by accident and, in any view,  it  was  not  a
homicidal death.  Further, it was pointed out that  the  prosecution  could
not prove that the appellant was at home when the  incident  had  happened.
Learned counsel also submitted that the trial Court has committed an  error
in altering the offence to that  of  Section  306  IPC  after  finding  the
accused not guilty under Section 304-B IPC.  Learned  counsel  pointed  out
that the ingredients of the offence under Section 304-B as well as  Section
306 IPC are entirely different and the trial Court has  committed  a  grave
error in convicting the appellant under Section 306 IPC.   Learned  counsel
also pointed out that there is absolutely no evidence of dowry  demand  and
the conviction recorded  under  Section  498-A  IPC  is  also  without  any
material.  In support of his various contentions, learned counsel also made
reference to few judgments of this Court, which we will deal in the  latter
part of this judgment.


7.    We did not have the advantage of hearing any counsel on the  side  of
the State, even though, the hearing was going on  for  a  couple  of  days.
Learned counsel appearing for the appellant took us through the depositions
of the witnesses examined on the side of the prosecution  as  well  as  the
defence, as also the documentary evidence placed before the Court.

8.    We may first examine whether an offence under Section 498-A  IPC  has
been made out against the appellant.  Admittedly, the marriage between  the
appellant and the deceased was an inter-caste love marriage and, after  few
months of the marriage, she died of  burn  injuries  on  17.9.1993  at  her
matrimonial home.  The question is whether immediately  before  and  during
the period between the date of marriage and the date of incident, was there
any dowry demand on the side of the accused.  In  order  to  establish  the
ingredients of  Section  498-A  IPC,  the  prosecution  examined  PW4,  the
maternal grand-father of the deceased, who had brought up her on the demise
of her parents.  On a plain reading of the deposition of PW4, it  is  clear
that he was against the inter-caste marriage of her grand-daughter with the
appellant, who  belonged  to  the  Scheduled  Caste  community,  while  the
deceased  belonged  to  the  Aggarwal  community.   PW4,  in   his   cross-
examination, stated that he had agreed for the marriage since the  deceased
was adamant to marry the appellant.   PW4  also  stated  that  he  had  not
participated in Tikka ceremony held in  the  house  of  accused  appellant.
Further, it was also stated that he had not contacted any other  member  of
the family of  the  accused  before  the  marriage.   PW4,  in  the  cross-
examination, stated that he had gone to Madhuban prior to the  marriage  to
dissuade the appellant from entering into such a marriage and, for the said
purpose, he met the DSP, Madhuban, who then called Mangat Ram, but  he  was
adamant to marry Seema.  We have to appreciate the evidence of PW4  in  the
light of the fact that he was  totally  against  the  inter-caste  marriage
between the accused and the deceased.   PW4 also deposed that  the  accused
persons had  demanded  a  dowry  of  Rs.10,000/-  and  a  scooter  and,  on
14.8.1993, PW4 gave Rs.10,000/-  in  cash  to  the  accused  and  had  also
promised to make arrangement for the purchase of a scooter.

9.    PW5, a distant relative of PW4, also stated that after 15-20 days  of
the marriage, the deceased came along with the accused to the residence  of
PW4 and, at that time, the deceased  had  told  PW4  and  others  that  the
accused was harassing her since  she  had  not  brought  dowry.   PW5  also
deposed that articles like cooler, fridge, sofa, double bed were  given  to
the accused by way of dowry.  PWs 4 and 5 had  deposed  that  a  demand  of
dowry was made not only by the accused Mangat Ram, but also by his  parents
and sister.  The trial Court recorded a clear finding that the  prosecution
had failed to bring home the guilt as against the parents and sister of the
accused under Section 498A, 304-B IPC, which  was  not  questioned  by  the
prosecution.   However, if that part of the evidence of PWs 4 and  5  could
not be believed against the rest of the accused, then we fail to see how it
could be put against the accused alone, especially when PWs  4  and  5  had
stated that the demand for dowry was made by all the accused on  13.8.1993.
The evidence of PWs 4 and 5 has to be appreciated in the light of the  fact
that they were  against  the  inter-caste  marriage,  since  the  appellant
belonged to Scheduled Caste community and the deceased belonged to Aggarwal
community, a forward community.  Alleged dowry demand  of  Rs.10,000/-  and
the demand of scooter, stated to have been made by the accused,  could  not
be established not only against the other three accused persons,  but  also
against the appellant as well.

