Other than victim can also file complaint under sec.498 A read with sec.3 and 4 of DPAct = Section 498A provides for an offence when husband or the relative of the husband, subject her to cruelty. There is nothing in Section 498A, which may indicate that when a woman is subjected to cruelty, a complaint has to be filed necessarily by the women so subjected. A perusal of Section 498A, as extracted above, indicates that the provision does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative. We, thus, are of the view that complaint filed by respondent No.2, the father of Vanshika cannot be said to be not maintainable on this ground.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.594 of 2019
(arising out of SLP (Crl.) No.8103/2018)
RASHMI CHOPRA ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.598 of 2019
(arising out of SLP (Crl.) No.8050/2018)
ANITA GANDHI ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.599 of 2019
(arising out of SLP (Crl.) No.8052/2018)
NAYAN CHOPRA THROUGH POA HOLDER
RAJESH CHOPRA ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S)
2
WITH
CRIMINAL APPEAL NO.597 of 2019
(arising out of SLP (Crl.) No.8042/2018)
AMIT CHOPRA ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.596 of 2019
(arising out of SLP (Crl.) No.8041/2018)
KULDEEP GANDHI ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S)
AND
CRIMINAL APPEAL NO.595 of 2019
(arising out of SLP (Crl.) No.8039/2018)
RAJESH CHOPRA ...APPELLANT(S)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
These appeals have been filed challenging the
judgment of Allahabad High Court dated 08.08.2018 by
3
which the application under Section 482 Cr.P.C. filed
by the appellants praying for quashing the complaint
and proceedings in Complaint Case No. 4967 of 2015 have
been dismissed.
2. All the appeals having been filed against the same
judgment, facts of the case are being taken from
Criminal Appeal No. 594 of 2019 – Rashmi Chopra & Ors.
Vs. The State of Uttar Pradesh & Anr., in which criminal
appeal, reply affidavit and rejoinder affidavit have
been filed. The background facts of the case necessary
to be noted for deciding these appeals are:-
2.1 Nayan Chopra, son of Rashmi Chopra and Rajesh
Chopra got married with Vanshika Bobal,
daughter of respondent No.2, Indrajeet Singh
on 15.04.2012. All the appellants are family
members of Nayan Chopra. Rashmi Chopra is
mother, Rajesh Chopra is father, Amit Chopra
is Brother and Anita Gandhi is Mother’s
Sister of Nayan Chopra, whereas Kuldeep
Gandhi is husband of Anita Gandhi. Nayan
4
Chopra with his mother, father and brother
are resident of 203, Jainti Apartment, Police
Station – Begumpet, Hyderabad (Andhra
Pradesh). Anita Gandhi and Kuldeep Gandhi
are resident of Greater Kailash – I, New
Delhi.
2.2 After the marriage of Nayan Chopra and
Vanshika, which was performed at Noida,
District Gautam Buddha Nagar on 15.04.2012,
Vanshika went alongwith her husband at
Hyderabad, the matrimonial home of Vanshika.
On 28.04.2012, Vanshika and Nayan Chopra left
for the U.S.A. On or about November, 2013,
Vanshika and Nayan Chopra separated. On
23.10.2014, an application was filed by Nayan
Chopra in the Circuit Court for the County
of Kalamazoo Family Division, Michigan, USA,
seeking divorce.
2.3 On 10.11.2014, a complaint was sent by
respondent No.2 through registered post to
the Superintendent of Police, Gautam Buddha
5
Nagar, Noida making allegations against
Rajesh Chopra and two other unknown persons.
An application under Section 156(3) was filed
by respondent No.2. The application of the
respondent No.2 was sent by the Magistrate
to Mediation Centre running under the
District Legal Services Authority for
counselling. After failure of counselling
and mediation, an application under Section
156(3) Cr.P.C. was filed by respondent No.2
dated 10.05.2015 making allegations against
all the appellants under Section 498A and
Sections 3/4 of Dowry Prohibition Act.
2.4 In the complaint, allegations have been made
on the basis of incident dated 08.11.2014
against Rajesh Chopra and his associates. It
was alleged that Rajesh Chopra call the
respondent No.2 near the Gurudwara at Sector
18, Noida to talk about the problem of Nayan
Chopra and Vanshika and when respondent No.2
went for talks, he met Rajesh Chopra with two
unknown persons. Respondent No.2 further
6
alleges that on his request to accept his
daughter, Rajesh Chopra repeated his demand
of one crore rupees and used filthy words
against Vanshika, which was objected by
respondent No.2, on which Rajesh Chopra and
his associates became annoyed and they abused
and beat the respondent No.2 and snatched his
gold chain from his neck and Rs.60,000/- from
his pocket. The allegations within the
meaning of Sections 323, 324, 504, 506, 392
of I.P.C. were made on the basis of the
aforesaid incident. In the application, it
was also stated that Nayan Chopra has filed
a petition for dissolution of marriage in
America.
2.5 On the basis of the application of divorce
by Nayan Chopra, the Circuit 9th Court for
the County of Kalamazoo Family Division,
Michigan gave a judgment of divorce on
24.02.2016. The order of judgment of divorce
was passed after hearing both Nayan Chopra
and Vanshika Bobal, who were represented
7
through attorneys. The judgment of divorce
made provisions for alimony, pension
benefits and retirement benefits, life
insurance, property settlement and provision
in lieu of dower, mutual release of claims
and other provisions.
2.6 The application under Section 156(3) Cr.P.C.
filed by respondent No.2 was treated as a
complaint and registered as Complaint No.
4967 of 2015, on which the learned Judicial
Magistrate, Gautam Budh Nagar issued a
summoning order on 17.01.2017 summoning the
appellants under Sections 498A, 323, 504, 506
of I.P.C. and Section 3/4 of Dowry
Prohibition Act.
2.7 The appellants filed an application under
Section 482 Cr.P.C. in the High Court praying
for quashing the complaint and proceedings
and order dated 17.01.2017 in Complaint Case
No. 4967 of 2015. In the application under
Section 482 Cr.P.C., High Court passed an
8
order referring the matter to mediation
centre of Allahabad High Court. The
mediation having failed between the parties,
application under Section 482 Cr.P.C. was
heard. The prayer of the appellants to quash
the complaint and proceedings have been
refused. The application was disposed of
after directing that the applicants may
surrender in the court below and make an
application for bail within a period of two
months. Aggrieved against the judgment of
the High Court, these appeals have been
filed.
3. All appeals arise out of the same order passed in
their application under Section 482 Cr.P.C.
4. We have heard Shri Shikhil Suri, learned counsel
for the appellants and Shri Santosh Krishnan, learned
AOR appearing for the respondent No.2. We have also
heard learned counsel for the State of Uttar Pradesh.
9
5. Learned counsel for the appellants submits that
High Court failed to exercise jurisdiction under
Section 482 Cr.P.C. in quashing the entire complaint
proceedings, which proceedings are nothing but abuse
of the process of the court. It is submitted that
Nayan Chopra and Vanshika Bobal had already been
granted divorce by Family Court of Michigan, which fact
was not brought into notice of the Magistrate by
respondent No.2 before summoning order was passed. It
is submitted that a reading of the complaint does not
prima facie discloses any offence under Section 498A
and 3/4 of Dowry Prohibition Act against the
appellants. The appellants, Anita Gandhi and Kuldeep
Gandhi separately resides and they have never met
Vanshika, the girl after marriage. The allegations in
the complaint are vague, sweeping and general. The
complaint is not even filed by Vanshika, the girl nor
she got her statement recorded in support of the
complaint. In so far as incident alleged on 08.11.2014
at Sector 18, Noida no such incident took place and
allegations are false and concocted to somehow rope in
Rajesh Chopra, the father of the boy Nayan Chopra. The
10
complaint has not been filed by competent person, hence
ought not to have been entertained.
6. Shri Santosh Krishnan, learned counsel appearing
for respondent No.2 submits that there is no error in
summoning of the appellants by the Magistrate by order
dated 17.01.2017. It is well settled that Magistrate
is not required to record elaborate reasons for
summoning of an accused. The complaint discloses
several allegations pertaining to offence under Section
498A and other offences mentioned therein. Two courts
having taken one particular view of the matter, this
Court may not exercise its jurisdiction in interfering
with the orders. It is further submitted that Section
498A does not indicate that complaint on behalf of the
women has to be filed by the women herself. The
complain was fully competent and no error has been
committed by Magistrate in taking cognizance of the
complaint.
7. Learned counsel for the parties have placed
reliance on various judgments of this Court in support
11
of their submissions, which shall be referred to while
considering the submissions in detail.
8. We have considered the submissions of the learned
counsel for the parties and have perused the records.
9. The copy of the complaint under Section 156(3)
Cr.P.C., which has been treated as private complaint
by Magistrate has been brought on the record as
Annexure P-2. The allegations in the complaint are
that marriage was solemnised on 15.04.2012 in which
marriage, gifts of Rs.50 lakhs were given to Nayan
Chopra and his family members. It is alleged that
after the marriage, all family members were not
satisfied by the gifts and they started harassing the
daughter of respondent No.2 by demanding further dowry
of one crore rupees. They further pressurised to
solemnise the marriage of Vanshika as per Punjabi rites
and ceremonies, on which pressure, marriage was
solemnised on 06.11.2012 in Gurudwara at Sector 37,
Noida as per Punjabi rites and ceremonies. Further
allegations are that family members of Nayan Chopra
kept on threatening Vanshika to desert her and on
12
01.12.2013 Nayan Chopra threw Vanshika out of house and
since then Vanshika is residing with respondent No.2.
Another set of allegations are with regard to incident
dated 08.11.2014 alleged to have been taken place at
6.00 PM near the Gurudwara, Sector-18, Noida. It is
alleged that Rajesh Chopra, father of Nayan Chopra
called the respondent No.2 to talk about their problem
on which date Rajesh Chopra again repeated his demand
of one crore rupees and used filthy words against
Vanshika to which respondent No.2 objected, on which
Rajesh Chopra and his associates became annoyed and
they abused and beat the respondent No.2 and snatched
his gold chain from his neck and Rs.60,000/- from his
pocket. The above two sets of allegations have given
rise to summoning order. The summoning order passed
by the Magistrate on 17.01.2017 is as follows:-
“ORDER
The accused persons Nayan Chopra, Rajesh
Chopra, Rashi Chopra, Amit Chopra, Kuldeep
Gandhi & Anita Gandhi are summoned for the
offence under Sections 498A, 323, 504, 506
of IPC and Section 3/4 of D.P. Act. The
complainant is directed to take steps as per
Rules within one week. Case is fixed for
08.03.2017 for appearance.
