No maintenance to divorced wife - Panditrao Chimaji Kalure Vs. Gayabai Panditrao Kalure

                                                       In the High Court of Bombay

Panditrao Chimaji Kalure

Versus

Gayabai Panditrao Kalure

Date: 27 February, 2001

Bench: S Radhakrishnan

JUDGMENT
1. The brief facts are that the appellant in Second Appeal No. 88/1984 viz. Gayabai w/o Panditrao Kalure (original plaintiff) had claimed that she was a legally wedded wife of Panditrao Chimajj Kalure (original defendant). Gayabai had filed a Regular Civil Suit No. 193/1969 for grant of maintenance from Panditrao Chimaji Kalure and also claimed maintenance for the previous three years. In the said Regular Civil Suit, Gayabai had contended that they have been married for 11 years an4 that she has been living with her husband for a period of five years and eight months. In the year 1963, Panditrao Kalure had obtained a job as a teacher and he had declined to take her with him at the place of service at village Bhogalwadi. Gayabai had alleged that Panditrao Kalure, had ill-treated her. It appears that said Gayabai had also filed an application for maintenance under Section 488 of Criminal Procedure Code. In the said proceedings Panditrao Kalure had produced a Divorce Deed, mentioning that the said marriage was mutually dissolved between the parties by consent on 5/5/1967. The Criminal Court had accepted the said Divorce Deed and had rejected the application of Gayabai for maintenance, in the aforesaid suit, Gayabai had contended that she had never given such a divorce and there, was no customary practice in her community to enter into any such Divorce Deed and also contended that the said Divorce Deed was a false and fabricated document, as such, same ought to be declared as null and void.

2. The main contention of Gayabai was that her husband was not maintaining her and that she was being maintained by her parents. She had also alleged that Panditrao Kalure receives a monthly salary of Rs. 200/- and that he is a member of a joint family which owns 45 acres of land and out of which 10 acres are irrigated land. Under these circumstances, Gayabai had claimed Rs. 100/- p.m. as maintenance and Rs. 3,600/- as past maintenance. She had also prayed for a declaration that the Divorce Deed dated 5/5/1967 to be declared null and void, being a false and fabricated document. She had also sought a declaration that she is a legally wedded wife of Panditrao Kalure.

3. The defendant Panditrao Kalure had filed his Written Statement contending that as per the prevailing custom, he had divorced his wife Gayabai by executing Divorce Deed on 5/5/1967. He had also contended that the marriage had taken place almost 15 years back when both of them were minors. He had strongly disputed that Gayabai was residing with him for five years and eight months, On the contrary, he had contended that Gayabai hardly resided with him for a period of two years or so after their marriage. Panditrao Kalure had strongly disputed that he had ever ill-treated Gayabai and he had strongly denied that he had ever deserted her and driven her out of the house.

4. Panditrao Kalure had contended that Gayabai very rarely came to his house at Ramwadi while the marriage was subsisting and in fact, her brother and other person used to bring her and she would not come on her own and she was very unwilling to come to the residence of Panditrao Kalure. Even the parents of Gayabai were not willing to send her, when Panditrao Kalure was living at Ramwadi, In view of this behaviour of Gayabai, finally, Gayabai and her parents had decided to take a divorce from Panditrao Kalure. The defendant Panditrao Kalure had contended that accordingly a special messenger by name Ramrao s/o Danreddy, r/o Yellamwadi was sent seeking a divorce from the defendant. Panditrao had contended that the Divorce Deed in favour of Panditrao Kalure was scribed by the brother of Gayabai viz. Ramrao Narsingrao Tandre and the said Divorce Deed was also attested by some witnesses. Panditrao Kalure contends that the Divorce Deed was executed as per the existing and prevailing custom in their community.

5. The trial Court, after hearing the panics had held that the plaintiff Gayabai had proved ill-treatment and also had proved that Panditrao Kalure had neglected and refused to maintain her. Accordingly, the trial Court had held that Gayabai was entitled to receive maintenance @ Rs. 60/- p.m. and also had granted, past maintenance for a period of three years.

6. Panditrao being aggrieved by the order of the trial Court, filed a Regular Civil Appeal No. 88/1975 in the Court of District Judge, Beed. The learned District Judge, Beed, had allowed the appeal and remanded the matter to the trial Court for a decision on an important issue, as to whether the marriage between the parties was subsisting on the date of filing of the suit and if the Deed of Divorce, produced by the appellant Panditrao Kalure was held to be proved, the relationship of husband and wife between the parties would come to an end and consequently, Gayabai would not be entitled to claim any maintenance. Thereafter, the plaintiff Gayabai had preferred an appeal against the said order of the District Judge, Beed, in Regular Civil Appeal No. 88/1975, before this Court in Appeal No. 205/1978. This Court, after upholding the order of remand of the District Court, Beed, directed the trial Court to record the evidence of the finger print expert and send the matter to the lower Appellate Court for its consideration. The trial Court had recorded the evidence of the finger print expert and had sent the same to the District Court. Under these circumstances, the lower Appellate Court viz. the District Judge, Beed, took up this matter and had framed the following points:--
(1) Does the Defendant prove that there was a divorce between the parties ?
(2) Does the Plaintiff prove that she was ill-treated and driven out by the defendant and that he has neglected or refused to maintain her ?
(3) Is she entitled for maintenance and if so, what should be the quantum ?
(4) If yes, whether she is entitled for back maintenance ?
(5) What orders ?
The learned District Judge, Deed, has answered first point in affirmative, second point in negative and so far as the third point is concerned, it was held that the Plaintiff Gayabai was entitled to receive maintenance and that she would be entitled to get Rs. 60/- p.m. by way of maintenance. So far as point no. 4 is concerned, the learned District Judge, Beed, has held that the Plaintiff Gayabai was not entitled for any back maintenance.

