Ajay Kumar Das vs State Of Jharkhand & Anr

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1735 OF 2011 ARISING OUT OF S.L.P. (CRL.) NO. 10005 OF 2009

AJAY KUMAR DAS ..... APPELLANT

VERSUS

STATE OF JHARKHAND & ANR. ..... RESPONDENTS

J U D G M E N T

1. Leave granted.

2. This appeal is directed against the order dated

19th August, 2009 passed by the Jharkhand High Court

dismissing the petition filed by the appellant herein

praying for quashing of the entire criminal proceedings

of Balumath P.S. Case No. 68 of 2006 (corresponding to

G.R. Case No. 445 of 2006) in which cognizance was taken

of the offence under Section 304B read with Section 34 of

the Indian Penal Code against the appellant and others.

3. The informant filed a First Information Report

that his daughter was married to the appellant herein in

the year 2002, as per the Hindu rites and custom and that

at the time of her marriage, informant had given

sufficient dowry. It was stated therein that the

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informant's daughter complained about the torture meted

out to her by the father-in-law and the mother-in-law to

her husband, the present appellant who allegedly did not

pay any heed. It was also alleged that on 29th

September, 2006, father-in-law and the mother-in-law

talked to the accused on telephone and in a well-planned

conspiracy caused death of the daughter of the informant.

On receipt of the aforesaid information a case was

registered, thereafter the police started investigation.

After the completion of the investigation, a charge sheet

was filed on 14th April, 2001. An order was also passed

on 17th April, 2007, by the Magistrate taking cognizance

which is also assailed in the present case. The

appellant was granted bail by the High Court on 10th

April, 2007.

4. After submission of the aforesaid charge sheet and

passing of the order taking cognizance, the appellant

filed a petition under Section 482 of the Code of

Criminal Procedure praying for quashing of the proceeding

in the aforesaid manner. The High Court considered the

pleas raised by the parties and thereafter held that the

case is a case of dowry death and that the appellant is

the husband. It was also held that the points taken by

the appellant before the High Court are rather a defence

case and that the same relates to factual dispute. The

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Court also referred to the decision of this Court in

State of Haryana v. Bhajan Lal reported in 1992 Suppl. 1

SCC 335 and also to the settled position of law that

genuineness of the allegations/charge is an issue to be

tried and the Court in exercise of its jurisdiction under

Section 482 of the Code of Criminal Procedure cannot

delve into such factual controversy so as to quash the

proceedings.

5. Learned counsel appearing for the appellant has

challenged the legality of the aforesaid order passed by

the High Court on the ground that no case is made out

against the appellant either under Section 304B or under

Section 34 of the Indian Penal Code as according to him

there is no such allegation in the First Information

Report specifically against the appellant. He has also

submitted that the order taking cognizance is wrong and

disclosed non-application of mind by the Magistrate for

even prior to passing of the said order charge sheet was

already filed. He also took us through the contents of

the case diary wherein statements of seven witnesses have

been recorded to substantiate his submission as

aforesaid.

6. Counsel appearing for the respondents, however,

submits that this is not the stage when this Court should

embark upon a factual inquiry as regards the materials on

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record. It is also pointed out to us that in fact the

appellant would have such an effective opportunity even

at the stage when charges are framed. Counsel also

submits that it is possible and also permissible to alter

the charges and frame charges under some other provisions

of law if it appears to the Court that material for

framing such charge under other sections are also

available on record.

7. Having heard the learned counsel appearing for the

parties, we may appropriately refer to a decision of this

Court in Shanti & Another v. State of Haryana reported in

AIR 1991 SC 1226. What was considered in that case by

this Court was a case of dowry death under Section 304B

and also a case of 498A of the Indian Penal Code. While

dealing with the aforesaid provisions, this Court has

held that the two sections are not mutually exclusive.

It was also held that a person charged and acquitted

under Section 304B could be convicted under Section 498A

without charge being there if such a case is made out.

This Court, however, hastened to add that to avoid

technical defects it is necessary in such cases to frame

charges under both the sections and that if the case is

established then they can be convicted under both the

sections but no separate sentences need be awarded under

Section 498A in view of the substantive sentences being

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awarded for the major offence under Section 304B. In

that decision, this Court considered the scope and ambit

of Section 304B IPC and also of Section 498A IPC.

Reference was also made to provisions of Section 113B of

the Evidence Act. It was held that Section 113B of the

Evidence Act lays down that if soon before the death such

woman has been subjected to cruelty or harassment for or

in connection with any demand for dowry then the Court

would presume that such a person has committed the dowry

death. It was also held that the meaning of 'cruelty'

for the purpose of this Section has to be gathered from

the language as found in Section 498A and as per that

Section 'cruelty' means 'any wilful conduct which is of

such a nature as is likely to drive the woman to commit

suicide or to cause grave injury or danger to life, limb

or health (whether mental or physical) of the woman or

harassment of the woman where such harassment is with a

view to coercing her or any person related to her to meet

any unlawful demand for any property or valuable security

or is on account of failure by her or any person related

to her to meet such demand.'