Sd/- illegible
13
17.01.2017
(Vikas)
Civil Judge (Jr. Division)
J.M. Gautam Budh Nagar.”
10. One of the submissions, which has been pressed by
learned counsel for the respondent No.2 is that
Magistrate has to be satisfied that there are grounds
for proceeding and there is no requirement of giving
any elaborate reasons for summoning the accused.
11. Learned counsel for the respondent has placed
reliance on Dy. Chief Controller of Imports & Exports
Vs. Roshanlal Agarwal & Ors., (2003) 4 SCC 139, this
Court in paragraph No. 9 of the judgment laid down
following:-
“9. In determining the question whether any
process is to be issued or not, what the
Magistrate has to be satisfied is whether
there is sufficient ground for proceeding and
not whether there is sufficient ground for
conviction. Whether the evidence is adequate
for supporting the conviction, can be
determined only at the trial and not at the
stage of inquiry. At the stage of issuing the
process to the accused, the Magistrate is not
required to record reasons. This question was
considered recently in U.P. Pollution Control
Board v. Mohan Meakins Ltd., (2000) 3 SCC 745
and after noticing the law laid down in Kanti
Bhadra Shah v. State of W.B., (20000 1 SCC
14
722, it was held as follows: (SCC p. 749,
para 6)
The legislature has stressed the need
to record reasons in certain
situations such as dismissal of a
complaint without issuing process.
There is no such legal requirement
imposed on a Magistrate for passing
detailed order while issuing summons.
The process issued to accused cannot
be quashed merely on the ground that
the Magistrate had not passed a
speaking order.”
12. Same proposition was reiterated by this Court in
Nupur Talwar Vs. Central Bureau of Investigation &
Anr., (2012) 11 SCC 465. There can be no dispute to
the above proposition as laid down by this Court that
while taking cognizance of an offence, a Magistrate is
not required to pass a detailed order, however, in a
case when Magistrate issues process against a person,
who is not even charged with the offence for which he
is summoned, whether in such cases also the summoning
order cannot be assailed?
13. In the present case, there are two sets of
allegations, which are contained in the complaint,
which has also been repeated in the statements recorded
15
by respondent No.2 and his two witnesses – PW1 – Raj
Kumar, brother of respondent No.2 and PW2 – Deepa, wife
of respondent No.2. One set of allegations of offence
under Section 498A and Section 3/4 of D.P. Act and
second set of allegations are allegations made for
offences under Sections 323, 504 and 506 of I.P.C.
14. We may first take up the allegations for offences
under Sections 323, 504 and 506 of I.P.C. The
allegations under Sections 323, 504 and 506 has been
made citing the incident dated 08.11.2014. It is
useful to extract the entire allegations pertaining to
incident dated 08.11.2014 from the complaint, which are
to the following effect:-
“…………………..On 08.11.2014 at about 6 p.m. Nayan
Chopra’s father Rajesh Chopra called the
Applicant near the Gurudwara at Sector 18,
Noida to talk about their problem. When the
Applicant reached there for talk then he met
there Rajesh Chopra alongwith two unknown
persons. When the Applicant requested Rajesh
Chopra to accept his daughter the Rajesh
Chopra again repeated his demand of one core
Rupees and said that if he has arranged for
one crore Rupees then he can send his
daughter at their home, otherwise keep
Vanshika at his house and Rajesh Chopra used
filthy words against Vanshika, then the
Applicant objected for the same, on which
16
Rajesh Chopra and his associates became
annoyed and they abused and beat the
Applicant and snatched his gold chain from
his neck and Rs.60,000/- from his pocket.
The wife of the Applicant and a number of
other people gathered at the spot and saved
the Applicant from them. While leaving these
persons threatened the Applicant that after
arranging for one crore Rupees he can send
his daughter at their house, otherwise keep
her at his house and if he dare to inform the
police then they will kill the Applicant and
his daughter Vanshika…….”
15. In the statement made by the complainant in support
of his submission, complainant repeated the same
allegations regarding incident dated 08.11.2014 as made
in the complaint, as noted above. PW-2, Deepa, wife
of respondent No.2 has also about the incident dated
08.11.2014 repeated the allegations as narrated in the
complaint. A perusal of the allegations in the
complaint makes it clear that the complaint with regard
to offences under Sections 323, 504 and 506 has been
made only against Rajesh Chopra and two unknown
persons. Neither in the complaint nor statements made
by complainant or his witnesses, there is any
allegation with regard to above offences against any
other appellants before us. There being no allegations
17
for offences under Sections 323, 504 and 506 in the
complaint or statement before the Magistrate, there was
no question of summoning the other appellants for
offences under Sections 323, 504 and 506 of I.P.C. When
the complaint does not allege any offence against other
appellants, we fail to see that how the cognizance of
the complaint can be taken against other appellants
with regard to offences under Sections 323, 504 and
506. In above view of the matter, the complaint as
well as summoning order are liable to be quashed
against all the appellants except Rajesh Chopra due to
the above reasons in above regard.
16. Now, we come to the allegations in the complaint
under Section 498A and Section 3/4 of D.P. Act. Learned
counsel for the respondent in support of his submission
that power of the High Court under Section 482 Cr.P.C.
has to be exercised in exceptional circumstances, has
relied on judgment of this Court in Rakhi Mishra Vs.
State of Bihar and Others, (2017) 16 SCC 772. This
Court in the above case has relied on an earlier
judgment of this Court in Sonu Gupta Vs. Deepak Gupta,
18
(2015) 3 SCC 424, in which judgment, in paragraph No.8
following proposition was laid down, which has been
referred to and relied on:-
“8. … At the stage of cognizance and
summoning the Magistrate is required to apply
his judicial mind only with a view to take
cognizance of the offence … to find out
whether a prima facie case has been made out
for summoning the accused persons. At this
stage, the learned Magistrate is not required
to consider the defence version or materials
or arguments nor is he required to evaluate
the merits of the materials or evidence of
the complainant, because the Magistrate must
not undertake the exercise to find out at
this stage whether the materials would lead
to conviction or not.”
17. This Court in Rakhi Mishra’s case has also laid
down that High Court in exceptional circumstances can
exercise power under Section 482 Cr.P.C. when a prima
facie case is not made out against the accused.
Paragraph No.5 of the judgment is as follows:-
“5. The order passed by the trial court
taking cognizance against R-2 and R-4 to R-9
is in conformity with the law laid down in
the above judgment. It is settled law that
the power under Section 482 CrPC is exercised
by the High Court only in exceptional
circumstances only when a prima facie case
is not made out against the accused. The test
applied by this Court for interference at the
initial stage of a prosecution is whether the
19
uncontroverted allegations prima facie
establish a case.”
18. Learned counsel for the appellant has also relied
on various judgments of this Court in support of his
submissions. In K. Subba Rao and Others Vs. State of
Telangana, (2018) 14 SCC 452, this Court laid down
following in paragraph Nos. 5 and 6:-
“5. A perusal of the charge-sheet and the
supplementary charge-sheet discloses the
fact that the appellants are not the
immediate family members of the third
respondent/husband. They are the maternal
uncles of the third respondent. Except the
bald statement that they supported the third
respondent who was harassing the second
respondent for dowry and that they conspired
with the third respondent for taking away his
child to the U.S.A., nothing else indicating
their involvement in the crime was mentioned.
The appellants approached the High Court when
the investigation was pending. The chargesheet and the supplementary charge-sheet were
filed after disposal of the case by the High
Court.
6. Criminal proceedings are not normally
interdicted by us at the interlocutory stage
unless there is an abuse of the process of a
court. This Court, at the same time, does not
hesitate to interfere to secure the ends of
justice. See State of Haryana v. Bhajan Lal,
1992 Suppl. (1) SCC 335. The courts should
be careful in proceeding against the distant
relatives in crimes pertaining to matrimonial
disputes and dowry deaths. The relatives of
the husband should not be roped in on the
20
basis of omnibus allegations unless specific
instances of their involvement in the crime
are made out. See Kans Raj v. State of Punjab,
(2000) 5 SCC 207 and Kailash Chandra Agrawal
v. State of U.P., (2014) 16 SCC 551”
19. This Court in Vineet Kumar and Others Vs. State of
Uttar Pradesh and Another, (2017) 13 SCC 369 had
occasion to examine the parameters of exercise of power
under Section 482 Cr.P.C. in respect of quashing of
criminal proceeding. One of us (Justice Ashok Bhushan)
speaking for the Bench after examining the scope and
ambit of Section 482 Cr.P.C. laid down following in
Paragraph Nos. 22 to 25:-
“22. Before we enter into the facts of the
present case it is necessary to consider the
ambit and scope of jurisdiction under Section
482 CrPC vested in the High Court. Section
482 CrPC saves the inherent power of the High
Court to make such orders as may be necessary
to give effect to any order under this Code,
or to prevent abuse of the process of any
court or otherwise to secure the ends of
justice.
23. This Court time and again has examined
the scope of jurisdiction of the High Court
under Section 482 CrPC and laid down several
principles which govern the exercise of
jurisdiction of the High Court under Section
482 CrPC. A three-Judge Bench of this Court
in State of Karnataka v. L. Muniswamy, (1977)
2 SCC 699, held that the High Court is
entitled to quash a proceeding if it comes
21
to the conclusion that allowing the
proceeding to continue would be an abuse of
the process of the court or that the ends of
justice require that the proceeding ought to
be quashed. In para 7 of the judgment, the
following has been stated: (SCC p. 703)
“7. … In the exercise of this
wholesome power, the High Court is
entitled to quash a proceeding if it
comes to the conclusion that allowing
the proceeding to continue would be an
abuse of the process of the court or
that the ends of justice require that
the proceeding ought to be quashed.
The saving of the High Court’s
inherent powers, both in civil and
criminal matters, is designed to
achieve a salutary public purpose
which is that a court proceeding ought
not to be permitted to degenerate into
a weapon of harassment or persecution.
In a criminal case, the veiled object
behind a lame prosecution, the very
nature of the material on which the
structure of the prosecution rests and
the like would justify the High Court
in quashing the proceeding in the
interest of justice. The ends of
justice are higher than the ends of
mere law though justice has got to be
administered according to laws made by
the legislature. The compelling
necessity for making these
observations is that without a proper
realisation of the object and purpose
of the provision which seeks to save
the inherent powers of the High Court
to do justice, between the State and
its subjects, it would be impossible
to appreciate the width and contours
of that salient jurisdiction.”