7. The learned District judge, after the aforesaid remand and the evidence of the finger print expert Shri A.N. Mujumdar, by a detailed examination of the same, by a cogent and proper reasoning, came to a conclusion that the thumb impression on the said document i.e. Divorce Deed was that of Gayabai. Accordingly, the finding was that the defendant Panditrao Kalure had proved the thumb impression on the Divorce Deed (Exh. 50) was that of Gayabai, accordingly there was a divorce between the parties as per the customary practice.

8. It appears that there was a contention raised by the learned counsel appearing for Gayabai that the said thumb impression on the Divorce Deed (Exh. 50) was not a voluntary one. The learned District Judge holds that all throughout Gayabai had contended that her brother had not obtained her thumb impression, whereas, it was sought to be argued that the thumb impression was not a voluntary one, which contention was rejected as the same was totally contradictory to each other, in the sense, if the case of Gayabai was that she had never given her thumb impression on the said Divorce Deed, then there was no question of her thumb impression being not a voluntary thumb impression. Ultimately, the learned District Judge, upholds the contention of Panditrao Kalure that the Divorce Deed was executed and Gayabai had affixed her thumb impression on the same.

9. The learned District Judge has, after appreciating all the evidence on record, came to the conclusion that Gayabai had failed to prove that her husband Panditrao Kalure was ill-treating her or that he had deserted or neglected her. On the contrary, the learned District Judge holds that Gayabai had agreed to a divorce on her own and that there was no ill-treatment. Finally, the learned District Judge holds that the Divorce Deed between Gayabai and Panditrao Kalure was established and proved.

10. The learned District Judge, thereafter, went into the issue of grant of maintenance. The learned District Judge after referring to the provisions of Section 25 of Hindu Marriage Act, 1955 as well as Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and also a judgment of this Court in the case of Govindrao Ranoji Musale v. Anandibai Govindrao Musale and Anr., 1977 Mh.LJ. 144 and also ,another judgment of this Court in the case of Smt. Rajeshbai and Ors. v. Smt. Shantabai, ; holds that in view of Section 25 of the Hindu Marriage Act, 1955 and in view of the provisions of Section 151 of Code of Civil Procedure, the Court had the right to grant maintenance, that is to say, the learned Judge had considered aforesaid judgments and had concluded that the petition for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 can be considered even under Section 25 of the Hindu Marriage Act, 1955 for grant of maintenance. To put in other words, the learned District Judge is of the view that even if Gayabai is held to be divorced, she is still entitled to claim maintenance, in view of Section 25 of Hindu Marriage Act, 1955 r/w Section 151 of Code of Civil Procedure. Accordingly, the lower Appellate Court had allowed the appeal filed by Gayabai and had directed Panditrao Kalure to pay Rs. 60/- p.m. from the date of institution of the suit. However, that part of the order of the trial Court, wherein, it was held that Gayabai was entitled to recover the back maintenance for the last three years, was set aside.

11. Aggrieved thereby, Panditrao had filed a Second Appeal No. 73/1984, before this Court challenging the direction of the lower Appellate Court, directing Panditrao to pay Rs. 60/- p.m. from the date of institution of the suit.

12. Gayabai had also filed a separate Second Appeal No. 88/1984, before this Court challenging the findings, mainly the finding given by the lower Appellate Court, to the effect that Panditrao Kalure had divorced Gayabai. The contention of Gayabai is that there was no divorce between Gayabai and Panditrao Kalure and (hat she had not executed the Divorce Deed at all and also that there was no customary divorce in their community.

13. Mr. Milind Patil, learned counsel, appearing for Panditrao Kalure appellant in Second Appeal No. 73/1984 has raised the following substantial questions of law viz.
(1) Once if the Court holds that there has been a divorce between husband and wife, whether a Court can grant maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956; and (2) Even assuming under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, a divorced wife could seek maintenance, in this case, when it is clearly established that Gayabai could not prove the necessary conditions, as contemplated under Section 18(2) (a) or (b) or (g) of the said Act, can the lower Court still grant such a maintenance?

14. Mr. N.H. Patil, learned counsel appearing for Gayabai appellant in Second Appeal No. 88/1984, had referred a judgment of this Court in the case of Govindrao Ranoji Musale (supra). It is pertinent to note that in that case the marriage was subsisting. The provisions of Section 18 of the Hindu Adoptions and Maintenance Act of 1956 as well as Section 25 of Hindu Marriage Act, 1955 were analyzed in depth and the Court has come to a conclusion that there was no inconsistency between both the provisions. In the said judgment, this Court has held that as far as maintenance under Section 18 of Hindu Adoptions and Maintenance Act, 1956 is concerned, the marriage has to be subsisting. On the contrary, under Section 25 of the Hindu Marriage Act, 1955, the power of the Court to grant maintenance is when the Court is exercising its jurisdiction under the Hindu Marriage Act, 1955 either at the time of passing of any decree under the said Act or at any time subsequent thereof, it can grant maintenance. Therefore, the view is that Section 25 of the Hindu Marriage Act, 1955 can come into play only in proceedings under Hindu Marriage Act, 1955 are filed and not otherwise.