10.   We may now examine, apart from the dowry demand,  had  the  appellant
treated the deceased with cruelty and abetted the  deceased  in  committing
suicide.  We have already found on facts that  the  prosecution  could  not
establish that there was any dowry demand from the side of  the  appellant.
Once it is so found, then we have to examine what was the cruelty meted out
to the deceased so as to provoke her to end her life.   It has come out  in
evidence that when the deceased sustained burn injuries,  the  accused  was
not at home.  In this connection, we may refer to  para  25  of  the  trial
Court judgment, which reads as follows:
    “25.   Secondly, Seema died un-natural death.  The most  crucial  point
           which the prosecution was bound to establish, whether Seema  was
           subjected to cruelty and harassment on  account  of  paucity  of
           dowry or there was a fresh demand of dowry,  there  is  no  such
           evidence on the file that  she  was  subjected  to  cruelty  and
           harassment.  Bidhi Chand  and  Avinash  Chander  both  appeared.
           They did not state that  Seema  was  subjected  to  cruelty  and
           harassment  for  paucity  of  dowry  given  at   the   time   of
           marriage........”
                                  [Emphasis Supplied]

11.   The trial Court itself says that there was no such  evidence  on  the
file that she was subjected to cruelty or harassment. But, in  para  26  of
its judgment, the trial Court, adopted a strange reasoning to hold that the
accused had treated the deceased with cruelty, which is as follows:
    “26.   ....... An educated girl of business community  was  left  in  a
           village life and in the house of a lower community people  whose
           way of living, whose way of talking, whose way of  behaviour  is
           not at par with the family members of Seema, since deceased.  As
           such, Seema was feeling perplexed agitated.   She expected  from
           Mangat Ram that she must be  kept  with  him  at  his  place  of
           posting and not to be left in a village life in the  company  of
           rustic persons and that appeared the cause of discontentment and
           unhappiness.  It has been experienced that such  marriage  meets
           ill fate, like the present one.  From statement of  Bidhi  Chand
           and letters Ex.PE and PF an inference can be easily  drawn  that
           Seema was fully unhappy and dis-contended from the behaviour  of
           Mangat Ram accused, since he had left her in village life at the
           mercy of her mother-in-law Jiwni and that is why, she  had  been
           calling her grand maternal father to come for  her  rescue,  but
           Bidhi Chand, as explained by him,  could  not  rush  to  village
           Baroda because his son and his wife  met  with  an  accident  at
           Chandigarh and he went there.”
                                        [Emphasis Supplied]
12.   Further, in para 31, the trial Court has stated that the  conduct  of
Mangat Ram keeping and leaving Seema in Baroda  at  his  home  amounted  to
causing cruelty and harassment to Seema.   In para 32, the trial Court  has
also recorded a very strange reasoning, which is as follows:
    “32.   Accused was very safely entered into  defence  and  led  defence
           evidence that Seema had been suffering from  epilepsy  prior  to
           her marriage. In case, if this  fact  would  have  been  in  the
           knowledge of Mangat Ram, he would have never solemnised marriage
           with Seema.  After enjoying sex with her, he must have  deserted
           this lady...........”


