LAW FOR ALL

Friday, February 11, 2022

Whether the property of the borrower can be released by paying highest bid amount without paying entire due of loan amount under sec.13[8] of SARFAESI Act? - No Unless and until the borrower was ready to deposit/pay the entire amount payable together with all costs and expenses with the secured creditor, the borrower cannot be discharged from the entire liability outstanding. Therefore, as such no order could have been passed either by the DRT and/or by the Division Bench of the High Court to discharge the borrower from the entire liability outstanding and to discharge the mortgaged property and handover the possession along with original title deeds to the borrower. As such the learned Single Judge rightly set aside the orders passed by the DRT as well as by the DRAT considering Section 13(8) of the SARFAESI Act.

Whether the property of the borrower can be released by paying highest bid amount without paying entire due of loan amount under sec.13[8] of SARFAESI Act? - No

Unless and until the borrower was ready to deposit/pay the entire

amount payable together with all costs and expenses with

the secured creditor, the borrower cannot be discharged

from the entire liability outstanding. Therefore, as such no

order could have been passed either by the DRT and/or by

the Division Bench of the High Court to discharge the

borrower from the entire liability outstanding and to

discharge the mortgaged property and handover the

possession along with original title deeds to the borrower.

As such the learned Single Judge rightly set aside the

orders passed by the DRT as well as by the DRAT

considering Section 13(8) of the SARFAESI Act.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.363 OF 2022

Bank of Baroda ..Appellant (S)

VERSUS

M/s Karwa Trading Company & Anr. ..Respondent (S)

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 20.09.2017 passed by the

Division Bench of the High Court of Judicature for

Rajasthan Bench at Jaipur in D.B. Special Appeal Writ

No.349 of 2017, by which the Division Bench of the High

Court has allowed the said intracourt appeal and has

quashed and set aside the judgment and order dated

12.01.2017 passed by the learned Single Judge and has

directed that if the respondent borrower deposits a

further sum of Rs.17 lakhs to the bank, the bank shall

release the property and handover possession along with

the title deeds of the residential/housing property in

question to the borrower and by which the Division Bench

of the High Court has further directed that the SA

No.9/2014 filed by the borrower before the learned Debt

Recovery Tribunal (DRT) is restored to its original number

to be heard on merits, the appellant herein Bank of

Baroda – financial institution – secured creditor has

preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as

under:

2.1 That the appellant herein – bank granted term loan of

Rs.100 lakhs and cash credit limit of Rs.95 lakhs to the

respondent – borrower (hereinafter referred to as the

borrower) against the security of two mortgaged properties

namely (i) industrial plot situated at Chittor Road, Bundi

measuring 500 Sq.Mtrs. and (ii) a residential/housing

property situated at 1Ja27, Vikas Nagar, Bundi

measuring 198 Sq.Mtrs. That the borrower failed to repay

the term loan as per the terms and conditions of the

agreement. The account of the borrower became NPA on

31.10.2012. A notice under Section 13(2) of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (hereinafter

referred to as the SARFAESI Act, 2002) dated 07.01.2013

was served upon the borrower demanding a sum of

Rs.1,85,37,218.80/ The bank took symbolic possession of

the immovable property/residential house and also issued

a notice under Section 13(4) of the SARFAESI Act, 2002 on

22.08.2013. An application was moved under Section 14 of

the SARFAESI Act, 2002 which came to be allowed on

08.11.2013 and with the police assistance the bank took

possession of the residential house, which was one of the

mortgaged properties of the borrower, on 25.11.2013.

2.2 That thereafter the bank issued a sale notice by public

auction of the residential property dated 16.12.2013. The

reserve price fixed was Rs.48.65 lakhs for sale of the said

secured asset in terms of the procedure prescribed under

Rule 8 read with Rule 9 of the Security Interest

(Enforcement) Rules, 2002. The date of auction notified

was 20.01.2014. The borrower challenged the auction of

the bank by filing Securitisation Application (SA)

No.09/2014 under Section 17 of the SARFAESI Act, 2002

before the DRT, Jaipur. An interim order was passed by

the DRT that if the borrower deposits Rs.20 lakhs on

20.01.2014 by 12.00 noon, the bank shall accept the bids

but not finalize the bids/confirm the sale of the secured

asset and if the borrower commits default in payment of

balance amount of Rs.28.65 lakhs, the restraint order

shall stand vacated automatically. The DRT also observed

that if the borrower deposits Rs.48.65 lakhs with the bank

on or before 27.01.2014, the bank shall deliver the

possession of the secured asset along with the original title

deeds of the property in question. It is not in dispute that

the borrower deposited Rs.48.65 lakhs with the bank.

2.3 That the aforesaid interim order passed by the DRT came

to be challenged by the bank in appeal before the DRAT

(Debt Recovery Appellate Tribunal). It was the case on

behalf of the appellant bank that in public auction the

bank had received bids up to Rs.71 lakhs and the amount

of debt due against the borrower at that point of time was

above Rs.2 crores and if at all the borrower is interested or

keen to redeem the mortgaged property, he could do so by

discharging the entire liability and not by making payment

of Rs.48.65 lakhs, as ordered by the DRT. It was also the

case on behalf of the appellant – bank that order passed by

the DRT dated 17.01.2014 was in violation of Section 13(8)

of the SARFAESI Act, 2002. However, it was submitted on

behalf of the bank that the bank may not find any

difficulty in releasing the subject property provided the

borrower is ready to pay a sum of Rs.71 lakhs which is the

highest bid available with the bank. It was submitted that

even this amount would not ultimately go to discharge the

entire liability outstanding against the borrower but still if

the borrower deposits Rs.71 lakhs, the bank may not find

difficulty to release the subject property in question.

2.4 The DRAT dismissed the appeal by observing that as the

reserve price was Rs.48.65 lakhs which the borrower

deposited and the bank had received the bids ranging from

Rs. 61.50 lakhs to Rs.71 lakhs and the alleged bidders

failed to deposit the earnest money and when the borrower

is ready to purchase the said property for Rs.71 lakhs no

fault can be found with the order passed by DRT. The

order passed by the DRAT dismissing the appeal preferred

by the bank was the subject matter of challenge before the

learned Single Judge. The learned Single Judge set aside

both the orders of DRT and DRAT vide its judgment and

order dated 12.01.2017 primarily for the reason that the

said orders were in contravention of Section 13(8) of the

SARFAESI Act, 2002. The judgment and order passed by

the learned Single Judge was challenged before the

Division Bench of the High Court by the borrower by way

of present intracourt appeal. By the impugned judgment

and order, the Division Bench of the High Court has

allowed the said appeal and has quashed and set aside the

judgment and order passed by the learned Single Judge

and has directed the bank to release the secured property

(residential house) on the borrower depositing a further

sum of Rs.17 lakhs to the bank and handover the

possession along with the title deeds to the borrower.

2.5 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the

High Court, the bank – financial institution – secured

creditor preferred the present appeal.

3. Ms. Praveena Gautam learned counsel appearing on behalf

of the appellant – bank has vehemently submitted that in

the facts and circumstances of the case the Division Bench

of the High Court has committed a grave error in directing

the bank to release the property and handover the

possession along with the title deeds of the

residential/housing property in question to the borrower

on making a further payment of Rs.17 lakhs only.

3.1 It is vehemently submitted by learned counsel appearing

on behalf of the appellant – bank that even as observed by

the Division Bench of the High Court the borrower did not

come forward to redeem the property but to release the

property in favour of the purchaser on payment of the

reserve price of the mortgaged property in terms of the

auction notice. It is submitted that therefore when the

dues were of Rs. 1,85,37,218.80/ at the time when the

notice dated 07.01.2013 under Section 13(2) of the

SARFAESI Act, 2002 was issued and served upon the

borrower, on payment of a sum of Rs.71 lakhs only the

borrower cannot be discharged from his liability to pay the

entire dues.

