Sunday, April 27, 2008

CENTRAL INFORMATION COMMISSION

Block IV, 5th Floor, Old JNU Campus
New Delhi 110067

Appeal No.CIC/AT/A/2006/00074 dated 21.4.’06
Appeal No.CIC/WB/A/07/00679 dated 22.5.’07

Complainant/Appellants:
Mrs. Guninder Kaur Gill
Shri Prabhakar, DCP EOW


Respondents:
Shri Prabhakar, DCP EOW
Shri Jai Parakash APIO
Smt. Bimla Maken, ADJ

Date of Hearing: 31.07.2007
Date of Decision: 02.08.2007

Facts:
By an application of 29-12-‘05 Ms. Guninder Gill of Safdarjung Enclave,
New Delhi applied to the Additional Commissioner Police (Crime) Delhi Police
Hqrs. seeking information on 3 sets of requests:
“1. In the charge sheet submitted by the Crime Branch in the above
court the Crime Branch had taken to investigate the role of
Deutsche Bank to determine their complicity in the crime in
question and to investigate that angle further as some
discrepancies with respect to the statement of Deutsche Bank were
noted. (“Correspondence of the lawyers of Deutsche Bank with
accused BN Singhvi even after the said full and final settlement had
arrived at remain unexplained. Clarification of these points may be
sought from the bank in due course”)
Hence, under the RTI Act please inform to the undersigned:
i. Was any investigation conducted as stated in the charge
sheet to ascertain the complicity of DB?
ii. If yes, what were the results?
2. Vide the undersigned’s letter dated 20.06.05 addressed to Jt CP
(Crime), it was mentioned that the procedure in German Courts is
that the claimant or representative can also sell the claim in the
third party’s name-in this regard- the undersigned requested the
Crime Branch to re-write to Deutsche Bank to obtain the written
statement of their German HO officials on this point.
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Hence under the RTI please inform the undersigned:
i. Was any clarification sought by the Crime Branch on this
point from Deutsche Bank German officials?
ii. If so, a certified copy of the letter and the reply of the
Deutsche Bank officials be provided.
3. As per the Indian Evidence Act, a statement of the German
officials regarding filing of a case in Germany by BN Singhvi
(accused is required to be filed in the trial court. The undersigned,
hence requested as per letter dated 22.08.05 addressed to Joint
Commissioner (Crime) to request Kanga & Co solicitors, who had
replied vide letter dated 25.04.05 on behalf of Deutsche Bank to
provide a copy of the statement of the German officers of Deutsche
Bank as they were holding.
Under the Right to Information Act please inform me:
i. Did Crime Branch write to Kanga & Co/Deutsche
Bank to obtain the statements of the German officials of
Deutsche Bank held by them?
ii. If so, a copy of the letter be certified and provided to
the undersigned.
iii. A copy of the reply of Deutsche Bank/Kanga & Co. in
this regard be certified and provided to the undersigned.
The said requests led to the following questions:
“Under the Right to Information Act, please inform the undersigned:
1. If any investigation was done by the Crime Branch with respect
to these allegations concerning Sh Rajat Singhvi and Smt Asha
Singhvi or not?
2. If yes, what was the conclusion of the investigation?
3. Certified copy of report/findings/investigation of Crime Branch
be provided.
4. Were any specimen signatures of Sh Rajat Singhvi and Smt
Asha Singhvi obtained for purposes of examination and
comparison with the fabricated documents?
5. if yes, certified copies of the same to be supplied to undersigned
including copy of the FSL expert opinion with respect to the
same.
6. The charge sheet made by the Crime Branch relies solely on
the reply of certain officials of Deutsche Bank India who have
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clarified that they have based their reply solely on some records
provided by their Singapore Branch vide their letters dated
6.12.05 and 25.04.05.
Under the Right to Information Act, kindly inform me:
i) Did the Crime Branch send any letter of rogatory to
Deutsche Bank in Germany to obtain the answers in a
format that is legally admissible as evidence as per
the Indian Evidence Act?
ii) If yes, certified copy of the same and reply thereof be
provided to the undersigned.
iii) If not, what is the legal basis of the administrative
decision not to send the letter rogatory in terms of the
Indian Evidence Act?
iv) What is the evidential value of the statement of
Deutsche bank Mumbai officials based on records
solely of Deutsche Bank Singapore Branch with
respect to filing of a case against Deutsche Bank in
Germany? Would it be considered as “proved”,
“disproved or “unproved” as per the Indian Evidence
Act?
v) In this regard, if the crime branch has taken any legal
opinion of the Public Prosecutor, the same be
supplied.
On complaining about the role of Sh. Rajat Singhvi, son of accused
in the above crime, the undersigned had requested the Crime
Branch to seize the computer used in the office of BN Singhvi and
send it for analysis.
Under the Right to Information Act, kindly inform me if the Crime
Branch sent the hard disk of the computer used in the office of BN
Singhvi for analysis to the Forensic Science Laboratory as
requested?
i) if yes, a certified copy of the report may be provided to the
undersigned.
ii) A certified copy of the dump of the hard drive may also be
provided to ascertain if the accused, BN Singhvi engaged in any
correspondence with Deutsche Bank, their solicitors Messrs Rajah
or any third party negotiating on behalf of Deutsche Bank.
1. The undersigned vide
her letter dated 26.09.05 addressed to Jt. CP (Crime) had
requested the Crime Branch
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To file a certified copy of the correspondence with Deutsche Bank
in the trial court to enable the complicity of Deutsche Bank to be
established.
Under the Right to Information Act-please provide with the following
information:
i) Was the correspondence with Deutsche Bank as
requested filed by the Crime Branch in the trial court?
ii) If not kindly provide the basis of the administrative
decision, not to do so.
2. Vide letter dated
21.09.04 addressed to Jt. CP (Crime), the undersigned had
mentioned that the accounts and assets of BN Singhvi be frozen.
In this regard the following information be supplied under the RTI
Act to the undersigned.
i) Whether any account and assets of BN Singhvi was frozen?
ii) If yes, details thereof.
3. Vide letter dated 16-
8-05 the undersigned had requested that the Bar Council of
Maharashtra be intimated where accused BN Singhvi is registered
as advocate vide membership No.560, to take appropriate action
against him.
4. Under RTI Act kindly
inform the undersigned:
i) Whether Bar Council of Maharashtra was intimated by the Crime
Branch or not?
ii) If yes, what action has the Bar Council of Maharashtra taken?
Certified copies of the same be provided.”
In his response of 19-1-2006 Shri Muktesh Chander stated as follows:
“It is to inform you that case FIR No. 395/2004 u/s
406/409/420/467/468/471 IPC PS Connaught Place was registered
on your complaint. After investigation of the case, charge sheet was
filed in the Hon’ble trial court of MM, Patiala House, where the case
is pending trial and is at prosecution evidence stage. The next date
of hearing in the case is fixed for 31-1-2006. The EOW has
informed that throughout the investigation of the above FIR, you
were kept informed of the developments in investigation.
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The information/documents sought for pertaining to the above case
fall under the “Exemptions from disclosure of information. Thus,
the information/documents sought for by you cannot be provided
u/s 8 (1) (h) of the RTI Act 2005.
Against this denial you may file an appeal to the Appellate Authority
i.e. Jt. Commissioner of Police, Crime, Delhi Police Hqrs. IP Estate,
New Delhi within the stipulated time as per provisions in the above
said Act, if so desired.”
In short, the PIO has sought protection of Section 8 (1) (h) in refusing
disclosure of the information sought. Appellant Ms. Guninder Gill therefore,
moved her first appeal on 9-3-2006 before the Jt. Commissioner, Police (Crime)
PHQ New Delhi in which she has disputed that the information sought is
exempted from disclosure u/s 8 (1) (h) arguing as follows:
“Firstly the information asked for by the appellant/complainant is not
covered under this clause as investigation as per EOW is over the
moment they filed the charge-sheet in the Court, it is also not
covered under the second clause of the prosecution of offenders as
the accused is being prosecuted in the trial court where the
examination of the complainant is underway and is fixed for 31-3-
2006, for further examination and the information asked for by the
appellant/complainant would rather help the appellant to get the
accused prosecuted properly and also to ensure that the role of the
other accused persons is brought to the attention of the concerned
court.”
She also pleaded that the denial of the information sought would in fact
help the accused Shri B.N. Singhvi to “get away with the crime”.
The appellate authority Shri Ranjit Narayan, Jt. Commr. Of Police, Crime
had observed as follows:
“With regard to the investigation in respect of Shri Rajat Singhvi,
comments have already been given above. As regards seizure of
computers from the office/residence of the accused, it may be
mentioned that two computers were seized during investigation.
Hard disk of the said computers along with the questioned
writing/material were sent to GEQD, Hyderabad for comparison.
Opinion of GEQD has since been received which had
positively supported the case of Prosecution.1 The said
1 Emphasis ours
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GEQD’s opinion and the connected records are being submitted in
the court through supplementary challan.
It has already been stated above that during investigation no
evidence to establish the complicity of the Deutsche Bank officials
in the commission of the crime was noticed.”
However, he concluded by stating as follows:
“All the details/documents sought for pertaining to the above
case cannot be provided under the exemption clause 8 (1) (h)
of the RTI Act, 2005.”
Aggrieved by this decision Ms. Gill has moved her second appeal before
us on 19-4-06 in which her prayer was as follows:
“In the light of above facts and grounds, it is, therefore, most
respectfully prayed that the order dated 21-3-06 of Shri Ranjit
Narayan, Jt. Commissioner of Police (Crime) Police Hqrs, New
Delhi may kindly be struck down and they be directed to provide the
