CASE NO.:
Appeal (crl.) 222 of 2008

PETITIONER:
Ran Singh and Anr.

RESPONDENT:
State of Haryana and Anr.

DATE OF JUDGMENT: 30/01/2008

BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.3089 of 2006)


Dr. ARIJIT PASAYAT, J.


1. Leave granted.

2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Punjab and Haryana High Court
allowing the Revision Petition filed under Section 401 of the
Code of Criminal Procedure, 1973 (in short the 'Code') which
was filed before it by Kurra Ram since deceased and
represented by his daughter i.e. respondent No.2 in the
present appeal.

3. Background facts in a nutshell are as follows:

A complaint was filed by the aforesaid Kurra Ram
alleging commission of offences punishable under Sections
498-A, 406, 323, 506, 148 and 149 of the Indian Penal Code,
1860 (in short the 'IPC') by Jaswant-son in law and husband
of his daughter-Saroj, Ran Singh and Raj Bala, the present
appellants who were father and mother of Jaswant and two
others namely, Jai Singh and Suman, the brother and married
sister of Jaswant.

It was stated in the complaint that Saroj got married to
Jaswant on 14.4.1994 and that she was harassed for dowry by
the aforesaid accused persons. Learned Additional Chief
Judicial Magistrate, Hissar, after recording preliminary
evidence of the complainant, decided to proceed against all the
accused persons for the alleged offences. Separate Revision
Petitions were filed by Jai Singh, Ran Singh and Suman taking
the stand that there is no offence made out so far as they are
concerned. Learned Additional Sessions Judge found that no
case was made out against aforesaid accused persons and
directed that proceedings would continue only against
Jaswant. The order dated 4.11.2003 disposing of the revisions
in the aforesaid manner was challenged by Kurra Ram in the
Revision Petition before the High Court. It was held by High
Court that there is no ground to proceed against Jai Singh and
Suman who may just be living in the house, but may not be
interfering in matrimonial problems of Saroj and Jaswant.
Therefore, the order of the Additional Sessions Judge was
upheld to that extent. But so far as the present appellants are
concerned the High Court inter alia observed as follows:

"However, when articles of dowry are handed
over to elder members in the family that will
mean that those were handed over to Ran
Singh and Raj Bala i.e. father and mother of
the husband who could misappropriate. It is
they who can practice cruelty for less dowry or
otherwise."

(Underlined for emphasis)

The High Court noted that police had earlier registered a
case and had sent cancellation report and thereafter the
complaint was filed by Kurra Ram who appeared as PW-1, as
his son Rajesh appeared as PW-2 and Saroj as PW-3.

4. Learned counsel for the appellants submitted that the
High Court failed to notice that some customary articles were
given to relatives of the bridegroom. That cannot be covered by
the expression 'dowry'. High Court noticed the fact that the
complainant tried to rope even a married sister who was living
far away and the brother, which shows the tendency to falsely
implicate them. Reference is also made to the following
observations of the High Court:

"..They are close relatives but the fact remains
that an effort is made by the complainant to
implicate as many persons as possible, in such
matters."


5. Learned counsel for the respondent-State and the
complainant submitted that it is not a case where the
Additional Sessions Judge should have interfered and the High
Court has therefore rightly set aside the order dated 4.11.2003
which was impugned before it.

6. Section 2 of the Dowry Prohibition Act, 1961 (in short
'Dowry Act') defines "dowry" as under:-

Section 2. Definition of 'dowry'  In this Act,
'dowry' means any property or valuable
security given or agreed to be given either
directly or indirectly 


(a) by one party to a marriage to the
other party to the marriage; or

(b) by the parents of either party to a
marriage or by any other person, to
either party to the marriage or to any
other person,

at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.

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.

Explanation II- The expression 'valuable
security' has the same meaning in Section 30
of the Indian Penal Code (45 of 1860)."