15. Mr. Milind Patil, learned counsel, also referred to and relied upon a judgment of this Court in the case of Smt. Rajeshbai (supra). In this case, the claim of the wife was that the marriage itself was void under Hindu Marriage Act, 1955 and that she was entitled to claim maintenance out of the assets of her deceased husband. Here again, it is pertinent to note that the petition was filed, under Hindu Marriage Act, 1955 seeking a declaration that the marriage itself was void and also for maintenance, that is to say it was again a petition under Hindu Marriage Act, 1955. Shri Milind Patil, therefore, strongly contended that Hindu Marriage Act, 1955 operates on a different level and Hindu Adoptions and Maintenance Act, 1956, operates in a different sphere. Essential difference, as pointed out by Mr. Milind Patil, is that as far as maintenance under Hindu Adoptions and Maintenance Act, 1956 is concerned, the marriage has to be a subsisting one and the wording of Section 18 Hindu Adoptions and Maintenance Act, 1956 itself makes it abundantly clear that the marriage has to be a subsisting one and not in the case of a divorcee. On the contrary, in any proceedings, filed under Hindu Marriage Act, 1955, Court is empowered to grant interim maintenance (pendente lite) under Section 24 of the said Act or permanent maintenance under Section 25 of the Hindu Marriage Act, 1955. Therefore, Mr, Milind Patil, learned counsel, very strongly contends that once the Court, having given a categorical finding that a divorce had taken place between Panditrao and Gayabai, the Court could not, thereafter, exercise any powers and grant maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and there is no question of exercising the inherent powers under Section 151 of Code of Civil Procedure, 1908, which has no application whatsoever, and the same is a procedural power.

16. Mr. Milind Patil, learned counsel, further contends that Section 151 of Code of Civil Procedure, 1908, can only be exercised if there is some lacunae in. the Code of Civil Procedure and/to render justice, Court may resort to Section 151 of Code of Civil Procedure. But Section 151 of Code of Civil Procedure cannot be resorted to fill in any other lacunae or lack of any provision, in, Hindu Marriage Act, 1955.

17. Under these circumstances, Mr. Milind Patil, learned counsel, contend that the lower Appellate Court has completely misapplied the law and misconstrued the legal provisions, especially, in view of the finding that there has been a divorce between Panditrao Kalure and Gayabai, the Court could not have granted any maintenance in favour of Gayabai in a proceedings under Hindu Adoption and Maintenance Act, 1956.

18. Mr. N.H. Patil, learned counsel for Gayabai brought to my notice a Judgment of the Apex Court in the case of Chand Dhawan v. Jawaharlal Dhawan, 1993 Mh.L.J. 1731. In this judgment, in paragraph No. 25, the Apex Court has very categorically held that by Court's intervention under the Hindu Marriage Act, affecting or disrupting the marital status has come about, at that juncture, while passing the decree, undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. The Apex Court has further held that without affectation or disruption of the marital Status, a Hindu wife sustaining that status can live in separation from her husband and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956. The Apex Court in very clear and unambiguous terms has held that the Court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in a proceedings under the other. The Apex Court also has held that as is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as tp destroy the distinction of the subject of maintenance. Mr. N.H. Patil, learned counsel, very fairly conceded that the aforesaid judgment of the Apex Court in Chand Dhawan's case (supra) very squarely covers the case of Panditrao Kalure.

19. Mr. N.H. Patil, learned counsel, also referred to and relied on a judgment of Gujarat High Court in the case of Chand Dhawan v. Jawaharlal Dhawan, 1993 Mh.L.J. 1731Vihalal Mangaldas Patel v. Smt. Maniben Vihalal Patel, of the said judgment, it is held that even a divorced wife can claim maintenance under Hindu Adoptions arid Maintenance Act, 1956. The learned Single Judge of the Guajarat High Court has concluded that even a divorced wife can claim maintenance under Hindu Adoptions and Maintenance Act. However, it may be noted here that in that case it was not brought to the notice of the learned Single Judge of the Gujarat High Court, the aforesaid judgment of the Apex Court in the case of Chand Dhawan (supra). In view of the very categorical ruling on the interpretation of Hindu Adoptions and Maintenance Act and Hindu Marriage Act, 1955 by the Apex Court, the judgment of the Gujarat High Court in the case of Vihalal Mangaldas Patel (supra) holding that even a divorced wife can claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, is per incuriam and cannot be sustained in law,

20. Mr. N.H. Patil, learned counsel, thereafter, contended that the customary divorce, as sought to be alleged by Panditrao Kalure, was really not prayed. On a perusal of the reasoning of the lower Appellate Court, it is vital to note that the very deed was scribed by the brother of Gayabai and a number of instances pf customary divorce have also been given. It is pertinent to note that Gayabai has never taken a stand that she was forced, by fraud or coercion, to put her thumb impression, on the Divorce Deed. What was contended by Gayabai was that she had never put her thumb impression on the said Divorce Deed, whereas, by a detailed analysis, the lower Appellate Court has analyzed evidence pf the finger print expert, holding that Panditrao Kalure has been able to establish that the thumb impression on the said Divorce Deed was that pf Gayabai and in view of the customary divorce prevailing in that community, the Court had also come to the conclusion that Panditrao Kalure was able to establish that there was a customary divorce between Panditrao Kalure and Gayabai.

21. Mr. N.H. Patil, learned counsel, also relied upon a judgment of this Court in the case of Nemichand v. Basantabai, 1994 Mh.LJ. 1078, In this case, there was no independent evidence pf customary divorce at all produced by the plaintiff and as such, this Court was, of the view that the plaintiff had failed to prove that there was any customary divorce. On the contrary, in the present case a number of witnesses have been examined and a number pf customary divorces which had taken place in the said community, were also adduced to in the evidence.