3.2 It is further submitted by learned counsel appearing on

behalf of the appellant – bank that what was understood

and agreed by the bank was that on payment of Rs.71

lakhs which was the highest bid received, the borrower

may be handed over the possession. It is submitted that

however, it was specifically made clear that on payment of

Rs.71 lakhs the said amount would not ultimately

discharge the entire liability outstanding against the

borrower. It is submitted that aforesaid has been

misinterpreted and/or misconstrued by the Division Bench

of the High Court and it is understood that on deposit of

Rs.71 lakhs the bank agreed that the borrower be

discharged from his entire liability outstanding against

him.

3.3 It is further submitted that the Division Bench of the High

Court has also not property appreciated that the offer of

Rs.71 lakhs in the auction was received in the year

2013/2014 and thereafter the valuation has increased. It

is submitted that even the outstanding dues have also

gone up which was Rs. 1,85,37,218.80/ as on

07.01.2013. It is submitted that therefore the Division

Bench of the High Court has materially erred in treating

and/or considering Rs.71 lakhs as sale/purchase price

and/or the value of the residential property. It is

submitted that therefore when the Division Bench of the

High Court passed the judgment and order if the property

could have been auctioned it would have fetched much

more price than Rs.71 lakhs. It is submitted that on

deposit of Rs.71 lakhs only the borrower cannot be

discharged from his entire liability. It is submitted that the

impugned judgment and order passed by the Division

Bench of the High Court is just contrary to Subsection (8)

of Section 13 of the SARFAESI Act, 2002. It is submitted

that as per Subsection (8) of Section 13 of the SARFAESI

Act, 2002 only on deposit/payment of entire payment of

dues of the secured creditor together with all costs,

charges and expenses incurred by secured creditor to the

secured creditor, at any time before the date of publication

of notice for public auction or inviting quotations or tender

from public, the secured asset shall not be sold by the

secured creditor. It is submitted that in the present case

the amount due was much more than Rs.71 lakhs. It is

submitted that therefore the impugned judgment and

order passed by the Division Bench of the High Court

directing to release the secured property just on payment

of a total sum of Rs.65.65 lakhs is just contrary to Subsection (8) of Section 13 of the SARFAESI Act, 2002.

3.4 It is further submitted by learned counsel appearing on

behalf of the appellant – bank that when the subject

property was mortgaged to the bank in the housing loan

account borrowed by the borrower and without satisfying

the entire outstanding dues the mortgaged property cannot

be discharged.

3.5 It is further submitted by learned counsel appearing on

behalf of the appellant – bank that the Division Bench of

the High Court has failed to appreciate the reserve price of

Rs.48.65 lakhs was based on the valuation carried out by

the valuer of the bank and the process of the auction of

the subject property was through public auction in which

an actual market price could have been fetched. There

could not have been any directions for redemption of the

secured subject property on making payment of the

reserve price or having paid the average of the two highest

bid to the borrowers unless the entire dues including the

costs and expenses are paid.

3.6 It is further submitted by learned counsel appearing on

behalf of the appellant – bank that the Division Bench of

the High Court has not properly appreciated the fact that

the initial order passed by the DRT which was the subject

matter before the DRAT challenged by the bank by which

the DRT directed to release/handover the possession of the

mortgaged property to the borrower on deposit of Rs.48.65

lakhs which was the reserve price, was an interim order.

Therefore, the Division Bench of the High Court ought not

to have passed the final order discharging the borrower

from his entire liability just on payment of Rs.65.65 lakhs.

3.7 Making the above submissions it is prayed to allow the

present appeal.

4. The present appeal is vehemently opposed by Mrs. Christi

Jain learned counsel appearing on behalf of the

respondents – borrowers.

4.1 It is vehemently submitted by learned counsel appearing

on behalf of the borrower that as the highest bid received

by the bank in the public auction was Rs.71 lakhs which

the borrower agreed to deposit/pay and even earlier the

borrower deposited a sum of Rs.48.65 lakhs as per the

order passed by the DRT dated 17.01.2014, thereafter

when the Division Bench of the High Court has directed

the bank to release the residential property on deposit of a

further sum of Rs.17 lakhs (total making it Rs.65.65 lakhs)

and thereafter has directed to handover the original title

deeds to the borrower, the impugned judgment and order

passed by the High Court is equitable order which does

not warrant any interference by this Court in exercise of

powers conferred under Article 136 of the Constitution of

India.

4.2 It is submitted that even the learned counsel appearing on

behalf of the appellant – bank agreed that on payment of a

total sum of Rs.65.65 lakhs the property in question may

be released. It is submitted that therefore the Division

Bench of the High Court has not committed any error

which warrants interference of this Court in exercise of

powers conferred under Article 136 of the Constitution of

India.

5. We have heard the learned counsel appearing on behalf of

the respective parties at length.

6. At the outset, it is required to be noted that by the

impugned judgment and order the Division Bench of the

High Court has directed the bank – secured creditor to

release the secured property and handover the possession

along with original title deeds of the residential/housing

property in question to the borrower on payment of a total

sum of Rs.65.65 lakhs. Thus, by the impugned judgment

and order the Division Bench of the High Court has

released the secured property/mortgaged property on

payment of a total sum of Rs.65.65 lakhs against the total

dues which as such as on 07.01.2013 was

Rs.1,85,37,218.80/.

6.1 From the impugned judgment and order passed by the

High Court it appears that the Division Bench of the High

Court has treated and/or considered the market value of

the mortgaged property at Rs.71 lakhs. The DRT when

initially granted the interim relief in favour of the borrower

which was the subject matter before the DRAT and the

learned Single Judge and thereafter before the Division

Bench of the High Court, directed to handover the

possession of the mortgaged property to the borrower on

payment of Rs.48.65 lakhs which was the reserve

price/base price. The possession was taken over by the

bank under the provisions of the SARFAESI Act and after

following the proceedings as required under Section 13 of

the SARFAESI Act, the mortgaged property was put to

auction and at that stage the borrower preferred an

appeal/application before the DRT under Section 17 of the

SARFAESI Act and as such the said appeal can be said to

be technically pending as the order dated 17.01.2014

passed by the DRT was an interim order. When the

auction proceedings were initiated under Section 13 of the

SARFAESI Act and after the bank took over the possession

under Section 14 of the SARFAESI Act as per Subsection

(8) of Section 13 of the SARFAESI Act the secured asset

shall not be sold and/or transferred by the secured

creditor, where the amount dues of the secured creditor

together with all costs, charges and expenses incurred by

him is tendered by the borrower or debtor to the secured

creditor at any time before the date of publication of notice

for public auction or inviting quotations or tender from

public or private treaty for transfer by way of lease

assignment or sale of the secured assets. In the present

case though as on 07.01.2013 the dues were Rs.

Rs.1,85,37,218.80/ and without the secured property was

sold in a public auction the Division Bench of the High

Court has directed to release the mortgaged property and

handover the possession along with original title deeds to

the borrower on the borrower depositing/paying a total

sum of Rs.65.65 lakhs only. At this stage, it is required to

be noted that Rs.65.65 lakhs was not the amount realized

by selling the mortgaged property in a public auction. It

was only a highest bid received and before any further

auction proceedings were conducted, the DRT passed an

interim order directing to handover the possession and

handover the original title deeds on payment of Rs.48.65

lakhs which was the base price, which was the subject

matter before the DRAT and before the learned Single

Judge. Therefore, the borrower did not deposit and was not

ready to deposit the entire amount of dues with secured

creditor with all costs, charges and expenses incurred by

the secured creditor. Therefore, it was open for the secured

creditor to sell the mortgaged property which was put as a

security and realize the amount by selling it in a public

auction. At this stage, it is required to be noted that even

as per the Division Bench of the High Court the borrower

made an offer to deposit/pay Rs.71 lakhs as a purchaser

and not by way of redeeming the mortgaged property.

Therefore, the impugned judgment and order passed by

the Division Bench of the High Court directing to release

the mortgaged property/secured property and to handover

the possession as well as the original title deeds to the

borrower on payment of a total sum of Rs.65.65 lakhs only

is contrary to Subsection (8) of Section 13 of the

SARFAESI Act.