7. The word "dowry" is defined in Section 2 of the Dowry
Act. Thus, there are three occasions related to dowry. One is
before the marriage, second is at the time of marriage and the
third "at any time" after the marriage. The third occasion may
appear to be unending period. But the crucial words are "in
connection with the marriage of the said parties". Other
payments which are customary payments e.g. given at the
time of birth of a child or other ceremonies as are prevalent in
different societies are not covered by the expression "dowry".
(See Satvir Singh v. State of Punjab (2001 (8) SCC 633))
.

8. The High Court has fallen in grave error while observing
that present appellants "could misappropriate" and "who can
practice cruelty". The conclusions to say the least are
presumptuous. 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. When the High Court was
interfering with such conclusions arrived at on facts it ought
to have indicated the reasons necessitating such interference.
That has not been done and on the contrary on presumptuous
conclusions the order of learned Additional Sessions Judge
has been set aside.

9. Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set forth
its reasons, howsoever brief, in its order indicative of an
application of its mind. The absence of reasons has rendered
the High Court's judgment not sustainable.

10. Even in respect of administrative orders Lord Denning
M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All
E.R. 1148) observed "The giving of reasons is one of the
fundamentals of good administration". In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
"Failure to give reasons amounts to denial of justice". Reasons
are live links between the mind of the decision taker to the
controversy in question and the decision or conclusion arrived
at". Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals
the "inscrutable face of the sphinx", it can, by its silence,
render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons
for the order made, in other words, a speaking out. The
"inscrutable face of a sphinx" is ordinarily incongruous with a
judicial or quasi-judicial performance.

11. It is to be noted that the High Court itself has held that
there was an attempt to rope in many persons and it did not
find any merit or challenge to the discharge of the married
sister and the brother.

12. Above being the position, the impugned order of the High
Court cannot be maintained and is set aside. We make it clear
that we have not expressed any opinion on merits so far as
husband Jaswant is concerned.

13. The appeal is allowed to the aforesaid extent.

thanks fighter74 for posting such an important decision. I request all the members to read this judgement and it will bring a lot of clarity to them and may change their approach in fighting their own cases.

The judgement has been posted in pdf format by Sambhav at: http://www.498a.org/contents/judgements ... 08_222.pdf

- Satya

Now this only leaves one hard thing to prove, that is: There was no "demand" for gifts, cash etc. by the husband's side and items exchanged were *not in consideration* of marriage.

We must do our brainstorm here to find out good reasons to prove that there was not demand.

very important judgement indeed. Lets put it on the 498a.org judgement section.

Agreed.

I beleive the most important take-away from this judgment is the prosecution NEEDS material evidence to prove DEMAND, oral evidence may not be enough.

I will post a few more judgments where the SC has infact overtuned prior convictions because the prosecution DIDN'T produce MATERIAL evidence to prove DEMAND.

Are there any more judgments where the SC has infact overturned prior convictions because the prosecution didn't produce material evidence to prove demand.

my email is lajd@indiatimes.com.
Kindly mail them to me.
Regards

Dear Jaya,

Criminal appeals for convictions lower than 7 years goes in SC after Special Leave Petition only in the cases where the HC/ Trial Court are not unanimous on the decision. i.e. HC has reversed the decision of the Trial Court. Hence all SC judgements in 498-A is for the convictions at atleast one place.

In Indian Law, in unanimous decision High Court is the last court for justice. You go in Supreme Court with SPECIAL LEAVE of the Court.

Regards,

Shonee Kapoor

Hi Sonee
I have question , Let take a example in magistrate court some one is convicted for 1 year , then in seesion court he also convicted for 1 years again in high court he convicted for 1 year . then he cant move to the supreme court

The burden to prove simply does not shift to the accused just because of sec 113A. The prosecution still bears the burden to prove like all other criminal cases. The evidential burden may rest to some extent on the accused, but that is not a blanket to prove all wild allegations of the false 498A filer. This is not a civil case. The initial burden rests on the prosecution and then it shifts from one side to another.

It is settled law, that in the benefit of doubt, that doubt must result in the favor of the accused. These principles are stated and re-stated in several decisions of the apex court.