information asked for in the enclosed application and appeal, to the
appellant/complainant at the earliest.”
In response to the appeal notice Shri Ranjit Narayan through his letter of
17-5-‘06 responded to each of the grounds of appeal, but re-asserted the
application of Section 8 (1) (h) in this case while stating that “a speaking order
was passed addressing the possible queries of the appellant vis-à-vis the
referred case.”
On this basis the appeal was heard on 8-6-06 by a double Member Bench
consisting of Information Commissioner Shri A.N. Tiwari and Information
Commissioner Prof. M.M. Ansari who in a decision notice dated 8-6-06 had
directed as follows:
“Upon hearing the arguments in the case we notice that there is a
certain lack of clarity regarding what exact information the appellant
now needs after what she has already received from the public
authority through its CPIO. The appellant may, therefore, send a
clarificatory letter to the CPIO listing the exact information she
requires. The CPIO shall process the appellant’s communication
within 10 days of its receipt as per the provisions of the RTI Act and
make a suitable response.”
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Accordingly, in her letter of 4-8-06 Ms. Guninder Gill detailed the
information that she has sought to Shri Mukhtesh Chander, Addl. Commnr.
Crime and CPIO categorized under the following heads:
i) Hard drive
ii) Deutsche Bank
iii) Other Accused
To this she received a response from Addl. Commr. Crime and PIO in
which although some information has been given under each head, it is stated
that the GEQD, Hyderabad’s opinion, to whom the hard discs have been sent,
has been submitted in the learned Trial Court and hard discs stand deposited in
the Police Station Malkhana. However, information sought has again been
argued to be exempt u/s 8 (1) (h) of the RTI Act under all three heads. Pleading
non-compliance and therefore contempt towards orders of the Central
Information Commission by the Crime Branch of Police Hqrs. Ms. Guninder Gill
moved a further petition before us on 13-9-‘06 in which her prayer repeated the
request made in her first appeal. She followed this up with another letter of 15-
12-‘06 accusing respondents of misrepresenting the facts before the Commission
and of an effort at intimidation. In the meantime Information Commissioner Shri
A.N. Tiwari constituting the bench hearing the case reported through a note on
file on 11-6-2007 as follows:
“There is no doubt that the behavior of the appellant in this case
was offensive and contemptuous. In the absence of specific
powers of the Commission to deal with such outbursts of anger and
offensive behavior by appellants during hearings, no precise action
could be taken at that moment against the appellant, or even later.
I was not inclined to initiate any action, which would later on turn
out to be indefensible, or could even be embarrassing to the
Commission.
After careful consideration, I have decided to desist from pursuing
any action against the appellant. However, I would like to that this
appeal is better heard by another Bench, preferably a Division
Bench, on a date considered convenient to the Bench.”
Accordingly since the Chief Information Commissioner constitutes the
present Bench for Delhi Police a full bench was constituted for hearing this case
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comprised of Chief Information Commissioner Wajahat Habibullah, Information
Commissioner Prof. M.M. Ansari and Information Commissioner Mrs. Padma
Balasubramanian.
In the meantime, we were approached by Shri Prabhakar, DCP & PIO
EOW Crime, Delhi with an appeal against the order passed by Smt. Bimla Makin,
A.D.J. in the office of District & Session Judge, Delhi and First Appellate
Authority under the RTI Act: The appellant appeared personally and he was
heard by the CIC on 5-7-07. The appellant has prayed staying of an impugned
order passed by the FAA.
In this appeal petition, the appellant had submitted as follows:
i) “Subject matter being a hard disk has been seized in
connection with a criminal case and that the trial court has
rejected giving a copy of the said hard disk.
ii) RTI application in the instant case was moved before the
Director of Prosecution and that neither the Director of
Prosecution nor the office of the District & Sessions Judge,
Delhi, are the appropriate public authorities for entertaining
the RTI application.
In regard to a similar matter, an appeal has already been
pending before the CIC which was listed for hearing today by the
Full Bench and the hearing has been adjourned at the request of
appellant Smt. Guninder Gill.”
In this case appellant has challenged the order dated 2-6-2007 passed by
Ms. Bimla Makin, 1st Appellate Authority of the office of District & Sessions Judge
under the RTI Act. The appeal was to be heard on 17-7-07 and notices to that
effect were issued to the appellant as well as to the FAA. The appellant
appeared again and produced a copy of the order passed by the FAA whereby
the appellant had been directed to appear before the SHO, PS Sarojini Nagar on
13-7-2007 for the purpose of handing over copies of the hard disc that is the
subject matter of appeal. The appellant had also submitted that if stay is not
granted, the appeal petition filed by him will be rendered infructuous.
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Under these circumstances, the Commission was satisfied that this is a fit
case that justifies grant of a stay. Accordingly, it was ordered that the operation
of the impugned orders dated 2-6-07 and 13-7-07 passed by the FAA shall
remain stayed till the 2nd appeal submitted before this Commission is heard and
decided.
Accordingly, both the cases were clubbed for a hearing on 31-7-2007.
The case was heard by full Bench and following are present
Appellant:
Ms. Guninder Kaur Gill (observer in case No 000679)
Respondents:
Shri Prabhakar, DCP/EOW, PIO (appellant in case No 00679)
Shri Rajinder Singh Ghumman, DCP, Legal Cell (-do-)
Shri R.S. Chauhan ACP/IO, EOW Crime (-do-)
APIO, Patiala House Court
Shri Ajit Singh, APIO/Supdt, District court, Tis Hazari, Delhi
Mr. Iqbal Khan, Sr. Asstt, Tis Hazari Delhi
Shri A.K. Gupta, PIO of Director of Prosecution
Observers:
Mr. M.K. Tyagi,
Ms. Jasbir Gill
Submissions by Appellant:
Opening the argument, the appellant Ms. Guninder Gill raised strong
objection to the presence of Shri Prabhakar, DCP EOW and said that the matter
has already been decided and disposed of by the Central Information
Commission and as per the said order; the information had to be provided within
10 days of the order. The duty of the police is to assist the citizens. Appellant
had suffered a huge theft of money, information about which is contained in the
hard disk that is in the Malkhana of PS Sarojini Nagar in the form of case
property. Unless the case property is disclosed, she would not be able to get her
money.
The appellant said when the order of the appellate authority was not
complied, she had to file contempt petition. She therefore argued that PIO has a
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personal liability and he has to appear himself rather than DCP Prabhakar EOW
or DCP (Law) PHQ appearing on his behalf.
Ms. Gill produced a copy of a note addressed by Shri Shantanu
Sen, OSD, Public Grievances to the Lieutenant Governor, Delhi addressed to the
Commissioner of Police Delhi dated 20-6-07, which concludes as follows:
“Shri R.S. Chauhan ACP declaring himself as “Crl. (Criminal)
Counsel, GNCT of Delhi” has filed a criminal writ against this order
in the Delhi High Court and obtained interim ex parte stay. He
appeared himself in the Hon’ble High Court. The State Govt.
consent in a State Appeal is sacrosanct. This prima-facie could be
misconduct and after due examination and deliberation, a report
may be sent for LG’s perusal.”
Ms Gill therefore argued that Mr. Prabhakar DCP EOW or Shri R.S.
Ghumman, DCP (Law) are not entitled to represent the State as they have no
authority to be present. They have been continuously disregarding the orders of
the Director of Prosecution as well as of the LG of Delhi. These officers having
been rejected by the High Court should not be entertained by the CIC. She
wanted them to show their vakalatnama for the appearance on behalf of the
State.
Appellant Ms. Guninder Gill said that they had submitted the report before
the trial court only after one and a half years of receiving the same. As per
section 25 Cr.P.C. once challan is filed in the court, the jurisdiction of the
investigating agency is over. The respondent opposed her application for
information before the court but the public prosecutor who represents the State
supported her application before the court. Filing of 261 pages of the hard disc
before the trial court as mentioned in the order of the Metropolitan Magistrate is
only a misstatement by respondents. The prosecution is not relying on 261
pages but on all the 3 hard discs in their entirety. The police is only being
recalcitrant saying that the prosecution is relying only on 261 pages.
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Appellant submitted that the respondents have only on 13.3.2007 at 5 PM
rushed to the Malkhana and sent the hard discs hurriedly to Hyderabad so that
the appellant should not get copy of the hard discs. She also objected to the
respondents saying that they would place before the trial court “only documents
relevant to the case”.
Appellant submitted that on the asking of the respondents, she
approached the trial court where instead of supporting the appellant, they
opposed her. She also approached two agencies for copies of evidence at any
stage of trial under the High Court Rules. She only wanted electronic documents
of the hard discs and not printouts because in the electronic documents she
could be sure that they had not been tampered with. Appellant said that
therefore she is not asking for any case property. She is only asking for its
copies in electronic form.
Appellant submitted that the Investigating Officer (IO) before depositing
the case property in Malkhana should have taken permission of the Trial Court
for doing so. The case property is now the property of the court and not the
property of the respondents. She said that if the police wishes to keep an object
in Malkhana, it has to apply to the court for permission and the permission is
granted only on an indemnity being executed by the police to the effect that as
and when the same is required by the court, it should be produced before it.
Appellant also raised objection as to why the police have removed the
