Sec.182 IPC - wife filed complaint against in-laws - ended in compromise - Husband gave a complaint against wife alleging she filed a false case and register a case under sec.182 - police register the case - sanction was also given - challenged - High court dismissed the petition - Apex court held that To make out a case u/s 182 IPC, the following ingredients are to be proved: (i) An information was given by a person to a public servant. (ii) The information was given by a person who knows or believes such statement to be false. (iii)Such information was given with an intention to cause or knowing it to be likely to cause (a) such public servant to do not to do anything if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, In the present case, the investigating agency has failed to show that the appellant has given information which she was knowing and believing to be false. In the investigation report it has not been reported that the appellant was knowing that the information given is false but still gave the information to harass the respondent No.3. Respondent Nos.1 and 2 having failed to make out a case u/s 182 IPC, we are of the opinion that it was a fit case to quash the proceedings u/s 182 IPC. The High Court failed to notice the relevant facts and mechanically dismissed the application u/s 482 Cr.PC.= SANTOSH BAKSHI … APPELLANT VERSUS STATE OF PUNJAB & ORS. … RESPONDENTS = 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41712

   Sec.182 IPC - wife filed complaint against in-laws - ended in compromise - Husband gave a complaint against wife alleging she filed a false case and register a case under sec.182 - police register the case - sanction was also given - challenged - High court dismissed the petition - Apex court held that To make out a case u/s 182 IPC, the following ingredients  are  to  be
proved:
(i)   An information was given by a person to a public servant.
(ii)  The information was given by a  person  who  knows  or  believes  such
statement to be false.
(iii)Such information was given with an intention to cause or knowing it  to
be likely to cause (a) such public servant to do not to do anything  if  the
true state of facts respecting which such information is  given  were  known
by him, or (b) to use the lawful power of such public servant to the  injury
or annoyance of any person,
 In the present case, the investigating agency has failed to show  that
the appellant has given information which she was knowing and  believing  to
be false. In the investigation report it has  not  been  reported  that  the
appellant was knowing that the information given is  false  but  still  gave
the information to harass the respondent No.3.
 Respondent Nos.1 and 2 having failed to make out a case u/s  182  IPC,
we are of the opinion that it was a fit case to quash  the  proceedings  u/s
182  IPC.  The  High  Court  failed  to  notice  the  relevant   facts   and
mechanically dismissed the application u/s 482 Cr.PC.=


Section 182 IPC relates to false information,  with  intent  to  cause
public servant to use his lawful power to the injury of another  person  and
reads as follows:
“182. False information, with intent to cause  public  servant  to  use  his
lawful power to the injury of another person.- Whoever gives to  any  public
servant any information which he knows or believes to  be  false,  intending
thereby to cause, or knowing it to be likely that  he  will  thereby  cause,
such public servant-
to do or omit anything which such public servant ought not to do or omit  if
the true state of facts respecting which  such  information  is  given  were
known by him, or
 to use the lawful power of such public servant to the injury  or  annoyance
of any person,

shall be punished with imprisonment of either description for a  term  which
may extend to six months, or with fine which  may  extend  to  one  thousand
rupees, or with both.”

To make out a case u/s 182 IPC, the following ingredients  are  to  be
proved:
(i)   An information was given by a person to a public servant.
(ii)  The information was given by a  person  who  knows  or  believes  such
statement to be false.
(iii)Such information was given with an intention to cause or knowing it  to
be likely to cause (a) such public servant to do not to do anything  if  the
true state of facts respecting which such information is  given  were  known
by him, or (b) to use the lawful power of such public servant to the  injury
or annoyance of any person,
17.   In the present case, the investigating agency has failed to show  that
the appellant has given information which she was knowing and  believing  to
be false. In the investigation report it has  not  been  reported  that  the
appellant was knowing that the information given is  false  but  still  gave
the information to harass the respondent No.3.
18.   Respondent Nos.1 and 2 having failed to make out a case u/s  182  IPC,
we are of the opinion that it was a fit case to quash  the  proceedings  u/s
182  IPC.  The  High  Court  failed  to  notice  the  relevant   facts   and
mechanically dismissed the application u/s 482 Cr.PC.
19.   For the reasons aforesaid, we set aside the impugned order dated  12th
July, 2013 passed by the High Court of Punjab  and  Haryana  at  Chandigarh,
quash the complaint filed by respondent no.3  u/s  182  IPC,  the  order  of
approval granted by the SSP in November, 2009 and  proceeding  if  initiated
against the appellant.
20.   The appeal is allowed. No costs.

2014 – June. Part -http://judis.nic.in/supremecourt/filename=41712

                                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.1251 OF 2014
                 (arising out of SLP(Crl.) No.7104 of 2013)

SANTOSH BAKSHI                                           … APPELLANT

                                   VERSUS

STATE OF PUNJAB & ORS.                             … RESPONDENTS

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA,J.


      Leave granted.
2.    This appeal is directed  against  the  order  dated  12th  July,  2013
passed by the High Court of Punjab and Haryana  at  Chandigarh  in  Criminal
Miscellaneous No.M-1834 of 2010 (O&M).  By  the  impugned  order,  the  High
Court  rejected  the  petition  filed  u/s  482  of  the  Code  of  Criminal
Procedure, 1973 (for short, ‘Cr.PC’) preferred by the appellant.
3.    The case of the appellant is that she got married to  the  brother  of
respondent no.3-Vivek Kumar Bakshi on 4th August, 2006. After marriage,  she
shifted to her matrimonial house at Ludhiana and  just  thereafter  her  in-
laws started demanding dowry. The husband  of  the  appellant  always  stood
with her and protected her from various atrocities committed by in-laws  and
respondent no.3. When the matter became out  of  control  the  appellant  on
17th January, 2009 made a complaint to the Senior Superintendent of  Police,
Jalandhar (now known as Commissioner of Police, Jalandhar) alleging  therein
continuous  harassment,  beating  and  maltreating  meted  out  to  her   in
connection with dowry with specific allegations with date, time etc.
4.    According to the appellant, Police kept the matter  pending  for  long
at the instance of respondent no.3 and refused to take any  action.  No  FIR
was registered in spite of the fact that the complaint disclosed  cognizable
offence.
5.    On 6th  April,  2009,  the  appellant  filed  a  complaint  under  the
Protection of Women from Domestic Violence Act, 2005  (hereinafter  referred
to as, ‘the Act’) against  her  in-laws.  In  the  said  case,  her  in-laws
arrived at a compromise with the appellant that they will allow her to  live
in her matrimonial house at Ludhiana. They also agreed that no  maltreatment
will be meted out to her and they will keep her in a nice  manner  and  they
will remain bound by their statements.
6.    Further case of the appellant is that respondent no.3 having  personal
grudge with her husband due to greed of property submitted an  affidavit  on
23rd April, 2009 before the Police Authorities. Respondent no.3 also  stated
that the allegations in the complaint are false and to take action  u/s  182
IPC against the appellant. On 24th April,  2009,  Deputy  Superintendant  of
Police, Jalandhar submitted  a  report  in  which  the  assertions  made  by
respondent no.3 were considered and the complaint was filed in  the  office.
On the basis of affidavit, Police  submitted  a  Calendra  No.18  dated  5th
October, 2009 in the Police Station Division No.1, which  was  prepared  and
presented in the Court by Rajesh Kumar, SI  SHO  Division  No.1,  Jalandhar.
The approval for taking  action  against  the  appellant  u/s  182  IPC  was
obtained from SSP, Jalandhar in November, 2009.
7.     Aggrieved  by  the  aforesaid  false  and  frivolous  Calendra,   the
appellant filed Criminal Miscellaneous  No.M-1834  of  2010  u/s  482  Cr.PC
before the High  Court  of  Punjab  and  Haryana  at  Chandigarh  which  was
rejected by the High Court by impugned order and judgment dated  12th  July,
2013.
8.    Learned counsel for the appellant made the following submissions:
(i)   The High Court  has  wrongly  concluded  that  since  husband  of  the
appellant was not made a party,  complaint was filed with ulterior motive.
(ii) The High Court also failed to consider that in the complaint under  the
Protection of Women from Domestic Violence Act, 2005,  the  allegations  are
identical to the complaint made to the Police.

