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In a most significant development, we saw how as recently as on September 2, 2022, the Jammu and Kashmir and Ladakh High Court at Srinagar in an extremely commendable, cogent and convincing judgment titled Farooq Ahmad Bhat Vs Syed Basharat Saleem & Anr in CRMC No. 47/2018 ruled that before prosecuting medical professionals for the offence of criminal negligence, a Criminal Court should obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion.

This will definitely ensure that the doctors are not harassed maliciously as we see in so many cases and sometimes the doctors commit suicide also as we saw some time back in Rajasthan where a lady doctor Dr Archana Sharma had most unfortunately committed suicide after she was booked by the police without any tangible reason and without making any investigation! The Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar was hearing a plea through the medium of which the petitioner had challenged an order passed by Chief Judicial Magistrate, Pulwama, whereby, a direction had been issued to SHO, P/S Pulwama to register an FIR and investigate the case.

At the outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar sets the pitch in motion by first and foremost putting forth in para 1 that:
The petitioner has challenged order dated 05.02.2018 passed by learned Chief Judicial Magistrate, Pulwama, whereby, in the complaint filed by respondent No.1 against him, a direction has been issued to respondent No.2, SHO, P/S, Pulwama, to register an FIR and investigate the case. Challenge has also been thrown to FIR No.32/2018 for offence under Section 304-A RPC that has been registered with P/S Pulwama pursuant to the aforesaid direction of the learned Chief Judicial Magistrate.

To put things in perspective, the Bench then envisages in para 2 that:
It appears that respondent No.1 had filed a complaint before Chief Judicial Magistrate, Pulwama, alleging therein that his maternal aunt, Mst. Rafeeqa, was under the treatment of the petitioner and during her treatment, the petitioner prescribed a drug, namely, Gravidol-200 mg, that was to be injected to the above-named patient. It was further alleged in the complaint that respondent No.1/complainant purchased the said drug from the market and thereafter handed it over to the petitioner who got it injected to the patient through a medical assistant whereafter the condition of the patient deteriorated.

It was further alleged that the petitioner did not bother to examine the patient which compelled respondent No.1 to administer oxygen to the patient himself but the patient could not survive. It was alleged by the complainant that he sought medical advice from other experts in the field and he was told that the injection that was administered to the patient is advisable to be given to the patients with acute hypertension and not to the patients like Mst. Rafeeqa. According to the complainant, the death of the deceased patient was caused due to the administration of aforesaid drug which, according to the complainant, was a wrong treatment prescribed by the petitioner.

As it turned out, the Bench then mentions in para 3 that:
The learned Chief Judicial Magistrate, Pulwama, in exercise of his powers under Section 156(3) of the Cr. P. C, upon going through the contents of the complaint, forwarded the same to SHO, P/S Pulwama, and directed registration of FIR and investigation of the case. A further direction was issued to SSP, Pulwama, to monitor the investigation. It is this order as well as the FIR registered pursuant to the said order, which is under challenge by way of the instant petition.

As we see, the Bench then points out in para 5 that:
Nobody has appeared on behalf of respondent No.1 whereas respondent No.2 has filed the status report. In its status report, respondent No.2 has narrated the allegations made in the complaint and it has been stated that the impugned FIR discloses commission of cognizable offence against the petitioner, as such, its investigation is required to be taken to its logical conclusion.

Quite ostensibly, the Bench then observes in para 7 that:
As is clear from the contents of the complaint, which is subject matter of this case, respondent No.1/complainant has alleged criminal negligence on the part of a medical professional while treating the deceased patient.

While citing the most relevant case law, the Bench then enunciates in para 8 that:
In the cases relating to prosecution of medical professionals for criminal negligence on their part, the Supreme Court has, in the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1, issued certain guidelines which are reproduced as under:

50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC.

The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.

51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.

A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

Adding more to it, the Bench quite commendably hastens to add in para 9 stating that:
The aforesaid guidelines were noticed with approval by the Supreme Court in its later judgment in the case of Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, and while reiterating these guidelines, the Court has observed that certain factors are required to be kept in mind. Para 29 of the judgment is relevant to the context and the same is reproduced as under:

29. Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence.

The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practise his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counterproductive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.

Most commendably, the Bench notes in para 10 that:
In the same judgment, the Supreme Court has directed that whenever a complaint is received against a doctor or a hospital by a Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made, the Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital.

The Court went on to emphasize that this is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. A warning has been issued by the Court to the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case (supra), otherwise the policemen will themselves have to face legal action.

Most significantly, the Bench then strikes the right balance by stipulating in para 11 that:
From the aforesaid analysis of law on the subject of prosecuting medical professionals for offence of criminal negligence, it is clear that before initiating such prosecution, a Criminal Court has to obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion. This is necessary to avoid any indiscriminate and frivolous proceedings against the doctors.

Frankly speaking, the Bench then rightly concedes in para 12 that:
The Courts are not experts in the medical science and, as such, they cannot substitute their own views over that of the specialists. Medical science is an inexact science and outcome of treatment of a patient cannot be predicted with certainty. Sometime even after best efforts of the doctor, his treatment of a patient may ultimately result in failure but simply because his treatment has not yielded desired result, he cannot be held liable for criminal negligence.

All these factors have to be taken into account while dealing with a case of medical negligence. Therefore, without opinion of a medical expert, the Criminal Courts have to desist from setting the criminal law into motion against a medical professional.

Be it noted, the Bench then observes in para 13 that:
The Supreme Court has, in the case of Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705, held that application of mind by the Magistrate should be reflected in the order and the mere statement that he has gone through the complaint, documents and heard the complainant will not be sufficient. The Court further observed that after going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr. P. C, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.

It is worth mentioning that the Bench then mentions in para 14 that:
In the instant case, the learned Magistrate in the impugned order dated 05.02.2018 has, after narrating the contents of the complaint, observed as under:

Heard the ld. Counsel for the complainant, perused the complaint which is supported by an affidavit duly attested by Judicial Magistrate, 1st Class, Pulwama and also the Out Patient Card. Keeping the above facts and submissions in view, the instant complaint is forwarded to SHO Police Station Pulwama under section 156 clause (3) of the CrPC for investigation and registration of the FIR. SSP Pulwama is directed to monitor the investigation of the case so that no injustice is done to any party in the mater.

Most remarkably, the Bench then states upfront in para 15 that:
As is clear from the aforequoted extracts of the impugned order of the learned Magistrate, it has been observed that in view of the facts and submissions, the complaint is forwarded to SHO, P/S, Pulwama, for investigation and registration of the FIR. The learned Magistrate has nowhere, in his order, stated as to what has weighed in his mind for persuading him to come to a tentative opinion that cognizable offences are disclosed from the contents of the complaint.

The impugned order passed by the learned Magistrate exhibits total non-application of mind as also his failure to discharge the duty cast upon him while exercising power under Section 156(3) of Cr. P. C. The learned Magistrate could not have formed an opinion that the offence of criminal negligence is made out against the petitioner without there being any medical opinion on record. The impugned order on this ground alone is not sustainable in law.