13.   We fail to see how the Court can come to the conclusion  that  having
known the deceased was suffering from Epilepsy, he would not  have  married
the deceased.  If the Court’s reasoning is accepted, then nobody  would  or
could marry a person having Epilepsy. Another  perverse  reasoning  of  the
trial Court which, according to the trial Court, led to the act of suicide,
is as follows:
    “33.   ...... She has been brought up  by  her  grand  maternal  father
           Bidhi Chand and he contracted a love marriage with her.  But  in
           spite of that, he quenched his lust of sex by enjoying Seema and
           then left her in a  rustic  life  of  village.   Seema,  out  of
           frustration and discontentment, wanted to get rid of that  life.
           When her maternal grand father did not reach for her rescue, she
           being fully harassed, sprinkled kerosene oil  on  her  body  and
           took her life. ...............”
                                        [Emphasis Supplied]
14.   The underlined portion indicates  that  the  deceased  had  committed
suicide out of frustration and discontentment and due to  the  reason  that
her maternal grandfather did not reach for her rescue.   Reference  to  few
letters sent by the deceased to her maternal grand father in  this  respect
is apposite.  In her letter dated 18.8.1993 (Annexure P-17) to  PW4,  there
is absolutely no indication of  any  harassment  or  dowry  demand  by  the
accused.  The letter would only indicate that she was home-sick and  wanted
very much to see her grand father, the operative portion of the same  reads
as follows :
      “…. But you should come it is very important work.  If  you  will  not
      come on 25th or 26th then I will give my life.  Therefore both of  you
      should come. Even if Somnath mama will say no for you to go to  Baroda
      but both of you should come, it is important work.  If  you  will  not
      come then your daughter will give her life.  What more should I  write
      you are wise enough.  If there is  any  mistake  in  the  letter  then
      forgive me.  I sent a letter to Bandoi  also.   That  day  we  reached
      Baroda at 3 O’clock.  Both of us wish Namaste to  all  of  you.   Give
      love to Rahul, Sahul.  I miss all of you a lot.  Daddyji after getting
      my letter come to Baroda on 25th or 26th immediately, it is  important
      work.  If you will not come I will give  my  life  therefore  you  and
      mamaji should come.  I am closing my letter.  I am writing again  that
      Daddyji you should come.  It is very important work.  If you will  not
      come on 25th or 26th then on 27th you will get a telephone call of  my
      death. ….”

15.   Reference may also be made to another letter dated 11.9.1997  sent  by
her to PW4.  In that letter also, there was no complaint of  any  harassment
or dowry demand.   On the other hand, the letter would  further  reemphasize
that she was home-sick and very  much  wanted  to  see  her  maternal  grand
father, the operative portion of the letter reads as follows:
      “…. Daddyji you may not come for a night but you should come  to  meet
      me for an hour or two.   It is very important work.  Daddyji you  keep
      on replying to my letter I feel very  happy.   I  miss  Rahul,  Sahul,
      Raju, Sonu, Shalu and Rachit, Sapna, Aarti and all of you.  I keep  on
      crying the whole day and whole night by remembering you.   I  want  to
      meet all of you. Nanaji come to Baroda immediately  after  reading  my
      letter on 17th or 18th date, it is very important work.  If  you  love
      me then you should come.  Daddy  if  you  will  not  come  even  after
      reading my letter then I take your vow  that  I  will  give  my  life.
      Reply to the letter on getting it.  From my side and from my mother in
      law’s side and from Mangat’s side we wish Namaste to all of you.  Give
      love to children.  Writer of letter your daughter.  (Seema)”

16.   The picture that emerges from the conduct of  the  deceased  was  that
she was very home-sick at her matrimonial home and was  very  much  attached
to PW4 and her friends and relatives  at  her  home.  The  accused  being  a
Police Constable had to serve at various places away from his  village  and,
then necessarily he had to leave his wife  at  his  home  in  the  care  and
protection of his parents.  Not taking the wife along with him, itself  was,
however, commented upon by the trial Court  stating  that  the  accused  had
left his wife, an educated girl belonging to  a  business  community,  in  a
village and in the house of a lower community people,  whose  way  of  life,
whose way of talking, whose way of behaviour would not be at  par  with  the
family members  of  the  deceased.   On  this  reasoning,  the  trial  Court
concluded that the deceased was feeling  perplexed,  agitated  and  expected
that  the accused would take her  at  his  place  of  posting,  rather  than
leaving in a village in the company of rustic persons  which,  according  to
the Court, led to discontentment and unhappiness.

17.   We fail to understand how a judicially trained  mind  would  come  out
with such a reasoning and, at least, we expected that the High  Court  would
have set right that perverse reasoning, but we are surprised  to  note  that
the High Court  adopted  yet  another  strange  reasoning,  which  reads  as
follows:
      “When deceased had contracted marriage with the  appellant-accused  on
      her own accord against the wish  of  her  maternal  grandfather  then,
      deceased was not expected to commit suicide because she  was  to  stay
      with the appellant-accused.   On  the  other  hand,  appellant-accused
      being employee had not kept the deceased with him at the place of  his
      posting.  Deceased was staying with  the  parents  of  the  appellant-
      accused.  So, actions of the appellant-accused abetted the deceased to
      commit suicide.”