22. Shri N.H. Patil, learned counsel, finally referred the another judgment of this Court in the case of Damyanti (Smt) Kirit Jani v. Kirit Lalubhai Jani, 1993 Mh.LJ. 752. This judgment deals with the provisions of Hindu Marriage Act, 1955, Sections 13-B(2) and 23(l)(bb) i.e. divorce by mutual consent, wherein, duty is cast on the Court to examine the parties and to be satisfied that the consent of the parties was not obtained by fraud or undue influence. I am afraid that this judgment will not be of any help to Mr. N.H. Patil, inasmuch as, this is not a case of parties approaching for a decree of divorce with mutual consent, whereas, the contention of Panditrao Kalure is that as per the custom prevailing in their community, Divorce Deed was executed and divorce had taken place. There is no duty cast on the Court, with regard to the customary divorce, as in the case of the divorce being granted by the Court under the aforesaid provisions. This judgment will have no application in the instant case.

23. I have heard both the learned counsel at length, with regard to the aforesaid two substantial questions of law raised by Mr. Milind Patil, appearing on behalf of the appellant in Second Appeal No. 73/1984. The judgment of the Apex Court in the case of Chand Dhavan (supra) makes it abundantly clear that Section 18 of the Hindu Adoptions and Maintenance Act operates in a different level and the marriage has to be subsisting and in that case, the marriage was subsisting. In any event, in view of the judgment of the Apex Court in the case of Chand Dhawan (supra), there is absolutely no ambiguity. There is no question of inlerchangeability, the same cannot be permitted so as to destroy the distinction on the subject of maintenance. Therefore, once a wife is divorced, her remedy to seek maintenance is at the time of divorce in a matrimonial petition or subsequent thereto is only under Hindu Marriage Act, 1955 and she cannot have any recourse under Hindu Adoptions and Maintenance Act, 1956, inasmuch as, the precondition for application of Hindu Adoptions and Maintenance Act, 1956, for a wife to seek maintenance is that the marriage must be subsisting. Under these circumstances, I answer the first substantial question of law to the effect that a divorced wife cannot claim any maintenance under Hindu. Adoptions and Maintenance Act, 1956, and her only remedy is under Hindu Marriage Act, 1955.

24. The second substantial question of law raised by Mr. Milind Patil, learned counsel for the appellant is that even assuming that a divorced wife is entitled to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, in the instant case, Gayabai had failed to establish any case under Section 18(2)(a) or (b) or (g) of Hindu Adoptions and Maintenance Act. On this issue, the lower Appellate Court has gone into the entire evidence and has given a categorical finding that the said Panditrao Kalure had not illtreated her, so as to compel her to live separately. The lower Appellate Court came to the conclusion that the Panditrao Kalure had not deserted Gayabai wilfully or otherwise. Gayabai has also not been able to justify any other cause for living separately. Those are the findings of the facts based on evidence arrived at by the lower Appellate Court. This Court, while deciding a Second Appeal, cannot re-appreciate the said evidence, and come to a different finding which is impermissible. The scope of the Second Appeal is very limited unless the findings are based on no evidence or the findings are totally perverse or contrary to law. The lower Appellate Court has given cogent reasons and has come to a conclusion that Gayabai had on her own left Panditrao Kalure and has been living separately. I do not find any ground whatsoever to interfere and disturb the same. I fully agree with Mr. Milind Patil that Gayabai had failed to make out any case under Section 18(2) (a) or (b) or (g) of Hindu Adoption and Maintenance Act.

25. Under these circumstances, the lower Appellate Court's decree and order dated 16/11/1983 passed in Regular Civil Appeal No. 88/1975 requires to be set aside, especially, the directions directing Panditrao Kalure to pay Rs. 60/-from the date of the institution of the suit, which cannot be sustained in law. Second Appeal No. 73/1984 is, accordingly, allowed, however, there shall be no order as to the costs.

26. As far as Second Appeal No. 88 of 1984 is concerned the same challenges only various findings of fact and there is no substantial question of law involved in the same. Hence the Second Appeal No. 88 of 1984 is devoid of any merit, hence stands dismissed however, there shall be no order as to costs.

27. Issue of certified copy is expedited.

Accused, may be released (u/s 169 CrPc) when there is not sufficient evidence against him

      Accused, may be released (u/s 169 CrPc) when there is not sufficient evidence against him

Supreme Court of India

PETITIONER: ABHINANDAN JHA & ORS.

Vs.

RESPONDENT: DINESH MISHRA(With Connected Appeal)

DATE OF JUDGMENT: 17/04/1967

BENCH: VAIDYIALINGAM, C.A.

BENCH:VAIDYIALINGAM, C.A.

HIDAYATULLAH, M.

ACT: Code of Criminal Procedure (Act 5 of 1898), ss. 169, 170, 173 and 190(1)-Report to police of cognizable offence-Report by police to magistrate after investigation that offence not made out-If magistrate can direct police to file charge- sheet.

HEADNOTE: On the question whether a magistrate could direct the police to submit a charge-sheet, when the police, after investigation into a cognizable offence, had submitted a report of the action taken under s. 169, Cr.P.C., that there was no case made out for sending up the accused for trial,

HELD :There was no such power conferred on a magistrate either expressly or by implication.
When a cognizable offence is reported to the police they may after investigation take action under s. 169 or S. 170 Cr. P.C. If the- police :think there is not sufficient evidence against the accused, they may, u/s 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there is sufficient evidence, they may, under s. 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable. In either case the police should submit a report of the action taken, under s. 173, to the competent magistrate who- considers it judicially under s. 190 and takes the following action :

(1) If the report is a charge-sheet under s. 170 it is open to the magistrate to agree with it and take cognizance of the offence under s. 190(1) (b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence.