case property from Malkhana of PS Sarojini Nagar when there is order not to
move the case property from the said Malkhana.
Submissions by Respondents:
To appellant’s argument regarding orders of the OSD , LG’s office Shri
Ranjit Narain Jt Commissioner has responded through a letter of 18-7-07 in
which he has addressed each of the questions placed before Lt. Governor and
also requested Secretary to LG to look into the circumstances in which an official
reference emanating the office of LG and addressed to the Commissioner of
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Police came into the possession of Ms. Guninder Gill, which in his view was “to
the detriment to the investigating agency and to the writ petition filed in the High
Court by the investigating agency leading to dismissal on technical grounds”.
We observed that the respondents have continuously denied information
to the appellant on the ground of 8(1) (h) of the RTI Act. Considering that the
case was initiated on the basis of an FIR filed by appellant Ms Gill, respondents
were asked to justify how 8(1) (h) applies in this case. In response respondents
submitted that the information contained in 3 hard discs and 3 cases are
registered against the same persons, B.M. Singhvi, Advocate. These properties
belonged to B.N. Singhvi. If we open the seal and disclose the information to Ms.
Guninder Gill, the only person who is going to be benefited will be the accused.
In the process, the hard disc if opened may be destroyed and can spoil the
prosecution case.
We asked the respondents that, if disclosing the contents of the hard
disc would compromise the case of the appellant, then why did they not simply
tell her so instead of denying information under 8(1) (h). Respondents submitted
that firstly, the information sought was about giving of hard disc, later it was
changed to a request for image of those hard discs. We had to send that hard
disc to Hyderabad after formulating certain questionnaires and filed the same
before the trial court.
Respondents submitted that Ms. Guninder Gill had already approached the
trial court for the same information but the trial court had rejected her request.
Prosecution relied only on 261 pages, which were report based on the
questionnaire formulated by them. Even now, they do not know what exactly is
contained in the hard disc. Ms. Guninder Gill subsequently engaged an
Advocate B.N. Singhvi who misrepresented by showing certain forged
documents and said that he was pursuing the matter in a German court and
defrauded her of huge sum of money. The said B.N. Singhvi was arrested and
has been in jail for 3 years now.
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When asked that since the information was not held by respondents, why
did they not transfer the same to the authority that held it, respondents said that
they have no conflict with the Directorate of Prosecution but the disclosure of
information would impede the prosecution.
Respondents further submitted that the Investigating Agencies do not take
any order from the Directorate of Prosecution. In this connection, Shri Prabhakar
PIO relied on the judgment of the Supreme Court in `R. Sarala vs. T.S. Velu &
ors.’ Reported in 2000 II AD (Cr.) SC 237 which held that
“The power of the Officer-in-Charge of the police station is subject
only to the supervision of superior police officers in rank as
envisaged in Section 36 of the Criminal Procedure Code. There is
no stage during which the investigating officer is legally
obliged to take the opinion of a Public Prosecutor or any
authority, except the aforesaid superior police officer in rank.”
2
But the detailed judgment in this case also explained as follows:
“Investigation and prosecution are two different facets in the
administration of criminal justice. The role of Public Prosecutor is
inside the court, whereas investigation is outside the court.
Normally the role of Public Prosecutor commences after
investigating agency presents the case in the court on culmination
of investigation. Its exception is that Public Prosecutor may have to
deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is
unjudicious as well as pernicious in law. At any rate no
investigating agency can be compelled to seek opinion of a Public
Prosecutor under the orders of court. Here is a case wherein the
investigator officer concerned is directed by the High Court to take
back the case from the court whereas it was laid by him after
completing the investigation and he is further directed to consult the
Public Prosecutor and submit a fresh charge-sheet in tune with the
opinion of the Public Prosecutor, is such a course permissible in
law?”
Respondents submitted that they are here to help the complainant and not the
accused. They will do every thing possible within the four walls of law to help
2 Emphasis ours
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Ms. Guninder Gill as they have already done. They have sent all the 3 hard
discs to the Hyderabad laboratory on 17.7.’06 and are waiting for their print-out.
Once they have received the printouts, they will decide what documents out of
those printouts are relevant to the case and then they will produce the same
before the trial court.
Respondents submitted that the appellant submitted her first application on
10th October, 2006. On 18th November, the then Directorate of Prosecution
treated this application under the RTI Act and asked the appellant to deposit
fees. PIO of the prosecution bifurcated the RTI request of the appellant and sent
one copy to DCP, New Delhi and another to PIO of District Courts Tis Hazari,
which cannot exercise the jurisdiction of an appellate authority over the
jurisdiction of another public authority. He said that two parallel proceedings
under the RTI Act cannot take place simultaneously at two places.
Shri Prabhakar clarified that the moment an item involved in a crime
is seized, it becomes case property. Release order for this case property
can be passed only by the trial court. This is no longer the property either
of respondent or Director of Prosecutions. Respondents further submitted
that the information asked by the appellant is contained in hard disc that is a
case property that is kept in Malkhana as documents are kept as documents in
judicial files.
Director of Prosecution was and is aware of the order of the trial court
dated 16th October, 2006. The prosecution itself knows that once a case
property is seized through seizure memo, neither the investigating Agency nor
the Prosecution is owner thereof except the trial court. The Metropolitan
Magistrate, New Delhi in his order dated 16-1-2006 has directed as follows:
“However, after hearing the submissions and going through the file
I am of the view that she is not entitled to get the certified
copies of the said Hard Discs as sought in the present
application, as she is entitled only to the documents which are
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relied upon by the prosecution whereas the alleged Hard Disc,
recovered from the accused in some other matter, also contain
some personal information of the accused. 3 In the facts of the
case the prosecution is relying upon a set of 259 computer
generated pages technically stated as images of the in stored text
of the Hard discs recovered whose copies have already been
supplied to the complainant and thus she is not entitled to get more
than that relied upon. Moreover the apprehension of the IO that the
same may be corrupted during the whole process and it is quite
risky to de seal the same unless the same is proved by the GEQD
is justified.”
Respondents are holding this information for the trial court. The order
passed by the APIO, Patiala House, therefore, constitutes contempt of the trial
court.
Respondents submitted that APIO is not empowered to entertain RTI
applications. He is to discharge only certain responsibility in the absence of the
PIO. He himself says that he is not custodian of the case property. He therefore
has no authority to direct the case property to be given to Ms. Guninder Gill.
Respondents further reiterated that neither they nor the Directorate of
Prosecution has any power under the Cr.P.C. to decide the fate of the case
property. He wanted the prosecution to cite one single precedent where the
Directorate of Prosecution has asked the Investigating Officer to disclose case
property to the complainant.
Arguments of Prosecution Branch, Patiala House:
Mr. Khan of the Prosecution Branch, New Delhi Courts, Patiala House
submitted that the application of Ms. Guninder Gill was forwarded to them by the
Directorate of Prosecution. One copy of it was sent to PIO of District & Sessions
Court and another copy to DCP New Delhi District. It was thus sent to two
Public Authorities. He cited the provisions of Sec 6 (3) the RTI Act, whereby if
one Public Authority does not have the information sought, he forwards it to
another Public Authority who holds that information. Therefore, this Public
3 Highlighted by us
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Authority sent the request to APIO of the Trial Court, New Delhi Courts, Patiala
House where the trial was being held. They also wrote to the Ahlmad of the
court asking him that copy of the hard disc be prepared and supplied to the
appellant. However, he did not supply the same. Instead, the Ahlmad said that
hard discs are not deposited in the court and is still lying with the Malkhana. In
this connection, Smt. Mamta Sehgal and DCP were also approached. They did
not give this information to the appellant because they did not have this
information.
APIO, Patiala House Court has not ordered disclosure but has observed that,
“In view of the above facts it is directed that a copy of this order
along with copy of application dated 12-12-2006 be sent to Ms.
Mamta Sehgal, Ld. Appellate Authority and the Ld. District &
Sessions Judge, Delhi, seeking further instructions/directions in
the matter. A copy of the order be also sent to Shri Paul, PIO, Dte.
Of Prosecution and DCP/PIO, New Delhi District for information
and further action under intimation to this office.”
PIO Directorate of Prosecution:
PIO, Directorate of Prosecution who was present in the hearing raised the
following objections on a point of law: he referred to Section 19(1) of the RTI Act
and submitted that the said section does not empower any PIO or APIO to file an
appeal before the CIC and as per the said provision, it is only the aggrieved
‘person’ who is the information seeker who can file such appeal. He further
submitted that if PIO or CPIO starts filing appeal before the CIC, the entire