22
24. The judgment of this Court in State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335,
has elaborately considered the scope and
ambit of Section 482 CrPC. Although in the
above case this Court was considering the
power of the High Court to quash the entire
criminal proceeding including the FIR, the
case arose out of an FIR registered under
Sections 161, 165 IPC and Section 5(2) of the
Prevention of Corruption Act, 1947. This
Court elaborately considered the scope of
Section 482 CrPC/Article 226 of the
Constitution in the context of quashing the
proceedings in criminal investigation. After
noticing various earlier pronouncements of
this Court, this Court enumerated certain
categories of cases by way of illustration
where power under Section 482 CrPC can be
exercised to prevent abuse of the process of
the Court or secure the ends of justice.
25. Para 102 which enumerates 7 categories
of cases where power can be exercised under
Section 482 CrPC is extracted as follows:
(Bhajan Lal case, SCC pp. 378-79)
“102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter
XIV and of the principles of law
enunciated by this Court in a series
of decisions relating to the exercise
of the extraordinary power under
Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above,
we give the following categories of
cases by way of illustration wherein
such power could be exercised either
to prevent abuse of the process of any
court or otherwise to secure the ends
of justice, though it may not be
possible to lay down any precise,
23
clearly defined and sufficiently
channelised and inflexible guidelines
or rigid formulae and to give an
exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
(1) Where the allegations made in
the first information report or
the complaint, even if they are
taken at their face value and
accepted in their entirety do not
prima facie constitute any offence
or make out a case against the
accused.
(2) Where the allegations in the
first information report and other
materials, if any, accompanying
the FIR do not disclose a
cognizable offence, justifying an
investigation by police officers
under Section 156(1) of the Code
except under an order of a
Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or
complaint and the evidence
collected in support of the same
do not disclose the commission of
any offence and make out a case
against the accused.
(4) Where the allegations in the
FIR do not constitute a cognizable
offence but constitute only a noncognizable offence, no
investigation is permitted by a
police officer without an order of
a Magistrate as contemplated under
Section 155(2) of the Code.
24
(5) Where the allegations made in
the FIR or complaint are so absurd
and inherently improbable on the
basis of which no prudent person
can ever reach a just conclusion
that there is sufficient ground
for proceeding against the
accused.
(6) Where there is an express legal
bar engrafted in any of the
provisions of the Code or the Act
concerned (under which a criminal
proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is
a specific provision in the Code
or the Act concerned, providing
efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
ulterior motive for wreaking
vengeance on the accused and with
a view to spite him due to private
and personal grudge.”
20. After referring to several other cases, this Court
concluded and made following observations in Paragraph
No. 41:-
“41. Inherent power given to the High Court
under Section 482 CrPC is with the purpose
and object of advancement of justice. In case
solemn process of Court is sought to be
abused by a person with some oblique motive,
the Court has to thwart the attempt at the
25
very threshold. The Court cannot permit a
prosecution to go on if the case falls in one
of the categories as illustratively
enumerated by this Court in State of Haryana
v. Bhajan Lal. Judicial process is a solemn
proceeding which cannot be allowed to be
converted into an instrument of operation or
harassment. When there are materials to
indicate that a criminal proceeding is
manifestly attended with mala fide and
proceeding is maliciously instituted with an
ulterior motive, the High Court will not
hesitate in exercise of its jurisdiction
under Section 482 CrPC to quash the
proceeding under Category 7 as enumerated in
State of Haryana v. Bhajan Lal, which is to
the following effect: (SCC p. 379, para 102)
“102. (7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
ulterior motive for wreaking vengeance
on the accused and with a view to spite
him due to private and personal
grudge.”
Above Category 7 is clearly attracted in the
facts of the present case. Although, the High
Court has noted the judgment of State of
Haryana v. Bhajan Lal, but did not advert to
the relevant facts of the present case,
materials on which final report was submitted
by the IO. We, thus, are fully satisfied that
the present is a fit case where the High Court
ought to have exercised its jurisdiction
under Section 482 CrPC and quashed the
criminal proceedings.”
21. The criminal prosecution can be allowed to proceed
only when a prima facie offence is disclosed. This
26
Court has observed that judicial process is a solemn
proceeding which cannot be allowed to be converted into
an instrument of oppression or harassment. If High
Court finds that proceedings deserve to be quashed in
parameters as laid down by this Court in State of
Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335, High
court shall not hesitate in exercise of jurisdiction
under Section 482 Cr.P.C. to quash the proceedings.
22. Now, we revert back to the allegations made in the
complaint under Section 498A and Section 3/4 of D.P.
Act. Few facts have to be noticed before we look into
the allegations made in the complaint in the above
regard. The complaint has been filed by the respondent
No.2 before the C.J.M., Gautam Budh Nagar on
10.05.2015, before which date, the petition for divorce
has already been filed by Nayan Chopra on 23.10.2014
before the Circuit Court for the County of Kalamazoo
Family Division, Michigan. It is on the record that
at the time of filing of the complaint Vanishka Bobal
was living at Canada whereas Nayan Chopra was living
at U.S.A. Both were separately living. It was pleaded
27
in the application for divorce that husband and wife
had separated on or around November, 2013. It is on
the record that on the day criminal complaint was filed
on 10.05.2015 in the Court of C.J.M. Gautam Budh Nagar
by respondent No.2, neither Vanishka was in India nor
she was in India at the time when statements were
recorded in complaint of complainant as well as his two
witnesses. The complaint is not by Vanishka but it has
been filed by father of Vanishka, respondent No.2. In
the divorce application filed in the State of Michigan,
Vanishka Bobal was represented by her attorney. The
divorce was granted with orders relating to alimony,
pension benefits and retirement benefits, life
insurance, property settlement and provision in lieu
of dower, mutual release of claims and other aspects
on 24.02.2016.
23. There is nothing on the record to indicate that
orders of divorce between the parties was brought into
the notice of the Magistrate when he issued process
against the appellants. We, however, are in agreement
with the submission of Shri Santosh Krishan that decree
28
of divorce between Nayan Chopra and Vanshika shall not
wipe out any criminal offence, which has been committed
within the meaning of I.P.C. or D.P. Act and the
criminal offence committed in jurisdictional court has
to be examined despite the divorce decree having been
granted.
24. Coming back to the allegations in the complaint
pertaining to Section 498A and Section 3/4 of D.P. Act.
A perusal of the complaint indicates that the
allegations against the appellants for offence under
Section 498A and Section 3/4 of D.P. Act are general
and sweeping. No specific incident dates or details
of any incident has been mentioned in the complaint.
The complaint having been filed after proceeding for
divorce was initiated by Nayan Chopra in State of
Michigan, where Vanshika participated and divorce was
ultimately granted. A few months after filing of the
divorce petition, the complaint has been filed in the
Court of C.J.M., Gautam Budh Nagar with the allegations
as noticed above. The sequence of the events and facts
and circumstances of the case leads us to conclude that
the complaint under Section 498A and Section 3/4 of
29
D.P. Act have been filed as counter blast to divorce
petition proceeding in State of Michigan by Nayan
Chopra.
25. There being no specific allegation regarding any
one of the applicants except common general allegation
against everyone i.e. “they started harassing the
daughter of the applicant demanding additional dowry
of one crore” and the fact that all relatives of the
husband, namely, father, mother, brother, mother’s
sister and husband of mother’s sister have been roped
in clearly indicate that application under Section
156(3) Cr.P.C. was filed with a view to harass the
applicants. Further, prior to filing of the application
under Section 156(3) Cr.P.C. there was no complaint at
any point of time by the girl or her father making
allegation of demand of any dowry by any one of the
applicants. When both Nayan Chopra and Vanshika started
living separately since November, 2013, had there been
any dowry demand or harassment the girl would have
given complaint to Police or any other authority.
Further, in the divorce proceedings at Michigan,
30
U.S.A., parties have agreed for dividing their
properties including gifts given at marriage but no
complaint was made in those proceedings regarding
harassment by her husband or his family members. The
judgment of the divorce contains following clauses
regarding “Property Settlement and Provision in Lieu
of Dower”:
“PROPERTY SETTLEMENT AND
PROVISION IN LIEU OF DOWER
1. Each party affirms that he or she fully
and accurately disclosed all the assets owned
by him or her in which he or she has any
interest. By affixing their signatures on
this Judgment, Plaintiff and Defendant affirm
that each has disclosed all assets each owns
or has any interest in, whether held by him
or her individually, by both of them jointly
or with any other person or entity, or by
another person or entity for the benefit of
a party. The property division set forth in
this Judgment of Divorce is intended to be a
distribution and allocation of all the
property of the parties and also is intended
to declare the parties’ property interests
as of entry of this Judgment of Divorce. If
either party has failed, either intentionally
or unintentionally, to disclose any of his
or her assets, the issue of property division
may be reopened on the motion of either party
to determine and resolve the distribution of
any previously undisclosed assets.
2. It appears to the court that the
parties have divided between them to their
mutual satisfaction all articles of personal
property, household furniture and
31
appliances, cash, savings and checking
accounts and vehicles except as provided
below. The personal property as so divided
shall be the sole and absolute property of
the party in whose possession or under whose
control each of the articles of personal
property are now found and each shall defend
and hold the other harmless from liability
thereon.
a.The parties agree to return all jewelry
to the other party that they currently
have in their possession, which was
acquired as a result of their marriage.
Plaintiff testified that he only had
one item of jewelry and provided the
only jewelry he had in his possession
to Defendant-a single gold ring.
Plaintiff testified she does not have
any jewelry in her possession.
b.The parties agree that their respective
parents will return to the other
party’s parents, all jewelry given as
gifts to their parents and are in their
parent’s possession, which was acquired
by them as a result of the parties’
marriage. The parents agree to exchange
at a mutually agreed upon location and
at a mutually agreed upon time.
3. Except as otherwise provided herein,
each party shall be liable for the debts
incurred by him or her after separation
(11/1/2013) and shall defend and hold the
other harmless from all liability thereon.
4. Except as provide herein, each party
shall be liable for the debts in his or her
name and for the debts associated with
property awarded to him/her pursuant to the
Judgment of Divorce and shall defend and hold
32
the other harmless from all liability
therein.