9.    On the other hand, according to learned counsel for  the  respondents,
the appellant all the time filed false and frivolous complaints  before  the
Police Authorities.
10.   In the affidavit (Annexure  P/3)  respondent  no.3  alleged  that  the
appellant has lodged false complaint against his  parents,  sister,  brother
and brother-in-law. Name of Respondent  No.3  was  not  there  but  when  he
helped his old parents, brother, sister and brother-in-law in shifting  from
Ludhiana to Jalandhar then appellant mentioned  his  name.  Respondent  no.3
further alleged that the appellant and her  husband  are  harassing  him  by
lodging false complaint at Ludhaina as well as at  Jalandhar  and  requested
the authorities to take legal action against them u/s  182  IPC.   The  SHO,
P.S. Div. No.1 by note dated 1st May, 2009  forwarded  the  said  affidavit.
The deposition of respondent no.3  was  recorded  by  Executive  Magistrate,
Tehsil, District Ludhiana.  However, the deposition is not on record.
11.   The Deputy Superintendent of Police, Jalandhar by  letter  dated  24th
April, 2009 referring to the application filed by  the  appellant  intimated
that for the purpose of investigation when the appellant  was  summoned  she
has narrated the matter in the same way as mentioned in her application.  He
further intimated that statement of Vivek Bakshi s/o  Kewal  Krishan  Bakshi
has got recorded. In  his  statement,  Vivek  Bakshi  has  stated  that  the
application which has been moved against him by his sister-in-law  is  wrong
and he has no dispute with her. Moreover,  she  is  intentionally  harassing
him and leveling allegation of dowry against his parents and  others,  which
is absolutely incorrect and wrong.  It was further mentioned in  the  letter
that the said case being related to a family property partition, the  Police
cannot interfere with the same and that a case is pending in Court  and  the
allegations leveled by the  complainant  (appellant  herein)  regarding  the
misappropriation of dowry articles etc. are not proved. The  dowry  articles
and jewellery of the appellant were lying as it is in her  house  and  there
is no truth in the application. It was recommended to file the  application.
 On the basis of such letter, after advise  of  District  Attorney  (Legal),
approval of the SSP, Jalandhar was  taken  and  Calendra  u/s  182  IPC  was
prepared and was ordered to be presented before the Court.
12.   The respondents  have  not  disputed  that  the  complainant-appellant
earlier  submitted  complaint  dated  17th  January,  2009  to  the   Senior
Superintendent of Police, Jalandhar (now known as  Commissioner  of  Police,
Jalandhar). In the said  complaint,  allegation  of  continuous  harassment,
beating and maltreatment of the appellant for demand of dowry with  specific
allegations with date, time etc. were made. It is alleged  that  the  Police
Authorities kept the complaint pending for long and failed to  register  any
FIR.  In  the  meantime,  the  appellant  filed  an  application  under  the
Protection of Women from Domestic Violence Act, 2005. In the said case,  the
in-laws of appellant arrived at a comprise with the appellant and agreed  to
allow the appellant to live in her matrimonial house at  Ludhiana.  Further,
they also gave assurance that the appellant will not be meted out  with  any
maltreatment and they will keep appellant in nice manner.
13.   The aforesaid fact has not  been  disputed  by  the  respondents.  The
reading of the statement made by the parties clarifies the following facts:
(a)   That the appellant was thrown out of  her  matrimonial  house  at  the
instance of one or other persons among the in-laws.
(b)   Assurance given by in-laws that they will not maltreat  the  appellant
makes a presumption that one or other member of the  family  maltreated  the
appellant.
(c)   Assurance given by the in-laws they will keep the  appellant  in  nice
manner in future, suggests that  the  appellant  was  not  treated  in  nice
manner by one or other member of the family.
14.   The complaint, if made,  by  any  woman  alleging  offence  under  the
Protection of Women from  Domestic  Violence  Act,  2005  committed  by  any
member of the family, the matter is to be looked upon seriously. The  Police
without proper verification and investigation cannot submit  a  report  that
no case is made out. The Investigating Agency is  required  to  make  proper
enquiry not only from the members of the family but  also  from  neighbours,
friends and others. After such enquiry, the Investigating Agency may form  a
definite opinion and file report but it is for the Court to  decide  finally
whether to take cognizance for any offence under any of  the  provisions  of
the Act.
15.   Section 182 IPC relates to false information,  with  intent  to  cause
public servant to use his lawful power to the injury of another  person  and
reads as follows:
“182. False information, with intent to cause  public  servant  to  use  his
lawful power to the injury of another person.- Whoever gives to  any  public
servant any information which he knows or believes to  be  false,  intending
thereby to cause, or knowing it to be likely that  he  will  thereby  cause,
such public servant-
to do or omit anything which such public servant ought not to do or omit  if
the true state of facts respecting which  such  information  is  given  were
known by him, or
 to use the lawful power of such public servant to the injury  or  annoyance
of any person,

shall be punished with imprisonment of either description for a  term  which
may extend to six months, or with fine which  may  extend  to  one  thousand
rupees, or with both.”

16.   To make out a case u/s 182 IPC, the following ingredients  are  to  be
proved:
(i)   An information was given by a person to a public servant.
(ii)  The information was given by a  person  who  knows  or  believes  such
statement to be false.
(iii)Such information was given with an intention to cause or knowing it  to
be likely to cause (a) such public servant to do not to do anything  if  the
true state of facts respecting which such information is  given  were  known
by him, or (b) to use the lawful power of such public servant to the  injury
or annoyance of any person,
17.   In the present case, the investigating agency has failed to show  that
the appellant has given information which she was knowing and  believing  to
be false. In the investigation report it has  not  been  reported  that  the
appellant was knowing that the information given is  false  but  still  gave
the information to harass the respondent No.3.
18.   Respondent Nos.1 and 2 having failed to make out a case u/s  182  IPC,
we are of the opinion that it was a fit case to quash  the  proceedings  u/s
182  IPC.  The  High  Court  failed  to  notice  the  relevant   facts   and
mechanically dismissed the application u/s 482 Cr.PC.
19.   For the reasons aforesaid, we set aside the impugned order dated  12th
July, 2013 passed by the High Court of Punjab  and  Haryana  at  Chandigarh,
quash the complaint filed by respondent no.3  u/s  182  IPC,  the  order  of
approval granted by the SSP in November, 2009 and  proceeding  if  initiated
against the appellant.
20.   The appeal is allowed. No costs.

                                                          …………………………………………J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)


                                                          …………………………………………J.
                                     (KURIAN JOSEPH)

NEW DELHI,
JUNE 30, 2014.

Sec.106 of Evidence Act - Non- explanation of husband how his wife was died when both together in a inside locked room - though all relatives of Accused turned hostile - burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day - where the wife found dead Apex court held and relied on Section 101 lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. = State of Rajasthan ….Appellant versus Thakur Singh ….Respondent = 2014 - June. Part -http://judis.nic.in/supremecourt/filename=41708

Sec.106 of Evidence Act - Non- explanation of husband how his wife was died when both together in a inside locked room - though all relatives of Accused turned hostile - burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day - where the wife found dead  Apex court held  and relied on Section 101 lays down the general rule that in a criminal  case  the burden of proof is on the prosecution  and  Section  106  is  certainly  not intended to relieve it of that duty. On the  contrary,  it  is  designed  to meet certain exceptional cases in which it would be impossible,  or  at  any rate disproportionately difficult, for the prosecution  to  establish  facts which are “especially” within the knowledge of  the  accused  and  which  he could prove without  difficulty  or  inconvenience.  The  word “especially” stresses that. It  means  facts  that  are  pre-eminently  or  exceptionally within his knowledge. =

whether the facts and  circumstances
of the case require the application of Section  106  of  the  Evidence  Act,
1872 and if so, whether the respondent/accused is guilty of  the  murder  of
his wife Dhapu Kunwar.  In our opinion, both questions need to  be  answered
in the affirmative and the High Court rendered a decision, perverse in  law,
in acquitting Thakur Singh and reversing the decision of the Trial Court.
Way back in Shambhu Nath Mehra v. State of Ajmer[2] this  Court  dealt
with the interpretation of Section 106 of the Evidence  Act  and  held  that
the section is not intended to shift the burden of proof (in  respect  of  a
crime) on the accused but to take care of a situation where a fact is  known
only to the accused and it is well nigh impossible  or  extremely  difficult
for the prosecution to prove that fact. It was said:

“This [Section 101] lays down the general rule that in a criminal  case  the
burden of proof is on the prosecution  and  Section  106  is  certainly  not
intended to relieve it of that duty. On the  contrary,  it  is  designed  to
meet certain exceptional cases in which it would be impossible,  or  at  any
rate disproportionately difficult, for the prosecution  to  establish  facts
which are “especially” within the knowledge of  the  accused  and  which  he
could prove without  difficulty  or  inconvenience.  The  word  “especially”
stresses that. It  means  facts  that  are  pre-eminently  or  exceptionally
within his knowledge. If the section were to be  interpreted  otherwise,  it
would lead to the very startling  conclusion  that  in  a  murder  case  the
burden lies on the accused to prove  that  he  did  not  commit  the  murder
because who could know better than he whether he did or did not.”
the  High  Court  was  completely  in  error  in  relying
primarily on the fact that since most of the material prosecution  witnesses
(all of whom were  relatives  of  Thakur  Singh)  had  turned  hostile,  the
prosecution was unable to prove its case. The position in law,  particularly
Section 106 of the Evidence Act was completely overlooked by the High  Court
making it arrive at a perverse conclusion in law.

