Bail
The pronouncement re-establishes the sacred principle that ‘bail is the norm, and jail is an exception' as laid down by Justice V.R. Krishna Iyer decades ago.
The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. — Justice V.R. Krishna Iyer, in the Gudikanti Narasimhulu case (1977).
RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY
The right to bail is concomitant of the accusatorial system, which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment.
Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:-
Article 9- No one shall be subjected to arbitrary arrest, detention or exile.
Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of hisrights and obligations and of any criminal charge against him.
Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial atwhich he has had all the guarantees necessary for his defense.
Hon'ble Supreme Court 2009 (3) ADJ 322 (322) (SC) Lal Kamlendra Pratap Singh Vs. State of U.P
followed by all courts in U.P. in letter and spirit, particularly since the provision for anticipatory bail does not exist in the State - In appropriate cases, interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to his reputation - Also, arrest is not a must in all cases of cognizable offences, and in deciding whether to arrest a person or not, the police officer must act according to the principles laid down by Supreme Court - Since, charge sheet has been filed and cognizance has been taken, besides on the facts of the case, it is not a fit case for quashing the first information report- Precedent.
Amaravati Vs. State of U.P. 2005 Crl.L.J 755 - approved.
Joginder Kumar Vs. State of U.P. 1994 Cr.L.J.1981 - relied on.
Amaravati Vs. State of U.P. 2005 Crl.L.J 755 ALR 290
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Joginder Kumar Vs. State of U.P. 1994 Cr.L.J.1981
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it was realized by Parliament in its wisdom that false and frivolous cases are often filed against some persons and such persons have to go to jail because even if the First Information Report is false and frivolous a person has to obtain bail, and for that he has to first surrender before the learned Magistrate, and his bail application is heard only after several days (usually a week or two) after giving notice to the State. During this period the applicant has to go to jail. Hence even if such person subsequently obtains bail his reputation may be irreparably tarnished, as held by the Supreme Court in Joginder Kumars case (supra). The reputation of a person is a valuable asset for him just as in law the good will of a firm isan intangible asset. In Gita Lord Krishna said to Arjun:
For a self-respecting man, death is preferable to dishonour (Gita Chapter 2, Shloka 34)
In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47
Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.
Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:
1. The length of his residence in the community,
2 His employment status, history and his financial condition,
3. His family ties and relationships,
4 His reputation, character and monetary condition,
5.His prior criminal record including any record or prior release on recognizance or on bail,
6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and
If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond.
Quash Others
(2005) 1 SCC 122
Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another, observed thus:-
"It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
(2004) 9 SCC 186
In Bihari Nath Goswami v. Shiv Kumar Singh & Ors.,
this Court examined the issue and held:
this Court examined the issue and held:
"Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility."
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility."
(i) There is no satisfactory explanation of delay in lodging the F.I.R.
(ii) FIR doesn’t disclose any specific allegation of cruelity
(iii) FIR doesn’t disclose who meted the cruelity and when
(iv) FIR doesn’t disclose who demanded dowry
(v) There is no dying declaration or suicidal note.
(vi) Other than Husband all are resident of different city far away from her residence
(vii) There is no letter during the subsistence of marriage.
(viii) There is no evidence regarding the injuries received by the deceased or the mal-treatment.
(ix) The neighbour or tenants have not also been examined.
Presumption
Ashok Kumar v. State of Haryana the Supreme Court had the occasion to examine the law relating to death of a wife related to dowry as provided for under Section 304-B of the Indian Penal Code. Upon a perusal of the earlier cases on the issue and the statutory provision, he Court inter alia observed as under to clarify the law;
“The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favor. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code.
Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were not satisfied, rebut the same. While referring to rising of presumption under Section 304-B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828], stated the following ingredients which should be satisfied:
1. The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC).
2. The woman was subjected to cruelty or harassment by her husband or his relatives.
3. Such cruelty or harassment was for, or in connection with, any demand for dowry.
4. Such cruelty or harassment was soon before her death.
A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.
Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”
(2001) 9 SCC 618
Ramesh Kumar v. State of Chhattisgarh, in which a three-Judge Bench of this court had an occasion to deal with the case of a similar nature -
“12. .... Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression .may presume. suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to .all the other circumstances of the case..
A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression - .the other circumstances of the case. used in Section 113- A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the lease, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase may presume. used in Section 113-A is defined in Section 4 of the Evidence Act, which says - .whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it..
In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. This Court in paragraph 20 has examined different shades of the meaning of "instigation'. Para 20 reads as under:
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
42. In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide.”
Postmortem-
AIR 2006 SC 1656
In Ramreddy Rajeshkhanna Reddy and Anr. v State of Andhra Pradesh [], this Court opined:-
"20. In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13). In Modi's Medical Jurisprudence, 22nd edition, as regard duration of rigor mortis, it is stated:
Duration of rigor mortis Hours Minutes
Average 19 0
Minimum 12 40
Maximum 3 0
It was, therefore, extremely difficult to report the exact time of death of the deceased, more so when no sufficient reason was assigned in the post- mortem report."