18.   We fail to see how the failure of a married person to take  his  wife
along with him to the place where he is working or posted, would amount  to
cruelty leading to abetment of committing suicide by the wife.  Taking wife
to place of posting depends upon several factors, like the  convenience  of
both, availability of accommodation and so many factors.   In  the  instant
case, the accused had left the wife in the matrimonial home in the  company
of his parents and we fail to see how that action would amount to  abetment
to commit suicide.

19.   We may point out that the High Court itself after placing reliance on
the letters – Exh. PE and PF - written by  the  deceased  to  her  maternal
grandfather, has noted that there was no reference at all in these  letters
of the demand of dowry by the accused, but stated  that  the  deceased  was
unhappy and upset over the behaviour of the accused, having left her in the
company of his parents.  We have gone through those letters and,  in  those
letters, there is nothing to show  that  the  deceased  was  upset  by  the
behaviour of the accused.  On the other hand, the letters only expose  that
the deceased was extremely home sick and wanted the company of her maternal
grandfather.  We are surprised to note that the High Court found fault with
the accused for leaving the deceased “at the mercy of his parents”.  Again,
the High Court made another strange reasoning, which reads as follows:
      “Immediately after marriage, two letters were written in the months of
      August and September, 1993.   Appellant-accused being employee  should
      have kept the deceased with him.   No prudent man is to commit suicide
      unless abetted to do so.  Actions of the appellant-accused amounts  to
      cruelty compelling the deceased to commit suicide.   Conviction  under
      Section 306 IPC was rightly recorded by the trial Court.  No  question
      of interference.   If husband is given  a  benefit  of  doubt  on  the
      allegation that no direct evidence, no circumstantial  evidence,  when
      the marriage was inter-caste, then what type of evidence  deceased  or
      complainant was to collect.     .”
                                        [Emphasis Supplied]

20.   We find it difficult to comprehend the reasoning  of  the  High  Court
that “no prudent man is to commit suicide  unless  abetted  to  do  so.”   A
woman may attempt to  commit  suicide  due  to  various  reasons,  such  as,
depression,  financial  difficulties,  disappointment  in  love,  tired   of
domestic worries, acute or chronic ailments and so on and need  not  be  due
to abetment.  The reasoning of the High  Court  that  no  prudent  man  will
commit suicide unless abetted to do  so  by  someone  else,  is  a  perverse
reasoning.

21.   We fail to see how the High Court can say that  the  accused  being  a
police man should have kept his wife with him at  his  workplace.   Further,
the High Court then posed a wrong question to itself stating that  if  there
is no direct  evidence,  no  circumstantial  evidence,  then  what  type  of
evidence the deceased or complainant was to collect, when  the  marriage  is
inter-caste, a logic we fail to digest.

22.   We are sorry to state that the trial Court as well as the  High  Court
have not properly appreciated the scope  of  Sections  498-A  and  306  IPC.
Section 498-A IPC, is extracted below for an easy reference:
           “498-A.  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 wilful conduct which is of such a nature as  is  likely
                 to drive the woman to commit  suicide  or  to  cause  grave
                 injury or danger to life, limb or health (whether mental or
                 physical) of the woman; or


              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
                 is on account of failure by her or any  person  related  to
                 her to meet such demand.”


23.   Explanation to Section 498-A gives the  meaning  of  ‘cruelty’,  which
consists of two clauses.   To attract Section 498-A, the prosecution has  to
establish the wilful conduct on the part of the accused and that conduct  is
of such a nature as is likely to drive the  wife  to  commit  suicide.    We
fail to see how the failure to take one’s wife  to  his  place  of  posting,
would amount to a wilful conduct of such a nature which is likely  to  drive
a woman to commit suicide.   We fail to see how a married woman left at  the
parental home by the husband would by itself amount to a wilful  conduct  to
fall within the expression of ‘cruelty’,  especially  when  the  husband  is
having such a job for which he has to be away at the place of  his  posting.
We also fail to see how a wife left in a village life  “in  the  company  of
rustic persons”, borrowing language used by the trial  Court,  would  amount
to wilful conduct of  such  a  nature  to  fall  within  the  expression  of
‘cruelty’.  In our view, both the trial Court as  well  as  the  High  Court
have completely misunderstood the scope of Section 498-A IPC read  with  its
explanation and we are clearly of the view that  no  offence  under  Section
498-A has been made out against the accused appellant.