(2) If the report is of the action taken under s. 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under s. 156(3) to make a further investigation. If the police, after further investigation submit a charge-sheet, the magistrate may follow the procedure where the charge-sheet under s. 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the magistrate may agree or disagree with it. Where he agrees, the case against the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he .can take cognizance under s. 190(1)(c). The provision in s. 169 enabling the Police to take a bond for the appearance of the accused before a magistrate if so required, is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police. The power under s. 190(1)(c) was intended to Secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or he police either wantonly or through a bona, fide error do not submit a charge-sheet. But the magistrate cannot direct the Police to submit a charge- sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of the police, can. himself take cognizance of the offence under s. 19O(1)(a) or (c), but, be cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. [672F-H; 673B; 676H; 677B-H; 678 A-H; 679A-C. E-H]

State of Gujarat v. Shah Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Venkatusubha v. Anjanayulu, A.I.R. 1932 Mad. 673; Abdul Rahim v. Abdul Muktadin, A.I.R. 1953 Assam 112; Amar Premanand v. State, A.I.R. 1960 M.P. 12 and A. K. Roy v. State of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved. State v. Murlidhar Govardhan, A.I.R. 1960 Bom. 240 and Ram Wandan v. State, A.I.R. 1966 Pat. 438, disapproved.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218 of 1966.

Appeal by special leave from the order dated August 5, 1966 of the Patna High Court in Criminal Revision No. 1020 of 966,

AND

Criminal Appeal No. 238 of 1966.

Appeal by special leave from the judgment and order dated September 13, 1966 of the Patna High Court in Criminal Revi- sion No. 40 of 1965.

B. P. Jha and Subhag Mal Jain, for the appellants (in Cr. A. No. 218 of 1966).

Nuruddin Ahmed and R. C. Prasad, for the appellants (in Cr. A. No. 238 of 1966).

U. P. Singh, for the respondents (in both the appeals). The Judgment of the Court was delivered by Vaidialingam, J. The common question, that arises for con- sideration, in these two criminal appeals, by special leave, is as to whether a Magistrate can direct the police to submit a charge-sheet, when the police, after the investigation into a congnizable offence, had submitted a final report, under S. 173 of the Code of. Criminal Procedure (hereinafter called the Code). There is a conflict of opinion, on this point between the various High Courts in India. The High Courts of Madras, Calcutta, Madhya Pradesh, Assam and Gujarat have taken the view that the Magistrate has no such power, whereas, the Patna and Bombay High Courts have held a contrary view. In Criminal Appeal No. 218 of 1966, the respondent, Dinesh Mishra, lodged a first information report, on June 3, 1965, at the Rajoun Police Station, that he saw a thatched house, of one Uma Kant Misra, situated on the northern side of his house, burning, and the petitioners herein., running away from the scene,. The police made an investigation and submitted what is called a 'final report', under s. 173 (1) of the Code, to the effect that the offence complained of, was false. The Sub-Divisional Magistrate received this report on July 13, 1965, but, in the meanwhile, the respondent had filed what is termed 'a protest petition', challenging the correctness of the report submitted by the police. The Magistrate appears to have perused the police diary and, after hearing the counsel for the respondent and the public prosecutor, passed an order on October 27, 1965, directing the police to submit a charge-sheet, against the petitioners, herein. The petitioners challenged this order, without success, both before the learned Sessions Judge, Bhagalpur, and the Patna High Court. It was held by the High Court, following its previous decision, that the Magistrate has jurisdiction to call for a charge-sheet, when he disagrees with the report submitted by the police, under S. 173(1) of the Code. The petitioners, in this appeal, challenge these orders. Similarly, in Criminal Appeal No. 238 of 1966, the second respondent therein, had lodged a written report, on February 24. 1.964, before the police, at Malsalami police station, that his daughter, Hiramani, was missing from February 21, 1964, and that the appellants in that appeal, had kidnapped her. A case under S. 366 I.P.C. was registered against them. The police, after investigation, submitted a final report to the Magistrate. to the effect that the girl concerned, had been recovered and that she bad stated that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed. The second respondent filed a 'protest petition' in Court, challenging the statements of the police and he also filed a complaint, under s. 498 I.P.C. The Magistrate, after a perusal of the case diary of the police, and hearing the lawyer for the appellants and the second respondent, as also the public prosecutor, passed an order directing the investigating officer to submit a charge-sheet, against the accused persons, under S. 366 I.P.C This order has been confirmed by the, learned Sessions Judge, as well as the Patna High Court. Here also, the Patna High Court, in accordance with its previous decision, held that the Magistrate had jurisdiction to pass the order, in question. All these orders are challenged by the appellants, in this appeal.

On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, learned counsel pointed out that when a final report is submitted by the police, under S. 173(1) of the Code,, stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet. It may be open, counsel points out, to the Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second respondent, as a complaint, and take cognizance of the offence and proceed, according to law., The scheme of Chapter XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there is a case to place the accused on trial, is that of the investigating officers, and the Magistrate cannot compel the police to form a particular opinion on the 'investigation and to submit a report, according to such opinion. In this case, there is nothing to show that the protest petition, filed by the second respondent, has befell treated as a complaint, in which case, it may be open to the Magistrate to take cognizance of the offence, but, in the absence of any such procedure being adopted according to counsel, the order of the Magistrate directing a charge-sheet to be filed, is illegal and not warranted by the provisions of the Code. These contentions have been adopted, and reiterated, by Mr. Nuruddin Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966.