7. Even otherwise on making the payment i.e. Rs.65.65 lakhs

against the total dues Rs.1,85,37,218.80/ as on

07.01.2013 the entire liability outstanding against the

borrower cannot be said to have been discharged. Even if

the mortgaged property would have been sold in a public

auction say for an amount of Rs.71 lakhs and the bank

has realized Rs.71 lakhs by selling the mortgaged property,

in that case also the liability of the borrower to pay the

balance amount would still continue. By selling the

mortgaged property/secured property it cannot be said

that the borrower is discharged from the entire liability

outstanding against him. The liability of the borrower with

respect to the balance outstanding dues would still be

continued. Therefore, the Division Bench of the High Court

has erred in directing to release the mortgaged

property/secured property and to handover the possession

along with the original title deeds to the borrower on

payment of a total sum of Rs.65.65 lakhs only.

7. 1 At the cost of repetition it is observed that as such the

bank had already initiated the proceedings under Section

13 of the SARFAESI Act and even the possession of the

mortgaged property was taken over by the bank under

Section 14 of the SARFAESI Act and thereafter the

mortgaged property was put to sale by a public auction

and at that stage the borrower wanted to stall the auction

proceedings and restrain the secured creditor/bank from

selling the property. In such a situation the bank/secured

creditor can be restrained from selling the mortgaged

property/secured property where the borrower deposits

entire dues that was Rs.1,85,37,218.80/ as on

07.01.2013 with the secured creditor. Therefore, the DRT

in its order dated 17.01.2014 which as such was an

interim relief order pending the appeal under Section 17 of

the SARFAESI Act was not justified in directing to release

the mortgaged property and handover the possession along

with the original title deeds to the borrower on payment of

Rs.48.65 lakhs only which was the base price/ reserve

price, which the Division Bench of the High Court has

increased to Rs.65.65 lakhs on the ground that the highest

bid received was Rs.71 lakhs (which was not materialized

as the highest bidder did not come forward). Unless and

until the borrower was ready to deposit/pay the entire

amount payable together with all costs and expenses with

the secured creditor, the borrower cannot be discharged

from the entire liability outstanding. Therefore, as such no

order could have been passed either by the DRT and/or by

the Division Bench of the High Court to discharge the

borrower from the entire liability outstanding and to

discharge the mortgaged property and handover the

possession along with original title deeds to the borrower.

As such the learned Single Judge rightly set aside the

orders passed by the DRT as well as by the DRAT

considering Section 13(8) of the SARFAESI Act. The

learned Single Judge was right in setting aside the order

passed by the DRT confirmed by the DRAT. The Division

Bench of the High Court has erred in interfering with the

order passed by the learned Single Judge and has erred in

directing to release the mortgaged property/secured

property and handover the possession along with the

original title deeds to the borrower on payment of a total

sum of Rs.65.65 lakhs only.

7.2 However, at the same time the order dated 17.01.2014

passed by the DRT was an interim relief order in SA

No.9/2014 and therefore even if the interim relief order is

set aside by this Court the appeal/application will have to

be decided and disposed of on merits and on whatever

grounds which may be available to the borrower. However,

at the same time the bank cannot be restrained from

selling the mortgaged property by holding the public

auction and realise the amount and recover the

outstanding dues, unless the borrower deposits/pays the

entire amount due and payable along with the costs

incurred by the secured creditor as per Section 13(f) of the

SARFAESI Act.

8. In view of the above and for the reasons stated above the

present appeal succeeds. The impugned judgment and

order dated 20.09.2017 passed by the Division Bench of

the High Court in DBSAW No.349/2017 is hereby quashed

and set aside and the order passed by the learned Single

Judge quashing and setting aside the order passed by the

DRT dated 17.01.2014 confirmed by the DRAT is hereby

restored.

It will be open for the appellant – bank to proceed

further with the auction proceedings of the mortgaged

property in auction i.e. residential house by inviting the

bids afresh and whatever the amount is already paid by

the borrower, may be in pursuance to the interim relief

order passed by the DRT and/or the impugned judgment

and order passed by the Division Bench of the High Court,

the same may be adjusted against the dues/total liability

of the borrower. At the same time DRT to decide and

dispose of SA No.09/2014 filed by the borrower under

Section 17 of the SARFAESI Act in accordance with law

and on its own merits and on the whatever grounds which

may be available to the borrower. It is also observed and

directed that in case pursuance to the orders passed by

the DRT and the Division Bench of the High Court if the

borrower is put into possession, considering the fact that

the mortgaged property is a residential property, till the

auction is finalized and the mortgaged property is sold in a

public auction, the possession of the borrower may not be

disturbed. However, it is directed that on public auction

being finalized and the mortgaged property is sold by the

bank the borrower has to handover the peaceful and

vacant possession of the property to the bank and/or the

auction purchaser. However, in the meantime the original

title deeds of the mortgaged property be retained by the

bank. In the meantime, and till the borrower remains in

possession of the mortgaged property as per the present

order and till the mortgaged property is sold in a public

auction, the borrower shall not transfer and/or alienate

the mortgaged property in any manner whatsoever

including the possession. The present appeal is allowed

with the above further observations and directions

accordingly. In the facts and circumstances of the case

there shall be no order as to costs.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(SANJIV KHANNA)

New Delhi,

February, 10th 2022.

Tuesday, February 8, 2022

whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed?

Sections 341, 323, 379, 354, 498A read with Section 34 of the Indian Penal Code - Section 482 of the Code of Criminal Procedure -The Complainant (Respondent No. 5 herein) Tarannum Akhtar @ Soni, was married to Md. Ikram on 18.09.17. The appellants herein are the in-laws of Respondent No. 5. On 11.12.17, the said Respondent initially instituted a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging demand for dowry and harassment. Thereafter when the file was put up before the Sub Divisional Judicial Magistrate Court, Purnea, for passing order at the stage of issuance of summon, the Ld. Magistrate concluded that upon perusal of material evidence no prima-facie case was made against the in-laws and that the allegations levelled against them were not specific in nature. The said court, however, took cognizance for the offence under section 498A, 323 IPC against the husband Md. Ikram, and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home - Subsequently, on 01.04.19, Respondent No. 5 herein, gave another written complaint for registration of FIR under sections 341, 323, 379, 354, 498A read with Section 34 IPC against her husband Md. Ikram and the appellants herein.- Aggrieved, the Husband and appellant herein filed a criminal writ petition before the Patna High Court, for quashing of the said FIR dated 01.04.19, which was dismissed vide impugned judgment. The High Court observed that the averments made in the FIR prima-facie disclosed commission of an offence and therefore the matter was required to be investigated by the police.- Apex court held that whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed?

Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.

Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 195 OF 2022

(arising out of S.L.P (Crl.) No. 6545 OF 2020)

KAHKASHAN KAUSAR @ SONAM & ORS. … APPELLANT (S)

VERSUS

STATE OF BIHAR & ORS. … RESPONDENT(S)

JUDGMENT

KRISHNA MURARI, J.

Leave granted.

2. This appeal is directed against the judgment and order dated 13.11.2019

passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019,

filed by the Appellants under Section 482 of the Code of Criminal Procedure

(hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated

01.04.2019 implicating the Appellants for offences under Sections 341, 323,

379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter

referred to as ‘IPC’). The High Court vide order impugned herein dismissed the

same.

Factual Matrix

3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @

Soni, was married to Md. Ikram on 18.09.17. The appellants herein are

the in-laws of Respondent No. 5. On 11.12.17, the said Respondent

initially instituted a criminal complaint against her husband and the

appellants before the Court of Chief Judicial Magistrate, Purnea alleging

demand for dowry and harassment. Thereafter, when the file was put up

before the Sub Divisional Judicial Magistrate Court, Purnea, for passing

order at the stage of issuance of summon, the Ld. Magistrate concluded

that upon perusal of material evidence no prima-facie case was made

against the in-laws and that the allegations levelled against them were not

specific in nature. The said court, however, took cognizance for the

offence under section 498A, 323 IPC against the husband Md. Ikram, and

issued summons. This dispute was eventually resolved and Respondent

No. 5 herein came back to the matrimonial home.