Most pragmatically, the Bench then rightly propounds in para 16 that:
Apart from the above, if we have a look at the contents of the complaint, respondent No.1/complainant has nowhere stated that he had either approached the SHO concerned or the SSP concerned prior to filing the complaint before the learned Chief Judicial Magistrate. The Supreme Court has, in the case of Priyanka Srivastava and another vs. State of Uttar Pradesh and others, (2015) 6 SCC 287, laid down that without exhausting the remedies under Section 154(1) and 154(3) of the Cr. P. C, a Magistrate should not exercise his jurisdiction under Section 156(3) and direct registration of an FIR.

It has been further laid down by the Supreme Court that both these aspects should be clearly reflected in the application and necessary documents to that effect should be filed. In the instant case, nothing of this sort has even been indicated in the complaint nor any documents suggesting adherence to the guidelines laid down by the Supreme Court in the aforesaid case have been annexed by respondent No.1/complainant with the complaint. The impugned order passed by the learned Magistrate is, therefore, in breach of the guidelines laid down by the Supreme Court in Priyanka Srivastava’s case.

On the face of it, the Bench then notes in para 17 that:
It is also to be noted that the Supreme Court has, in the case of Lalita Kumari vs. State of UP, (2014) 2 SCC 1, while holding that Section 154 of the Cr. P. C postulates the mandatory registration of FIRs on receipt of information relating to all cognizable offences, observed that there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. The Supreme Court further went on to observe that one such instance is in the case of allegations relating to medical negligence on the part of doctors as it will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.

As a corollary, the Bench then holds in para 18 that:
From the above it is clear that in the cases of medical negligence, a Magistrate before directing registration of an FIR has to make a direction with regard to preliminary enquiry and if police receives an information relating to a case of medical negligence, it is also duty bound to undertake preliminary enquiry before registering an FIR.

I am supported in my aforesaid view by the judgment of the High Court of Chhattisgarh in the case of Dr. Smt. Krishna Dixit vs. State of Chhattisgarh and others, 2019 SCC Online Chh 47. In the present case, the learned Magistrate has, without directing preliminary enquiry into the allegations made in the complaint, asked the police to register the FIR and investigate the case, which is contrary to the guidelines laid down by the Supreme Court in Lalita Kumari’s case (supra). On this ground also, the impugned order passed by the learned Magistrate and the impugned FIR registered pursuant thereto are liable to be quashed.

Finally, the Bench then concludes by holding in para 19 that:
For the foregoing reasons, this is a fit case where this Court should exercise its jurisdiction under Section 482 of the Cr. P. C to quash the impugned order and the consequent FIR registered by Police Station, Pulwama. The petition is, accordingly, allowed and the impugned order as also the impugned FIR are quashed.

In conclusion, it is thus quite discernible from this notable judgment that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that in cases of medical negligence, it would be necessary to obtain expert opinion before setting criminal law into motion against medical professionals. This will definitely help in saving the invaluable lives of many doctors who commit suicide as soon as they learn that they have been framed in a criminal case. It thus merits no reiteration that all the courts must emulate this learned judgment in similar such cases all across India!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

While acquitting the appellants in a criminal appeal against their conviction, the Bombay High Court in a most significant judgment titled Sunil Vishnu Mukane & Ors v. State of Maharashtra in Criminal Appeal No. 1100 of 2018 pronounced as recently as on August 24, 2022 overturned conviction of four accused in a dacoity case observing that the prosecution’s evidence was unreliable due to irregularities in arranging the test identification parade.

The Single Judge Bench of Hon’ble Mr Justice Sarang V. Kotwal while acquitting the appellants in a criminal appeal against their conviction held unambiguously that:
In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the accused. The appellants had been convicted under Section 395 of the IPC (Punishment for Dacoity) and were sentenced to rigorous imprisonment for ten years and fine of Rs. 50,000/- each. The Court concluded that the evidence from the investigating officer was not satisfactory.

The Court unequivocally held that:
He has tried to cover up lapses in arranging the test identification parade by the police and, therefore, it is not safe to rely upon his evidence in respect of recovery of cash amount. So it was but natural that the accused had to be given the benefit of doubt and it was accordingly given!

At the outset, this extremely learned, laudable, landmark and latest oral judgment authored by the Single Judge Bench of Hon’ble Mr Justice Sarang V. Kotwal first and foremost puts forth in para 1 that:
The appellants have challenged the judgment and order dated 10.8.2018 passed by the Additional Sessions Judge, Mangaon, Raigad in Sessions Case No.27/2016. By the impugned judgment and order, the appellants, who are the original accused Nos.1 to 4, were convicted for commission of the offence punishable under Section 395 of the Indian Penal Code and were sentenced to suffer RI for ten years and to pay fine of Rs.50,000/- each and in default to suffer RI for one year. They were granted set-off under Section 428 of Cr.P.C..

To put things in perspective, the Bench then envisages in para 3 that:
The prosecution case is that PW-1 Ravindra Lad and PW-2 Ankit Dasure were the Supervisors of a Poultry Farm. They had supplied chickens to their customers and had got money. They were carrying amount of Rs.4 Lakhs. They were traveling on the highway around midnight on 11.12.2015. Suddenly they were intercepted by the accused. One of the accused gave a blow by stick because of which both of them fell down.

The other accused joined the first accused and they were assaulted with sticks. The bag containing more than Rs.4 Lakhs was taken away. The victims then went to one Vilas Bait and informed the incident. All of them along with others then went to Kolad Police Station. C.R. No.239/2015 was registered at Roha police station under Section 395 of IPC. The investigation was carried out. All the appellants-accused were arrested on 17.12.2015. Apart from the appellants, there was one more offender who was below 18 years of age. His trial was separated. The investigation was carried out.

During investigation, it is the prosecution case that the appellants were identified in the test identification parade held in the Tahsildar office at Roha on 18.1.2016. It is also the prosecution case that during investigation some cash amount was recovered at the instance of different appellants. The wives of the appellants produced some ornaments which were purchased using the amount involved in this offence. After this recovery, the investigation was continued. Statements of witnesses were recorded and at the conclusion of the investigation, charge-sheet was filed. The case was committed to the court of Sessions. The appellants were the original accused Nos.1 to 4.

In hindsight, the Bench then discloses in para 4 that:
During trial, the prosecution examined twelve witnesses including two victims, the pancha for recovery, the Tahsildar who had conducted the test identification parade and the investigating officers. The defence of the appellants was of total denial. At the conclusion of the trial, learned Judge believed the evidence of identification parade and of recovery. He convicted and sentenced the appellants as mentioned earlier.

As it turned out, the Bench then observes in para 8 that:
I have considered these submissions. Though learned counsel for the appellant tried to canvass argument suggesting that the incident has not taken place, it is difficult to accept such argument. No reason is brought on record to show as to why PWs-1 & 2 would concoct a false story. The motorcycle was lying at the spot and the police were immediately informed in the night. Therefore, though there is no medical evidence supporting the versions of PWs-1 & 2, that does not mean that the incident has not taken place.

