No automatic arrests under DUBIOUS dowry law - Supreme Court

REPORTABLE

                                     IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION
                                   CRIMINAL APPEAL NO. 1277 OF 2014
                        (@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT

VERSUS

STATE OF BIHAR & ANR .... RESPONDENTS

J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

Leave granted.

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the 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 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 grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

“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)x x x x x x

(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) x x x x x

(ii) the police officer is satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the offence; or
to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
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
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.

X x x x x x

From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:


“41A. 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 that 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.

Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is 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.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute.

In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid.


(CHANDRAMAULI KR. PRASAD)

........................................................................J

(PINAKI CHANDRA GHOSE)

........................................................................J

NEW DELHI, July 2, 2014.










Police need to follow SC (Supreme Court) guidelines for casual arrests  under section 498A and section 4 of DP Act, but also to any other penal provision for imprisonment up to seven years.

Supreme Court (SC) formulates punishment for police and magistrates for casual arrests under section 498A and section 4 of DP Act, but also to any other penal provision for imprisonment up to seven years.

All about being a LAWYER

                                                         All about being a Lawyer
“A lawyer with his briefcase can make more money than a burglar with a gun,
if he has a sharp wit and intelligence.” – Marion Puzo in The Godfather.

The first thing that will strike you about lawyers – you speak to them and you will see that
they are cautious. Law is the set of rules which governs the behaviour of person, companies,
the government at the center and states and any other entity. The offending party can be
punished under the rule of law. Unlike modern careers such as those related to management,
computers, bio-technology, call centers, law in India has a glorious history. Decades ago,
it was meant for those from a well-to-do family. Almost all the leadership of pre-Independence
India comprised lawyers. Gandhi, Nehru, Jinnah were all lawyers. Lawyers had a significant
impact on the destiny of this nation. The present is not as glorious as past but it is not bleak either.
The social acceptability is there so is the wealth, honour and recognition provided you excel in
your work. The degree of competition that prevails in the profession is very high. A large numbers
of law graduates pass every year. They are allowed to enroll and practice in any court in any part
of the country.

Legal Profession – All about being a Lawyer 

Personal Characteristics
 “…Abstract figures clad in black and white …

The swirl and swish of gowns…
A smooth yet brisk stride and aura of controlled power…

A silent but tangible pleasure at their faces…
The awe on the faces of spectators, visitors and other mere mortals…
{Extract from the Introduction to Careers in law by Geetanjli Pandit}

Four stage of a lawyers life as
Stage – I No work no money
Stage – II Work but no money
Stage – III Work and money
Stage – IV No work yet money
The picture that emerges is clear.

Initially you will have to scratch around to get work. After a few years you may be getting work regularly but you will not be making too much money. It may take upto a decade before you are able to get work and make money. And if your are really good and work hard then after a couple of decades you may reach stage IV where you may make money without really working for long hours. In other words you get paid merely for offering your opinion drawing upon years of experience. However very few lawyers reach Stage IV.

“Once you cross the initial hurdles, then sky is the limit.” Hardwork, dedication and regard for you client are the important qualities needed. You must have a good reading habit, maintain a library and keep yourself up-to-day happenings.

As a lawyer you have to assimilate and analyse the fact quickly. You have to distinguish relevant from the irrelevant, separate the grain from the chaff and apply the law in the situation under scrutiny.

Fluency in written and spoken language and excellent presentation skills are essential to present your case in the court. Your interrogation and cross-examination must be to the point (i.e. precise) and concise. Your should avoid verbosity.

Entry Into the Profession
It is quite easy to get into an LL.B. Course, though some universities conduct entrance exams and interviews. For some good universities competition is as high as competition for entrances for MBA’s or MCA’S. But there are universities which check the basic general knowledge of students and their entrance exams are not very tough. The LL.B. Course is designed to give you the knowledge of law but not the skills needed for the legal profession.

 “A bachelor’s course in law won’t teach you the lawyering skills”. It equips you with the weapon – The Law. But it does not teach you how to use it. It is on you how you use your weapon and make it more lethal.

And remember you may be the topper from a law college, but that is not enough to make you a good lawyer. Neither your senior your client is going to ask you about your academic performance in LL.B. It is your expertise and experience in handling your client and their cases that bear out your potential.

Nature of the job
Victory in the Court is sweet. But behind it lies a lot of hard work. Winning the case for the client is the duty and responsibility of a lawyer. The arguments and the cross-examinations that follow in the Court are basically the fruits of sleepless nights in your library on the lookout for the correct reference that you may need to present in your client’s case in the court. For that your must be thorough with the nuances of the law.

Essential Qualities Required
One must have very good knowledge of what one is practicing. One must have the capacity to patiently convince the judge of the point of law which one is propagating.

Law As a Profession – How Good?
Law makes a very good wife but a poor mistress. You have to be married to it. You can’t play with it. If you work hard and if you have the capabilities, you will be at the top. And at the top, law is the most rewarding profession. And there is no death of money provided you establish yourself in the profession.

Bar Council has disciplinary jurisdiction
Legal profession in India is governed by ‘The Advocates Act, 1961’. It is a self-contained Code of Law relating to legal profession and this Act extends to the whole of India. This is an Act to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils andBar Council of India. Persons enrolled as advocates with any Bar Council are entitled to practice the Profession of Law throughout the country. No person can be enrolled with more than one Bar Council. The Bar Councils have disciplinary jurisdiction over advocates on their rolls, but his is subject to appeal to the Bar Council of India and a further right of appeal o the Supreme Court of India.

Disciplinary Action for Misconduct

                                         IN THE GAUHATI HIGH COURT
                              (The High Court of Assam, Nagaland, Meghalaya,
                               Manipur, Tripura, Mizoram & Arunachal Pradesh)

                                                     IMPHAL BENCH

                              WRIT PETITION (CIVIL) NO.297 OF 2002

Shri Mutum Shantikumar Singh
S/o M. Jugindro Singh of Tronglaobi Awang Leikai
P.,O. and P.S. Moirang, District Bishenpur, Manipur.   . . . . . . PETITIONER

- VERSUS –

1.The Union of India through the Secretary,
Ministry of Home Affairs, Govt. of India, New Delhi.

2.The Inspector General of Police, C.R.P.F.
M/N Sector CRPF, Govt. of India, Imphal, Manipur.