8. Our attention is also drawn to the decision of

Mahbub Shah v. King Emperor (1945) 72 Indian Appeals 148.

In the said decision, it was held that to invoke the aid

of Section 34 IPC exclusively it must be shown that the

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criminal act complained against was done by one of the

accused persons in furtherance of common intention of all

and if that is shown then the liability for the crime may

be imposed on any one of the persons in the same manner

as if the acts were done by him alone. It was further

held that it is difficult if not impossible to procure

direct evidence to prove the intention of an individual;

in most cases it has to be inferred from his act or

conduct or other relevant circumstances of the case.

9. This Court in the decision of Bengai Mandal alias

Begai Mandal v. State of Bihar reported in (2010) 2 SCC

91 after referring to some allied decisions of this Court

held that the position with regard to Section 34 IPC is

crystal clear and that the existence of common intention

is a question of fact. It was held that since intention

is a state of mind it is, therefore, very difficult if

not impossible to get or procure direct proof of

intention and, therefore, courts in most cases have to

infer the intention from the act or conduct of the party

or other relevant circumstances of the case.

10. Counsel appearing for the appellant also drew our

attention to the same decision which is relied upon in

the impugned judgment by the High Court, i.e. the case of

State of Haryana v. Bhajan Lal and others reported in

1992 suppl. 1 SCC 335. In the said decision, this Court

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held that it may not be possible to lay down any specific

guidelines or water tight compartment as to when the

power under Section 482 Cr.P.C. could be or is to be

exercised. This Court, however, gave an exhaustive list

of various kinds of cases wherein such power could be

exercised. In paragraph 103 of the said judgment, this

Court, however, hastened to add that as a note of caution

it must be stated that the power of quashing a criminal

proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases

for the Court would not be justified in embarking upon an

inquiry as to the reliability or genuineness or otherwise

of the allegations made in the First Information Report

or in the complaint that the extraordinary or the

inherent powers do not confer an arbitrary jurisdiction

on the Court to act according to its whim or caprice.

11. Keeping the aforesaid legal principles in our

mind, we now proceed to examine the contentions raised by

the counsel appearing for the appellant in order to

ascertain and find out whether a case for quashing is

made out in the facts of the present case. In the First

Information Report, there is an allegation that the two

other accused persons namely Ishwar Das and his wife

Sunita Devi on the fateful day after talking to the

present appellant over telephone in a pre-determined

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manner killed the informant's daughter Bimla Devi by

pushing her into a well. Counsel appearing for the

appellant even sought to counter the said allegation by

referring to a document issued by the Commanding Officer

to the appellant dated 19th November, 2006. In the said

note, which was sent to the Superintendent of Police, it

is mentioned that as per the statement of the appellant

his wife Bimla Devi fell inside the well. The aforesaid

document is in the nature of a defence and could be

looked into by the appropriate Court at the appropriate

stage and not now. What we are required to look at this

stage is the allegations made in the complaint and in the

First Information Report. He also referred to some of

the statements made in the case diary to justify the

stand that no case against the appellant is made out.

12. We are, however, unable to accept the said

contention at this stage for we find that there was a

demand for giving cows, motor cycle and other goods. All

these allegations will have to be dealt with by the Court

at different stages for which liberty would be available

to the appellant. In our considered opinion, this is not

the stage when the Court would make an inquiry into the

factual position to find out as to whether or not the

appellant is guilty of the charges or not. The

appellant, in our considered opinion, will have

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sufficient opportunity to place his entire case before

the Court at the time of framing of the charge since

charge sheet has already been filed against the appellant

also holding that a case under Section 304B and Section

34 is made out. We do not wish to enter into the factual

details for any discussion on them at this stage as the

same may prejudicially affect the case of the appellant.

We are, however, of the considered opinion that on a

reading of the First Information Report and the materials

that are available in the case file of the appellant that

no case is made out so as to quash the entire proceeding.

Therefore, while rejecting the contention of the counsel

appearing for the appellant so far quashing of the

proceedings is concerned we give him the liberty to raise

all his defence as may be available to him in accordance

with law at the time of framing of the charge and at that

stage the Court shall consider the material on record as

also the contentions raised by the appellant in proper

perspective and decide the matter in accordance with law.

We also make it clear that any observation made by us

herein would not be in any manner construed as our

observations or views with regard to the merit of the

case or the defence of the appellant.

13. In terms thereof, we dismiss the appeal but with

the aforesaid liberty granted to the appellant. The stay

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of further proceedings before the trial court granted

vide this Court order dated 22nd October, 2010 stands

vacated.

.......................J [Dr. MUKUNDAKAM SHARMA]

........................J [ANIL R. DAVE] NEW DELHI SEPTEMBER 6, 2011.