Quite pragmatically, the Bench then underscores in para 9 that:
The crucial question in this case is about the identity of the accused. In that behalf in my opinion, the prosecution has miserably failed to establish that the appellants were the actual offenders.

Be it noted, the Bench specifies in para 10 that:
As discussed hereinabove, the evidence shows that the incident had taken place at a secluded spot of highway at 1.00 a.m.. There were no lights anywhere around. The motorcycle had fallen down. The description of the accused was not mentioned in the FIR. PW-1 has also not clearly answered as to what description he had given of the accused. The prosecution has failed to prove that the witnesses had sufficient opportunity to observe the features of the accused in sufficient light.

It cannot be glossed over that the Bench then holds in para 11 that:
Though the prosecution case is that the appellants were identified in the test identification parade, even that evidence is doubtful. The witnesses i.e. PWs-1 & 2 have deposed that they were called at the Tahsildar’s office on 14.1.2016. Inspite of that PW-10 and PW-12 have not deposed about the date of 14.1.2016. They have deliberately kept it vague. Therefore, there is a strong possibility that on that day the prosecution witnesses had an opportunity to see the accused.
 

The prosecution has to rule out that possibility, which is not done. All the witnesses have admitted that the Tahsildar’s office and the police station were situated in the same premises and, therefore, it was all the more necessary for the prosecution to have explained that all the precautions were taken so that the accused were concealed from the witnesses not only on 18.1.2016 but also on 14.1.2016.

Most significantly, the Bench then minces no words to hold in para 12 that, PW-12 in the cross-examination has admitted that the dummies were brought by the police. In this background it was also necessary for the prosecution to have led the evidence to show that the witnesses i.e. PW-1 & PW-2 had no opportunity to see the dummies. In this particular case, it was not sufficient to conceal the accused but if the witnesses had an opportunity to see the dummies before the test identification parade; then it was very easy to identify the accused. This precaution is not shown to have been taken by the investigating agency.

PW-12 has admitted that the witnesses were sitting in one room and the accused and the dummies were sitting in the other room and there was a passage in between. However, no further evidence is led to show that it was not possible to see the persons in other room while sitting in one room. Apart from that, as rightly submitted by learned counsel for the appellants sixteen dummies were asked to take part in one single identification parade for four accused. All these factors cumulatively leads to a reasonable conclusion that identification of the accused is extremely doubtful and, therefore, benefit in that behalf must go to the accused.

Equally significant is what the Bench then holds in para 13 that:
Other equally important circumstance is of recovery of ornaments and cash amount. As mentioned earlier, the ornaments were produced by the wives of the appellants. They were not examined and, therefore, their statements to the police in presence of panchas cannot be read in evidence. The jewellers have only deposed that the ornaments were purchased by different accused and their wives on 15th & 16th December, 2015. Significantly neither PW-6 Kishor Jain nor PW-7 Pinkesh Jain were shown the articles which were produced by them. Only PW-9 Vikram Jain has identified one golden-ring. Thus recovery of ornaments falls short of the required degree of proof.

No less significant is what the Bench then lays bare in para 14 specifying that, As far as recovery of cash amount is concerned, PW-8 was the only pancha examined by the prosecution. He had not supported the prosecution case and, therefore, he was cross-examined by the prosecution. In the cross-examination, he spoke about the memorandum statements and the consequent recovery. Thus, he is not a reliable witness at all.

The other pancha Chandrakant Sanap is not examined and no explanation is offered as to why he was not examined. The investigating officer’s evidence in respect of these recoveries of cash amount is vague. In none of the statements, the accused-appellants had mentioned the place where they had concealed the cash amount. All the accused were taken together for effecting the recoveries. Their statements were recorded one after the another. They were taken in the same jeep to effect recovery. Some of the places were farm-houses and a hut belonging to other persons and hence were accessible to others. No other supporting evidence is led to show that only the accused had access to those private places. Such recoveries could have been accepted if there was an independent evidence which was reliable.

It also cannot be lost sight of that the Bench then points out in para 15 that, The pancha PW-8 Waman Kadam has stated that when he was called to the police station that time the police told them to proceed towards the place where the incident had taken place. Accordingly the police took them towards the place in order to find the articles; those were kept there. This part of his evidence makes the police investigation doubtful about recovery of the cash amount. After this cross-examination, he has given all the favourable answers to the prosecution in answers to the leading questions.

In the cross-examination on behalf of the accused, he admitted that when he and other panchas went to police station, that time the police told them as to which articles were to be seized and that the police themselves informed them as to which places were to be visited. This also indicates that the recovery was made at the instance of the accused but the police already knew the places from where the recovery was to be effected. There was no further re-examination on behalf of the prosecution to clarify this.

Most forthrightly, the Bench then minces no words to hold unequivocally in para 17 that:
As discussed earlier, the pancha is also not reliable. Therefore, it is not safe to rely on such type of evidence which is the only other evidence apart from doubtful identification; available with the prosecution against the appellants.

As a corollary, the Bench then rightly holds in para 18 that:
In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the appellants.

Finally, the Bench then concludes by holding in para 19 that:
The appellants are in custody since 17.12.2015. Considering the above discussion, the appellants deserve to be acquitted. Hence, the following order :

ORDER

1. The appeal is allowed.
2. The impugned judgment and order dated 10.8.2018 passed by the Additional Sessions Judge, Mangaon, Raigad in Sessions Case No.27/2016, is set aside.
3. The appellants are acquitted from the charges faced by them in Sessions Case No.27/2016 before the Additional Sessions Judge, Mangaon, Raigad. The appellants shall be released from jail, if not required in any other case.
4. Criminal Appeal is disposed of in aforesaid terms. With disposal of the appeal, all the connected applications are also disposed of.

All told, the Bombay High Court has very commendably given the benefit of doubt to the accused. We have already discussed the reasons as afore-stated. There are clear and glaring lapses in the manner in which the police conducted the test identification parade as discussed earlier. So in such circumstances the Bombay High Court very rightly accorded the benefit of doubt to the appellants and overturned conviction of four accused in dacoity case.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

It is most concerning to note that none other than the most distinguished Kerala High Court has itself in a most learned, laudable, landmark and latest judgment titled xxxx v. xxxx in Mat. Appeal No. 456 of 2020 and cited in 2022 LiveLaw (Ker) 463 that was pronounced as recently as on August 24, 2022 has expressed its serious concerns that the consumerist culture of ‘use and throw’ has affected matrimonial relationships. The Court minced just no words to lament that the younger generation is seeing marriage as an evil, which has to be avoided to enjoy free life and that live-in relationships are on the rise. This judgment was delivered in a matrimonial appeal that was filed by a husband seeking divorce.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mrs Justice Sophy Thomas for a Division Bench of the Kerala High Court comprising of Hon’ble Mr Justice A Muhamed Mustaque and herself sets the pitch in motion by first and foremost putting forth in para 1 that:
A husband, who lost his case for divorce, is before us.