5. Except as otherwise provided herein,
each party shall retain all monies in their
respective names, including but not limited
to checking accounts, savings accounts,
certificates of deposit, stocks, bonds, IRAs
or 401Ks.
6. There are no joint debts of the parties
except as provided herein.
7. Plaintiff, NAYAN CHOPRA, shall receive
the 2013 Honda CRV free and clear from any
claim of the Defendant, VANSHIKA BOBAL, and
the Plaintiff assumes and agrees to pay the
liability thereon and to defend and hold the
Defendant harmless thereon. Defendant shall
transfer title of such vehicles to the
Plaintiff if transferring is needed.
8. Plaintiff, NAYAN CHOPRA, shall receive
the 2005 Toyota Camry free and clear from any
claim of the Defendant, VANSHIKA BOBAL, and
the Plaintiff assumes and agrees to pay the
liability thereon and to defend and hold the
Defendant harmless thereon.
9. The provisions for each party herein
made for the parties shall be in lieu of the
dower or spousal right in the lands of the
other and each shall hereafter hold their
remaining lands free, clear and discharged
from any such dower, spousal right and claim
and said provision shall be in full
satisfaction of all claims either may have
in any property which the other owns, or may
hereafter own, in which either has or may
hereafter have an interest.
10. The parties warrant that neither has
incurred any debt in the other party’s name,
or on which the other party may be liable,
33
which is not expressly disposed of in this
Judgment.
11. This Judgment of Divorce shall
constitute a termination of all rights of a
surviving spouse including, but not limited
to, homestead allowance, election, exempt
property, settlement and family allowance by
each party in the property of the other, and
a termination of all benefits which would
otherwise pass to one party from the other
by testate and intestate, succession or by
virtue of any provision of any will executed
prior to the entry of this Judgment of
Divorce.”
26. The above judgment in divorce proceedings
indicates that Nayan Chopra and Vanshika have settled
all issues between them including division of
properties at the time when divorce proceedings were
in progress at Michigan and both the parties were not
in India, the complaint under Section 156(3) Cr.P.C.
had been filed making allegation under Section 498A of
IPC and the Dowry Prohibition Act only to harass and
put pressure on the applicants.
27. One observation also needs to be made with regard
to order passed by the High Court. High Court in its
impugned judgment has not referred to allegations made
in the complaint except noticing the summoning order
34
has been passed and noticing the principles of law.
This Court had occasion to consider a similar order
passed by the High Court rejecting the application
under Section 482 Cr.P.C. in Jagdish Prasad and Others
Vs. State of Uttar Pradesh and Another, (2019) 2 SCC
184. In the said case also under Section 482 Cr.P.C.
proceedings, the challenge was made to summoning order
as well as entire proceedings of complaint case where
allegations under Sections 498A and 323 IPC as well as
Section 3/4 of D.P. Act were made. In paragraph No.3,
the facts giving rise to filing the application under
Section 482 Cr.P.C. before the High Court has been
noted. This Court made following observations in
paragraph Nos.6 to 9:-
“6. Having heard the learned counsel for the
parties and on perusal of the record of the
case we are inclined to set aside the
impugned order and remand the case to the
High Court for deciding the appellants’
application, out of which this appeal arises,
afresh on merits in accordance with law.
7. On perusal of the impugned order, we find
that the Single Judge has quoted the
principles of law laid down by this Court in
several decisions relating to powers of the
High Court on the issue of interference in
cases filed under Section 482 of the Code
from para 2 to the concluding para but has
35
not referred to the facts of the case to
appreciate the controversy of the case. We
are, therefore, unable to know the factual
matrix of the case after reading the impugned
judgment except the legal principles laid
down by this Court in several decisions.
8. In our view, the Single Judge ought to
have first set out the brief facts of the
case with a view to understand the factual
matrix and then examined the challenge made
to the proceedings in the light of the
principles of law laid down by this Court
with a view to record the findings on the
grounds urged by the appellants as to whether
any interference therein is called for or
not. We find that the aforementioned exercise
was not done by the High Court while passing
the impugned order.
9. We, therefore, find ourselves unable to
concur with such disposal of the application
by the High Court and feel inclined to set
aside the impugned order and remand the case
to the High Court (Single Judge) with a
request to decide the application afresh on
merits in accordance with law keeping in view
the aforementioned observations. Having
formed an opinion to remand the case in the
light of our reasoning mentioned above, we
do not consider it proper to go into the
merits of the case.”
28. What was said by this Court in paragraph No. 7 and
8 of the above judgment is squarely applicable in the
facts of the present case and the order of the High
Court deserves to be set aside on this ground alone.
36
29. One of the submissions, which has been made by the
learned counsel for the appellant also needs to be
considered. Learned counsel for the appellant had
submitted that complaint has not been filed by a
competent person. It is submitted that complaint is
not made by Vanshika, but has been filed only by father
of Vanshika, hence it is not maintainable. The above
submission has been refuted by Shri Santosh Krishnan.
He submits that it is not necessary that a complaint
under Section 498A should be filed only by the victim
of offence. He submits that complaint filed by father
of the victim, respondent No.2 was also fully
maintainable. Section 498A provides as follows:-
“498A. Husband or relative of husband of a
woman subjecting her to cruelty.— Whoever,
being the husband or the relative of the
husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment
for a term which may extend to three years
and shall also be liable to fine.
Explanation.—For the purpose 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,
37
limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to
coercing her or any person related
to her to meet any unlawful demand
for any property or valuable
security or is on account of
failure by her or any person
related to her to meet such
demand.”
30. Section 498A provides for an offence when husband
or the relative of the husband, subject her to cruelty.
There is nothing in Section 498A, which may indicate
that when a woman is subjected to cruelty, a complaint
has to be filed necessarily by the women so subjected.
A perusal of Section 498A, as extracted above,
indicates that the provision does not contemplate that
complaint for offence under Section 498A should be
filed only by women, who is subjected to cruelty by
husband or his relative. We, thus, are of the view
that complaint filed by respondent No.2, the father of
Vanshika cannot be said to be not maintainable on this
ground. We, thus, reject the submission of the counsel
38
for the appellant that complaint filed by respondent
No.2 was not maintainable.
31. In view of the foregoing discussions, insofar as
the offence under Section 498A and Section 3/4 of D.P.
Act is concerned, we are of the view that present is a
case, which is covered by Category 7 as enumerated by
State of Haryana Vs. Bhajan Lal (supra) and the High
Court erred in refusing to exercise under Section 482
Cr.P.C. We, however, observe that in so far as
allegations against Rajesh Chopra pertaining to
Sections 323, 504 and 506 of IPC is concerned, there
were specific allegations, which were also supported
by the complainant and his two witnesses in the
evidence, at this stage, this Court cannot pronounce
as to whether any incident as alleged by the
complainant happened on 08.11.2014 or alleged as
offence by respondent No.2 or offence as alleged was
committed by Rajesh Chopra or not. We, thus, are of
the view that insofar as complaint pertaining to
offence under Sections 323, 504 and 506 I.P.C. against
Rajesh Chopra is concerned, said complaint shall be
39
proceeded with and the order dated 17.01.2017 is upheld
to the above extent only, i.e., summoning of Rajesh
Chopra under Sections 323, 504 and 506.
32. In result,
(i) Criminal Appeal Nos.594, 598, 599, 597 and
596 of 2019 (arising out of SLP (Crl.) Nos.
8103, 8050, 8052, 8042 and 8041 of 2018) are
allowed. The complaint as well as summoning
order dated 17.01.2017 is set aside insofar
as the appellants in the above-mentioned
criminal appeals are concerned.
(ii) Criminal Appeal No.595 of 2019 (arising out
of SLP (Crl.) No. 8039 of 2018 – Rajesh
Chopra Vs. The State of Uttar Pradesh & Anr.)
is partly allowed. The complaint as well as
summoning order is set aside insofar as
offence under Section 498A and Section 3/4
of D.P. Act is concerned, however, complaint
shall proceed insofar as offence under 
40
Sections 323, 504 and 506 of I.P.C. and
summoning order to that extent only is
upheld.

......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( K.M. JOSEPH )
New Delhi,
April 30, 2019. 

whether throwing of burning stove on the deceased is a rash and negligent ? - No.- What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased. He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In view of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.763 of 2019
(arising out of SLP (Crl.) No.9312/2014)
KALABAI ...APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the appellant against
the judgment and order of the High Court of Madhya
Pradesh, Bench at Indore dated 25.03.2014 by which
Criminal Appeal filed by the appellant questioning her
conviction and sentence under Section 302 IPC has been
dismissed.
2. The prosecution case in brief is:
Deceased, Smt. Lalita Bai was wife of Vijay Singh.
The appellant is sister-in-law of the deceased. On
2
20.08.1999 in the late evening a quarrel was going on
between Lalita Bai and her husband, Vijay Singh. The
appellant who lives on the ground floor came on the
first floor where Lalita Bai was boiling milk on
battiwala stove. Appellant threw the burning stove on
the deceased due to which clothes of deceased caught
fire and serious burn injuries were caused. Husband of
the deceased got her admitted in the M.Y. Hospital,
Indore. On receiving information from the Hospital, a
Police Inspector reached the Hospital. The information
was mentioned in the Rojnamcha and Head Constable, Udai
Pal Singh was sent in the Hospital where Lalita Bai was
being admitted with burn injury with 96% burn. Report
was asked for from the Incharge-Medical Officer as to
whether patient was in a position to give the
statement, after receiving certificate that the patient
was fit to give statement, I.O. informed the Executive
Magistrate-cum-Naib Tehsildar for recording her
statement. Executive Magistrate-cum-Naib Tehsildar
reached Hospital and recorded the statement of the
patient, Lalita Bai. On the basis of the report case
under Section 307 read with Section 34 IPC was
3
registered on 20.08.1999. Lalita Bai, during the course
of treatment died on 23.08.1999 and case has been
registered under Section 302 IPC. Chargesheet was
submitted both against Lalita Bai and Vijay Singh and
the trial proceeded against both of them.
3. The prosecution in support of its case has produced
24 witnesses. The trial court after considering the
evidence on record and relying on the dying declaration
of the deceased recorded on 21.08.1999 held the
appellant guilty of murder. Appellant was convicted
with life imprisonment and fine of Rs.2,000/-. Vijay
Singh, husband of deceased was acquitted from charge
under Section 302 read with Section 34 IPC. Appellant
filed a criminal appeal in the High Court challenging
her conviction and sentence. The High Court by the
impugned judgment has dismissed the criminal appeal
giving rise to this appeal.