Both the learned counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court, in its Full Bench judgment, reported as State of Gujarat v. Shah Lakhamshi(1). On the, other hand, Mr. U. P. Singh, learned counsel for the respondent, in Criminal Appeal No. 218 of 1966, has pointed out that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police, to direct them to submit a charge-sheet. Otherwise, counsel points out, the position will be that the entire matter is left to the discretion of the police authorities, and the Courts will be powerless, even when 'they feel that the action of the police is not justified. Quite naturally, counsel prays for acceptance of the views expressed by the dissenting Judges, in A. K. Roy v. State of W. B. (2) and by the Bombay and Patna High Courts, in the decisions reported as State v. Murlidhar Govardhan(3), and Ram Nandan v. State ( 4 ) , respectively. In order, properly, to appreciate the duties of the police, in the matter of 'investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. That chapter deals with 'Information to the Police and their Powers to investigate', and it contains the group of section beginning from s. 154 and ending with s. 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly, deals with information in respect of noncognizable offences. Sub-s. (2), of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it wilt be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-s. (3), of s. 156, provides for any Magistrate empowered under S. 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer, in-charge of a police station, after sending a report to the Magistrate, is entitled, under S. 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to s. 157(1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of"a report to be sent, under S. 157. Section 159 gives power to a Magistrate, on receiving a report under S. 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer, incharge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer, in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer, incharge of a police station, after investigation under Chapter XIV, and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take securtiy from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the manner indicated in that section. Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay and also makes it obligatory, on the officer, incharge of the police station, to send a report to the Magistrate concerned, in the manner provided for therein, containing the necessary particulars. It is now only necessary to refer to S. 190, occurring in Chapter XV, relating to jurisdiction of criminal Courts in inquiries and trials. That section is to be found under the heading 'Conditions requisite for initiation of proceedings' and its sub-S. (1) is as follows :
"(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made, by any police-officer;
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed."

From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in- charge of a police station, or to the officer making an investigation, that ,,here is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate,, S. 169 says that the officer shall release the accused, if in custody, on hi-, executing a bond to appear before the Magistrate. Similarly, if on the other hand, it appears to the officer, in-charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under S. 170, to forward the accused to a Magistrate or, if the offence is bailable, to take security from him for his appearance before such Magistrate. But, whether a case comes under S. 169, or under S. 170, of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, under s. 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a charge-sheet, on receipt of a report under s. 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.

In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor v. Khwaja Nazir Ahmed(1) and by this Court, in H. N. Rishbud and Inder Singh v. The State of Delhi(2). In Nazir Ahmed's Case(1), Lord Porter observes, at 212, as follows:
"Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is, of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under s. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then."

These observations have been quoted, with approval, by this Court, in State of West Bengal v. S. N. Basak(3). This Court in Rishbud and Inder Singh's Case(1), observes, at p. 1156, as follows :

"Investigation usually starts on information relating to the commission of an offence given to an officer incharge of a police station and recorded under section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment or the facts and circumstances of the case. By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer'."

Again after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157 "Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if' the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under section 1 7 3. . . . . It is also clear that the final step in the investigation viz., the formation of the opinion as to whether or no' there is a case to place the accused on trial is to be that of the officer in-charge of the police station." We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer incharge of a police station. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case. The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge-sheet, under such circumstances, have Tested their decision on two principles viz., (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of Chapter XIV, cannot be inferred-vide Venkata Subha v Anjanayulu(1); Abdul Rahim v. Abdul Muktadin(2); Aman Premanand v. State(3); the majority view in A. K. Roy v. State of W. B.(1); and Stale of Gujarat v. Shah Lakhamshi(5). Or the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) where a report is submitted by the police, after investigation, the Magistrate has to deal with it judicially, which will mean that where the report is not accepted, the Magistrate can give suitable directions to the police-, and (b) the Magistrate is given supervision over the conduct of investigation by the police, and there ore, such a power can be recognised in the Magistrate-vide State v. Murlidhar Goverdhan(6); and Ram Nandan v. State(7). Though it may be that a report submitted by the police may have to be dealt with, judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him lo take cognizance of an offence and proceed, according to law. We do not also find any such power, under s. 173(3), as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the, approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail. It will be seen that the Code, as such, does not use the ex- pression 'charge-sheet' or 'final report'. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the Police, filed under s. 170 of the Code, is referred to as a 'charge-sheet'. But in respect of the reports sent under s. 169, i.e., when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or 'Summary'.

In these two appeals, which are from the State of Bihar, the reports, under s. 169, are referred to as 'final report'. Now, the question as to what exactly is to be done by a Magistrate, on receiving a report. under s. 173, will have to be considered. That report may be inrespect of a case, coming under s. 170, or one coming under s. 169. We have already referred to s. 190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings.' Sub-s. (1), of this section, will cover a report sent, under s. 173. The use of the words 'may take cognizance of any offence', in sub-s. (1) of s. 190 in our opinion imports the exercise of a 'judicial discretion', and the Magistrate, who receives the report, under s.. 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows that it is not as if that the Magistrate is bound to accept ,,the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under s. 190(1)(b) of the Code. This will be the position, when the report under s. 173, is a charge-sheet. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under s. 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under s. 1 5 6 ( 3 ), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under s. 156(3). The police, after such further investigation, may submit a charge-sheet, or,, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under s. 190(1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.


In this connection, the provisions of S. 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to take a bond from him to appear, 'If and. when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police. We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed out above. We have, already referred to the scheme of Chapter XXIV, as well as the observations of this Court in Rishbud and Inder Singh's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in- voked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under s. 190(1) (c), on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to, place the accused for trial, is that of the officer in-charge of the police station and that opinion determines whether the report is to be under s. 170, being a 'charge- sheet', or under S. 169, 'a final report'. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code.

We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of ,the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.