To put things in perspective, the Division Bench then envisages in para 2 that, Brief facts necessary for the appeal could be stated as follows:- The husband filed OP (Div) No.620 of 2018 before the Family Court, Alappuzha, under Section 10(1)(x) of the Divorce Act, 1869, for dissolving his marriage with the respondent, on the ground of matrimonial cruelties. He married the respondent on 09.02.2009 as per Christian rites and custom and three girl children were born in their lawful wedlock. Both of them were employed in Saudi Arabia, and their marital relationship was very smooth. But later, she developed some behavioral abnormalities, and she picked up quarrel with him for no reason, alleging illicit relationship with other women. She failed to perform her duties and responsibilities as a wife and mother. On 14.05.2018, she slapped on his face and on 16.05.2018 she pointed a knife at him and threatened him with death. He was assaulted and humiliated in front of his children and public, and she made his close-relatives to turn against him. She compelled him to transfer the properties purchased by him into her name. Because of the indifferent, abusive and violent behavior of the respondent, he became mentally stressed and physically ill. According to him, their marital relationship was irretrievably broken and so he wanted a decree of divorce.

Needless to say, the Division Bench then states in para 3 that:
The respondent-wife vehemently opposed his petition. According to her, the appellant was concocting reasons to keep himself away from his wife and children. She was never cruel to the husband and she never assaulted or threatened him. The appellant had no financial discipline and the respondent herself purchased properties and constructed the house. She needs her husband, and her children, their father.

As it turned out, the Division Bench then discloses in para 4 that:
After formulating necessary issues by the Family Court, the parties went on trial. PWs 1 to 3 were examined and Exts.A1 & A2 were marked from the side of the appellant. RWs1 to 7 were examined and Exts. B1 to B7 were marked from the side of the respondent. The Family Court, on analysing the facts and evidence, found that the appellant failed to prove the allegations of cruelty against the respondent so as to dissolve their marriage, and hence the OP was dismissed, against which, the appellant has come up with this appeal.

Most forthrightly, the Division Bench propounded in para 12 that:
Courts cannot come to the aid of an erring person to legalise his activities, which are per se illegal. If the husband having unholy alliance with another woman wants to avoid his lawfully wedded wife and his three little children, he cannot seek the assistance of a court of law to get his present relationship legalised by dissolving his lawful marriage, without any valid reasons for the same.

Most commendably, the Division Bench then underscores in para 17 that:
From time immemorial marriage was considered as solemn, and sanctity attached to the relationship of a man and wife united in marriage was considered inseparable, and it was the very foundation of a strong society. Marriage is a socially or ritually recognized union, or legal contract between spouses, that establishes rights and obligations between them, between them and their children, and between them and their in-laws. Family is the basic unit of the society, from where we learn virtues, values, skills and behaviour. Marriage is not a mere ritual or an empty ceremony for licencing the sexual urge of the parties. Marriage is the union of two different surnames, in friendship and in love, in order to continue the posterity of the former sages, and to furnish those who shall preside at, the sacrifices to, heaven and earth, at those in the ancestral temple, and at those at the altars to the spirits of the land and grain. -Confucius.

Most significantly, the Division Bench minces no words to expound in para 18 that:
Kerala, known as God’s own Country, was once famous for its well knit family bondage. But the present trend it seems to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children. The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquility of our social life, and our society will have a stunted growth. Now-a-days, the younger generation think that marriage is an evil that could be avoided to enjoy free life without any liabilities or obligations. They would expand the word ‘WIFE’ as ‘Worry Invited For Ever’ substituting the old concept of ‘Wise Investment For Ever’. The consumer culture of ‘use and throw’ seems to have influenced our matrimonial relationships also. Live-in-relationships are on the rise, just to say good-bye when they fell apart.

To be sure, the Division Bench then mandates in para 19 that:
The law and religion consider marriage as an institution by itself and parties to the marriage are not permitted to walk away from that relationship unilaterally, unless and until they satisfy the legal requirements to dissolve their marriage through a court of law or in accordance with the personal law which govern them.

As things stand, the Division Bench then points out in para 20 that:
Mere quarrels, ordinary wear and tear of matrimonial relationships or casual outburst of some emotional feelings cannot be treated as cruelties warranting a divorce. From the facts of the case on hand, it is obvious that the unholy alliance of the husband with some other lady has caused some disturbances in the family life of the appellant and respondent, which they were sailing smoothly with their three girl children. Even according to the mother and close-relatives of the appellant, such an unholy relationship was started in the year 2017, and in the year 2018 itself, the husband moved for divorce. The parties are living separately from 2018 onwards. Even now, the respondent is ready for a reunion as she wants her husband, and her children their father. Learned counsel Sri.Mathew Kuriakose for the appellant submitted that it is only a drama played by the respondent as she is also aware of the fact that their relationship is emotionally dead due to long separation. The respondent was never separated from the appellant because of any fault from her part. Still she is living with the mother of the appellant, whenever she comes down from Saudi Arabia. It was the appellant who walked out of their marital relationship, and now he says that due to long separation, their marriage has become defunct.

Finally and far most significantly, the Division Bench then concludes by holding in para 21 that:
Since, no act of cruelties, able to cause a reasonable apprehension in the mind of the appellant that it would be harmful or injurious for him to live with the respondent was proved by the appellant, he is not entitled to get a decree of divorce on the ground of matrimonial cruelties. RWs 2 to 7 categorically deposed before the Court that the appellant and respondent were leading a happy married life, and they still want to see them live together along with their children. If the appellant is ready to come back to his wife and children, they are ready to accept him, and there is nothing to show that the chances of an amicable reunion is foreclosed forever. So the finding of the Family Court, Alappuzha, that the appellant is not entitled for a decree of divorce on the ground of matrimonial cruelties is liable to be upheld. In the result, the appeal is dismissed. No order as to costs.

In sum, we thus see that the Kerala High Court has very rightly expressed its grave concern on the condemnable manner in which youngsters are following the consumer culture of use and throw even in matrimonial relationships also which definitely cannot be justified under any circumstances. The Court rightly pointed out that when warring couples, deserted children and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquility of our social life and our society will have a stunted growth. The Kerala High Court thus very rightly rejected the appeal of appellant for decree of divorce for reasons as stated hereinabove!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

It has to be taken most seriously that none other than the Uttarakhand High Court has in an extremely laudable, learned, landmark and latest judgment titled Urmila Thapar Vs State of Uttarakhand and others in WPPIL No. 58 of 2019 pronounced as recently as on August 31, 2022 has expressed severe dismay over the continuous brazen encroachments of river beds in Dehradun. It was pointed out by the Court that this happens with the tacit involvement and support of the authorities concerned.