4. This Court vide order dated 02.07.2015 issued
limited notice which is to the following effect:
“Delay condoned.
4
Issue notice limited to the question of
nature of offence.
Prayer for suspension of sentence is
rejected.”
5. We have heard learned counsel for the appellant
and learned counsel for the State of Madhya Pradesh,
Shri Prashant Kumar.
6. Learned counsel for the appellant in support of
his submission contends that the appellant ought not
to have been convicted under Section 302 IPC. He
submits that there was no motive for the appellant to
kill the deceased. Appellant had neither intention nor
motive to cause the death of the deceased.
7. Learned counsel has also submitted that deceased
was not in a fit physical condition to record her
statement, since the MLC of deceased clearly mentioned
that the patient was restless, Afebrile, Pulse not
palpable. It is submitted that the patient was so
feeble and so restless then she was not in a position
to give the correct version of the incident.
5
8. Learned counsel for the appellant placed reliance
on the judgment of this Court in Hari Shanker vs. State
of Rajasthan, (1998) 8 SCC 355, and submits that the
facts of the present case are similar to the facts of
the above case and in the above case this Court had
altered the conviction from under Section 302 IPC to
Section 304 Part II IPC and reduced the sentence of
imprisonment for life to rigorous imprisonment for five
years. This case also deserves the same treatment.
9. Learned counsel for the State refuting the
submission of the appellant submits that the deceased
physical condition was certified by the Doctor who
proved her to be in a fit state of mind to record her
statement which has been proved by the prosecution
witnesses. It is submitted that the burn injury on the
neck and head was only 8% which was noticed by the High
Court; The dying declaration had rightly been relied
by the Courts below and the appellant cannot be allowed
to raise submission that the dying declaration should
not be relied. The limited notice having been issued
on 02.07.2015, the appellant may not be permitted to
6
challenge the conviction recorded against the
appellant. The appellant can be permitted only to raise
submissions on the nature of offence as is the limited
notice in the present case.
10. We have considered the submissions of the parties
and perused the records.
11. Limited notice having been issued only to the
question of nature of offence, we confine our
consideration of the case only to the above question.
12. The dying declaration which was recorded within
few hours of admission of deceased in the Hospital has
been relied by the Courts below. The Magistrate who
recorded the dying declaration, namely Vijendra Singh
Panwar, PW.15 has appeared in the witness box and
proved her dying declaration. The High Court in its
judgment has extracted the entire statement made by the
deceased which is treated as dying declaration. On the
question put to the deceased “How could you burn”
detailed answer was given by the deceased. It is useful
7
to extract the above question and answer given by the
deceased which is to the following effect:
“Q.: How could you burn ?
Ans.: A quarrel was going on between myself
and my husband, during the said quarrel my
husband’s sister namely Kala who is living
in the lower floor of my house, came at my
house and said that I will see her, and while
I was boiling the milk, took the said slowmatch (batti wala stove) kerosene stove and
put on me, due to which the kerosene oil was
spared upon my body and my clothes caught the
fire from its burnt wicks.”
13. It is relevant to notice that husband of the
deceased, Vijay Singh was also charged under Section
302 read with Section 34 IPC and 114 IPC who has been
acquitted by the trial court. In the evidence which was
led before the Courts below, there are no evidence of
any strained relations between the appellant and
deceased. The entire incident which happened has been
elaborately described by the deceased herself in her
dying declaration. There is no evidence to come to
conclusion that the appellant had any intention to kill
the deceased. As per statement of deceased herself that
a quarrel was going on between herself and her husband,
Vijay Singh and during that quarrel, the appellant who
is living in the lower floor of house arrived at the
8
scene. There cannot be any issue that when a person
throws a burning stove on a person there is knowledge
that the act is likely to cause death.
14. Before the trial court the argument was made on
behalf of the appellant that at best, she be convicted
under Section 304 Part II IPC which was not acceded to.
In paragraph 60 the trial court while dealing with the
said submission made the following observations:
“60. As far as the question of arguments
placed by the learned advocate on behalf of
the accused Kala Bai against the offence
under Section 304 Part II IPC in place of
Section 302 IPC is that it has been shown
that the accused Kala Bai has burnt Lalita
Bai by putting burning stove on her head and
burnt her 96 per cent. Dr. A.K. Dixit (PW11) has stated in his statement that the
wound (Burn) found during his inspection, the
wounds have been shown as fatal injuries and
the examination of whole body of Lalita Bai
was conducted after 3 days of her death. The
Dr. Ravindra Singh Chaudhary (PW-17) has
mentioned the reason of death burning, other
serious problems, blockading of breathing
process etc.”
15. The trial court has rightly held that accused Kala
Bai threw burning stove on the deceased but whether the
act was done with intention to cause death had not
adverted to by the trial court.
9
16. Learned counsel for the appellant has placed
reliance on the judgment of this Court in Hari Shankar
(supra). In the above case the appellant had also
picked up a burning kerosene wick-stove and threw it
on the deceased. Kerosene from stove spilled over the
clothes they caught the fire. The deceased in the said
case also died as a result of the burns received by
him. This Court held that since the appellant had
thrown a burning stove on the deceased, he would have
known that his act was likely to cause burns resulting
in death. It is useful to extract paragraphs 2,3 and 4
of the judgment which is to the following effect:
“2. Only question that we have to consider
in this appeal is what offence can be said
to have been committed by the appellant on
the basis of the facts found by the High
Court. It has been held that while the
appellant, deceased Bheem Singh and one Shah
Megan were taking tea in the tea-club of the
Air Force, 32 Wing (MT Section), an exchange
of words took place between the appellant and
the deceased on account of the demand made
by the appellant for returning Rs 50,000
which he had advanced to the deceased. The
appellant became angry and picked up the
burning kerosene wick-stove and threw it on
the deceased. Kerosene from the stove spilled
over the clothes of the deceased and as the
burning wicks came in contact with his
10
clothes they caught fire. The deceased
ultimately died as a result of the burns
received by him.
3. What was submitted by the learned
counsel for the appellant was that the
appellant had no enmity with the deceased.
He had no intention to kill the deceased as
by killing him he could not have recovered
the amount of Rs 50,000 which he had advanced
to the deceased. He further submitted that
the quarrel between the two took place all
of a sudden and in the heat of the moment the
appellant had picked the stove and had thrown
it towards the deceased. He, therefore,
submitted that it was merely a rash and
negligent act on the part of the appellant.
We cannot agree with the submission of the
learned counsel. Since the appellant had
thrown a burning stove on the deceased, he
would have known that his act was likely to
cause burns resulting in death. In view of
the facts and circumstances of the case, he
can be said to have committed an offence
under Section 304 Part II IPC.
4. We, therefore, allow this appeal partly,
alter the conviction of the appellant from
under Section 302 to Section 304 Part II IPC
and reduce the sentence of imprisonment for
life to rigorous imprisonment for five
years.”
17. Following the above decision, we are of the view
that the present is also a case where in the facts and
circumstances of the case, the appellant can be said
11
to have committed offence under Section 304 Part II
IPC.
18. In the result, we partly allow the appeal and alter
the conviction of the appellant from under Section 302
IPC to Section 304 Part II IPC and reduce the sentence
of imprisonment for life to rigorous imprisonment for
five years.
......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( K.M. JOSEPH )
New Delhi,
April 30,2019. 

Sec.197 Cr.P.C. - whether a manager of nationalized bank can claim benefit of Section 197 Cr.P.C. is not res integra - no sanction is necessary = An application dated 09.05.2012 was filed by the appellant before the ACMM, Saket Court, New Delhi in FIR No.432 of 2000 stating that appellant is a public servant employed with a nationalized bank as a Manager and it is mandatory to seek prosecution sanction against the appellant in terms of Section 197 Cr.P.C. = No exception can be taken to the proposition as laid down in the above case. We having taken the view that appellant being not removable by or saved with the sanction of the Government was not covered by Section 197 Cr.P.C. There was no necessity to consider any further as to whether acts of the appellant complained of were in discharge of official duty or not. We, thus, upheld the order of the CMM dated 03.12.2014 rejecting the application under Section 197 Cr.P.C. on the ground that appellant was not removable by his office saved by or with the sanction of the Government. We, however, delete the following observations from the order dated 03.12.2014:- “…………………………From the FSL report, it is clear that accused S.K. Mighlani forged the signatures of Sh. Gautam Dhar on account opening form and moreover, the introducer Rajender Kr. is absconding. In view of this Court, an act of forgery done by public servant cannot be considered an act done in discharge of his official duties……………………” Although, we uphold the order of the High Court as well as the order of CMM, but the observations made by CMM in its order, as noted above, are deleted

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.744 OF 2019
(arising out of SLP(CRL.) No.11070 of 2018)
S.K. MIGLANI .... APPELLANT(S)
VERSUS
STATE NCT OF DELHI .... RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the
judgment of Delhi High Court dated 06.08.2018
dismissing the application filed by the appellant
under Section 482 Cr.P.C. praying for setting aside
the order dated 03.12.2014 and 13.12.2014 passed by
Chief Metropolitan Magistrate, Saket Court, New
Delhi and further to quash the F.I.R. No. 432 of
2000 under Sections 201, 409, 419, 420, 467, 468,
471, 120-B I.P.C. and the charge sheet.
2
2. The brief facts of the case necessary to be
noted are:-
2.1 The appellant has been working at the
relevant time as Manager in Bank of
Baroda, Faridabad Branch. Mr. Anant
Chatterjee, Director, Housing gave written
complaint dated 14.11.2000. On said basis
a FIR No. 432 of 2000 dated 15.11.2000 was
lodged at PS Kotla Mubarakpur for offence
under Section 201, 409, 419, 420, 467,
468, 471, 120-B IPC. It was the case of
the prosecution that Mehender Kumar
(Accountant), H.R. Sharma (Senior Account
Officer), S.C. Chugh (Asstt. Director
Housing), V.D. Nanda (Ht. FA (H) in
collusion with other DDA employees M.L.
Ahuja and Asha Gupta and property dealer
S.K. Khanna and S.K. Goel and SPA holder
of original allottee Praveen Kumar
illegally acted on fake request of
original allottee Mr. Gautam Dhar for cost
reduction of flat from 10.66 lakhs to 7.77
3
lakhs with approval of competent authority
and found that the original FDR and refund
application dated 07.07.1994 was
removed/misplaced from the DDA file. The
F.I.R., however, alleged that refund
cheque of Rs.2,22,263/- was withdrawn by
opening a saving bank account No.33604 in
Bank of Baroda, Faridabad with forged
signature of the allottee.