purpose of RTI Act will become infructuous.
Points:
- Respondents made no submission on the maintainability of their appeal.
In fact, they were silent when the PIO, Prosecution referred to provisions
of Section 19 of the RTI Act according to which only information seeker
has the right to prefer appeal before the CIC.
- It was not specifically pleaded whether the case property can be disclosed
to the appellant.
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- The appellant also did not make submission on vacation of stay or
compliance of the order of Smt. Bimla Maken.
The issues to be decided, inter-alia, are —
1. Whether the information sought by the appellant Ms. Guninder Gill falls
under the exclusion clause of Section 8(1) (h) of the RTI Act?
2. Whether the petition moved before us by Ms Gill is to be treated as a
further hearing of the appeal or as a contempt petition
3. Whether the CPIO, who represents a public authority has the authority u/s
19 (1) to move an appeal against the orders of an appellate authority of
another public authority?
DECISION NOTICE:
Issue No.1:
It is quite clear that this is a prosecution initiated at the behest of appellant
Ms. Guninder Gill. It is also clear that investigation has been completed and the
matter is at the stage of prosecution. The judgment cited by respondents in
support of their argument is “R. Sarla vs. T.S. Velu & Ors.” But the detailed
judgment in this case also explained as follows:
“Investigation and prosecution are two different facets in the
administration of criminal justice. The role of Public Prosecutor is
inside the court, whereas investigation is outside the court.
Normally the role of Public Prosecutor commences after
investigating agency presents the case in the court on culmination
of investigation. Its exception is that Public Prosecutor may have to
deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is
unjudicious as well as pernicious in law. At any rate no
investigating agency can be compelled to seek opinion of a
Public Prosecutor under the orders of court. Here is a case
wherein the investigation officer concerned is directed by the High
Court to take back the case from the court whereas it was laid by
him after completing the investigation and he is further directed to
consult the Public Prosecutor and submit a fresh charge-sheet in
tune with the opinion of the Public Prosecutor, is such a course
permissible in law?”
18
This decision will apply quite understandably at the investigation level, but
not at the level of prosecution. As explained by appellant in the hearing she
needs to satisfy herself that the police is not seeking to cover up for the accused
in this case as a result of suspicion having aroused for the reasons mentioned in
her petition to the LG. We can, therefore, find no grounds for respondents
denying information sought to appellant on the basis of Section 8 (1) (h)
when she herself is the initiator of the prosecution and the director of prosecution
agreeing that this is not the case. It will be clear from the above that this matter
had been referred to GEQD, Hyderabad whose report had also been received.
This was, in fact, made clear in the order of the First Appellate Authority on 21-3-
06. We find however that as admitted by respondent in the hearing they have
again sent the impugned document/discs to GEQD Hyderabad on 17-7-2007,
after the issue of stay order by us at their request. Although, Shri Prabhakar,
CPIO apologized for this contempt during the hearing this has led us to suspect
the bonafides of the Delhi Police (Crime branch) in pursuing this case.
This brings us to the argument that the documents sought are the property
of the court and moreover in light of the orders of trial court their disclosure will
amount to contempt of court. They have contested the authority of the Ahlmad in
stating that the information is not the property of the Court. Even if this argument
is accepted, in that case the request for information should have been transferred
to the trial court u/s 6 (3) (i). This has not been done. Instead respondents have
repeatedly denied access to appellant Ms Gill on the grounds of Sec 8(1) (h).
The appellate authority under RTI in the office of the trial court has
ordered disclosure on which respondents have not moved for contempt in light of
their stand that the order was passed by Judge Ms Bimla Maken as appellate
authority under RTI and not in her judicial capacity as Additional District &
Sessions Judge. They have instead moved the Hon’ble High Court where their
plea for stay has failed. We therefore see no reason to interfere in the orders of
appellate authority Additional District & Sessions Judge Ms Bimla Maken. The
19
stay order 13.7.’07 is vacated. The information sought by the appellant be
made available to her as directed by appellate authority, Office of the
District & Sessions Judge within 10 days of the date of issue of this
decision notice under intimation to us. As per 7 (6) this information will be
provided free of charge
This disposes of issue no 1.
Issue No. 2
Appellant’s case is that the Decision of 1.6.’06 by CIC was in her favour
and information was to be provided to her within ten days of the date of the
Decision of 1.6.’06. Therefore her petition is of contempt and certain individuals
present have no right to appear in a contempt petition directed against specific
individuals Shri Ranjit Narayan, Jt Commissioner (Crimes) and Shri Muktesh
Chander Additional Commissioner Police (Crimes). We have perused the order
cited which is quoted above. It only requires that the CPIO process appellant’s
communication within ten days of its receipt. That communication dated 4.8.’06
has in fact been responded to on 14.8.’06 well within the time limit postulated.
The petition has therefore been treated as an extension of appellant Ms Gill’s
appeal, and it is in that context that the hearing is held. In that context it is open
to CPIO to “seek the assistance of any other officer as he or she considers it
necessary for the proper discharge of his or her duties” [sec 5(4)]. The CPIO was
therefore within his rights to seek the assistance of those present as designated
by the Commissioner of Police by Notification XXIV/29/SPL./C&T[AC-1]PHQ
issued on 7.12.’06 read with Addendum of 19.12.’06. This issue thus stands
disposed of.
Issue No. 3
The appeal No. CIC/WB/A/2007/00679 before us stands decided in light of
the above decision. However, it raises a basic issue, which is whether a public
20
authority can appeal the decision of a PIO/Appellate Authority under the RTI Act.
We have therefore proceeded to address this issue.
Section 19(2) recognizes the right of a third party to submit an appeal
before the First Appellate Authority. Section 19(2) reads as under:
“19(2) where an appeal is preferred against an order made by a
Central Public Information Officer or a State Public
Information Officer, as the case may be, under section 11 to
disclose third party information, the appeal by the concerned
third party shall be made within thirty days from the date of
the order.”
The definition of “third party” as given under Section 2(n) includes a Public
Authority. Section 2(n) is reproduced as under:
“2(n) "third party" means a person other than the citizen making a
request for information and includes a public authority.”
. Section 2(n) is a definition clause and definition clause under the Rules of
Interpretation is one that defines a concept and insofar as that particular
enactment is concerned, the meaning is applicable to the term wherever it is
used in that enactment. Thus, the term “third party” wherever it occurs in the RTI
Act shall ipso facto include a Public Authority. Over and above the definition of
“third party” is an inclusive one, which makes it’s meaning wide and extensive.
. In this context, Section 11(1) is pertinent. Under Section 11(1), whenever
a CPIO intends to disclose an information or record —
(i) which relates to and has been treated as confidential by that
`third party’; or
(ii) which has been supplied by a third party and has been
treated as confidential by that third party
the CPIO shall give a written notice to such third party of the request and of his
intention to disclose the information.
21
. Section 19(2) confers a right on a Public Authority of preferring an appeal
before the First Appellate Authority against the decision of CPIO. Thus, if the
CPIO decides to disclose information that relates to a Public Authority and if the
Public Authority has treated the information as confidential, it can submit an
appeal before the First Appellate Authority under Section 19(2) of the RTI Act.
. The issue still remains as to whether a Public Authority can appeal against
the decision of its own CPIO. In this context, the opening words of Section 19(1)
are important. It says that any person can prefer an appeal who —
(i) does not receive a decision within time specified; or
(ii) is aggrieved by a decision of the CPIO
It may be mentioned that the word `person’ has not been defined in the Act
but it is wide enough to include a Public Authority, which is a juristic entity and as
such is a “person” in the eye of law.
The right of appeal is a legal right and is available to every aggrieved party
to a proceeding and this right cannot be taken away unless law explicitly provides
it.
Insofar as an appeal before the CIC is concerned, Section 19(3) of the Act
refers, which reads as under:
“19(3) A second appeal against the decision under sub-section (1) shall lie
within ninety days from the date on which the decision should have
been made or was actually received, with the Central Information
Commission or the State Information Commission;
Provided that the Central Information Commission or the State
Information Commission, as the case may be, may admit the
appeal after the expiry of the period of ninety days if it is satisfied
that the appellant was prevented by sufficient cause from filing the
appeal in time.”
The opening words of the sub-section makes it clear that the 2nd appeal is
against the decision passed by the First Appellate Authority and it can be
preferred by any of the aggrieved parties. Issue No 3 is so disposed of.
22
Announced on 2.8.’07. Notice of this decision be given free of cost to the
parties.
(Wajahat Habibullah) (Padma Balasubramanian)
Chief Information Commissioner Information Commissioner
2-8-2007 2-8-2007
(Prof. M. M. Ansari)
Information Commissioner
2-8-2007
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.
(L.C.Singhi)
Addl. Registrar
3-8-2007
http://cic.gov.in/CIC-Orders/Decision_02082007_02.pdf