The other observation made by the Supreme Court is that High Court never made its reasons clearly. This observation has been made by the supreme court in "n" num of decisions. It also said that if an appellate court does not make a reason, such an order is disastrous, simply because, the aggrieved, does not know whether he/she has a ground of appeal.
In such cases, the apex court 100% admitted the SLP.

Avi Roy,

In the scenerio that you listed, one can move SC only under Special Leave Petition.

Regards,

Shonee Kapoor

Is a material evidence xerox copy of marriage photographs are allowed as a evidence or not ?

NO.

Thnx shoneeji for updates bcz in DV Act, nothing should be mention about photographs as an evideance for given or taken dowry @ time of marriage... Am i right, DV Act focus only on list that will be signed by bride and bridegroom @ time of marriage ?

So, how could i take this point in my favour in the court bcz my beloved 498a wife submitted xerox copy of marriage photographs in the court.
And somewhere in this forum you given reply regarding this topic that i ask opposite party for negative of photographs but in this digital world how it's possible ??

The questions are diffirent:

1. Whether Photographs are admissible evidence?
Yes, they are admissible evidence, but few conditions have to be satisfied.
a) There should be negatives/ digital chip of the same
b) The photographs should not have been tampered with.

2. Whether Xerox copies of photographs are admissible evidence?
No, the original photographs need to be exhibited alongwith the above conditions.

I've doubts that they have digital chip or memory card for the same, bcz the photographs are taken by professional photographers.

Plz more focus on this topic so i can better fight in court.

Thanks for sharing this judgment

please also note that if you once acknowledge that the photos are genuine the opposition may not have the necessity to prove the genuiness of the potographs. i think it is better that you maintain that the photograhs are tampered and ask for negatives/ original digital media.
regards
justcause

I concur with justcause.

What exact help/ information/ elaboration do you require on the same

Shoneeji,
We oppose while her lawyer submits the xerox copy of marriage photographs(digital), but judge accept it.

But judge also told verbaly that the search warrant case was not going on while IPC 406 in running. But her lawyer filling case for search warrant as per CrPc Section. 93 under IPC 406 case with xerox copy of marriage photographs(digital).

One more thing that she already search her things at her matrimonial home by justice oral statement while case running in different court.

Now, the case comes on ORDER that search warrant should be issue or not.

Please brief me before any ORDER comes and does CrPc runs under IPC as per law ?

CrPC is a procedural law and IPC runs as per CrPC and not otherway round.

The judge would not order search warrant under 406 at this stage.

Also, the judge has accepted the photographs means what? Has he made them exhibits? If so, you can challange the same in Higher Court.

Thnx Shoneeji....for support my thoughts that judge cannot order for search warrant under 406 at this stage.

Judge only takes photographs as bcz of her advocate wants to submit,but before it judge also said that this case could not be going on under IPC 406 nd while IPC 406 is running on cross examintions already.

I just want some SC or HC judgements to support my case strongly and argue if anything else happend and not in my favour.

Shoneeji could you plz help me for such judgements....my case date was tomorrow.

One more bias judegment comes.....

Judge give the order to give her things/ornaments and stredhan as per the list( The list which is not signed by bride and bridegroom at the time of marriage in the presence of any one parties.) And also pass the order to open the bank locker which is sealead by her application.

Judge couldn't saw our replies and arguments for this he just look at her false case file and lists. :(

Plz anyone help how to stop this order to how to fight with this bias judgement in session court or highcourt ?

Judge ordered return of things.

In which case, bail proceedings? or under 406 at which stage, evidence/ cross-examination/ what stage?

I can not comprehend your questions 498defeat, please be clear in what you are asking.

Hi Shonee,

you mention that if lower court gives a order, appeal in session order and then appeal in high court does not change the order (partially or fully), then no way to appeal supreme court ? what if any court made slight change in order like changing some amount or so , will that be acceptable ? what in civil cases & likes of semi civil cases like DV and 125 crpc ?

Thanks,
Mohan Ram

You approach SC with SLP (Special Leave Petition) that is asking the permission of the court to knock its door.

The SLP is generally not aaccepted when all the lower courts have given same decision, - based on facts by trial court, re-apprciation of evidence by appellette court, and then based on legal principles, if raised, by High Court.