3. The Dy. Inspector General of Police, C.R.P.F.
Govt. of India, Imphal, Manipur.

4. The Commandant, 27th Bn. CRPF,
Govt. of India, Sibsager Assam.   . . . . . . . RESPONDENTS

PRESENT

THE HON’BLE MR. JUSTICE T. NANDAKUMAR SINGH

For the Petitioner :: Mr. Kh. Tarunkumar Singh,Adv.
For the respondents :: Mr.N. Ibotombi, CGSC
Date of hearing :: 20.01.2005
Date of judgment and order :: 08.02.2005 2

JUDGMENT AND ORDER

1. It is the bounden duty of the concerned authority to act judiciously wherever the Rule of natural justice is applicable. No doubt, the Rule of natural justice is applicable to the departmental proceedings against a Government employee. Therefore, there is insistence upon the department of "fair hearing" in the departmental proceedings against a Government employee. No doubt, whenever, the Government of the concerned authority in the departmental enquiry acted in fragnant prejudice of the rule of natural justice and fair play, the said departmental proceeding is liable to be quashed. It may, here, be recalled that Lord Diplock in the Council of Social Service Union v. Minister for the Civil Services stated that "judicial review, as I think, development to a stage to-day when, without reiterating any analysis of the stage of which development has come about, one can conveniently classify under three heads: the grounds on which the administrative action is subject to control by judicial review. The first ground I would call "illegality", the second ground "irrationality" and third ground "procedural propriety". That is not to say that further development on a case in case basis in course or time add further grounds. I have in my mind particularly possible adoption in the future of the principle "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community". The Apex Court in Sugarbai M. Siddiq and Ors. v. Ramesh S. Hankare (Dead) by LRs. Held that "the court is concerned not with the decision but will the decision-making process."

2. Heard Mr. Kh. Tarunkumar Singh learned counsel for the petitioner as well as Mr. N Ibotombi Singh, learned CGSC for the respondents.

3. In the above accepted principle of law, this writ petition is required to be discussed and disposed of. A short factual matrix will suffice for the decision of the present writ petition. The writ petitioner was appointed as Constable (General Duty) at the Group Centre ; C.R.P.F. Langjing, Imphal, Manipur in the month of January 1994 and he was posted at various places within the territory of India. While he was posted at Sibsagar, Assam, there was an unfortunate incident on 3.4.2000 at Sabji Mandi Market Sibsagar, Assam. For that incident the writ petitioner was placed under suspension in contemplation of a disciplinary proceeding vide order of Commandant being No. P. VIII 2/2000-27-EC-II dated 13.4.2000. Thereafter the Commandant 27BN. C.R.P.F issued a memorandum dated 18.4.2000 for holding a departmental enquiry against the petitioner and two articles of charge were framed against him. The said two articles of charge are quoted hereunder.

ARTICLE-I
"That, the said No. 901003697 CT/GD N. Daimary of D/27 Coy, CRPF, No. 940270123 CT/Dvr K.H. and Brojen Singh of HQ/27 Bn, CRPF and No. 941150344 CT/GD M. Shanti Kumar of F/27 Bn., CRPF, while functioning as Constable/Constable (Driver) during the period April 2000 committed an act of Gross misconduct in their capacity as member of the force under Section 11(1) of CRPF Act, 1949 in that they left the lines (STF Camp, Dak Bungalow) and proceeded to station Charalie and Sabji Mandi Market, Sibsagar without obtaining any permission from competent authority, which is unbecoming of a ember of force and against good order and discipline of force.

ARTICLE-II
That the said No. 90100467 CT/GD N. Daimary of D/27 Bn. CRPF, No. 940270123 CR/Cvr K.H. Brojen Singh of HQ/27 Bn, CRPF, and No. 941150344 CT/GDM M. Shantikumar of F/27 Bn, CRPF, while functioning as Constable/Constable (Driver) during the period April 2000 committed an offence of indiscipline/misconduct in their capacity as member of the force under Section 11(1) CRPF Act, 1949, in that, they left the lines (STF Camp, Dak Bungalow) and proceeded to station Charalie and consumed liquer and created nuisance with local Civilians resulting into fight nearby Sabji Mandi Market, Sibsagar, which is unbecoming of a member of the force and against the good order and discipline of force.

4. The enquiry officer, after holding the disciplinary proceedings for the said two articles of charge against the petitioner, submitted a report to the effect that the said two articles of charge were proved partially . The Commandant, 27BN, C.R.P.F, issued the impugned order being No. P/VIII-10/2000-27-EC-II dated 30.8.2000 basing on the said report of the enquiry officer for dismissing the petitioner from service (Annexure-A/7 to the writ petition). The petitioner being aggrieved by the said dismissal order dated 30.8.2000 (Annexure-A/7 to the writ petition) filed an appeal on 27.9.2000 before the Deputy Inspector General of Police (Admn.). C.R.P.F., Group Centre, Langjing, Imphal, Manipur. The D.I.G.P. (Admn.), C.R.P.F., Imphal, Manipur also dismissed the said appeal by passing an order dated 8.11.2000 (Annexure-A/9 to the writ petition). The revision petition filed by the petitioner against the dismissal order dated 30.8.2004 (Annexure-A/7 to the writ petition) and the said order of the D.I.G.P. (Admn.). C.R.P.F. Imphal, Manipur dated 8.11.2000 (Annexure A/9 to the writ petition) also had been rejected by the I.G.P., C.R.P.F., Imphal, Manipur vide his order being No. R.XIII-l/2001-Admn-1/1852 dated 12.2.2001 (Annexure A/11 to the writ petition). It is an admitted fact of both the parties that no presenting officer was appointed in the said disciplinary proceedings initiated against the petitioner and the enquiry officer proceeded the said disciplinary proceedings without presenting officer against the writ petitioner. The only main thrust of the writ petitioner in the writ petition is that because of the non-appointment of the presenting officer in the said departmental enquiry against him, principle of natural justice and fair play had been violated in holding the disciplinary proceedings against him and as a result thereof the proceedings of the disciplinary proceedings is liable to be quashed on that score only. In this regard the leaned counsel appearing for the respondents submits that there is no question of violation of natural justice the writ petitioner inasmuch as the said disciplinary proceeding was held in compliance with the Rule 27 of C.R.P.F Rules, 1955. The relevant portions of Rule 27 is quoted hereunder:
27. *****
(c) The procedure for conducting a departmental enquiry shall be as follows:
(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hours before the commencement of the enquiry.
(2) At the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "not Guilty" after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral;
(i) it shall be direct,
(ii) it shall be recorded by the Officer conducting the enquiry himself in the present of the accused:
(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits.
(4) Aaccused shall then be examined and his statement recorded by officer conducting enquiry. If accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. The pleads "Not guilty", he shall be required to file a written statement, and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as officer conducting enquiry may deem reasonable in circumstances of case. If he declines to file a written statement he shall again be examined by officer conducting the enquiry on expiry period allowed.
(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such documents to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.
(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant, who shall record his Findings and pass orders, where he has power to do so.
11[(7)][***]
(cc) Notwithstanding anything contained in this rule:
(i) where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge ; or
(ii) where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules ; or
(iii) where the Director-General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit.