In a stinging rebuke, a Division Bench of Uttarakhand High Court comprising of Hon’ble Chief Justice Shri Vipin Sanghi and Hon’ble Justice Shri Ramesh Chandra Khulbe while passing order for immediate removal of encroachments while taking potshots at the prevailing state of affairs minced just no words to lament that:
We are dismayed to see the current state of affairs prevailing in the State with regard to the encroachment on forest land, water ways and public land. It appears that it is a free for all, and anybody can encroach on any part of the land falling within the State – even on forest lands, and get away with it.

The Court took note of the communication of the District Magistrate, Dehradun dated 11.09.2019 addressed to the Municipal Commissioner of the Municipality and all the Sub-Divisional Magistrates concerned to take action for removal of encroachments from the river beds, which have remained unactioned for the last three years.

At the outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Chief Justice Shri Vipin Sanghi for a Division Bench of the Uttarakhand High Court comprising of himself and Hon’ble Justice Shri Ramesh Chandra Khulbe sets the ball rolling by first and foremost putting forth in para 1 that:
The petitioner has preferred the present writ petition in public interest raising the issue of unauthorized encroachments on water bodies and khalas/storm water drains in Rajpur Area of Doon Valley. The petitioner seeks directions to the State to declare the catchment areas of Khalas of Rispana and Bindal Rivers as ‘no construction zones’, and a further direction to the Ministry of Environment, Forest and Climate change, Union of India to pro-actively monitor and take necessary action on the changing environmental landscape of Doon Valley that is declared as an ‘Eco-Sensitive Zone’ by the Government of India in the year 1989.

To put things in perspective, the Division Bench then envisages in para 2 that, Mr. Abhijay Negi, learned counsel for the petitioner has drawn attention of the Court to the order dated 30.08.2019. By this order, this Court directed the District Magistrate, Dehradun to have an enquiry caused, and to submit a report to this Court furnishing details of the seasonal Nalas in existence in Doon Valley; the extent of encroachment over the said Nalas; and the steps being taken by the District Administration to remove such unauthorized constructions, and encroachments. On 18.09.2019, this Court was informed that the process of identifying encroachments is an elaborate exercise and it would take at least two months. This Court directed the respondents to ensure that no further encroachments take place in the seasonal streams in the Rajpur Area of the Doon Valley.

While elaborating, the Division Bench then enunciates in para 3 that:
A counter-affidavit has been filed on behalf of respondent no.2 i.e., the District Magistrate, Dehradun on 13.09.2019. Alongwith this affidavit, he has placed on record the enquiry/survey conducted in terms of the order passed by this Court. Four different tabulations have been placed on record relating to Dehradun, Vikasnagar, Rishikesh and Doiwala Tehsils, all falling in district Dehradun. The tabulation contains particulars of the nature of the land, Khata number, Khasra number, total area, the area which has not been encroached upon and the area which has been encroached upon. In relation to Dehradun Tehsil, the Survey found that an area of 37.9305 hectares stands encroached on the river bed falling in different villages, as detailed in the tabulation. Similarly, for Vikasnagar Tehsil, as per the report, 57.4 hectares of river bed land has been encroached upon. In Rishikesh Tehsil, the encroachment is to the tune of 4.8866 hectares, and for Doiwala Tehsil, the encroachment is to the tune of 5.616 hectares.

Further, we ought to pay attention that the Division Bench then discloses in para 4 that:
The petitioner has filed rejoinder-affidavit to the counter-affidavit of respondent no.2. Alongwith the same, she has placed on record photographs to show the ongoing construction which, the petitioner claims, is on the river bed. At page no. 18 of the said rejoinder (running page no. 420 of the record), there is a photograph which shows that just behind the board put up by the Authorities, to state that M.D.D.A. has not allowed plotting and development of the land, construction activity is in progress. Mr. Abhijay Negi, further submits that now, the said board has also been removed after the photograph was taken by the petitioner.

Furthermore, the Division Bench then also hastens to add in para 5 that:
We may also take note to the communication of the District Magistrate, Dehradun dated 11.09.2019 addressed to the Municipal Commissioner of the Municipality and all the Sub-Divisional Magistrates concerned to take action for removal of encroachments from the river beds, which have, however, remained unactioned for the last nearly three years.

Most significantly and yet most distressingly, the Division Bench then minces no words to state the unpalatable truth in para 6 that:
We are dismayed to see the current state of affairs prevailing in the State with regard to the encroachment on forest land, water ways and public land. It appears that it is a free for all, and anybody can encroach on any part of the land falling within the State – even on forest lands, and get away with it. We are informed that the lands falling in river beds are all classified as forest lands, except those which fall within the municipal limits. Obviously, such activities cannot happen without the tacit approval of the authorities on the ground. It is high-time that the administration wakes up to the reality, and sets its house in order.

As a corollary, the Division Bench then mandates in para 7 noting that:
We, therefore, direct respondent nos. 1 to 4 to immediately start the process of removal of encroachments on river beds, which have already been identified and placed before the Court vide the counter affidavit dated 19.03.2019. It shall be the responsibility of Secretary (Revenue), Secretary (Urban Development) and Secretary (Forest) to ensure strict and speedy compliance of this order.

Quite forthrightly, the Division Bench then without mincing any words directs in para 8 that:
Insofar as the areas fall within the municipal limits, the Municipal Commissioner, Nagar Nigam, Dehradun shall be personally responsible to ensure that such encroachments are removed from the river beds. The Secretary (Revenue), Secretary (Urban Development), Secretary (Forest) and the Municipal Commissioner, Nagar Nigam, Dehradun shall hold meetings regularly to take steps to implement this order. The meeting shall be convened by the highest ranking officer amongst them, and he/ she shall preside over the meeting. Failure to comply with these directions shall compel this Court to take action against the aforesaid identified Officers.

What’s more, the Bench then also directed in para 9 stating that:
Weekly reports with regard to the actual removal of encroachments undertaken shall be filed before this Court. One report shall be filed on behalf of the Secretary (Revenue), Secretary (Urban Development) and Secretary (Forest), and the other report shall be filed by the Municipal Commissioner, Dehradun.

Most forthrightly, the Division Bench while adding more to it then minces no words whatsoever to direct unequivocally in para 10 stating that:
We make it clear that we would not be satisfied with mere paper exercise, and the reports should relate to actual action taken on the ground for removal of the encroachments. The photographs of the action taken should also be filed alongwith each of these reports.

It is worth noting that the Division Bench then directs in para 11 holding that, Copies of the status report shall be shared with the counsel for the petitioner. Before the next date, the petitioner shall file a tabulation of analysis of all such reports.

Finally, the Division Bench then concludes by directing in para 12 that:
List this case on 11.10.2022.