4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another

written complaint for registration of FIR under sections 341, 323, 379,

354, 498A read with Section 34 IPC against her husband Md. Ikram and

the appellants herein. The complaint inter-alia alleged that all the accused

were pressurizing the Respondent wife herein to purchase a car as dowry,

and threatened to forcibly terminate her pregnancy if the demands were

not met.

5. Aggrieved, the Husband and appellant herein filed a criminal writ

petition before the Patna High Court, for quashing of the said FIR dated

01.04.19, which was dismissed vide impugned judgment. The High Court

observed that the averments made in the FIR prima-facie disclosed

commission of an offence and therefore the matter was required to be

investigated by the police. The Appellants herein, being the niece

(Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law

(Respondent No. 3), and brother in law (Respondent No. 4) have thereby

approached this court by way of the present Special Leave Petition.

Contentions made by the Appellants

6. The counsel for the Appellants herein contends, that the Police Officer

was duty bound to conduct a preliminary inquiry before registering the FIR as

this instant case falls within the categories of cases on which a preliminary

enquiry may be made, as mandated by this court in Lalita Kumari Vs.

Government of U.P. & Ors.1

1. (2014) 2 SCC 1

7. It is also submitted that previously in the year 2017, the Respondent wife

had instituted a criminal complaint on similar allegations, whereby the Ld.

Judicial Magistrate after considering the evidence issued summons only against

the husband, and found that the allegations made against the appellants herein

were omnibus in nature. Further, it is submitted that the FIR in question has

been made with a revengeful intent, merely to harass the Appellant in-laws

herein, and should be dealt with accordingly. Reliance is placed on Social

Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of

Law And Justice & Ors.2

, wherein it was observed:-

“4. Regarding the constitutionality of Section 498-A IPC, in

Sushil Kumar Sharma v. Union of India and others , it was

held by the Supreme Court:-

"Provision of S. 498A of Penal Code is not unconstitutional

and ultra vires. Mere possibility of abuse of a provision of

law does not per se invalidate a legislation. Hence plea that

S. 498A has no legal or constitutional foundation is not

tenable. The object of the provisions is prevention of the

dowry menace. But many instances have come to light where

the complaints are not bona fide and have been filed with

oblique motive. In such cases acquittal of the accused does

not in all cases wipe out the ignominy suffered during and

prior to trial. Sometimes adverse media coverage adds to the

misery. The question, therefore, is what remedial measures

can be taken to prevent abuse of the well-intentioned

provision. Merely because the provision is constitutional and

intra vires, does not give a licence to unscrupulous persons

to wreck personal vendetta or unleash harassment. It may,

therefore, become necessary for the legislature to find out

ways how the makers of frivolous complaints or allegations

2. (2018) 10 SCC 443

can be appropriately dealt with. Till then the Courts have to

take care of the situation within the existing frame-work.”

Contention made by Respondent No. 1 – State of Bihar

8. Respondent No. 1 herein i.e., the State of Bihar, contends that the

present FIR pertains to offences committed in the year 2019, after

assurance was given by the husband Md. Ikram before the Ld. Principal

Judge Purnea, to not harass the Respondent wife for dowry, and treat her

properly. However, the husband and appellants, despite the assurances,

have continued their demand for dowry and threatened with forcefully

terminating the Respondent wife’s pregnancy. These acts constitute a

fresh cause of action and therefore the FIR in question herein dated

01.04.19, is distinct and independent, and cannot be termed as a repetition

of an earlier FIR dated 11.12.17. Moreover, an investigation was carried

out pursuant to the FIR and the case has been found true against all

accused persons, therefore Lalita Kumari (Supra) will not apply in the

present case.

Contentions made by Respondent No 5 – Complainant Wife

9. Respondent No. 5 contends that of the total seven accused, the FIR

in question was challenged by only five accused including her husband. It

is argued that the impugned order is evidently accepted by the accused

husband Md. Ikram @Sikandar as he has not challenged the impugned

High Court judgment. Further, as far as involvement of the four accused

Appellant in-laws is concerned, it is not only reflected from the

averments made in the FIR, but also corroborated from the oral and

documentary evidence collected by the investigating officer during

investigation, culminating into filing of charge-sheet against all seven

accused including the four Appellants herein. The allegations thus made

in the FIR are sufficient to make out a prima facie case, and nonmentioning of pendency of Complaint case of year 2017, at the time of

filing the complaint 01.04.19 is not fatal for the case of the prosecution.

10. It is further submitted that the allegations made in the FIR are

serious in nature and the Respondent wife has been repeatedly tortured

physically and mentally in order to fulfil the demand for dowry. Further,

even if the contentions made by the Respondent No. 5 herein are

disputed, by the Appellant in-laws, their veracity can be tested in trial

before the Trial Court. It is further contended that this court has also taken

a consistent view with regard to exercise of power under S. 482 Cr.P.C.,

in Rajesh Bajaj Vs. State of NCT of Delhi & Ors.3

, wherein it has been

clearly held that even if a prima facie case is made out disclosing the

ingredients of an offence, Court should not quash the complaint.

Therefore, the impugned order can in no way be termed as perverse,

cryptic or erroneous and therefore warrant no interference by this Hon’ble

Court.

Issue Involved

11. Having perused the relevant facts and contentions made by the

Appellants and Respondents, in our considered opinion, the foremost

issue which requires determination in the instant case is whether

allegations made against the in-laws Appellants are in the nature of

general omnibus allegations and therefore liable to be quashed?

12. Before we delve into greater detail on the nature and content of

allegations made, it becomes pertinent to mention that incorporation of

section 498A of IPC was aimed at preventing cruelty committed upon a

woman by her husband and her in-laws, by facilitating rapid state

intervention. However, it is equally true, that in recent times, matrimonial

litigation in the country has also increased significantly and there is a

3. (1999) 3 SCC 259

greater disaffection and friction surrounding the institution of marriage,

now, more than ever. This has resulted in an increased tendency to

employ provisions such as 498A IPC as instruments to settle personal

scores against the husband and his relatives.

13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of

U.P. & Anr.4

, has observed:-

“14. Section 498-A was inserted in the statute with the

laudable object of punishing cruelty at the hands of husband

or his relatives against a wife particularly when such cruelty

had potential to result in suicide or murder of a woman as

mentioned in the statement of Objects and Reasons of the Act

46 of 1983. The expression 'cruelty' in Section 498A covers

conduct which may drive the woman to commit suicide or

cause grave injury (mental or physical) or danger to life or

harassment with a view to coerce her to meet unlawful

demand. It is a matter of serious concern that large number

of cases continue to be filed under already referred to some

of the statistics from the Crime Records Bureau. This Court

had earlier noticed the fact that most of such complaints are

filed in the heat of the moment over trivial issues. Many of

such complaints are not bona fide. At the time of filing of the

complaint, implications and consequences are not visualized.

At times such complaints lead to uncalled for harassment not

only to the accused but also to the complainant. Uncalled for

arrest may ruin the chances of settlement.”

4. (2018) 10 SCC 472

14. Previously, in the landmark judgment of this court in Arnesh

Kumar Vs. State of Bihar and Anr.5

, it was also observed:-

“4. There is a phenomenal increase in matrimonial

disputes in recent years. The institution of marriage is

greatly revered in this country. Section 498-A IPC was

introduced with avowed object to combat the menace of

harassment to a woman at the hands of her husband and his

relatives. The fact that Section 498-A IPC is a cognizable

and non-bailable offence has lent it a dubious place of pride

amongst the provisions that are used as weapons rather

than shield by disgruntled wives. The simplest way to harass

is to get the husband and his relatives arrested under this

provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters

living abroad for decades are arrested.”