5. From bare perusal of Rule 27 of C.R.P.F. Rules, 1955, it is clear that Rule 27 does not bar competent authority from appointing a presenting officer in disciplinary proceedings for holding same in a fair manner in compliance with requirement of principle of natural justice, principle of which, are being discussed in following paras, & Rule 27 is completely silent about appointment or non-appointment of presenting officer in disciplinary proceedings.

6. Apex Court (Constitution Bench) had discussed scope & object of natural justice and its applicability to administrative enquiry in A. K Kraipak and Ors. v. Union of India & Ors., held that aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made in other words, they do not supplant the law of land but supplement it. Para 20 (of AIR) in A.K. Kraipak (supra) is quoted hereunder:
20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent year. In the past it was thought that it include just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy Georege v. University of Kerala, Civil Appeal No. 990 of 1968, dt. 15.7.1968 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, frame work of law, under which the enquiry is held and the constitution of Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened court has to decide whether observance of that rule was necessary for a just decision on facts of that case.

7. Apex Court in Punjab National Bank and Ors. v. Kunj Behari Mishra reported in (1998) 7 SCC 8 I had observed applicability of principles of natural justice in departmental enquiry and held that principles of natural justice have to be read into regulation 7(2) (Punjab National Bank Officer Employee's (Discipline and Appeal) Regulations, 1977, though it is silent on this aspect. Para 19 (of SCC) in PNB & Others (supra) is quoted hereunder:
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reason for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of enquiry officer containing its findings will have to be conveyed and delinquent officer will have an opportunity to persuade disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require authority which has to take a final decision and can impose a penalty, give an opportunity to officer charged of misconduct to file a representation before disciplinary authority records its findings on charges framed against officer.

8. Apex Court in State Govt. Houseless Harijan Employees' Association v. State of Karnataka and Ors., reported in (2001) 1 SCC 610 took similar view that " requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication". Paras 27 and 28 (of SCC) in State Govt. Houseless Harijan Employees' Assn. (supra) are quoted hereunder:
27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.
28. In the case of Union of India v. Co. J.N. Sinha this court said (SCC p. 461, para 8):
It is true that if a statutory provision can be read consistently with the principles of natural justice, courts should do so because it must be presumed that Legislatures & statutory authorities intent to act in accord- ance with principles of natural justice. But if on other hand a statutory provision either specifically or by necessary implication excludes application of any or all principles of natural justice then court can’t ignore mandate of Legislature or 'statutory authority & read into provision concerned principles of natural justice.

9. The Apex Court in Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant and Ors., reported in (2001) 1 SCC 182 held that the object of the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Doctrine of natural justice is incapable of exact definition. However, it is synonymous with fairness. Compliance or non-compliance therewith has to be examined on the totality of facts and circumstances in each. In Kumaon Mandal Vikas Nigam Ltd. (of SCC) (supra), the Apex Court held that there is violation of the principles of natural justice in the departmental enquiry because of non-appointment of presenting officer. The relevant portion of para 22 (of SCC) in Kumaon Mandal Vikas Nigam Ltd. (supra) is quoted hereunder:
22. The 65 page report has been sent to the M.D. of Nigam against petitioner recording therein that the charges against him stand proved what is basis? Was enquiry officer justified in coming to such a conclusion on basis of charge sheet only? The answer cannot possibly be in the affirmative, if records have been considered, the immediate necessity would be to consider as to who is the person who produced has same & next issue could be as regards nature of the records unfortunately there is not a whisper in rather longish report in that regard. Where is presenting officer? Where is notice fixing date of hearing? Where is list of witnesses? What has happened to the defence witnesses? All these questions arise but unfortunately no answer is to be found in the rather longish report. But if one does not have it-can it be termed to be in consonance with the concept of justice or the same tantamount to a total miscarriage of justice.

10. This court in Chelfremog v. State of Tripura and Ors. reported in (2000) 2 GLT 604 and Baharul Islam (CT) v. Union of India and Ors. reported in 2001 (1) GLT 62 I held that in the departmental proceedings where no presenting officer was appointed, the enquiry officer has assumed role of Judge as well as prosecution inasmuch as in the absence of presenting officer, the enquiry officer must examine the witnesses and exhibited documents. This will be a total violation of the rules and fundamental principles of natural justice. Therefore, the procedures adopted by the enquiry officer in holding the departmental enquiry does not fulfil the requirement of fair proceeding in conducting enquiry against the delinquent. In such circumstances "reasonable opportunity of being heard" as emphasise in A. 31(2) of Constitution of India had been denied to concerned government employee (delinquent). The similar view is also taken by this court (Division Bench) in Pt. Rajyamalla Buzarbaruah v. Assam Administrative Tribunal, and Ors. reported (1983) 1 GLR (NOC) 71. The Apex Court in Dr. Rash Lal Yadav v. State of Bihar and Ors. held that concept of natural justice is not a static one by is an ever expanding concept. In initial stages it was thought that it had only two elements, namely (i) no one shall be a judge in his own cause, and (ii) no one shall be condemned unheard. With passage of time a third element was introduced, namely, of procedural reasonableness because main objective of requirement of rule of natural justice is to promote justice and prevent its miscarriage. What emerges from the above discussion is that unless the law expressly or by necessary implication excludes application of the rule of natural justice courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences.

11. From above discussions, I am of considered view that for complying with rule of natural justice and fair procedures, appointment of presenting officer is a must in a disciplinary proceedings against a C.R.P.F. Constable & Rule 27 of C.R.P.F. Rules, 1955 by expressly or necessary implication does not exclude application of rule of natural justice & fair procedures. In this regard, Mr. Ibotombi Singh, learned C.G.S.C. appearing for respondents draws attention of this court in a decision of Apex Court reported in Union of India & Ors. v. P. Thayagarajan, and submits that Apex Court has upheld validity of Rule 27 of C.R.P.F. Rule, 1955. On careful perusal of decision of Apex Court in Thayagarajan (supra), it is clear that Apex Court held that if there be a particular procedure for examination of witnesses in disciplinary proceedings u/Rule 27(c)(2) of C.R.P.F Rules, 1955, enquiry officer should follow that prescribed procedures. In the present case in hand, as stated above, Rule 27 neither prescribes nor excludes the appointment of the presenting officer for holding disciplinary proceedings in compliance with principles of natural justice and fair procedures against a C.R.P.F Constable for article of charges against him.