AIR 2007 SC 132
In Amrit Singh v State of Punjab , it was held:-
"...Exact time as to when the occurrence took place is not known and it would be hazardous to make any guess in this behalf....."
Trail Husband –
(2008) 1 SCC 202
Biswajit Halder @ Babu Halder & Ors. vs. State of W.B.
“It was held that there was practically no evidence to show that there was any cruelty or harassment for, or in connection with, the demands of dowry. There was also no finding in that regard. It was further observed that this deficiency in evidence proved fatal for the prosecution case and even otherwise mere evidence of cruelty and harassment was not sufficient to attract Section 304-B IPC. It had to be shown in addition to that such cruelty or harassment was for, or in connection with, demand of dowry.”
2010(6) SCALE 18
Durga Prasad and Another v. The State of M.P.
“Main ingredient of the offence under Section 304B IPC is that the deceased must have been subjected to cruelty or harassment in connection with any "demand for dowry" and in this case the prosecution has not established that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand for dowry”
Sushil Kumar v. State of Haryana
(SUPREME COURT OF INDIA) Date of Judgment : 10/8/2004
“Indian Penal Code, ss. 304B, 498A - Conviction - Appeal against conviction – Whether conviction sustainable? - Held in absence of any evidence to show that victim was subjected to cruelty or harassment soon before death, no offence under s. 304B is made out - Absolutely no evidence of coercion, conviction under s .498A becomes unwarranted”
CASE NO.: Appeal (crl.) 756 of 1999 PETITIONER: Harjit Singh RESPONDENT: State of Punjab DATE OF JUDGMENT: 08/12/2005 BENCH: S.B. Sinha & P.P. Naolekar JUDGMENT: J U D G M E N T S.B. SINHA :
“Faced up with this situation, the learned counsel appearing on behalf of the State relies upon a Judgment of this Court in K.Prema S.Rao and Another v. Yadla Srinivasa Rao and others, [(2003) 1 SCC 217], wherein an observation was made in the peculiar facts and circumstances of that case that even if the accused is not found guilty for commission of an offence under Section 304 and 304-B of the Indian Penal Code, he can still be convicted under Section 306 IPC thereof.
Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused.
It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Indian Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused. Before invoking the provisions of Section 306 IPC, it is necessary to establish that:
(i) The deceased committed suicide, and
(ii) She had been subjected to cruelty within the meaning of Section 498A IPC.”
1994(1) SCC 73
State of West Bengal vs. Orilal Jaiswal that :
"The courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
1995 Supp.(3) SCC 731
Mahendra Singh & Anr. vs. State of M.P.,
“it is common knowledge that the words uttered in a quarrel or in the spur of the moment or in anger cannot be treated as constituting mens rea. In that case the appellant said to the deceased "to go and die". As a result of such utterance, the deceased went and committed suicide. However, the Supreme Court observed that no offence under Section 306 IPC read with Section 107 IPC was made out because there was no element of mens rea.”
(1994) 1 SCC 73
In State of West Bengal v. Orilal Jaiswal & amp; Another, this Court has cautioned that –
“The Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”
(1988) 1 SCC 692
Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others, observed in para 7 as under:
"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
(1996) 10 SCC 193
Chenga Reddy and Others v. State of Andhra Pradesh held as under:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. ... ... ..."
(2010) 8 SCC 593
In the case of G. Parshwanath v. State of Karnataka this court has observed as under:
"In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. ... ... ... There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false 8
defence may be called into aid only to lend assurance to the court."
2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 Crl. LP No. 433/2010 Page 9 of 13 (3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that -
“The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.”
2009 (10) SCC 184
Neelu Chopra vs. Bharti
“It has been held that in order to lodge a proper complaint, mere mention of the sections and the language of those sections is not the be all and end all of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.”
Nepal Singh vs State Of Haryana on 24 April, 2009 in the supreme court of INDIA-
“The reasoning of the High Court that something must have happened and otherwise deceased would not have committed suicide is clearly indefensible.”
CASENO.:Appeal (crl.) 222 of 2008 Ran Singh and Anr. State of Haryana and Anr. on 30/01/2008 in the supreme court of INDIA–
“6. … Explanation I- For the removal of doubts, it is
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.
8. … Learned Additional Sessions Judge by a well
reasoned order had held that there was no material to show that demand for any dowry was made and an attempt was made to rope in many persons.”
reasoned order had held that there was no material to show that demand for any dowry was made and an attempt was made to rope in many persons.”
The Supreme Court in a recent decision [Kalyan Kumar Gogoi v. Ashutosh Agnihotri] had provided reasons why hearsay evidence is not received as relevant evidence and not admissible in the court of law are:
(1) The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility. i.e., every witness must give his testimony, under such circumstances, as expose him to all the penalties of false hood.