The question can also be consider from another point of view. Supposing the police send a report, viz., a charge- sheet, under s. 170 of the Code. As we have already pointed out, the Magistrate is not bound to accept that report, when he considers the matter judicially. But, can he differ from the police. and call upon them to submit a final report, under s.169 ? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

Therefore, to conclude, there is no power, expressly or im- pliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under s. 169 of the Code, that there is no case made out for sending tip an accused for trial.


In these two appeals, one other fact will have to be taken note of. It is not very clear as to whether the Magistrate, in each of these cases, has chosen to treat the protest petitions, filed by the respective respondents, as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance of an offence, on a complaint made to him. Therefore, while holding that the orders of the Magistrate, in each of these cases, directing the police to file charge-sheets, is Without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaints, and take further proceedings, according to law, and in the light of the views expressed by us, in this judgment. Mr. Nuruddin Ahmed, learned counsel for the appellants in Criminal Appeal No. 238 of 1966, particularly urged that it is unnecessary to direct further proceedings to be continued, so far as his clients are concerned. Learned counsel pointed out that the police report before the Magistrate clearly shows that the girl, in question, who is stated to be above 19 years of age, has herself stated that she bad eloped, of her own accord and that if that is so, further proceedings against his clients, are absolutely unnecessary, to be continued. We are not inclined to accept these contentions of the learned counsel. As to whether an offence is made out or whether any of the appellants or both of them are guilty of the offences with which they may be charged, are all matters which do not require to be considered, by this Court, at this stage.

In the result, subject to the directions contained above, the orders of the Magistrate, directing the police to file a charge, will be set aside, and the appeals allowed, to that extent.

V.P.S. Appeals allowed.

Directions given to police against remanding accused in offences punishable upto 7 years in accordance with newly introduced section

                                HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. 46
Case: Criminal Misc. Writ Petition No. 17410 of 2011
Petitioner: Shaukin
Respondent: State of UP and others
Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava
Respondent counsel: Government Advocate

Hon'ble Amar Saran, J.
Hon'ble Kalimullah Khan, J.

1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and departmental heads of other police units to strictly enforce the newly introduced amendments, viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State.

2.It was also pointed out in the circular that the investigating officers who file counter-affidavits before the High Court do not have any knowledge about these provisions and how they are to be applied.

3.The following observations in the order dated 15.9.11 have been quoted in the DGP's circular: "Let a copy of this order be forwarded to the DGP, U.P. within one week by the registry. The DGP may circulate this order to all police stations and investigating officers in U.P. with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b) and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by imprisonment up to 7 years, unless in particular cases the exceptional circumstances enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP submit his compliance report of this direction within three weeks."

4.Annexure 2 to the DGP's affidavit in compliance of our dated 15.9.11 also contains the following endorsement from all 72 districts in U.P.: "जनपद / थाना स्तर पर आदेश का अनुपालन कड़ाई से किया जा रहा है"

5.The directions were issued by the DGP's circular dated 3.10.11 to the subordinate police officials to clarify that ordinarily the police shall not immediately arrest accused persons wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to the exceptions mentioned in the aforesaid amended sections.

6.By the present order we proceed to explain the import and meaning of the amended provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests may not be needed, because we think that in many cases the police is still routinely proceeding to arrest accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C.

7.It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the Code of Criminal Procedure, here :
41. When police may arrest without warrant. -- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -- 
(a)------------------ 
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:- 
(i) the police office has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; 
(ii) the police office is satisfied that such arrest is necessary-- 
(a) to prevent such person from committing any further offence; or 
(b) for proper investigation of the offence; or 
(C) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or 
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or 
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, 
and the police officer shall record while making such arrest, his reasons in writing. 
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. - 

41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received,or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. 
(2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice. 
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. 
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice. 

170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. 

8.The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it has been provided that on completion of investigation if sufficient evidence has been collected the accused shall be forwarded in custody to the Magistrate concerned, unless he has been released on bail (if the offence was bailable), in which event security may be taken for his appearance before the Magistrate. This practice of not arresting the accused straightaway and arresting them only after sufficient evidence has been collected is normally followed by the CBI, and CB (CID) in their investigations.

9.Where however the accused has not been named in the FIR, or at the time when the co-accused have been picked up, for example in a case of vehicle theft or recovery of other stolen goods, or where the co-accused has been arrested while committing a crime, and he names another accused as also having participated in the crime, whose custodial interrogation may be necessary and the police officer is of the opinion that the disclosure furnishes credible information or gives rise to reasonable suspicion for inferring that this accused whose arrest is sought could also be involved, or there are chances that such an accused would abscond or not respond to a notice under section 41A to appear, looking to the nature of the crime and the background of the particular accused, these maybe appropriate cases where immediate arrests may be needed. Likewise where the accused whose arrest is sought appears to be habitually engaged in committing crimes or appears to be participating in some organized crimes, and there is probability of the accused repeating the offence, these would also be circumstances where it may be necessary to arrest such accused without delay.

10.However in a case under section 498 A IPC where the wife subject to violence has gone back to her "maika" following the violence, it may not be necessary in a particular case to immediately arrest the husband and other family members who have been made accused in the FIR until adequate evidence has been collected, as she is unlikely to encounter violence when she is away from her "sasural." In E.C. Act offences again where the licences of a ration card dealer named in the FIR has been suspended, he may not have any opportunity to again indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can be deferred until sufficient evidence to submit a charge sheet has been collected, when he needs to be produced before the trial court. But where the dealer is trying to obtain affidavits from ration card holders and it appears that he is trying to win over witnesses, then it may be open to the police to arrest him straight away. We have mentioned these examples as illustrations for situations where arrests may or not be immediately needed and they are by no means exhaustive.