12. For reasons discussed above, disciplinary proceedings against petitioner is illegal and it was held in violation of principles of natural justice. Therefore, be disciplinary proceedings against petitioner is liable to quashed. Accord- ingly, disciplinary proceedings against writ petitioner is hereby quashed and in consequence thereof, the impugned dismissal order dated 30.8.2000 (Annexure-A/7 to writ petition), order of D.I.G.P. (Admn), C.R.P.F. dated 8.11.2000 (Annexure-A/7 to writ petition) & order of D.I.G.P. C.R.P.F. dated 12.2.2001 (Annexure-A/11 to writ petition) are quashed. The writ petition is allowed and the writ petitioner should be reinstated in service forthwith.

13. It is made clear that, the concerned authority shall decide and take appropriate decision about the arrear of pay and allowances, i.e., the pay and allowances of the writ petitioner for the period from the date of passing the impugned dismissal order dated 30.8.2000 till his reinstatement under the order of this court. No order as to costs.

Filing a False Case is Cruelty

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 APPELLATE JURISDICTION
                                        FAMILY COURT APPEAL NO.12 OF 2002


Monindarpalsinha N. Kochar,
age 50 years, Occupation – Service,
R/o.4/15, Anand Housing Society,
Shankar Seth Road, Pune 37. .. Appellant

Versus

Jyotindar Kaur Mohindarpal N.Kochar,
age 42, Occ: Business,
R/o.Kalyan Sing Sahani,
RB 11/1 Salunkhe Vihar,
Kondhwa, Pune 38. .. Respondent

Ms Neeta Karnik for the appellant.
Shri D.P.Guchiya for the respondent.

CORAM: R.M.S.KHANDEPARKAR & ANOOP V. MOHTA, JJ.
DATED:20TH JUNE, 2005.

JUDGMENT: (PER R.M.S.KHANDEPARKAR, J )

1. Heard. This appeal arises from the judgment dated 26th November, 2000 passed by the Family Court, Pune, in Divorce Petition No.926 of 1995 filed by the appellant-husband against the respondent-wife. By the impugned judgment, the petition for divorce was dismissed while granting permanent alimony to the respondent at the rate of Rs.1,000/- per month. The divorce was sought on the ground of desertion and cruelty comprised under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

2. The marriage between the appellant and the respondent took place on 29th August, 1993. The respondent went to her parent’s house on 24th December, 1993. On 22nd September, 1994, the respondent-wife filed petition for judicial separation being Petition No.656 of 1994. The respondent lodged complaint against the appellant and his parents under Section 498A of I.P.C., wherein, the appellant and his parents were arrested and prosecuted under the said provision of law in the Criminal Case No.356 of 1994.

The fact regarding the complaint and arrest of the appellant and his parents was published in the newspapers – “Aaj Ka Anand” and “Sakal” on 27th September, 1994. The petition for judicial separation No.656 of 1994 came to be dismissed by the Family Court, Pune, by its Order dated 28th July, 1995. The appellant filed the petition for divorce being Petition No.926 of 1995 on 28th December, 1995 on the grounds stated above. After recording the evidence, the petition for divorce filed by the appellant came to be dismissed by the impugned judgment dated 26th November, 2000. The present appeal was filed on 2nd February, 2001. During the pendency of this appeal, on 23rd December, 2002, the learned Magistrate disposed of the Criminal Case No.356 of 1994 and acquitted the parents of the appellant and convicted the appellant under Section 498A of the I.P.C. The matter carried in appeal by the appellant being Criminal Appeal No.29 of 2003, which came to be filed on 20th January, 2003, and the same was disposed of on 7th May, 2004 thereby acquitting the appellant. Meanwhile, the respondent had also filed the petition for maintenance of Rs.10,000/- per month and Rs.8 lakhs for purchasing a house, besides the petition for Stridhan being Petition No.7 of 2002, and they are stated to be pending before the Family Court, Pune.

3. It is the contention of the appellant that the respondent deserted the appellant and left the
matrimonial house since 24th December, 1993 and proceeded to her parent’s house and she never returned to stay with the appellant. It is his further contention that the fact about desertion from 24th December, 1993 has been clearly admitted by the respondent in her testimony before the family Court in the proceedings for judicial separation filed by her and further the said fact has been confirmed in the judgment of the family Court while dismissing her petition for judicial separation. It is his further contention that the family Court while dismissing the said petition for judicial separation has also arrived at the finding that the respondent is living separately from her husband without any justification and she had left the matrimonial house without any reasonable cause. It is his further case that the intention on the part of the respondent to desert the matrimonial house and the company of the appellant from 24th December, 1993 was clear at the time when she left the matrimonial house on the same day. The same was confirmed from the fact of filing of the proceedings for judicial separation as well as criminal complaint under Section 498A of I.P.C., coupled with the fact that the respondent exhibited adamant and uncooperative attitude in refusing to come back to reside with the appellant inspite of various attempts on the part of the appellant for reconciliation and to bring her to the house of the appellant. It is the further case of the appellant that during the time she stayed with the appellant, she always misbehaved and harassed the appellant and  his family members and was insisting for a residential house separate from that of the parents of the appellant. According to the appellant, his parents are ill and need constant medical care, apart from the fact that the appellant himself is a disabled person.

4. On the other hand, it is the case of the respondent that right from the day one she joined the appellant after the marriage, she was being illtreated and there was constant demand for Rs.1,00,000/- from the parents of the respondent to enable the appellant to purchase a car, and on account of refusal on the part of the respondent to pay the said amount to the appellant, the respondent was being harassed by one way or the other by the appellant and his parents. It is her further case that on 24th December, 1993 she was forced to leave the matrimonial house, and therefore, she had to proceed to live with her parents against her desire. It is the further case of the respondent that her attempt to stay with the appellant after the dismissal of the petition for judicial separation also proved futile on account of uncooperative attitude on the part of the appellant. It is her further case that considering the income of the appellant, the respondent is entitled for permanent alimony, and therefore, no fault can be found with the impugned judgment granting permanent alimony and dismissing the petition for divorce.

5. The family Court, Pune, after considering the evidence on record, has held that the appellant had failed to establish that the respondent had treated the appellant with cruelty within the meaning of the said expression under Section 13(1)(ia) of the Hindu Marriage Act, 1955 as also failed to prove that the respondent had deserted him for the period not less than two years immediately preceding presentation of the petition without just reason or proper cause, as contemplated under Section 13(1)(ib) of the said Act, and therefore, there was no case for grant decree of of divorce, however, simultaneously granted permanent alimony of Rs.1,000/- per month to the respondent.