15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr.6

, it

has also been observed:-

“32. It is a matter of common experience that most of these

complaints under section 498A IPC are filed in the heat of

the moment over trivial issues without proper deliberations.

We come across a large number of such complaints which

are not even bona fide and are filed with oblique motive. At

the same time, rapid increase in the number of genuine cases

of dowry harassment are also a matter of serious concern.

33. The learned members of the Bar have enormous social

responsibility and obligation to ensure that the social fiber of

family life is not ruined or demolished. They must ensure that

exaggerated versions of small incidents should not be

reflected in the criminal complaints. Majority of the

complaints are filed either on their advice or with their

5. (2014) 8 SCC 273

6. (2010) 7 SCC 667

concurrence. The learned members of the Bar who belong to

a noble profession must maintain its noble traditions and

should treat every complaint under section 498A as a basic

human problem and must make serious endeavour to help the

parties in arriving at an amicable resolution of that human

problem. They must discharge their duties to the best of their

abilities to ensure that social fiber, peace and tranquility of

the society remains intact. The members of the Bar should

also ensure that one complaint should not lead to multiple

cases.

34. Unfortunately, at the time of filing of the complaint the

implications and consequences are not properly visualized by

the complainant that such complaint can lead to

insurmountable harassment, agony and pain to the

complainant, accused and his close relations.

35. The ultimate object of justice is to find out the truth and

punish the guilty and protect the innocent. To find out the

truth is a herculean task in majority of these complaints. The

tendency of implicating husband and all his immediate

relations is also not uncommon. At times, even after the

conclusion of criminal trial, it is difficult to ascertain the real

truth. The courts have to be extremely careful and cautious in

dealing with these complaints and must take pragmatic

realities into consideration while dealing with matrimonial

cases. The allegations of harassment of husband's close

relations who had been living in different cities and

never visited or rarely visited the place where the

complainant resided would have an entirely different

complexion. The allegations of the complaint are required to

be scrutinized with great care and circumspection.

36. Experience reveals that long and protracted criminal

trials lead to rancour, acrimony and bitterness in the

relationship amongst the parties. It is also a matter of

common knowledge that in cases filed by the complainant if

the husband or the husband's relations had to remain in jail

even for a few days, it would ruin the chances of amicable

settlement altogether. The process of suffering is extremely

long and painful.”

16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7

, it was observed:-

“21. It would be relevant at this stage to take note of an apt

observation of this Court recorded in the matter of G.V. Rao

vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693

wherein also in a matrimonial dispute, this Court had held

that the High Court should have quashed the complaint

arising out of a matrimonial dispute wherein all family

members had been roped into the matrimonial litigation

which was quashed and set aside. Their Lordships observed

therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent

times. Marriage is a sacred ceremony, main purpose of

which is to enable the young couple to settle down in life and

live peacefully. But little matrimonial skirmishes suddenly

erupt which often assume serious proportions resulting in

heinous crimes in which elders of the family are also

involved with the result that those who could have

counselled and brought about rapprochement are rendered

helpless on their being arrayed as accused in the criminal

case. There are many reasons which need not be mentioned

here for not encouraging matrimonial litigation so that the

parties may ponder over their defaults and terminate the

disputes amicably by mutual agreement instead of fighting it

out in a court of law where it takes years and years to

conclude and in that process the parties lose their “young”

days in chasing their cases in different courts.” The view

taken by the judges in this matter was that the courts would

not encourage such disputes.”

17. Recently, in K. Subba Rao v. The State of Telangana8

, it was also

observed that:-

7. (2012) 10 SCC 741

8. (2018) 14 SCC 452

“6. 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 basis of omnibus allegations unless specific

instances of their involvement in the crime are made out.”

18. The above-mentioned decisions clearly demonstrate that this court

has at numerous instances expressed concern over the misuse of section

498A IPC and the increased tendency of implicating relatives of the

husband in matrimonial disputes, without analysing the long term

ramifications of a trial on the complainant as well as the accused. It is

further manifest from the said judgments that false implication by way of

general omnibus allegations made in the course of matrimonial dispute, if

left unchecked would result in misuse of the process of law. Therefore,

this court by way of its judgments has warned the courts from proceeding

against the relatives and in-laws of the husband when no prima facie case

is made out against them.

19. Coming to the facts of this case, upon a perusal of the contents of

the FIR dated 01.04.19, it is revealed that general allegations are levelled

against the Appellants. The complainant alleged that ‘all accused harassed

her mentally and threatened her of terminating her pregnancy’.

Furthermore, no specific and distinct allegations have been made against

either of the Appellants herein, i.e., none of the Appellants have been

attributed any specific role in furtherance of the general allegations made

against them. This simply leads to a situation wherein one fails to

ascertain the role played by each accused in furtherance of the offence.

The allegations are therefore general and omnibus and can at best be said

to have been made out on account of small skirmishes. Insofar as

husband is concerned, since he has not appealed against the order of the

High court, we have not examined the veracity of allegations made

against him. However, as far as the Appellants are concerned, the

allegations made against them being general and omnibus, do not warrant

prosecution.

20. Furthermore, regarding similar allegations of harassment and

demand for car as dowry made in a previous FIR. Respondent No. 1 i.e.,

the State of Bihar, contends that the present FIR pertained to offences

committed in the year 2019, after assurance was given by the husband

Md. Ikram before the Ld. Principal Judge Purnea, to not harass the

Respondent wife herein for dowry, and treat her properly. However,

despite the assurances, all accused continued their demands and

harassment. It is thereby contended that the acts constitute a fresh cause

of action and therefore the FIR in question herein dated 01.04.19, is

distinct and independent, and cannot be termed as a repetition of an

earlier FIR dated 11.12.17.

21. Here it must be borne in mind that although the two FIRs may

constitute two independent instances, based on separate transactions, the

present complaint fails to establish specific allegations against the in-laws

of the Respondent wife. Allowing prosecution in the absence of clear

allegations against the in-laws Appellants would simply result in an abuse

of the process of law.

22. Therefore, upon consideration of the relevant circumstances and in

the absence of any specific role attributed to the accused appellants, it

would be unjust if the Appellants are forced to go through the tribulations

of a trial, i.e., general and omnibus allegations cannot manifest in a

situation where the relatives of the complainant’s husband are forced to

undergo trial. It has been highlighted by this court in varied instances,

that a criminal trial leading to an eventual acquittal also inflicts severe

scars upon the accused, and such an exercise must therefore be

discouraged.

23. In view of the above facts and discussions, the impugned order

dated 13.11.2019 passed by the High Court of Patna is set aside. The

impugned F.I.R. No. 248 of 2019 against the Appellants under Sections

341, 323, 379, 354, 498A read with Section 34 IPC stands quashed.

24. As a result, appeal stands allowed.

....…..........................J.

(S. ABDUL NAZEER)

…................................J.

(KRISHNA MURARI)

NEW DELHI;

08TH FEBRUARY, 2022

When the doctor evidence and report coroborated the prosecution established case - in the absence of enimity between the doctor and accused - conviction can safely be imposed even though witenss truned hostile by gain over .

When the doctor evidence and report coroborated the prosecution established case - in the absence of enimity between the doctor and accused - conviction can safely be imposed .

