bail u/s 498a
Querist :
Anonymous
(Querist) 31 March 2010
This query is : Resolved
sir i want know that when fir is lodged u/s 498a after how many days accused get bail
A V Vishal
(Expert) 31 March 2010
Bail is the discretion of the court and depends largely on the facts of the case. There cannot be any set time frame for grant of bail, you may get it in 1 week, 1-month, 1 year or even not get it. So much depends on the facts.
Sanjeev Panda
(Expert) 31 March 2010
The grant of bail is at total discretion of court and the principle of judicial precedents is not applicable in case of bail. The court may grant or reject bail on same set of facts in two different cases. The judgments of Supreme Court says that each case should be judged in accordance with its own peculiar facts and bail should not be granted or rejected merely because in another case based on same facts it was rejected or granted.
INGLE G.[ADVOCATE]9421657505
(Expert) 31 March 2010
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Laxmibai W/O Maruti Satpute vs V E R S U S on 3 November, 2009
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The Indian Penal Code, 1860
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Mumbai High Court
1 Cri. Appeal No. 213/2007.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.213 OF 2007
1 Laxmibai W/o Maruti Satpute, Age 65 years,Occup.Household,
R/o Supa, Ta. Parner District
Ahmednagar
2 Maruti S/o Sitaram Satpute, Age 69 years, Occup.
Agriculture, R/o as above.
3 Arun S/o Maruti Satpute,Age 32 Appellants years,Occupation Agriculture, Ori.Accused R/o as above. Nos.1 to 3.
V E R S U S
The State of Maharashtra Respondent
Smt.S.S.Jadhav,Advocate for appellants Mr. V.D.Godbharle, Assistant Public Prosecutor for respondent.
...
CORAM : P.V. HARDAS AND
A.V. NIRGUDE, JJ.
DATE : 3rd NOVEMBER, 2009
ORAL JUDGEMENT : (PER : A.V.NIRGUDE, J.)
1] The appellants are challenging the judgment and order passed by the learned Adhoc Additional Sessions Judge2 Ahmednagar, (henceforth be referred as the ld. judge) in Sessions Case No. 50 of 2006. The learned Judge, convicted all the appellants of the offence under section 498A read with section 34 of the Indian Penal Code and further convicted the appellant Nos. 1 and 2 for 2 Cri. Appeal No. 213/2007.
the offence under section 302 read with section 34 of the Indian Penal Code also.
2] The appellant Nos.1 and 2 are husband and wife and happened to be the parentinlaws of the deceased Sangita, the wife of acquitted accused namely Rajendra. The appellant No.3 is another son of the appellant Nos.1 and 2.
3] The facts of the prosecution in nutshell are as follows:
The deceased Sangita got married to accused Rajendra in the year 1995. Initially, this couple resided with the joint family. But, thereafter, the couple started living separately, in their new house. The appellant Nos 1 and 2, the parentinlaws of the deceased Sangita were staying separately. The distance between two houses was about 2 K.M. The relation between the deceased Sangita and her husband Rajendra on one hand and appellant Nos. 1 and 2 were so strained, that they were not on talking terms.
4] On 20thDecember, 2005, the deceased Sangita was admitted in Khamkar's Hospital at about 7.45 P.M. with burn injuries. She was immediately shifted to Civil Hospital Ahmednagar, by her husband accused Rajendra. At the time of admission, the deceased Sangita was not in a 3 Cri. Appeal No. 213/2007.
position to make any statement as she had suffered 98% burn injuries. On 21st December, 2009, the Executive Magistrate recorded her statement at about 3.00 P.M. In this statement she alleged that at about 8.00 P.M., on the previous night, while her husband Rajendra was intoxicated condition, her brotherinlaw and her parentinlaws came to her house, pickedup quarrel and then set her on fire. On the basis of this statement, Crime No. 283 of 2005 came to be recorded at Parner Police Station for the offence punishable under sections 498A and 307 read with section 34 of the Indian Penal Code. The appellants and other accused were arrested. On 22nd December, 2005 at about 6.45 A.M. Sangita succumbed to the injuries, so Section 302 of the Indian Penal Code was added to the charge. The police completed the investigation and submitted the chargesheet against the accused/appellants. Eventually, the case was committed to the Court of Sessions as Sessions case No. 50 of 2006. The prosecution examined in all 09 (nine) witnesses to prove their case, whereas three witnesses namely Reshma, Dr. Khamkar and Snehal, the daughter of deceased Sangita, a Child witness, were examined as court witnesses. After perusal of the record and after hearing the ld. advocates following points arise for our consideration : 1 Whether dying declaration Exh.44 is properly proved by the prosecution as
to use it as 'substantive' evidence? 4 Cri. Appeal No. 213/2007.
Assuming it is so proved can it be believed for the purpose of convicting the appellant Nos 1 and 2 for the offence punishable under section 302 read with section 34 of the Indian Penal Code.?
2 Whether testimony of "child witness Snehal" is worthy of reliance ?
3 Whether the prosecution proved that, the appellants treated deceased
Sangita with cruelty with view to demand dowry ?
5] Before we discuss the propriety and trustworthiness of the dying declaration, we must make it clear that admittedly, deceased Sangita sustained burn injuries at about 8.00 P.M. on 20th December,2009, while she was in her house. Besides, Sangita's dying declaration and the deposition of the Child witnessSnehal there is one more deposition on record to throw light on this ghastly incident. This deposition is of Sangita's neighbour, one Smt. Shaikh Reshma, who was examined as Court witness. She said in the deposition that at the time of the incident, on hearing shouts, she came out of the house and saw that accused Rajendra and Sangita were going to the Hospital. She further stated that she did not have any talk with them, and she did not know what had happened on that day, and what was the quarrel between them or that she did not know how Sangita sustained burn injuries. She 5 Cri. Appeal No. 213/2007.
categorically admitted that she did not see the incident. It is thus clear from this deposition that immediately after the incident this witness saw only accused Rajendra, in or about the scene of the incidence, the house of the couple. She did not see the appellants there. There is no other deposition on record on this point, beside, as said above the dying declaration of sangita and deposition of her daughter Snehal.