6. While assailing the impugned judgment as far as it dismisses the petition for divorce is concerned, the learned Advocate appearing for the appellant submitted that the fact that the respondent left the matrimonial house on 24th December, 1993 having been established by a clear finding of the family Court to that effect in the proceedings for judicial separation filed by the respondent herself and further the fact that the respondent had filed the proceedings for judicial separation, complaint under Section 498A of I.P.C. against the appellant and his parents and got them arrested and prosecuted, got the news about their arrest published in the newspapers and the fact that she refused to come back to stay with the appellant inspite of various efforts on the part of the appellant in that regard, obviously establish desertion for a period of more than two years prior to the filing of the petition for divorce by the appellant and the Court below having totally failed to consider the same while rejecting the divorce petition had acted arbitrarily, rendering its judgment to be bad in law. The respondent has not shown any cause for leaving the matrimonial h ouse on 24th December, 1993 as well as for not returning to reside with the appellant and the allegations  regarding ill-treatment during the period she had stayed with the appellant as well as the alleged ground for leaving the matrimonial  house from 24th December, 1993 have not been proved by the respondent. The intention on the part of the respondent not to return to reside with the appellant was clear on the day she left the matrimonial house and the same was confirmed from the fact of filing the petition for judicial separation, and further the fact that there was no reasonal cause for leaving matrimonial house on 24th December, 1993 and further confirmed with the clear finding in that regard by the family Court in its judgment while dismissing the proceedings for judicial separation and since there was no appeal against the said judgment, it had attained finality for all purposes. The appellant having clearly established with cogent evidence about the factum of desertion of the matrimonial house by the respondent from 24th December, 1993, he has a clear case for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. As regards the ground of cruelty, the learned Advocate for the appellant submitted that apart from the fact of filing of the false complaint, which has been abundantly established by the fact of dismissal of the complaint and acquittal of the appellant as well as his parents, there was humiliation to the appellant on account of arrest and detention in the police custody and publication of the news in that regard in the newspapers, and that was all on account of a false complaint by the respondent which clearly disclosed mental cruelty to the appellant warranting dissolution of the marriage, as contemplated under Section 13(1)(ib) of the Hindu Marriage Act, 1955. It is further submitted that refusal to participate in the Chulah ceremony, which is a prestigious ceremony consequent to the marriage in the  community of the appellant, a strange conduct on the part of the respondent, harassment caused by her to the appellant and his parents, abruptly leaving the matrimonial house without any justifiable cause and refusal to return to reside with the appellant, disclose cruelty on the part of the respondent to the appellant, and therefore, the Court below ought to have decreed the suit for divorce on the said ground also. The learned Advocate for the appellant further submitted that the evidence placed on record as regards the income of the appellant, financial obligations and the expenses incurred by the appellant on account of ill-health of his parents as well as for his own medical expenditure clearly reveal that there was no justification for grant of permanent alimony in favour of the respondent, and certainly not to the extent of Rs.1,000/- per month.

7. Reliance is sought to be placed in the decisions in the matter of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, reported in (2002)1 SCC 308, of Sadhana Satish Kolvankar v. Satish Sachidanand Kolvankar, reported in 2005(2) Bom.C.R.340, G.V.N.Kameswara Rao v. G.Jabilli, reported in (2002)2 SCC 296, Smt.Kalpana Srivastava v. Surendra Nath Srivastava, reported in AIR 1985 Allahabad 253, and Rajkishore Prasad v. Smt. Raj Kumari Devi & Ors., reported in AIR 1986 Patna 362.

8. The learned Advocate appearing for the respondent, on the other hand, has submitted that there has been absolutely no evidence led by the appellant that the respondent had left the matrimonial house of her own and, on the contrary, the testimony of the respondent discloses that the respondent had not left the matrimonial house of her own but rather she was forced to leave the matri monial house and was not taken inside the house after having driven her out of the house. That apart, even after the dismissal of the petition for judicial separation, she had made honest effort to go back to reside with the appellant but due to the adamant and uncooperative attitude on the part of the appellant, she was prohibited from residing in her matrimonial house. The learned Advocate for the respondent further submitted that there was absolutely no evidence on the point of desertion of the matrimonial house by the respondent and certainly not even after the dismissal of the petition for judicial separation, and therefore, no case was made out by the appellant for grant of divorce on the same ground. As regards the cruelty is concerned, the learned Advocate for the respondent submitted that there being absolutely no evidence led by the appellant, no fault can be found with the dismissal of the petition for divorce on the said ground. As regards the Chulah ceremony is concerned, apart from mere allegation in that regard, no evidence has been led so also in relation to the alleged conduct of harassment by the respondent. It is a mere word against word and there is no evidence led by the appellant though the burden was purely on him. He has further submitted that the impugned order was passed on 26th November, 2000 when the criminal case filed under Section 498A of the I.P.C. was not at all disposed of, and therefore, there was no occasion for the family Court to arrive at a conclusion that the complaint was false. Being so, for not giving any credence to the contention on the part of the appellant about the complaint being false, no fault can be found with the impugned judgment. The decision regarding acquittal of the appellant and his parents from the said complaint being not forming part of the evidence on record before the family Court, it would not be appropriate to interfere in the impugned judgment on the ground of such acquittal subsequent to the passing of the impugned judgment. Considering the monthly income of Rs.10,000/- of the appellant, according to the learned Advocate for the respondent, no fault can be found with the direction for permanent alimony of Rs.1,000/- per month issued by the family Court. Merely because some sundry expenses had to be incurred for the treatment of the parents of the appellant, that would not be a justification to deny permanent alimony to the respondent.

9. Considering the rival contentions of the learned Advocates on behalf of both the parties, and on perusal of the records, the following points arise for our determination:-

1. Whether the appellant has established that the respondent had deserted the matrimonial house and the appellant over a period of two years prior to the filing of the petition without any justifiable reason or proper cause,and therefore, warrants decree of divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955?
2. Whether the appellant has established cruelty by the respondent to the appellant within the meaning of the said expression under Section 13(1)(ia) of the Hindu Marriage Act,1955, and therefore, warrants dissolution of the marriage by divorce under the said provisions of law ?
3. Whether the materials on record justify the grant of permanent alimony in favour of the respondent to the extent of Rs.1,000/- per month ?