2.2 After investigation, a charge sheet was
submitted against the DDA officials,
property dealers and Special Power of
Attorney Praveen Kumar. A supplementary
charge sheet was also filed, in which the
appellant’s name was included. In the
supplementary charge sheet, it is
mentioned that the appellant opened a
fictitious savings bank account No.33604
in the name of Gautam Dhar in connivance
with Praveen Kumar, attorney of Shri
Gautam Dhar and Shri Rajinder s/o Shri
4
Braham Pal in order to encash the cheque
dated 07.01.2000 for Rs.2,22,263/-. The
supplementary charge sheet further stated
that prosecution sanction under Section
197 Cr.P.C. has been obtained against DDA
officials. Investigation agency also
obtained report dated 30.12.2002 from
Forensic Science Laboratory regarding
handwriting on various documents.
Handwriting opinion was also obtained with
regard to signatures on account opening
form of Gautam Dhar with the signature of
the appellant.
2.3 An application dated 09.05.2012 was filed
by the appellant before the ACMM, Saket
Court, New Delhi in FIR No.432 of 2000
stating that appellant is a public servant
employed with a nationalized bank as a
Manager and it is mandatory to seek
prosecution sanction against the appellant
in terms of Section 197 Cr.P.C. It was
5
stated that prosecution has not sought
prosecution sanction against the
appellant-accused, hence he may be
discharged on account of non-compliance of
Section 197 Cr.P.C. The Chief
Metropolitan Magistrate (South), Saket
Court passed an order on 03.12.2004
rejecting the application of the appellant
seeking discharge for want of sanction.
Case was fixed for framing of charge on
13.12.2014. On 13.12.2014, charge was
framed against the appellant under Section
465/120-B I.P.C. following charge was
framed against the appellant on
13.12.2014:-
“CHARGE
I, Vivek Kumar Gulia, Chief
Metropolitan, Magistrate (South),
Saket Courts Complex, New Delhi do
hereby charge you accused S.K.
Mighlani son of Sh. Lal Chand
Mighlani as under :
That you, in 1996 and
afterwards, at DDA, INA, Vikas
Sadan, New Delhi and other places,
6
alongwith co-accused Mahender
Kumar, H.R. Sharma, S.C. Chugh,
V.D. Nanda, Praveen Kumar, S.K.
Khanna, S.K. Goel. M.L. Ahuja and
Asha Gupta, agreed to commit
criminal breach of trust with DDA,
pursuant to which forged letters
for depositing challans,
application for change of address,
related affidavit, application for
reduction of cost bearing forged
signature of allottee Sh. Gautam
Dhar and forged seal of Notary were
entertained and further the cheque
issued in the name of allottee was
encashed through forged account
opened by you and thereby committed
an offence punishable U/s. 120-B
IPC and within the cognizance of
this Court;
Secondly, that you, at Bank of
Baroda, Faridabad Branch, Haryana,
forged the account opening form in
the name of allottee Sh. Gautam
Dhar (account no. 33604) with
intention to get the refund cheques
encashed and thereby committed an
offence punishable U/s. 465 IPC and
within the cognizance of this
Court.
I hereby direct you to be tried
by this court for the aforesaid
charges.
CMM(South) Saket Courts
New Delhi/13.12.2014
The charge is read over and
explained to the accused in
vernacular language and he is
questioned as under:
7
Ques.: Do you plead guilty or claim
trial ?
Ans. I plead not guilty and claim
trial.”
2.4 An application under Section 482 Cr.P.C.
was filed by the appellant before the High
court of Delhi, where following prayers
have been made:-
i. Set aside the order dated
03.12.2014 passed by Sh. V.K.
Gulia, Ld. CMM, Saket Courts,
New Delhi dismissing the
discharge application of the
petitioner;
ii. Set aside the order dated
13.12.2014 passed by Sh. V.K.
Gulia, Ld. CMM, Saket Courts,
New Delhi, thereby framing
charges against the petitioner
by taking cognizance without
obtaining sanction for
prosecution as required U/s.
197 Cr.P.C. in the interest of
justice;
iii. Quash the FIR No.432/2000, U/s.
406/201/419/420/467/468/471/
120B IPC registered at PS:
Kotla Mubarakpur, Delhi,
Charge-sheet U/s. 406/201/419/
420/467/468/471/120B IPC and
further proceeding emanating
therefrom qua the petitioner;
8
iv. Pass any such or further
order(s) as this Hon’ble Court
may deem fit and proper in the
interest of justice.”
2.5 The High Court vide the impugned judgment
dismissed the application filed under
Section 482 Cr.P.C. upholding the order of
CMM dated 13.12.2014. Aggrieved against
the said judgment, this appeal has been
filed.
3. Learned counsel for the appellant in support
of this appeal submits that the appellant, who was
working as a Branch Manager in Bank of Baroda had
permitted opening of a savings account No.33604 in
discharge of his official duty. The appellant
being a public servant, sanction ought to have been
obtained under Section 197 Cr.P.C. for prosecuting
the appellant. It is submitted that although
sanction has been obtained with regard to DDA
officials, but no sanction has been obtained for
the appellant. He submits that CMM committed error
in rejecting the application of the appellant for
9
discharge due to want of sanction. It is further
submitted that the appellant’s name came only in
the supplementary charge sheet and allegations are
only with regard to opening of a savings bank
account. Investigation Agency has obtained opinion
of handwriting experts with respect to signatures
of Gautam Dhar on the account opening form and the
specimen signatures of the appellant. It is
submitted that in the report dated 30.12.2002,
which was received from Forensic Science
Laboratory, Govt. of NCT of Delhi with regard to
signatures of Gautam Dhar on the account opening
form and with the specimen signatures of the
appellant, it has been mentioned in the report that
it has not been possible to express a definite
opinion on rest of the items on the basis of
materials at hand. It is submitted that although
the said report was very much with the I.O.,
another report was called for from the Chief
Forensic Scientist & Director (FS) to seek further
opinion from GEQD, Shimla. It is submitted that
the report has been submitted by letter dated
10
29.10.2003 opining that the signatures of Gautam
Dhar in the account opening form tallies with the
specimen signatures of the appellant. He submits
that the subsequent report, which was sent by
letter dated 29.10.2003 could not have been relied,
since in the signature of Gautam Dhar in the
account opening form and signatures of the
appellant there is no similarity. It is further
submitted that in any view of the matter, opinion
of a handwriting expert is only an opinion
evidence, which is a weak nature of evidence and
could not have been relied in rejecting the claim
of the appellant that he has opened the account in
exercise of his official duty. It is further
submitted that the CMM in his order dated
03.12.2014 has held that forgery has been committed
by the appellant in sanctioning the account opening
form. It is submitted that appellant has been held
guilty before even trial has proceeded.
4. Learned counsel for the respondent refuting
the submission of the appellant contends that
11
appellant cannot claim benefit of Section 197
Cr.P.C., since the allegations against him are
allegations of forgery, which allegations cannot be
held to be performed in exercise of official duty.
It has been submitted that this Court has held in
Parkash Singh Badal and Another Vs. State of Punjab
and Others, (2007) 1 SCC 1 that the offence of
cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and
120B can by no stretch of imagination by their very
nature be regarded as having been committed by any
public servant while acting or purporting to act in
discharge of official duty.
5. Learned counsel for the State submits that the
application of the appellant has been rightly
rejected by the CMM.
6. We have considered the submissions of the
learned counsel for the parties and have perused
the records.
7. The CMM in his order dated 03.12.2014 while
rejecting the application of the appellant for
12
discharge for want of sanction under Section 197
Cr.P.C. has relied on the judgment of this Court in
Parkash Singh Badal (supra). With regard to the
appellant, following order was passed by CMM:-
“Accused S.K. Mighlani pressed his
application for discharge for want of
sanction u/s 197 Cr.P.C. It was argued
that he had opened account as per the
procedure prescribed and since this act was
done in discharge of his duties, the
cognizance should not have been taken
against him in absence of section 197
Cr.P.C. From the FSL report, it is clear
that accused S.K. Mighlani forged the
signatures of Sh. Gautam Dhar on account
opening form and moreover, the introducer
Rajender Kr. is absconding. In view of
this Court, an act of forgery done by
public servant cannot be considered an
act done in discharge of his official
duties. In this regard, reliance can be
placed on the decision given by the Apex
Court in the case of Parkash Singh Badal &
Another vs. State of Punjab & Others
{(2007) 1 SCC 1}, wherein it was laid
down that:
"……..The offence of cheating under
Section 420 or for that matter
offences relatable to Sections 467,
468, 471 and 120B can by no stretch
of imagination by their very nature
be regarded as having been
committed by any public servant
while acting or purporting to act
13
in discharge of official duty. In
such cases, official status only
provides an opportunity for
commission of the offence”.
Otherwise also, when accused pleads
sanction in bar, the onus is on him to
prove its necessity, but the accused has
not satisfied this Court that Section 197
Cr.P.C applies in this case because at
the relevant time he was public servant
not removable from his office saved by or
with the sanction of the Government.”
8. One of the reasons given by CMM is that
accused has not satisfied the Court that Section
197 Cr.P.C. applies in this case because at the
relevant time, he was public servant not removable
from his office saved by or with the sanction of
the Government. Section 197 Cr.P.C. provides:-
“197. Prosecution of Judges and public
servants.--(1) When any person who is or
was a Judge or Magistrate or a public
servant not removable from his office save
by or with the sanction of the Government
is accused of any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his
official duty, no Court shall take
cognizance of such offence except with the
previous sanction [save as otherwise
provided in the Lokpal and Lokayuktas Act,
2013]-
(a) in the case of a person who is
employed or, as the case may be,
14
was at the time of commission of
the alleged offence employed, in
connection with the affairs of the
Union, of the Central Government;
(b) in the case of a person who is
employed or, as the case may be,
was at the time of commission of
the alleged offence employed, in
connection with the affairs of a
State, of the State Government:
Provided that where the alleged
offence was committed by a person
referred to in clause (b) during
the period while a Proclamation
issued under clause (1) of Article
356 of the Constitution was in
force in a State, clause (b) will
apply as if for the expression
“State Government" occurring
therein, the expression “Central
Government" were substituted.