6] The other material circumstance as said above is the dying declaration of Sangita. P.W.5 Sharad Atmaram Mandlik, Naib Tahsildar, who recorded the dying declaration on 21st December, 2005 gave graphic details as to how he went to the Civil Hospital on that day, how he eventually reached near deceased Sangita in the company of the Medical Officer on duty and how he obtained the Medical Officer's certificate about Sangita's position to give statement. He categorically stated that, after asking all relatives of deceased Sangita to leave the room, he recorded the statement of sangita. He said, he asked Sangita about the incident. He said, he asked questions as per a formate for recording a dying declaration. He then said, deceased Sangita answered his question and he noted them as dying declaration as per her narration. He also stated, the dying declaration was read over to sangita and she admitted it be correct. He 6 Cri. Appeal No. 213/2007.
further stated, after recording of the dying declaration he again asked the duty Medical Officer to certify about fitness of Sangita for giving the statement. He then produced the dying declaration on record. The learned Judge then exhibited it as Exh.44. There is one more witness for dying declaration. It is P.W.8 Dr. Sanjay Pathare. He said that on 21st December,2005 he was assigned Causal Duty as C.M.O. and that on that day, P.W.5 Sharad Mandlik came to him for recording dying declaration of the deceased Sangita, who was admitted in 'burn ward'. He said, he then accompanied P.W.5 to the 'burn ward'. He said the patient was conscious and was speaking properly. He also said that he issued such certificate. He further added that when the statement was being recorded, he was present by the side of the patient. He said, after recording of the statement, he again certified that the patient was conscious and oriented. The question is whether the depositions of P.W.5 Sharad and P.W.8 Dr. Sanjay Pathare are sufficient to exhibit the dying declaration at Exh.44? The answer to this question is in the negative. As noticed earlier, none of these witnesses stated as to how the incident had occurred as per narration of Sangita. They did not utter a single word as to what Sangita told them, how she described the incident; who were the offenders, who had poured the kerosene on her person, who 7 Cri. Appeal No. 213/2007.
had set on her fire and in what matter. Both these witnesses are silent about these important aspects and proof of Sangita's dying declaration. 7] The question as to how a dying declaration is proved before the court is discussed in a recent judgment of Our High Court in the case Deorao S/o Sonbaji Bhalerao and another Vs. State of Maharashtra reported in 2008 ALL MR (Cri.) 1921. The facts and situation in the reported case was almost similar. It was similar urged before that court that the dying declaration was proved and it was not necessary for the witnesses to depose exact word spoken by the declarator/deceased uttered about the persons who poured kerosene on her person and set her on fire, because there was presumption of genuineness attached to such dying declaration as per section 80 of the Evidence Act, it being a record of evidence given by a witness to a Magistrate authorised by Law. The Division Bench of our High Court then discussed the law on this subject, laid down by the various judgments. The Division Bench highlighted the law which required proper proof for dying declaration. It said there are three reasons for not admitting the statement without proof under section 80 of the Evidence Act. They are (i) the Magistrate who recorded such statement was not committing Magistrate,(ii) the accused was not present when such statement was recorded and 8 Cri. Appeal No. 213/2007.
(iii) accused had no liberty of crossexamining the dead person who made statement. After considering other judgments on these points, the Division Bench of Our High Court held thus:
19 The question which arises for our consideration is whether a dying declaration is admissible without proof, under section 80 of the Evidence Act? It would be useful to reproduce the said provision.
" S. 80 Presumption as to documents produced as record of evidence:-
Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume- that the document is genuine: that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
Since there are a number of 'and' and 'or' in order to avoid any ambiguity, this Section can be separated in three parts to arrive at a plain
interpretation. S.80 applied to
(1) any document produced before any Court, purporting to be record of memoranda of evidence or of any part of the evidence given by a witness in a judicial proceedings,or
(ii) to a document purporting to be a record or memo of evidence given by a witness before any officer authorised to take such evidence, or
(iii) to a statement or confession by any prisoner or accused person taken in accordance with law and purporting 9 Cri. Appeal No. 213/2007.
to be signed by any Judge or Magistrate, or any such officer as aforesaid ( i.e. authorised by law). To put it in another way, it would be
(a) such document is memoranda of evidence;
(b) the evidence was given by a witness; and
(c) it was given in a judicial proceedings, or before an officer authorised by law to take it."
20. The words.'by any prisoner or accused person' govern also the word
'statement' because if they governed only the word 'confession' the word 'statement' would be left all alone and would be too vague to make any sense. Let us put to test the submission made on behalf of the State that dying declaration recorded by a Magistrate would fall under section 80 of Evidence Act. S.80 of Evidence Act deals with presumptions to be attached to one important class of judicial documents viz depositions of witnesses in a judicial proceedings or documents recorded by an officer necessarily means in some previous proceedings. The reason is, evidence recorded in open court in judicial proceedings or by an Officer authorised to take evidence by observance of certain prescribed rules and formalities afford sufficient guarantee for presumption that it was correctly done. The rule is,Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium everything is presumed to be rightly and duly performed until the contrary is shown; and that the records of a Court of justice have been correctly made. For recording a dying declaration by a Magistrate, no particular procedure is prescribed by statutory law nor evidence of such a dying man is 10 Cri. Appeal No. 213/2007.
recorded in the presence of the accused,nor the accused had any opportunity of cross examining the dying man. The dying declaration is recorded either before investigation begins or after and, therefore, it cannot be said that the same even if treated as 'evidence given by a witness' is not recorded during any previous judicial proceedings or any proceedings before an officer
authorised by law to take such evidence. As Taylor, J. in the case of King Emperor Vs. Mathura Thakur, supra, rightly observed that what is made admissible by S.32(1) of the Evidence Act is the verbal statement made by the dying man to the Magistrate and not the document prepared by the Magistrate. The document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under section 80 of Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. For these reasons therefore, S.80 of the Evidence Act cannot be invoked in respect of presumption to be drawn in respect of dying declaration recorded by a Magistrate or even an officer
authorised by a law to take evidence. As a sequel or our fining about inapplicability it or presumption under Sec.80 of Evidence Act, we further hold that the Magistrate or the person who records a dying declaration will have to testify and prove who was named as offender by the dying person before Court where trial proceedings against accused are held. In the case of Smiruddin,supra the Calcutta High Court 11 Cri. Appeal No. 213/2007.
held that the statement must have been proved in ordinary way by a person who heard it made. If for any reason the Magistrate is not available, any other person who heard it when made can also testify and they being at liberty to refresh memory by referring to the document as provided by Sections 159 and 160 of Evidence Act.
21 Section 273 of Criminal Procedure Code reads thus:
" S.273 Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the present of is pleader."
A dying declaration recorded by a Magistrate is not recorded in the presence of the accused. But Sec. 32(1) of the Evidence Act makes the same relevant and can be proved by evidence and sanctity given to its embodied in the maxim nemo moriturus praesumitur mentire, i.e. A man will not meet his maker with lie in his month. That is why tests of oath and crossexamination are dispensed with. But then relevancy in evidence and proof by evidence are different things. Where accused is called upon to defend a charge under Sec. 302, I.P.C., the burden of proof in the absence or presumption of law never shifts into him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then show that the prosecution has not proved particular material facts through its prosecution witness who failed to describe the names and role of the accused in the offence of murder 12 Cri. Appeal No. 213/2007.
as told by the dying man to such a witness or a Magistrate who recorded the dying declaration by merely exhibiting the documents of dying declaration its contents and in particular the names of the offender's and the role played by them in committing the offence of murder is not proved unless such witness or
Magistrate vouchsafes before the trial Court as to whom did the dying person named offenders. In Narbada Devi Gupta vs. Birendra KumarAIR 2004 SC 175: [2004(5)ALL MR (S.C.)51], the apex court in paragraph 16 held thus:
"The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court."
In Dandu Lakshmi Reedy Vs. State of A.P.1999 ALL MR(Cri) 1784,Supra, the apex Court in para 3 held as under:
"There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross examination, inter alia, for rebutting the presumption but a dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence can not be tested by cross- examination. Those inherent weaknesses attached to a dying declaration would not justify and initial presumption to be drawn that the dying declaration contains only the truth.'