Conclusion
29.   The judgment and order passed by the High Court is set aside and  that
of the Trial Judge restored.  The State should take the necessary  steps  to
apprehend Thakur Singh so that he can serve out the sentence awarded to  him
by the Trial Court.
30.   The appeal is allowed, as above.

2014 - June. Part -http://judis.nic.in/supremecourt/filename=41708
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 357 OF 2005


State of Rajasthan                                          ….Appellant

                                   versus
Thakur Singh                                                ….Respondent


                               J U D G M E N T

Madan B. Lokur, J.

1.    The question for consideration is whether the facts and  circumstances
of the case require the application of Section  106  of  the  Evidence  Act,
1872 and if so, whether the respondent/accused is guilty of  the  murder  of
his wife Dhapu Kunwar.  In our opinion, both questions need to  be  answered
in the affirmative and the High Court rendered a decision, perverse in  law,
in acquitting Thakur Singh and reversing the decision of the Trial Court.


The Facts
2.    According to the first  information  report  (FIR)  lodged  by  Himmat
Singh (PW-2), the respondent/accused  Thakur  Singh  was  married  to  Dhapu
Kunwar and they had a  daughter  aged  about  one  year.  Thakur  Singh  was
working as a labourer or  lorry  driver  in  Ahmadabad.  Since  he  was  not
feeling well, he was brought to the family home in  Hingwania  in  Rajasthan
on 25th February, 1999 where he stayed the whole day.
3.    On 26th February, 1999 Thakur Singh’s brother Bagh  Singh  (PW-3)  was
sent to fetch his brother-in-law Gotu Singh (brother of  Dhapu  Kunwar)  who
then came to Hingwania.  He seems to  have  stayed  overnight  and  on  27th
February, 1999 Gotu Singh and Thakur Singh were together  for  most  of  the
day. In the evening at about 4.30 p.m. on 27th  February,  1999  Gotu  Singh
went to Gundli and stayed there overnight.  He came back  to  Hingwania  the
next morning (28th February, 1999) at about 7.45 a.m.
4.    However, before Gotu Singh arrived  in  Hingwania  on  28th  February,
1999 Thakur Singh took his wife Dhapu Kunwar and  their  daughter  inside  a
room and bolted it from within.  Thereafter, Himmat  Singh  and  Gotu  Singh
went from Hingwania by bus  to  Chanderiya  to  meet  Thakur  Singh’s  elder
brother Shyam Singh (PW-1). While Gotu Singh did not  return  to  Hingwania,
Himmat Singh returned along with Shyam Singh. This was at about 4.30 p.m.
5.    Throughout the day Thakur Singh had locked himself up in a room  along
with Dhapu Kunwar and their daughter. Other ladies  in  the  house,  namely,
the wife of Bhag Singh, (Chanda Kunwar PW-18) wife of  Pratap  Singh  (PW-6)
and (Pushpa Kunwar PW-20) wife of Ram Singh (PW-7) tried to persuade  Thakur
Singh to open the door of the room but he did  not  do  so.   Later  in  the
evening, after Himmat Singh returned with  Shyam  Singh,  they  removed  the
‘kelu’ from above the house and it was then  discovered  that  Thakur  Singh
had killed Dhapu Kunwar.  The door of the house was broken open  and  Thakur
Singh was caught and tied by his brothers and other relatives.

6.    At about 6.15 p.m. on the  same  day,  that  is  28th  February,  1999
Himmat Singh lodged an FIR in the police station giving the facts  mentioned
above. There is a positive assertion  in  the  FIR  that  Thakur  Singh  had
killed Dhapu Kunwar. Soon after the FIR was  registered,  the  investigating
officer Kuber Singh (PW-23) arrived at the place of the occurrence and  took
charge of the investigations and arrested Thakur Singh on the basis  of  the
allegations made in the FIR.
Proceedings in the Trial Court
7.    On completion of investigations, Kuber  Singh  filed  a  charge  sheet
against Thakur Singh alleging the commission of  offences  punishable  under
Sections 302, 326 and  324  of  the  Indian  Penal  Code  (IPC).  The  Upper
District & Sessions Judge (Fast Track) Chittorgarh who heard the case  being
Sessions Case No.90/2001 convicted Thakur Singh and found him guilty  of  an
offence punishable under Section  302  of  the  IPC  and  sentenced  him  to
undergo imprisonment for life and a fine of Rs.1000/-.
8.    The Trial Judge found that the prosecution had examined as many as  25
witnesses.  Subsequently, on the request of the  Public  Prosecutor  another
witness was called making a total of 26 prosecution  witnesses.   Of  these,
14 were the immediate relatives of Thakur  Singh  and  all  of  them  turned
hostile.
9.    The Trial Court found that some basic facts were nevertheless  brought
on record. These basic facts were that Dhapu Kunwar was the wife  of  Thakur
Singh; she was lying dead in the room occupied by her and Thakur Singh,  and
Dr. Khem Chand Saini (PW-15) deposed that Dhapu Kunwar had some injuries  on
her person but the cause of her death was asphyxia and strangulation.
10.   The Trial Judge held, on the basis of the evidence on record, that  no
one except Thakur Singh could have caused the death of Dhapu Kunwar. He  had
confined her and their daughter inside a room and although no  one  saw  him
killing his wife, since the room was bolted from inside, he had  not  opened
it for the whole day and the door had to be forced open, no one  else  could
have caused her death. The Trial Judge  found  that  there  was  nothing  to
suggest that any other person had entered Thakur Singh’s room and there  was
no possibility of  anybody  else  having  caused  Dhapu  Kunwar’s  death  by
strangulation. It was also  noted  that  Thakur  Singh  gave  absolutely  no
explanation in his statement under Section  313  of  the  Code  of  Criminal
Procedure as to how Dhapu Kunwar  had  died  of  asphyxiation  inside  their
room.
Proceedings in the High Court
11.   Feeling aggrieved by the conviction and sentence awarded by the  Trial
Court, Thakur Singh preferred D.B. Criminal Jail Appeal No. 500 of  2001  in
the High Court of Rajasthan.  By a judgment  and  order  dated  4th  August,
2004 (under appeal), the High Court found no evidence to link  Thakur  Singh
with the death of Dhapu Kunwar.  Accordingly, the appeal was allowed and  he
was acquitted of the charge of an offence punishable under  Section  302  of
the IPC.
12.   After the analysis of  the  evidence,  the  High  Court  came  to  the
following conclusions:-
There is no evidence that anybody saw Thakur Singh entering his  room  where
Dhapu Kunwar had been murdered. Also, no one saw him  coming  out  from  the
room after the murder.
There is no evidence that after  allegedly  having  murdered  Dhapu  Kunwar,
Thakur Singh came out of his room  and  was  caught  by  his  relatives  and
handed over to the police.
There is no evidence that when Thakur Singh came out of his room he  was  in
possession of any weapon or that his clothes were stained with blood.
13.   The High Court also concluded that the Trial Judge was swayed  by  the
idea that since Thakur Singh was the husband  of  Dhapu  Kunwar,  therefore,
there was every possibility that he was in the house  and  he  continued  to
remain in the  house  when  Dhapu  Kunwar  was  murdered.   The  High  Court
concluded that though this is a strong  circumstance,  there  must  be  some
evidence in support of this circumstance and  the  best  evidence  would  be
that of Gotu Singh who was not produced by the  prosecution.  Moreover,  the
main prosecution witnesses (who happen to be the relatives of Thakur  Singh)
had turned hostile.
Discussion and conclusion
14.   Questioning the decision of the High Court  acquitting  Thakur  Singh,
the State of Rajasthan has preferred this appeal.
15.   We find that the High Court has not at all considered  the  provisions
of Section 106 of the Evidence Act, 1872.[1] This  section  provides,  inter
alia, that when any fact is especially within the knowledge  of  any  person
the burden of proving that fact is upon him.
16.   Way back in Shambhu Nath Mehra v. State of Ajmer[2] this  Court  dealt
with the interpretation of Section 106 of the Evidence  Act  and  held  that
the section is not intended to shift the burden of proof (in  respect  of  a
crime) on the accused but to take care of a situation where a fact is  known
only to the accused and it is well nigh impossible  or  extremely  difficult
for the prosecution to prove that fact. It was said:

“This [Section 101] lays down the general rule that in a criminal  case  the
burden of proof is on the prosecution  and  Section  106  is  certainly  not
intended to relieve it of that duty. On the  contrary,  it  is  designed  to
meet certain exceptional cases in which it would be impossible,  or  at  any
rate disproportionately difficult, for the prosecution  to  establish  facts
which are “especially” within the knowledge of  the  accused  and  which  he
could prove without  difficulty  or  inconvenience.  The  word  “especially”
stresses that. It  means  facts  that  are  pre-eminently  or  exceptionally
within his knowledge. If the section were to be  interpreted  otherwise,  it
would lead to the very startling  conclusion  that  in  a  murder  case  the
burden lies on the accused to prove  that  he  did  not  commit  the  murder
because who could know better than he whether he did or did not.”