10. Perusal of the materials on record reveals that the conduct of the respondent consistently discloses that she was never interested in returning to the matrimonial house after she had left the same on 23rd December, 1993. The finding arrived at by the Family Court regarding attempt on the part of the respondent to prevent the marriage being broken up is not only contrary to the materials on record but it is totally perverse. It  discloses total misreading of the evidence on record. The finding regarding harassment to the respondent by the appellant is also not based on any material on record. Before arriving at any such finding, the Family Court has not taken pains to refer to any incident of harassment to the respondent. The Family Court also erred in totally ignoring the clear admission on the part of the respondent that she had never gone to the matrimonial house after December, 1994. There was a clear statement to that effect in the proceedings for judicial separation and the same was confirmed in the present proceedings. In fact, the Family Court does not appear to have understood the concept of cruelty at all. The issue regarding cruelty has been answered in the negative holding that the appellant has not proved any act on the part of the respondent amounting to cruelty. In fact, the cruelty pleaded and established is not a physical cruelty but it relates to the conduct of the respondent which amounted to mental torture to the appellant.

11. As regards the point of desertion is concerned, undisputedly, the respondent proceeded to her parent’s house from the matrimonial house on 24th December, 1993 and thereafter, she did not return to reside with the appellant. Besides, while she continued to reside with her parents, she filed petition for judicial separation being Petition No.656 of 1994 on 22nd September, 1994. The said petition was followed by the criminal complaint dated 25th September, 1994 against the appellant and his parents i.e. in-laws of the respondent. It is undisputed fact that consequent to the said complaint under Section 498A of I.P.C., the appellant was arrested. It was only after the dismissal of the said petition for judicial separation i.e. on 28th July, 1995, that the respondent claimed to have approached the appellant for settlement.

12. As regards the claim of settlement is concerned, there is not even a statement that she of her own went to her matrimonial house on 29th July, 1995. On the contrary, a categorical statement in her testimony is that she was brought to her matrimonial house by her brother. It is, however, pertinent to note that neither the brother nor any other witness was examined in support of the said contention. Undisputedly, the allegation in that regard has been denied by the appellant. Added to this, there were categorical admissions on the part of the respondent to the effect that “Since 1996 December myself and opponent had not resided together at any time”, and further that “I have not given any offer to the Petitioner that I wanted to reside with me.” In addition, she has also stated that “it is true that I am ready for decree of divorce if all my golden ornaments and articles are given to me by the Petitioner and the expenses incurred by me in respect of maintenance and marriage expenses.”

13. It is well settled principle of law that the point regarding desertion is to be decided on the basis of the inference to be drawn from the facts brought on record. Neither brother of the respondent nor any other person has been examined in order to establish the claim regarding attempt on the part of the respondent for reconciliation after disposal of the petition for judicial separation. That apart, the very fact that the respondent after having left the matrimonial house on 24th December, 1993 did not return to the said house till the filing of the petition for judicial separation or any time thereafter, and further filing of the petition for judicial separation discloses her clear intention to desert the appellant and the matrimonial house right from the time when she left the matrimonial house, i.e. on 24th December, 1993. This inference from the evidence on record is inevitable in view of above referred facts which also finds support from the further acts on the part of the respondent whereby after filing of the petition for judicial separation, the respondent also filed a criminal complaint under Section 498A of I.P.C., consequent to which the appellant was arrested. It is also undisputed fact that the said complaint was ultimately dismissed and the appellant was acquitted by the learned Magistrate. This being an appeal, which is a continuation of the original proceedings, relevant facts which have occurred subsequent to the disposal of the proceedings before the Lower Court cannot be ignored and merely because the order of acquittal has been delivered after the disposal of the proceedings before the Lower Court, the benefit thereof cannot be denied to the appellant. In the facts and circumstances of the case, therefore, it is apparent that the criminal complaint filed against the appellant could not be established by the appellant. Evidently, the allegations against the appellant were not established to be true.

14. The evidence regarding leaving of the matrimonial house on 24th December, 1993 and filing of the petition for judicial separation in the month of September, 1994 followed by the criminal complaint, which came to be dismissed subsequently, obviously disclose on one hand desertion of the appellant and the matrimonial house by the respondent and on the other hand causing of mental cruelty to the appellant by the respondent.

15. The Apex Court in Kameswara Rao’s case (supra) had clearly held that filing of the false police complaint results in loss of reputation and standing in society at the instance of one’s spouse, and that amount to mental cruelty and the traumatic experience which the husband had to undergo on account of the allegations which could not be proved certainly results in mental cruelty to the husband by the wife.

16. The Supreme Court in V.Bhagat v. D.Bhagat, [(1994)1 SCC 337] has clearly held that “the mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

17. The Apex Court in Adhyatma Bhattar Alwar’s case (supra) has held that :-
“Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end- animus deserendi;
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;

The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include “willful neglect” of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.”

18. In Smt.Kalpana Srivastava’s case (supra), the Allahabad High Court had held that cruelty is not confined to physical cruelty, but includes mental cruelty. In Rajkishore Prasad’s case (supra), the Patna High Court had held that wife leaving her matrimonial home without any reason or without being driven out and staying separately for two years clearly justifies decree of divorce.

19. Bearing in mind the law laid down by the Apex Court, it is apparent from the materials on record in the case in hand that after leaving the matrimonial house on 24th December, 1993, there was absolutely no attempt on the part of the respondent to reconcile with the appellant or to return to the matrimonial house. Added to this, in September, 1994, she proceeded to file proceedings for judicial separation which obviously disclosed that she was no more interested in joining the appellant and she wanted to disassociate herself from the appellant. The intention as well as action in pursuance of the said intention to desert the appellant and the matrimonial house was therefore very clear from the conduct of the respondent revealed from the day of leaving the matrimonial house i.e. on 24th December, 1993. None of the allegations in the criminal complaint against the appellant and his parents could be established by the respondent and they were acquitted. The parties to the proceedings are educated persons. The filing of the criminal complaint subsequent to the petition for judicial separation obviously disclosed further intention on the part of the respondent to pressurize the appellant to agree for separation, as rightly contended by the learned Advocate appearing for the appellant. The conduct of the respondent, therefore, leaves no room for doubt but to conclude that the same clearly establishes desertion of the appellant for more than two years prior to the filing of the petition for divorce as well as mental cruelty to the appellant.

20. The evidence on record also discloses the attitude on the part of the respondent which was of non-cooperation prior to the day of her leaving matrimonial house. Having agreed to marry with the appellant and to reside with him in his house, it was obvious for the appellant to expect the respondent to follow certain traditions and customs which are followed consequent to the marriage in the family of the appellant but the respondent having refused to participate and cooperate in performing such traditions and customs, it obviously disclosed not only un-cooperative and adamant attitude on the part of the respondent but also caused dissatisfaction to the appellant and thereby being responsible for creating unhappy situation and in the process, if the displeasure was expressed by the appellant, he could not have been blamed. Being so, some minor incidents of quarrels which might have taken place prior to the leaving of the matrimonial house, by no stretch of imagination, could be said to be a sufficient cause for the wife to leave the matrimonial house, and if the cause was a creation of the acts on the part of the respondent herself, she cannot seek to derive any benefit out of the result of such acts to justify the factum of leaving of the matrimonial house on 23rd December, 1993.