8] In view of the law discussed above, the document Exh. 44, the socalled dying declaration can not be said to be proved as required by law. We, therefore, hold that the prosecution has 13 Cri. Appeal No. 213/2007.
failed to prove this basic circumstance in support of its case.
9] The value of this dying declaration is diluted further because prosecution also placed reliance on two oral dying declarations, which are not in consonance with the written one. The prosecution witness No.1 Bhausaheb stated that the deceased Sangita had told him that accused Rajendra, his brother and parents had set her on fire. This certainly is different than the dying declaration recorded by the prosecution witness P.W.5 Sharad Mandlik. Another P.W.(2) Jyoti, the sister of the deceased, stated that deceased Sangita had narrated the incident to her saying that the accused poured kerosene on her person and set her on fire. This version is also different from the the one recorded in writing.
10] The next circumstance is the deposition of child witness Snehal. This witness as said above is examined as 'Court witness'. Her deposition is quite cryptic. She described the incident in very few words. She said the appellant No.1 poured kerosene on her mother and the appellant No.2 set her on fire by striking match stick. Saying this, she identified the appellant Nos. 1 and 2 as the perpetrators. She has not given other details as to what had happened prior to the actual incident, what was her mother's 14 Cri. Appeal No. 213/2007.
reaction to the act allegedly done by the appellant Nos 1 and 2 etc. In the cross examination, she admitted that, her maternal uncle and maternal grandfather kept on telling her, what she should depose in the Court. The question is whether this witness was tutored? There was strong possibility of tutoring of this witness. The incident took place in December, 2005, and since then till her deposition was recorded in the month of May2007, the child had been residing with her mother's relatives namely her maternal uncle and maternal grand father. Her age at the time of incident was merely three years and she was only five years old when her deposition was recorded. The child of this tender age is prone to tutoring. The Law on the subject, as to how to appreciate the evidence of 'child witness', is discussed in various judgment of the Supreme Court. One of them is the judgment in the case of Panchhi and others Vs. State of U.P. reported in AIR 1988 SUPREME COURT,2726. The Hon'ble Supreme Court held thus
11 Shri R. K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of P.W.1 being a child witness. According to the learned counsel,evidence of child witness is generally unworthy of credence. But we do not subscribe to the view that
the evidence of child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence
15 Cri. Appeal No. 213/2007.
shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by
what others tell them and thus a child witness is an easy prey to tutoring.
Courts have laid down that evidence of a child witness must find adequate
corroboration before it is relied on.
It is more a rule of practical wisdom
than of law. (emphasis provided by 12 us)
11] It is thus clear that the deposition of child witness is evaluated very carefully and with greater circumspection. As said above this child was certainly susceptible to be tutoring and must have followed the instructions, which she had received from her relatives. We, therefore, discard this piece of evidence. In view of this, the case of prosecution would fail so far as it relates to charge under section 302 read with section 34 of the Indian Penal code against the appellant Nos.1 and 2.
12] The remaining question is whether the prosecution proved the offence punishable under section 498A of the Indian Penal Code against the appellants. The answer is in the negative. The prosecution witness Nos. 1Bhausaheb and 2 Jyoti, the father and sister of the deceased Sangita are the witnesses on this point. Both these witnesses 16 Cri. Appeal No. 213/2007.
made rather vague and omnibus statements saying that deceased Sangita used to tell them that, all accused used to say to her that she should bring money from her father; all accused used to ill treat her, used to beat her and used to sent her to her father's house. P.W.2 Jyoti, in addition to this, also stated that the deceased Sangita used to tell her that her husband ill treated her suspecting her fidelity. We find that, the material on record is insufficient to convict the appellants under section 498A of the Indian Penal Code. The appeal therefore, succeeds.
13] This Criminal Appeal is allowed and the conviction of the appellants is hereby quashed and set aside and they are acquitted of the offences with which they were charged and convicted.
Appellant No.1 Laxmibai Maruti Satpute and Appellant No.2 Maruti Sitaram satpute are said to be in jail since the date of the incident and they be released forthwith, if not wanted in any other case. Bail bonds of appellant No. 3 Arun Maruti Satpute stand cancelled. Fine,if paid by the appellants be refunded to them.
(A.V.NIRGUDE, J.) (P.V.HARDAS, J.)
MTK./
INGLE G.[ADVOCATE]9421657505
(Expert) 31 March 2010
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Nil Ratan Kundu & Anr vs Abhijit Kundu on 8 August, 2008
Cites 31 docs - [View All]
The Indian Penal Code, 1860
The Guardians And Wards Act, 1890
Section 6 in The Indian Penal Code, 1860
Section 498A in The Indian Penal Code, 1860
Section 8 in The Indian Penal Code, 1860
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Supreme Court of India
Bench: C Thakker
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4960 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 1243 OF 2008 NIL RATAN KUNDU & ANR. ... APPELLANTS VERSUS
ABHIJIT KUNDU ... RESPONDENT J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed against the judgment and order passed by the Additional District & Sessions Judge, Fast Track, 1st Court, Barasat on July 15, 2006 and confirmed by the High Court of Calcutta in F.M.A.T. No. 3185 of 2006 on December 7, 2007. By the 2
impugned orders, both the Courts below directed handing over custody of minor child Antariksh Kundu to father-Abhijit Kundu, respondent herein.
Factual matrix
3. To understand the controversy in the appeal, it is appropriate if we narrate relevant facts of the case:
4. The appellants herein, (i) Nil Ratan Kundu and (ii) Smt. Kabita Kundu are maternal grand father and grand mother respectively of minor Antariksh, father and mother of deceased Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundu-respondent herein. It is the case of the appellants that they had a daughter named Mithu whom they gave in marriage to Abhijit Kundu on August 8, 1995. The marriage was performed according to Hindu rites and ceremonies. Sufficient amount of dowry by way of money, ornaments and other articles was given to the respondent. According to the 3
allegation of the appellants, however, the respondent and his mother were not satisfied with the dowry and they started torturing Mithu for bringing more money from the appellants. On November 18, 1999, a male child-Antariksh was born from the said wedlock. The appellants thought that after the birth of son, torture on Mithu would be stopped. Unfortunately, however, it did not so happen. Mithu was totally neglected and the harassment continued. She became seriously sick. Coming to know about the ill-health of Mithu, the appellants brought her to their house and got admitted her in a nursing home for medical treatment. On being cured, she returned to her matrimonial home, but the demand of dowry persisted and physical and mental cruelty did not stop.
4. In the night of April 9, 2004, as alleged by the appellants, Mithu was brutally assaulted by the respondent and his mother and was brought to a hospital where she was declared dead. Immediately on the next day 4
i.e. on April 10, 2004, appellant No.1 lodged First Information Report (FIR) against the respondent and his mother at Baranagar Police Station which was registered as Case No. 90 for offences punishable under Sections 498A and 304, Indian Penal Code (IPC). The respondent was arrested by the police in that case.