Even civil cases, DV, 125 CrPC has found their way to SC, but the nos. are miniscules, you need money and very strong reasons to invoke this power. Some amount is hardly an issue to move to SC, because chances are you would be spending so much and saving so little even if the aamount is further reduced.

Judge ordered return of her things without exibits of her false things lists and xerox copy of marriage photograps...

Judge ordered that it's not acceptable that what she bring at her materimonial home at the time of marriage and hence we avoide to give her things and stridhan.... but the actual thing is that and we written in our answer allready that what she bring with her at her matrimonial home after marriage it's not properly listed and dualy signed by bride and bridegroom as per dowery prohibitaion rule no.(2), and we oppose those points by in written and also attached the dowery prohibition rule no.(2) with our answer but judge never look at those attachement.

Second thing, she already searched her things while our case was running in another MM court, and that serach will be issued orally outside of court for mutual concern(Case seattlement), which is totally ignored by her advocate.

Third thing is that, we never ignore to give her things and stridhan but she wants all this as per her false lists which is against as per DP rules and also we are not accepted that false lists because she mention so many things which she never bring with her at her matrimonial home at the time or after marriage.

Judge give the order in mechanical way not in logical way without seen our evidence that we attached with our answers.... Judge puts allegation on us in the order that we are not given her things and stridhan to safe ourselves from IPC 406(Which already started at cross examination and evidence stage from her side). We never neglect to give her things but we oppose with her false lists, which is not seen by judge with attached our DP Rules No.(2)

And for your question of IPC 406 at which stage? IPC 406 on half cross and stopped due to her advocat filed an application of search warrant under CrPc Section 93 with IPC 406. She couldn't submitted the evidence in IPC 406 while it's 50% completed on cross examination stage.

Now, my question is that how can i fight against order in session court ? becasue i'm going for an appeal against the order in session court.

Thanks Shonee Sir, you are on the point as always.

Dear '498adefeat' , why don't you try a 'double geopardy plea' for same offence being tried in multiple courts (406 & DV). I know that DV allows to some extent parallel running for some cases, but double geopardy is a constituntional right and I will not be surprised if some learned magistrate understand that and pass an order of such trial under the ambit that consitititional article overrides any other law, if in contradiction. You can fight probably on this and try to create a history with a new judgement. I believe if it looks good , you can right away try for quash in HC and it will automatically stay both your cases and then you can plead in high court for double geopardy be given higher precedence compared to any other section or act. It is constuituitional right.

Another suggestion (offcourse I may be wrong on comprehending your situtation , so you are best judge), but why do you oppose search warrants, let them search, if you do not have the stuff, what can they find ? it will also go in your favor , isn't it, if nothing is found in the said search. Going to session court on this point, may be just good for delay purpose, otherwise you could try to finish off the case, as they can not prove their 406 and that could in future pave a way for you to file defame case against them. but yes that is for future and not now. first you save, keep collecting armours and then if need be, you can pull back..

These are my thoughts on the topic and disclaimer is you think through in your context always, advices are from all corners but you have to decide which one is yours..

Still unable to understand, please type the order of the court for better understanding after removing all names and dates.

"Need material evidence to prove dowry demand"

What is considered as material evidence?

1) Can the testimony of wife and her relatives alone be considered as material evidence for dowry demand?
2) Or there has to be some documentary evidence to prove dowry demand?

498afighter

:-)

Not everything explained has a blanket protection value.

Unimpeachable testimony is material enidence.

Shoneeji,

I slapped on her face by seat a side her search warrant order by MM Justice under section 93 while IPC 406 is already started on cross examination stage.

Search warrant seat a side by session judge, and continue with IPC 406 cross examination.

i dont understand this, search warrant at the time of cross examination?? i mean what if you already returned the gifts and her ornaments back and got an AB and the gang agreed that time that the stuff returned is ok and then signed on the paper, but then again started crying that we gave more stuff that wasnt returned. so can they still ask for search warrant even at the stage of cross examnination and stuff??