Aleque Padamsee and Ors Vs Union of India [ SC ]

Supreme Court of India

CASE NO.:
Writ Petition (crl.) 11-15 of 2003

PETITIONER:
Aleque Padamsee and Ors

RESPONDENT:
Union of India and Ors

DATE OF JUDGMENT: 18/07/2007

BENCH:
Dr. ARIJIT PASAYAT P.K. BALASUBRAMANYAN & D.K. JAIN

JUDGMENT:
J U D G M E N T



Dr. ARIJIT PASAYAT, J.


1. These petitions are filed under Article 32 of the Constitution of India, 1950 (in short the 'Constitution'). The petitioners have stated that they have approached this Court because of inaction of official respondents in not acting on the report lodged by two persons namely, Sumesh Ramji Jadhav and Suresh Murlidhar Bosle. The basic grievance is that though commission of offences punishable under the Indian Penal Code, 1860 (in short the 'IPC') was disclosed, the police officials did not register the FIR and, therefore, directions should be given to register the cases and wherever necessary accord sanction in terms of Section 196 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is stated that the speeches made by respondents 5 and 6 were likely to disturb the communal harmony in the country and the likely result of such inflammatory speeches was to create hatred in the minds of citizens against the persons belonging to minority communities. It appears that so far as respondent No.5 is concerned a complaint was lodged at the police station in the State of Maharashtra where the complainants reside. Since the police authorities in Maharashtra found that the alleged speeches were delivered outside the State of Maharashtra and inside the State of Gujarat, they took up the position that action could be taken by the authorities in Gujarat.
Accordingly, the report lodged was sent to the officials in Gujarat. So far as respondent No.6 is concerned sanction in terms of Section 196 of the Code was prayed for alleging that there was complete inaction and, therefore, the writ petition has been filed. It was pointed out by learned counsel for the petitioners that since undisputedly, the commission of cognizable offence is disclosed even on a bare reading of the FIR lodged, the authorities were not justified in not registering the FIR. It is contended that the partisan approach of the authorities in the State of Gujarat is writ large, which is evident from a bare reading of the counter affidavit filed. The role which is to be played by the investigating agency and finally the court has been assumed by the authorities who were not competent to deal with the matter. It is pointed out that in Ramesh Kumari v. State (NCT of Delhi) and Ors. (AIR 2006 SC 1322) this Court had said that whenever cognizable offence is disclosed the police officials are bound to register the same and in case it is not done, directions to register the same can be given.

2. Learned counsel appearing for respondent No.5 and the State of Gujarat submitted that on a bare reading of the complaint lodged it appears that no offence was made out and whenever a complaint is lodged automatically and in a routine manner FIR is not to be registered. In any event, it is submitted that petition under Article 32 of the Constitution is not a proper remedy.

3. Chapter XII of Code relates to "Information to the Police and their Powers to Investigate". Section 154 reads as follows:

Information in cognizable cases.(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence".


4. Section 156 deals with "Police officer's power to investigate cognizable cases" and the same reads as follows:

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.

5. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Others [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained.

6. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768], Minu Kumari and Another v. State of Bihar and Others [(2006) 4 SCC 359] and Hari Singh v. State of U.P. (2006 (5) SCC 733).

7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and re-iterated in Gangadhar's case (supra) the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re- iterated in Lallan Chaudhary and Ors. V. State of Bihar (AIR 2006 SC 3376). The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Sections 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.2.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de-linked from the aforesaid writ petitions.

8. The writ petitions are finally disposed of with the following directions:

(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.
(3) So far as non-grant of sanction aspect is concerned, it is for the concerned government to deal with the prayer. The concerned government would do well to deal with the matter within three months from the date of receipt of this order.
(4) We make it clear that we have not expressed any opinion on the merits of the case.

Brij Lal Vs Prem Chand and Another [ SC ]

Supreme court of India

PETITIONER:
BRIJ LAL

Vs.

RESPONDENT:
PREM CHAND & ANR.

DATE OF JUDGMENT20/04/1989

BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
AHMADI, A.M. (J)

CITATION:
1989 AIR 1661 1989 SCR (2) 612
1989 SCC Supl. (2) 680 JT 1989 (3) 1
1989 SCALE (1)1076
CITATOR INFO :
D 1990 SC 209 (41)


ACT:
Indian Penal Code--Sections 304B, 306 and 498A--Dowry Offences--Punishment for----What would constitute instiga- tion for commission of offence----Would depend on facts of case----Act of abetment-To be judged in the conspectus of evidence of the case.

HEADNOTE:
Prem Chand, accused-respondent, had married Veena Rani, deceased, in the year 1973. Veena Rani was then employed in the State Bank of Patiala. Soon after their marriage the accused resigned his job as Prosecuting Sub-inspector and started his practice at Sangrut. Veena Rani got herself transferred to Sangrur and the couple set up house there. From the very beginning Veena Rani had an unhappy married life because the accused constantly tormented her to get more money from her parents. The accused was also given to heating her frequently.
Veena Rani gave birth to a male child. Even after child-birth the accused did not stop iII-treating her. Unable to bear the iII-treatment, Veena Rani took leave on loss of pay and went away to her parents. She later filed an application under section 9 of the Hindu Marriage Act in the Court at Patiala for restitution of conjugal rights. At this stage, a compromise was brought about between the parties and Veena Rani came back to live with the accused at San- grur. But nothing changed, and the accused continued to torment her for money.
The immediate provocation for the accused stepping up his illtreatment of Veena Rani was his demand of Rs. 1,000 to pay the balance amount of the scooter price which he had purchased. Veena Rani had no funds of her own. She, there- fore, wrote to her brother and mother narrating her woes and requesting them to send Rs. 1,000. In spite of Veena Rani writing to her brother and mother, the accused did not relent in the immediate compliance of his demand. On 15.9.1975, the day of the tragedy, the accused and Veena Rani had a quarrel and thereupon both of them went to the house of Shri Hari Om, Advocate, who advised the accused not to torment Veena Rani.
613
There, in the presence of Hari Om, the accused went to the extent of saying that Veena Rani may go to hell but he should get the money forthwith. Veena Rani reacted by saying that she preferred death to such life. The accused, far from expressing regret for his conduct, drove her to despair by further saying that she can provide him relief quicker by dying on the very day. Thereafter, the accused left Veena Rani at their house and went to court at about 9.00 a.m. At
10.15 a.m. shrieks were heard from their house, and when people rushed in, they found Veena Rani lying on the ground with extensive burn injuries. Before her death in the hospi- tal, Veena Rani told the doctor that she had been tortured at home and that she wanted to die as early as possible. The Additional Sessions Judge found the accused guilty under section 306, I.P.C., and sentenced him to undergo R.I. for four years. The Judge held that the accused had been tormenting and also physically assaulting Veena Rani, and that Veena Rani had committed suicide by reason of the accused's instigation. The High Court, on appeal, acquitted the accused holding that even though Veena Rani had committed suicide on account of her unhappy married life, there was nothing on the record to show that the appellant in any manner instigated the deceased to commit suicide.
In this Court, two special leave petitions have been filed, one by the father of Veena Rani and the other by the State of Punjab. On behalf of the appellants it was contend- ed that the High Court had completely erred in its apprecia- tion of the evidence and in its application of the law. On behalf of the accused it was contended that even if the prosecution evidence was accepted in full, there was no material to show that the suicidal death of Veena Rani was abetted in any manner by the accused. Allowing the appeals and restoring the conviction of the accused under s. 306, this Court,
HELD: (1) Veena Rani's death was undoubtedly due to suicide and not due to any accident or homicide. [621A] (2) There is overwhelming evidence in the case to estab- lish that Veena Rani's life was made intolerable by the accused by constantly demanding her to get him money and also beating her frequently. [620G] 614
(3) Viewed in the background of Veena Rani's plight during the few days preceding her death and the events that took place on the morning of the tragedy, the utterances by the accused to the effect that she can provide him relief quicker by dying on the very same day would have certainly been seen by Veena Rani as an instigation to her to commit suicide. [621D; 622B]
(4) No mother, however distressed and frustrated, would easily make up her mind to leave her young child in the lurch and commit suicide unless she had been goaded to do so by someone close to her [622B-C]
(5) When the evidence is of so compulsive and telling in nature against the accused, the High Court, it is regretted to say, has dealt with the matter in a somewhat superficial manner and acquitted the accused on the basis of imaginary premises. The High Court has failed to comprehend the evi- dence in its full conspectus and instead has whittled down the evidence by specious reasoning. [624E-F]
(6) As to what constitutes instigation would depend upon the facts of each case. Therefore, in order to decide wheth- er a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. [627A-B]
(7) Such being the case, the instigative effect of the words used by the accused must be judged on the basis of the distraught condition to which the accused had driven Veena Rani. [627B-C]
(8) In the instant case, the abetment of the commission of suicide by Veena Rani is clearly due to instigation and would therefore fail under the first clause of section 107, IPC. [626E-F]
(9) The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths of women has shocked the Legislative conscience to such an extent that the Legislature has deemed it neces- sary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113A and 113B in the Indian Evidence Act, and section 498A and 304B in the Indian Penal Code. [627E-G] 615
(10) It is not a case where Veena Rani had wanted to commit suicide for reasons of her own and the accused had facilitated her in the commission of suicide, as would attract Explanation II to Section 107 IPC. [626A] Sri Ram v. State of U.P., [1975] 2 SCR 622; distin- guished.
(11) Taking all factors into consideration including the fact that more than 11 years have elapsed since the High Court acquitted the accused and the accused is now leading a settled life, the Court considered the plea of leniency, and while restoring the conviction of the accused under section 306 modified the sentence to the period already undergone and enhanced the fine to Rs.20,000, out of which Rs. 18,000 were to be given to the father of the deceased for being utilised for the maintenance of Veena Rani's son. [628E]