17.    In  a  specific  instance  in  Trimukh  Maroti  Kirkan  v.  State  of
Maharashtra[3] this Court  held  that  when  the  wife  is  injured  in  the
dwelling home where the husband ordinarily resides, and the  husband  offers
no explanation for the injuries to his wife, then  the  circumstances  would
indicate that the husband is responsible for the injuries. It was said:
“Where an accused is alleged to have committed the murder of  his  wife  and
the prosecution succeeds in leading evidence to  show  that  shortly  before
the commission of crime they were seen together or the offence  takes  place
in the dwelling home where the husband also normally resided,  it  has  been
consistently held that if the accused does not  offer  any  explanation  how
the wife received injuries or offers an explanation which  is  found  to  be
false, it is a strong circumstance which indicates that  he  is  responsible
for commission of the crime.”


18.    Reliance  was  placed  by  this  Court  on  Ganeshlal  v.  State   of
Maharashtra[4] in which case the appellant was prosecuted for the murder  of
his wife inside his house.  Since the death had occurred in his custody,  it
was held that the appellant was under an obligation to give  an  explanation
for the cause of death in his statement under Section 313  of  the  Code  of
Criminal Procedure. A denial of the prosecution case  coupled  with  absence
of any explanation was held to be inconsistent with  the  innocence  of  the
accused, but consistent with the hypothesis that the appellant was  a  prime
accused in the commission of murder of his wife.
19.   Similarly, in Dnyaneshwar  v.  State  of  Maharashtra[5]   this  Court
observed that since the deceased was murdered in her  matrimonial  home  and
the appellant had not set up a  case  that  the  offence  was  committed  by
somebody else or that there was a possibility of an outsider committing  the
offence, it was for the husband to explain the  grounds  for  the  unnatural
death of his wife.
20.   In Jagdish v. State  of  Madhya  Pradesh[6]  this  Court  observed  as
follows:
”It bears repetition that the appellant  and  the  deceased  family  members
were the only occupants of the room and it was therefore  incumbent  on  the
appellant to have tendered some explanation in order to avoid any  suspicion
as to his guilt.”

21.   More recently, in Gian Chand v. State of Haryana[7] a large number  of
decisions of this Court were referred to and  the  interpretation  given  to
Section 106 of the Evidence Act in Shambhu Nath Mehra  was  reiterated.  One
of the decisions cited in Gian Chand is that of State of West Bengal v.  Mir
Mohammad Omar[8]  which  gives  a  rather  telling  example  explaining  the
principle behind Section 106 of the Evidence Act in the following words:
“During arguments we put a  question  to  learned  Senior  Counsel  for  the
respondents based on a hypothetical illustration.  If  a  boy  is  kidnapped
from the lawful custody of his guardian in the sight of his people  and  the
kidnappers disappeared with the prey, what would be the normal inference  if
the mangled dead body of the boy is recovered within a couple of hours  from
elsewhere. The query was made whether upon  proof  of  the  above  facts  an
inference could be drawn that the kidnappers  would  have  killed  the  boy.
Learned Senior Counsel finally conceded that in such a  case  the  inference
is reasonably certain that the boy was killed by the kidnappers unless  they
explain otherwise.”

22.   The law, therefore, is quite well settled that the burden  of  proving
the guilt of an accused is on the prosecution,  but  there  may  be  certain
facts pertaining to a crime that can be known only to the  accused,  or  are
virtually impossible for the prosecution to prove. These facts  need  to  be
explained by the accused and if he does not do  so,  then  it  is  a  strong
circumstance pointing to his guilt based on those facts.
23.   Applying this principle to the facts of the case, since  Dhapu  Kunwar
died an unnatural death in the room occupied by her and  Thakur  Singh,  the
cause of the unnatural  death  was  known  to  Thakur  Singh.  There  is  no
evidence that anybody else had entered their  room  or  could  have  entered
their room.  Thakur Singh did not set up any case that he was not  in  their
room or not in the vicinity of their room while the  incident  occurred  nor
did he set up any case that some other person entered the  room  and  caused
the unnatural death of his wife. The facts relevant to the  cause  of  Dhapu
Kunwar’s death being known only  to  Thakur  Singh,  yet  he  chose  not  to
disclose them or to explain them. The principle laid down in Section 106  of
the Evidence Act is clearly applicable to the facts of the  case  and  there
is, therefore, a very strong presumption that Dhapu Kunwar was  murdered  by
Thakur Singh.
24.   It is not that Thakur Singh was obliged  to  prove  his  innocence  or
prove that he had not committed  any  offence.  All  that  was  required  of
Thakur Singh was to explain the unusual situation, namely, of the  unnatural
death of his wife in their room, but he made no attempt to do this.
25.   Learned counsel for Thakur Singh referred to Mahendra Pratap Singh  v.
 State of Uttar Pradesh[9]   to contend that where two views  are  possible,
one held by the Trial Court for acquitting the accused and  the  other  held
by the High Court for convicting the accused, the rule  of  prudence  should
guide the High Court not to disturb the  order  of  acquittal  made  by  the
Trial Court. This decision is not at all apposite.
26.   In our opinion, the High Court  has  very  cursorily  dealt  with  the
evidence on record and has upset a finding of guilt by the Trial Court in  a
situation where Thakur Singh failed to give any explanation  whatsoever  for
the death of his wife by asphyxia in his  room.   Moreover,  the  very  fact
that all the relatives of Thakur Singh turned  hostile  clearly  gives  room
for suspicion and an impression that there is much more  to  the  case  than
meets the eye. Even  the  complainant,  Himmat  Singh  who  squarely  blamed
Thakur Singh (in the FIR) for the murder of his wife, turned hostile to  the
extent of denying his relationship with Thakur Singh.

27.   The High Court expressed the view that since the prosecution  did  not
produce Gotu Singh as its witness, its case ought to fail. In  our  opinion,
Gotu Singh could not have added to the  case  of  the  prosecution.  He  had
arrived on the fateful day after Thakur  Singh  had  locked  himself,  Dhapu
Kunwar and their child in their room. He did  not  even  meet  them  on  the
fateful day and was oblivious of the events that had taken place  that  day.
Therefore, producing him in the witness box  would  not  have  been  of  any
consequence.
28.   On a consideration of the facts of the case  we  are  of  the  opinion
that the approach arrived at by the Trial Court  was  the  correct  approach
under the law and  the  High  Court  was  completely  in  error  in  relying
primarily on the fact that since most of the material prosecution  witnesses
(all of whom were  relatives  of  Thakur  Singh)  had  turned  hostile,  the
prosecution was unable to prove its case. The position in law,  particularly
Section 106 of the Evidence Act was completely overlooked by the High  Court
making it arrive at a perverse conclusion in law.

Conclusion
29.   The judgment and order passed by the High Court is set aside and  that
of the Trial Judge restored.  The State should take the necessary  steps  to
apprehend Thakur Singh so that he can serve out the sentence awarded to  him
by the Trial Court.
30.   The appeal is allowed, as above.


                                                               ………………………………J
                                                     (Madan B. Lokur)


                                                               ………………………………J
                                                     (S.A. Bobde)

New Delhi;
June 30,  2014
-----------------------
[1]   [2] 106. Burden of proving fact especially within knowledge.—When any
fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
                                   Illustrations
      (a) When a person does an act with  some  intention  other  than  that
which the character and circumstances of the  act  suggest,  the  burden  of
proving that intention is upon him.
      (b) A is charged with travelling on a railway without  a  ticket.  The
burden of proving that he had a ticket is on him.

[3]   [4] 1956 SCR 199
[5]   [6] (2006) 10 SCC 681
[7]   [8] (1992) 3 SCC 106

[9]   [10] (2007) 10 SCC 445
[11]  [12] (2009) 9 SCC 495

[13]  [14] (2013) 14 SCC 420

[15]  [16] (2000) 8 SCC 382
[17]  [18] (2009) 11 SCC 334

Service matter - Apex court held that Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.= Dev Prakash Tewari .. Appellant(s) -vs- U.P. Cooperative Institutional Service Board, Lucknow & Ors... Respondent(s) = 2014 - July Part - http://judis.nic.in/supremecourt/filename=41705

 Service matter - Apex court held that Once the appellant had retired from service on  31.3.2009,  there  was no authority vested with the respondents for  continuing   the  disciplinary proceeding even for the purpose of imposing any  reduction  in  the  retiral benefits payable to the appellant.     In the absence of such  an  authority it must be held that the enquiry had lapsed and the appellant  was  entitled to get full retiral benefits.=

It will be noticed from  the  abovesaid  regulations  that  no  specific
provision was  made  for  deducting  any  amount  from  the  provident  fund
consequent to any misconduct determined in the departmental enquiry nor  was
any provision  made  for  continuance  of  the  departmental  enquiry  after
superannuation.=

  While dealing with the above case, the earlier decision in  Bhagirathi
Jena’s case (supra) was not brought to the  notice  of  this  Court  and  no
contention  was  raised  pertaining  to  the  provisions  under  which   the
disciplinary proceeding was initiated and as such no ratio came to  be  laid
down.  In  our view the said decision cannot help the respondents herein.