24.   We have already indicated that the  trial  Court  has  found  that  no
offence under Section 304-B IPC has been made out against the  accused,  but
it convicted the accused under Section 306 IPC, even though  no  charge  had
been framed on that section against the accused.  The  scope  and  ambit  of
Section 306 IPC has not been  properly  appreciated  by  the  Courts  below.
Section 306 IPC reads as under:
      “306. If any person commits suicide, whoever abets the  commission  of
      such  suicide,  shall  be  punished  with   imprisonment   of   either
      description for a term which may extend to ten years, and  shall  also
      be liable to fine.”

      Abetment of suicide is confined to the case of persons who aid or abet
the commission of the suicide.  In the matter of an  offence  under  Section
306 IPC, abetment must attract the definition thereof in  Section  107  IPC.
Abetment is constituted by instigating a person  to  commit  an  offence  or
engaging in a conspiracy to commit, aid or intentional aiding  a  person  to
commit it.  It would be evident from a plain reading  of  Section  306  read
with Section 107 IPC that, in order to make out the offence of  abetment  or
suicide, necessary proof required is that the culprit is either  instigating
the victim to commit suicide or has engaged himself  in  a  conspiracy  with
others for the commission of suicide, or has intentionally aided by  act  or
illegal omission in the commission of suicide.

25.   In the instant case, of course, the wife died  few  months  after  the
marriage and the presumption under Section 113A of the  Evidence  Act  could
be raised.  Section 113A of the Evidence Act reads as follows:
           “113A.  Presumption as to  abetment  of  suicide  by  a  married
      woman.- when the question is whether the commission of  suicide  by  a
      woman had been abetted by her husband or any relative of  her  husband
      and it is shown that she had committed  suicide  within  a  period  of
      seven years from the date of her marriage and that her husband or such
      relative of her husband and subjected her to cruelty,  the  Court  may
      presume, having regard to all the other  circumstances  of  the  case,
      that such suicide had been abetted by her husband or by such  relative
      of her husband.”


26.   We are of the view that the mere fact that if a married woman  commits
suicide within a period of seven years  of  her  marriage,  the  presumption
under Section 113A of the Evidence Act would not automatically  apply.   The
legislative mandate is that where  a  woman  commits  suicide  within  seven
years of her marriage and it is shown that her husband or  any  relative  of
her husband has subjected her to cruelty, the presumption as  defined  under
Section 498-A IPC, may attract, having regard to all other circumstances  of
the case, that such suicide has been abetted  by  her  husband  or  by  such
relative of her husband.  The term “the Court may presume, having regard  to
all the other circumstances of the case, that such suicide had been  abetted
by her husband” would indicate that the presumption  is  discretionary.   So
far as the present case is concerned, we have  already  indicated  that  the
prosecution has not succeeded in showing that there was a dowry demand,  nor
the reasoning adopted by the Courts below  would  be  sufficient  enough  to
draw a presumption so as to fall under Section 113A  of  the  Evidence  Act.
In this connection, we may refer to the judgment of this Court in  Hans  Raj
v. State of Haryana (2004) 12 SCC 257, wherein this Court has  examined  the
scope of Section 113A of the Evidence Act and Sections 306, 107, 498-A  etc.
and held that,  unlike  Section  113B  of  the  Evidence  Act,  a  statutory
presumption does not arise by operation  of  law  merely  on  the  proof  of
circumstances enumerated in Section 113A of the Evidence Act.    This  Court
held that, under Section 113A of the Evidence Act, the  prosecution  has  to
first establish that the woman concerned committed suicide within  a  period
of seven years from the date of  her  marriage  and  that  her  husband  has
subject her to cruelty.  Even though those facts are established, the  Court
is not bound to presume that  suicide  has  been  abetted  by  her  husband.
Section 113A, therefore, gives discretion to  the  Court  to  raise  such  a
presumption having regard to all other  circumstances  of  the  case,  which
means that where the allegation is of cruelty, it can  consider  the  nature
of cruelty to which the woman was subjected, having regard  to  the  meaning
of the word ‘cruelty’ in Section 498-A IPC.