In conclusion, it may well be said that the Uttarakhand High Court has come down very heavily on the encroachments that are taking place so rampantly with impunity on forest land, water ways and public land. The High Court lamented that it is a free for all and anybody can encroach any part of the land and then get away with it easily without being held accountable in any manner. This definitely cannot be allowed to go on in any country where the law of the land prevails and so we see that the Uttarakhand High Court has minced no words in conveying its strongest disapproval over unabated, unhindered and unaccounted encroachments on river beds of Dehradun and so also encroachments in forest lands, water ways and public lands. Not just this, the Court has also made it quite amply clear that it will not be satisfied in any way with just paper work only and would see the actual action that would be taken by the authorities on the ground for the removal of all such encroachments which are illegal and are causing irreparable harm to the environment and this is definitely the crying need of the hour also! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

While displaying absolute zero tolerance for a heinous crime like gang-rape and murder, the Delhi High Court has in a remarkable, robust, rational and recent judgment titled Sikander Soni and Another vs State in CRL.A. 1157/2017 that was pronounced just recently on September 1, 2022 in connection with the gang rape and murder of a woman in 2012 whose body was found in a semi-naked condition has modified sentence of two convicts to rigorous imprisonment for life not less than 20 years without remission. The Court also upheld the Trial Court’s sentence of rigorous imprisonment for life for gang rape and rigorous imprisonment for a period of three years for the offence of causing disappearance and giving false information. There can be definitely no room for any kind of leniency in cases of gang rape and murder.

At the outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Anish Dayal for a Division Bench of Delhi High Court comprising of Hon’ble Ms Justice Mukta Gupta and himself sets the ball rolling by first and foremost putting forth in para 1 that:
This appeal assails the judgment dated 6 th May, 2017 whereby the appellants have been convicted for the offences punishable under Sections under sections 302/201 read with Section 34 IPC and Section 376(2)(g) IPC (as it stood before the amendment in 2013) and order on sentence dated 1st July, 2017 awarding rigorous imprisonment for life (not less than 20 years) and a fine of Rs.25,000/- (simple imprisonment for one year for default in payment) for offence punishable under section 302/34 IPC; rigorous imprisonment for life for offence punishable under section 376 (2)(g) IPC and a fine of Rs.20,000/- (simple imprisonment for one year for default in payment) and rigorous imprisonment for a period of three years for offence punishable under section 201 IPC and a fine of Rs. 5,000/- (in default of payment to undergo simple imprisonment for three months). All sentences were to run concurrently.

To put things in perspective, the Bench then envisages in para 2 that:
As per the case of the prosecution on 24th April, 2012 at about 7.30 a.m., information was received at the Police Post Nehru Place vide DD No.10 that a dead body of a female is lying in a semi naked condition. Police rushed to the spot and found a dead body of a female aged 24-26 years near Metro flyover adjacent to Metro Pillar No. 127 in semi naked condition, wearing black/white colour top, blood oozing out from the mouth, nose and ears of the body and injury marks were all around its face. A black colour jeans with its zip broken was lying at a distance of about 10 steps from the body and broken hairs were also on the body of the deceased. The police found a tattoo with the word ‘Javed’ on her left forearm and on her left middle finger words ‘PG’ were tattooed. On her right forearm, there was another tattoo of trishul and damroo. She was wearing a nose pin, two pairs of ear rings, black string with locket around her neck and a ring with stone on her right hand finger.

While elaborating, the Bench then observes in para 3 that:
SI Ranjan Kumar prepared rukka and case was registered. Crime team and the photographer were called and Inspector Ishwar Singh took over the investigation. On the same day /night, a missing report of a lady namely the prosecutrix having the same description was found lodged by one Javed, resident of Rohini at the P.S. K.N. Katju Marg, Rohini Upon further inquiry the said Javed identified the deceased to be his wife. He stated that in the evening of 23rd April, 2012 he had received a call from Hamida, his first wife that the prosecutrix had left her son Junaid with her and gone to the market and had not returned nor was she picking up the phone. When Javed called the prosecutrix around the evening, she told him that she had come to the Lajpat Nagar market to do shopping for Junaid. However, when she did not reach home till 9:30 p.m., Javed again spoke to her and she mentioned that she had gone to the Defence Colony market and had taken a taxi for reaching Rohini and the taxi number was 9551. This was the last communication that Javed had with the deceased.

Further, the Bench then discloses in para 4 that:
After the post mortem the dead body was handed over to Javed while exhibits had already been taken and handed over to the police. The autopsy surgeon opined the cause of death as asphyxia due to combined effect of ante mortem smothering and throttling, sufficient to cause death in ordinary course of nature individually as well as collectively. There were findings suggestive of sexual assault and the swabs were preserved for forensic examination and section 376 IPC was therefore added to the FIR. Extensive search was carried out for tracing the particular taxi and the call records of the deceased were analyzed. The analysis of the call records revealed that the deceased was at Defence Colony A Block Market at about 10:00 p.m. when she communicated with her husband Javed and then at about 11:15 p.m. she was at Kailash Colony, New Delhi and then at Lajpat Nagar till about mid night. Post mid night her location was in the vicinity of Satya Niketan, Nanak Pura, Moti Bagh. The last call was made by Hamida on the cell phone of the deceased which according to Hamida was attended by some unknown person.

Furthermore, the Bench then mentions in para 5 that:
On the evening of 13th May, 2012 at about 3:30 p.m., SOS unit of Crime Branch Kotwali received an information vide DD No.7 about the accused persons and at the pointing out of the secret informer, accused Pardeep was apprehended from the service lane Moti Bagh with Taxi No. PB 01 9551 who disclosed of his involvement in this case. Upon his disclosure, other accused Sikander Singh @ Soni was arrested from Nanak Pura who also disclosed of his involvement and his taxi was taken into possession. Upon arrest of both the appellants, they pointed out the place of incident near Nehru Stadium where they had gang raped the deceased in a car and also got recovered a pair of black slippers and a small black purse from the bushes on the road side leading from Kalkaji temple to Satyam Cinema, Nehru Place. Further, appellant Pardeep took the police party to his house at village Takhtgarh, P.S. Noor Pur Bedi, District Ropar, Punjab and got recovered two small rings (one ring and one small ear ring) belonging to the deceased. All the exhibits were sealed and seized by the investigating team and CDRs of mobile number of deceased as well as of appellants were also analyzed. After investigation, charges were framed to which the appellants pleaded not guilty and claimed trial. The prosecution examined 43 witnesses, statements of the appellants were recorded under Section 313 Cr.P.C. and the appellants led evidence of two witnesses in defence.

Most forthrightly, the Bench holds in para 16 that:
Pursuant to a meticulous examination of the evidence on record and appreciation of contentions of the parties, this Court is of the view that the prosecution has proved the guilt of the appellants beyond reasonable doubt. All critical aspects, chain of circumstantial evidence are aligned, consistent and cogent pointing out the guilt of the appellants for rape and murder by strangulation of the deceased. Perusal of the evidence, particularly the testimony of PW-43 and other members of the police team who reached the place of incident as to the condition of the deceased and the subsequent comprehensive scientific analysis including the post mortem, the DNA profile, blood examination, biological examination and the viscera report would show that the appellants brutally raped the deceased in their car having picked her from the Defence Colony market and after strangulating her dumped her body on the road near the bushes on the roadside leading from Kalkaji temple to Satyam Cinema, Nehru Place Metro flyover adjacent to Metro Pillar No. 127. Thus this court finds no error in the impugned judgment dated 6th May, 2017 convicting the appellants for offences punishable under Sections 302/201/34/376(2)(g) IPC.