6. On April 18, 2004, custody of Antariksh was handed over to the appellants. Antariksh was found in sick condition from the residence of the respondent. At that time, he was only of five years. It was his maternal grand father-appellant No.1, who maintained the child with utmost love and affection. He was admitted to St. Xavier's Collegiate School, Kolkata which is a well-known and well-reputed school in the State of West Bengal.
7. After due investigation of the case, on May 31, 2005, police submitted a charge- sheet against the respondent and his mother and the criminal case is pending. After the respondent was enlarged on bail, he filed an 5
application under the Guardians and Wards Act, 1890 (hereinafter referred to as `1890 Act') praying for custody of Antariksh. A reply was filed by the appellants to the said application strongly objecting to the prayer made by the respondent. It was expressly stated in the reply that custody of child Antariksh was given to them when he was found in ailing condition in the house of the respondent. The respondent and his mother had killed their daughter and a criminal case was pending and custody of Antariksh may not be given to the father- respondent.
6
Trial Court's order
8. The trial Court, after considering the evidence on record, allowed the application and held that respondent was father and natural guardian of Antariksh and the present and future of Antariksh would be better secured in the custody of respondent. Accordingly it passed an order that custody of Antariksh be `immediately' given to the father. High Court's order
9. Being aggrieved by the said order, the appellants approached the High Court. But the High Court also, by the order impugned in the present appeal, dismissed the appeal holding that the trial Court was right in ordering custody to be given to the father and the said order did not suffer from infirmity. The Division Bench of the High Court, therefore, directed the appellants to handover child Antariksh in the custody of his father with visitation rights to the appellants. The said 7
order is challenged by the appellants-maternal grand parents of Antariksh in this Court. Earlier orders
10. On March 7, 2008, when the matter was placed for admission hearing, notice was issued by this Court and was made returnable on March 24, 2008. The Court also observed that let the child (Antariksh) remain present in the Court on that day at 10.30 a.m. The learned counsel appearing for the appellants stated that the appellants would bear expenses of bringing Antariksh to the Court. Accordingly, a direction was issued that for that purpose, custody of Antariksh may be given to the appellants on March 22, 2008.
11. On the returnable date, i.e. on March 24, 2008, the Court heard learned counsel for the parties. The Court also ascertained the wishes of Antariksh. It was, however, observed in the order that an appropriate order would be passed on March 31, 2008, the day on which the 8
matter was ordered to be listed for further hearing. It was stated that till then the custody of Antariksh would remain with maternal grand parents. It was also observed that it would not be necessary to keep Antariksh present in the Court on the adjourned date. On March 31, 2008, the matter appeared on the board and the learned counsel for the parties were heard. The learned counsel for the respondent prayed for time to file affidavit in reply. It was also stated that the matter was urgent and affidavit should be filed within a very short period. The Court, therefore, observed that let such affidavit-in-reply be filed on or before April 2, 2008 and the affidavit-in-rejoinder be filed on or before April 4, 2008. The matter was adjourned to April 7, 2008. On April 7, 2008, again the Court heard learned counsel for the parties and felt that the matter should be heard finally on a non-miscellaneous day and accordingly the Registry was directed to place the matter in 9
the last week of April, 2008. The matter was, therefore, placed on board for final hearing and it was heard on April 29-30, 2008. Appellants' submissions
12. The learned counsel for the appellants strenuously contended that both the Courts were wholly wrong in granting custody of minor Antariksh to the respondent. It was stated that the approach of the Courts below was technical and legalistic rather than pragmatic and realistic. It was stated that in such matters, paramount consideration which is required to be borne in mind by the Court is welfare of the child and nothing else. Precisely that has not been done.
13. It was alleged that the respondent and his family members were after dowry and they had tortured Mithu since she could not bring sufficient amount of dowry. She was physically and mentally harassed. She became ill and was admitted to hospital by the appellants. After 1
she was cured, she returned to matrimonial home, but the harassment and cruelty persisted. Even after the birth of Antariksh, the difficulties did not come to an end and as Mithu was unable to bring more money, as demanded by the respondent and his family members, she was killed and criminal proceedings were initiated against the respondent and his mother which are pending.
14. It was further stated that the above incident had given mental shock to minor Antariksh who was also found sick in the house of the respondent when he was of five years of age. The appellants brought Antariksh with them and got him admitted in a recognized and well reputed school and he is very well settled. In the circumstances, the Courts ought not to have passed an order directing the appellants to handover custody of Antariksh to the respondent.
15. It was also contended that the trial Court which exercised the power under 1890 Act, 1
did not ascertain wishes of Antariksh by calling him, observing that none of the parties asked for such examination and considering his age, such action was not taken. So far as the High Court is concerned, it observed that the child had been `tutored' to make him hostile towards his father. According to the counsel, there was nothing to show on what basis the above statement had been made by the High Court and the custody had been wrongly granted to the respondent. The said order, therefore, deserves to be set aside.
16. It was also argued that under 1890 Act, in appointing or declaring a guardian of a minor, the Court should keep in mind the welfare of the minor being paramount consideration having regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. If the minor is old enough to form an independent opinion or preference, the Court may consider that aspect 1
as well. In the instant case, the trial Court decided the matter on July 15, 2006 when Antariksh was more than six years of age. But neither his wishes were ascertained, nor his preference was even enquired by calling him. It was also submitted that though `character' of the proposed guardian has to be taken into account, the Courts below did not appreciate in its proper perspective the fact that a criminal case was pending against the respondent which related to the death of mother of minor Antariksh involving the respondent himself and his mother and by observing that if he would be convicted, appropriate action could be taken thereafter. The High Court also committed the same mistake. Both the orders, therefore, are liable to be set aside.
Respondent's submissions
17. The learned counsel for the respondent-father, on the other hand, supported the order passed by the trial Court and 1
confirmed by the High Court. It was urged that both the Courts below considered the relevant provisions of law, the position of the respondent as natural guardian being father of Antariksh and the facts in their entirety and held that there was no earthly reason to deprive him of custody of minor Antariksh. The Courts felt that minor Antariksh also should not be deprived of natural love and affection of his father in absence of mother.
18. According to the counsel, the Courts were conscious of the fact that a criminal case was pending against the respondent and, therefore, observed that if ultimately the respondent would be convicted and sentenced to jail, the appellants herein (grand parents of the child) could move the Court for change of custody. Such an order cannot be said to be illegal or contrary to law and in the exercise of jurisdiction under Article 136 of the 1
Constitution, this Court may not interfere with it.
19. Before we address ourselves to the issue regarding custody of Antariksh, let us consider the legal position.
1
English Law
20. In Halsbury's Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has been stated;
"Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the
father." (emphasis supplied)
21. It has also been stated that if the minor is of any age to exercise a choice, the court will take his wishes into consideration. (para 534; page 229).
22. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is `welfare of the child'.
1
23. In Habeas Corpus, Vol. I, page 581, Bailey states;
"The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the
mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her
offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate."
24. It is further observed that an incidental aspect, which has a bearing on the question, may also be adverted to. In determining whether it will be for the best interest of a child to grant its custody to the 1
father or mother, the Court may properly consult the child, if it has sufficient judgment.
25. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed; The dominant matter for the
consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its
widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded. (emphasis supplied)
American Law
26. Law in the United States is also not different. In American Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;
1
"As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield". (emphasis supplied)
27. In para 148; pp.280-81; it is stated; "Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an
equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's view of the best interests of those whose welfare requires that they be in custody of one person or
another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the 1
child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration.
An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made
clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment".
(emphasis supplied)
28. In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758; it was stated; "In habeas corpus proceedings to determine child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its infant ward, and the very nature and scope of the
inquiry and the result sought to be accomplished call for the exercise of 2
the jurisdiction of a court of equity".
29. It was further observed; "The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the
primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate".
(emphasis supplied)
30. It was also indicated that ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ sued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child.
Indian Law
2
31. The legal position in India follows the above doctrine. There are various statutes which give legislative recognition to these well-established principles. It would be appropriate if we examine some of the statutes dealing with the situation. Guardians and Wards Act, 1890 consolidates and amends the law relating to guardians and wards. Section 4 of the Act defines "minor" as a person who has not attained the age of majority. "Guardian" means a person having the care of the person of a minor or of his property, or of both his person and property. "Ward" is defined as a minor for whose person or property or both, there is a guardian. Chapter II (Sections 5 to 19) relates to appointment and declaration of guardians. Section 7 deals with `power of the Court to make order as to guardianship' and reads as under:
7. Power of the Court to make order as to guardianship.-(1) Where the Court is satisfied that it is for the
welfare of a minor that an order
should be made--
2
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
32. Section 8 of the Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced;
2
17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
* * * * *
(5) The Court shall not appoint or declare any person to be a guardian against his will.
(emphasis supplied)
33. Section 19 prohibits the Court from appointing guardians in certain cases.
34. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians.
2
35. Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "1956 Act") is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines "minor" as a person who has not completed the age of eighteen years. "Guardian" means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act.
36. Section 6 enacts as to who can be said to be a natural guardian. It reads thus;
6. Natural guardians of a Hindu Minor. --The natural guardians of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an
unmarried girl--the father, and after him, the mother; provided that the custody of a minor who has not
2
completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-- the mother, and after her, the father. (c) in the case of a married girl-- the husband:
Provided that no person shall be
entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a
Hindu, or
(b) if he has completely and
finally renounced the world
becoming a hermit
(vanaprastha) or an ascetic
(yati or sanyasi).
Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother.
37. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso;
13. Welfare of minor to be paramount consideration.
2
(1)In the appointment or declaration of any person as guardian of a
Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2)No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any
law relating to guardianship in
marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the
welfare of the minor.
(emphasis
supplied)
38. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
39. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount 2
consideration is the `welfare of the child' and not rights of the parents under a statute for the time being in force.
Case law
40. The aforesaid statutory provisions came up for consideration before Indian Courts in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.
41. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 : AIR 1941 Bom 103; the High Court of Bombay stated;
"It is not the welfare of the
father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration."
(emphasis supplied)
2
42. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
43. The Court further observed that merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their 2
custody to him. The Court also observed that children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
44. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated that only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature 3
thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.
45. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6].
46. Recently, in Mausami Moitra Ganguli v. Jayant Ganguli, JT (2008) 6 SC 634, we have held that the first and the paramount consideration is the welfare of the child and not the right of the parent.
47. We observed;
"The principles of law in relation to the custody of a minor child are well settled. It is trite that while 3
determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant
considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of al the relevant facts and circumstances, bearing in 3
mind the welfare of the child as the paramount consideration."
48. In Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi, (1992) 3 SCC 573, custody of two minor children was sought by father as also by maternal uncle. Mother died unnatural death and the father was facing charge under Section 498-A, Indian Penal Code. Children were staying with maternal uncle. Before this Court, both the children expressed their desire to stay with maternal uncle and not with the father.
49. Considering the facts and circumstances and bearing in mind the case pending against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Court stated; "After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential 3
right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage".
50. The counsel also invited our attention to decisions of various High Courts. In Tarun Ranjan Majumdar & Anr. v. Siddhartha Datta, AIR 1991 Cal 76, the High Court considered Sections 7, 12 and 25 of 1890 Act. It held that when the Court is of the opinion that some order is required to be passed with regard to custody of a ward, it can be passed considering the welfare of the ward. It was further observed that even if a child is in the custody of one who has no legal right thereto and its welfare is reasonably looked after in a manner in which it should, the legal guardian cannot claim an order of return or recovery of custody merely on the strength of his legal right or financial soundness.
3
51. In Bimla Devi v. Subhas Chandra Yadav `Nirala', AIR 1992 Pat 76, the Court held that paramount consideration should be welfare of minor and normal rule (the father is natural guardian and is, therefore, entitled to the custody of the child) may not be followed if he is alleged to have committed murder of his wife. In such case, appointment of grand-mother as guardian of minor girl cannot be said to be contrary to law.
52. Construing the expression `welfare' in Section 13 of 1956 Act liberally, the Court observed;
"It is well settled that the word `welfare' used in this section must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being".
(emphasis supplied)
53. In Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002 Raj 148, the High Court observed that it is true that father is a natural guardian of a minor child and therefore 3
has a preferential right to claim custody of his son, but in the matters concerning the custody of minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out wishes of the child as to with whom he or she wants to live.
54. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315, the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to `human touch'. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. 3
55. In Kamla Devi v. State of Himachal Pradesh, AIR 1987 HP 34, the Court observed; "(T)he Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other". Principles governing custody of minor children
56. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot 3
be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, 3
though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
Orders of Courts below not in consonance with law
57. Having given anxious and thoughtful consideration to the facts of the case and applying well settled principles referred to above, we are constrained to observe that the orders passed by the Courts below are short of the fundamental principles on more than one ground.
58. The approach of both the Courts is not in accordance with law and consistent with the view taken by this Court in several cases. For instance, both the Courts noted that the appellants (maternal grand parents) are giving `all love and affection' to Antariksh but that does not mean that Antariksh will not get similar love and affection from his father. It was also observed that appellants no doubt got Antariksh admitted to a well reputed school 3
(St. Xavier's Collegiate School, Kolkata). But it could not be said that the father will not take personal care of his son. Both the Courts also emphasized that the father has right to get custody of Antariksh and he has not invoked any disqualification provided by 1956 Act.
59. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.
60. In Rosy Jacob, this Court stated; "The contention that if the husband (father) is not unfit to be the
guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly may at times be somewhat misleading".
61. It was also observed that the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the 4
relevant circumstances. The father's fitness cannot override considerations of the welfare of the minor children.
62. In our opinion, in such cases, it is not the `negative test' that the father is not `unfit' or disqualified to have custody of his son/daughter is relevant but the `positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian.
63. Though this Court in Rosy Jacob held that children are not mere chattels nor toys, the trial Court directed handing over custody of Antariksh `immediately' by removing him from the custody of his maternal grand-parents. Similarly, the High Court, which had stayed the order of the trial Court during the pendency of appeal ordered handing over Antariksh to his father within twenty four hours positively. We 4
may only state that a child is not `property' or `commodity'. To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem.