9.    Once the appellant had retired from service on  31.3.2009,  there  was
no authority vested with the respondents for  continuing   the  disciplinary
proceeding even for the purpose of imposing any  reduction  in  the  retiral
benefits payable to the appellant.     In the absence of such  an  authority
it must be held that the enquiry had lapsed and the appellant  was  entitled
to get full retiral benefits.

10.   The question has also  been  raised  in  the  appeal  with  regard  to
arrears of salary and allowances payable to the appellant during the  period
of his dismissal and upto  the  date  of  reinstatement.   Inasmuch  as  the
inquiry had lapsed, it is,  in  our  opinion,  obvious  that  the  appellant
would have to get the balance of the emoluments payable to him.

11.   The appeals are, therefore, allowed and the judgment and order of  the
High Court are set aside  and the respondents are directed  to  pay  arrears
of salary and allowances payable to the appellant and also to  pay  him  his
all the retiral benefits in accordance with the rules and regulations as  if
there had been no disciplinary  proceeding  or  order  passed  therein.   No
costs.
2014 - July Part - http://judis.nic.in/supremecourt/filename=41705

                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO(s).5848-49  OF 2014
   [Arising out of Special Leave Petition (Civil) Nos.29550-29551 of 2010]



Dev Prakash Tewari                ..                Appellant(s)

                                    -vs-

U.P. Cooperative Institutional
Service Board, Lucknow & Ors...             Respondent(s)





                               J U D G M E N T



C. NAGAPPAN, J.

1.    Leave granted.



2.    These appeals are preferred  by  the  appellant  who  was  working  as
Assistant Engineer with  respondent  No.2.  A  disciplinary  proceeding  was
initiated under Rule 85 of the Uttar Pradesh Co-operative Employees  Service
Regulations, 1975, against him by serving a charge-sheet and  after  inquiry
he was dismissed from  service  by  order  dated  27.4.1988.  The  appellant
sought for quashing the said  order  by  filing  a  writ  petition  in  Writ
Petition No.4328(S/B) of 1988 on the file of the High  Court  of  Judicature
at Allahabad and the High Court held that the inquiry was not  conducted  in
accordance with the procedure stipulated  in  the  Regulation  85  since  no
opportunity was given to cross-examine the witness and  there  is  violation
of principles of natural justice and quashed the disciplinary proceeding  by
allowing the Writ Petition on 10.1.2006.    The  order  also  directed   for
reinstatement and payment of  back  wages  in  accordance  with  the  Rules.
Liberty was  also  granted  to  conduct  a  fresh  disciplinary  inquiry  in
accordance with the  Regulations.   Pursuant  to  the  order  the  appellant
joined duty on 26.4.2006.  Fresh disciplinary proceeding  was  initiated  by
order dated 7.7.2006, appointing Shri  G.S.  Srivastava,   Mukhya  Abhiyanta
as Inquiry Officer and it was pending.  Meanwhile the appellant reached  the
age of superannuation and retired from  service  as  Assistant  Engineer  on
31.3.2009.



3.    The appellant challenged the continuance  of  disciplinary  proceeding
after his retirement by filing Writ Petition  No.1919(SB)  of  2009  on  the
file of High Court of Judicature at  Allahabad,  Lucknow  Bench.   The  High
Court relying on the decision of this Court in  U.P. Cooperative  Federation
Ltd. and Others Vs. L.P.Rai [(2007) 7 SCC 81] held that there is  no  ground
to interfere with the disciplinary proceeding and directed  to  complete  it
within four months by the impugned order dated  18.12.2009.   The  appellant
filed Review Petition No.139 of 2010 and the High Court dismissed  the  same
by order dated 29.3.2010.  Challenging both the  orders  the  appellant  has
preferred  the present appeals.



4.    The learned counsel for the appellant contended that the  disciplinary
proceeding was not completed for more than three years and  in  the  absence
of  any  provision  in  the  Regulations   providing  for  continuation   of
disciplinary proceedings after retirement of the employee,  the  respondents
could not continue the disciplinary proceeding against the  appellant  after
his superannuation.  It is his further contention that  the High  Court  has
failed  to  appreciate  the  law  laid  down  by  this  Court   in   similar
circumstances in the decision reported  in  Bhagirathi  Jena  vs.  Board  of
Directors, O.S.F.C. and Others [(1999) 3 SCC 666] and for  the  said  reason
the impugned order is liable to be set aside.



5.     Per  contra  the  learned  counsel  appearing  for  the   respondents
contended that pursuant to the liberty given by the High Court in its  order
dated 10.1.2006 fresh disciplinary proceeding was initiated and as  held  by
this Court in its decision rendered  in  U.P.  Coop.  Federation  Ltd.  case
(supra) the right of the employer to hold a fresh inquiry cannot  be  denied
on the ground that the employee has  since  retired  from  service  and  the
impugned order is sustainable.



6.    We have carefully considered the rival submissions. The facts are  not
in  dispute.   The  High  Court  while  quashing  the  earlier  disciplinary
proceedings on the ground of violation of principles of natural justice   in
its order dated 10.1.2006 granted liberty  to initiate the fresh inquiry  in
accordance with the  Regulations.   The  appellant  who  was  reinstated  in
service on 26.4.2006  and fresh disciplinary  proceeding  was  initiated  on
7.7.2006 and while that was pending,  the  appellant  attained  the  age  of
superannuation  and retired on 31.3.2009.  There  is  no  provision  in  the
Uttar  Pradesh  Co-operative  Employees  Service  Regulations,   1975,   for
initiation or continuation of disciplinary proceeding  after  retirement  of
the appellant nor there is any provision stating that in case misconduct  is
established a deduction  could  be  made  from  his  retiral  benefits.   An
occasion came before this Court to consider the continuance of  disciplinary
inquiry in similar circumstance  in Bhagirathi Jena’s case  (supra)  and  it
was laid down as follows:



“ 5.  Learned Senior Counsel for the respondents  also  relied  upon  Clause
(3) (c) of Regulation-44 of the Orissa  State  Financial  Corporation  Staff
Regulations, 1975.  It reads thus :


"When  the  employee  who  has  been  dismissed,  removed  or  suspended  is
reinstated, the Board shall consider and make a specific order :-


(i) Regarding the pay and allowances to be paid  to  the  employee  for  the
period of his absence from duty, and


(ii) Whether or not the said period shall be treated as a period on duty."


6.  It will be noticed from  the  abovesaid  regulations  that  no  specific
provision was  made  for  deducting  any  amount  from  the  provident  fund
consequent to any misconduct determined in the departmental enquiry nor  was
any provision  made  for  continuance  of  the  departmental  enquiry  after
superannuation.


7.    In  view of  the   absence  of  such  a  provision  in  the  abovesaid
regulations, it must be held that the Corporation had no legal authority  to
make any reduction in the retiral benefits of the appellant. There  is  also
no provision for conducting a disciplinary enquiry after retirement  of  the
appellant  and  nor  any  provision  stating  that  in  case  misconduct  is
established, a deduction could be  made  from  retiral  benefits.  Once  the
appellant had retired from service on 30.6.95 there was no authority  vested
in the Corporation for continuing the  departmental  enquiry  even  for  the
purpose of imposing any reduction in the retiral  benefits  payable  to  the
appellant. In the absence of such an authority, it must  be  held  that  the
enquiry had lapsed and the appellant was entitled to full  retiral  benefits
on retirement.

7.    In the subsequent decision of this  Court  in  U.P.  Coop.  Federation
case (supra) on facts, the  disciplinary  proceeding  against  employee  was
quashed by the High Court since no opportunity of hearing was given  to  him
in the inquiry and the management in its appeal  before  this  Court  sought
for grant of liberty to hold a fresh inquiry    and  this  Court  held  that
charges levelled  against  the  employee  were  not  minor  in  nature,  and
therefore,  it would not be proper to foreclose the right  of  the  employer
to hold a fresh inquiry only on the  ground  that  the  employee  has  since
retired from the service and accordingly granted the liberty sought  for  by
the management.

8.    While dealing with the above case, the earlier decision in  Bhagirathi
Jena’s case (supra) was not brought to the  notice  of  this  Court  and  no
contention  was  raised  pertaining  to  the  provisions  under  which   the
disciplinary proceeding was initiated and as such no ratio came to  be  laid
down.  In  our view the said decision cannot help the respondents herein.

9.    Once the appellant had retired from service on  31.3.2009,  there  was
no authority vested with the respondents for  continuing   the  disciplinary
proceeding even for the purpose of imposing any  reduction  in  the  retiral
benefits payable to the appellant.     In the absence of such  an  authority
it must be held that the enquiry had lapsed and the appellant  was  entitled
to get full retiral benefits.