21. The learned Single Judge of Punjab and Haryana High Court in Girdhari Lal v. Santosh Kumari, reported in (1982)1 D.M.C. 180, had held that filing of a false complaint would amount to cruelty. The Division Bench of this Court in Sadhana Satish Kolvankar’s case (supra) while rejecting the contention that filing of the complaint under Section 498A of I.P.C. should not be given much importance as the said decision had delivered after the disposal of the petition by the Trial Court and during the pendency of the appeal, held that “all material which is logically probative for a prudent mind cannot be excluded from consideration while arriving at a decision. There cannot be any allergy to look into such material, provided it has a reasonable nexus and credibility. The essence of judicial approach is objectivity, exclusion of extraneous matters from consideration and observance of rules of natural justice. In our view, on these tests, the respondent cannot be denied the opportunity to rely upon this order.” Indeed, the order of acquittal of the appellant though has been delivered subsequent to the decision by the trial Court, the same cannot be ignored, as already held above, as the same obviously relevant while dealing with the allegation of cruelty and defence sought to be raised in that regard by the respondent.

22. For the reasons stated above, therefore, it cannot be said that the appellant had failed to discharge his burden to establish the ingredients of the grounds for desertion and cruelty for the purpose of divorce.. The point Nos.1 and 2 framed above are therefore answered in affirmative.

23. As far as granting alimony is concerned, taking into consideration the amount of alimony being Rs.1,000/-, no doubt, finds it to be either unreasonable or exhorbitant and hence no interference is called for, in that regard. The point No.3 is therefore answered in negative.

24. For the reasons stated above, therefore, the Appeal partly succeeds. The impugned judgment of dismissal of petition for divorce is hereby quashed and set aside. The petition filed by the appellant for dissolution of the marriage on the ground of desertion and cruelty is to be allowed and accordingly is hereby allowed. The order of grant of permanent alimony of Rs.1,000/- to the respondent is, however, not interfered with.  There shall be no order as to costs.

( Anoop V.Mohta, J ) ( R.M.S.Khandeparkar, J )

PIO must provide a readable copy

                                                  Central Information Commission
                           Appeal No.CIC/WB/A/2008/00423-SM dated 26-07-2007
                                  Right to Information Act-2005-Under Section (19)


Dated: 30 September 2009

Name of the Appellant:    Shri Deepak Verma
                                           R/o. WZ-347, Nangal Raya,
                                           Jail Road, New Delhi.

Name of  Public Authority:   CPIO, O/o  D.C.P.,
                                            South West District, New Delhi.

The Appellant was present in person.
On behalf of the Respondent the following were present:-
(i) Shri Vivek Kishore, Addl. DCP/SWD,
(ii) Shri Satya Prakash, Sub Inspector,
(iii) Shri Mandeep Singh Randhawa, ACP/Dwarka.

2. In this case, the Appellant had, in his application dated July 26, 2007, requested the DCP Southwest to inform him about the action taken on his letter dated March 7, 2006 regarding the sale of contaminated liquor at one of the L-2 vends of the Delhi State Civil Supplies Corporation located at Rajnagar Palam, District South West. The CPIO replied on August 25, 2007 and informed him that the matter was pending enquiry and that he would be informed as soon as the enquiry was finalised. Not satisfied with this reply, he approached the first Appellate Authority on October 3, 2007. That authority disposed of his appeal in his order dated October 30, 2007 and directed the CPIO to provide him with a copy of the enquiry report which the CPIO complied with by sending a copy of that report. Still not satisfied, the Appellant has approached the CIC in second appeal.

3. During the hearing, both the parties were present and made their submissions. The Appellant submitted that the copy of the enquiry report provided to him in compliance with the orders of the Appellate Authority was illegible and could not be read. Truly, the copy of the report provided to him can hardly be read as it is dark and smudged at many places. In view of this, we direct the CPIO to provide to the Appellant within 10 working days from receipt of this order a legible typed copy of the enquiry report along with the copies of any other documents in their possession showing the action taken on the March 7, 2006 letter of the Appellant. If no other action had been taken on his letter other than the above inquiry, the CPIO shall clearly say so in his reply.

4. With the above direction, the appeal is disposed off.

5. Copies of this order be given free of cost to the parties.
(Satyananda Mishra)
Information Commissioner


Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.


(Vijay Bhalla)
Assistant Registrar

it was not necessary that in all cases the accused must answer by personally

                                                     Supreme Court of India

PETITIONER: BASAVARAJ R. PATIL AND OTHERS

Vs.

RESPONDENT:STATE OF KARNATAKA AND OTHERS

DATE OF JUDGMENT: 11/10/2000

BENCH:

S.N.Variava, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

J U D G M E N T THOMAS, J. Leave granted. When a criminal court completes prosecution evidence (other than in summons cases) is it indispensably mandatory that the accused himself should be questioned? Can not the court allow the advocate to answer such questions on behalf of the accused at least in some exigent conditions? A two Judge Bench of this Court has held in Usha K. Pillai vs. Raj K. Srinivas & ors. {1993(3) SCR 467} that there is no alternative to it permissible under law. When such an issue arose in this case before this Court, a Bench of two Judges made a reference to a larger Bench for reconsideration of the legal position stated in Usha K. Pillai (supra).

The aforesaid question arose in this case from the following factual background: First appellant a software engineer (now stationed in USA) is the husband of second respondent Ms. Arundathi. Their marriage was solemnised in November 1992 and a female child was born to them. But eventually their connubial life passed through bad weather and the situation reached a stage when Arundathi moved a Judicial Magistrate of First Class for maintenance allowance from her husband. An order in her favour was passed by the said magistrate under Section 125 of the Code of Criminal Procedure (for short the Code).

On 10.3.1993, Arundathi lodged a complaint with the police alleging, inter alia, that her husband and his sister (Kumari Jaya second appellant) and their parents had ill-treated Arundathi for not bringing more dowry; and that she was pestered with persistent demand for more amount of dowry. The police conducted investigation on the said complaint and laid a charge-sheet against both the appellants and their parents. The trial court discharged the mother of the appellants at the initial stage itself and framed a charge against the appellants and their father for offences under Section 3 and 4 of the Dowry Prohibition Act and also under Section 498-A of the Indian Penal Code.