While taking potshots at the appellants, the Bench then observes in para 17 that:
From the nature of injures as report in the post mortem report (supra) it is evident that the deceased put up a brave resistance before the two appellants who overpowered her physically, caused grievous injures on her body, raped and eventually strangulated her. Thereafter they attempted to erase the evidence by dumping the body on the roadside and extracted her belongings and put them in different locations. Considering the brutality of the act right in heart of Delhi which is usually patrolled by police shows the depraved evil mentality of the appellants, who acted with complete impunity with no fear of either the life or consequence of their act and dignity of the deceased victim.

What’s more, the Bench then notes in para 18 that:
The learned Trial Court in its order on sentence considering the depraved and heinous nature of the crime has sentenced the appellants for life imprisonment for the offence punishable under Section 302/34 IPC along with other sentences for offences punishable under Section 376 (2)(g) IPC and Section 120 IPC besides fines imposed for all the offences.

Briefly stated, the Bench then specifies in para 19 that:
However, as per the decision of constitution bench of the Hon’ble Supreme Court in Union Of India v. V. Sriharan (2016) 7 SCC 1, while examining an issue whether a special category of sentence instead of death for a term exceeding 14 years can be made by putting that category beyond grant of remission held that it is only the Division Bench of the High Court which derives power under the Penal Code to prescribe an alternate punishment with one either for the entirety of the convicts’ life or for a specific period of more than 14 years depending upon the gravity of the crime. Therefore, the learned Trial Court’s direction awarding the sentence of life imprisonment of not less than 20 years, would therefore be erroneous and beyond its jurisdictional power under the Penal Code.

Most significantly, the Bench then holds in para 20 that:
Notwithstanding the fact that the learned Trial Court did not have the power or jurisdiction to grant life sentence of more than 14 years, this Court having appreciated the facts and circumstances of this case, is of the view that the gravity and the depravity of the crime committed by the appellants was of a serious nature and therefore this Court issued notice to the said appellants and directed production in Court to show cause as to why their sentence should not be fixed for a period of more than 14 years. Having considered their submissions in person and through counsel on the issue of sentence, this Court, in exercise of jurisdiction conferred and clarified by the Hon’ble Supreme Court in Sriharan (supra), sentences the appellants for life imprisonment of not less than twenty years without remission for offence punishable under Section 302/34 IPC taking into account the gravity of the crime and in exercise of judicial conscience befitting such offence.

Most remarkably, the Bench then points out in para 21 that:
It is apposite to remember and echo the observations of the Hon’ble Supreme Court in the case of Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1: The incident of gang rape on the night of 16th December, 2012 in the capital sparked public protest not only in Delhi but nationwide. We live in a civilised society where law and order is supreme and the citizens enjoy inviolable fundamental human rights. But when the incident of gang rape like the present one surfaces, it causes ripples in the conscience of society and serious doubts are raised as to whether we really live in a civilised society and whether both men and women feel the same sense of liberty and freedom which they should have felt in the ordinary course of a civilised society, driven by Rule of Law. Certainly, whenever such grave violations of human dignity come to fore, an unknown sense of insecurity and helplessness grabs the entire society, women in particular, and the only succour people look for, is the State to take command of the situation and remedy it effectively.

As a corollary, the Bench then holds in para 22 that:
In view of the above analysis and discussion, this Court is of the considered view that the prosecution has been able to prove its case beyond reasonable doubt and the impugned judgment on conviction by the learned Trial Court is duly upheld. The order on sentence by the learned Trial Court is modified to the extent that life sentence for the offence punishable under Section 302/34 IPC will be for rigorous imprisonment for life not less than 20 years without remission. The rest of the sentence for offence punishable under Section 376(2)(g) IPC and 201 IPC shall remain the same as awarded by the Learned Trial Court. The appeal is accordingly disposed of as per directions stated above.

Finally, the Division Bench then concludes by holding in para 23 that:
Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellants and updation of records.

In conclusion, we thus see that the Delhi High Court has very rightly upheld the gang rape and murder conviction and modified the sentence appropriately as stated above. There has to be zero tolerance for such heinous crimes and that too against woman. There can be no justification of any kind for such brutal and horrifying acts for which there has to be absolute zero tolerance and that is what the Delhi High Court has so very commendably demonstrated in this leading case also by imposing the strictest punishment! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

Without mincing any words and without leaving even an iota of doubt to linger in anyone’s mind, the Supreme Court has in an extremely laudable, landmark, learned and latest judgment titled Tarak Dash Mukherjee & Ors. v. State of Uttar Pradesh & Ors. in Criminal Appeal No. 1400 of 2022 (Arising out of SLP (Criminal) No. 503 of 2020) and cited in 2022 LiveLaw (SC) 731 in exercise of its criminal appellate jurisdiction that was pronounced finally on August 23, 2022 observed that registration of multiple FIRs by same person against same accused based on the same set of facts and the same cause of action is impermissible. It must be mentioned here that this judgment is arising out of impugned final judgment and order dated 26-08-2019 in A482 No. 32440/2019 passed by the High Court of Judicature at Allahabad. Of course, the key point of this learned judgment as stated at the start itself is that:
If multiple First Information Reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, it will result in the accused getting entangled in multiple criminal proceedings for the same alleged offence. The registration of such multiple FIRs is nothing but abuse of the process of law. The act of the registration of such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. (Para 12).

At the outset, this brief, brilliant, balanced and bold judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of Apex Court comprising of Hon’ble Mr Justice Ajay Rastogi and himself after granting leave as stated in para 1 then sets the pitch in motion by putting forth aptly in para 2 that:
This petition takes exception to the judgment and order dated 26th August, 2019 passed by the learned Judge of the Allahabad High Court. The appellants invoked Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) for quashing a First Information Report (FIR) registered at the instance of the respondent no.4. The main ground of challenge by the appellants who were arraigned as accused in the FIR filed by the respondent no.4 was that it was the second FIR based on the same set of facts on which the earlier FIR was registered again at the instance of the respondent no.4. By the impugned judgment, the High Court declined to exercise its jurisdiction under Section 482 of Cr.P.C.