10.   The question has also  been  raised  in  the  appeal  with  regard  to
arrears of salary and allowances payable to the appellant during the  period
of his dismissal and upto  the  date  of  reinstatement.   Inasmuch  as  the
inquiry had lapsed, it is,  in  our  opinion,  obvious  that  the  appellant
would have to get the balance of the emoluments payable to him.

11.   The appeals are, therefore, allowed and the judgment and order of  the
High Court are set aside  and the respondents are directed  to  pay  arrears
of salary and allowances payable to the appellant and also to  pay  him  his
all the retiral benefits in accordance with the rules and regulations as  if
there had been no disciplinary  proceeding  or  order  passed  therein.   No
costs.



                                                               ……………………………J.
                                                               (T.S. Thakur)


                                                               ……………………………J.
                                                               (C. Nagappan)
New Delhi;
June 30, 2014

FIR and protest complaint - police filed charge sheet - Magistrate dismissed the complaint under sec. 203 - Revision filed - only hearing complainant , the High court set aside the order of Magistrate without hearing the accused.= Apex court set aside the order of High court and held that under sec.401 Cr.P.C. while hearing the complainant an opportunity should be given to the accused The right given to "accused" or "the other person" under S. 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of the complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in S. 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage.= Bal Manohar Jalan … Appellant(s) versus Sunil Paswan and another … Respondent(s) = 2014 July part http://judis.nic.in/supremecourt/filename=41704

FIR and protest complaint - police filed charge sheet - Magistrate dismissed the complaint under sec. 203 - Revision filed - only hearing complainant , the High court set aside the order of Magistrate without hearing the accused.= Apex court set aside the order of High court and held that under sec.401 Cr.P.C. while hearing the complainant an opportunity should be given to the accused The right given to  "accused"  or  "the  other  person"
under S. 401(2) of being heard before the  revisional  court  to  defend  an
order which  operates  in  his  favour  should  not  be  confused  with  the
proceedings before a Magistrate under Sections 200, 202,  203  and  204.  In
the revision petition before the High Court or the  Sessions  Judge  at  the
instance  of  the  complainant  challenging  the  order  of   dismissal   of
complaint, one of the things that could happen is reversal of the  order  of
the Magistrate and revival of the complaint. It  is  in  this  view  of  the
matter that the accused or other person cannot be  deprived  of  hearing  on
the face of the express provision contained in S. 401(2) of the  Code.   The
stage is not important whether it  is  pre-process  stage  or  post  process
stage.=

The father of the respondent No.1 herein filed  a  complaint  on
24.5.2003 against five  accused  persons  alleging  therein  that  they  had
committed  murder  of  son  of  the  complainant  by  name  Anil  Paswan  by
administering poison.  A case was registered  in  First  Information  Report
No.96 of 2003 on the file of Chowk Police Station, Patna City, on  28.5.2003
against 5 accused persons for the alleged offences under Section  328/302/34
IPC. During investigation, the  complainant  filed  a  protest-cum-complaint
petition on 7.6.2003 which was kept on  record.  The  investigation  officer
submitted the final report in the case on  31.5.2008  against  accused  No.1
Sunita Devi alone under Section 328/302 IPC for the murder of  Anil  Paswan.
The Addl. Chief Judicial Magistrate, Patna City,  perused  the  charge-sheet
and the case diary as  well  as  the  protest-cum-complaint  petition  dated
7.6.2003 and took cognizance for the  offences  under  Section  328/302  IPC
against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5  in  the
First Information  Report  from  the  case  and  rejected  the  protest-cum-
complaint petition filed by the complainant by  his  order  dated  4.3.2009.
Aggrieved by the  rejection  of  the  protest-cum-complaint  petition  Sunil
Paswan, the  son  of  complainant  late  Harinandan  Paswan  filed  revision
petition in Criminal Revision No.830 of 2009 on the file of the  High  Court
of Judicature  at Patna under Section 397 and 401 of the  Code  of  Criminal
Procedure.  The High Court after hearing the  revision  petitioner  and  the
respondent State set aside  the order dated 4.3.2009 passed by  Addl.  Chief
Judicial Magistrate, Patna City and remanded the matter to the  court  below
for proceeding in accordance with  law  treating  the  protest-cum-complaint
petition as a complaint.=
 In a case where the complaint has been dismissed by the Magistrate  u/s.
203 of the Code either at the stage of S. 200 itself  or  on  completion  of
inquiry by the Magistrate u/s. 202 or on receipt  of  the  report  from  the
police or  from  any  person  to  whom  the  direction  was  issued  by  the
Magistrate to investigate into the allegations in the complaint, the  effect
of such dismissal is  termination  of  complaint  proceedings.  On  a  plain
reading of sub-s. (2) of Section 401, it cannot  be  said  that  the  person
against whom the allegations of having committed the offence have been  made
in the complaint and the complaint has  been  dismissed  by  the  Magistrate
under Section 203, has no right to be heard  because  no  process  has  been
issued. The dismissal of complaint by the Magistrate u/s.  203  although  it
is at preliminary stage nevertheless results in termination  of  proceedings
in a complaint against the persons who are alleged  to  have  committed  the
crime. Once a challenge is laid  to  such  order  at  the  instance  of  the
complainant in a revision petition before the High  Court  or  the  Sessions
Judge, by virtue of S. 401(2) of the Code  the suspects  get  the  right  of
hearing before the revisional court although such order was  passed  without
their participation. The right given to  "accused"  or  "the  other  person"
under S. 401(2) of being heard before the  revisional  court  to  defend  an
order which  operates  in  his  favour  should  not  be  confused  with  the
proceedings before a Magistrate under Sections 200, 202,  203  and  204.  In
the revision petition before the High Court or the  Sessions  Judge  at  the
instance  of  the  complainant  challenging  the  order  of   dismissal   of
complaint, one of the things that could happen is reversal of the  order  of
the Magistrate and revival of the complaint. It  is  in  this  view  of  the
matter that the accused or other person cannot be  deprived  of  hearing  on
the face of the express provision contained in S. 401(2) of the  Code.   The
stage is not important whether it  is  pre-process  stage  or  post  process
stage.”

 In the result the impugned order of the High Court dated 18.4.2011  is
set aside and the matter is remitted and the High Court shall  issue  notice
to all the  concerned  accused  and  thereafter  hear  and  dispose  of  the
criminal revision petition in accordance with law.  This appeal  is  allowed
accordingly.
2014 July part http://judis.nic.in/supremecourt/filename=41704
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO. 1247   OF 2014
       [Arising out of Special Leave Petition (Crl.) No.5826 of 2011]


Bal Manohar Jalan                             …     Appellant(s)

                                   versus

Sunil Paswan and another                     …    Respondent(s)

                               J U D G M E N T



      C. NAGAPPAN, J.



1.    Leave granted.



2.    This appeal is preferred against the impugned  order  dated  18.4.2011
passed by the High Court of Judicature at Patna in Criminal Appeal  No.  830
of 2009 whereby the High Court allowed the Criminal Revision  filed  by  the
respondent No.1 herein.



3.    The facts necessary for the disposal of the present appeal are  stated
as follows: The father of the respondent No.1 herein filed  a  complaint  on
24.5.2003 against five  accused  persons  alleging  therein  that  they  had
committed  murder  of  son  of  the  complainant  by  name  Anil  Paswan  by
administering poison.  A case was registered  in  First  Information  Report
No.96 of 2003 on the file of Chowk Police Station, Patna City, on  28.5.2003
against 5 accused persons for the alleged offences under Section  328/302/34
IPC. During investigation, the  complainant  filed  a  protest-cum-complaint
petition on 7.6.2003 which was kept on  record.  The  investigation  officer
submitted the final report in the case on  31.5.2008  against  accused  No.1
Sunita Devi alone under Section 328/302 IPC for the murder of  Anil  Paswan.
The Addl. Chief Judicial Magistrate, Patna City,  perused  the  charge-sheet
and the case diary as  well  as  the  protest-cum-complaint  petition  dated
7.6.2003 and took cognizance for the  offences  under  Section  328/302  IPC
against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5  in  the
First Information  Report  from  the  case  and  rejected  the  protest-cum-
complaint petition filed by the complainant by  his  order  dated  4.3.2009.
Aggrieved by the  rejection  of  the  protest-cum-complaint  petition  Sunil
Paswan, the  son  of  complainant  late  Harinandan  Paswan  filed  revision
petition in Criminal Revision No.830 of 2009 on the file of the  High  Court
of Judicature  at Patna under Section 397 and 401 of the  Code  of  Criminal
Procedure.  The High Court after hearing the  revision  petitioner  and  the
respondent State set aside  the order dated 4.3.2009 passed by  Addl.  Chief
Judicial Magistrate, Patna City and remanded the matter to the  court  below
for proceeding in accordance with  law  treating  the  protest-cum-complaint
petition as a complaint.  Accused No.4 mentioned in  the  First  Information
Report Bal Manohar Jalan has challenged the said order of the High Court  in
this appeal.