64. At another place, the trial Court noted that a criminal case was pending against the father but the pendency of the case did not ipso facto disqualify him to act as the guardian of Antariksh.
65. The Court stated; "If ultimately the petitioner (father) is convicted and sentenced in that case, the OPs (maternal grand-parents of Antariksh) will have the scope to inform the fact to the Court and to pray for change of the Court's decision".
66. The Court made a `comparative study' and observed that it had `no hesitation' in holding that the present and future of Antariksh would be better secured in the custody of his father.
4
67. It then stated;
"Antariksh should be, therefore, immediately removed from the custody of OPs (Maternal grand-parents) to the custody of the petitioner (father)". (emphasis supplied)
68. The appellants herein challenged the decision of the trial Court by approaching the High Court. With respect, the High Court also committed the same error by not applying correct principle and proper test of welfare of minor (Antariksh) as the paramount consideration. It, no doubt, referred to the principle, but held that the trial Court was right in handing over custody of Antariksh to the father.
69. The High Court then proceeded to state;
"We have gone through the evidence adduced by both sides and also heard the child in order to decide the
question of the welfare of the said child. During our conversation with the child we have observed with great anxiety that the child has been
tutored to make him hostile towards his father. In this connection it is 4
worth mentioning here that the learned Court below also held that the O.P's wanted to wipe out the existence and identity of father from the mind of the petitioner's son and if it so, then it may be disastrous for the future of the petitioner's son".
(emphasis supplied)
70. We are sorry to say that there is no material on record as to on what basis the above inference was drawn or opinion was formed by the High Court.
71. Now, it has come in evidence that after death of Mithu (mother of Antariksh) and lodging of First Information Report by her father against Abhijit (father of Antariksh) and his mother (paternal grand mother of Antariksh), Abhijit was arrested by police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grand mother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit.
4
72. In our considered opinion, on the facts and in the circumstances of the case, both the Courts were duty bound to consider the allegations against the respondent herein and pendency of criminal case for an offence punishable under Section 498A, IPC. One of the matters which is required to be considered by a Court of law is the `character' of the proposed guardian. In Kirit Kumar, this Court, almost in similar circumstances where the father was facing the charge under Section 498-A, IPC, did not grant custody of two minor children to the father and allowed them to remain with maternal uncle. Thus, a complaint against father alleging and attributing death of mother and a case under Section 498-A, IPC is indeed a relevant factor and a Court of law must address to the said circumstance while deciding the custody of the minor in favour of such person. To us, it is no answer to state that in case the father is convicted, it is open to maternal 4
grand parents to make an appropriate application for change of custody. Even at this stage, the said fact ought to have been considered and appropriate order ought to have been passed.
73. As already noted, Antariksh was aged six years when the trial Court decided the matter. He was, however, not called by the Court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial Court was that none of the parties asked for such examination by the Court.
74. In our considered opinion, the Court was not right. Apart from statutory provision in the form of sub-section (3) of Section 17 of 1890 Act, such examination also helps the Court in performing onerous duty, in exercising discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the Court which is bound to consider all questions and to make an appropriate order 4
keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given.
75. Before about a century, in Anni Besant (Mrs.) v. G. Narayaniah & Anr., 41 IA 314 : AIR 1914 PC 41, under an agreement, custody of two minor sons was with the mother who was staying in England. The father who was residing in Madras, instituted a suit for custody of his sons asserting that he was the natural guardian of the minors and was entitled to have custody of both his sons. The trial Court decreed the suit which was confirmed by the High Court.
76. The Judicial Committee of the Privy Council held that under the Hindu Law, the father was the natural guardian of his children during their minority. But it was stated that the infants did not desire to return to India and no order directing the defendant mother to 4
send minors to India could have been lawfully made by an Indian Court.
77. Upholding the contention, allowing the appeal and dismissing the suit, their Lordships observed that it was open to the plaintiff- father to apply to His Majesty's High Court of Justice in England for getting custody of his sons. "If he does so the interests of the infants will be considered, and care will be taken to ascertain their own wishes on all material prints." (emphasis supplied) Since it was not done, the decree passed by both the Courts was liable to be set aside.
78. We may, however, refer at this stage to a submission of the learned counsel for the respondent-father. Referring to Thrity, the counsel contended that this Court held that the Court is not bound to interview the child. In that case, this Court did not interview the minors and did not ascertain their wishes. It was, therefore, submitted that it cannot be 4
said that non-examination of Antariksh or failure to ascertain his wishes by the trial Court was illegal or unlawful and vitiated the order.
79. We are unable to agree with the learned counsel. We have closely gone through Thrity. Reading the decision as a whole makes it amply clear that on the facts of the case, this Court felt that calling minor children frequently in a Chamber by Judges was not proper and such interviews really disturbed them rather than giving them a respite and relief.
80. This Court reproduced some of the observations of learned Judges of the High Court who had interviewed the minors. The Court also considered sub-section (3) of Section 17 of 1890 Act and the power of the Court to interview a minor child with a view to consider his/her preferences and observed; "We may, however, point out that there cannot be any manner of doubt as to 4
the Court's power of interviewing any minor for ascertaining the wishes of the minor, if the Court considers it so necessary for its own satisfaction in dealing with the question relating to the custody of the minor".
81. Considering the facts of the case, however, the Court refused to undertake that exercise and stated;
"In the facts and circumstances of this case we are however, not inclined to interview the minor daughter, as we are satisfied in the present case that the minor is not fit to form an
intelligent preference which may be taken into consideration in deciding her welfare. We have earlier set out in extenso the various orders passed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders. The impressions as recorded by the learned Judges of the Bombay High Court, go to indicate that the minor has expressed different kinds of wishes at different times under different conditions. It also appears from the report of the Social Welfare Expert that these interviews cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents 5
and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected. Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrassing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare. Any child who is placed in such an
unfortunate position, can hardly have the capacity to express an intelligent preference which may require the Court's consideration to decide what should be the course to be adopted for the child's welfare. The letters addressed by the daughter to her
mother from Panchgani and also a
letter addressed by her to her aunt (father's sister) also go to show that the minor cannot understand her own mind properly and cannot form any firm desire. We feel that sending for the minor and interviewing her in the present case will not only not serve any useful purpose but will have the effect of creating further depression 5
and demoralisation in her mind".
(emphasis supplied)
82. From the above observations and particularly the italicized portion, it is abundantly clear that in peculiar facts and circumstances of the case, this Court was satisfied that calling a minor girl and interviewing her several times had not only not served any useful purpose but had the effect of creating further depression and demoralization in her mind.
83. In the instant case, on overall considerations we are convinced that the Courts below were not right or justified in granting custody of minor Antariksh to Abhijit- respondent herein without applying relevant and well-settled principle of welfare of the child as paramount consideration. The trial Court ought to have ascertained the wishes of Antariksh as to with whom he wanted to stay.
84. We have called Antariksh in our chamber. To us, he appeared to be quite 5
intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grand-parents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father-respondent herein.
85. For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The application filed by the respondent Abhijit for custody of his son Antariksh is ordered to be dismissed. In view of the facts and circumstances of the case, however, there shall be no order as to costs. .............................................J. (C.K. THAKKER)
5
NEW DELHI, .............................................J. AUGUST 08, 2008. (D.K. JAIN)
INGLE G.[ADVOCATE]9421657505
(Expert) 31 March 2010
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Noorjahan vs State Rep. By D.S.P on 23 April, 2008
Cites 8 docs - [View All]
The Indian Penal Code, 1860
Section 498A in The Indian Penal Code, 1860
The Indian Evidence Act, 1872
The Criminal Law (Amendment) Act, 2005
Section 304B in The Indian Penal Code, 1860
Citedby 2 docs
Haresh vs State Of Chhattisgarh on 29 January, 2009
Bhaskar Lal Sharma &Amp; Anr vs Monica on 27 July, 2009
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Supreme Court of India
Bench: A Pasayat, P Sathasivam
CASE NO.:
Appeal (crl.) 706 of 2008
PETITIONER:
Noorjahan
RESPONDENT:
State Rep. by D.S.P.
DATE OF JUDGMENT: 23/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 706 OF 2008
(Arising out of SLP (Crl.) No. 3399 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court dismissing the appeal of the appellant and upholding the conviction for offence punishable under Section 498-A of the Indian Penal Code, 1860 (in short the 'IPC') recorded and imposed by the learned District and Sessions Judge, Karur in S.C. No.1/2004. Several persons who had faced trial had preferred the appeal. Accused Nos.1 to 5 and 7 i.e. present appellant were found guilty of offence punishable under Section 498-A IPC. Accused Nos.1 to 5 were found guilty under Section 302 IPC.
3. In appeal it was held that A-1 and A-2 were guilty of offence punishable under Section 302 IPC and, therefore, their conviction as recorded by the trial Court was affirmed. Conviction of A-3, A-4 and A-5 for offence punishable under Section 302 IPC was set aside. In respect of offence punishable under Section 498-A the conviction in respect of A-1 to A-5 and A-7 was confirmed. Appellant is A-7.
4. Background facts as projected by prosecution in a nutshell are as follows:
The marriage between A-1 and Syed Ali Fathima (hereinafter referred to as the deceased) took place on 22.4.2001. A-2 is the brother of A-1. A-3 and A-4 are the sisters of A-1 and A-5 is the mother and A-6 is the father of A-
1. A-7 is the aunt of A-1. PW-1 is the mother of the deceased. At the time of marriage, PW-1 paid Rs.5,000/- and three sovereigns of gold jewels and after a period of two months, A-1 went over to Mumbai seeking for a job. All the other accused ill treated the deceased stating that the dowry demand was not met. Prior to the occurrence, A-1 came from Mumbai. PW-1 was summoned. At that time, there was a demand from A-1, A-2 and A-7, the appellant that 10 sovereigns of gold and a sum of Rs.5,000/- towards "Seervarisal" for Ramzan must be paid immediately. A-7, the appellant, who was present at that time informed PW-1 that she can pay the said demand within a period of two months.
PW-2 is closely related to PW-1. On 6.3.2000 he came to Pallapatti and went to the house of PW-1. PW-2 was informed by PW-1 that there was a dowry demand from the side of the accused. A marriage was scheduled to take place in the house of a neighbour which is next to the house of A-1 and hence on 8.3.2002, PW-2 came there between 11.00 a.m. and 12 noon. He was chatting with the said neighbour. Since PW-2 knew that there was a dowry demand, he decided to meet the deceased in her house for that purpose. When he was just getting down through the stair case, he was able to see the house of the deceased Fathima. A window was open through which he was able to see within 10 feet. At that time, A-1 and A-2 strangulated the deceased Fathima with a rope and A-3 and A-4 caught hold of both the arms. On seeing this, PW-2 was shocked. When he was witnessing the occurrence, A-2 saw PW-2. Immediately, PW-2 went over to the place of PW-1. But he could not meet anybody and he went over to his native place, Salem and returned on 9.3.2002.
When PW-1 went to the house of the accused, the wife of A-2 locked from inside and informed that the deceased Fathima was upstairs. When PW-1 went upstairs, she found only the dead body of her daughter and PW-1 was able to see a ligature mark around the neck of the deceased. PW-1 immediately came back and informed the relatives and proceeded to the Police Station. PW-13 the Sub Inspector of Police was on duty on the day of occurrence. PW-1 gave a complaint at about 1700 hrs which is marked as Ex.P-1 on the strength of which a case came to be registered in Crime No. 49/2002 under Section 174 of the Code of Criminal Procedure, 1973 (in short the 'Code'). Ex.P-11, the FIR was dispatched to the Court. On receipt of the copy of the FIR, PW-14 the Deputy Superintendent of Police took up investigation, proceeded to the scene of occurrence, made inspection and prepared Ex.P-2 the observation Mahazar and Ex.P-12 the rough sketch. He also sent a copy of the FIR to PW-10, the Revenue Divisional Officer. PW-10, the Revenue Divisional Officer, on receipt of the copy of the FIR proceeded on the place and also conducted inquest on the dead body in the presence of witnesses and prepared Ex.P-9, the Inquest Report, wherein he opined that it was not a case of suicide but it was the death by homicide. He also made enquiries from the witnesses including the accused. Following the same, the dead body was subjected to post mortem by PW-9, the doctor attached to the Government Head Quarters Hospital, Karur, who opined that the deceased appeared to have died of asphyxia due to strangulation about 24-36 hours prior to autopsy.
Originally, the case was registered under Section 174 of the Code. Later it was converted into one under Section 498-A and 302 IPC and the express FIR (Ex.P-13) was dispatched to the Court.
Pending investigation, A-1 to A-6 were arrested. A-2 came forward to give confessional statement voluntarily and the same was recorded by PW-13, the Deputy Superintendent of Police in the presence of witness, pursuant to which A-2 has produced M.O.1-Nylon rope which was recovered under a recovery Mahazar, Ex.P-1.
On completion of the investigation, the Investigating Officer filed the report. The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges leveled against the accused, the prosecution examined 16 witnesses and relied upon 13 exhibits and 3 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Section 313 of the Code as to the incriminating circumstances found in the evidence of the prosecution witnesses which they denied as false. The accused examined three witnesses who were all Medical Officers through whom 5 exhibits were also marked.
The accused persons pleaded innocence and, therefore, trial was held and conviction was recorded and sentence imposed as noted above.
5. In support of the appeal, learned counsel for the appellant submitted that there was no evidence so far as the present appellant is concerned to show that any demand for dowry was made by her. The witnesses had not stated that she was present when the demand was made. Therefore, it is submitted that the trial Court and the High Court erred in directing her conviction.
6. In response, learned counsel for the respondent-State supported the judgment of the trial Court and the appellate Court.
7. Section 498-A appears in Chapter XX-A IPC.
8. Substantive Section 498-A IPC and presumptive Section 113-B of the Indian Evidence Act, 1872 (in short the 'Evidence Act') have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983 and by the Dowry Prohibition (Amendment) Act, 1986 respectively.