Sections 376(2)(i) of IPC and Section 5/6 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as “POCSO 1 Act”), - conviction by trial court and confirmed by High Court -

Apex court

For the question that witensses turned hostile and not supported prosecution :-

Held that Dr. Vandana Sundriyal – PW10, who examined the victim girl on 17.06.2016 and before whom the victim girl narrated the entire incident to her which was recorded in exhibit A6 – medical examination report. As per Dr. Vandana Sundriyal – PW10 who is an independent witness, the victim girl told her that the accused tried to penetrate his finger and therefore she felt pain and irritation in urination as well as she also felt pain in her body. As per PW10 there was redness and swelling around the vagina. Though the other witnesses who seem to have been won over might not have supported the case of the prosecution, we see no reason to doubt the deposition of PW10 Dr. Vandana Sundriyal, who is an independent witness. There are no allegations on behalf of the accused that there was any enmity with Dr. Vandana Sundriyal. Therefore, we are of the opinion that it is safe to convict the accused relying upon the deposition of PW10 Dr. Vandana Sundriyal before whom the victim girl narrated the entire incident which was recorded in the 9 medical examination report namely exhibit A6. Thus, it has been established and proved by the prosecution that the accused took the victim girl away from the house; took her deep into the bushes; disrobed her and removed his clothes as well; penetrated his finger in the vagina, due to which the victim girl felt pain and irritation in urination and he was about to force himself upon her and commit the offence of rape when he was caught red handed.

For the question there was no penatrative sexual assulat :-

held that . As per Section 3 of the Act, a person is said to commit ‘penetrative sexual assault’ if(b) he inserts, to any extent, any object of a part of the body, not being the penis, into the vagina………. Section 4 provides ‘punishment for penetrative sexual assault’. Section 5 of the Act defines ‘aggravated penetrative sexual assault’ and as per Section 5(m) whoever commits penetrative sexual assault on a child below twelve years it is aggravated penetrative sexual assault. Section 6 provides ‘punishment for aggravated penetrative sexual assault.’ In the present case, it has been established and proved that the accused penetrated his finger in the vagina and because of that the victim girl felt pain and irritation in urination as well as pain on her body and there was 11 redness and swelling around the vagina found by the doctor. We are of the opinion that therefore the case would fall under Section 3(b) of the POCSO Act and it can be said to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) the same can be said to be ‘aggravated penetrative sexual assault’ punishable under Section 6 of the POCSO Act. Therefore, both, the Trial Court as well as the High Court have rightly convicted the accused for the offences under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act.

for the question raised to take a lenient view in the matter by considering mitigating circumstances of old age of the accused and to alter the life imprisonment to any other punishment is concerned.

held that It is reported that today the accused is aged 7075 years of age and it is also reported that he is suffering from Tuberculosis (TB). Therefore, considering such mitigating circumstances we are of the opinion that if the life sentence is converted to fifteen years RI and the fine imposed by the Trial Court confirmed by the High Court to be maintained, it can be said to be an adequate punishment commensurate with the offence committed by the accused.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.144 OF 2022

Nawabuddin ..Appellant(S)

Versus

State of Uttarakhand ..Respondent(S)

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 22.08.2019 passed by the High

Court of Uttarakhand at Nainital in Criminal Appeal No.

280 of 2018 by which the High Court has dismissed the

said appeal preferred by the accused – appellant herein

and has confirmed the conviction of the accused for the

offences punishable under Sections 376(2)(i) of IPC and

Section 5/6 of the Protection of Children From Sexual

Offences Act, 2012 (hereinafter referred to as “POCSO

Act”), the original accused has preferred the present

appeal.

2. That as per the case of the prosecution on 17.06.2016 at

about 5:00 pm, the first informant (PW1) had gone to

fetch water and her husband was out for work. At that

time, her daughter (victim girl) aged four years was all

alone in the house. The accused – appellant herein who

was a neighbour of PW1, enticed and took the victim girl

in the bushes to rape her. However, at that time the

accused was spotted by some persons naked in the

process of raping the victim girl. The accused and the

victim girl were disrobed. The people who had gathered

around caught the accused red handed and handed him

over to the police. That a first information report was

lodged by PW1 – mother of the victim girl for the offences

punishable under Sections 376 read with 511 of IPC and

Section 3/4 of the POCSO Act. The victim girl was

medically examined by PW10 – Dr. Vandana Sundriyal on

17.06.2016. During the course of investigation the

statement of the victim girl as well as the witnesses were

recorded. After conclusion of the investigation the

investigating officer filed the chargesheet against the

accused for the offences punishable under Section 376(2)

(F) of IPC and Section 3/4 of the POCSO Act. The charges

were framed against the accused for the offences

punishable under Section 376(2)(i) of IPC and Section 5/6

of the POCSO Act. The accused denied the charges and

claimed to be tried. Therefore, he was tried by the learned

Special Judge (POCSO Act) for the aforesaid offences.

2.1 To prove the charges against the accused and to prove the

case, the prosecution examined as many as thirteen

witnesses including PW1 – mother of the victim girl and

PW10 – Dr. Vandana Sundriyal who examined the victim

girl on 17.06.2016. After closure of the prosecution

evidence, statement of the accused under Section 313 of

Cr.PC was recorded. His case was of total denial. On

appreciation of evidence and more particularly relying

upon the deposition of PW10 Dr. Vandana Sundriyal

before whom the victim girl narrated the entire incident,

the Trial Court held the accused guilty for the offences

punishable under Section 376(2)(i) of IPC and Section 6 of

the POCSO Act, 2012. The Trial Court sentenced the

accused to undergo life imprisonment and also directed to

pay monetary fine of Rs.50,000/. The Trial Court also

passed an order that out of the amount of fine of

Rs.50,000/, Rs.30,000/ shall be paid to the victim girl as

compensation.

3. Feeling aggrieved and dissatisfied with the impugned

judgment and order of conviction and sentence passed by

the learned Trial Court/Special Judge (POCSO Act), the

accused preferred an appeal before the High Court. Before

the High Court, amongst other grounds, one of the

grounds was that the case would not fall under Section

5/6 of the POCSO Act and at the most the case may fall

under Section 7/8 of the POCSO Act as there was no

penetration and at the most and even as per the case of

the prosecution the accused had tried to commit the rape.

By the detailed impugned judgment and order, the High

Court has dismissed the said appeal and has confirmed

the conviction of the accused and the sentence of life

imprisonment. Feeling aggrieved and dissatisfied with the

impugned judgment and order passed by the High Court,

the accused has preferred the present appeal.

4. Shri Saju Jacob, learned counsel appearing on behalf of

the accused – appellant has vehemently submitted that in

the facts and circumstances of the case the High Court

has committed a grave error in dismissing the appeal and

confirming the judgment and order of conviction passed by

the learned Trial Court convicting the accused for the

offences punishable under Section 5/6 of the POCSO Act.

4.1 It is submitted that in fact the witnesses have not

supported the case of the prosecution. It is submitted that

the accused could not have been convicted on the sole

testimony of PW10 Dr. Vandana Sundriyal.

4.2 It is further submitted by learned counsel appearing on

behalf of the accused that even in the present case so

called recording of the incident in the mobile has not been

established and proved by the prosecution by leading any

cogent evidence.

4.3 It is further submitted by learned counsel appearing on

behalf of the accused that even as per the prosecution

case, it was only an attempt of aggravated sexual assault.

It is submitted that in absence of penetration and

aggravated penetrative sexual assault, the appellant could

not have been convicted for the offences punishable under

Section 5/6 of the POCSO Act.

4.4 It is vehemently contended by learned counsel appearing

on behalf of the accused that even considering the

prosecution case as it is, at the most the case would fall

under sexual assault punishable under Section 8 of the

POCSO Act. It is urged that in any case the case would not

fall under aggravated penetrative sexual assault.

4.5 In the alternative, it is submitted by learned counsel

appearing on behalf of the accused that at the time of the

alleged incident accused was aged approximately 65 years

of age and as on today he is 75 years of age. It is

submitted that as per Section 6 of the POCSO Act as it

stood on the date of incident the minimum sentence

provided was ten years but which may extend to

imprisonment for life. It is therefore submitted that

imposing life sentence is too harsh and disproportionate to

the offence committed. Therefore, it is prayed to impose a

lesser punishment than the life imprisonment.

5. Shri Krishnam Mishara, learned counsel appearing on

behalf of the State of Uttarakhand, while opposing the

present appeal has vehemently submitted that in the

present case as such the prosecution has proved the case

beyond doubt. It is submitted that PW10 Dr. Vandana

Sundriyal who is an independent witness has fully

supported the case of the prosecution.