4.    This Court issued notice in the matter on  1.8.2011  besides  granting
stay of the impugned order. Respondent  No.1  herein  namely,  the  revision
petitioner before the High Court, though served did  not  choose  to  appear
either in person or through counsel before this Court and that  necessitated
us to appoint Mr. S.B.  Upadhyay,  Senior  Advocate  as  Amicus  Curiae  for
respondent No.1 to assist the Court, by order dated 7.4.2014 and both  sides
were heard on 2.5.2014.



5.    The main contention of the learned counsel for the appellant  is  that
though Section 401(2) of the Criminal  Procedure  Code  stipulated  that  no
order in exercise of the power to revision shall be made by the  High  Court
to the prejudice of the accused unless he had an opportunity of being  heard
either personally or by pleader in his  own   defence,  the  High  Court  in
criminal revision did not issue  notice  to  the  appellant  herein  who  is
accused No.4 in the  First  Information  Report  and  without  providing  an
opportunity  to  him  has  exercised  jurisdiction  under  Section  401   by
directing  to proceed in accordance with law treating the  protest  petition
as the complaint, to the prejudice of the appellant  herein  and  hence  the
impugned order of the High Court is liable to be set aside.  In  support  of
his submission he relied on  the  decision  of  this  Court  in  Manharibhai
Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai  Patel  and  others
[(2012) 10 SCC 517].  We  also  heard  the  learned  amicus  curiae  on  the
submissions made by the learned counsel for the appellant.



6.    Admittedly the appellant herein is mentioned as accused No.4 in  First
Information Report No.96 of 2003 dated 28.5.2003. The father  of  respondent
No.1 herein,  while  alive  filed  a  protest-cum-complaint  petition  dated
7.6.2003 in the said case and on the filing of the final report,  cognizance
was taken by the  Addl.  Chief  Judicial  Magistrate  against  accused  No.1
Sunita Devi alone for the alleged offences under Section  328  and  302  IPC
and the other four accused mentioned in the First  Information  Report  were
discharged from the case and the  protest-cum-complaint  petition  was  also
rejected by order dated 4.3.2009.  Since by then, the  complainant  was  not
alive, his another son namely Sunil Paswan preferred the  Criminal  Revision
under Section 397 and 401 of the Criminal Procedure Code and the High  Court
without issuing notice to the concerned accused passed  the  impugned  order
and on the ground of non-compliance  of  the  provision  under  Section  401
clause (2) of the  Criminal  Procedure  Code  resulting  in  prejudice,  the
appellant has preferred this appeal.



7.    The right of hearing given to accused under Section 401 clause (2)  of
 Criminal Procedure Code  was  elaborately  dealt  with  by  this  Court  in
Manharibhai Muljibhai Kakadia case (supra) and it is laid down as follows:

“46. The legal position is fairly well-settled that in the proceedings  u/s.
202 of the code  the accused/suspect is not entitled  to  be  heard  on  the
question whether the process should be issued  against  him  or  not.  As  a
matter of law, upto the stage of issuance of  process,  the  accused  cannot
claim any right of hearing. S. 202 contemplates  postponement  of  issue  of
process where the Magistrate is of an opinion that further inquiry into  the
complaint either by himself is required and he  proceeds  with  the  further
inquiry or directs an investigation to be made by a  Police  Officer  or  by
such other person as he thinks fit for the purpose of  deciding  whether  or
not there is sufficient ground for proceeding. If the Magistrate finds  that
there is  no  sufficient  ground  for  proceeding  with  the  complaint  and
dismisses the complaint u/s. 203 of  the Code, the  question  is  whether  a
person accused of crime in the complaint can claim right  of  hearing  in  a
revision application preferred by the complainant against the order  of  the
dismissal of the complaint.  Parliament being alive to  the  legal  position
that the accused/suspects are not entitled to be heard at any stage  of  the
proceedings until issuance of process under  Section  204,  yet  in  Section
401(2) of the Code provided that no order in exercise of the  power  of  the
revision shall be made by the Sessions Judge or the High Court, as the  case
may be, to the prejudice of the accused or the other person  unless  he  had
an opportunity of being heard either personally or by  pleader  in  his  own
defence.

47.     xxxx       xxxx      xxxx


48. In a case where the complaint has been dismissed by the Magistrate  u/s.
203 of the Code either at the stage of S. 200 itself  or  on  completion  of
inquiry by the Magistrate u/s. 202 or on receipt  of  the  report  from  the
police or  from  any  person  to  whom  the  direction  was  issued  by  the
Magistrate to investigate into the allegations in the complaint, the  effect
of such dismissal is  termination  of  complaint  proceedings.  On  a  plain
reading of sub-s. (2) of Section 401, it cannot  be  said  that  the  person
against whom the allegations of having committed the offence have been  made
in the complaint and the complaint has  been  dismissed  by  the  Magistrate
under Section 203, has no right to be heard  because  no  process  has  been
issued. The dismissal of complaint by the Magistrate u/s.  203  although  it
is at preliminary stage nevertheless results in termination  of  proceedings
in a complaint against the persons who are alleged  to  have  committed  the
crime. Once a challenge is laid  to  such  order  at  the  instance  of  the
complainant in a revision petition before the High  Court  or  the  Sessions
Judge, by virtue of S. 401(2) of the Code  the suspects  get  the  right  of
hearing before the revisional court although such order was  passed  without
their participation. The right given to  "accused"  or  "the  other  person"
under S. 401(2) of being heard before the  revisional  court  to  defend  an
order which  operates  in  his  favour  should  not  be  confused  with  the
proceedings before a Magistrate under Sections 200, 202,  203  and  204.  In
the revision petition before the High Court or the  Sessions  Judge  at  the
instance  of  the  complainant  challenging  the  order  of   dismissal   of
complaint, one of the things that could happen is reversal of the  order  of
the Magistrate and revival of the complaint. It  is  in  this  view  of  the
matter that the accused or other person cannot be  deprived  of  hearing  on
the face of the express provision contained in S. 401(2) of the  Code.   The
stage is not important whether it  is  pre-process  stage  or  post  process
stage.”




8.    In the present case challenge is laid to order dated 4.3.2009  at  the
instance of the complainant in the revision petition before the  High  Court
and by virtue of Section 401(2) of the Code, the accused  mentioned  in  the
First Information Report get the right  of  hearing  before  the  revisional
court  although  the  impugned  order  therein  was  passed  without   their
participation.  The appellant who is an accused person  cannot  be  deprived
of hearing on the face of the express provision contained in Section  401(2)
of the Code and on this ground, the impugned order  of  the  High  Court  is
liable to be set aside and the matter has to be remitted.



9.    Though other grounds such as charge-sheet having been  filed  and  the
cognizance has been taken against accused No.1, the protest petition  cannot
be treated as a complaint  warranting  an  independent  inquiry,  have  been
raised in this appeal, we do not deem it  necessary  to  consider  the  same
since we are remitting the matter for fresh consideration and it is open  to
the appellant to raise them before the High Court.



10.   In the result the impugned order of the High Court dated 18.4.2011  is
set aside and the matter is remitted and the High Court shall  issue  notice
to all the  concerned  accused  and  thereafter  hear  and  dispose  of  the
criminal revision petition in accordance with law.  This appeal  is  allowed
accordingly.



                                                             ..………………………….J.
                                        (T.S. Thakur)


                                                               ……………………………J.
                                        (C. Nagappan)
New Delhi;
June 30, 2014

Without filing a suit for specific performance suit or with out reserving rights under Or.2, rule 2 , bare injunction suit is not maintainable = Lakshmi alias Bhagyalakshmi and Anr. … Appellant(s) Vs. E.Jayaram (D) by Lr. …Respondent(s)= 2013 ( Feb.Part ) http://judis.nic.in/supremecourt/filename=40024

 Without filing a suit for specific performance suit or  with out reserving rights under Or.2, rule 2 , bare injunction suit is not maintainable = 
 Ld.  Single  Judge  instead  of
considering the legality and propriety of the interim injunction granted  by
the Civil Judge proceeded to  decide  the  effect  of  Section  53A  of  the
Transfer of Property Act, 1882.  The Ld. Single Judge is of  the  view  that
though the plaintiff is ready  and  willing  to  perform  her  part  of  the
contract, the fact that suit for bare injunction is  filed  without  seeking
leave under Order 2 rule 2 CPC reserving their right to sue  for  any  other
relief.  According to Ld.  Single  Judge  in  the  light  of  this,  if  the
respondent is barred from claiming any relief of specific  performance,  the
incidental relief of injunction would be unavailable to the respondents.    
learned single  judge  has  completely  misconstrued
the provisions of Order 39 Rule 1 and 2 CPC and has committed serious  error
in deciding the scope of Section 53A of Transfer of Property Act,  1882  and
Order 2 Rule 2 of CPC.    As noticed above the Civil  Judge  while  granting
ad-interim  injunction  very  categorically  observed  in  the  order   that
respective rights of the parties shall be  decided  at  the  time  of  final
disposal of the suit.  The very fact that Plaintiff No.2  is  in  possession
of the  property  as  a  tenant  under  Plaintiff  No.1  and  possession  of
Plaintiff  No.2  was  not  denied,  the  interim  protection  was  given  to
Plaintiff No.2 against the threatened action of the defendants to evict  her
without following the due process of law.  In our  considered  opinion,  the
order passed by the learned single judge cannot be sustained in law.
8.    For the aforesaid reasons, we allow this  appeal  and  set  aside  the
order passed by the High Court in the aforesaid appeal arising  out  of  the
order of injunction.
2013 ( Feb.Part ) http://judis.nic.in/supremecourt/filename=40024
                                                   [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1004 of 201 3
         (Arising out of Special Leave Petition (C) No.1185 of 2006)

Lakshmi alias Bhagyalakshmi and Anr.                     …   Appellant(s)

                                     Vs.