Explanation — For the removal of
doubts it is hereby declared that
no sanction shall be required in
case of a public servant accused of
any offence alleged to have been
committed under section 166A,
section 166B, section 354, section
354A, section 354B, section 354C,
section 354D, section 370, section
375, section 376, section 376A,
section 376AB, section 376C,
section 376D, section 376DA,
section 376DB or section 509 of the
Indian Penal Code (45 of 1860).”
XXXXXXXXXXXXXXXXXXX”
9. The appellant being Manager in nationalized
15
bank whether can claim that before prosecuting him
sanction is required under Section 197. The CMM
having come to opinion that appellant having not
satisfied that he was public servant not removable
from his office saved by or with the sanction of
the Government, Section 197 Cr.P.C. was not
attracted with regard to appellant. After coming
to the above conclusions, it was not necessary for
the CMM to enter into the question as to whether
acts alleged against the appellant were discharged
in performance of official duty.
10. The question as to whether a manager of
nationalized bank can claim benefit of Section 197
Cr.P.C. is not res integra. This Court in K.CH.
Prasad Vs. Smt. J. Vanalatha Devi and Others,
(1987) 2 SCC 52 had occasion to consider the same
very question in reference to one, who claimed to
be a public servant working in a nationalized bank.
The application filed by appellant in above case
questioning the maintainability of the prosecution
for want of sanction under Section 197 Cr.P.C. was
16
rejected by Metropolitan Magistrate and revision to
the High Court also met the same fate. This Court
while dismissing the appeal held that even though a
person working in a nationalized bank is a public
servant still provisions of Section 197 are not
attracted at all. In paragraph No.6 of the
judgment, following has been held:-
“6. It is very clear from this provision
that this section is attracted only in
cases where the public servant is such who
is not removable from his office save by
or with the sanction of the Government. It
is not disputed that the appellant is not
holding a post where he could not be
removed from service except by or with the
sanction of the government. In this view
of the matter even if it is held that
appellant is a public servant still
provisions of Section 197 are not
attracted at all.”
11. The High Court in its impugned judgment has
not adverted to the above aspect and has only
confined to the discussion as to whether acts
alleged of the appellant were in discharge of
official duty. High Court also had relied on
judgment of this Court in Parkash Singh Badal
(supra). We having come to the conclusion that
17
appellant being not a public servant removable from
his office saved by or with the sanction of the
Government, sanction under Section 197 Cr.P.C. was
not applicable. The appellant cannot claim
protection under Section 197 Cr.P.C. We are of the
view that examination of further question as to
whether appellant was acting or purporting to act
in the discharge of his official duty was not
required to be gone into, when he did not fulfill
conditions for applicability of Section 197(1)
Cr.P.C.
12. We further notice that CMM in his order dated
03.12.2014 as extracted above made following
observations:-
“………………From the FSL report, it is clear
that accused S.K. Mighlani forged the
signatures of Sh. Gautam Dhar on account
opening form and moreover, the introducer
Rajender Kr. is absconding. In view of
this Court, an act of forgery done by
public servant cannot be considered an
act done in discharge of his official
duties………………………………”
13. At the stage, when Court is considering the
question regarding applicability of Section 197
18
Cr.P.C., it was not necessary for the CMM to make
observation that appellant has done an act of
forgery. The FSL report was one of the evidences
collected by I.O. Its evidentiary value was still
to be gone into at the time of trial in the light
of the evidences, which may come before the trial
court.
14. Learned counsel for the appellant has relied
on judgment of this Court in S.P.S. Rathore Vs.
Central Bureau of Investigation and Another, (2017)
5 SCC 817, where this Court had held that although
the opinion of a handwriting expert is also
relevant, but that too is not conclusive. This
Court further held that expert evidence as to
handwriting is only opinion evidence, which need to
be corroborated either by clear, direct or
circumstantial evidence. In Paragraph No. 47,
following has been laid down:-
“47. With regard to the contention of the
learned Senior Counsel for the appellantaccused that the signatures of Ms Ruchika
on the memorandum were forged though she
signed the same in front of Shri Anand
19
Prakash, Shri S.C. Girhotra, Ms Aradhana
and Mrs Madhu Prakash and they have
admitted the same, we are of the opinion
that expert evidence as to handwriting is
only opinion evidence and it can never be
conclusive. Acting on the evidence of any
expert, it is usually to see if that
evidence is corroborated either by clear,
direct or circumstantial evidence. The
sole evidence of a handwriting expert is
not normally sufficient for recording a
definite finding about the writing being
of a certain person or not. A court is
competent to compare the disputed writing
of a person with others which are admitted
or proved to be his writings. It may not
be safe for a court to record a finding
about a person’s writing in a certain
document merely on the basis of expert
comparison, but a court can itself compare
the writings in order to appreciate
properly the other evidence produced
before it in that regard. The opinion of a
handwriting expert is also relevant in
view of Section 45 of the Evidence Act,
but that too is not conclusive. It has
also been held by this Court in a catena
of cases that the sole evidence of a
handwriting expert is not normally
sufficient for recording a definite
finding about the writing being of a
certain person or not. It follows that it
is not essential that the handwriting
expert must be examined in a case to prove
or disprove the disputed writing. It is
opinion evidence and it can rarely, if
ever, take the place of substantive
evidence. Before acting on such evidence,
it is usual to see if it is corroborated
either by clear, direct evidence or by
circumstantial evidence.”
20
15. The observation made by CMM as extracted
above, by giving opinion using the expression that
appellant has committed forgery ought to have been
avoided. The Magistrate, at any stage prior to
final trial, is to avoid any conclusive opinion
regarding any evidence collected during
investigation. It is true that evidence collected
in the investigation can be looked into to form an
opinion as to whether prima facie charge is made
out against an accused and what is the nature of
offence alleged against him.
16. Insofar as the judgment of this Court in
Parkash Singh Badal (supra) relied on by the
counsel for the respondent and other judgments,
i.e., Inspector of Police and Another Vs.
Battenapatla Venkata Ratnam and Another, (20150 13
SCC 87 and Devinder Singh and Others Vs. State of
Punjab, (2016) 12 SCC 87 reiterating the
proposition, which was laid down in Parkash Singh
Badal (supra), there cannot be any quarrel to the
proposition. In Parkash Singh Badal (supra), this
21
Court laid down following in paragraph No.15;-
“15. It is their stand that where the
public servant has ceased to be a public
servant in one capacity by ceasing to hold
office which is alleged to have been
misused, the fortuitous circumstance of
the accused being in another capacity
holding an entirely different public
office is irrelevant. It was categorically
held in R.S. Nayak case, (1984) 2 SCC 183,
in para 13 that “on analysis of the policy
of the whole section the authority
competent to remove the public servant
from the office alleged to have misused is
alone the competent sanctioning
authority”.”
17. Other judgments relied on by the counsel for
the respondent lays down the same proposition.
Learned counsel for the appellant has also placed
reliance on N.K. Ganguly Vs. Central Bureau of
Investigation, (2016) 2 SCC 143, where this Court
in paragraph No.35 laid down following:-
“35. From a perusal of the case law
referred to supra, it becomes clear that
for the purpose of obtaining previous
sanction from the appropriate Government
under Section 197 Cr.P.C., it is
imperative that the alleged offence is
committed in discharge of official duty by
the accused. It is also important for the
Court to examine the allegations contained
in the final report against the
appellants, to decide whether previous
22
sanction is required to be obtained by the
respondent from the appropriate Government
before taking cognizance of the alleged
offence by the learned Special Judge
against the accused. In the instant case,
since the allegations made against the
appellants in the final report filed by
the respondent that the alleged offences
were committed by them in discharge of
their official duty, therefore, it was
essential for the learned Special Judge to
correctly decide as to whether the
previous sanction from the Central
Government under Section 197 Cr.P.C. was
required to be taken by the respondent,
before taking cognizance and passing an
order issuing summons to the appellants
for their presence.”
18. No exception can be taken to the proposition
as laid down in the above case. We having taken
the view that appellant being not removable by or
saved with the sanction of the Government was not
covered by Section 197 Cr.P.C. There was no
necessity to consider any further as to whether
acts of the appellant complained of were in
discharge of official duty or not.
19. We, thus, upheld the order of the CMM dated
03.12.2014 rejecting the application under Section
23
197 Cr.P.C. on the ground that appellant was not
removable by his office saved by or with the
sanction of the Government. We, however, delete
the following observations from the order dated
03.12.2014:-
“…………………………From the FSL report, it is
clear that accused S.K. Mighlani forged
the signatures of Sh. Gautam Dhar on
account opening form and moreover, the
introducer Rajender Kr. is absconding. In
view of this Court, an act of forgery
done by public servant cannot be
considered an act done in discharge of
his official duties……………………”
20. Although, we uphold the order of the High
Court as well as the order of CMM, but the
observations made by CMM in its order, as noted
above, are deleted. The appeal is partly allowed to
the extent indicated above.
...............................J.
( ASHOK BHUSHAN )
...............................J.
( K.M.JOSEPH)
NEW DELHI,
APRIL 30, 2019.

oral dying declaration = The trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the so­called dying declaration (Exh.P­2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial court for coming to such a conclusion. Per contra, the High Court while setting aside the said finding has not adverted to any of the reasons assigned by the trial court relating to the authenticity or reliability of the dying declaration. The view taken by the trial court, in our considered opinion, is the only possible view under 9 the facts and circumstances of the case. 14. As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others. Though P.Ws. 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of P.Ws. 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law. 15. Since the evidence relating to the dying declarations has not been proved beyond reasonable doubt by the prosecution, in 10 our considered opinion, the High Court was not justified in convicting the appellant, inasmuch as there is no other material against the appellant to implicate her. The motive for the offence, as alleged by the prosecution, has also not been proved. 16. Having regard to the totality of the facts and circumstances of the case, we conclude that the judgment of the High Court is liable to be set aside, and the same is accordingly set aside and that of the trial court is restored. As the appellant is acquitted of the charges levelled against her and she is in custody, we direct that the appellant be released forthwith, if not required in connection with any other case.

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 903 OF 2018
POONAM BAI  …  APPELLANT 
Versus
THE STATE OF CHHATTISGARH          …  RESPONDENT
   
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. This   appeal   calls   into   question   the   judgment   dated
06.04.2018 passed by the High Court of Chhattisgarh at Bilaspur
in ACQA No.205 of 2010, by which the judgment of the trial court
was set aside and the appellant was convicted under Section 302
of the Indian Penal Code (in short, “the IPC”) for committing the
murder of the deceased Vimla  Bai and sentenced to  undergo
rigorous imprisonment for life and to a fine of Rs.500/­.