5.1 It is further contended by learned counsel appearing on

behalf of the State that this is a case of penetrative sexual

assault as defined under Section 3(b) of the POCSO Act. It

is submitted that as per Section 5(m) whoever commits

penetrative sexual assault on a child below twelve years, it

can be said to be an aggravated penetrative sexual assault

punishable under Section 6 of the POCSO Act.

5.2 It is urged by learned counsel appearing on behalf of the

State that the accused in the present case was a neighbour

of the victim girl; he misused his position as a neighbour

and tried to penetrate his finger and then tried to commit

rape on the minor girl. However, before he could succeed

in committing rape, he was caught red handed by the local

persons. It is submitted that the entire incident was

narrated by the victim girl to Dr. Vandana Sundriyal – PW10. It is therefore submitted that when the accused

misused his position as a neighbour and committed the

offence under the POCSO Act upon a girl aged four years

and looking to the object and purpose for which the

POCSO Act has been enacted, no leniency should be

shown to the accused. It is submitted that in the facts and

circumstances of the case the accused does not deserve

any sympathy or any leniency.

5.3 Making the above submissions it is prayed to dismiss the

present appeal.

6. We have heard the learned counsel appearing on behalf of

the respective parties at length.

7. At the outset it is required to be noted that there are

concurrent findings recorded by both the Courts below,

recorded on appreciation of evidence on record to the effect

that the accused tried to commit the offence of rape on the

victim girl aged four years. It has been established and

proved by the prosecution that the victim girl was lured by

the appellant – accused; she was taken to the bushes;

accused removed his own clothes as well as the clothes of

the victim girl and fondled her private parts and

penetrated his finger into the vagina of the victim girl. The

same is fully supported by Dr. Vandana Sundriyal – PW10, who examined the victim girl on 17.06.2016 and before

whom the victim girl narrated the entire incident to her

which was recorded in exhibit A6 – medical examination

report. As per Dr. Vandana Sundriyal – PW10 who is an

independent witness, the victim girl told her that the

accused tried to penetrate his finger and therefore she felt

pain and irritation in urination as well as she also felt pain

in her body. As per PW10 there was redness and swelling

around the vagina. Though the other witnesses who seem

to have been won over might not have supported the case

of the prosecution, we see no reason to doubt the

deposition of PW10 Dr. Vandana Sundriyal, who is an

independent witness. There are no allegations on behalf of

the accused that there was any enmity with Dr. Vandana

Sundriyal. Therefore, we are of the opinion that it is safe to

convict the accused relying upon the deposition of PW10

Dr. Vandana Sundriyal before whom the victim girl

narrated the entire incident which was recorded in the

medical examination report namely exhibit A6. Thus, it

has been established and proved by the prosecution that

the accused took the victim girl away from the house; took

her deep into the bushes; disrobed her and removed his

clothes as well; penetrated his finger in the vagina, due to

which the victim girl felt pain and irritation in urination

and he was about to force himself upon her and commit

the offence of rape when he was caught red handed.

7.1 Now the next question which is posed for the consideration

of this Court is, what offence the accused had committed.

The Trial Court convicted the accused for the offences

punishable under Sections 376(2)(i) of IPC and Section 5/6

of the POCSO Act. It is the case on behalf of the accused

that at the most it can be said to be an attempt to commit

penetrative sexual assault and therefore at the most it can

be said to be the case of sexual assault under Section 7 of

the POCSO Act punishable under Section 8 of the POCSO

Act. Therefore, it is the case on behalf of the accused that

as it is neither a case of penetrative sexual assault nor

aggravated penetrative sexual assault, therefore the

punishment of life imprisonment imposed was not

warranted and at the highest he could have been punished

with imprisonment of either description for a term which

shall not be less than three years but which may extend to

five years, and shall also be liable to fine.

8. While appreciating the aforesaid submissions the relevant

provisions of the POCSO Act are required to be referred to

and considered. Section 3 of the POCSO Act defines

‘penetrative sexual assault’. As per Section 3 of the Act, a

person is said to commit ‘penetrative sexual assault’ if(b)

he inserts, to any extent, any object of a part of the body,

not being the penis, into the vagina………. Section 4

provides ‘punishment for penetrative sexual assault’.

Section 5 of the Act defines ‘aggravated penetrative sexual

assault’ and as per Section 5(m) whoever commits

penetrative sexual assault on a child below twelve years it

is aggravated penetrative sexual assault. Section 6

provides ‘punishment for aggravated penetrative sexual

assault.’ In the present case, it has been established and

proved that the accused penetrated his finger in the vagina

and because of that the victim girl felt pain and irritation

in urination as well as pain on her body and there was

redness and swelling around the vagina found by the

doctor. We are of the opinion that therefore the case would

fall under Section 3(b) of the POCSO Act and it can be said

to be penetrative sexual assault and considering Section

5(m) of the POCSO Act as such penetrative sexual assault

was committed on a girl child aged four years (below twelve

years) the same can be said to be ‘aggravated penetrative

sexual assault’ punishable under Section 6 of the POCSO

Act. Therefore, both, the Trial Court as well as the High

Court have rightly convicted the accused for the offences

under Section 5 of the POCSO Act punishable under

Section 6 of the POCSO Act.

9. Now in so far as the prayer on behalf of the accused –

appellant herein to take a lenient view in the matter by

considering mitigating circumstances of old age of the

accused and to alter the life imprisonment to any other

punishment is concerned, the same has to be considered

in light of the object and purpose of enactment of the

POCSO Act.

9.1 In the case of Eera Vs. State (NCT of Delhi), (2017) 15

SCC 133, this Court has observed on the Statement and

Objects and Reasons of POCSO Act in para 20 as under:

“20. The purpose of referring to the Statement of

Objects and Reasons and the Preamble of

the Pocso Act is to appreciate that the very purpose of

bringing a legislation of the present nature is to

protect the children from the sexual assault,

harassment and exploitation, and to secure the best

interest of the child. On an avid and diligent

discernment of the Preamble, it is manifest that it

recognises the necessity of the right to privacy and

confidentiality of a child to be protected and respected

by every person by all means and through all stages of

a judicial process involving the child. Best interest and

wellbeing are regarded as being of paramount

importance at every stage to ensure the healthy

physical, emotional, intellectual and social

development of the child. There is also a stipulation

that sexual exploitation and sexual abuse are heinous

offences and need to be effectively addressed. The

Statement of Objects and Reasons provides regard

being had to the constitutional mandate, to direct its

policy towards securing that the tender age of children

is not abused and their childhood is protected against

exploitation and they are given facilities to develop in a

healthy manner and in conditions of freedom and

dignity. There is also a mention which is quite

significant that interest of the child, both as a victim

as well as a witness, needs to be protected. The stress

is on providing childfriendly procedure. Dignity of the

child has been laid immense emphasis in the scheme

of legislation. Protection and interest occupy the

seminal place in the text of the Pocso Act.”

9.2 In the case of Alakh Alok Srivastava Vs. Union of India

& Ors. (2018) 17 SCC 291, in para 14 and 20, it is

observed as under:

“14. At the very outset, it has to be stated with

authority that the Pocso Act is a gender neutral

legislation. This Act has been divided into various

chapters and parts therein. Chapter II of the Act titled

“Sexual Offences Against Children” is segregated into

five parts. Part A of the said Chapter contains two

sections, namely, Section 3 and Section 4. Section 3

defines the offence of “Penetrative Sexual Assault”

whereas Section 4 lays down the punishment for the

said offence. Likewise, Part B of the said Chapter

titled “Aggravated Penetrative Sexual Assault and

Punishment therefor” contains two sections, namely,

Section 5 and Section 6. The various subsections of

Section 5 copiously deal with various situations,

circumstances and categories of persons where the

offence of penetrative sexual assault would take the

character of the offence of aggravated penetrative

sexual assault. Section 5(k), in particular, while laying

emphasis on the mental stability of a child stipulates

that where an offender commits penetrative sexual

assault on a child, by taking advantage of the child's

mental or physical disability, it shall amount to an

offence of aggravated penetrative sexual assault.”