E.Jayaram (D) by Lr.                                      …Respondent(s)

                               J U D G M E N T

M.Y. EQBAL, J.

      Leave granted.

2.    This appeal is directed against the order dated 29.08.2005  passed  by
a single Judge of the Karnataka High  Court  in  M.F.A.  No.  524  of  2003,
whereby the Learned Single Judge set aside  the  order  passed  by  the  VII
Addl. City Civil Judge, Bangalore  and  held  that  defendant-respondent  is
entitled to initiate action for ejectment of the  plaintiff-appellants  from
the suit property.
3.    The facts of the case lie in a narrow compass.
4.    The plaintiffs who  are  the  present  appellants  filed  a  suit  for
permanent injunction restraining the defendant-respondents from  interfering
with their peaceful possession and enjoyment  of  the  suit  property.   The
plaintiff-appellants case was that Plaintiff No.1 is the absolute  owner  of
the suit  property  consisting  of  a  building  which  was  purchased  from
Defendant No.1 on a consideration of Rs.6,000/-  However,  sale  deed  could
not be registered as the registration was suspended by  the  Government  and
the defendant-respondents could not   get  clearance  from  the  Urban  Land
Ceiling  Authority.   The  plaintiff-appellant’s  further  case   was   that
although the sale deed was not registered,  the  entire  sale  consideration
was paid to Defendant No.1 by the plaintiff who was  put  in  possession  of
the suit property.  It was pleaded by the  plaintiffs  that  Plaintiff  No.1
leased out the suit property in favour of Defendant No.2 who is residing  in
the same suit property for the last 17 years.  Plaintiff-appellants  further
case was that they approached the Bangalore Mahanagara Palike for change  of
kattas and, on enquiry, they learnt that Defendant No.1  with  an  intention
to grab the property concocted a gift deed in favour of Defendant No.2,  who
is his wife and on that basis moved an application  for  change  of  kattas.
Immediately, the plaintiffs caused a legal notice  dated  09.09.2002  asking
him to execute a sale deed in favour  of  Plaintiff  No.1.   The  plaintiffs
also caused a legal notice  on  Municipal  authorities  not  to  change  the
kattas  in  favour  of  Defendant  No.2  as  Defendant  No.1  has  no  right
whatsoever  to  gift  the  suit  property.   The  plaintiffs  alleged   that
defendants  along  with  their  henchmen  came  to  the  suit  property  and
threatened the plaintiff-appellants of dire  consequences  if  they  do  not
vacate the property within three days.  On account of repeated threats  from
the side of defendants, the plaintiffs were compelled to  file  a  suit  for
permanent injunction restraining the defendants from interfering with  their
peaceful  possession  and  enjoyment  of  the  suit  property.   A  separate
application under Order 39 Rule 1 and 2 CPC  seeking  an  ad-interim  relief
restraining the defendants from interfering with their  peaceful  possession
and enjoyment was filed.
5.    The defendant-respondents filed a written  statement  and  denied  the
averments made in the plaint.  The defendants denied  the  purchase  of  the
suit property by the plaintiff-appellants  from  Defendant-Respondent  No.1.
The defendants pleaded  about  their  family  settlement  whereby  the  suit
property was allotted to the defendants who put  construction  and  let  out
the same to Plaintiff No.2.  According to the defendants, Plaintiff No.1  is
a stranger.  In a nutshell the case of  the  defendants  is  that  Defendant
No.1 is the owner of the property and Plaintiff No.2 is a tenant  under  him
and that she was paying rent per month.
6.    The learned Additional  City  Civil  Judge  on  consideration  of  the
pleadings made by the parties and the documents filed by  them  allowed  the
application of the plaintiffs under Order 39 Rule 1 and 2  CPC  and  granted
ad-interim temporary injunction restraining the defendants from  interfering
with  the  peaceful  possession  and  enjoyment  of  the  suit  property  by
Plaintiff  No.2  till  disposal  of  the  suit.   While  granting  temporary
injunction the Civil Judge recorded the following reasons :-
              “From the allegations and  counter  allegations,  it  can  be
        crystallized that plaintiff no.2 is in possession of suit  schedule
        property and as such, the documents have  been  produced  and  even
        defendants admit the possession of plaintiff no.2.  As regards  the
        sale deed which is alleged  to  have  been  executed  the  same  is
        seriously disputed document.  Hence it need not  be  considered  at
        this stage.  The respective rights of the parties will have  to  be
        decided at the final disposal of the suit.  At this  stage,  it  is
        suffice to state that  plaintiff  no.2  is  in  possession  of  the
        property who has filed an affidavit stating that she  is  a  tenant
        under plaintiff no.1 where as defendants have produced documents to
        show that she is tenant under them.


              In view of the above, I am of the  considered  opinion   that
        this controversy can be resolved at the final disposal of the  suit
        when parties  lead  their  respective  evidence.   At  this  stage,
        plaintiff no.2 is entitled for  injunction.  Hence  the  point  for
        consideration is answered in favour of plaintiff no.2  only  and  I
        proceed to pass the following:


              I.A. No.1 filed by the plaintiffs under Order 39 Rule 1 and 2
        of CPC is allowed in part.


              Defendants 1 and 2 are restrained by an order  of  ad-interim
        temporary injunction from interfering with the peaceful  possession
        and enjoyment of the suit schedule property by plaintiff no.2  till
        disposal of the suit.”


6.    Aggrieved by the said order the defendants preferred an appeal  before
the High Court being MFA No.524  of  2003.   Ld.  Single  Judge  instead  of
considering the legality and propriety of the interim injunction granted  by
the Civil Judge proceeded to  decide  the  effect  of  Section  53A  of  the
Transfer of Property Act, 1882.  The Ld. Single Judge is of  the  view  that
though the plaintiff is ready  and  willing  to  perform  her  part  of  the
contract, the fact that suit for bare injunction is  filed  without  seeking
leave under Order 2 rule 2 CPC reserving their right to sue  for  any  other
relief.  According to Ld.  Single  Judge  in  the  light  of  this,  if  the
respondent is barred from claiming any relief of specific  performance,  the
incidental relief of injunction would be unavailable to the respondents.
7.    We have heard learned counsel  appearing  for  the  parties.   In  our
considered opinion, the learned single  judge  has  completely  misconstrued
the provisions of Order 39 Rule 1 and 2 CPC and has committed serious  error
in deciding the scope of Section 53A of Transfer of Property Act,  1882  and
Order 2 Rule 2 of CPC.    As noticed above the Civil  Judge  while  granting
ad-interim  injunction  very  categorically  observed  in  the  order   that
respective rights of the parties shall be  decided  at  the  time  of  final
disposal of the suit.  The very fact that Plaintiff No.2  is  in  possession
of the  property  as  a  tenant  under  Plaintiff  No.1  and  possession  of
Plaintiff  No.2  was  not  denied,  the  interim  protection  was  given  to
Plaintiff No.2 against the threatened action of the defendants to evict  her
without following the due process of law.  In our  considered  opinion,  the
order passed by the learned single judge cannot be sustained in law.
8.    For the aforesaid reasons, we allow this  appeal  and  set  aside  the
order passed by the High Court in the aforesaid appeal arising  out  of  the
order of injunction.
9.    However, before parting with the order we are of the view  that  since
the suit is pending for a long time the trial court shall hear  and  dispose
of the suit within a period of four months from the date of receipt of  copy
of this order.  It goes without saying that the trial  court  shall  not  be
influenced by any of the  observation  made  in  the  order  passed  by  the
appellate court as also by this court and the suit shall be decided  on  its
own merits.


                                                              ………………………………J.
                                                     (SURINDER SINGH NIJJAR)




                                                              ………………………………J.
                                                                (M.Y. EQBAL)
New Delhi
February 7, 2013


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