(2) Truth is diluted and diminished with each repetition, and
(3) If permitted, gives ample scope for playing fraud by saying “someone told me that………..”
Criminal Misc. Writ Petition No. 17410 of 2011
Shaukin vs State of UP and Ors on 11.10.2011 Directed that –
“13. Thus strong reasons are needed for arresting an accused with respectable antecedents, who is an income tax payee with roots in the community, and a permanent abode, no history of earlier abscondance or non-cooperation with the police and who is not likely to tamper with the evidence or to again commit a crime unless he is immediately arrested.
20. We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave and there is any legal impediment in
allowing the bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the accused on interim bail pending consideration of their regular bails may also be accorded by the Magistrates and Sessions Judges in appropriate cases.”
Trail Others -
AIR 2000 SC 2324
Kans Raj vs. State of Punjab and others the Humble Supreme Court , inter alia, observed as under:-
“In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
Kans Raj v. State of Punjab and others, AIR 2000 SC 2324, the Hon'ble Supreme Court has observed that for -
“The fault of the husband, the in-laws or the other relations cannot in all cases be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has developed for roping in all relations of the in-laws of the deceased, wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits.”
Justice Saldana (in Crl.A. no. 589 of 2003) - are testimony to how anti-dowry laws are being misused to the detriment of innocent citizens:
“We need to sound a note of caution that the police and investigating authorities should not improperly and technically jump to the conclusion that merely because death has occurred that ipso facto a criminal offense has been committed. In as many as 44% of these cases prosecution is thoroughly unjustified. Unless there is cogent and convincing evidence and unless there is material to sustain these charges, it would be totally impermissible and completely unjustified to embark upon legal action. The consequences of these charges are extremely grave because the accused husband and invariably family members are placed under arrest. There are serious social and economic repercussions.
The fact that we do come across considerable number of instances where prosecution was unjustified seems to indicate that in every case of death of young woman or recently married women that prosecution and filing of charge sheet has become automatic. There does not appear to be a proper application of mind at the stage of scrutiny and having regard to this position we direct the concerned authorities to ensure that requirements of the law are correctly and responsibly followed.”
2. Crl. Rev. P. No.555/2003 Narender Singh Arora v State (Govt. of NCT of Delhi) & Ors.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 26th August 2010
JUSTICE SHIV NARAYAN DHINGRA
“This case is a reflection of mentality which is now taking grip of parents of a deceased wife in the criminal cases. Whenever a woman dies an unnatural death within seven years of her marriage at in-laws’ house, whatever be the cause of death, the in-laws must be hanged. This case also shows how truth is losing significance because of the ego of the litigants to see that in-laws should be hanged.
Suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons; some are not able to bear the normal stresses which are common in life. Some are not able to cope up with the circumstances in which they are placed. Some commit suicide because of frustration of not achieving the desired goals. There are many cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position; some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women.
All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her in-laws’ house or at her parents’ house has to be because she was suffering harassment at the hands of her husband or her in-laws.
Normally in-laws are convicted on the testimonies of parents of the girl who, in a fit of anger or because they had lost their daughter, are not prepared to believe that their daughter could commit suicide for any other reason. “
RANI versus THE STATE OF NCT OF DELHI
JUSTICE SHIV NARAYAN DHINGRA (Judgment available)
“The tendency of the Court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck.
There is an unfortunate development under criminal justice system that even in those cases where accused should be examined as a witness by the defence, the accused persons are not examined as a witness. In matrimonial offences, it is the accused and his family members who know what transpired within the family and they should always volunteer themselves as witnesses in the Court so that the Court gets their side of the version by way of evidence and testimony. Under Section 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
When a death takes place within the four walls of matrimonial home, the husband and in-laws should come forward and depose as to what was the real cause of death.
The criminal practice in India has been on the lines of old track that accused must not speak and he should not be examined as a witness. I do not know why this practice developed but in all matrimonial offences, this practice is shutting the doors of the Court, to the version of the other side, by their advocates.
Adversarial system of trial being followed in this country has turned most of the trial court judges into umpires and despite having sufficient power to ask questions to the witnesses and to find out truth, most of them do not ask questions to the witnesses to know the truth. In fact, the witnesses are left to the Advocates and the Judges just sit and watch. This tendency of being only umpires works heavily against the poor who are normally not defended by Advocates of competence and standing, as they cannot afford their fee. The Trial Courts, therefore, must shed their inertia and must intervene in all those cases where intervention is necessary for the ends of justice.
In this case the High Court did not find time to hear the appeals of other two appellants, who continued to remain in jail during trial period as well as appeal period for no crime. In all such cases where appellants are in jail and sentence is not suspended, the High Court should fix a time limit for disposing of such appeals. Neither the criminal should be let off by default as High Court has no time to hear appeals nor should the innocents rot in jail by default. The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the person with money or power, as is the case today. “