27.   We are of the view that the circumstances of the case pointed  out  by
the prosecution are totally  insufficient  to  hold  that  the  accused  had
abetted his wife to commit suicide and the  circumstances  enumerated  under
Section 113A of the Evidence Act have also not been satisfied.   In  Pinakin
Mahipatray Rawal v. State of Gujarat  (2013)  10  SCC  48,  this  Court  has
examined the scope of Section 113A of the Evidence Act, wherein  this  Court
has reiterated the legal position that the legislative  mandate  of  Section
113A of the Evidence Act is that if a woman  commits  suicide  within  seven
years of her marriage and it is shown that her husband or  any  relative  of
her husband had subjected her to cruelty, as per the presumption defined  in
Section 498-A IPC, the  Court  may  presume,  having  regard  to  all  other
circumstances of the case,  that  such  suicide  had  been  abetted  by  the
husband or such person.  The Court held that, though a presumption could  be
drawn, the burden of  proof  of  showing  that  such  an  offence  has  been
committed by the accused under Section 498-A  IPC  is  on  the  prosecution.
The Court held that the burden is on the prosecution to establish  the  fact
that the deceased committed suicide and the  accused  abetted  the  suicide.
In the instant case, there  is  no  evidence  to  show  whether  it  was  an
accidental death or whether the deceased had committed suicide.

28.   We have every reason to believe that, in the instant case,  the  death
was accidental, for the following reasons.
    - Though not proved in  her  dying  declaration,  it  has  come  out  in
      evidence that the deceased was suffering from Epilepsy  for  the  last
      three years i.e. before 15.3.1993, the date of incident.  This fact is
      fortified by the evidence of Dr. Kuldeep, who  was  examined  as  DW1.
      He deposed that the deceased was suffering from Epilepsy and was under
      his treatment from 23.12.1992 to 2.4.1993 at Kuldeep Hospital,  Ambala
      City.  His evidence was brushed aside by the trial Court on the ground
      that Dr. Kuldeep was  not  a  Psychiatrist.   It  may  be  noted  that
      Epilepsy is not a Psychiatrist problem.  It is  a  disease  of  nerves
      system and a MD (Medicine) could treat the patient of  Epilepsy.   The
      reasoning given by the trial Court for brushing aside the evidence  of
      DW1 cannot be sustained.   Therefore, the possibility of an accidental
      death, since she was suffering from Epilepsy,  cannot  be  ruled  out.
      Evidently, she was in the kitchen and, might be,  during  cooking  she
      might have suffered Epileptic symptoms and fell down on the gas  stove
      and might have caught fire, resulting her ultimate death.
    - DW2, ASI Ram Mohan, the Investigating Officer  of  the  case,  deposed
      that he had recorded the statements of the deceased  wherein  she  had
      stated that she was suffering from Epilepsy for the last  three  years
      before the incident and that on  15.9.1993  while  she  was  preparing
      meals on stove, she had an attack of fits and fell on  the  stove  and
      caught fire.  She had also deposed at that time that her  husband  was
      away at duty at Madhuban, Karnal.  In our view, the  evidence  of  DW2
      has to be appreciated in the light of overall facts and  circumstances
      of the case.


29.   Taking into consideration all aspects of the matter,  we  are  of  the
view that the prosecution has not  succeeded  in  establishing  the  offence
under  Section  498-A  and  Section   306   IPC   against   the   appellant.
Consequently, the appeal is allowed and the conviction and sentence  awarded
by the trial Court and confirmed by the High Court, are set aside.




                                                                …………………………J.
                                                       (K. S. Radhakrishnan)






                                                                …………………………J.
                                          (Vikramajit Sen)
New Delhi,
March 27, 2014.