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 477 of 1978.
From the Judgment and Order dated 23.11.1977 of the Punjab and Haryana High Court in Criminal Revision No. 880 of 1976.
WITH
Criminal Appeal No. 288 of 1989.
From the Judgment and Order dated 23.11. 1977 of the Punjab and Haryana High Court in Crl. A. No. 670 of 1976. S.K. Bisaria and J.K. Nayyar for the Appellant in Crl. Appeal No. 477 of 1978.
R.C. Kohli and R.S. Suri for the Appellant in Criminal Appeal No. 288 of 1989. S.K. Mehta, Dhuru Mehta and Atul Handa for the Respondent.
The Judgment of the Court was delivered by:
NATARAJAN, J. Appeal No. 477 of 1978 by Special Leave and Appeal No. 288 of 1989 by Special Leave arising out of Special Leave (Crl.) Petition No. 250 of 1980 are directed against a judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 670 of 1976 616
whereunder a learned single Judge of the High Court had set aside the conviction of respondent Prem Chand and acquitted him of the charge under Section 306 I.P.C. The former appeal has been filed by the father of the deceased Veena Rani while the latter appeal has been filed by the State of Punjab. The facts of the case are in brief as under:
Deceased Veena Rani who died of burn injuries on 15.9. 1975 was married to the respondent Prem Chand (hereinafter referred to as accused) in the year 1973. Veena Rani, who had passed the M.A. and B .Ed. degree examinations was employed in the State Bank of Patiala and was earning about Rs. 600 to 700 per month. The accused, who had obtained a degree in law was a prosecuting Sub-Inspector and soon after marriage he resigned his job and set up practice in his native place Sangrur. When the accused resigned his job and set up practice in Sangrut, Veena Rani obtained a transfer to Sangrur from Patiala and the couple set up house in a building owned by PW 5 Krishan Dutt. From the very beginning Veena Rani had an unhappy married life because of the ac- cused constantly demanding her to get more money from her parent's house. Even though the accused had joined the office of a senior advocate by name Shri O.P. Singhal, his earnings were meager and consequently the house-hold ex- penses were borne by her from out of her salary. Besides tormenting Veena Rani to get more money from her parents, the accused was also given to beating her frequently. Veena Rani complained to her parents, brother and brother-in-law about the cruel treatment meted out to her by the accused. PW 4 Shanti Devi and PW 14 Khem Chand, the mother and broth- er respectively of Veena Rani and PW 17 Kuldip Rai, her brother-in-law have deposed about Veena Rani telling them about the accused iII-treating her and physically assaulting her. Apart from them, PW 5 Krishan Dutt, the landlord has also testified that the accused was in the habit of beating Veena Rani and that on hearing her cries he used to inter- vene and advise the accused to stop beating her. Since the accused did not mend his ways and continued his beatings of Veena Rani. PW 5 Krishan Dutt asked the accused to vacate his house.
Veena Rani conceived and gave birth to a male child. But even after the child birth, the accused did not stop iII- treating her. Unable to bear the iII-treatment, Veena Rani took leave on loss of pay and went away to her parent's house at Patiala. The separation had no effect on the ac- cused and hence Veena Rani filed an application under Sec- tion 9 of the Hindu Marriage Act in the Court at Patiala for restitution of conjugal rights. As a counter move, the accused also filed a 617
similar petition in the Court at Sangrur. However, the enquiry of that petition was stayed by the Senior Sub Judge, Sangfur till the disposal of the earlier petition filed by Veena Rani at Patiala. At that stage of matters, Shri O.P. Singhal, who was acting as the counsel for the accused and PW 9 Shri Hari Om, another advocate at Sangrut who was appearing for Veena Rani brought about a compromise between the parties and in terms thereof Veena Rani came back to Sangrur to live with the accused. The re-union, however, took place only after the accused's counsel Shri O.P. Sing- hal had personally assured that their would be no danger to Veena Rani's life at the hands of the accused. This time, the parties set up residence in a house belonging to PW 12 Nathu Ram. Nothing changed, however because the accused started tormenting Veena Rani almost from the day of re-union for money and continued beating her. PW 12 Nathu Ram was a witness to the accused quarrel- ling with Veena Rani and beating her. The immediate provoca- tion for the accused stepping up his iII-treatment of Veena Rani was his purchase of a scooter for Rs.3,500 from one A.N. Jindal. The accused was able to obtain only Rs.2,500 from his father for buying the scooter and for the balance amount of Rs. 1,000 he asked Veena Rani to get tile same from her parents. Veena Rani had no funds of her own because she had been on leave on loss of pay for several months and had joined duty at the Bank only on 13.8.1975. She was in a fix and therefore she wrote a letter on 10.9.75 to her brother PW 14 Khem Chand as under:
"Dear brother, the day I came here he is asking for Rs. one thousand from the same day to repay the loan of the scooter. He does not pay any expenses which are required by me. Because I will receive my pay only on 26th September and all things are as they were before." Again just one day before her death i.e. 14.9.1975, she wrote to her mother PW-4 Shanti Devi a pathetic letter as follows:
"Yesterday I was to come to see Saroj
in the evening but there is a quarrel in the
house. I have no money, if I have any require-
ment I must fulfil myself, otherwise no alter-
native than to go on weeping and crying.
Because he is saying that I am to repay the
loan of Rs. 1,000 and I am to pay Rs. 100 for
the house rent. Dear mother, you know it very
well that I have not received my pay. It is
therefore I am unable to pay anything for the
household expenses. It is therefore, I am in a
very bad condition at my house. I do not
understand what to do. Whenever I talk to go
to any
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place, the same day there is an uproar in the
house and he does not turn up till 12.00 in
the night and unhealthy atmosphere develops in
the house. Dear mother, please send me Rs.
1,000 immediately through Bhupinder. Dear
mother, I am very sad on this account and
unhappy. The whole day I remain weaping.
Manish (the child) is alright. You do not
worry but please send me Rs. 1,000 immediate-
ly."
In spite of Veena Rani, writing to her brother and mother for a sum of Rs. 1,000 being sent immediately, the accused did not relent in his insistence for immediate compliance of his demand. This led to a quarrel between the husband and wife on the 15th morning and thereupon both of them went to the house of PW-9 Shri Hari Om at 6.30 a.m. itself. After-PW-9 Shri Hari Om woke up, he made enquiries and Veena Rani told him that the accused was "demanding money from her and annoying her on that account" in spite of her telling him that she had written letters to her brother and mother. He advised the accused not to torment Veena Rani for money but in spite of it the accused said he wanted immediate payment of the sum of Rs. 1,000. The accused went to the extent of saying that Veena Rani can go to hell but he should get his sum of Rs. 1,000 forthwith. Veena Rani reacted by saying that because of the accused quarrelling with her every day over the payment of money, she preferred death to life in this world. The accused, far from express- ing regret for his conduct, drove her to despair by further saying that she can provide him relief quicker by dying on the very same day and that she need not postpone her death to the next day. PW-9 Shri Hari Om then sent the parties home saying that the matter can be talked over in the evening.
After things had gone to such a pitch the accused and Veena Rani left the house of PW-9 Hari Om at about 9.00 a.m. and went back to their house. After leaving Veena Rani in the house, the accused went to the Court. At about 10.15 a.m. PW-12 Nathu Ram was informed by one Keemat Rai, advo- cate that shrieks were heard coming from the house occupied by the accused and .Veena Rani. Both of them rushed to the house and saw Veena Rani lying on the ground with extensive burn injuries on her body. At once PW-12 Nathu Ram rushed on his bicycle to the Court and informed the accused and 11 D.K. Jindal, about Veena Rani having sustained burn injuries Thereupon all of them came to the house and the accused with the help of PW-11 D.K. Jindal removed Veena Rani to the Civil Hospital at Sangrut. FW-9 Hari Om on coming to know of Veena Rani having 619
sustained burn injuries, had information sent to PW- 17 Kuldip Rai and also made arrangements for a phone message being given to the parents of Veena Rani at Patiala. There- after he went to the hospital but by then Veena Rani had died.
Veena Rani was seen by Dr. B.R. Dular at the hospital at 10.45 a.m. and the doctor found her to have sustained severe burns and to be in a state of shock. Veena Rani who was given treatment by PW- 19 Dr. J.K. Sharma told him that she had been tortured at home and that she wanted to die as early as possible. At 11.30 a.m. Veena Rani died. At the autopsy, it was noticed that she had sustained 19 burn injuries. Her death was certified to be due to shock result- ing from the burn injuries.
On receipt of an intimation from the hospital entries were made in the general diary and subsequently a case was registered on the basis of representations made to PW-18, the Deputy Superintendent of Police by PW- 16 Kuldip Rai and another relation. Investigation of the case resulted in a chargesheet being laid against the accused under Section 306 I.P.C.
In his statement under Section 313 Cr. P.C. the accused denied having iII-treated Veena Rani but admitted that he had asked her to give him a sum of Rs. 1,000 for payment of the balance money for the scooter purchased by him. He however stated that he had offered to repay the amount as soon as he received his G.P.F., amount. He denied having told Veena Rani at the house of PW-9 Shri Hari Om that she may go to hell and that she can put at an end to her life the same day without waiting for the morrow. He has also stated that Veena Rani was of an irritable nature and would get agitated for no reason whatever. Lastly, he has stated that on coming to know of her having sustained burn in- juries, he had rushed home and taken her to the hospital to save her life but unfortunately she could not be saved.
After a detailed consideration of the prosecution evi- dence and the statement of the accused, the Additional Sessions Judge, Sangrur, found the accused guilty under Section 306 I.P.C. and sentenced him undergo R.I. for four years. The learned Addl. Sessions Judge held that the ac- cused had been tormenting and also physically assaulting Veena Rani and that Veena Rani had committed suicide by reason of the accused's instigation. The accused preferred an appeal to the High Court and a learned