“20. Speaking about the child, a threeJudge Bench

in M.C. Mehta v. State of T.N. (1996) 6 SCC 756

“1. … “child is the father of man”. To enable

fathering of a valiant and vibrant man, the child must

be groomed well in the formative years of his life. He

must receive education, acquire knowledge of man

and materials and blossom in such an atmosphere

that on reaching age, he is found to be a man with a

mission, a man who matters so far as the society is

concerned.”

9.3 As it can be seen from the Statement of objects and

reasons of the POCSO Act since the sexual offences

against children were not adequately addressed by the

existing laws and a large number of such offences were

neither specifically provided for nor were they adequately

penalised, the POCSO Act has been enacted to protect the

children from the offences of sexual assault, sexual

harassment and pornography and to provide for

establishment of special courts for trial of such offences

and for matters connected therewith and incidental

thereto.

9.4 At this stage, it is required to be noted that the POCSO Act

has been enacted keeping in mind Article 15 and 39 of the

Constitution of India. Article 15 of the Constitution, inter

alia, confers upon the State powers to make special

provision for children. Article 39, inter alia, provides that

the State shall in particular direct its policy towards

securing that the tender age of children are not abused

and their childhood and youth are protected against

exploitation and they are given facilities to develop in a

healthy manner and in conditions of freedom and dignity.

To achieve the goal as per Article 15 and 39 of the

Constitution, the legislature has enacted the Protection of

Children from Sexual Offences Act, 2012.

9.5 As noted in the Statement of objects and reasons, as per

the United Nations Convention on the Rights of Children,

to which India is a signatory to the treaty, the State Parties

to undertake all appropriate national, bilateral and

multilateral measures to prevent (a) the inducement or

coercion of a child to engage in any unlawful sexual

activity; (b) the exploitative use of children in prostitution

or other unlawful sexual practices; and (c) the exploitative

use of children in pornographic performances and

materials.

Article 19 of the Convention states the following:

1. States Parties shall take all appropriate

legislative, administrative, social and

educational measures to protect the child from

all form/s of physical or mental violence, injury

or abuse, neglect or negligent treatment,

maltreatment or exploitation, including sexual

abuse, while in the care of parent(s), legal

guardian(s) or any other person who has the

care of the child.

2. Such protective measures should, as

appropriate, include effective procedures for the

establishment of social programmes to provide

necessary support for the child and for those

who have the care of the child, as well as for

other forms of prevention and for identification,

reporting, referral, investigation, treatment and

followup of instances of child maltreatment

described heretofore, and, as appropriate, for

judicial involvement.

The general comment No.13 on the Convention

specifically dealt with the right of the child to freedom from

all forms of violence and it has observed that “no violence

against children is justifiable; all violence against children

is preventable”

10. Keeping in mind the aforesaid objects and to achieve what

has been provided under Article 15 and 39 of the

Constitution to protect children from the offences of sexual

assault, sexual harassment, the POCSO Act, 2012 has

been enacted. Any act of sexual assault or sexual

harassment to the children should be viewed very

seriously and all such offences of sexual assault, sexual

harassment on the children have to be dealt with in a

stringent manner and no leniency should be shown to a

person who has committed the offence under the POCSO

Act. By awarding a suitable punishment commensurate

with the act of sexual assault, sexual harassment, a

message must be conveyed to the society at large that, if

anybody commits any offence under the POCSO Act of

sexual assault, sexual harassment or use of children for

pornographic purposes they shall be punished suitably

and no leniency shall be shown to them. Cases of sexual

assault or sexual harassment on the children are

instances of perverse lust for sex where even innocent

children are not spared in pursuit of such debased sexual

pleasure.

Children are precious human resources of our country;

they are the country’s future. The hope of tomorrow rests

on them. But unfortunately, in our country, a girl child is

in a very vulnerable position. There are different modes of

her exploitation, including sexual assault and/or sexual

abuse. In our view, exploitation of children in such a

manner is a crime against humanity and the society.

Therefore, the children and more particularly the girl child

deserve full protection and need greater care and

protection whether in the urban or rural areas. As

observed and held by this Court in the case of State of

Rajasthan Vs. Om Prakash, (2002) 5 SCC 745, children

need special care and protection and, in such cases,

responsibility on the shoulders of the Courts is more

onerous so as to provide proper legal protection to these

children. In the case of Nipun Saxena v. Union of India,

(2019) 2 SCC 703, it is observed by this Court that a minor

who is subjected to sexual abuse needs to be protected

even more than a major victim because a major victim

being an adult may still be able to withstand the social

ostracization and mental harassment meted out by society,

but a minor victim will find it difficult to do so. Most

crimes against minor victims are not even reported as very

often, the perpetrator of the crime is a member of the

family of the victim or a close friend. Therefore, the child

needs extra protection. Therefore, no leniency can be

shown to an accused who has committed the offences

under the POCSO Act, 2012 and particularly when the

same is proved by adequate evidence before a court of law.

10.1 In the present case it is to be noted that the accused was

aged approximately 65 years of age at the time of

commission of offence. He was a neighbour of the victim

girl. He took advantage of the absence of her parents,

when her mother went to fetch water and her father had

gone to work. He is found to have committed aggravated

penetrative sexual assault (as observed hereinabove) on a

girl child aged four years, which demonstrates the mental

state or mindset of the accused. As a neighbour, in fact, it

was the duty of the accused to protect the victim girl when

alone rather than exploiting her innocence and

vulnerability. The victim was barely a four years girl. The

accused – appellant was the neighbour. The accused

instead of showing fatherly love, affection and protection to

the child against the evils of the society, rather made her

the victim of lust. It is a case where trust has been

betrayed and social values are impaired. Therefore, the

accused as such does not deserve any sympathy and/or

any leniency.

However, the punishment provided for the offence

under Section 6, as it stood prior to its amendment and at

the time of commission of the offence in the instant case

for aggravated penetrative sexual assault was rigours

imprisonment for a term which shall not be less than ten

years but which may extend to imprisonment for life and

shall also be liable to fine. Now as per the amended

Section 6 with effect from 16.08.2019, the minimum

punishment provided is twenty years and which may

extend to imprisonment for life, which shall mean

imprisonment for the remainder of natural life of that

person, and shall also be liable to fine, or with death.

Therefore, at the relevant time the minimum punishment

provided for the offence under Section 6 of the POCSO Act,

2012 was ten years RI and which may extend to

imprisonment for life. It is reported that today the accused

is aged 7075 years of age and it is also reported that he is

suffering from Tuberculosis (TB). Therefore, considering

such mitigating circumstances we are of the opinion that if

the life sentence is converted to fifteen years RI and the

fine imposed by the Trial Court confirmed by the High

Court to be maintained, it can be said to be an adequate

punishment commensurate with the offence committed by

the accused.

11. In view of the above discussion the impugned judgment

and order passed by the High Court and the learned

Special Court convicting the accused for the offences

punishable under Sections 376(2)(i) of IPC and Section 5 of

the POCSO Act and imposing the punishment under

Section 6 of the POCSO Act is hereby upheld. The accused

is rightly held guilty for the aforesaid offences. However,

for the reasons assigned hereinabove the sentence of life

imprisonment is converted to that of fifteen (15) years RI

with fine/compensation imposed by the Trial Court

confirmed by the High Court. Now the accused shall

undergo fifteen (15) years RI with fine imposed by the Trial

Court confirmed by the High Court for the aforesaid

offences instead of life imprisonment. The present appeal

is partly allowed to the aforesaid extent only.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(B.V. NAGARATHNA)

New Delhi,

February, 08th 2022

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, February 11, 2022

Tuesday, February 8, 2022

whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed?

When the doctor evidence and report coroborated the prosecution established case - in the absence of enimity between the doctor and accused - conviction can safely be imposed even though witenss truned hostile by gain over .