Prosecution examined five witnesses and closed the evidence. When the next stage for examination of the accused under Section 313 of the Code reached the trial court passed the following proceedings:

Evidence closed and statement under Sec/313 Cr.P.C. was kept ready to give opportunity to the accused as prescribed under Sec.313 Cr.P.C. Statement of A-2 father recorded who denied every circumstance, but did not add any further statement. The counsel for the accused filed application for dispensing with the questioning of A-1 & A-4. As A-1 is in America and A-4 is a student studying in Gadag, the counsel has endorsed on their statement that A-1 and A-4 have nothing to say by way of their statements. Considering the reality, A-1 has to come from America the case will unnecessarily be delayed. Hence, on the said endorsement the counsel for the accused was given the opportunity to make statement for A-1 and A-4 and their physical presence is dispensed with. The case is posted for argument.

The trial magistrate thereafter proceeded to hear the arguments and finally passed a judgment acquitting all the accused of the offences charged. Arundathi then filed a revision before the High Court challenging the aforesaid order of the acquittal. A Single Judge of the High Court heard the revision and learned Judge found that as per the decision of this Court in Usha K. Pillai (1993 (3) SCR 467), trial court has no other alternative and has no discretion to dispense with the examination of the accused personally under Section 313 of the Code. Hence the learned Single Judge set aside the order of acquittal passed by the trial court and remitted the case to the trial court with a direction to dispose it of afresh after examining the three accused under Section 313 of the Code.

The father of the appellants passed away in the meanwhile. Hence this appeal was filed by the remaining accused who are the husband and sister-in-law of Arundathi. One of the contentions raised by the appellants is that if the court did not put questions under Section 313 of the Code there is no reason for the complainant to be aggrieved thereof because the prejudice can be caused only to the accused due to non-compliance with the said provision. Next contention is more important and that was pressed into service here, that no criminal court can be rendered absolutely powerless to deal with a situation like this, i.e. if the accused is in such a far away country and when he has to incur a whopping expenditure and undertake a tedious long distance journey solely for the purpose of answering the court questions he himself pleaded that his counsel may be allowed to answer such questions on his behalf.

We are not inclined to deal with the first contention in this case because the High Court interfered with the order in exercise of its revisional jurisdiction. Such jurisdiction can be invoked even suo motu and therefore it is immaterial whether the power of the High Court was exercised on a motion made by the complainant. Now, for dealing with the second contention we may extract Section 313 of the Code:

313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

The forerunner of the said provision in the Code of Criminal Procedure 1898 (for short the old Code) was Section 342 therein. It was worded thus:

342. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (4) No oath shall be administered to the accused when he is examined under sub- section (1).

Dealing with the position as the Section remained in the original form under the old Code, a three Judge Bench of this Court (Fazal Ali, Mahajan and Bose, JJ) interpreted the section in Hate Singh Bhagat Singh vs. State of Madhya Bharat (AIR 1953 SC 468) that the statements of the accused recorded by committal magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box; they have to be received in evidence and treated as evidence and be duly considered at the trial.

Parliament, thereafter, introduced Section 342A in the old Code (which corresponds to Section 315 of the present Code) by which permission is given to an accused to offer himself to be examined as a witness if he so chose.

In Bibhuti Bhusan Das Gupta & anr. vs. State of West Bengal {1969(2) SCR 104}, another three Judge Bench (Sikri, Bachawat and Hegde, JJ) dealing with the combined operation of Section 342 and 342A of the old Code made the following observations: Under Section 342A only the accused can give evidence in person and his pleaders evidence cannot be treated as his. The answers of the accused under s.342 is intended to be a substitute for the evidence which he can give as a witness under sec. 342A . The privilege and the duty of answering questions under sec. 342 can not be delegated to a pleader. No doubt the form of the summons show that the pleader may answer the charges against the accused, but in so answering the charges, he cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken. But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his place.

The Law Commission in its 41st Report considered the aforesaid decisions and also various other points of view highlighted by legal men and then made the report after reaching the conclusion that-

(i) in summons cases where the personal attendance of the accused has been dispensed with, either under section 205 or under section 540A, the court should have a power to dispense with his examination; and (ii) In other cases, even where his personal attendance has been dispensed with, the accused should be examined personally.

The said recommendation has been followed up by the Parliament and Section 313 of the Code, as is presently worded, is the result of it. It would appear prima facie that the court has discretion to dispense with the physical presence of an accused during such questioning only in summons cases and in all other cases it is incumbent on the Court to question the accused personally after closing prosecution evidence. Nonetheless, the Law Commission was conscious that the rule may have to be relaxed eventually, particularly when there is improvement in literacy and legal aid facilities in the country. This thinking can be discerned from the following suggestion made by the Law Commission in the same Report:

We have, after considering the various aspects of the matter as summarized above, come to the conclusion that section 342 should not be deleted. In our opinion, the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.

The position has to be considered in the present set up, particularly after the lapse of more than a quarter of a century through which period revolutionary changes in the technology of communication and transmission have taken place, thanks to the advent of computerisation. There is marked improvement in the facilities for legal aid in the country during the preceding twenty-five years. Hence a fresh look can be made now. We are mindful of the fact that a two Judge Bench in Usha K. Pillai (supra) has found that the examination of an accused personally can be dispensed with only in summons case. Their Lordships were considering a case where the offence involved was Section 363 of the IPC. The two Judge Bench held thus:

A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Since an offence under section 363 IPC is punishable with imprisonment for a term exceeding two years it is a warrant-case and not a summons-case. Therefore, even in cases where the court has dispensed with the personal attendance of the accused under section 205(1) or section 317 of the Code, the court cannot dispense with the examination of the accused under clause (b) of section 313 of the Code because such examination is mandatory.

Contextually we cannot bypass the decision of a three Judge Bench of this Court in Shivaji Sahabrao Bobade & anr. vs. State of Maharashtra & anr. {1973(2) SCC 793} as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three Judge Bench made the following observations therein:

It is trite law, nevertheless fundamental, that the prisoners attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.

The above approach shows that some dilution of the rigor of the provision can be made even in the light of a contention raised by the accused that non questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.

What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. In Jai Dev vs. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

The ultimate test in determining whether or not the accused has been fairly examined under section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.

Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word may in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.

But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in Court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the Court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation?

The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is Summons cases. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a summons case. Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help?

Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the Court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of sessions can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth.

We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word shall in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How this could be achieved?

If the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case.

If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the

Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning.

In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Section 313 of the Code.

In the present case the trial court can pass appropriate orders if an application is made by the accused

relating to the examination under Section 313 of the Code, in the light of the legal principles stated above. This criminal appeal is disposed of accordingly.