620
single judge of the High Court has acquitted the accused holding that even though Veena Rani had committed suicide on account of her unhappy married life "there is nothing on the record to show that the appellant in any manner instigated the deceased to commit suicide." Aggrieved by the judgment of the High Court the father of Veena' Rani and the State have preferred the two appeals under consideration.
Shri R.S. Suri, learned counsel for the State and Mr. S.K. Bisaria, learned counsel for the father of Veena Rani took us through the evidence in the case and the judgments of the Addl. Sessions Judge and the High Court and argued that the High Court has completely erred in its appreciation of the evidence and in its application of the law and there- fore the appeals should be allowed and the conviction and sentence awarded to the accused should be restored. Shri S.K. Mehta, learned counsel for the accused contended that even if the prosecution evidence is accepted in full, there is no material to show that the suicidal death of Veena Rani was abetted in any manner by the accused and hence the judgment of the High Court does not call for any interfer- ence.
We have considered the evidence and the arguments of the counsel in great detail. The evidence brings out with tell- ing effect the distressed life that Veena Rani was leading almost from the day of her marriage with the accused. Since the accused had resigned his job and set up practice as an advocate at Sangrur, she got herself transferred from Patia- la to a branch of the Bank at Sangrur. The parties lived as tenants in a portion of the house of PW-5 Krishan Dutt and Veena Rani was meeting the household expenses from out of her salary because the accused had no income as a lawyer. In spite of Veena Rani spending her entire salary on the house- hold, the accused was constantly demanding her for money and made her life miserable by frequently beating her. These matters have been spoken to by PW-4 Shanti Devi, PW-14 Khem Chand and PW-17 Kuldip Rai. Besides them, independent wit- nesses viz. PW-5 Krishan Dutt, PW-9 Shri Hari Om and PW-12 Nathu Ram have also spoken about the iII-treatment of Veena Rani and their evidence has gone unchallenged. There is thus overwhelming evidence in the case to establish that Veena Rani's life was made intolerable by the accused by constant- ly demanding her to get him money and also beating her frequently.
Before considering the question whether the accused had abetted Veena Rani in her committing suicide, we must point out that
621
Veena Rani's death was undoubtedly due to suicide and not due to any accident or homicide. When Veena Rani had set fire to herself no one else except her one and half year old son was in the house. Hearing her shouts PW-12 Nathu Ram and Keemet Rai rushed to the house and found her lying on the ground with burn injuries. The accused was at once informed in the court and he removed her to the hospital along with others. Despite treatment, she succumbed to her injuries by about 11.30 a.m. The autopsy revealed that her death was due to severe shock resulting from the burn injuries sustained by her. In such circumstance, the suicidal death of Veena Rani is an incontrovertible factor.
The crucial question for consideration is whether Veena Rani put an end to her life of her own will and volition or whether her committing suicide had been abetted in any manner by the accused.
To determine this question, we must see the plight of Veena Rani during the few days preceding her death and the events which had taken place on the morning of 15.9.75 itself. It is an admitted fact that the accused was wanting a sum of Rs. 1,000 for paying the balance of sale price for the scooter purchased by him and that he was demanding Veena Rani to get him the amount from her parents. The accused has himself admitted in his statement under Section 313 Cr. P.C. this fact but has stated that he wanted it only as a loan and not as a gift. Besides the letter, (annexure 3) written by Veena Rani to her brother and mother respectively throw considerable light on the matter. In the letter to the brother dated 10.9.75, Veena Rani has stated that even on the day she came to Sangrur the accused began demanding a sum of Rs. 1,000 for being paid for the scooter purchased by him. The accused would not wait and hence she had again to write a letter to her mother on 14.9.75. Therein she has stated that she was in a very bad condition and that her mother should send her Rs. 1,000 immediately. These two letters written in quick succession reveal fully the amount of pressure the accused must have been applying on Veena Rani to get him a sum of Rs. 1,000. So constant should have been his demand for money that on the morning of 15-9-75 even at about 6.30 or 7 a.m. the accused and Veena Rani had to go to the house of PW-9 Shri Hari Om to seek a solution. Even in front of PW-9 Shri Hari Om, the accused had insisted that Veena Rani should get him a sum of Rs. 1,000 forthwith. When Veena Rani pleaded inability to make immediate payment, the accused told her that he did not care even if she went to hell but he wanted immediate payment. When Veena Rani stated in despair that she had enough of torment and that she preferred death to living, the
622
accused added fuel to fire by saying that she may put an end to her life the very same day and she need not wait till the next day to quit this world. Such an utterance by the ac- cused would have certainly been seen by Veena Rani as an. instigation to her to commit suicide. Otherwise, she would not have set fire to herself within a short time after she reached home. One significant factor to be noticed is that but for being spurred to action, Veena Rani would not have ,easily reconciled herself to forsaking her one and a half year old son and commit suicide. No mother, however dis- tressed and frustrated. would easily make up her mind to leave her young child in the lurch and commit suicide unless she had been goaded to do so by someone close to her. Yet another factor to be borne in mind is that there is no evidence as to what transpired between the accused and Veena Rani after they had left the house of PW-9 Shri Hari Om. The only two persons who could speak about it are the accused and Veena Rani and since she is dead it is only the accused who can throw some light on the matter. Strangely enough, the accused has not said anything about it in his statement under Section 313 Cr. P.C. He has not said a word that he had assuaged the wounded feelings of Veena Rani before he left for Court. His silence on this aspect of the matter would therefore mean that he had not changed his stand subsequently.
We may now look to the relevant provisions of the law. Section 306 I.P.C. under which the accused was charged reads
as under:
"306 I.P.C. If any person commits suicide,
whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term which may extend to ten
years, and shall also be liable to fine."
Section 107 I.P.C. sets out as to what-
constitutes abetment. The Section reads as
follows:
"107. A person abets the doing of a thing,
who--
First. Instigates any person to do that thing;
or
Secondly.-- Engages with one or more other
person or persons in any conspiracy for the
doing of that thing, if an act or illegal
omission takes place in pursuance of that
conspiracy, and in order to the doing of that
thing; or
Thirdly.--Intentionally aids, by any act or
illegal omission, the doing of that thing.
623
Explanation I.--A person who, by wilful mis-
representation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said
to instigate the doing of that thing.
Illustration (omitted)
Explanation Il--Whoever, either prior to or at
the time of the commission of an act, does
anything in order to facilitate the commission
of that act, and thereby facilitates the
commission thereof, is said to aid the doing
of that act."
The learned Additional Sessions Judge has
in the course of his judgment observed that
Explanation-II to Section 107 I.P.C. would
also be attracted to the facts of the case.
The relevant portion in the judgment reads as
under:
"Thus when the circumstances attending this
case are read alongwith the aforesaid Explana-
tion No. II given under Section 107 I.P.C., it
is clear that the accused prior to the commis-
sion of the suicide by Veena Rani, had con-
stantly committed certain acts and that has
facilitated the commission of suicide and thus
he had aided in the committing of that said
act by Veena Rani."
A few lines below the Sessions Judge has
given his finding as under:
"The question of abetment actually depends
upon the nature of the act abetted and the
manner in which the abetment was made. The
offence of abetment is complete when the
alleged abettor has instigated another to
commit the offence. It is not necessary for
the offence of abetment that the offence must
be committed. It is only, in the case of a
person abetting an offence by intentionally
aiding another to commit that offence and the
uttering of hot words by the accused to his
wife in the presence of Shri Hari Om PW 9
clearly indicates that the accused had abetted
an act complained of."
From the portion extracted above, it may be seen that
though the Addl. Sessions Judge has observed that Explana-
tion II would have
624
relevance to the case, he has in fact awarded conviction to the accused on the basis that the accused had instigated Veena Rani to commit suicide and had thereby abetted the commission of suicide by Veena Rani.
Having regard to the evidence in the case, there can be no doubt whatever that the Addl. Sessions Judge was perfect- ly right in holding that the accused had instigated Veena Rani to commit suicide and therefore he would be guilty under Section 306 I.P.C. A person can abet the commission of an offence in any one of the three ways set out in Section 107. The case of the accused would squarely fall under the first category, viz. instigating a person to do a thing. In such circumstances, the need to invoke Explanation I1 does not arise. Mr. Mehta contended that since Explanation II to Section 107 I.P.C. has no application to the facts of the
case and since the Addl. Sessions Judge has convicted the accused on the premise that Explanation H is attracted, the High Court was right in setting aside the conviction of the accused. We are unable to accept this argument because the Addl. Sessions Judge: though he has referred to Explanation II, has actually found the accused guilty only on the ground he had abetted the commission of the offence by instigation.
When the evidence is of so compulsive and telling a nature against the accused, the High Court, we regret to say, has dealt with the matter in a somewhat superficial manner and acquitted the accused on the basis of imaginary premises. The High Court has failed to comprehend the evi- dence in its full conspectus and instead it has whittled down the evidence by specious reasoning. To mention a few, the High Court has failed to give due weight to the letter Veena Rani wrote to her brother on 10.9.1975 merely because in the last line she has written "in any way there is noth- ing to worry. This time everything will be alright." This one sentence in the letter cannot efface the frantic nature of Veena Rani's appeal for money to satisfy the demand of the accused. As regards the last letter dated 14.9.75, the High Court has totally lost sight of it. The High Court has failed to see that unless Veena Rani was very desperate, she would not have written to her mother for money within four days of the letter to her brother. As regards the happenings on the morning of 15.9.75, the High Court has failed to grasp their gravity. Unless a serious quarrel had taken place, the accused and Veena Rani would not have gone to the house of PW 9 Shri Hari Om in the early hours of the morning itself to seek a solution to the problem. Despite PW 9 Shri Hari Om counselling patience, the accused refused to relent and insisted upon immediate payment of
625
Rs. 1,000 and made it clear that the money was more impor- tant to him than Veena Rani's life and that if Veena Rani wanted to die, she may put an end to her life the very same day and give him relief forthwith. The High Court has viewed the accused's conduct and utterances as of no consequence because PW. 9 Shri Hari Om has stated in crossexamination that he thought it was "an ordinary quarrel between the husband and wife as they had been doing so previously also." The High Court has failed to realise that the effect of the accused's utterances on Veena Rani's mind should be assessed in the context of the overall evidence in the case and not on the basis of the opinion of PW 9 Shri Hari Om about the nature of the quarrel. PW 9 Shri Hari Om despite his having been the counsel for Veena Rani, could not have realised the effect of the utterances of the accused on the mind of Veena Rani. Furthermore the High Court has failed to notice that the accused has not thrown any light as to what transpired between him and Veena Rani after they had left the house of PW 9 Shri Hari Om. The fact that Veena Rani had forsaken her young son and had set fire to herself within a short time after reaching home will go to show that she would not have acted in that manner unless she had felt instigated to commit suicide by the utterances of the accused. The High Court, besides unfortunately failing to give due weight to the evidence in the case, has drawn certain inferences which are not at all warranted. For example, the High Court has stated that since Veena Rani was an earning member, the accused would not have stood to gain by instigating her to commit suicide. This inference is totally wrong because the clear evidence in the case is that the accused had placed greater value on the payment of the money demanded by him than upon the life of his wife. Then again, the High Court has remarked that Veena Rani was suffering from depression and a diseased mind and hence she would have committed suicide. We are at a loss to know wherefrom the High Court derived material to draw this conclusion. Far from there being any evidence, to show that Veena Rani was having a diseased mind, PW 5 Krishan Dutt and PW 12 Nathu Ram, have stated that Veena Rani was a woman of gentle and amiable disposition. She was working in the Bank without any com- plaint whatever about her mental condition. Even the accused has not stated that she was of diseased mind. We are, there- fore, more than satisfied that the judgment of the High Court suffers from serious errors and infirmities and is therefore manifestly unsustainable.
Mr. Mehta relied upon the observations in Sri Ram v.U.P. State, [1975] 2 SCR 622 to contend that even if the accused had told Veena Rani that money was more important to him than her life and that she
626
can put an end to her life the very same day instead of waiting for the morrow, it cannot be construed that the accused had done anything to facilitate the commission of suicide by Veena Rani as would attract Explanation II to Section 107 I.P.C. We do not find any merit in the conten- tion. The facts in Shri Ram's case were entirely different. The question in that case was whether by shouting that "the Vakil has come", Violet, one of the accused, had abetted the commission of the offence of murder of one Kunwar Singh by the other accused persons who were hiding behind a shisham tree and coming out of their place of concealment and one of them shooting Kunwar Singh with a gun carried by him. Though the Sessions Judge and the High Court had held that Violet's act would amount to abetment of the commission of the of- fence of murder in terms of Explanation II to Section 107 I.P.C., this Court held that "apart from the words attribut- ed to Violet, there is nothing at all to show that she was aware of the nefarious design of Sia Ram and his associates." It was in that context this Court observed as follows.
"Thus in order to constitute abetment, the
abettor must be shown to have "intentionally"
aided the commission of the crime. Mere proof
that the crime charged could not have been
committed without the interposition of the
alleged abettor is not enough compliance with
the requirements of Section 107."
In the instant case, we have already seen that the committing of suicide by Veena Rani was due to the accused's instigation. It is not a case where Veena Rani had wanted to commit suicide for reasons of her own and the accused had facilitated her in the commission of suicide. It was then urged by Mr. Mehta that since two views could be taken of the evidence we should not allow the appeals and set aside the acquittal of the accused solely on the ground that the view taken by the High Court does not commend itself for our acceptance. We are fully alive to the position in law that where two views could reasonably be taken of the prosecution evidence in a case, the Appellate Court should not interfere with the acquittal of an accused merely because the view taken by the Trial Court and/or the High Court was less acceptable than the other view which could have been taken on the evidence. This principle will however have no application where the evidence does not afford scope for two plausible views being taken but still the Trial Court or the High Court acquits an accused for reasons
627
which are patently wrong and the error leads to an element of perversity pervading the judgment.
As to what would constitute instigation for the commis- sion of an offence would depend upon the facts of each case. Therefore in order to decide whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. Such being the case, the instigative effect of the words used by the accused must be judged on the basis of the distraught condition to which the accused had driven Veena Rani. Full well knowing her helpless state and frustration, if the accused had told her that he set greater store on the sum of Rs. 1,000 required by him than her life and that she can die the very same day and afford him early relief, it is not surprising that Veena Rani committed suicide a little later on account of the accused's instigation. It would not be out of place for us to refer here to the addition of Sections 113A and 113B to the Indian Evidence Act and Sections 498A and 304B to the Indian Penal Code by subsequent amendments. Section 113A Evidence Act and 498A Indian Penal Code have been introduced in the respective enactments by the Criminal Law (Second amendment) Act, 1983 (Act 46 of 1983) and Section 113B of the Evidence Act and 304B Indian Penal Code have been introduced by Act No. 43 of 1986. The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the Legislative conscience to such an extent that the Legislature has deemed it neces- sary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113A and 113B in the Indian Evidence Act and Sections 498A and 304B in the Indian Penal Code. By reason of Section 113A, the Courts can presume that the commission of suicide by a woman has been abetted by her husband or relation if two factors are present viz. (1) that the woman had committed suicide within a period of seven years from her marriage, and (2) that the husband or rela- tion had subjected her to cruelty. We are referring to these provisions only to show that the Legislature has realised the need to provide for additional provisions in the Indian Penal Code and the Indian Evidence Act to check the growing menace of dowry deaths. In the present case, however, the abetment of the commission of suicide by Veena Rani is 628 clearly due to instigation and would therefore fail under the first clause of Section 107 I.P.C.
In the light of our conclusions, the appeals have to be allowed and the conviction of the appellant under Section 306 I.P.C. has to be restored. The question however arises as to whether the sentence of 4 years R.I. awarded by the Sessions Judge should also be restored. Mr. Mehta, learned counsel made a fervent plea for leniency on the ground that more than 11 years have elapsed since the High Court acquit- ted the accused and the accused is now leading a settled life and that he and his family members would be ruined if he is to be sent back to prison to serve any further term of sentence. Learned counsel also stated that the accused has undergone imprisonment in connection with the case for a period of about 10 months and, therefore, even if we are to restore the conviction, we may reduce the sentence to the period of imprisonment already undergone. Shri Suri. learned counsel appearing for the State submitted that the State was only anxious that the error committed by the High Court in acquitting the accused should be set right. He also added that in the event of the substantive sentence being reduced, the accused should be called upon to pay a heavy fine. Taking all factors into consideration, we think that the ends of justice would be met if we substitute the sentence awarded to the accused with the sentence of imprisonment for the period already undergone by him and enhance the sentence of fine from Rs.500 to Rs.20,000 with a direction that out of the fine amount, if paid, a sum of Rs. 18,000 should be paid to the father of Veena Rani for bringing up Veena Rani's minor son Manish.
The High Court judgment is accordingly set aside and the appeals are allowed and the conviction of the accused under Section 306 I.P.C. is restored but the sentence is modified to the period of imprisonment already undergone and fine of Rs.20,000 in default thereof to suffer R.I. for two years. Out of the fine amount if paid, Rs. 18,000 will be given to the appellant in Crl. Appeal No. 477 of 1978 for being utilised for the maintenance of Veena Rani's son, Manish. One month's time from today is given to the accused to pay the fine.
R.S.S. Appeals
allowed.
1
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