2
2. The case of the prosecution in brief is as follows:
The deceased Vimla Bai was the wife of Pilaram Sahu (P.W.
3).  The appellant Poonam Bai is the daughter of Balaram, P.W.
3’s brother, and thus the niece of the deceased.  On the date of
the incident, i.e. 01.11.2001, around noon, the appellant Poonam
Bai came to the house of the deceased when she was alone,
quarreled with her, poured kerosene on her body and lit a fire
with   a   match­stick.   Vimla   Bai   sustained   burn   injuries   and
succumbed thereto in the hospital.  The matter was reported to
Police Station Gurur on the same day by Lalita Sahu (P.W. 2, the
daughter of the deceased) at about 12.05 p.m.
3. The trial court, on evaluation of the material on record,
acquitted   the   appellant   of   the   charges   levelled   against   her.
Feeling dissatisfied with the order of the trial court, the State
preferred   an   appeal   before   the   High   Court,   which   vide   the
impugned judgment, as mentioned above, convicted the appellant
under Section 302 of the IPC.
4.         Mr. Siddhartha Dave, learned senior counsel appearing
on   behalf   of   the   appellant,   has   taken   us   through   the   entire
material on record. He submitted that the prosecution has not
proved   its   case   beyond   reasonable   doubt,   there   are   no   eye
3
witnesses   to   the   incident   in   question   and   the   case   of   the
prosecution mainly rests on two dying declarations. According to
the learned senior counsel, the motive for the offence has not
been proved, and the High Court was not justified in reversing the
judgment of acquittal passed by the trial court, particularly when
the judgment of the trial court cannot be said to be perverse.
According to him, the trial court was fully justified in acquitting
the accused since the sole circumstance of the dying declarations
relied upon by the prosecution has not been proved. 
5. Per contra, Mr. Sumeer Sodhi, learned counsel for the
respondent­State vehemently argued in support of the judgment
of the High Court. 
6. We   have   heard   the   rival   submissions   of   the   learned
counsel for the parties and carefully perused the record.
7. The prosecution mainly relies upon the dying declaration
(Exhibit P­2), which is stated to have been recorded by the Naib
Tehsildar­cum­Executive Magistrate (P.W.1) in the hospital.  The
oral dying declaration made by the deceased before Lalita Sahu
(P.W. 2), Pilaram Sahu (P.W. 3) and Parvati Bai (P.W. 4) has also
been relied on.
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8. Undisputedly, and as is clear from the evidence of Dr.
J.S.   Khalsa   (P.W.   11),   who   conducted   the   post­mortem
examination, the deceased had sustained 100% burn injuries all
over the body.   He also deposed that due to her severe burn
injuries, the deceased was in a state of shock.
9. As   mentioned   supra,   as   compared   to   the   oral   dying
declaration, more emphasis was laid on the dying declaration
(Exh.P­2) stated to have been recorded by the Naib Tehsildarcum­Executive Magistrate in the hospital and the panchnama
(Ex.P­1) prepared by him regarding the recording of this dying
declaration.   As   a   matter   of   fact,   the   case   of   the   prosecution
mainly depends on the same. 
10. There cannot be any dispute that a dying declaration can
be the sole basis for convicting the accused. However, such a
dying declaration should be trustworthy, voluntary, blemishless
and reliable. In case the person recording the dying declaration is
satisfied that the declarant is in a fit medical condition to make
the statement and if there are no suspicious circumstances, the
dying declaration may not be invalid solely on the ground that it
was not certified by the doctor. Insistence for certification by the
doctor is only a rule of prudence, to be applied based on the facts
5
and circumstances of the case. The real test is as to whether the
dying declaration is truthful and voluntary. It is often said that
man will not meet his maker with a lie in his mouth. However,
since the declarant who makes a dying declaration cannot be
subjected to cross­examination, in order for the dying declaration
to be the sole basis for conviction, it should be of such a nature
that it inspires the full confidence of the court. In the matter on
hand,   since   Exh.   P2,   the   dying   declaration   is   the   only
circumstance relied upon by the prosecution, in order to satisfy
our   conscience,   we   have   considered   the   material   on   record
keeping   in   mind   the   well­established   principles   regarding   the
acceptability of dying declarations.
11. The Naib Tehsildar­cum­Executive Magistrate (P.W.1) has
deposed that the police had sent a requisition to the Tehsildar (as
per Exh. P­3), who in turn requested P.W.1 to go to the spot and
record the statement of the injured.  P.W.1 has also deposed that
he received such requisition at 12.15 p.m. on the date of the
incident, and immediately thereafter, he went to the hospital and
recorded   the   statement   of   the   victim   (Exh.P­1).   He   has   also
deposed that he drew the panchnama regarding the recording of
the dying declaration in the presence of three persons. It is to be
6
noted that the dying declaration (Exh.P­2) as produced before the
Trial   Court   is   only   a   photocopy,   which   is   not   admissible   in
evidence. The original copy of the dying declaration has not been
produced before the Trial Court. Also, though it has been stated
by the Naib Tehsildar­cum­Executive Magistrate (P.W.1) that he
had taken the signature of three witnesses, the photocopy of the
dying declaration does not contain the signature of any witness.
It is the case of the prosecution that P.W. 1 recorded the
dying declaration in the hospital.   But he has admitted in his
cross­examination that none of the doctors were present on that
day, and that the hospital was closed since it was a Sunday.  He
has also admitted in his cross­examination that he did not put
any question to the victim to find out whether she was in a
position to make a statement or not.  He also did not try to verify
whether the victim had the power to recollect the incident in
question. Hence, it is clear that P.W. 1 did not satisfy himself
about   the   fitness   of   the   victim   to   make   a   statement.   No
verification or certification of the doctor regarding the fitness of
the   victim   to   make   a   statement   can   be   found   on   the   dying
declaration   either.     In   addition,   absolutely   no   reasons   are
forthcoming either from the Investigating Officer (P.W. 12) or from
7
the Naib Tehsildar­cum­Executive Magistrate (P.W. 1) as to why
the original dying declaration was not produced before the Trial
Court. 
12. Moreover, the records do not reveal a clear picture of
what happened at the time of occurrence or subsequently.   The
Investigating Officer (P.W. 12) has admitted that he went to the
spot of the offence at about 12.15 p.m., immediately after getting
news of the incident at about 12 o’ clock.  When he arrived, the
victim was unconscious, and her skin was peeling off. He was the
first person to reach the scene of offence, and shifted her to the
hospital while she was still unconscious. If it is so, it is quite
unbelievable   as   to   how   the   victim   could   have   made   such   a
lengthy statement as found in Exh.P­2 at about 12.15 to 12.30
p.m., that too in an unconscious condition, before P.W.1.  To add
to   this,  there is  not  even   a  whisper  in   the  deposition  of  the
Investigating Officer about the presence of the  Naib Tehsildarcum­Executive   Magistrate   (P.W.1)   or  about   him   recording   the
dying declaration at about 12:15 p.m.  The Investigating Officer
has spoken neither about the requisition sent by him as per
Exh.P­3 nor about the alleged dying declaration (Exh.P­2) which
is stated to have been recorded by P.W.1.   Notably, the Naib
8
Tehsildar has deposed that when he went to the hospital, the
police were already there.   If it was so, and if he  had really
recorded the dying declaration as per Exh.P­2, the Investigating
Officer   would   have   deposed   about   the   same   before   the   Trial
Court.     But   such   records   are   not   forthcoming.    In   such
circumstances,   the   role   of   the   Naib   Tehsildar­cum­Executive
Magistrate (P.W. 1) appears to be highly suspicious.
It is also curious to note that the Investigating Officer has
deposed that he went to the spot immediately after getting the
oral information about the incident, whereas the crime came to be
registered based on the FIR of Lalita Sahu (P.W.2) at about 15:30
hours, i.e. 3.30 p.m.
13. The trial court has taken pains to evaluate the entire
material on record and has rightly come to the conclusion that
the so­called dying declaration (Exh.P­2) is unbelievable and not
trustworthy.  Valid reasons have also been assigned by the trial
court for coming to such a conclusion. Per contra, the High Court
while setting aside the said finding has not adverted to any of the
reasons assigned by the trial court relating to the authenticity or
reliability of the dying declaration. The view taken by the trial
court, in our considered opinion, is the only possible view under
9
the facts and circumstances of the case.  
14. As far as the oral dying declaration is concerned, the
evidence   on   record   is   very   shaky,   apart   from   the   fact   that
evidence   relating   to   oral   dying   declaration   is   a   weak   type   of
evidence in and of itself.  As per the case of the prosecution, the
deceased had made an oral dying declaration before Lalita Sahu
(P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others.
Though P.Ws. 2, 3 and 4 have deposed that the deceased did
make   an   oral   dying   declaration   before   them   implicating   the
appellant, this version is clearly only an afterthought, inasmuch
as the same was brought up before the trial court for the first
time.   In their statements recorded by the police under Section
161 of the Code of Criminal Procedure, these witnesses had not
made any statement relating to the alleged oral dying declaration
of the deceased.  These factors have been noted by the trial court
in its detailed judgment.  Thus, the evidence of P.Ws. 2, 3 and 4
relating   to   the   oral   dying   declaration   is   clearly   an   improved
version, and this has been proved by the defence in accordance
with law.
15. Since the evidence relating to the dying declarations has
not been proved beyond reasonable doubt by the prosecution, in
10
our   considered   opinion,   the   High   Court   was   not   justified   in
convicting the appellant, inasmuch as there is no other material
against the appellant to implicate her. The motive for the offence,
as alleged by the prosecution, has also not been proved.  
16. Having   regard   to   the   totality   of   the   facts   and
circumstances of the case, we conclude that the judgment of the
High Court is liable to be set aside, and the same is accordingly
set aside and that of the trial court is restored. As the appellant is
acquitted   of   the   charges   levelled   against   her   and   she   is   in
custody, we direct that the appellant be released forthwith, if not
required in connection with any other case.
17. The appeal is allowed accordingly.
………........................................J.     
                                    (N.V. RAMANA)
….………....................................J.
(MOHAN M. SHANTANAGOUDAR)
…….……….................................J.
(S. ABDUL NAZEER)
NEW DELHI;
APRIL 30, 2019.