9. Section 498-A of IPC and Section 113-B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.
10. Section 498A reads as follows:
"498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation For the purpose of this section 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such
demand."
"113B: Presumption as to dowry death- When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the
dowry death.
Explanation For the purposes of this section 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
11. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'.
12. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.
13. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW-1 stated that when she went to the place of her daughter appellant was present alongwith A-1 and A-2. The said A-1 demanded jewels and presentation of Rs.5,000/- for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (appellant) told that two months' time will be sufficient for offering the presentation. In other words, she did not make any demand for dowry. That aspect has been accepted by PW-1. Significantly, this witness in her cross examination had admitted that appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (appellant) was not present. Therefore, there is no evidence to show that appellant was either present when the demand was made or she herself made any demand.
14. Above being the position, the prosecution has failed to establish the accusations against the appellant. Therefore, her conviction cannot be maintained and is set aside. She was released on bail by order dated 22.2.2008. In view of the order of acquittal, bail bonds shall stand discharged.
15. The appeal is allowed.
INGLE G.[ADVOCATE]9421657505
(Expert) 31 March 2010
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Rekha Patel vs Pankaj Verma And Ors on 3 March, 2008
Cites 17 docs - [View All]
The Indian Penal Code, 1860
Section 438 in The Indian Penal Code, 1860
Section 439 in The Indian Penal Code, 1860
The Code Of Criminal Procedure, 1973
The Dowry Prohibition Act 1961
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Supreme Court of India
Bench: A Pasayat, J Panchal
CASE NO.:
Appeal (crl.) 428 of 2008
PETITIONER:
Rekha Patel
RESPONDENT:
Pankaj Verma and Ors
DATE OF JUDGMENT: 03/03/2008
BENCH:
Dr. ARIJIT PASAYAT & J.M. PANCHAL
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO 428 OF 2008 (Arising out of SLP (Crl.) No.6495 of 2006)
DR. ARIJIT PASAYAT, J
1. Leave granted.
2. Challenge in this appeal is to the order passed by the Division Bench of the Allahabad High Court passed on a petition under Article 226 of the Constitution of India, 1950 (for short 'The Constitution').
3.
The appellant was married to respondent No.1 on 12.11.2005. Alleging that she was being harassed for non-fulfilment of the demand of dowry, a complaint was filed at Thana, Jawan Police Station, District Aligarh. On the basis of appellant's complaint Crime No.277 of 2006 was registered for alleged commission of offences punishable under Sections 498A, 323, 504 and 506 of the Indian penal Code, 1860 (for short 'The IPC') and Sections 3/4 of the Dowry Prohibition Act, 1961 (for short 'The Dowry Act'). Respondent Nos.1 to 6 filed a writ petition for quashing the F.I.R. and for stay of arrest pending the disposal of the writ petition. The writ petition was filed on 1.11.2006. By the impugned order dated 7.11.2006 the High Court declined to accept the prayer for stay of arrest of the respondents but nevertheless passed the following order:
"Considering the facts and circumstances of the case, in the event the petitioners put in their appearance or are produced before the courts below and make application for their release on bail in case crime No. 277 of 2006 under Sections 498-A, 323, 504 and 506 I.P.C., Police Station Jawan, District Aligarh, the same shall be heard and disposed of expeditiously in accordance with law and in case of petitioner Nos.1 to 5, if the learned Magistrate does not find fit case to release them on bail, they shall be released on personal bond of Rs.30,000/- each and they shall remain on the same personal bonds till the final disposal of their bail application, if any, by the Court of Sessions and that too within a week thereafter."
4. Learned counsel for the appellant submitted that virtually there has been exercise of power under Section 438 of the Criminal Procedure Code, 1973 (in short 'The Cr.P.C.'). It is pointed out that in the State of U.P., Section 438 Cr.P.C. has no application.
5. The learned counsel for respondent Nos.7 to 9 submitted that the direction given by the High Court is clearly contrary to the decision of this Court in Adri Dharan Das Vs. State of West Bengal (2005 (4) SCC 303).
6. There is no appearance on behalf of respondent Nos.1 to 6 in spite of service of notice.
7. As rightly contended by the learned counsel for the appellant, presently Section 438 Cr.P.C. has no application to the State of U.P. Even otherwise, as noted in Adri Dharan Das's case (supra), after surrender of accused and rejection of his bail application, the protection of the nature granted by the High Court cannot be given. In this context paragraphs 7, 8, 9 10, 11, 12 and 13 of Adri Dharan Das's case (supra) are relevant. They read as follows:
"7. The facility which Section 438 of the Code gives is generally referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance.' Thus bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.(See: Gur Baksh Singh v. State of Punjab 1980(2) SCC 565). Section 46(1) of the Code, which deals with how arrests are to be made, provides that in making an arrest the Police officer or other person making the same "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". The order under Section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by Section 46(1) of the Code or any confinement. The apex Court in Balachand Jain v. State of Madhya Pradesh (AIR 1977 SC 366) has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.
8. Sections 438 and 439 operate in different fields. Section 439 of the Code reads as follows:
"439. (1) A High Court or Court of Session may direct -
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modified."
(underlined for emphasis)
9. It is clear from a bare reading of the provisions that for making an application in terms of Section 439 of the Code a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest".
10. In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996 SC 1042) it was observed as follows:
"Anticipatory bail is granted in
anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted".
(Emphasis supplied)
11. In K.L. Verma v. State and Anr. (1996 (7) SCALE 20) this Court observed as follows:
"This Court further observed that
anticipatory bail is granted in
anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed. It was,
therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days
thereafter to enable the accused persons to move the higher court, if they so desire."
(Emphasis supplied)
12. In Nirmal Jeet Kaur v. State of M.P. and Another (2004 (7) SCC 558) and Sunita Devi v. State of Bihar and Anr. Criminal Appeal arising out of SLP (Crl.) No. 4601 of 2003 disposed of on 6.12.2004 certain grey areas in the case of K.L. Verma's case (supra) were noticed. The same related to the observation "or even a few days thereafter to enable the accused persons to move the Higher Court, if they so desire". It was held that the requirement of Section 439 of the Code is not wiped out by the above observations. Section 439 comes into operation only when a person is "in custody". In K.L. Verma's case (supra) reference was made to Salauddin's case (supra). In the said case there was no such indication as given in K.L. Verma's case (supra), that a few days can be granted to the accused to move the higher Court if they so desire. The statutory requirement of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation.
13. In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision."
8. It is, however, submitted by the learned counsel for the State that pursuant to the direction given by the High Court, the respondents had moved for bail and have been granted bail by the learned Sessions Judge concerned.
9. In view of the aforesaid situation, we decline to interfere in the appeal; but have considered it necessary to indicate the correct parameters so that the mistake committed by the High Court is not repeated.
10. The appeal is disposed of, subject to the aforesaid observations.
O. Mahalakshmi
(Expert) 06 April 2010
You may get the bail with in one month. But there is no specific time to get a bail. It depends on the discretion of the Hon'ble Court.