11.It is with the objective of striking a balance on the need to provide the Constitutional protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation without interference, that we have refrained from passing blanket orders staying the arrests of the accused in all such cases.

12.But we do expect the police officer to record reasons in a bona fide and honest manner, why it has become necessary to arrest the accused in a particular case punishable with imprisonment with upto 7 years. The police officer should not mechanically and routinely write down in the case diary that there is likelihood of the accused running away, or presume that the accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would tamper with the evidence, unless there are strong reasons with concrete material for taking such a view, and this satisfaction along with the concrete reasons for taking the view need to be spelt out clearly in the case diary before the accused is arrested.

13.Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested.

14.The propriety, honesty and genuiness of the reasons given for arrests in particular cases punishable with imprisonment up to seven years and whether they conform to the requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in the DGP's circular dated 3.10.11. We make it clear that in the event that this Court finds that the accused who are wanted in cases punishable with up to 7 years imprisonment are being arrested in a routine and mechanical matter, without the existence of the conditions necessary for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no hesitation in summoning the concerned police officers or even the superior police officers and they may even have to face contempt charges. For persistent unwarranted arrests in such matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP's circular dated 3.10.11. we may even recommend disciplinary action against such errant police officers to the DGP, U.P.

15.Section 167(1) of the Code of Criminal Procedure also requires production of the case diary before the Magistrate before whom the accused is produced for remand.

16.Section 167(1) reads thus:
167. Procedure when investigation cannot be completed in twenty-four hours. ----(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter presecribed relating to the case, and shall at the same time forward the accused to such Magistrate. 

17.As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and the Magistrate is not simply to "rubber stamp" the prayer of the police officer seeking remand of the accused, but he is to apply his judicial mind to satisfy himself that the requirements of law are met when the police produces an accused for remand. At the time of granting the remand we expect the Magistrate to examine the case diary for satisfying himself whether the police officer's reasons for immediate arrest in the cases punishable with imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for remand are restricted to the pre-conditions for arrest mentioned in the newly introduced sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police officer could reach a conclusion that unless the accused was arrested he would repeat the offence, or why without arrest the investigation could not proceed, or whether the particular accused was as a matter of fact likely to cause the evidence to disappear, or would tamper with the evidence, or the accused would try and influence witnesses, or without arrest the particular accused would not appear in Court. These opinions of the police officer are to be based on concrete material and cannot be the mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant remand to the accused, and allow the accused to be released on a personal bond with a direction to appear before the competent court or before the police when called upon to do so, with or without security.

18.There would be no impediment in the Magistrate remanding the accused to judicial custody at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the accused is produced before the Magistrate and the case diary shows that sufficient evidence for submitting a charge sheet has been collected. Needless to mention that in case the accused has already secured bail, then the police officer would be disentitled to arrest an accused person for seeking his remand because the charge sheet is to be submitted. The accused could then be summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers under section 204 Cr.P.C.

19.If accused who are required in cases punishable with upto 7 years sentence are not routinely arrested by the police, or are granted bail by the lower court itself, without any undue delay in disposing of their bail applications, and in appropriate cases the facility of releasing the accused on interim bails on personal bonds pending consideration of their regular bails with or without security with a direction to appear when required is also extended to them, as has been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781, considerable time of the High Court could be spent more productively in hearing single judge and two judge appeals, or bails in grave matters. At present we find that most of the High Court single and division benches on the criminal side are engaged in considering an inordinately large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could easily be dealt with by the Magistrates and Sessions Courts.


DIRECTIONS: 
20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases.

21.The Magistrate may also furnish information to the Registrar of the High Court through the District Judge, in case he is satisfied that a particular police officer has been persistently arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and thereafter the matter may be placed by the Registrar in this case, so that appropriate directions may be issued to the DGP to take action against such errant police officer for his persistent default or this Court may initiate contempt proceedings against the defaulting police officer.

22.The District Judges should also be directed to impress upon the remand Magistrates not to routinely grant remands to police officers seeking remand for accused if the pre-conditions for granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases punishable with 7 year terms, or where the police officer appears to be seeking remand for an accused in a mala fide manner in the absence of concrete material. The issue of compliance with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be discussed in the monthly meetings of the District Judges with the administration and the superior police officials.

23.We are also of the view that the Registrar General may issue a circular within a period of one month with directions to the Sessions Courts and Magistrates to monitor and oversee the applications for remand sought by the arresting police officers and to comply with the other directions mentioned herein above.

24.The DGP, U.P. is directed to send a status report with better particulars by the next listing as to the extent to which arrests are only being effected in cases punishable with upto 7 years imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41 A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72 U.P. districts: "जनपद / थाना स्तर पर आदेश का अनुपालन कड़ाई से किया जा रहा है."

25.As already indicated above we are of the view that by routinely mentioning in the case diary that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is also directed to circulate the present order to all subordinate police officers.

26.We are also of the view that the UP Legal Services Authority be directed to bring out pamphlets for distribution in the legal literacy camps etc., or even issue news paper announcement with headings such as "सात साल तक की सजा पाने वाले अभियुक्तों को राहत," informing the public that henceforth accused wanted in cases punishable with upto 7 years imprisonment would get relief and not be routinely arrested because of the recent amendment to the Code of Criminal Procedure, which has been enforced from 1.11.2010.

27.Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District Judges in all districts of U.P. for compliance and communication to all the concerned judicial magistrates before whom the accused are produced for remand by the police officers within ten days.

28.Let a copy of this order be also furnished to the learned Government Advocate forthwith.

29.Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and District Judges by the next listing. The said authorities may also indicate the difficulties if any, faced in complying with the aforesaid directions.
List on 14.12.2011.

Dated: 11.10.2011
Ishrat