To put things in perspective, the Bench then envisages in para 3 that:
An agreement for sale dated 14th June, 2006 was executed by and between the appellants and four others as the vendors and one Prasidh Narayan Rai (the deceased husband of the respondent no.4) as the purchaser. The agreement for sale was executed by the appellants and four others in respect of their 5/6th undivided share in House Nos. B.12/120A, B.12/121, B.12/122, B.12/124 and B.12/125 situated at Mohalla Gauriganj, Nagar Nigam Ward Bhelupura, Varanasi city and House No. B. 15/71, B. 15/72, B. 15/81 and B. 15/91 situated at Mohalla Faridpura, Nagar Nigam Ward Bhelupura, Varanasi city. The agreed consideration was Rs.19,80,000/-. A sum of Rs.15,00,000/- was paid by the late husband of the respondent no.4 to the appellant and other vendors as earnest money. In the year 2014, a written complaint was made by the respondent no.4 to the Station House Officer (S.H.O.) Police Station Bhelupur, Varanasi. In the said complaint, it was alleged by the respondent no.4 that after death of her husband, the appellant no.1 sold his share in the subject property on 27th July, 2013 to the appellant no.2. It was alleged that the appellants have committed offences of fraud and forgery. According to the case of the appellant, as per the information furnished to them under the Right to Information Act, 2005 by the officer in charge of Bhelupur Police station, the allegations in the complaint made by the respondent no.4 were found to be untrue and therefore, no action was taken on the complaint.

As it turned out, the Bench then lays bare in para 4 stating that:
On 2nd April, 2015, on the basis of information furnished by the respondent no. 4, First Information Report No. 0109 (for short ‘the first FIR’) was registered against the appellant nos. 1 and 2 at Bhelupur Police station. The said FIR specifically refers to the agreement of 14th June, 2006 executed by the appellants and others. It alleges that the appellant no. 1 sold his undivided share on 27th July, 2013 to the appellant no. 2, who is also shown as accused in the said FIR. It is alleged that the appellant nos. 1 and 2 along with others met the respondent no. 4 on 12th October, 2014. At that time, the appellants hurled abuses and they also threatened her. Offences punishable under Sections 406, 419, 420, 467, 468, 504, 506 IPC were alleged in the FIR.

To be sure, the Bench then states in para 5 that:
The appellants approached the High Court of Allahabad by invoking Section 482 of Cr.P.C. for quashing the first FIR. It is stated in the present appeal that the said petition for quashing is pending in Allahabad High Court in which there is an interim order restraining the Police from taking coercive action on the basis of the first FIR. The interim order was passed on 17th February 2017.

It must be mentioned here that the Bench then mentions in para 6 that:
The respondent no.4 filed a civil suit in the Civil Court at Varanasi in the year 2017 against the appellants and four others for specific performance of the said agreement dated 14th June, 2006. The said suit is being contested by the appellants.

In hindsight, the Bench then discloses in para 7 that:
On 13th September 2019, the respondent no.4 lodged one more FIR being FIR No.0177 in the same Police Station in which the appellants herein were shown as accused. The allegations made by the respondent no.4 in FIR No.0177 (for short ‘the second FIR’) are more or less identical to the allegations made in the first FIR. The property subject matter of both the FIRs is the same. The second FIR also refers to an agreement for sale executed by the appellants and others in favour of the husband of the respondent no.4 and that out of the agreed consideration of Rs.19,80,000/-, the appellants have received a sum of Rs.15,00,000/-. It is further alleged that instead of executing the sale deed on the basis of the agreement for sale, the appellants sold the property to certain other persons by forging the documents and by concealing the agreement. The only difference in the two FIRs is that in the first FIR, the date of the agreement is mentioned as 14th June 2006 whereas in the second FIR, the date is mentioned as 21st June 2006. Moreover, the second FIR refers to the civil suit filed by the respondent no.4. The second FIR also alleges the commission of offences punishable under Sections 419, 420, 406, 467, 468, 471 of IPC.

As we see, the Bench then hastens to add in para 8 that:
The appellants filed a petition under Section 482 of Cr.P.C. before the High Court questioning the second FIR. The High Court, by the judgment and order dated 11th April 2019, directed that the appellants shall not be arrested till submission of police report under sub-section (2) of Section 173 of Cr.P.C. Thereafter, a charge sheet was filed on the basis of the second FIR on 9th June 2019 and a summoning order was passed thereon by the learned Magistrate. The appellants again moved the High Court by way of a petition under Section 482 of Cr.P.C. seeking quashing of the charge sheet as well as summoning order issued on the basis of the second FIR. By the impugned judgement, the learned Judge of the High Court held that a prime facie case to proceed against the appellants was made out.

Be it noted, the Bench then deems it apposite to mention in para 9 that:
We have heard the learned counsel appearing for the appellants who submitted that both the first and second FIRs are based on the same set of facts and the same cause of action. Relying upon decisions of this Court in the case of Upkar Singh v. Ved Prakash (2004) 13 SCC 292 and T.T. Antony v. State of Kerala (2001) 6 SCC 181, the learned counsel submitted that registration of second FIR is a gross abuse of process of law.

As things stand, the Bench then notes in para 10 that:
Though the respondent no.4 has been served, she has not chosen to appear. The learned counsel representing the State of U.P on instructions stated that though in the counter filed by the State, a contention is raised that the second FIR is based on a different agreement, the said statement is not factually correct and that the second FIR is also based on the same agreement dated 14th June 2006. The learned counsel appearing for the appellants submitted that as stated in the rejoinder, the agreement dated 14th June 2006 was registered on 21st/22nd June 2006 and that is how in the second FIR, the date of agreement may have been mentioned as 21st June 2006.

It cannot be glossed over that the Bench then enunciates in para 11 that:
We have perused both the FIRs. The respondent no.4 is the first informant in both the FIRs and the same are based on the same agreement for sale executed on 14th June 2006. The allegation made in both the FIRs is the same. The allegation is that by practising forgery and fraud, the appellant no.1 has sold the subject property to appellant no.2 thereby deceiving the respondent no.4. The second FIR, which is the subject matter of challenge, was registered nearly four years after the first FIR was registered. The challenge to the first FIR is pending before the High Court. These aspects have been completely overlooked by the High Court in the impugned judgment.

Most significantly, the Bench then minces no words to hold unequivocally in para 12 that:
If multiple First Information Reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, it will result in the accused getting entangled in multiple criminal proceedings for the same alleged offence. Therefore, the registration of such multiple FIRs is nothing but abuse of the process of law. Moreover, the act of the registration of such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. The settled legal position on this behalf has been completely ignored by the High Court.

Finally and as an inevitable fallout, the Bench then concludes by holding in para 13 that:
Accordingly, the appeal must succeed. The FIR No. 0177 of 2019 registered at Bhelupur Police Station in District Varanasi, charge sheet dated 12th July 2019 on the basis of the said FIR and the summoning order dated 12th July 2019 passed by the Court of ACJM, Varanasi in Criminal Case No. 480 of 2019 are thereby quashed and set aside. No order as to costs.

In a nutshell, it thus merits no reiteration that all the courts must definitely pay heed to what the Apex Court has laid down so explicitly, elegantly and effectively in this leading case! The Apex Court has certainly made crystal clear in this notable judgment that registration of multiple FIRs by same person against same accused based on the same set of facts and the same cause of action is impermissible. There is no reason not to subscribe fully with what the Apex Court has held so very clearly along with relevant case laws and elaborated quite in detail on each and every aspect as mentioned hereinabove!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh