Usually my impression is that as far as judicial decisions are concerned, Chennai is a place filled with white knightery, where it is easy to get judgments in favour of women; even based on flimsy evidence but more based on emotions.  I remember reading a judgment where a woman was granted maintenance under DV Act after a one-night stand with an office co-worker at his house.  Some “beneficial legislation” interpretation it must be that one night spent with office co-worker in his house turns that into a live-in relationship!  The problem with such benefit-and-relief-awarding interpretations is that interim maintenance gets awarded in DV cases routinely with no evidence of any violence whatsoever, because the DV Act is drafted in such a way that it talks only about what reliefs can be given to woman; and not about after giving what kind of proofs the asked reliefs can be given!

But going in reverse gear, now Chennai high court has said openly that Domestic violence act (PWDVA) is not gender-neutral and is prone to misuse.

Neutral law needed to protect victims of domestic violence: HC

Madurai: The Madras High Court on Thursday called for a “neutral and non prejudicial” law to protect genuine victims of domestic violence, irrespective of the gender, noting that existing law contains a flaw that lends itself to easy misuse by women.

“The notable flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach lesson to their male relatives and will file frivolous and false cases,” Justice S Vaidhyanathan said.

He was dismissing a petition by a woman who sought to stop the promotion of her father-in-law, a government school teacher, citing pendency of a criminal case filed against him and other in-laws on a complaint from her.

The judge pulled up the woman for using domestic violence act as a tool to ‘wreak vengeance’ on her father-in-law and imposed a fine of Rs 5,000 on her.

A find of Rs 5000 is quite a drastic step going by standards of penalties and fines imposed in Indian courts.  That tells that the judge was serious enough in sending more than a message, which is to penalize the woman who was using DV Act for her own agenda.

The petitioner had submitted she was thrown out of her matrimonial home after she lodged a police complaint accusing her husband of demanding dowry and father-in-law of attempting to molest her based on which a case had been registered.

She came to know that her father-in-law was going to be promoted as headmaster, she said contending that as per rules a person having a criminal case against him was not entitled to be promoted.

She made a representation to the officials against her father-in-law to take departmental action, but no action was taken.

Usually it is seen that the father-in-law is quite protective of daughter-in-law and in many cases will start questioning his own son believing the sob stories of daughter-in-law, rather than his own son who he has known for years.  Maybe such false cases filed by daughter-in-laws will slowly wake up some more elderly white knights in the population, who are usually the last to understand that the old traditions and rules of society can’t be applied blindly anymore, hoping that they will work just like in the past.

By the way, I think it is the first time that any high court in the country has questioned the foundation of and commented on ill-effects of a law like Domestic violence act.  So far the trend in judiciary has been to avert the gaze from rampant misuse, keep ordering interim maintenance to all women who ask for it; and give some platitudes once in a while about misuse of IPC 498a (and neutralize it simultaneously by recommending to make it compoundable).  This could be a sign that judiciary itself is not feeling comfortable by their own decisions, and where it might lead society in future.

The post Chennai HC says DV Act (Domestic violence act) is prejudiced and recommends making it gender neutral appeared first on Men Rights India.

A recent judgment by Mumbai HC should be a cautionary tale to those who take the issue of maintenance lightly, and believe that they can get an upper hand by simply not paying and then will see what happens.

Note: this case is about permanent alimony to wife (not interim under DV Act, CrPC 125, or pendente lite under section 24 of Hindu Marriage Act).  But the lessons may be applicable to other maintenance related litigations too.

Lack of job no grounds to avoid paying alimony: Bombay HC

A man, though jobless, must pay maintenance to his wife as ordered by courts in cases of divorce, the Bombay high court (HC) has ruled. A bench of justices Ranjit More and Anuja Prabhudessai, in a recent order, held that a man cannot plead penury in order to evade his liability to pay alimony.

HC further said that if the man was unable to find a job, “he could go to jail and participate in the various programmes conducted there for the inmates, earn money and thus, provide for his wife and child.”

The order was delivered by a 2 judge bench, so it will carry even more weight.  I really doubt that work inside prison can pay so much, I don’t think it will be more than 3000-4000 per month.  So from that point of view, the main thrust of the judgment to every non-paying husband is not that there is a guaranteed good income waiting inside prison for every husband who is unable to find a job outside prison, but that unless you enjoy the jail premises more than life outside, better find a higher paying work outside prison!

Further it says:

According to the woman’s plea, she and her husband got divorced in 2010 and the family court awarded her a monthly maintenance amount of Rs6,000, including Rs3,000 for their minor daughter. In 2013, however, the family court allowed a revision plea filed by the husband and reduced the maintenance amount to Rs3,000.

Now here is something I want to disclose as a secret to every husband who dreams of bringing wife down to her knees by not paying the ordered interim or final maintenance in CrPC 125 or DV Act.  An amount of Rs 6000 for living expenses of two people: a wife and kid in this case, is not exactly something which will provide them with a life of luxury and riches.  If one calculates just basic expenses of food, clothing, and shelter, it is not easy to live within that amount of money.  And you have to add child’s education as another basic expense, which may make that amount look even inadequate depending on amount of school fees and other expenses.

And I want to disclose one more secret which many fathers also are somehow unable to grasp: no matter what kind of cruel or uncooperative wife you had to live with earlier; having a child in marriage will automatically shift his/her responsibility to you and you can’t escape it even if the wife is earning (in that case, child’s expenses can be shared).  So I really don’t see much sense when a man with a child is trying to fight till last breath trying to reduce the maintenance to as low figure as possible.  The courts will not give a sympathetic hearing, and I think that’s exactly what happened in this case.  An able-bodied man won’t be allowed to sit easy and give excuses about being out of job.

Further the news says:

The man, on the other hand, told the HC that he had stopped paying alimony because he had lost his job as a security guard after the divorce and had been unsuccessful in finding another job since. He said he took up odd jobs on a daily basis and made about Rs3,000 per month and, thus, was not in a position to pay alimony.

The HC junked his plea saying that despite all circumstances, the maintenance of his divorced wife and daughter was his responsibility. “You are an able-bodied man. Find some work and if you fail to follow the court’s order, you will have to go to jail. You can live off the state then and earn money through its programmes and pay up,” the bench said.

Many men facing cases of CrPC 125, DV Act and others possibly 498A, 406 etc give the reason that due to mental tensions and harassment, they are unable to find a job or keep a job (in case of many hearings).   Hence, they should be excused from paying maintenance.  That logic somehow is not convincing since I know many who have kept a job and got salary increases and promotions while fighting all cases.  It can have some impact on one’s earnings, but to convince the courts that your income will come down from 35,000 to 0 per month will be very, very difficult.

One more factor which may have gone husband in this case is that he is already divorced, and naturally he is not facing any of the other cases by now either.  For him, an excuse of mental tension and ‘torture’ etc also will not be there.

Moral of the story: Don’t try to use legal tricks which go against common sense, especially if there are children involved.

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According to this latest news, Supreme court has made video capturing via CCTV mandatory in all police stations.

Update Jul 27, 2015: This news has appeared only in few newspapers so far.  According to this news reported by Economic Times, the SC has made CCTV to be mandatory in prisons, and in police lock-ups.  Police lock-up does not necessarily imply all rooms of the police station are to be monitored under CCTV, but definitely CCTV should cover the lock-up rooms where arrested people are detained.  Even that should be a good start, and within few months, people can start filing RTI on local PS to ask if they already have CCTV monitoring done or not, how many lock-up rooms, how many CCTV, by when it will be done etc.

Also, there is good information given in this Delhi HC document about judicial and police lock-ups(PDF file).

SC directs all police stations to be under CCTV watch

NEW DELHI: In a landmark verdict to prevent custodial torture, the Supreme Court on Friday directed the Centre and state governments to put police stations and interrogation rooms under surveillance of CCTV cameras.

A bench of Justices T S Thakur and R Banumathi also directed that the governments must appoint at least two women police constables in every police station.

This could be a game changer in terms of what the future relationship of citizens of India with the police services will be.  Right now, it can be said that the citizens are fearful and helpless, and the police is like their mai-baap (godfather) who have no accountability to citizens.  Whether a person faces a simple issue of a noisy party at late night in neighbourhood, or of a more serious crime like theft etc; it’s the citizens who are fearful of approaching the police, rather than exercising their right to get some basic law and order and governance.  Many people have not called the police control room (PCR) number 100 in their whole life, and possibly would never will; unless police becomes accountable to people, towards which this judgment could prove to be a major step.

How does this help the husbands who complain of bad treatment, harassment, shouting, abusive behaviour by wife and in-laws in police stations?  Or those who are dragged into police station on false charge of rape?

It all depends on the future behaviour of affected public.  If public continues to treat police either as a mai-baap, or as an entity which works or shows favours by giving bribes, then all such progress of putting CCTV cameras etc will be of not much effect.  This is unfortunately a learned behaviour in India that people try to take shortcuts instead of following the straight path, and then they complain that they didn’t get treated properly or got harassed.  If you want to buy some favours from police by throwing money, why should you get respect?  Who can say whether a person is honest or hasn’t actually done a crime if he is so eager to bribe police without even asking?

Further the news says:

The apex court also accepted their recommendation for regular and random inspection of police stations to ascertain whether any custodial violence took taking place after talking to inmates and examining CCTV footage.

The court has been monitoring the case pertaining to custodial violence since 1986 on a Public Interest Litigation filed by a former judge of Calcutta High Court Justice D K Basu and it has passed a slew of directions from time to time. It had laid down some specific requirements to be followed by police for arrest, detention and interrogation of any person to obviate the possibility of torture in custody.

The order by supreme court is with intention of preventing custodial torture, but the measure can have far reaching effects, beyond prevention of custodial torture.  Generally, the standards of behaviour expected from public servants are quite low in India.  We can remember the time when there was no CCTV in Lok and Rajya Sabhas, and the parliamentarians were used to throwing chappals and mikes at each other to score in parliamentary ‘debates’.  With introduction of CCTV in police stations, there will possibly be lot of improvement in police’s behaviour, and it is up to citizens to ensure that they stick to what their real job is supposed to be.

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Yesterday I had covered recent news about Supreme Court ordering all locks-ups in police stations (and prisons) to mandatorily have CCTVs installed.

While searching for that news, I found that SC has already issued orders in April, 2015 that all Delhi police stations should be covered by CCTVs.  And this order is not only for lock-ups inside police station, but basically seems to cover whole of PS, which should definitely cover the lobby/reception and other important areas where complainants and others meet the police officials.

There are two news on the matter, and the earlier one is from Apr 23, which seems reliable enough.

To keep eye on cops, SC wants CCTV cameras at police stations – Indian Express, Apr 23, 2015

Delhi government gets its way on CCTV in police stations – Times of India, Jun 5, 2015

From the Indian Express news:

The Supreme Court on Wednesday directed the Delhi Police to install CCTV cameras in all police stations in the national capital in two months.

Concerned over the behaviour of policemen towards complainants, especially women, a bench of Chief Justice H L Dattu and Justice S A Bobde said that the Delhi Police Commissioner will ensure that CCTV cameras are installed at conspicuous places in all police stations in Delhi within the stipulated time.

The court said the report to be filed by the police commissioner should also mention details of cameras already installed and how many of them are functional.

As given below, the whole order came after complaint by woman lawyer, so it seems the ways to get things done in India is that a woman should report harassment of some kind, and someone will take action.  Otherwise, it would continue to be business as usual.  Anyway, we are not complaining, because the overall order is a step in the right direction.

“Let them (police) file an affidavit and tell us if they have installed CCTV cameras. And if they have done so, how many of them are actually functional. The report by the commissioner shall contain this information clearly,” the bench said and fixed the matter for hearing on May 11.

The order came in the wake of an incident wherein a woman lawyer from the apex court was allegedly manhandled by some policemen and others inside a police station in Delhi in April last year.

What this could mean for ‘harassed’ husbands who are called to police stations in Delhi on wife’s complaint:

1. You can check beforehand if the CCTV is there in the PS, and maybe even insist that all ‘discussions’ and ‘counselling’ between wife/in-laws and you take place at a place covered by CCTV.
2. If there is any manhandling done by wife’s party, then immediately file a complaint (to Commissioner of police if the lower police does not accept), and mention the date and time of incident.  Also mention that the said incident must have been captured by the CCTV and the footage should be examined.
3. Sorry, for all the ‘smart’ losers who think a visit to police station necessarily means giving a bribe to someone there, your act may also get recorded in CCTV.  So it’s about time that one learns some ‘adamant’ Indian fighting techniques rather than ‘smart’ Indian survival techniques.

CCTV in CAW (Crime against women cells)

The order does not mention CAW cells, but the CAW cells are not exactly an independent entity from police, and they also operate inside police stations.  So in case the CAW ‘counselling’ area is not covered under CCTV, ask the police personnel when it will get covered, and why it is not covered, since women’s safety it is such an important thing, and CAW is meant to safeguard women’s rights

If the CCTVs are not installed there, file an RTI on CAW and police authorities asking for budget, people responsible, and by when it is scheduled for CCTV to get installed to cover the CAW cell.

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Thanks to a reader, we have this very recent judgment of Madhya Pradesh High Court which denied maintenance to wife under CrPC 125 on her appeal to HC since the court agreed with trial court’s observations that according to evidence led by husband and also wife’s own admissions, it was the wife who was not staying with him out of her own freewill.

The judgment is actually not very significant, since both evidence by way of letters of husband and wife’s own admissions proved that there was no maltreatment, and in practical cases such evidence, and wife’s own admissions are very rarely seen.  Also the wife didn’t appear in HC at all for her own appeal.   If any husband is lucky enough to have this kind of evidence (and a wife who admits in court to her faults ) , of course they can make full use of it!  This was how usage of CrPC 125 was intended to be, but after passing of laws like DV Act combined with the so-called ‘women empowerment’ trend, most of the time interim maintenance is granted based merely on allegations and the fact that wife is not staying with husband.

On the basis of aforesaid letters and admission of the applicant in her cross-examination, learned
trial Court had recorded a finding that she was never ill-treated by her husband or in-laws but she
was unable to adjust herself in her matrimonial home; therefore, she did not want to stay with her
husband and wanted to get rid of him. On the basis of her categorical admission that she had
written a letter to her father stating that she has no complaint against her in-laws but she was
unable to adjust with them; therefore, she wanted to marry somewhere else, learned trial Court
proceed to record the finding that the applicant had left her husband of her own freewill and

accord. It cannot be said that she had to leave her matrimonial home on account of any ill-
treatment, misbehavior or harassment on the part of her husband or in-laws.

On aforesaid grounds, learned trial Court held that the applicant was not entitled to any
maintenance.

Madhya Pradesh High Court

Smt. Aradhana Tiwari vs Deepak Tiwari on 16 July, 2015
                       CRR-604-2010
             (SMT. ARADHANA TIWARI Vs DEEPAK TIWARI)

16-07-2015

None for the applicant.
Shri S.K.Mishra, counsel for the respondent.

A perusal of the record reveals that no one had appeared on behalf of the applicant to prosecute
this Criminal Revision on two previous dates, namely 06.05.2015 and 29.06.2015.

On last date, the Court had made an observation that if no one appears on next date to argue on
behalf of the applicant, the Revision Petition shall be dismissed for non-prosecution, in view of
the nature of the impugned order.

Even then, no one has appeared before the Court to argue on the matter on behalf of the
applicant. This Criminal Revision is yet to be admitted. In aforesaid circumstances, the Court
shall proceed to decide it on merits without the benefit of arguments advanced on behalf of the
applicant.

This Criminal Revision has been preferred against the order dated 22.01.2010 passed by the
Court of 1 st Additional Principal Judge, Family Court, Jabalpur, in MJC.No.01/2009, whereby
the application for maintenance filed under  Section 125  of the Code of Criminal Procedure by
the applicant Aradhana Tiwari was dismissed on the ground that the applicant had failed to prove
that the non-applicant husband had neglected or refused to maintain her and she was staying
away from him without any reasonable and just cause.

It has been observed by learned trial Court that the non- applicant husband had filed letters
exhibit D-1 to D-4, whereby it is evident that the non-applicant husband never misbehaved with
the applicant. It was further observed that the applicant had admitted in her cross- examination
that she used to write letters to her husband that she has no problem in her matrimonial home and
she also admitted that she had written a letter from her matrimonial home to her father
expressing that she is not happy in her matrimonial home and imploring him to take her from
matrimonial home to her parental home and marry her off somewhere else. She also admitted
during the cross-examination that she has spends most of time in her parental home after the
marriage. She has also admitted that she was treated for mental ailments before her marriage and
also after it.

On the basis of aforesaid letters and admission of the applicant in her cross-examination, learned
trial Court had recorded a finding that she was never ill-treated by her husband or in-laws but she
was unable to adjust herself in her matrimonial home; therefore, she did not want to stay with her
husband and wanted to get rid of him. On the basis of her categorical admission that she had
written a letter to her father stating that she has no complaint against her in-laws but she was
unable to adjust with them; therefore, she wanted to marry somewhere else, learned trial Court
proceed to record the finding that the applicant had left her husband of her own freewill and

= Page 1 =

accord. It cannot be said that she had to leave her matrimonial home on account of any ill-
treatment, misbehavior or harassment on the part of her husband or in-laws.

On aforesaid grounds, learned trial Court held that the applicant was not entitled to any
maintenance. On perusal of record, there is no reason to take a different view in the matter; as
such, the impugned order does not suffer from any illegality, irregularity or impropriety
warranting interference by this Court. Consequently, this Criminal Revision deserves to be and is
accordingly dismissed.

(C V SIRPURKAR) JUDGE

= Page 2 =

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It must be the season for news about CCTV and audio-video recordings.  After I reported on two recent news about Supreme Court ordering CCTV in police lock-ups and prisons, and Supreme Court asking for CCTVs in all Delhi police stations; there is now news that the government is requesting Supreme Court to allow audio-video recording of court proceedings.  You hit us, we hit you!  It’s all good in the end, because the main beneficiary of all this tussle between executive and judiciary will be the common man.  In any case, both the police and judiciary are considered practically inaccessible to public, so there is no excuse for not implementing these things.  Better late than never.

Govt to petition Supreme Court to allow audio-video recording of court proceedings

Government will press for introduction of audio-video recording of court proceedings before a Supreme Court panel, maintaining that it enhances transparency and discourages witnesses from retracting statements.

It will urge the e-Committee of the apex court to allow audio-video recordings more than a year after a similar request was turned down by the panel.

To begin with, the facility is being mooted in subordinate courts.

Interesting.  There is an e-Committee in Supreme Court, and going by its name, it should be encouraging all things electronic and digital, but it is more interested in finding reasons how to turn down the proposal to allow audio-video recordings in courts, as it did earlier.

I got to know from one person who had been to Supreme Court, that the advocates there act in most servile manner and bow down and call the judges as “lordships”.  I am already aware that calling the judges as lordship is common practice in SC, but somehow can’t believe that lawyers who charge several lakhs per hearing will act in a servile manner.  I would love to see the video recordings of SC sessions one day, to see how the advocates act in front of judges.

Further the news says:

“Allowing such recordings can contribute to transparency of court processes by allowing a precise record of the proceedings and at the same time discouraging improper conduct in courts and wastage of court time”.

“The efficiency of courts can also be enhanced by maintaining standard system generated formats of routine judgements and orders, particularly in civil cases, which may be used by courts for quick delivery of judgements,” the Ministry said in the meeting.

The top court had recently dismissed petitions seeking approval for video recording of judicial proceeding. The view was that court system in the country has not reached the level where the video recording of court proceedings can be permitted.

“court system in the country has not reached the level…” Really?  The same SC had recently asked the government that if 15,000 CCTV cameras could be installed in Delhi to provide security for US President Barack Obama’s visit, why could the same cameras not be used for security of Delhi citizens?  Why do Indians love to equate themselves with the best in the world when the context suits them, but then turn around and act helpless and pitiable, in another situation?  It’s all too opportunistic and hypocritical, isn’t it?

The post Government asks Supreme Court to allow audio-video recording of court proceedings appeared first on Men Rights India.

Two readers sent copy of this recent Delhi court’s judgment about interim maintenance, and thanks to both!

While many people were commenting after reading the newspaper reports of this judgment, I don’t think the newspaper reports mentioned that there was a child who was being taken care of by respondent-husband.  I wonder if the decision had been otherwise had the petitioner-wife been taking care of the child, which is the usual scenario.  In fact, I think that’s the crucial point which has gone in favour of husband/father.

Another possible conclusion: As far as denying maintenance is concerned, better to have a wife qualified as a beautician, than a wife with qualifications like MA or PhD, but no work experience whatsoever.

ii)  Whether the domestic violence has been committed upon the complainant by the respondents     :Perusal of complaint as well as DIR prima facie show that complainant has been a victim of domestic violence. The allegations and counter allegations leveled  by the parties against each other shall be proved only after leading evidence.

…

(c)  that he does not have any movable, immovable property and investment in his name. He is unemployed and having the responsibilty  to maintain the minor child, who is under his care and custody,

…

6.    It be observed that respondents have not filed any document to prove complainant’s employment and income. Similarly, the complainant has also not filed any conclusive documentary proof except copy of visiting card of Jagdamba Motor Service Station to prove the  employment and income of the respondent no. 1.  It is noticeable that  the name of respondent no. 1 is not printed on the visiting card but his name is mentioned in  someone’s handwriting. The respondent no. 1 has taken the  plea that the name and phone number appearing on the said visiting card,  do not belong to him.  It appears that the claim of the parties in this regard can be proved only by leading evidence. The complainant has admitted doing the course of Beautician, however, she has not furnished any explanation as to why she is sitting idle. In today’s scenario even women are expected to contribute economically in running the house. Admittedly, the complainant is having such professional skill and qualification that she may not find any difficulty in searching a suitable job for herself.    The court is of the view that  the present case is the fit case, where Interim Monetary  Relief should not be granted in favour of the complainant, hence, Interim Monetary Relief is declined.

IN  THE COURT OF MS. MONA TARDI KERKETTA: METROPOLITAN MAGISTRATE,
                             TIS HAZARI COURTS : DELHI

CC No. 139/1/13

PS:  BURARI

SMT.  SUMAN                                                            ……..COMPLAINANT

VERSUS

SH.  SANDEEP & ORS.                                                    ………RESPONDENTS

ORDER

1.     By this order,  I shall dispose off Interim Application,  seeking  Monetary Relief

u/s  20 read with  23 of  DV Act of the complainant filed along with the complaint.

The  complainant has not pressed for any other interim relief.
2.      I  have heard Ld. Counsels for the parties  and perused the DIR and  entire case

file with their assistance.

3.     The present proceedings are under Domestic Violence Act, therefore, the Court is

required to consider two important points :

                                                                                     
i)   Whether there is domestic relationship between the parties                     : Admittedly,
respondent no. 1  is  the husband of  the complainant and other respondents are her

in laws and all of them  lastly resided together at the shared household. In view of the

facts and circumstances, domestic relationship between the parties is proved. 

ii)  Whether the domestic violence has been committed upon the complainant by the

                
respondents     :Perusal of complaint as well as DIR prima facie show that complainant
has been a victim of domestic violence. The allegations and counter allegations

leveled  by the parties against each other shall be proved only after leading evidence.

Respondent no. 1 being husband of  complainant,  is legally and morally bound to

CC No. 139/1/13  PS: BURARI                            SUMAN VS. SANDEEP & ORS.  1/5

maintain her as per means and resources available to him, therefore, complainant is

entitled to interim monetary relief  as claimed in the application.

4.       Now coming to Interim Monetary Relief, the complainant has claimed herself to

be a house wife without any source of income and completely dependent upon her
parents.  In respect to  employment and income of respondent no. 1, she has

claimed that  he is  running a service center and  earning Rs. 60,000/­ per month.

She has also claimed that respondent no. 1 has no other liability except to maintain

her. On the other hand, the respondent no. 1 has denied all the contentions of the
complainant and claimed that complainant does not require any maintenance as

admittedly she is a Trained Beautician and working in a Beauty Parlour at Burari and

earning handsome amount of rupees 15,000/­ per month. In respect to his own

income, respondent no. 1 has claimed himself unemployed and dependent upon his
parents for his & minor child’s  maintenance.  He has further claimed that  his name

mentioned in the visiting card  furnished by the complainant is wrong. In fact, the

name Monu is actually of brother in law of respondent no. 2.  The telephone number

mentioned against the said name belongs to someone else.

5.    As per court directions, the parties have filed their detailed income affidavit in
terms   of   judgment   Puneet   Kaur   judgment   from   the   date   of   marriage

wherein,complainant has made the  following declarations :­

                  th
(a)  that she is 8  class pass and  has done Beautician Course before the marriage. She
does not have experience in past occupation,

(b)  that she is dependent upon her parents for the maintenance, who have the

responsibilities of maintaining total  06 family members,  
(c)   that she does not have any movable, immovable properties and investments in

her name and all her stridhan / jeweleries are in the possession of the respondents,

(d)   that she incurs Rs. 1000/­  per hearing on the conveyance, Rs. 100/­ per month as

mobile charges, Rs. 1000/­ per month  upon household expenses,  Rs. 250/­ per
month on medical treatment,Rs.  1000/­ upon  festivals,  Rs. 1000/­ on Birthday

Ceremonies,

CC No. 139/1/13  PS: BURARI                            SUMAN VS. SANDEEP & ORS.  2/5

(e)  that Rs. 6,50,000/­  in the marriage, Rs. 80,000/­  in Kua  Pujan Ceremony were

incurred,

(f)  that she uses public transport for travelling and visits private hospital for the

medical treatment,
(g)   that petition U/s 125 Cr.P.C. and FIR No. 484/14,  PS Burari are pending in the

court. 

        The respondent no.1  has made the following declarations  :­

                   th
(a)   that he is  5  class pass without any professional qualification  and experience of
past occupation,
(b)   that his family consists of total 06 members,  he and his son are dependent upon

his parents for their maintenance, 

(c)  that he does not have any movable, immovable property and investment in his

name. He is unemployed and having the responsibilty  to maintain the minor child,

who is under his care and custody,
(d)  that he incurs Rs.  2,000/­ per month on  household expenses, Rs. 10,000/­ on

legal expenses, Rs.  2000/­ on dependent family members,Rs.  500/­ on festivals and

Rs.  50,000/­ upon the marriage,

(e)  that he belongs to lower class family, travels by foot within the city  and visits

government hospitals for treatment,
(f)  that he and other family members are living in a rented accommodation,

(g)   that  two cases are pending against him.

6.    It be observed that respondents have not filed any document to prove

complainant’s employment and income. Similarly, the complainant has also not filed

any conclusive documentary proof except copy of visiting card of Jagdamba Motor
Service Station to prove the  employment and income of the respondent no. 1.  It is

noticeable that  the name of respondent no. 1 is not printed on the visiting card but

his name is mentioned in  someone’s handwriting. The respondent no. 1 has taken

the  plea that the name and phone number appearing on the said visiting card,  do

not belong to him.  It appears that the claim of the parties in this regard can be

CC No. 139/1/13  PS: BURARI                            SUMAN VS. SANDEEP & ORS.  3/5

proved only by leading evidence. The complainant has admitted doing the course of

Beautician, however, she has not furnished any explanation as to why she is sitting

idle. In today’s scenario even women are expected to contribute economically in

running the house. Admittedly, the complainant is having such professional skill and
qualification that she may not find any difficulty in searching a suitable job for

herself.    The court is of the view that  the present case is the fit case, where Interim

Monetary  Relief should not be granted in favour of the complainant, hence,

Interim Monetary Relief is declined.

7.      Nothing stated herein shall tantamount to expression on the merits of the case. 
8.       Put up for CE on 29.10.2015.        Complainant is directed to file her affidavit,

advance copy of which be supplied to the opposite party  one week before the next

date of hearing.  It is clarified that only 03 opportunities shall be given for leading CE.

Announced in the open Court
on 03.08.2015                                                       (MONA TARDI KERKETTA )
                                                                      MM­02/MAHILA COURT
                                                                THC: Delhi: 03.08.2015

CC No. 139/1/13  PS: BURARI                            SUMAN VS. SANDEEP & ORS.  4/5

                                                                       CC No. 48/1/11
                                                                       PS: BURARI
                                                                       03.08.2015
               Lawyers are on strike today.

Present:­  Complainant in person.
               Respondent no. 1 and 3 in person.

               Other respondents are absent.

               Matter is fixed for clarification/order on the interim application.

               No clarification is required.

               Vide separate detailed order, the interim application  of complainant is

dismissed.

               Put up for CE on 29.10.2015.

               Complainant is directed to file evidence by way of affidavit and
documents, if any,  with advance copy to the opposite party a week prior to NDOH

against receiving.  Complainant is further directed to bring  complete documents, if

any,  on the NDOH. It is clarified that only 03 opportunities shall be given for leading

CE.  

                                                   
                                                            (MONA TARDI  KERKETTA)
                                                            MM­02/MAHILA COURT
                                                             THC/DELHI/03.08.2015

CC No. 139/1/13  PS: BURARI                            SUMAN VS. SANDEEP & ORS.  5/5

The post Delhi Metropolitan Magistrate (MM) court denies interim maintenance under DV Act to wife qualified as beautician appeared first on Men Rights India.

On eve of Independence day, a special message for all.  Pledge to do the following:

1. Bribe the police every time you go to PS because otherwise they won’t do their work they are supposed to do.

2. Continue to feel scared of CAW cell because they are more powerful than even courts.

3. Try to join men’s rights groups pretending to be a fighter while you are only secretly learning how to get divorce without paying a penny while these idiots keep discussing how to fight cases.  Also try to find a good lawyer because these other members have overlooked that obvious and easy solution.

4. Don’t meet or talk to anyone in weekly meetings. Prefer to sit in WhatsApp or other groups just quietly and keep listening without sharing or contributing anything.  These others must have tortured their wives but your case is genuine!

5. These biased laws and system exists because the seniors and MRAs haven’t done enough work.  Of course you will also contribute to men’s rights and activism AFTER your cases are over.

6. Keep complaining about what’s wrong in India and why you don’t want to be born in this country again.  However continue to cheer for Indian cricket team or other events which make India proud.

End of message 

The post A special message on Independence Day! appeared first on Men Rights India.

Thanks to a reader, we have this interesting judgment on topic of arrest and bail; and it highlights the rot that has become India, and the rot and zombie-hood exists in all branches of official life: be it executive (police department), or judiciary.  So the usual Indian trick of pointing finger at another department will not work in this case.  Citizens are not above blame either, because they seem to firmly believe that the rot exists in government, and it can’t be fixed; so all their energy is spent on finding shortcuts and escape techniques, rather than improving the system.

Gist of the the judgment is this:

1. Police complaint filed against husband and family members in IPC 498A, 406, 420, Dowry Prohibition (Sections 3 and 4) case.
2. My guess is either summons are issued by police to husband and family, or they come to know that FIR has been completed.
3. The family thinks that if they appear before police in response to summons/for investigation etc, they will be produced before magistrate and magistrate will send him sent to judicial custody in a routine manner without considering whether it is really necessary.  Point to note is that the Indian citizens also have full ‘faith’ that magistrate will act in a corrupt way, so maybe they are placing hopes on no corruption in higher judiciary.
4. Family members go underground probably fearing impending arrest.
5. Police IO (investigation officer) requisitions court to issue NBW (Non-bailable warrant) is issued against petitioners saying that they are evading arrest.   Court grants the NBW.
6. Meanwhile without giving report about execution of NBW, our super efficient police (only in arresting, nothing much else) applies to court to issue order to proclaim accused as absconding under CrPC 82.
7. Our super efficient magistrate (in granting NBW mechanically etc) agrees with police’s requisition and declares accused as absconding.
8. Petitioners apply to HC to set aside both the NBW and CrPC 82 order.
9. Jharkhand HC acknowledges that NBW was granted by lower court judges in routine manner without application of mind.  HC also holds that the requisition of CrPC 82 by police was wrong, and so was the magistrate’s order on that.  However, the HC did not deem it serious enough to start departmental proceeding against magistrate for being in contempt of Arnesh Kumar vs State of Bihar & Anr. judgment.  So this kind of police chase and magistrate orders for detention may continue in Jharkhand for lot more time to come.

Full judgment text below:

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr.M.P. No. 1583 of 2014
With
I.A No.3583 of 2014
1. Manoj Kumar Jain
2. Vinita Jain
3. Sumit Jain
4. Vijay Kumar Jain                                      …… Petitioners
Versus
1.The State of Jharkhand
2. Poonam Jain                                             …… Opposite Parties
——–
CORAM      :      HON’BLE MR. JUSTICE H. C. MISHRA
——
For the Petitioners          :      Mr. Raj Mangal Singh, Advocate
Mr. Sidhartha Roy, Advocate.
For the State                :      Mr. M.B. Lal, A.P.P.
For the Opp.Party No.2 :            Mr. Pandey Neeraj Rai, Advocate
——

3/7.8.2014          Complainant informant Opposite Party No.2 has appeared

through Advocate.

2.            Heard the learned counsel for the petitioners and the learned

counsel for the State as also learned counsel for the opposite party No.2.

3.            The petitioners have filed this application for quashing the F.I.R
and the entire criminal proceeding against them in connection with Ramgarh

P.S Case No.167 of 2014, corresponding to G.R No.1815 of 2014 instituted

for the offence under Sections 498-A, 406, 420 of the Indian Penal Code and

Sections 3 / 4 of the Dowry Prohibition Act.

4.            I.A No.3583 of 2014  has been filed by the petitioners,

challenging the orders dated 10.6.2014  and  2.7.2014 / 3.7.2014 passed by
the learned Sub-Divisional Judicial Magistrate, Hazaribagh, in the said

G.R No. 1815 of 2014, whereby, warrants of arrest have been ordered to be

issued against the petitioners and by the subsequent order, the process

under Section 82 of the Cr.P.C., has been ordered to be issued against

them. The prayer has been made in the interlocutory application for
amending the prayer portion of the main application and adding the prayer

for quashing these orders as well. The prayer is allowed.

5.            In course of arguments, learned counsel for the petitioners has

given up his prayer for quashing the criminal proceeding in the said

Ramgarh PS Case No. 167 of 2014, as there are allegations against the
petitioners in the FIR. Accordingly, this prayer of the petitioners is rejected as

not pressed.

6.            Learned counsel for the petitioners confined his arguments to

the challenge of the order dated 10.6.2014 as also the order dated

2.7.2014 / 3.7.2014, issuing the warrants and the process under Section  82
2

of the Cr.P.C., against the petitioners. It is submitted by the learned counsel

for the petitioners that the order dated 10.6.2014 has been passed without

any application of mind by the Magistrate, only on the requisition of the I.O.,
and accordingly, the said order cannot be sustained in the eyes of law. It is

submitted that the subsequent order being the consequential order, the

same also cannot be sustained in the eyes of law.

7.            Counter affidavit and an affidavit have been filed on behalf of the

informant in this case, refuting the stand of the petitioners. By way of an
affidavit filed on 7.8.2014, the informant has brought on record the

requisitions filed by the Police Officer on 10.6.2014 and on 2.7.2014, for

issuance of warrants and the process against the petitioners, and in both

these requisitions it is only stated that the accused persons were evading the

arrest and were also removing their assets.

8.            In support of his contention that the impugned orders passed by
the Court below cannot be sustained in the eyes of law, learned counsel for

the petitioners has placed reliance upon the decision of the Hon’ble

Supreme Court of India in      Raghuvansh Dewanchand Bhasin Vs. State of

Maharashtra & Anr.,       reported in   2011 (4) JLJR 385 (SC),       wherein the law

has been laid down as follows :-

“ 9. It needs little emphasis that since the execution of a
non-bailable warrant directly involves curtailment of liberty of
a person, warrant of arrest cannot be issued mechanically,
but only after recording satisfaction that in the facts and
circumstances of the case, it is warranted. The Courts have
to be extra-cautious and careful while directing issue of non-
bailable warrant, else a wrongful detention would amount to
denial of constitutional mandate envisaged in Article 21 of

the Constitution of India. At the same time, there is no
gainsaying that the welfare of an individual must yield to that
of the community. Therefore, in order to maintain rule of law
and to keep the society in functional harmony, it is
necessary to strike a balance between an individual’s  rights,

liberties and privileges on the one hand, and the state on the
other. Indeed, it is a complex exercise. As justice Cardozo
puts it “on the one side is the social need that crime shall be
repressed. On the other, the social need that law shall not
be flouted by the insolence of office. There are dangers in
any choice.” Be that as it may, it is for the court, which is
clothed with the discretion to  determine whether the

presence of an accused can be secured by a bailable or non
bailable warrant, to strike the balance between the need of
law enforcement on the one hand and the protection of the
citizen from highhandedness at the hands of the law
enforcement agencies on the other. —————– .”
(Emphasis supplied).
3

9.          Learned counsel has also placed reliance upon the decision of

the Hon’ble Supreme Court of India in         Arnesh Kumar Vs. State of Bihar

& Anr.,   reported in   2014 (3) JBCJ 352 (SC),       wherein the Apex Court has
laid down certain guidelines to be followed before arresting the accused,

which are as follows :-

“12.  Our endeavour in this judgment is to ensure that police
officers do not arrest accused unnecessarily and Magistrate do
not authorize detention casually and mechanically. In order to
ensure what we have observed above, we give the following

direction:-
(1) All the State Governments to instruct its police officers
not to automatically arrest when a case under Section 498-A of
the IPC is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above

flowing from Section 41, Cr.P.C.
(2) All police officers be provided with a check list
containing specified sub-clauses under Section 41 (1) (b) (ii);
(3) The police officer shall forward the check list duly filed
and furnish the reasons and materials which necessitated the
arrest, while forwarding/ producing the accused before the
Magistrate for further detention;

(4) The Magistrate while authorizing detention of the
accused shall peruse the report furnished by the police officer in
terms aforesaid and only after recording its satisfaction, the
Magistrate will authorize detention;
(5) The decision not to arrest an accused, be forwarded to
the Magistrate within two weeks from the date of the institution

of the case with a copy to the Magistrate which may be
extended by the Superintendent of Police of the district for the
reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of
Cr.P.C be served on the accused within two weeks from the
date of institution of the case, which may be extended by the
Superintendent of Police of the District for the reasons to be

recorded in writing;
(7) Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned liable for
departmental action, they shall also be liable to be punished for
contempt of court to be instituted before High Court having
territorial Jurisdiction.

(8) Authorising detentions without recording reasons as
aforesaid by the judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.”
(Emphasis supplied).
10.         Placing reliance on these decisions learned counsel submitted

that the impugned orders, issuing warrant of arrest and the process against

the petitioners are absolutely illegal and the same cannot be sustained in

the eyes of law.
4

11.         Learned counsel for the State as also learned counsel for the

opposite party No.2 have opposed the prayer and have submitted that

there is no illegality in the impugned orders passed by the Court below. It is
submitted by the learned counsel for the opposite party No.2 that after

lodging the FIR, the petitioners were evading the arrest and accordingly,

the requisition was given by the police Officer on 10.6.2014, stating therein

that the accused persons were evading the arrest and also removing their

property and accordingly, on the basis of which, the impugned order was
passed for issuance of warrants against the petitioners.

12.         Learned counsel also submitted that since the accused persons

were also removing their assets, in view of another requisition submitted by

the Police Officer, the process under Section 82 has also been directed to

be issued against the petitioners. It is accordingly, submitted that there is

no illegality in the impugned orders and no interference by this Court is
warranted in the said orders in exercise of power under Section 482 of the

Cr.P.C.

13.         After having heard the learned counsels for both sides and upon

going through the record, I find that upon the requisition given by the Police

Officer, the warrants were directed to be issued against the petitioners by

the Court below on 10.6.2014, directing for execution of the warrant within
thirty days. This order is the first order after recording the institution of the

case. Before expiry of the period of thirty days as aforesaid, i.e., on

2.7.2014 the requisition was again given by the Police Officer, for issuance

of the process under Section 82 of the Cr.P.C., again stating the same

facts as in the previous requisition, and without mentioning anything about
the execution of the warrants against the petitioners, whereupon the

process under Section 82 was also directed to be issued against the

petitioners.

14.         In my considered view, the order dated 2.7.2014 / 3.7.2014

cannot be sustained in the eyes of law, as the process under Section 82 of
the Cr.P.C., has been ordered to be issued before the expiry of the period

of thirty days as granted by the Court below, for execution of the warrants,

and that too, without getting the execution reports. Indeed this order also

has been passed in an absolutely mechanical manner, without recording

any satisfaction by the Magistrate. This brings us to the consideration of the
order dated 10.6.2014 issued by the Court below, issuing the warrants

against the petitioners. This order only shows that the same was issued on

the basis of the requisition made by the Police Officer, but there is nothing

in the order to show that the Magistrate had applied his independent mind,
5

while ordering for issuance of warrant.  No reason has been assigned in

the order for issuance of warrant, nor any satisfaction of the Magistrate is

recorded that issuance of the warrant was warranted in the facts of the
case. Even though learned counsel for the opposite party No.2 has pointed

out that in the requisition for issuance of warrant, it is mentioned that the

accused petitioners are evading the arrest, but it is apparent from the order

dated 10.6.2014 that even this reason has not been assigned in the said

order, which clearly shows that the order has been issued without applying
the  judicial mind by the Court below.

15.         In view of the aforesaid discussions, I find that the decision cited

by the learned counsel for the petitioners in         Raghuvansh Dewanchand

Bhasin’s    case ( supra  ) is fully applicable to the facts of this case and the

impugned orders cannot be sustained in the eyes of law.

16.         Apart from the above, the directions given by the Apex Court in
Arnesh Kumar’s       case ( supra ), also needs to be kept in mind by the Police

Officer while giving the requisition for issuing the warrant against the

petitioners or while exercising his power of arrest under the Code of

Criminal Procedure in the cases of the cognizable offences, which shall be

exercised in accordance with law.

17.         In view of the aforementioned discussions, the impugned orders
dated 10.6.2014 and 2.7.2014 / 3.7.2014 passed by the learned

Sub-Divisional Judicial Magistrate, Hazaribagh, in G.R Case No.1815 of

2014, are hereby, set aside. This application, along with the interlocutory

application, are accordingly, allowed in part.

( H. C. Mishra, J.)

B.S/

The post In 498A/406 case, Jharkhand HC rejects lower court’s NBW, and CrPC 82 proclamation for absconding persons appeared first on Men Rights India.

Thanks to a reader, we have this judgment of Patna High Court on topic of arrest and anticipatory bail. 

Even though the Supreme Court’s Arnesh Kumar vs State of Bihar & Anr. judgment has been in operation since July 2014, which clearly says that departmental action can be initiated against magistrates if they routinely grant accused to be placed in custody for offences with punishment less than 7 years; it seems that judgment has had no effect in state of Bihar so far.  Because in this case, the Patna HC has acknowledged the “very disturbing state of practice prevailing in the subordinate judiciary on the subject of granting of bail in a complaint case involving non-bailable offence inasmuch as when an accused appears in such a case, pursuant to even summon issued against him, his prayer for bail is routinely rejected and he is invariably taken into custody and kept detained.”

According to NCRB’s 2014 report on crimes in India, number of arrests under IPC 498A have not come down, and in fact they have grown somewhat, which means this judgment of SC has had no effect in curbing misuse of police power to arrest, and routine and mechanical grant of judicial custody by magistrates.

Another scam seems to be that it is routinely heard that the lower courts reject the anticipatory bail, but the high court grants bail when appealed.  If bail is a right and jail is an exception, it seems lower courts and high courts are holding two opposite views on that principle, and only the high courts have the right view.  But that doesn’t give any confidence to the public about judiciary.

Full judgment text below:

Akhilesh Rabani vs State Of Bihar & Anr on 14 May, 2015

       IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Criminal Miscellaneous No.43532 of 2014
       Arising Out of PS.Case No. -655 Year- 2013 Thana -PATNA COMPLAINT CASE District-
                                               PATNA
    ======================================================
    1. Akhilesh Rabani Son of Bhikhari Mahto, R/o Village Naya Tola, P.O.
       and P.S.-Bakhtiyarpur and District-Patna

                                                  …. ….   Petitioner/s
                                          Versus
    1. The State of Bihar

                                                  …. …. Opposite Party/s
    ======================================================
    Appearance :
    For the Petitioner/s     :   Mr. Mohammed Abu Haidar, Advocate.
    For the Opposite Party/s   : Mr. Tapeshwar Sharma(APP)
    ======================================================
    CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
    ORAL ORDER

3 14-05-2015 This is an application, made under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail by the petitioner, namely, Akhilesh Rabani, in connection with Complaint case No.655C of 2013 under Section 498A of the Indian Penal Code.

Perused the above application and materials on record including a copy of the order, dated 21.08.2014, passed, in A.B.P. No. 18747 of 2013, by the learned Sessions Judge, Patna, dismissing the said application for pre-arrest bail.

Heard Md. Abu Haidar, learned Counsel for the petitioner, and Mr. Tapeshwar Sharma, learned Additional Public Prosecutor, appearing on behalf of the State.

This case reveals a very disturbing state of practice prevailing in the subordinate judiciary on the subject of granting of bail in a complaint case involving non-bailable offence inasmuch as when an accused appears in such a case, pursuant to even summon issued against him, his prayer for bail is routinely rejected and he is invariably taken into custody and kept detained.

The present application seeking pre-arrest bail has arisen in a complaint case, wherein the prosecution of the accused-petitioner has been sought for under Section 498A of the Indian Penal Code.

On a query made by this Court, Mr. Md. Abu Haidar, learned Counsel, agrees that subsequent to the filing of the complaint aforementioned and taking of cognizance of offence under Section 498A of the Indian Penal Code, summon had been issued against the petitioner, but the petitioner, according to learned Counsel for the petitioner, could not appear in the complaint case aforementioned, because a Magistrate, in a complaint case, does not grant, as a matter of practice, bail if the complaint alleges commission of a non-bailable offence and, hence, ordinarily, an accused, placed in the position, as the present petitioner is placed, applies for anticipatory bail by taking recourse to Section 438 of the Code of Criminal Procedure.

                                From      a      bare     reading     of   the   provisions embodied         in   Section      438      of   the   Code   of   Criminal Procedure, it becomes abundantly clear that Section 438 of the Code of Criminal Procedure empowers the High Court as well as the Sessions Judge to issue directions granting bail to person(s) apprehending arrest and lays down that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction, under Section 438 of the Code of Criminal Procedure, that in the event of such arrest, he shall be released on bail and that Court may, after taking into consideration, inter alia, the nature and gravity of the accusation, the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence, the possibility of the applicant to flee from justice, and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail and where the High Court or, as the case may be, the Court of Sessions, has not passed any interim order under Section 438 of the Code of Criminal Procedure or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusations made against the applicant.

Sub-section (2) of Section 438 of the Code of Criminal Procedure clarifies that when the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including that the person shall make himself available for interrogation by a police officer as and when required, a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, a condition that the person shall not leave India without the previous permission of the Court and such other condition as may be imposed under sub- section (3) of Section 437 of the Code of Criminal Procedure, as if the bail were granted under that section.

Sub-Section (3) of Section 438 of the Code of Criminal Procedure further clarifies that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1) of Section 438 of the Code of Criminal Procedure.

Because of the fact that Section 438 of the Code of Criminal Procedure applies to a situation, wherein a person, apprehending arrest in connection with non- bailable offence(s), may seek bail, it logically follows that when an accused is summoned to appear in a complaint case involving commission of a non-bailable offence(s), he cannot contend, in the face of the provisions of Section 438 of the Code of Criminal Procedure, that he is likely to be arrested in connection with non-bailable offence(s) inasmuch as the obligation of such an accused person is to appear in the complaint case pursuant to the summon issued to him and he may, on such appearance, apply for bail.

Necessarily, therefore, a person, who is summoned to appear in a complaint case involving non- bailable offence(s), cannot claim to be apprehending arrest and cannot, therefore, seek that he be granted pre-arrest bail before he appears in the complaint case, though merely summon has been issued to him. Obviously, in such a case, his application for pre-arrest bail will not be sustainable.

The fact of the matter, however, remains, as agreed at the Bar, that an accused, such as, the present petitioner, would be sent to jail, as a matter of practice, when the offence alleged ▬ in the complaint case ▬ is a non-bailable offence even if the accused appears, in the complaint case, pursuant to a summon.

It needs to be, therefore, clarified that ordinarily and unless it is otherwise warranted in the given set of facts and circumstances of a case and the law relevant thereto, an accused shall not be remanded to custody merely because the case involves commission of non-bailable offence(s) if the accused appears, in a complaint case, pursuant to issuance of summon.

Coupled with the above, I may also pause here to point out that in a complaint case, when cognizance has been taken, no investigation is, ordinarily, required and it is the complainant, who has to prove his or her case on the basis of the evidence, which he or she may adduce by examining witnesses and such witnesses may be cross- examined by the defence.

No fruitful purpose would, thus, be served by detaining an accused in a complaint case, even if the case involves commission of non-bailable offence(s), unless there is credible material on record to show that accused may unduly influence the witnesses and/or desist them from giving evidence or may not be available for trial.

Unless such an extreme case is made out, as stand indicated above, a Magistrate shall, ordinarily, allow the accused to go on bail unless the offence falls within the exceptions as have been provided under Section 437 of the Code of Criminal Procedure itself, such as, a case of murder, where the case requires an order of commitment to the Court of Session.

Reverting to the case at hand, it may be pointed out that the petitioner, apprehending that he would be taken into custody and detained if he appeared in obedience to the summon issued to him, failed to appear in the complaint case and, in consequence thereof, non- bailable warrant of arrest has been issued to him.

Taking, therefore, a holistic view of the matter, particularly, the fact that a warrant of arrest has been issued against the petitioner ▬ though may be ▬ because of the default of the petitioner in appearing in the complaint case, in question, pursuant to the summon issued against him, this Court is of the view that in the peculiarity of the facts and circumstances of the present case, the petitioner needs to be given the benefit of pre- arrest bail.

Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the petitioner above-named shall, in the event of his arrest in connection with the case aforementioned, be released on bail of Rs. 10,000/-, with two sureties, each of the like amount, subject to the satisfaction of the Officer- in-Charge, Bakhtiyarpur Police Station, Patna. This direction for bail is further subject to the condition that the petitioner above-named shall, within the time fixed by the learned Court below, appear in the complaint case aforementioned and make himself available as and when directed to appear. This direction for bail is further subject to the condition that in the meanwhile, the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court.

It is also made clear that the learned Sessions Judge and the learned Chief Judicial Magistrate, in the State of Bihar, shall inform the judicial officers of their respective stations that in a complaint case, an accused is not to be detained in custody pursuant to issuance of summon against an accused merely because offence(s), alleged to have been committed, is a non-bailable offence(s) unless the granting of bail to such an accused is restricted or barred by law or the facts of a given case.

Upon taking cognizance of non-bailable offence, a Magistrate does not lose the jurisdiction to grant bail to such an accused provided that the offence does not fall within those categories, where Section 437 of the Code of Criminal Procedure prohibits granting of regular bail by a Magistrate or the peculiarity of the facts of the case does not legally permit granting of bail or when the case is required to be committed to the Court of Session.

This application for pre-arrest bail shall stand disposed of in terms of the above observations and directions.

Let a copy of this order be sent, forthwith, to the Officer-in-Charge, Bakhtiyarpur Police Station, Patna.

Send also a copy of this order, forthwith, to the Superintendent of Police, Patna, by fax.

(I. A. Ansari, J.) Mkr./-

U        T

The post Patna HC acknowledges bail scam in IPC 498A, grants anticipatory bail under CrPC 438 to husband appeared first on Men Rights India.

We have recently started online meetings/webinar where questions from our members are taken in real-time and answered live.  These are being conducted on Anymeeting platform: http://anymeeting.com/.  All you need is a computer and internet connection to join these meetings.  Having a working audio mic is even better since it allows you to speak one to one (when your question is taken up).

We conducted 2nd online discussion yesterday night, and both meetings have been successful.

People can put their questions in the chat box (see bottom left of above sample screenshot), and presenters (as of now I) will answer the questions using audio.  One at a time, each person’s mic (whose question being discussed) is enabled while other participants can listen in.  Our plan is to get more presenters once in a while who are specialist in a particular topic, to talk about that or their own experiences in dealing with their situation etc.

This facility is restricted only to members of our groups, because otherwise it is difficult to control who might enter the meeting, given that this site is visited by many.  We collect photo id and mobile phone documentary proofs for joining WhatsApp group, and ask people to fill up a form before joining Facebook group.

The details of upcoming meetings will continue to be shared only in WhatsApp and Facebook groups.

Join WhatsApp or Facebook group

The post FREE Live Webinar/Online Meetings for WhatsApp and Facebook members appeared first on Men Rights India.

This May 2015 judgment of Mumbai Bandra family court is the first in India which in an interim child custody/visitation order, has asked both mother (petitioner) and father (respondent) to make a parenting plan, and has created a shared parenting plan based on those submitted by both of them.  It has also explicitly refers to benefits and necessity of Shared Parenting in child custody matters, and to December 2014 recommendations of Law Commission on shared parenting.

Following are the main points of the judgment:

1. It has divided the interim custody of daughter for 6 months of the year each to father and mother.  There is another Sep 2013 judgment of Karnataka HC which did something similar, but that order was not based on creating a shared parenting plan and did not refer to that concept at all.  This judgment creates a new precedent by actually putting child’s interests as paramount, rather than doing lip service to it by granting custody to mothers, and relegating fathers to their ‘sole duty’ of maintenance providers.

2. The final shared parenting plan was evolved after submitting of parenting plan by both mother and father to a marriage counsellor, and then a common parenting plan was evolved by the court.  This is interesting because usually in family courts we see only mediators, who are more of lawyers than marriage counsellors of any kind.

3. Apart from several other practical directions on how to divide long vacations/holidays time, intimation of school reports to both parents, sharing medical details of child etc.

4. Child’s surname can’t be changed without court order or permission of both parents.  Also for removal of child from school, the non-custodial parent will be informed.

5. To resolve any on-going custody or access disputes in working of the arrangement, instead of parties approaching court every time as is the norm so far, it has created a mediator who will be paid Rs 5000 yearly by the parents, and that mediator seemingly is from a child welfare and mental health initiative Muskaan, and I am mentioning that to ensure that you don’t agree to appointment of some “committed to the cause of women” or outright feminist as your child’s counsellor/mediator.

6. Since both mother and father are working, it has ordered child support costs to be shared by both of them.  The money is to be deposited into an account in name of child.  Opening account in name of child is again in line with our recommendation to law commission, and was mentioned by law commission in it’s report too.  Otherwise the common situation normally is of maintenance being paid to mother who usually has child’s custody, but there is later no account of whether the money is being spent on child or not.  An account in child’s name will make it difficult for any parent to misuse the funds.

7. If any parent’s actions results in loss of access to child to other parent, then that parent has to pay  compensatory cost of Rs.1000/- for each day of loss of access to the other parent.

Note that this is an interim order on child custody (which in reality all custody orders are because they can be modified based on change of circumstances), but usually once the child is comfortable in a certain arrangement, the court will not disturb it in the final custody order.  So one should focus energies on interim order stage, rather than trying for appeals to interim orders, going to high court, and such ‘techniques’ which only increase compensation for lawyers.

The details of shared parenting plan are at the end of judgment.  Names and other details of parties have been removed to protect privacy.

Full text of judgement below:

                                1                            A-932/2015

    IN THE FAMILY COURT MUMBAI AT BANDRA
               INT. APPLN. NO.60 OF 2015
                                IN
             PETITION NO. A- 932 OF 2015

Mrs A   Petitioner

     Vs

Mr T  Respondent

            CORAM : H. H. J. SHRI P. L. PALSINGANKAR

            DATED   : 27TH MAY 2015

            FURTHER ORDER BELOW EX. 9

     This is a first occasion in History of Family Court Mumbai

that by judicial order this court is handing over a parenting plan to

parties to follow as an interim measure.  The  parties are fighting

over the issue of custody of daughter M, who is now presently in

physical custody of the respondent. The petitioner has prayed for

interim custody of the daughter. The respondent has opposed it.

2              By way of an order passed below Ex.9, this court has

directed the respondent to provide over  night access of the daughter

                    th
on 11  May 2015 to 16  May 2015 and ultimately directed both the
      th
parties to prepare a joint parenting plan in letter and spirit and submit

          th
the same on 18  May 2015.
                                                 th
3              In compliance of that order dated 8  May 2015, both the
parties have endeavored to prepare a parenting plan of their own,

which is at Ex. Nos.23 and 24.

             2                            A-932/2015

4             Both the parties were directed to appear before the

Marriage Counselor with copy of their respective parenting plan and

fine tune  the proposal to have a single final document of parenting

plan.  Accordingly,   the   parties   appeared   before   the   Marriage

Counselor but the consensus could not be arrived, so the parties

were heard, through their learned counsels, on the point of parenting

plan.

5             This is a unique case and may be this is a unique order;

so far as Family Court, Mumbai is concerned. I say so because this

is the first attempt of Family Court, Mumbai to consider the proposals

of   parenting   plan   submitted   by   the   parties   and   prepare   a

comprehensive  parenting plan as an interim measure till Petition No.

A-932 of 2015 is disposed of. In other words, by way of this order,

Family Court Mumbai will be deciding, rather providing parenting

plan to the parties by way a judicial order. So this is an unique

occasion.

6             The only question that arises for my determination is as

follows:

        POINTS                                    FINDING

1) What should be interim custody access visitation                   As per final
    arrangement for the daughter M in the form                    order
    of parenting plan?

2) What order?                                                        As per final
                                         order
      R E A S O N S

7             Both the parties are directed to comply with the parenting

plan annexed with this order as Annexture ‘A’ ,for the reasons stated

hereinafter .

                                3                            A-932/2015

8              The learned counsel for the petitioner submitted that

respondent is a busy doctor and hence not fit to hold interim custody

                                                       th
of the minor daughter. It was also argued that till 14  February 2015
daughter M was with the petitioner-mother. My attention is then

drawn to various aspects of this litigation like instances of mother-in-

law shouting at the daughter, mother-in-law   in fact holding the

custody of the daughter in absence of the respondent and so on.

The learned counsel for the respondent submits that respondent has

fixed schedules, as against the petitioner who is a nurse by

profession has shift duty round the clock. It is argued that the

respondent being a doctor had acquaintance with one Smita Kadam

and there is no such relationship. It is argued that mother of the

respondent is better placed to take care of the minor daughter.

9              The minor daughter was produced before the Marriage

Counsellor Smt Veena Athavale and the report of child interview is at

Ex.22. The Marriage Counselor has recorded   her observation

regarding the interview. The daughter wants mother to be back to

home at Chembur residence, but the Marriage Counsellor observed

that the petitioner is not so comfortable with that proposition. The

Marriage Counsellor also observed that mother-daughter relationship

is healthy. The Marriage Counsellor also suggested that the bond

between the daughter and the parent is healthy and therefore access

of the daughter to mother needs to be given regularly to strengthen

the said bond.

10             Both the parties had taken pains to prepare parenting

plan and I appreciate their efforts. Before referring to the proposals in

the parenting plan, it would be appropriate to record my finding

             4                            A-932/2015

regarding necessity of directing the parties to have parenting plan

and thereby making both of them equally responsible for upbringing

of the daughter. After the matter was heard before this court and the

order now being dictated, there is recent legal development and I

would like to refer to that document. The Law Commission of India

                    th
has sent its its Report NO.257 on 25  May 2015 and suggested
reforms in guardianship and custody laws in India. The Law

Commission has proposed amendment in Hindu Minority and

Guardianship Act,1956 and Guardian and Wards Act,1890 by

observing that law must accept the concept of joint custody and

shared parenting for the welfare of the child. The Law Commission

headed by Honourable Justice  A P Shah  and other members of the

Law Commission have referred to various judgments of the Hon’ble

Supreme Court and various Hon’ble High Courts and   literature

available on the point and  suggestions which were received by the

Law Commission from the members of the society and it   has

prepared a report proposing that joint custody should be the norm

and presumption . No doubt, the said proposed amendments are in

pipeline. They are just in the form of suggestions and the law is yet

not been crystallized by legislative amendment in Parliament, but

that will not affect this court to refer to that document which is

relevant piece of material while deciding  aspect of parenting plan .

11            The Law Commission in its recent report referred above

in Para 3.3.1 to 3.3.5 has given certain reasons for adopting joint

custody in India. I would like to reproduce that reasoning adopted by

the Law Commission in this order.

                                5                            A-932/2015

      3.3.1.First, with  rapid  social and economic change, conjugal
     and  familial  relationships are  becoming more complex
     and so are  the  conditions of  their dissolution. As these
     social changes that affect family life escalate, we need to
     update the laws governing the family relationships, during
     and  after the  marriage. At  present, our legal framework
     for custody is based on  the assumption that custody can
     be vested with  either one of  the  contesting  parties and
     suitability is determined in a  comparative manner. But
     ,just as the basis for dissolving marriage has shifted over
     time, from fault-based divorce to mutual consent divorce,
     we need to think about custody differently and provide for
     a boarder framework within which divorcing parents and
     children  can  decide what  custodial arrangement works
     best for them.

      3.3.2 Second, the judicial attitude towards custody matters has
     evolved considerably. As legal scholar and activist, Flavia
     Agnes notes,

     In modern day custody battles, neither the father, as the
     traditional natural guardian, nor the mother, as the
     biologically equipped parent to care for the child of
     tender age, are routinely awarded custody. The principle,
     best interest of the child takes into consideration the
     existing living arrangements and home environment of
     the child. … Each case will be decided on its own merit,
     taking into account the overall social, educational and
     emotional needs, of the child.

      3.3.3 But despite this development in judicial attitude, we have
     ignored the idea that under certain favourable
     circumstances, the best interest of the child could also
     result  from  simultaneous  association with both  the
     parents. Since there is no inherent contradiction between
     pursuing the best interest of the child and the concept of
     shared custody, the law needs to provide for this option,
     provided certain basic conditions are met.

             6                            A-932/2015

       3.3.4 Third, as already mentioned, a number of institutions,
    including the judiciary, have already started engaging
    with the idea of shared custody. We have referred to
    some of these recent developments above. But currently
    this  idea  is  being put  into  practice in  a  haphazard
    manner. There are several components to the idea of
    shared custody, such as clear determinants of the best
    interest  of  the  child  standard, the role of  judges  and
    mediators, parenting plans and so on. These must be
    laid down in the law, in order for shared custody to be a
    viable option that facilitates divorcing parents to mutually
    agree on the preferred custodial arrangement, without
    compromising on the welfare of the child.

       3.3.5 In the legal systems of several Western countries that we
    have reviewed in this chapter, there is a presumption in
    favor of joint custody, and sole custody is awarded only in
    exceptional circumstances. We have already referred to
    the  inequalities  in  parental roles, responsibilities  and
    expectations that exists in our country. Therefore, we are
    not in favor of the law placing a presumption in favour of
    joint custody. As opposed to the case of guardianship,
    where we have recommended shared and equal
    guardianship for both parents, in this case, we are of the
    view that joint custody must be provided as an option that
    a decision-maker can award, if the decision-maker is
    convinced that it shall further the welfare of the child.

If we peruse these reasons, then the Law Commission has assigned

the reasons like social economic change in society, judicial attitude

towards custody matters as recorded by legal scholar Flavia Agnes

in her book, number of institutions including judiciary accepting the

idea of share custody and practices followed in western countries.

12            The Law Commission has mentioned in its Re-para 5.8

that there are several key areas that should be addressed in a

                                7                            A-932/2015

custody order or parenting plan and these are common areas of

dispute, so it is best if there are clear rules specifying each parent’s

role in upbringing of the child. The areas are (a) medical- like

hospitalization, non-emergency surgical procedure to be performed

on the child, (b) education- choice of school, enrichment classes,

courses etc., (c) religion, (d) extra curricular activities and travelling

etc.

13             In the recent report, the Law Commission has also taken

the note of parenting plan and observed in the following manner. I

quote:

      5.9     A number of jurisdictions require divorcing parents (either
     jointly or individually) to submit a shared parenting plan to
     the court. The plan must address major areas of decision
     making, including: the child’s education; the child’s health
     care; religious upbringing; procedures for resolving
     disputes between the parties with respect to child-raising
     decisions and duties; and the periods of time during
     which each party will have the child reside or visit with
     him, including holidays and vacations, or the procedure
     by which such periods of time shall be determined. Some
     jurisdictions provide additional guidance regarding
     communication (between parents and between the child
     and the non-custodial parent); transportation to and from
     the other parent’s residence; what to do if a parent
     wishes to relocate; how to change scheduled parenting
     time; and exchanging information about the child. The
     parenting plan itself is not a legal document; it must be
     approved by a court to have legal effect.

While the proposing amendment in Guardians and Wards Act in the

form of Guardians and Wards Act (proposed), following objectives

are suggested and they are as under:

             8                            A-932/2015

       a)     ensuring that the child has the benefit of both parents
    having a meaningful involvement in his life, to the
    maximum extent consistent with the welfare of the child;

       b)     ensuring that the child receives adequate and proper
    parenting to help achieve his full potential;

       c)     ensuring that the parents fulfill their duties, and meet their
    responsibilities concerning the care, welfare and
    development of the child;

       d)     giving due consideration to the changing emotional,
    intellectual and physical needs of the child;

       e)     encouraging both the parents to maintain a close and
    continuing relationship with the child, and to cooperate in
    and resolve disputes regarding matters affecting the
    child;

       f)     recognizing that the child has the right to know and be
    cared for by both the parents, regardless of whether the
    parents are married, separated, or unmarried; and

       g)     protecting the child from physical or psychological harm
    or from being subjected to, or exposed to, any abuse,
    neglect or family violence.

These objectives thus underline the proposition that the child must

get best of both worlds and not just the benefit from any one parent.

In fact, the Law Commission has proposed one new definition of

“ Joint custody”        in the Guardians and Wards Act which the

Commission has defined as under:

19C. Definitions.
       For the purpose of this Chapter:–
(a)    “Joint custody” is where both the parents:–

                                9                            A-932/2015

i.     share physical custody of the child, which may be equally
shared, or in such proportion as the court may determine for the
welfare of the child; and

      ii.     equally share the joint responsibility for the care and
control of the child and joint authority to take decisions concerning
the child; and

(b)    “Sole custody” is where one parent retains physical custody
and responsibility for the care and control of the child, subject to the
power of the court to grant visitation rights to the other parent.

     The face of child custody arrangements is changing. A
     number of countries across the globe have adopted a
     preference for shared parenting systems over sole
     custody as a post-divorce arrangement with respect to
     children. In the West, this trend has arisen largely in
     response to changing familial roles (male care takers
     taking on more child rearing responsibilities) as well
     psychological studies revealing that the involvement of
     both parents in child rearing is preferable to sole
     custody arrangements.15 Studies indicate that children
     generally fare better when parents share custody, and
     some jurisdictions in some countries have a legally
     prescribed presumption of joint custody. 16 However,
     scholars and courts also caution that a presumption of
     joint custody can run contrary to the “best interests of
     the child” standard, especially in cases of domestic
     violence, where battered women may agree to joint
     custody out of fear of further violence.

14             The Commission after taking into consideration various

factors had proposed the following parameters while passing order

for joint custody and they are as under:

(1)    In making an order for joint custody under Chapter IIA, the
      court shall have regard to the following, namely:–
      a.      whether the parents will be able to cooperate and

            10                            A-932/2015

    generally agree concerning important decisions affecting
    the welfare of the child;

       b.     whether each of the parents is willing and able to
    facilitate, and encourage, a close and continuing
    relationship between the child and the other parent;

       c.     whether the parents are able to jointly design and
    implement a day-to-day care plan that fosters stability;

       d.     the maturity, lifestyle and background (including culture
    and traditions) of the child and parents, and any other
    characteristics that the court thinks arerelevant;

       e.     the extent to which each parent has fulfilled,or failed to
    fulfill, his responsibilities as a parent;

       f.     the extent to which the parents are able or unable to find
    a reasonable way of working together;

       g.     the extent to which the higher income parent is willing to
    support in creating similar standards of living in each
    parental home;

       h.     the child’s existing relationship with each parent, siblings,
    and other persons who may significantly affect the child’s
    welfare;

       i.     the needs of the child, giving due consideration to other
    important relationships of the child, including but not
    limited to siblings, peers and extended family members;

       j.     any family violence involving the child or a member of the
    child’s family;

       k.     whether the child is capable of forming an intelligent
    preference; and

       l.     any other fact or circumstance that the court thinks is
    relevant.

                                11                           A-932/2015

No doubt, this court has placed heavy reliance upon the oven fresh

                                   th
report of Law Commission dated 25  May 2015 in this order which is
         th
passed on 27  May 2015, but there are reasons to place heavy
reliance. The time has come to give up the archaic mind set which

we adopted since British era to think that only one parent is better

than other parent to take care of the child. The Guardians and Wards

Act was passed in 1890, almost 125 years back. The Hindu Minority

and Guardianship Act was passed by our Parliament almost 60-70

years back. The society is evolving at the fast space. The new India

is adopting new ethos and new concepts. In 1890 when the

Guardians and Wards Act was passed, may be Indian woman may

not be a working woman but now the woman like petitioner who is

working as a nurse and earning her own livelihood and protecting

her self-respect even when there are alleged incompatibility between

the petitioner and the respondent. The standard set in 1890 by the

British era cannot be made applicable directly to the litigants of this

  st
21  century, who lives in metro city like Mumbai. Therefore, a time
has come to change  our  mind set of finding out who is better parent

than to adopt a new thinking as to find out how these two parents

can behave in a better way; so that the child can have best from both

of them and by this view, the parties were directed to prepare a

parenting plan. I am happy that both the parties with guidance of

their learned counsels have endeavored to prepare parenting plan

and submitted in the court. So by their act of submitting their

parenting plan, they have indirectly consented for shared parenting

or joint custody. No doubt, the petitioner wants exclusive custody of

the daughter with visitation rights to the respondent, whereas the

            12                            A-932/2015

respondent thinks that he is supremely competent to hold custody of

the daughter and the petitioner is incompetent to hold custody of the

daughter. I do not believe their statements, but I do believe that they

are well qualified in the field of medicine and medical service. They

are fully competent to hold joint custody of the daughter and to

support their daughter in their own way by dividing the custody.

15            The Hon’ble Supreme Court in the case of Nil Ratan

Kundu Vs Abhijit Kundu, AIR 2009 SC 732 has said that the welfare

of a child is not to be measured merely be money or physical

comfort, but the word welfare must be taken in its widest sense that

the tie of affection cannot be disregarded. So considering this

judgment referred above, the Hon’ble Supreme Court has underlined

the proposition that wealth of the husband has nothing to do with his

competency  to hold the custody and if that principle is applied here,

then merely because the respondent is a busy doctor and having

ability to generate more income cannot claim to be better parent. So

considering the above judgment I do feel that these parties can

share the custody. The petitioner-wife has proposed that she should

have the physical custody of 183 days and the daughter shall remain

with the respondent-father for 182 days. This can be accepted

provided the petitioner-mother shall relocate herself to the residential

area, where the respondent and the daughter now are staying. While

dictating this order, learned advocate for the petitioner submits that

petitioner has already relocated herself to Chembur near the house

of the respondent. So in that case it would be appropriate to direct

that physical custody of the daughter M be shared equally by

these two parties and therefore I direct that the daughter shall

                                13                           A-932/2015

                                                          st
remain in physical custody of the petitioner from 1  July to 31                      st
                    st
                                         th
December and from 1  January to 30  June the daughter shall
remain with the respondent. Therefore, appropriate changes in

parenting plan are made. When the daughter will be in the custody of

the mother, the father will have regular access on every Sunday

between 10.00 a. m. to 6.00 p. m. Likewise, when the daughter is in

custody of the father, the mother shall have regular access likewise.

So appropriate changes are made.

16             The parties have proposed for access to the daughter

during holidays. Clause (c) of the parenting plan deals with access

arrangement during holidays. In parenting plan prepared by the

petitioner, she proposed that the daughter be with her on every such

holidays between 3.00 p. m. to 7.00 p. m. I do not think this

arrangement is suitable for the daughter, rather it will tax the

daughter   unnecessarily.   Therefore,   appropriate   distribution   of

holidays amongst these parties so far as appropriate changes in

parenting plan are suggested.

17             So far as long vacations are concerned, both the parties

shall share long vacations equally. The first half of such long

vacations like summer, Christmas and Diwali vacation, the daughter

will be with the petitioner and in the second half the daughter will be

with the respondent. The parties shall jointly take major decisions

like non emergency health care, religion, upbringing, extra curricular

activities and obtaining passport etc,.

18             The petitioner-wife has proposed that her monthly

income is Rs.35,000/- and the respondent-husband’s income is

Rs.1,50,000/-. The respondent-husband in his parenting plan has

            14                            A-932/2015

proposed that his gross income is Rs.1 lakh and the child’s support

column is kept blank. I assume that that the respondent did not want

any contribution from the petitioner for maintenance of the daughter.

This is not fair for the child. Both are working and earning; so both

should contribute for upbringing of the daughter. The petitioner has

suggested that there should be new account in the name of the

daughter, where money can be deposited. I think this arrangement

will work. Therefore, the petitioner and the respondent shall open a

joint bank account where the amount can be deposited and utilized

for the necessities of the daughter. So, I direct both the parties to

open a new joint bank account in their name for the benefit of the

daughter. Considering the difference in income of the petitioner and

the respondent, I think that the respondent shall shoulder lion share

for expenses, whereas the petitioner shall also contribute. Therefore,

I direct that respondent shall deposit Rs.10,000/-every month in the

newly opened joint bank account from June 2015 onwards and the

petitioner shall also deposit Rs.5000/-every month in the newly

opened joint bank account. All the expenses of the daughter like

education, medical, medical insurance, extra curricular activities,

recreational activities be borne from this joint account. The parties

shall apply before the court before withdrawing the amount from this

account. For non compliance of access, the petitioner has proposed

cost of Rs.5000/- if there is any loss of access. The respondent has

not suggested any such amount towards cost. I think a token amount

of Rs.1000/- would remind the parties not to flout the order of the

court.   So,   I   direct   that   the   parenting   plan   should   include

compensatory cost of Rs.1000/- for each day of loss of access.

                                15                           A-932/2015

19             The concept of parenting plan, joint parenting, shared

parenting, child support by way of parenting plan is a new concept

not only to the parties, but also to the advocates practicing in the

Family Court Mumbai. No doubt, it is also a new concept for the

Family Court Judges also. The Hon’ble High Court has approved

draft parenting plan proposed by the Family Court, Mumbai and that

now plan is available on the website. So the concept of joint

parenting plan has found favors with the Hon’ble High Court. With

this recent report of the Law Commission, the legal fraternity all over

India has made up its mind to accept this concept of joint parenting,

but it will take time to digest this idea. Therefore, there will be

problems in working this parenting plan for these parties. So in case

of any disagreement or non compliance of any term, parties need not

come to the court every time, rather they were asked to suggest the

name of one mediator, who can find the way in case of

disagreement. Parties have not suggested any name,  I, therefore,

direct   that   Ms   F,   Psychiatric   Social   Worker   from

MUSKAAN, an undertaking of Tata Institute of Social Science is

appointed as a mediator who shall sort out any issue regarding

disagreement or non compliance and the parties shall be bound by

that suggestion. The mediator may seek opinion of the court in

writing. All these observations made hereinabove are incorporated in

final parenting plan attached to this order as Annexture A. The

parties shall comply with this parenting plan till the rights of the

parties regarding custody access, visitation rights over the daughter

M are finally decided after a full trial.

            16                            A-932/2015

20            A copy of this approved parenting plan with Annexture A

be supplied to both the parties free of cost and also to the mediator

Ms F.

21            The order is dictated and declared in the open court in

presence of both the parties and learned counsel for the petitioner.

22            The parties to take note of this order and collect the

parenting plan from the office of this court.

23            The order is explained to both the parties.

                             Sd/-
                    ( P. L. Palsingankar )
                                   Judge,
Dated: 27  May 2015                           Family Court No.3 Mumbai
  th

Encl: Annexture ‘A’

                                17                           A-932/2015

                   Parenting Plan                     Annexture ‘A’

The numbers of divorce cases are rising, more and more couples have been
approaching family court for divorce, resulting in rise of bitter child custody
and access matters.

A serious need is therefore felt for the introduction of a Parenting Plan which
will help reduce the burden of courts and counselors to a great extent and
will also help in speedy disposal of court cases. Parenting Plan shall also
bring out an ease between the couples who are undergoing separation.

During the initial stage itself a copy of parenting plan can be provided to the
couples by the court counselors making them aware and help the parents
mutually draw a suitable parenting plan agreeable and acceptable to both
the parents and which would cover  aspects related to the child custody and
access in the best interest and welfare of the child.

When children know that their parents have talked about what’s best for
them, and know that a plan is written down, they are likely to feel cared for
and safer. Children can predict the shape of their lives and know that parents
will keep the adult issues between adults (the allegations and arguments
between the couple entering the parenting plan would be at minimum),
Children will be able to manage the stresses and fears of the separation
much better and they may not be required to visit court for access or for
hearing that often.

The courts can direct the couple to draw a parenting plan (just like consent
terns) within a period of sixty (60) days and also pass appropriate orders
based on the parenting plan.

A  Parenting Plan     or  Custody Agreement        is required by the family court
when parents divorce or separate. A Parenting Plan allows parents to avoid
future conflicts in dealing with responsibilities relating to the children.
Without specific agreements around these responsibilities disputes can arise
and litigation may be needed to resolve these issues.

Divorce and separation are painful for everyone involved–particularly
children. At this challenging time children need support, love and contact
with both parents.
Some certainty about the future is also very important for everyone. A
written parenting plan, worked out between parents, will help clarify the
arrangements needed by the parents to put in place to care for the children.
It will help everyone involved to know what is expected of them and it will be
a valuable reference as time passes and circumstances change.

If the standard parenting plan by the court is agreed by parties before the
court hearing, it is called “stipulated”. Court can approve the stipulated
parenting plan without court hearing.

            18                            A-932/2015

A standard parenting plan by the Court puts the best interests of the child
first. It is drawn up in good will with a shared commitment to the children
and their future firmly in mind (just like consent terms).

In developed nations most of the states, there is a law required that court-
ordered parenting plans must set forth the        minimum amount       of parenting
time and access a noncustodial parent is entitled to have.

A parenting plan is a written agreement between parents covering practical
issues of parental responsibility approved by the Court.

Parenting Plan will detail practical decisions about children’s care in such
areas
as:

      Parenting Time (physical custody)
      Major Decision Making (legal custody)
      Visitation / Access
      Transportation and Exchanges
      School Holidays, Vacations and Festivals
      Child Support / Maintenance
      A Dispute Resolution Process
      Schools Attended and Access to Records
      Physical and Mental Health Care
      Contact Information, Relocation
       Activities and School functions
      Overnights and Visitation
      Communications and Mutual Decision-Making
      Mediation
      Medical Insurance
      Contact with Relatives and Significant Others

Parents normally can make variations to the court standard parenting plan or
develop a different custom plan if the judge approves the changes.

Parents later can modify the existing parenting plan by filing a new request
with a court when circumstances have changed.

A parenting plan can take any form, however it must be made free from any
threat, duress or coercion. It must be in writing and signed and dated by
both parents.

If both parents agree on arrangements, Parents can submit parenting plan
(just like consent terms) to the Family Court and Court can pass an
appropriate order based on the parenting plan, giving it the same legal

effect as an order made after a Court hearing. Parenting Plan approved by

                                19                           A-932/2015

Court would be one form of consent order issued by the Court.

If parents cannot agree on arrangements for children they may need to have
the Family Court decide and issue a Parenting Order.
In deciding parenting arrangements the Court must always consider:
✦ the best interests of the child
✦ the extent to which both parents have complied with their obligations in
relation to the child, which may include those set out in a standard parenting
plan (As follow).
           Standard Parenting Plan

  STATE OF M    AHARASHTRA     F AMILY  C OURT  N .3
                                     O
                                                M UMBAI

PERMANENT PARENTING PLAN ORDER                           P ETITION N 0:
                                                 A-932   2015
                                                        OF

   a  P ROPOSED   a  A GREED   O RDERED BY THE  C OURT    ___________________
                  a
D ATE  :
                                                 DIVISION  _____

P ETITIONER    (Name: First, Middle, Last)  R ESPONDENT   (Name: First, Middle, Last)

Mrs ,                  Mr

A DDRESS  :  ,  A DDRESS  : 
     O
                 Father
  a
     Mother
   RS
               R
                                   043
                                        Mother
                                                            Father
                                   a                    a
                                                          R
                                     RS
       The mother and father will behave with each other and each child so
as to provide a loving, stable, consistent and nurturing relationship with the
child even though they are separated / divorced. They will not speak badly
of each other or the members of the family of the other parent.  They will
encourage each child to continue to love the other parent and be
comfortable in both families.

This    plan      a    is a new plan.
     a modifies an existing Parenting Plan dated      ________________.
     a    modifies an existing Order dated   _____  Family / High Court

            20                            A-932/2015

    Child’s Name                                     Date of Birth
Ms M                                                         

Parenting Plan Note    :

      Tick that is applicable / Strike out—– what may not be applicable.

       I.     RESIDENTIAL PARENTING SCHEDULE

A.     RESIDENTIAL TIME WITH EACH PARENT

The Primary Residential Parent (Custodial parent ) is     mother and father

Under the above schedule each parent will spend the following number of
days with the children:

       Mother 183 days                    Father 182 days

                                           st
       Child M shall stay (physical custody) with the mother from 1  July to 31 st
                                            st
December and thereafter the child M shall stay with the father from 1  January to
  th
30  June and so on in the above manner till disposal of the petition.

B.     DAY-TO-DAY SCHEDULE

The mother /  father shall have responsibility for the care and access of the

child or children except at the following times when the other parent shall
have responsibility

and access :

     From    ______N. A._______     to   _____N. A.______

  Day and Time     Day and Time
     The respective parent shall take care of day to day schedule of the child while the child is in their custody as per
     above arrangement.

                                21                           A-932/2015

              every  week                   every   other   week             other:
                         
                                                                 
     _____________________.
    (Advisable two days weekday access 2 hours each during the week at locals of thet child)
The non custodial parent shall have access to the child on every Sunday
between 10.00 a. m. to 6.00 p. m. The non custodial parent shall pick up the
child at the gate of the custodial parent at 10.00 a. m. on every Sunday and shall
drop back the child at 6.00   p. m. on the same day. The non custodial parent
during relevant period shall have telephonic access every day, if necessary at
7.00 p. m.

The other parent shall also have responsibility for the care and access of the

child or children at the additional parenting times specified below:
     From        _______________________         to     ______________________
                          Day and Time                Day and Time
                                                                 
                          
              every   week                  every   other   week             other:
     ______________________.
This parenting schedule     shall begin on 1  July and end on 31  December where the
                                 st
                                                      st
                                   st
                                                           th
child will be in custody of the mother and on 1  January and end of 30  June where the
child will be in custody of the father.
    Parties are directed that non-custodial parent will be involved in
      
curricular and extra curricular activity, in following–
      Swimming class/ Dance Class/ Tuition, Sports,

      From       _______________________          to    ______________________
                          Day and Time                Day and Time

The petitioner or the respondent shall take care of extra curricular activities of
the child whenever the child is in their custody for six months as per above

referred order.

C.     HOLIDAY SCHEDULE AND OTHER SCHOOL FREE DAYS

Indicate if child or children will be with parent During FESTVALS EVERY year:

                    MOTHER  (tick)              Timings                       FATHER
(tick)
Parsi New Year                                3.00 pm – 6.00 p.m.        a
Dussera                     a                 3.00 pm – 6.00 p.m.
Diwali                        See note      Below “G”
26  Jan Republic Day                          3.00 pm – 6.00 p.m.        a
  th
Holi                        a                 3.00 pm – 6.00 p.m.
Mahashivratri                                 3.00 pm – 6.00 p.m.        a

            22                            A-932/2015

Janmasthami                 a                 3.00 pm – 6.00 p.m.
Rakshabandhan Day                             3.00 pm – 6.00 p.m.        a
Mother’s Day                a                 3.00 pm – 6.00 p.m.
Father’s Day                                  3.00 pm – 6.00 p.m.        a
  th
15 August                   a                 3.00 pm – 6.00 p.m.
Independence Day
Bhaubeej                                      3.00 pm – 6.00 p.m.        a
Ganpati                     a                 3.00 pm – 6.00 p.m.
Navratri                                      3.00 pm – 6.00 p.m.        a
Eid                         a                 3.00 pm – 6.00 p.m.
Mother’s Birthday           a                 3.00 pm – 6.00 p.m.
Father’s Birthday                             3.00 pm – 6.00 p.m.        a
Child’s Birthday            On Odd Years      3.00 pm – 6.00 p.m.        On Even Years
  (Advisable to Choose any 9 days during the year)
Other School-Free Days      ______________________________________

Other Significant Family Occasions:_______________________________________
____________________________________________________________________
        (Choose any 3 days during the year)

A weekend access / holiday shall begin at 6:00 p.m. on the night preceding
the holiday and end at 6:00 p.m. the night of the holiday, unless otherwise
noted above.

D.  Long Festival Weekend Holidays  (           If applicable   Ganpati / Navratri /
Ramzan / Diwali / Christmas)
The day to day schedule shall apply except as follows      : ——–
beginning _________
See Note Below

E.  Other agreement of the parents:    ——–

.      CHRISTMAS VACATION.  See Note Below

The day-to-day schedule shall apply except as follows: ______________________
___________________________________________beginning ________________.

G.     SUMMER VACATION  .      See Note Below

The day-to-day schedule shall apply except as

follows:_________________________ _______________________________ beginning
____________________.
        

Is written notice required?     Yes    No.    If so, ________ number of days.
Note: The access denied / deprived by the custodial parent shall be
compensated within _____ days of receiving the notice / request from the
non-custodial parent.

Note:     The child will be with the petitioner-mother for first 50% of long

                                23                           A-932/2015

vacations like summer, Diwali and Christmas vacations, whereas the child will
be with the respondent-father for second half of these long vacations. This
arrangement is irrespective of 50% share of access by each parent.

H.     T RANSPORTATION       A RRANGEMENTS
The place of meeting for the exchange of the child or children shall be:       at
the gate of house of respective parent.

Payment of long distance transportation costs       (if applicable):    mother
                                                                      
father   both equally.
       
Other arrangements: ____________________________________________________

A parent he or she must make reasonable transportation arrangements to
protect the child or children while in the care of that parent.

II     SUPERVISION OF PARENTING TIME               (If applicable)
I   Check if applicable
Supervised parenting time shall apply during the day-to-day schedule as
follows:
I  Place: _______________________________________________________________.
I  Person or organization supervising:
________________________________________.

                                       
                                                 
    Responsibility for cost, if any:      mother    father   both equally.
J.     OTHER
The following special provisions apply :
_____________________________________________________________________________
_____________________________________________________________________________
__________________________________________________     .

                   II.    DECISION-MAKING

A.     DAY-TO-DAY DECISIONS

Each parent shall make decisions regarding the day-to-day care of a child
while the child is residing with that parent, including any emergency
decisions affecting the health or safety of a child.

B.     MAJOR DECISIONS
Major decisions regarding each child shall be made as follows:
     Educational decisions                 mother       father        joint
     Non-emergency health care             mother       father        joint
     Religious upbringing               a mother    a  father      a joint
     Extracurricular activities         a mother    a  father      a joint
     __________________________         a mother    a  father      a joint
     Obtaining passport, Caste
     Certificate.

            24                            A-932/2015

     NAME OF THE CHILD & SURNAME:               The custodial parent shall not be
     entitled to change the name or the surname of the child which has
     been given to the child as per either a ceremony performed for the
     same or the name along with the father’s surname as it appears in the
     birth certificate without the court order or written consent of the non-
     custodial parent.

     REMOVAL OF CHILD FROM DAYCARE OR SCHOOL                            : The non-
     custodial parent will be informed 60 days in advance in case if the child
     is being removed from the day care or school.

     MEDICATION, ILLNESS OR ACCIDENT:                If the child becomes ill or is
     involved in an accident, and treatment by a medical professional is
     obtained, the parent who has the child at the time of the illness or
     accident shall notify the other parent as soon as practicable but no later
     than three (3) hours after the incident or diagnosis. ILLNESS OF THE
     CHILD SHALL NOT PREVENT VISITATION WITH THE CHILD, UNLESS THE
     CHILD IS HOSPITALIZED. NONCUSTODIAL PARENT CAN VISIT THE CHILD
     IN HOSPITAL.   /Residence of custodial parent or and place where
     child is stays during illness.

      III.   FINANCIAL SUPPORT / MAINTENANCE

A.     CHILD SUPPORT

Father’s gross monthly income is Rs. 1,00,000/-
Mother’s gross monthly income is Rs.         35,000/-

     1.  The interim child support order is as follows:

       a.  Both the parties shall open a new joint account within a period of
       two weeks from today in any Nationalized Bank in Chembur, Mumbai
       and the petitioner shall start depositing Rs.5000/-every month till
       disposal of the petition, so also the respondent shall start depositing
       Rs.10,000/-every month in the said account. The said accumulated
       amount shall be utilized for educational expenses and other expenses
       of the child. The party may deposit lumpsum amount in advance
       towards these above amount instead of depositing every month. The
       parties shall seek permission of the court while withdrawing the
       amount for particular purpose.

The Child Support / Maintenance / Worksheet / Order shall be attached to
this Order as an Exhibit .

      2. Payments shall begin on the _____ day of _____________, 20___.This
support / maintenance shall be paid:
a   directly to the other parent.

                                25                           A-932/2015

a    to the Family Court
by direct deposit to the other parent at ____________________________ Bank for
   deposit in account no. ________________________.
other:_______________________________________________________________

The parents acknowledge that court approval must be obtained before child
support can be reduced or modified.

CHILD SUPPORT / MAINTENANCE              : Non-payment or late payment of child
support is NOT an acceptable reason to deny or interfere with visitation.
Conversely, denial of visitation is NOT justification for non-payment or late
payment of child support. Both parents agree that the Child support and
child visitation are separate and independent issues and are not to be
manipulated by either parent to gain leverage over the other parent with
regard to visitation or child support. Child support shall NOT stop during
visitation periods, unless provided by court order.
B.     HEALTH AND INSURANCE    (Optional).

Reasonable health insurance on the child or children will be:
             maintained by the mother
             maintained by the father
             maintained by both
C.          (i) It is directed that  they will not pamper children by expensive
gifts.

   IV.    PRIMARY RESIDENTIAL PARENT (CUSTODIAN) FOR OTHER
                      LEGAL PURPOSES
The child or children are scheduled to reside the majority of the time with
the            □ mother   □ father.  This parent is designated as the primary

residential parent also known as the custodian,       SOLELY    for purposes of any
other applicable state laws. If the parents are listed in Section II as joint
decision-makers, then, for purposes of obtaining health or other insurance,
they shall be considered to be joint custodians.
THIS DESIGNATION DOES NOT AFFECT EITHER PARENT’S RIGHTS  OR
RESPONSIBILITIES UNDER THIS PARENTING PLAN.

       V.  DISAGREEMENTS OR MODIFICATION OF PLAN OR NON
                         COMPLIANCE
Should the parents disagree about this Parenting Plan or wish to modify it, or
in case of the non-compliance they must make a good faith effort to resolve
the issue by the process selected below before returning to Court.

            26                            A-932/2015

       □   Mediation by a neutral party chosen by the parents or the Court
    Name of the Mediator       Ms F, Psychiatric Social
Worker from MUSKAAN, an undertaking of Tata Institute of Social
Science attached to the Family Court shall act as mediator in case of
disagreement of the parenting plan. Both the parties shall deposit
Rs.5000/-(jointly) as remuneration for mediator every year.

His/Her Pone No /Cell No

       □ a    The Court DUE TO ORDER OF PROTECTION OR RESTRICTIONS.
It must be commenced by notifying the other parent and the Court by
□ a  written request          □ a  registered mail.
□ a   other:  ___________________.
In the dispute resolution process:
   A. Preference shall be given to carrying out this Parenting Plan.
   B. The parents shall use the process to resolve disputes relating to
       implementation of the Plan.
   C. A written record shall be prepared of any agreement reached, and it
       shall be provided to each parent.
   D. If the Court finds that a parent willfully failed to appear without good
       reason, the Court, upon motion, may pass appropriate order.

       Non-Compliance       of the parenting plan may amount to breach of
       trust and parents are required to approach court for appropriate
       action .
       Parties agree  for following consequence for breach of access
arrangement.

       □ a  (a)Compensatory access immediately in next week.

       □ a   (b)Cost of Rs.1000/- for each day of loss of access.

       □ a   (c)Social service of defaulting parent at remand home,
orphanage,

       □ a   (d)A forfeiture of access, if access not taken for 3 consecutive
days without reasonable cause.

       □ a    (e)Dismissal of petition or striking of defence, if Court orders /
parenting plan /Consent Terms not obeyed.

       □ a    (f)Non-custodian parent will be eligible to apply to court for
shifting of custody, in case  intentional  repeated  defaults in giving access
and visitation right to non custodial parents.

                                27                           A-932/2015

                         VI.    RIGHTS

                       RIGHTS OF CHILD

       Both Parents recognize child’s / children’s right to:
       ✦ emotional and physical safety, stability and security
       ✦ feel loved by both of us and significant family members
       ✦ know and be cared for by both parents and significant family
       members
       ✦ develop independent and meaningful relationships with each
       parent.

                    RIGHTS OF PARENTS

Both parents are entitled to the following rights:
(1)   The right to unimpeded telephone and web cam conversations with the
      child at least twice a week at reasonable times and for reasonable
      durations;
(2)   The right to send mail / gifts to the child which the other parent shall
      not open or censor;
(3)   The right to receive notice and relevant information as soon as
      practicable but within three (3) hours of any event of hospitalization,
      major illness or death of the child;
(4)   The right to receive directly from the child’s school any school records
      customarily made available to parents. (The school may require a
      written request which includes a current mailing address and upon
      payment of reasonable costs of duplicating.) These include copies of
      the child’s report cards, attendance records, names of teachers, class
      schedules, and standardized test scores;
(5)   The right to receive copies of the child’s medical health or other
      treatment records directly from the physician or health care provider
      who provided treatment or health care. (The keeper of the records
      may require a written request which contains a current mailing
      address and the payment of reasonable costs of duplication.) No
      person who receives the mailing address of a parent as a result of this
      requirement shall provide such address to the other parent or a third
      person;
(6)   The right to be free of unwarranted derogatory remarks made about the
      parent or his or her family by the other parent to the child or in the
      presence of the child;
(7)   The right to be given at least forty-eight (48) hours notice, whenever
      possible, of all extra-curricular activities, and the opportunity to
      participate or observe them. These include the following: school
      activities, athletic activities, and other activities where parental
      participation or observation would be appropriate;
(8)   The right to receive from the other parent, in the event the other parent
      leaves the state with the minor child or children for more than two (2)
      days, an itinerary including telephone numbers for use in the event of

            28                            A-932/2015

       an emergency;
(9)  The right to access and participation in education on the same basis
       that is provided to all parents. This includes the right of access to the
       child for lunch and other activities. However participation or access
       must be reasonable and not interfere with day-to-day operations or
       with the child’s educational performance.
(10) Right to share the names and contact details of the friends of the child.

  VII.    NOTICE REGARDING PARENTAL RELOCATION

If a parent who is spending intervals of time with a child desires to relocate
outside the state or local jurisdiction from the other parent within the state,
the relocating parent shall send a notice to the other parent at the other
parent’s last known address by registered or certified mail. the notice shall
be mailed not later than sixty (60) days prior to the move.  The notice shall
contain the following:
   (1)Statement of intent to move;
   (2)Location of proposed new residence;
   (3)Reasons for proposed relocation; and
   (4)Statement that the other parent may file a petition in opposition to the
      move within sixty (60) days on receipt of the notice.

    Sharing Emergency numbers

Compiled a list of emergency numbers for children.

Father                                   Mother:   
Home:  Home:

Cell :   Cell:          

Email: @ gmail.com           Email:    @ gmail.com

Relatives                                Relatives
Name 1: Name 1:  

Relation: uncle                          Relation:   brother

Home:                                    Home :

Cell:        Cell:         

                                29                           A-932/2015

Name 2:  Name 2: 

Relation:  Grandmother                   Relation:   brother

Home:      Home:

Cell:          Cell:         

School Contact No:                       School Contact No:
Doctor Name & No:                        Doctor Name & No:

The Parents hereto have executed this Parenting Plan the day and year first
hereinabove written.
_______________________________

      _________________________________
Sign  Mother                                                Sign Father
__________________________________________
      ____________________________________________
lawyer for Mother                                        lawyer for Father
__________________________________________
      ____________________________________________
Address of Mother                                 Address of Father

Phone Phone
Parenting plan Provided by court order .
Note:    In case of ambiguity, parties shall refer to the accompanying order of
           th
the court dated 27  May 2015 passed below Ex.9.

                                                      Sd/-

                                                ( Prasad Palsingankar )
                                                           Judge
  th
27  May, 2015                                         Family Court No.3, Mumbai.

The post Mumbai Bandra Family court judgment on joint equally shared custody based on parenting plan appeared first on Men Rights India.

Basically, I see this judgment in line with another recent one where interim maintenance was denied to a wife qualified as beautician.  I think the main thing in both judgments that the child of couple was staying with father, so the usual sympathy for mother as well as need for child support being paid to mother did not arise.

Though such situations where child is left with father are somewhat rare, the main point to understand is there is no such rule that “you will have to pay some maintenance to wife” – a convenient quote often made by lawyers.  Maintenance will be decided based on details and merit of the case.

Full judgment text below:

                       Seema Vs Kudeep Kumar and others.

In the Court of Ms.Neha Nohria, Sub Divisional Judicial Magistrate,
Naraingarh.

Case No.25-2 of 2014.
Date of Instt:18.9.2014.
Date of Order:22.9.2015.

Seema D/o Sh.Ram Nath w/o Sh.Kuldeep Kumar, House No.21, Ward
No.8, Naraingarh, District Ambala.
                                                             …Petitioner/applicant.

                            Versus.

1.      Shri Kuldeep Kumar son of Sh.Ram Naresh,

2.     Sandeep Kumar son of Sh.Ram Naresh,

3.     Ram Naresh son of Sh.

4.     Nirmala Devi wife of Ram Naresh,

       all  residents of village Tehi, Post Office Darajpur, Police Station
       Thana Chhappar, District Yamuna Nagar.

5.     Karamjeet Kaur wife of Sh.Ravi Kumar.

6.     Ravi Kumar son of not known, both residents of village Sherpur,
       P.O.Chhachharauli, District Yamuna  Nagar.
                                                                   …..Respondents.

                     Complaint under Section 12,18,19 of the Protection of
                     Women from Domestic Violence Act, 2005.

Present :     Sh.Munish Bakshi, counsel for petitioner.
              Sh.Hemant Bindal, counsel for respondents no.2 to 6.
              Sh.Pankaj Bindal, counsel for respondent no.1 .

Order on interim relief:

              Applicant/petitioner has come up with the averments that her
marriage  with respondent no.1 was solemnized on 16.1.2013 at Chawla

Palace, Naraingarh according to Hindu rites and ceremonies. At the time

of marriage, sufficient dowry articles were given. However, on the day of

marriage,   all   the   respondents   raised   demand   of   Swift   car   and

Rs.10,00,000/- in cash before Phere ceremony in the pandal. But due to

intervention of the close relatives of parties, marriage was solemnised.

However, after marriage, all the respondents again raised  their demand

                       Seema Vs Kudeep Kumar and others.

of Swift car, Rs.10,00,000/- cash and gold ring for respondent

no.2(Devar). Even jewellary of applicant/petitioner was   taken by

respondent no.1 and  4. It is averred that  after complainant became

pregnant, respondents enhanced their maltreatment and harassment and

gave beatings to her. On   8.10.2013, all the respondents hatched a

criminal conspiracy and abused complainant, gave her slaps,fist blow ad

kick blows on face, leg and  chest due to which  health of complainant

became detoriated . On the next day when blood started oozing,

respondents no.1,2,4 and 6 got her admitted in  Shri Rishiram Hospital,

Model Town, Yamuna  Nagar. Respondents told doctor  that they are not

having money for treatment. Complainant informed her parents who

came in the hospital with  money. On 9.10.2013, she gave birth to a male

child who was  much weak. It  is averred that when complainant and her

child came home from hospital, respondents again started  demand of

swift car, ten lac and gold ring. On  22.10.2013 on the festival of

Karwachoth, all the respondents misbehaved  with  the complainant. On

2.11.2013, all the respondents again raised their demand of swift car, ten

lac and gold ring. On 11.11.2013 all the respondents  gave beatings to

complainant  in a room. Her father came and  respondents  turned out the

complainant and her minor child from the matrimonial home.  Panchayat

was convened and due to intrvention of the respectables,  the complainant

and respondent no.1  filed a divorce petition with mutual consent under

section 13B of HMA. First statement was recorded  and case was fixed

for recording  of second statement for 10.9.2014.  It is averred that on

3.9.2014, respondent no.1 came in the parental home of complainant  and

raised demand of Rs. 5,00,000/- for giving second statement. On

5.9.2014, respondents no.1,4 and 5 came and again repeated their

demand. On 10.9.2014, respondent no.1 stated in the Court that he made

first statement under  some pressure .Therefore, petition under section

13B HMA was  dismissed. It is averred that  complainant/applicant is

aggrieved person and has been subjected to  domsestic violence  at the

                       Seema Vs Kudeep Kumar and others.

hands of respondents.  Respondent no.1 is drawing salary of Rs.45000/-

per month as he is serving as Officer  in a factory under the name and

style of Polypack at Yamuna Nagar.  Therefore, she is entitlted to interim

maintenance at  this stage.

2.            Upon notice, respondent no.1 appeared and  filed reply in

which he denied  averments/allegations with regard to demand of dowry

by him and his family members. He stated that marriage of petitioner with

him  was very simple marriage and only some  customery gifts  were

exchanged between both the families. Respondent no.1 and complainant

are living separately from the rest of his family in a rented house. It  is

denied that demand of 10,00,000/-, swift car and gold ring  etc was made

by him or his family members.  It is averred that  the complainant and her

family members are very sharp minded persons and  they want to grab

money from respondents. Complainant was admitted in the morning of

9.10.2013 by the respondent no.1 in Rishi Ram Memorial Hospital in

Model Town, Yamuna Nagar because of labour pain due to premature

delivery complications. She gave birth to a male child on the same day by

caesarean  surgery and all the expenses of delivery /treatment were borne

by respondent no.1. It is averred that  the child was born in 8th month

due to which  he was premature and  required special care/treatment.

Hence, he was shifted to Chaitanya Hospital, Chandigarh. Respondent

lived with complainant with full care, love and affection  but the attitude

of complainant and her family members was not good towards

respondents. It is averred that on 14.11.2013  father of complainant called

respondent no.1 to his house at Naraingarh. When he reached there,

family of complainant misbehaved with him by  saying that  he has not

given any facility to  their daughter. In the night, her father, brother and 10
other relatives alongwith some strangers came to his house armed with

dangerous weapons  and started quarrelling with him and took away
complainant and her premature baby forcibly. It is further averred that  on

14.11.2013 to 6.3.2014, he was not allowed to meet his infant premature

                       Seema Vs Kudeep Kumar and others.

baby and was forced  to give mutual divorce. A compromise was then

executed between parties on 6.3.2014. It is admitted that petition under

section 13B of HMA was filed under pressure of  complainant’s family

and complainant received  Rs.1,00,000/- from respondent no.1 in the

Court as alimony and remaining  Rs.1,00,000/- was to be paid at the time

of recording second statement in the Court. No medical treatment to child

was given by complainant  and her parents. When custody of premature

baby was given to respondent no.1, his condition was critical and Harnia

Surgery was advised. On 9.9.2014, the date on which second statement  in

divorce petition was to be recorded, complainant and    respondent no.1

jointly patched up the matter and complainant executed affidavit that she

will not file  any complaint/petition or any other application against the

respondent and custody of minor child will also be given to respondent

no.1. No demand of Rs.5,00,000/- was raised. It is denied that  respondent

no.1 is drawing salary of Rs.45000/- per month. It is averred that

complainant is  M.A.-Hindi and was working as teacher before marriage

in Shivalik International School, Naraingarh. She is running a boutique

and is not in need of  money. With these submissions, it is prayed that

petition be dismissed with costs.

3.            In separate reply filed by respondents no.2 to 6 they had

reiterated the averments made by respondent no.1 in his reply.

4.            Learned   counsel   for   petitioner/applicant     argued   that

petitioner is aggrieved lady  within the ambit of Domestic Violence Act as

she has been  harassed mentally and physically by all the respondents

under criminal conspiracy. Since she was forcibly thrown out of her

matrimonal home, she is presently dependent upon her parents. Therefore,

at this stage, respondent no.1 is liable to pay her maintenance as well as

expenses  for the rental accomodation.  Per contra, learned counsel for

respondents refuted the arguments of learned counsel for petitioner and

contended that respondents always treated the petitioner with love and

                       Seema Vs Kudeep Kumar and others.

affection. It was applicant/complainant whose behaviour  was not good.

Even her parents abused respondent no.1. It is then argued that  premature

child is being taken care of respondent no.1 as  his custody is with him. It

is also argued that petitioner has herself left the  minor child who being

very weak remains ill. Hence,  she is not entitled to any relief at this stage.

5.            I have heard rival contentions of learned counsel of parties

and have gone through the case file carefully.

6.            After hearing the rival contentions of learned counsel for the

parties and careful perusal of case file, position that transpires is that

relationship between parties  is admitted . Marriage of applicant/petitioner

with respondent no.1 was solemnized on 16.1.2013 and a male child was

born out of the said wedlock. It is also admitted that  said child remains ill

and was premature at the time of his birth. The allegations leveled by

complainant against respondents are that  they have treated her with
cruelty by raising demand of dowry, gave beatings to her and

subsequently turned her out of matrimonial home on 14.11.2013.  On the
contrary, respondents have also stated that applicant/petitioner use to

harass them  and even took Rs.1,00,000/- as settlement in  the shape of

alimony after executing compromise and affidavit  in this respect. They

have also asserted that  complainant  merely wants to grab money from

them as she alongwith her father left the matrimonial home on

14.11.2013. Meaning thereby, both the parties have leveled  allegations

and   counter allegations  against each other. These assertions by parties

require evidence to prove the same. At this stage, it is admitted that  a

petition under section 13B HMA was filed  which was subsequently

dismissed   as respondent no.1 backed out from   the same and

Rs.1,00,000/- was given at that time to the petitioner.  Moreover,  at that

time, custody of minor child who was born premature and remains ill was

given to  respondent no.1. It further implies that  liability upon respondent

no.1 at this stage is far more than upon the complainant with regard to

                       Seema Vs Kudeep Kumar and others.

care of minor child. That apart, parties have  been living separately since

14.11.2013 as has been admitted by them. So, allegations qua  domestic

violence  require enquiry in the shape of evidence.Therefore, at this stage,

without appreciation of evidence, it is not appropriate to pass any interim

order.

7.            Accordingly,   present   application   is   hereby   dismissed.

Needless to state, this order shall have no bearing on the final merits of

the case.

Pronounced:22.9.2015.                                   (Neha Nohria)
                                                        SDJM/Naraingarh.

Note :  This order comprises of six pages and all the six pages have been
checked and signed by me.

vandna.                                                 (Neha Nohria)
                                                        SDJM/Naraingarh.
                                                        22.9.2015.

                       Seema Vs Kudeep Kumar and others.

Present :     Sh.Munish Bakshi, counsel for petitioner.
              Sh.Hemant Bindal, counsel for respondents no.2 to 6.
              Sh.Pankaj Bindal, counsel for respondent no.1

              Arguments on application under section 23 of the Protection

of Women from Domestic Violence Act,2005 for grant of interim relief

heard. Vide separate order of even date, application has been  dismissed.

Now case  is adjourned to 21.10.2015 for evidence of applicant at own

responsibility.

                                                        (Neha Nohria)
                                                        SDJM/Naraingarh.
                                                        22.9.2015.

The post Ambala, Haryana court denies interim maintenance under DV Act to woman who left child with husband appeared first on Men Rights India.

The data, and reports referred to in the video are from below sources:

https://standupforacause.wordpress.com/2013/10/02/women-in-work-force/

http://www.prsindia.org/uploads/media/scr%20Women%20Reservation%20Bill%202009.pdf

http://timesofindia.indiatimes.com/india/Life-expectancy-in-India-goes-up-by-5-years-in-a-decade/articleshow/29513964.cms

The post Video: Women’s Reservation Bill – A Necessity? Or just going with the trend? appeared first on Men Rights India.

Following are the news and data referred to in the above video.

The referred news on proposal by Women and Child Development (WCD) ministry to introduce prenuptial contracts in Indian marriages:  http://articles.economictimes.indiatimes.com/2015-09-18/news/66677506_1_couples-agreements-pacts

Sec 23, 26 of Indian Contract Act referred from here:
http://www.vakilno1.com/bareacts/indiancontractact/indiancontractact.html#23_What_consideration_and_objects_are_lawful_and_what_not

Woman who cheated yet got pre-nuptial thrown out in her favour: http://menrightsindia.net/wp-content/uploads/2014/04/woman-adultery-asking-can-I-increase-my-alimony.jpg

When a pre-marital contract may become invalid: http://family.findlaw.com/marriage/top-10-reasons-a-premarital-agreement-may-be-invalid.html

The post Video: Prenuptial agreements in India – Who benefits? appeared first on Men Rights India.

Following recent judgment of Delhi Sessions Court by Justice Nivedita Anil Sharma about dignity of falsely accused man in a rape case, has been much published in print media, and getting shared on social media too.

The judgment has referred to terming such falsely accused men as rape case survivor, a term used first in a judgment by Justice Virender Bhat, again about a rape case in Delhi; probably because Delhi has become the false rape capital of India.

At the end of the judgment are passages related to falsely accused in rape cases:

185.       It cannot be ignored that the accused due to this case which has ultimately ended in his acquittal, as suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be  noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period.

One way to avoid such humiliation, media trials, ignominy for the falsely accused is to modify the law so that identity of rape accused is also kept secret till trial and conviction.  Such a law was there in UK law books for many years before it was taken away, presumably not to discourage women from coming forward in reporting rape cases.  Such a logic can only be feminist logic, because for a raped woman to get justice, it should not be important whether the face of accused man is flashed all over MSM and social media, what’s important is only that the prosecution and trial are done fairly and speedily.  But feminists are more concerned about creating rape hysteria, and if it destroys some men’s reputations and their lives, so be it, so for them such a law to keep accused’s identity secret will not serve that purpose.

The next para in judgment says:

186.       It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal may give him some solace. He may also file any case for damages against the prosecutrix, if advised. No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man.

Above “dignity and honour of a man” passage was much quoted in the press, and it gave the impression that the court has proactively done something to help the falsely accused man in this case.  However, it seems that the court has just made the observations about dignity/honour etc of men, and let the man himself file a case for damages on the falsely accusing woman, if advised.  Given the general lack of precedents and lack of knowledge in this area, about how to get compensation either from state or from prosecutrix, I don’t know what advice can this man get to claim damages.  More useful would be if the courts could evolve an automatic rule to order an enquiry under applicable sections like IPC 182, 211 etc against false rape accusers, since most of these provisions of law cannot be invoked by the accused himself, unless ordered by the police or judiciary.  Most accused wouldn’t have sufficient knowledge of the law to make use of these provisions.  So in most likelihood these sections will remain the toothless provisions they have always been, for a long time to come.  And as a society, we can continue to sleep believing that our laws are serving the purpose they were written for.

More information is given in this post on various precedents and useful sections for taking actions against false rape accusers.

Since the judgment is 84 pages long, the PDF file is also attached here. Delhi ASJ Nivedita Anil Sharma false rape acquittal 20160102.pdf

Full judgment text below:

1
-::   ::-

 
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI

 
Sessions Case Number                              : 148 of 2013.
Unique Case ID Number                             : 02401R0609662013.

 
State
Versus
Mr. Upender Dutt Sharma@ Goldi,
Son of Mr. Durga Dutt Sharma,
Resident of A-182, Gali No. 7, Ph.No.5, Peer Baba Road,
Om Vihar, Uttam Nagar, New Delhi.

 
First Information Report Number : 143/13.
Police Station Nihal Vihar.
Under section 376 of the Indian Penal Code.

 
Date of filing of the charge sheet before                      : 07.09.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal                        : 31.10.2013.
Arguments concluded on                                         : 02.01.2016.
Date of judgment                                               : 02.01.2016.

 
Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
State.
Accused on bail with counsel,Mr.Shri Parkash Sharma.
Ms.Vandana Chanchal, counsel for the Delhi Commission
for Women.
***********************************************************

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
1
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
2
-::   ::-
JUDGMENT
“To call woman the weaker sex is a libel; it is man’s injustice to
woman. If by strength is meant brute strength, then, indeed, is
woman less brute than man. If by strength is meant moral power,
then woman is immeasurably man’s superior. Has she not
greater intuition, is she not more self-sacrificing, has she not
greater powers of endurance, has she not greater courage?
Without her, man could not be. If nonviolence is the law of our
being, the future is with woman. Who can make a more effective
appeal to the heart than woman?”—-Mahatma Gandhi.

1.  Rape is a dark reality in Indian society like in any other nation.

This abnormal conduct is rooted in physical force as well as

familiar and other power which the abuser uses to pressure his

victim. Nor is abuse by known and unknown persons confined to a
single political ideology or to one economic system. It transcends

barriers of age, class, language, caste, community, sex and even

family. The only commonality is power which triggers and feeds

rape. Disbelief, denial and cover-up to “preserve the family

reputation” are often then placed above the interests of the victim

and her abuse. Rape is an abominable and ghastly and it worsens

and becomes inhuman and barbaric when the victim who is

allegedly subjected to unwanted physical contact by a perverted

male, known to her.

 
2.  “ Courts are expected to show great responsibility while trying an
accused on charges of rape. They must deal with such cases with

utmost sensitivity. The Courts should examine the broader

probabilities of a case and not get swayed by minor contradictions
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
2
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
3
-::   ::-
or insignificant discrepancies in the statement of the witnesses,
which are not of a fatal nature to throw out allegations of rape.

This is all the more important because of lately crime against

women in general and rape in particular  is on the increase. It is

an irony that while we are celebrating women’s rights in all

spheres, we show little or no concern for her honour. It is a sad

reflection and we must emphasize that the courts must deal with

rape cases in particular with utmost sensitivity and appreciate the

evidence in totality of the background of the entire case and not in

isolation.”  The Supreme Court has made the above observations in

the judgment reported as      State of Andhra Pradesh v. Gangula

Satya Murthy, JT 1996 (10) SC 550         .

PROSECUTION CASE

3.  Mr. Upender Dutt Sharma @ Goldi, the accused, has been charge

sheeted by Police Station Nihal Vihal, Delhi for the offence under

section 376 of the Indian Penal Code (hereinafter referred to as the

IPC) on the allegations that from 2008 to February 2009 during the

first incident on unknown date at WZ-779, Village Tihar, he offered

the prosecutrix  (name withheld to protect her identity) tea and

biscuits mixed with intoxicated material and committed rape upon
her; and thereafter the accused had raped her on the false pretext of
marriage with her.

CHARGE SHEET AND COMMITTAL

4.  After completion of the investigation, the charge sheet was  filed
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
3
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
4
-::   ::-
before the Court of the learned Metropolitan Magistrate on
07.09.2013 and after its committal, the case was assigned to this

Court  i.e. Additional Sessions Judge (Special Fast Track Court)

-01, West, Tis Hazari Courts, Delhi for31.10.2013.

 
CHARGE

5.  After hearing arguments, charge for offence under sections  328,

376 and 420 of the IPC have been framed against accused

Mr.Upender Dutt Sharma @ Goldi vide order dated 19.11.2013 to

which he  pleaded not guilty and claimed trial.

 
PROSECUTION EVIDENCE
6.  In order to prove its case, the prosecution has examined as many as

10 witnesses i.e. the prosecutrix, as PW1; HC Ram Mahesh,

MHCM   as PW2;   Ct. Seema Chahar, who had took the

proesecutrix to SGM Hospital for her medical examination, as

PW3; HC Jai Bhagwan, Duty Officer, as PW4; Dr. Binay Kumar,

who had medically examined the accused, as PW5; Dr. Aditi

Aggarwal, who had medically examined the proecutrix, as PW6;

Dr. Gurdeep, who had medically examined the prosecutrix in

casualty, as PW7; Ct M.R.Prasad, witness of investigation, as PW8;
Ms. Ekta Gauba, learned Metropolitan Magistrate, who had
recorded the statement of prosecutrix under section 164 of the
Cr.P.C., as PW9; and SI Koyal, the Investigation Officer, as  PW10.

 
7.  The accused and his counsel have preferred not to cross examine
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
4
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
5
-::   ::-
PWs 2, 3, 4, , 5, 6, 7 and 9 due to which their evidence remains
uncontroverted and unrebutted and can be presumed to have been

admitted as correct by all the accused persons.

 
8.  Vide order dated 03.06.2014, the counsel for accused, on behalf of

the accused, has admitted  the evidence of Ms. Sunita Gupta, FSL

Expert as well as FSL report.

 
9.  The Additional Public Prosecutor made a statement on 07.08.2014

and has dropped the witness Ct. Chandra Shekhar from the list of

prosecution witnesses as his evidence is not relevant.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE

CR.P.C. AND DEFENCE EVIDENCE

10. In his statement under section 313 of the Cr.P.C., the accused  has

controverted and rebutted the entire evidence against him and

submitted that he is innocent and he has not committed any

offence. The prosecutrix was already married to some one else and

she wanted to extort money from him for which she had lodged the

present false case against him.

11. Accused has preferred to lead evidence in their defence. He is
examined Mr. Phool Singh, as DW1; Ct. Dharamvir as DW2; and
Mr. Dev Karan Singh as DW3.

 
ARGUMENTS
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
5
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
6
-::   ::-
12. I have heard arguments at length. I have also given my conscious
thought and prolonged consideration to the material on record,

relevant provisions of law and the precedents on the point.

 
13. The Additional Public Prosecutor for the State has requested for

convicting the accused for having committed the offences under

sections 328, 376 and 420 of the IPC, submitting that the

prosecution has been able to bring home the charge against the

accused by examining its witnesses whose testimonies are

corroborative  and reliable.

 
14. The counsel for the accused, on the other hand, has requested for
his acquittal submitting that there is nothing incriminating against

the accused on the record. There is an unexplained delay in the

lodging of FIR. The complaint made by the prosecutrix is

concocted. The prosecutrix has given false evidence. The evidence

of the prosecutrix as well as other prosecution witnesses is

unreliable   as   it   suffers   from   various   contradictions   and

inconsistencies. The investigation has not been properly conducted.

The prosecutrix was already married and could not have married

the accused. She wanted to extort money from the accused.

 
DISCUSSION,  ANALYSIS, OBSERVATIONS AND FINDINGS
15. The question is how to test the veracity of the prosecution story

especially when it has some variations in the evidence. Mere

variance of the prosecution story with the evidence, in all cases,
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
6
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
7
-::   ::-
should not lead to the conclusion inevitably to reject the
prosecution story.  Efforts should be made to find the truth, this is

the very object for which the courts are created. To search it out,

the Courts have been removing chaff from the grain.  It has to

disperse the suspicious cloud and dust out the smear as all these

things clog the very truth.  So long chaff, cloud and dust remains,

the criminals are clothed with this protective layer to receive the

benefit of doubt.  So it is a solemn duty of the Courts, not to merely

conclude and leave the case the moment suspicions are created.  It

is the onerous duty of the Court within permissible limit to find out

the truth.  It means, on the other hand no innocent man should be

punished but on the other hand to see no person committing an
offence should get scot-free.  If in spite of such effort suspicion is

not dissolved, it remains writ at large, benefit of doubt has to be

created to the accused.  For this, one has to comprehend the totality

of facts and the circumstances as spelled out through the evidence,

depending on the facts of each case by testing the credibility of the

witnesses, of course after excluding that part of the evidence which

are vague and uncertain.  There is no mathematical formula through

which the truthfulness of the prosecution or a defence case could be

concretized. It would depend upon the evidence of each case
including the manner of deposition and his demeans, clarity,
corroboration of witnesses and overall, the conscience of a Judge
evoked by the evidence on record.  So the Courts have to proceed

further and make genuine efforts within judicial sphere to search

out the truth and not stop at the threshold of creation of doubt to
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
7
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
8
-::   ::-
confer benefit of doubt.

16. Under this sphere, I now proceed to test the submissions of both the

sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED

DOCUMENTS
17. The prosecution story unveils with the prosecutrix (       PW1)   going to

Police Station Nihal Vihar on 26.04.2013 where she made a written

complaint (  Ex.PW1/A     ) against the accused. Since police did not

take any action on her complaint dated 26.04.2013, the        prosecutrix

again visited PS Nihal Vihar on 30.04.2013  and enquired about the

action taken on her complaint.  The prosecutrix (         PW1)    was told

that no action had been taken on her complaint and the police

official on duty tried to avoid her. Thereafter, the prosecutrix

( PW1)  telephoned the Media persons of Sahara News Channel and

narrated the entire incident to them stating that police was not

taking any action on her complaint and she was present at Police
Station Nihal Vihar. After some time, two media persons came to

Police Station Nihal Vihar and they enquired from the police

regarding the action taken on her complaint. Thereafter, the police

recorded a statement without conducting any enquiries from her

and asked her to sign on the same stating that the contents of her

application dated 26.04.2013 have been reproduced in this

statement and thereafter, she signed the said statement      (Ex.PW1/B     )

and the FIR was registered in this case. On 01.05.2013, HC Jai

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
8
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
9
-::   ::-
Bhagwan    (PW4   ) Duty Officer lodged the FIR (     Ex. PW4/A    ), made
his endorsement on the rukka (       Ex.PW4/B    ) and issued certificate

under section 65 B Evidence Act (        Ex. PW4/C    ) and handed over

the same to IO/SI Koyal     (PW10   ) for investigation. The prosecutrix

( PW1)  was taken  on the instructions of the IO/SI Koyal (        PW10    )

by Ct. Seema Chahar (    PW3   ) toSGM Hospital, Mangol Puri for her

medical examination   where she was medically examined by

Dr.Gurdeep (    PW7)     and was referred to the Gynecological

department where she was medically examined by Dr. Aditi

Aggarwal     (PW6   )   vide   MLC   (   Ex.PW6/A    ).     Her   internal

examination was also conducted by the doctor and her blood

sample as well as other samples and sealed exhibits were  handed
over to Ct. Seema Chahar (       PW3   ) who handed the same to the

Investigation Officer    (PW10)    who seized them vide seizure memo

( Ex.PW1/C   ). Before the doctor, the prosecutrix (    PW1   ) had stated

the name of the accused as Goldy but after her examination, when

copy of the MLC was provided to the prosecutrix, she came to

know that doctor had written the name of the accused as Murli and

she had informed W Ct. Seema (        PW3)    who had taken her for her

medical examination that the name of Goldy has been wrongly

mentioned as Murli in the MLC and the prosecutrix told her that
she wanted to get the same corrected in the MLC. WCt. Seema
(PW3   ) did not do anything in this regard and took her back to
Police Station Nihal Vihar and she told this fact to the Investigation

Officer SI Koyal (   PW10)    but she stated that now nothing can be

done in this regard. On 25.07.2013, the prosecutrix was produced
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
9
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page   of  84  ::-

 
-::  10  ::-

before Ms. Ekta Gauba, learned Metropolitan Magistrate              (PW9)
who recorded her statement under section 164 of the Cr.P.C.

( Ex.PW1/G)     on the application of the IO for recording the

statement ( Ex.PW9/A)      and copy of the statement was given to the

IO on her application for supply of copy of statement (       Ex.PW9/B    ).

The prosecutrix (   PW1   ) was taken by the police to the place of

occurrence i.e. H.No.779, Village Tihar, New Delhi where the

offence of rape took place with her for the first time. IO/SI Koyal

( PW10)    prepared site plan     (Ex.PW1/D)       at her instance. The

prosecutrix ( PW1   ) had taken the police to the house of the accused

in A-182, Gali no.7, Phase No-5, Pir Baba Road, Om Vihar, Uttam

Nagar, where he was present. On the identification of the
prosecutrix, the accused was arrested by the IO/SI Koyal (         PW10)

vide arrest memo      (Ex.PW1/E)       and the personal search memo

(Ex.PW1/F    ). The accused confessed his crime vide his disclosure

statement  (Ex.PW8/A).       The accused took the police  to the place

of occurrence and pointed out the same vide the pointing memo

(Ex.PW8/B)    . On the directions of IO/SI Koyal           (PW10    ),   Ct.

M.R.Prasad (   PW8   ) took the accused to SGM Hospital for his

medical examination and was examined by Dr. Binay Kumar

(PW5)   vide MLC (     Ex.PW5/A     ) and the doctor had handed over
MLC of the accused, the sealed exhibits of the accused to Ct.
M.R.Prasad (   PW8)    who handed over the same to  IO/SI Koyal
( PW10)   who seized the same vide seizure memo         (Ex.PW8/C)     . On

01.05.2013, IO/SI Koyal       (PW10)     had deposited with HC Ram

Mahesh, MHC (M) (       PW2   ),three sealed pullandas along with one
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  10  of  84  ::-

 
-::  11  ::-

sample seal of the hospital  and HC Ram Mahesh (         PW2)    had made
the entry of the same in register number 19 at serial no. 981

( Ex.PW2/A)   . On 14.05.2013, three sealed pullandas along with

one sample seal were received by IO/SI Koyal         (PW10    )  vide entry

no. 70/21/13 in register no. 21     (Ex.PW2/B     ) by  HC Ram Mahesh

and IO/SI Koyal     (PW10)    deposited the same in the office of FSL

vide acknowledgement      (Ex. PW2/C     ). The exhibits of the case were

examined by Ms. Sunita Gupta, Senior Scientific Officer (Biology)

FSL vide FSL report        (Ex.PX1   ). During the investigation IO/SI

Koyal ( PW10)     had recorded the statements of the witnesses under

section 161 Cr.P.C and after completion of the investigation, the

charge sheet was prepared and put to the Court for trial.

18. The allegations against the accused are that from 2008 to February

2009 during the first incident on unknown date at WZ-779, Village

Tihar, he offered the prosecutrix tea and biscuits mixed with

intoxicated material and committed rape upon her; and thereafter,

the accused had raped her on the false pretext of marriage with her.

 
IMPORTANT ISSUES

19. The important issues and the points in dispute are being discussed
hereinafter.

 
IDENTITY OF THE ACCUSED

20. There is no dispute regarding the identity of the accused

Mr.Upender Dutt Sharma @ Goldi who has been identified in the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  11  of  84  ::-

 
-::  12  ::-

Court by PW1, the prosecutrix and the police witnesses of
investigation. It is also not in dispute that the accused and the

prosecutrix were known to each other prior to the lodging of the

FIR. Accused is also named in the complaint         (Ex.PW1/B)     and the

FIR  (Ex.PW4/A)    .

 
21. Therefore, the identity of the accused stands established.

 
AGE OF THE PROSECUTRIX

22. There is no dispute that the prosecutrix was above 18 years of age

at the time of the incident. In her complaint           (Ex.PW1/A)    , the

prosecutrix has mentioned her age as 27 years and in her statement
under  section   164  of  the  Cr.P.C.        (Ex.PW1/C)     , her  MLC

(Ex.PW5/A)     and in her evidence before the Court, the prosecutrix

has mentioned her age as 28 years. As per the prosecution, she was

a major at the time of the alleged incident.

 
23. Therefore, it is clear that the prosecutrix was a major at the

time of incident.

 
VIRILITY OF THE ACCUSED
24. Dr.M. Das    (PW5)   had medically examined the accused vide MLC
(Ex.PW5/A)    . He has not been cross examined on behalf of the
accused due to which his evidence remains uncontroverted and

unrebutted and can be presumed to be admitted by the accused.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  12  of  84  ::-

 
-::  13  ::-

25. It is mentioned in the MLC of the accused              (Ex.PW5/A)       that
“There is nothing to suggest that pt. is not capable of performing

sexual intercourse”.

 
26. Even on physical examination, the doctor has found that the private

parts of the accused to be well developed.  There is nothing on the

record to show that the accused is impotent or medically incapable

of committing the offence of rape.

 
27. Therefore, it is clear that the accused is virile and is capable of

performing sexual act and is capable of committing the act of

rape.

 
MLC OF THE PROSECUTRIX AND FORENSIC EVIDENCE

28. It has been argued on behalf of the accused that as there is no

medical and forensic evidence against the accused, it indicates that

he has been falsely implicated in this case as the prosecutrix does

not have any injury and when her samples taken during her
gynecological examination were compared with those of the

accused, nothing incriminating was found in the FSL report

(Ex.PW8/F)    .

 
29. The Additional Public Prosecutor has argued that the medical and

forensic evidence is only for corroboration.

 
30. It can be seen from the MLC of the prosecutrix        (Ex.PW6/A)     which

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  13  of  84  ::-

 
-::  14  ::-

is dated 30.04.2013 that she does not have any external injuries.
She had told the doctor that last sexual relations were 10 days back,

which would be 20.04.2013 (calculated).

31. The FSL report    (Ex.PX-1)    shows that blood was found on exhibits

‘1a’, ‘1a-2’ and ‘2’ i.e. one gauze cloth piece having brownish

stains, one dark brown foul smelling liquid and damp foul smelling
blood stained gauze. Blood could not be detected on ‘1b1’, ‘1b2’

and ‘3’ i.e. two cotton swabs on stick kept in test tubes described as

vaginal swabs and underwear of accused. Human semen was

detected on exhibit ‘3’ i.e. underwear of accused. Semen could not

be detected on ‘1b’ and ‘1b2’ i.e. two cotton swabs on stick kept in

test tubes described as vaginal swabs.

 
32. Although there is nothing incriminating against the accused in the

medical and forensic evidence produced by the prosecution, but per

se, the ocular and oral evidence as such cannot be ignored, and lack

of medical and forensic evidence does not indicate that the accused

is innocent.

 
33. There is nothing incriminating against the accused in the

medical and forensic evidence produced by the prosecution.

 
DELAY IN FIR
34. The contention of the counsel for the accused that there was a delay

in lodging of the FIR which is fatal is now being taken into

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  14  of  84  ::-

 
-::  15  ::-

consideration.

35. The counsel for the accused has argued that there is an unexplained

delay in lodging the FIR which was lodged after due deliberation

and consultation.

 
36. The contention of the prosecution that there is no delay in lodging

the FIR as the prosecutrix lodged the complaint as early as

possible. She was exploited by the accused for five years and then

he refused to marry her saying that he cannot go against the wishes

of his parents. She went to the Police Station and gave her

complaint on which action was not taken and then when the media
persons intervened, the FIR was lodged.

 
37. The delay in lodging the report raises a considerable doubt

regarding the veracity of the evidence of the prosecution and points

towards the infirmity in the evidence and renders it unsafe to base

any conviction. Delay in lodging of the FIR quite often results in

embellishment which is a creature of after thought. It is therefore

that the delay in lodging the FIR be satisfactorily explained. The

purpose and object of insisting upon prompt lodging of the FIR to
the police in respect of commission of an offence is to obtain early
information regarding the circumstances in which the crime was
committed, the names of actual culprits and the part played by them

as well the names of eye witnesses present at the scene of

occurrence.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  15  of  84  ::-

 
-::  16  ::-

38. It is not that every delay in registration of the FIR would be fatal to

the prosecution. Once the delay has been sufficiently explained, the

prosecution case would not suffer. However, it is necessary for the

Courts to exercise due caution particularly in the cases involving

sexual offences because the only evidence in such cases is the

version put forwarded by the prosecutrix.

 
39. In the case reported as    State of     Rajasthan v. Om Prakash, (2002)

5 SCC 745     , the Hon’ble Supreme  Court has held  that in case

where delay  is explained  by the prosecution in registering  the

case, the same could be condoned  moreover  when the evidence of
the victim is reliable  and trustworthy.

 
40. Similar view was taken in       Tulshidas Kanolkar v. The State of

Goa, (2003) 8 SCC 590      , wherein it was held by the Supreme Court

as follows:

“ The unusual circumstances satisfactorily explained the
delay  in lodging of the first information report. In any event,
delay per se is not a mitigating circumstance s for the
accused  when accusation  of rape are involved. Delay in
lodging    first information   report cannot be used as a
ritualistic   formula   for discarding prosecution   case and
doubting  its authenticity.  It  only puts the court on guard  to
search  for and consider if any explanation  has  been offered
for the delay. Once it is offered , the Court is to only see
whether it is satisfactory or not. In a case if the prosecution
fails to satisfactory  explain  the delay and there s possibility
of embellishment or exaggeration  in the prosecution version
on account of such delay , it is a relevant  factor. On the other
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  16  of  84  ::-

 
-::  17  ::-

hand satisfactory   explanation of the delay is weighty
enough    to reject  the plea   of   false implication   or
vulnerability  of  prosecution case. As the factual scenario
shows, the victim was totally  unaware of the catastrophe
which had befallen   to her. That being so the  mere delay in
lodging  of first  information report  does not in any way
render  prosecution version brittle    .

41. In the judgment reported as      Devanand v. State (NCT of Delhi),

2003 Crl.L.J. 242    ,  the Hon’ble High Court of Delhi has observed
as follows:

“The above said statement clearly show that at the earliest
opportunity the prosecutrix had not made any complaint to
her mother in this regard. Reading of the examination–
inchief reveals that first time she was raped as per her own
version after about 30-36 days of coming of the appellant but
in any case she admits that she has been raped many a times
and she only complained to her mother few days after he had
left. The appellant stayed in the house of the prosecutrix for
more than year.”

42. Further, the Hon’ble High Court of Rajasthan in the judgment

reported as   Babu Lal and Anr v. State of Rajasthan, Cri.L.J.

2282, has held as under:

“No doubt delay in lodging the FIR in sexual assault cannot
normally damage the version of the prosecutrix as held the
Hon’ble Supreme Court in various judgements but husband
of the prosecutrix is there and report is lodged after one and
half months, such type of delay would certainly be regarded
as fatal to the prosecution case”
43. The Hon’ble High Court of Madhya Pradesh in the judgment

reported as    Banti alias Balvinder Singh v. State of Madya

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  17  of  84  ::-

 
-::  18  ::-

Pradesh ,   1992 Cr.L.J. 715 ,  has held as under:
“in conclusion, having regard to the conduct of the
prosecutrix in not making any kind of complaint about the
alleged incident to anybody for five days coupled with late
recording of report by her after five days with false
explanation for the delay, in the context also of the Lax
Morals of the Prosecutrix, it is very unsafe to pin faith on her
mere word that sexual intercourse was committed with her by
five accused persons or any of them. It is also difficult to
believe her version regarding the alleged abduction in jeep. In
the circumstances it must be held that the prosecutrix story
was not satisfactorily established”

44. It is claimed by the accused that as the FIR      (Ex.PW4/A)      has been

lodged after a long delay on 01.05.2013 at 00:05 hours (12:05 a.m.)
while the allegations made by the prosecutrix in her complaint

(Ex.PW1/B)     (which is dated 30.04.2013) are that the accused had

raped her for the first time in February, 2009 and thereafter w.e.f.

February, 2009 till 20.04.2013 (as per MLC-            Ex.PW6/A     ). The

delay in lodging of the FIR has been not explained by the

prosecution.

 
45. The Additional Public Prosecutor, on the other hand, has submitted

that there is no delay in the lodging of the FIR as the criminal

action was swung into motion as soon as possible.

 
46. As per the complaint / statement of the prosecutrix to the police,

(Ex.PW1/B)    , which is dated 30.04.2013, the physical relations

were established (without her consent) in February, 2009 and

thereafter w.e.f. February, 2009 to 20.04.2013 on a false pretext of
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  18  of  84  ::-

 
-::  19  ::-

marriage.

 
47. In her statement under section 164 of the Cr.P.C.            (Ex.PW1/G)

which was recorded on 25.07.2013, the prosecutrix has stated

similarly with some variations. She has not given any specific date

when the physical relations were last established.

 
48. In her examination in chief, the prosecutrix as PW1, has deposed

that  “For about 4-5 years accused continued to have physical

relations with me saying that he would marry me….. This

continued up till April 2013.”

 
49. The first alleged incident of rape was in February, 2009 when the

prosecutrix was taken to the house of the accused, intoxicated and

raped. The prosecutrix neither shouted for help nor raised any

alarm nor tried to escape nor complained about the alleged offence

to anyone.

 
50. It is clear that the prosecutrix preferred to remain silent and not

complain to anyone prior to the lodging of the complaint on

30.04.2013.

 
51. Here, the judgment of the hon’ble High Court of Delhi reported as

Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520

would be relevant wherein it has been observed that there is no
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  19  of  84  ::-

 
-::  20  ::-

explanation given by the prosecutrix for her not making hue and
cry, when the alleged offence took place, nor is there any

explanation for failure on her part to lodge the complaint with the

police immediately or for that matter within a reasonable time of

incident.

 
52. No explanation is coming forth from the prosecution regarding the

delay. No reasonable or logical explanation is coming from the

prosecution regarding the delay in lodging of the FIR on

30.04.2013 at 00:05 hours      (Ex.PW4/A)     when the alleged incident

of rape occurred much earlier. The last incident was on 20.04.2013

(calculated) as per the MLC of the prosecutrix       (Ex.PW6/A)     and no
explanation is coming forth from the prosecution regarding her

waiting till 30.04.2013 for making the complaint. No media person

has been examined by the prosecution to justify that the police was

not taking the complaint    (Ex.PW1/A)     nor any action on the same.

 
53. The prosecutrix and the prosecution have not been able to justify

the delay and why the prosecutrix did not report the matter

immediately or earlier. No logical explanation has been furnished

by the prosecution for the delay, as elaborated above.

 
54. These facts indicate that the possibility of the complaint being
motivated or manipulated and the version of the prosecutrix being

untrue cannot be completely ruled out. The possibility that the FIR

was lodged after due deliberation and consultation cannot be ruled
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  20  of  84  ::-

 
-::  21  ::-

out. The discrepancies in the evidence and the documents regarding
the delay in lodging of the FIR indicate that the prosecutrix and the

prosecution are unable to justify the delay in lodging of the FIR

which is fatal to the prosecution version.

55. Therefore, it can be said that the FIR was lodged after a delay

which is fatal to the prosecution story. The delay has not been
satisfactorily explained by the prosecutrix and the prosecution.

EVIDENCE   AND   OTHER   STATEMENTS   OF   THE

PROSECUTRIX

56. It is very essential and important to discuss and analyse the

different statements of the prosecutrix.

57. PW1 , the prosecutrix      has deposed that in the year 2008, she had

gone with her friend Ms.Simran to PVR Cinema at Vikas Puri for a

movie. After the movie had finished, they met one Mr.Ajay who

was friend of Ms.Simran outside the movie hall. Accused Upender

Dutt Sharma @ Goldi was accompanying Mr.Ajay at that time. She

was introduced to him. She has identified accused Upender Dutt

Sharma @ Goldi through the screen. While they were leaving, the

accused asked her for her mobile number and offered friendship to

her. She refused to give her mobile number to him and thereafter

went to her residence. Next day, she got a call on her mobile phone
from the accused and on her enquiry, he told her that he had taken

her mobile number from Ms.Simran. He had again offered

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  21  of  84  ::-

 
-::  22  ::-

friendship to her and she again declined. Thereafter, he called her
repeatedly on her phone asking for friendship. She gradually

developed friendship with and started talking to him. Accused

started asking her to meet him at PVR Cinema which she used to

refused. However, she did meet him once or twice at PVR Cinema

along with Ms.Simran and Mr. Ajay but she never met him alone.

After 5-6 months of her initial meeting, the accused asked her to

marry him on which she told him that she would take permission

from her parents before she gets married. Accused told her that he

would meet her parents to take their permission but prior to that, he

would make her meet his parents. Thereafter, she started meeting

the accused frequently. She told the accused that as they were
meeting frequently, they would be seen by her family and friends

and he should talk to his parents about their marriage. She did not

remember the exact date, but it was in February 2009 that accused

phoned her and asked her to come to his house at WZ-779, Tihar

Village, Near Tilak Nagar for meeting his parents. She went to meet

him. From Tilak Nagar, the accused had picked her to take her to

his residence. She met his father in his house. When she touched

his feet, he had given her his blessings. Accused told him that he

liked her and wanted to marry her to which his father replied that
even he approved of her. However, he also said that as his wife,
mother of the accused, was not at home, they should wait for her to
return. His father enquired about her residence and then, the

accused offered to show his house to her. He showed his house to

her which comprise of two rooms, kitchen and wash room and a
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  22  of  84  ::-

 
-::  23  ::-

courtyard. He told her to sit in the second room. The room where
initially she was taken had a sofa and a single bed and the second

room had a double bed. Accused told her to sit in the second room

which had a double bed saying that she may be uncomfortable in

the presence of his father. Then he left the room and returned with

tea and biscuit. She saw that he had given one cup of tea to his

father also in the other room. Accused had brought two cups of tea.

They had tea and biscuit. After consuming tea, she started feeling

heaviness in her head (sir bhaari ho gaya) on which the accused

had told her that she was coming from outside, she must be tired

and asked her to lie down on the bed till his mother returned.

Thereafter, as she became sleepy, she slept. She did not know for
how much she had slept. When she woke up, she found that she did

not have any clothes on her body. Accused Upender also did not

have any clothes on his body. He was lying besides her and was

touching her private parts (private parts ke saath ched-chaad kar

raha tha). When she asked him to stop, he told her that as his father

has consented for their marriage, they could have physical

relations. Accused forcibly had physical relations with her (mere

saath jabardasti sharirik sambandh banai). She was crying and she

asked the accused why he had forcibly had physical relations with
her on which he told her that his father had approved their marriage
and as they were to get married, they could have physical
relationship as they would be having physical relationship after

marriage also. Accused was not returning her clothes and it was

only when she repeatedly requested him that he took out her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  23  of  84  ::-

 
-::  24  ::-

clothes from under the bed and gave them to her. She wore her
clothes. Accused came up to Tilak Nagar with her and returned

saying that his father was alone at home. From Tilak Nagar, she

came to her residence herself. For about 4-5 years, the accused

continued to have physical relations with her saying that he would

marry her. Accused repeatedly promised to marry her after which

he had physical relationship with her. If the accused had not

promised to marry her, she would not have had physical relations

with him. This continued up till April 2013. In between, she had

met Ms.Uma, mother of the accused, several times and she had also

approved of the marriage between her and the accused. On

21.04.2013, the mother of the accused telephoned her and told her
that she had got the accused engaged to some other girl. She also

told her that she should not telephone or contact the accused. She

enquired from her whether anything was wrong. She told her that

as her father had expired, they would not be able to give her

anything in marriage and also that she was of a lower caste. She

telephoned the accused several times but he did not take her calls.

Accused sent her one SMS that he was busy. She has deposed her

mobile number (number mentioned in file and withheld to protect

the identity of the prosecutrix). The mobile number of the accused
is 8800557997. He telephoned her in the evening and told her that
he could not do anything but he would try to talk to his mother.
Thereafter, despite her repeated attempts at contacting him on

telephone, he did not take her calls and did not meet her. Thereafter,

she went to Police Station Nihal Vihar on 26.04.2013 and made a
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  24  of  84  ::-

 
-::  25  ::-

written complaint against the accused       (Ex.PW1/A)      which was in
her handwriting. The police officer on duty, who was a lady and not

in police uniform, had initially refused to accept her complaint but

had later on taken it on record and had put receiving endorsement

on her copy. The police officer on duty had given her one mobile

number which is mentioned at point C telling her that the said

number is of ASI Rekha and she could enquire from her regarding

the status of her complaint. After two days of her filing the

complaint, she telephoned ASI Rekha who expressed her ignorance

regarding any such complaint in the Police Station. Since police did

not take any action on her complaint dated 26.04.2013, she again

visited Police Station Nihal Vihar on 30.04.2013 and enquired
about the action taken on her complaint. She was told that no action

had been taken on her complaint and the police official on duty try

to avoid her. Thereafter, she telephoned the Media person of Sahara

News Channel and narrated the entire incident to them stating that

police was not taking any action on her complaint and she was

present at Police Station Nihal Vihar. After some time, two media

persons came to Police Station Nihal Vihar and they enquired from

the police regarding the action taken on her complaint. Thereafter,

the police recorded a statement without conducting any enquiries
from her and asked her to sign on the same stating that the contents
of her application dated 26.04.2013 have been reproduced in this
statement and thereafter she signed the said statement       (Ex.PW1/B)    .

Thereafter, the FIR was registered in this case. She was taken to

SGM Hospital, Mangol Puri for her medical examination. Her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  25  of  84  ::-

 
-::  26  ::-

internal examination was also conducted by the doctor and her
blood sample as well as other samples were taken. The sealed

exhibits were taken into possession by the IO vide seizure memo

(Ex.PW1/C)    . Before the doctor, she had stated the name of the

accused as Goldy but after her examination when copy of the MLC

was provided to her, she came to know that doctor had written the

name of the accused as Murli. She had informed W.Ct. Seema who

had taken her for her medical examination that name of Goldy has

been wrongly mentioned as Murli in the MLC and she told her that

she wanted to get the same corrected in the MLC. W.Ct. Seema did

not do anything in this regard and took her back to Police Station

Nihal Vihar. She told this fact to the IO SI Koyal but she stated that
now nothing can be done in this regard. She was taken by the

police to the place of occurrence i.e H.No. 779, Village Tihar, New

Delhi where the offence of rape took place with her for the first

time. Investigation Officer prepared site plan (Ex.PW1/D) at her

instance. She had taken the police to the house of accused in A-182,

gali no.7, Phase No-5, Pir Baba Road, Om Vihar, Uttam Nagar,

where accused was present and on her identification, he was

arrested   by   the   Investigation   Officer   vide   arrested   memo

(Ex.PW1/E)      and the personal search memo           (Ex.PW1/F)    . Her
statement was recorded by the learned Metropolitan Magistrate
after about 4 months of registration of FIR. One day prior to her
statement before the learned Metropolitan Magistrate, IO SI Koyal

along with one Inspector came to her residence stating that she was

to be produced before the learned Metropolitan Magistrate for her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  26  of  84  ::-

 
-::  27  ::-

statement. Next day, she came to Tis Hazari Courts where her
statement   (Ex.PW1/G)      was recorded by Ms. Ekta Gauba, the

learned Metropolitan Magistrate. She has prayed that accused

should be punished for the offence he has committed against her.

58. In her complaint   (Ex.PW1/B)      made on 30.04.2013, the prosecutrix

has stated that how she was introduced to the accused through her

friend Ms.Simran @ Tashu  and her friend Mr.Ajay who was friend

of the accused. She has stated in February, 2009, when the

prosecutrix was taken to the house of the accused, she was

intoxicated and raped by him. Thereafter, as he promised to marry
her, he had physical relations with her till about 15 days earlier (till

15.04.2013-calculated). His mother told her that they are marrying

the accused to someone else and she should not interfere. She

contacted the accused and he told her that he cannot go against the

wishes of his parents.

 
59. In her statement under section 164 of the Cr.P.C.       (Ex.PW1/G)     , the

prosecutrix has stated similarly with some variations.

60. Before coming to the factual matrix, briefly the law regarding
physical relations on a false pretext of marriage is required to be
elaborated briefly.

 
61. In the case reported as   Uday v. State of Karnataka, AIR 2003 SC

1639 , the Hon’ble Supreme Court has held as under :-

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  27  of  84  ::-

 
-::  28  ::-

“It therefore, appears that the consensus of judicial opinion is
in favour of the view that the consent given by the prosecutrix
to sexual intercourse with a person with whom she is deeply
in love on a promise that he would marry her on a later date,
cannot be said to be given under a misconception of fact. A
false promise is not a fact within the meaning of the Code. We
are inclined to agree with this view, but we must add that
there is no strait jacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of
fact. In the ultimate analysis, the tests laid done by the Courts
provide  at  best  guidance  to  the  judicial  mind  while
considering a question of consent, but the Court must, in
each   case,   consider   the   evidence   before   it   and   the
surrounding circumstances, before reaching a conclusion,
because each case has its own peculiar facts which may have
a bearing on the question whether the consent was voluntary,
or was given under a misconception of fact. It must also
weigh the evidence keeping in view the fact that the burden is
on the prosecution to prove each and every ingredient of the
offence, absence of consent being one of them.”

62. In the case reported as   Sujit Ranjan v State, 2011 LawSuit (Del)

601 , the Hon’ble Delhi High Court has held that:

“Legal position which can be culled out from the judicial
pronouncements referred above is that the consent given by
the prosecutrix to have sexual intercourse with whom she is
in love, on a promise that he would marry her on a later date,
cannot be considered as given under “misconception of fact”.
Whether   consent   given   by   the   prosecutrix   to   sexual
intercourse is voluntary or whether it is given under “
misconception of fact ” depends  on the facts of each case.
While considering the question of consent, the Court must
consider   the   evidence   before   it   and   the   surrounding
circumstances   before   reaching   a   conclusion.   Evidence
adduced by the prosecution has to be weighed keeping in
mind that the burden is on the prosecution to prove each and
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  28  of  84  ::-

 
-::  29  ::-

every ingredient of the offence Prosecution must lead positive
evidence to give rise to inference beyond reasonable doubt
that accused had no intention to marry prosecutrix at all from
inception and that promise made was false to his knowledge.
The failure to keep the promise on a future uncertain date
may be on account of variety of reasons and could not always
amount to “misconception of fact” right from the inception.”

63. In the case reported as   Deepak Gulati v State of Haryana, (2013)

7 SCC 675 : 2013 Law Suit (SC) 442              , the Hon’ble Supreme

Court has held that:

“Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of
reason, accompanied by deliberation, the mind weighing, as
in a balance, the good and evil on each side. There is a clear
distinction between rape and consensual sex and in a case
like this, the court must very carefully examine whether the
accused had actually wanted to marry the victim, or had
malafide motives, and had made a false promise to this effect
only to satisfy his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false promise. Thus,
the court must examine whether there was made, at any early
stage a false promise of marriage by the accused ; and
whether the consent involved was given after wholly,
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion
for the accused, and not solely on account of mis-
representation made to her by the accused, or where an
accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was unable
to marry her, despite having every intention to do so, such
cases must be treated differently. An accused can be convicted
for rape only if the court reaches a conclusion that the
intention of the accused was malafide, and that he had
clandestine motives. Hence, it is evident that there must be

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  29  of  84  ::-

 
-::  30  ::-

adequate evidence to show that at the relevant time, i.e. at
initial stage itself, the accused had no intention whatsoever,
of keeping his promise to marry the victim. There may, of
course, be circumstances, when a person having the best of
intentions is unable to marry the victim owing to various
unavoidable  circumstances. The “ failure to keep a promise
made with respect to a future uncertain date, due to reasons
that are not very clear from the evidence available, does not
always amount to misconception of fact. In order to come
within the meaning of the term misconception of fact, the fact
must have an immediate relevance.” Section 90 IPC cannot
be called into aid in such a situation, to pardon the act of a
girl in entirely, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her.”
64. Thus, in Uday’s case (supra) and Deepak Gulati’s case (supra), the

Hon’ble Supreme Court laid down the law that if the prosecutrix is

matured to understand the significance and morality associated

with the act, she was consenting to and that she was conscious of

the fact that her marriage may not take place owing to various

considerations, including the caste factor and also that if it is

difficult to impute to the accused, knowledge of the fact that the

prosecutrix had consented as a consequence of a misconception of

fact, that had arisen from his promise to marry her and further that

if there is any evidence to prove conclusively, that the appellant
never intended to marry with the prosecutrix, the accused be given

benefit of doubt.

 
65. In the case reported as   Kuldeep Tyagi v The State NCT of Delhi,

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  30  of  84  ::-

 
-::  31  ::-

2013(2) JCC 840     , it was observed that it was never the case of the
prosecutrix that she ever insisted the accused to marry her. Thus, it

was not a case of refusal to marry, despite promise, hence, not

relevant.

 
66. In the judgment reported as       Nikhil Parashar v. State of Delhi,

2010 (1) JCC 615    , it was observed as follows:

“If I take the view that sexual intercourse with a girl, in the
facts and circumstances such as in the present case, does not
amount   to   rape,   it   will   result   in   unscrupulous   and
mischievous persons, taking undue advantage of innocent
girls by promising marriage with them, without having any
intention to do so, re-assuring the girl and her family by
making the two families meet each other and formalize the
matter by ceremonies, such as an engagement, persuading the
girl to have sexual intercourse with him by making her
believe that he was definitely going to marry her and then
abandoning her, after robbing her of what is most dear to her.
A case where the girl agrees to have sexual intercourse on
account of her love and passion for the boy and not solely on
account of the misrepresentation made to her by the boy or a
case where a boy, on account of circumstances, which he
could not have foreseen or which are beyond his control, does
not marry her, despite having all good intentions to do so, has
to be treated differently from a case, such as the present one,
where the petitioner since the very inception had no intention
of marrying the prosecutrix to whom he was a complete
stranger before he met her to consider the proposal for
marriage with her.”

67. In the case reported as      Karthi @ Karthick v State of Tamil

Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR

2013 SC 2645     , the facts were that the accused used to tease the

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  31  of  84  ::-

 
-::  32  ::-

prosecutrix and one day finding her alone in her house committed
sexual intercourse forcibly and then promised to marry her and

requested that she should not disclose this fact to anybody.

Thereafter they both were engaged in consensual sex at different

places and in all these meeting the accused swore that he would

marry with the prosecutrix. However one day on 05.10.2003, both

the prosecutrix and accused gone in a temple where she requested

the accused to marry her but he refused and on his refusal, she

divulged the entire facts to her family members. Panchayat was

held in village and the accused was summoned there and persuade

to marry with prosecutrix but he refused to marry the prosecutrix

and then the prosecutrix lodged a report.

68. The Hon’ble Supreme Court after considering the case law laid

down, held that the first sexual intercourse was forceful and

thereafter the subsequent acts of sexual intercourse, were actions of

actively cheating her, by giving her the impression that he would

marry her. The occurrence at the Murugan temple, is of significant

importance, where he left the prosecutrix when he was asked to

marry her. Hence the court held that the sexual intercourse by the

accused with the prosecutrix was not consensual as obtaining
consent by exercising deceit, cannot be legitimate defence to
exculpate an accused.

 
69. Thus, on analyzing the law laid down by the Hon’ble Superior

Courts, it appears that the intention of the accused at the time of

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  32  of  84  ::-

 
-::  33  ::-

entering into a relationship is to be seen by the Court as to if he
really intended to marry the prosecutrix or he merely made the

promise to get sexual favours from the prosecutrix. If the facts

suggest that the accused genuinely wished to marry prosecutrix but

it could not materialize due to reasons beyond his control, then in

such an event no offence could be made out. However, on the

contrary, if he had no intention to marry the prosecutrix since

beginning then his case would be squarely covered within the

ambit of offence under section 376 IPC. Prosecution must lead

positive evidence to give rise to inference beyond reasonable doubt

that accused had no intention to marry prosecutrix at all from

inception and that promise made was false to his knowledge. The
failure to keep the promise on a future uncertain date may be on

account of variety of reasons and could not always amount to

“misconception of fact” right from the inception.”

70. Turning to the present case, on carefully scrutiny of her different

statements, it transpires that the prosecutrix has made several
improvements, contradictions and inconsistencies in her evidence

and her deposition is contrary to her earlier statements. Her cross

examination shall be discussed later. Some of the improvements,

contradictions and inconsistencies in the different statements of the

prosecutix are tabulated below:

Complaint-          MLC        of      Statement          Examination
Ex.PW1/B            prosecutrix-       under              in chief
Ex.PW6/A           section   164
Cr.P.C.-
Ex.PW1/G
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  33  of  84  ::-

 
-::  34  ::-

Name        of      Name       of      Name       of      Name         of
accused   is        accused   is       accused   is       accused      is
Goldi               Murli              Goldi              Upender   Dutt
Sharma   @
Goldi
In   February       ……..               Accused            In   February
2009, accused                          called her to      2009, accused
phoned   her                           meet       his     phoned   her
and asked her                          family             and asked her
to come to his                                            to come to his
house at WZ-                                              house at WZ-
779,   Tihar                                              779,      Tihar
Village, Near                                             Village,   Near
Tilak   Nagar                                             Tilak   Nagar
for   meeting                                             for meeting his
his parents.                                              parents.
His   father        ……..               She   reached      From   Tilak
liked     her.                         his   house.       Nagar,      the
Accused                                She met his        accused   had
asked to wait                          father   who       picked her to
till his mother                        had paralysis.     take her to his
returns.                               His   mother       residence. She
was   not   at     met his father
home.              in his house.
Accused told       When        she
him that he        touched   his
liked her and      feet,   he   had
wanted   to        given her his
marry   her.       blessings.
His   father       Accused   told
gave her his       him   that   he
blessings.         liked her and
wanted       to
marry   her  to
which       his
father   replied
that   even   he
approved   of
her.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  34  of  84  ::-

 
-::  35  ::-

……..                ……..               ……..               However,   he
also said that
as   his   wife,
mother of the
accused,   was
not  at  home,
they   should
wait for her to
return.
……..                ……..               Accused            His      father
offered   to       enquired about
show      his      her   residence
house to her       and then, the
and took her       accused
to the other       offered      to
room   where       show his house
they had tea       to her.
and biscuits.

……..                ……..               ……..               He told her to
sit   in   the
second room.
Accused             ……..               Accused            Then   he   left
brought   tea                          went to make       the room and
and   biscuits                         tea   for   her    returned   with
which   they                           while she sat      tea and biscuit.
had.                                   with      his      They had tea
father.            and biscuit.
……..                ……..               Accused            She saw that
brought   tea      he had given
and gave one       one cup of tea
cup of tea to      to   his   father
his father.        also   in   the
other room.

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  35  of  84  ::-

 
-::  36  ::-

After               ……..               Accused            After
consuming                              brought            consuming tea,
tea,       she                         another   cup      she   started
started feeling                        for   himself.     feeling
heaviness   in                         They had tea       heaviness   in
her head (sir                          and biscuits.      her head (sir
bhaari      ho                         After              bhaari      ho
gaya)       on                         consuming          gaya)       on
which   the                            tea       and      which       the
accused   had                          biscuits,   she    accused   had
told her that                          felt heaviness     told   her   that
she       was                          in her head        she        was
coming   from                          and       felt     coming   from
outside,   she                         sleepy.            outside,   she
must be tired                          accused   had      must be tired
and asked her                          told her that      and asked her
to lie down on                         she       was      to lie down on
the bed till his                       coming from        the bed till his
mother                                 outside,   she     mother
returned. She                          must rest till     returned.
slept there.                           his   mother       Thereafter,   as
returned.          she   became
sleepy,   she
slept.
When   she          ……..               When   she         When        she
woke up, she                           woke up, she       woke up, she
found that she                         found              found that she
did not have                           accused            did   not  have
any clothes on                         wearing only       any clothes on
her body.                              underwear          her       body.
and she was        Accused
not   wearing      Upender   also
any clothes.       did   not  have
any clothes on
his body.
He        was       ……..               Accused was         He was lying
touching   her                         touching her         besides her
private parts.                         breast   and           and was
Accused                                private parts.      touching her
forcibly   had                         She   covered       private parts
physical                               herself with a      (private parts
relations with                         pillow.   He        ke saath ched-
her   assuring                         removed   it       chaad kar raha
her         of                         and   raped        tha). When she
marriage.                              her.      She       asked him to

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  36  of  84  ::-

 
-::  37  ::-

could   not          stop, he told
shout as his        her that as his
father was in         father has
the     other       consented for
room.              their marriage,
they could
have physical
relations.
Accused
forcibly had
physical
relations with
her (mere
saath
jabardasti
sharirik
sambandh
banai).
……..                ……..               Accused took       Accused   was
out       her      not   returning
clothes from       her clothes and
under the bed      it   was   only
and   gave         when        she
them to her.       repeatedly
requested him
that   he   took
out her clothes
from under the
bed and gave
them   to   her.
She wore her
clothes.
Accused came
up   to   Tilak
Nagar with her
and   returned
saying that his
father     was
alone at home.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  37  of  84  ::-

 
-::  38  ::-

Accused
assured   her
of   marriage
saying   that
his father had
given   his
assent.
……..                ……..               Then   she         ……..
returned
home.   She
was sad and
did not go to
her office for
two days. On
the third day,
when   she
went       to
office,
accused came
there and met
her. He again
assured   her
of   marriage.
After   few
days,     his
mother   met
her       and
accused told
his   mother
that       he
wanted   to
marry   her.
They started
visiting each
other’s
houses.
They      had       Alleged            They   had         For about 4-5
physical            history   of       physical           years,      the
relations   till    sexual             relations   till   accused
15 days prior       intercourse        first week of      continued   to
to         the      with      the      April,   2013      have   physical
complaint i.e.      consent of the     on        the      relations   with
till                victim   since     assurance of       her saying that
15.04.2013          five years.        marriage           he       would

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  38  of  84  ::-

 
-::  39  ::-

(calculated).                          given      by      marry      her.
accused.           Accused
repeatedly
promised   to
marry her after
which he had
physical
relationship
with her.
……..                Last   episode     ……..               This continued
of   sexual                           up   till   April
intercourse                           2013.
10 days back.
……..                ……..               ……..               In   between,
she   had   met
Ms.Uma,
mother of the
accused,
several   times
and   she   had
also approved
of the marriage
between   her
and         the
accused.
……..                ……..               In   February,     ……..
2012 accused
took her to a
temple   in
Vikas   Puri
and filled the
parting of her
hair.
On                  ……..               On                 On
21.04.2014,                            21.04.2014,        21.04.2013,
mother   of                            accused            the mother of
accused                                phoned   her       the   accused
phoned   her                           saying   that      telephoned her
saying   that                          his   mother       and   told   her
they   were                            wanted   to        that   she   had
getting   the                          talk to her. In    got         the
accused                                evening,   his     accused
married   else                         mother             engaged   to
where and she                          phoned   her       some   other
should   not                           and told her       girl. She also
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  39  of  84  ::-

 
-::  40  ::-

interfere.                             that     they      told   her   that
were getting       she should not
the   accused      telephone   or
married   else     contact   the
where   and        accused.   She
she   should       enquired from
stop phoning       her   whether
him.   The         anything   was
other   girl’s     wrong.   She
family      is     told her that as
giving dowry       her father had
which   her        expired,   they
family cannot      would not be
give.   The        able   to   give
accused   had      her anything in
given   his        marriage   and
acceptance         also  that   she
for       that     was of a lower
marriage and       caste.
he   did   not
want       to
marry   the
prosecutrix.
She was also
threatened to
be   defamed
or killed.
She talked to       ……..               ……..               She telephoned
accused   and                                             the   accused
he   told   her                                           several   times
that he cannot                                            but he did not
go against the                                            take her calls.
wishes of his                                             Accused   sent
parents.                                                  her one SMS
that   he   was
busy. She has
deposed   her
mobile number
(number
mentioned   in
file       and
withheld   to
protect   the
identity of the
prosecutrix).
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  40  of  84  ::-

 
-::  41  ::-

The   mobile
number of the
accused      is
8800557997.
He telephoned
her   in   the
evening   and
told her that he
could not do
anything   but
he would try to
talk   to   his
mother.
Thereafter,
despite   her
repeated
attempts   at
contacting him
on   telephone,
he did not take
her calls and
did not meet
her.

71. It can be seen from the above discussion and the above detailed

table that the prosecutrix has given different and contradictory
versions about practically every aspect of the case.

 
72. One of the catastrophic contradictions is regarding the name of the

accused. In the MLC      (Ex.PW6/A)     , the prosecutrix has given the

name of the culprit as Murli while everywhere else she has said

Goldi. She has tried to justify the same by deposing in her

examination in chief that   “Before the doctor I had stated the name

of the accused as Goldy but after my examination when copy of

the MLC was provided to me I came to know that doctor had

written the name of the accused as Murli. I had informed WCT

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  41  of  84  ::-

 
-::  42  ::-

Seema who had taken me for my medical examination that name
of Goldy has been wrongly mentioned as Murli in the MLC and I

told her I wanted to get the same corrected in the MLC. WCT

Seema did not do anything in this regard and took back to PS

Nihal Vihar. I told this fact to the IO SI Koyal  but she stated that

now nothing can be done in this regard.”              However, no such

deposition has been made by IO SI Koyal (PW10). The prosecutrix

has not made any complaint to any authority that the doctor has

written the name of the accused wrongly. The MLC was prepared

on 30.04.2013 and the prosecutrix gave her statement under section

164 of the Cr.P.C.   (Ex.PW1/G)      on 25.07.2013 but she did not say

anything or make a complaint before the learned Metropolitan
Magistrate regarding the name of the accused being wrong in the

MLC. No explanation is coming forth from the prosecution

regarding this contradiction due to which the prosecution version

appears doubtful.

 
73. The prosecutrix has deposed that       “I went to PS Nihal Vihar on

26.04.2013 and made a  written complaint against the accused

which   was   in   my   handwriting.   Copy   of   the   same   is

Ex.PW1/A………..I telephoned the Media person of  Sahara
News Channel and narrated the entire incident to them stating
that police was not taking any action on my complaint and I was
present at PS Nihal Vihar. After some time two media persons

came to PS Nihal Vihar and they enquired from the police

regarding the action taken on my complaint. Thereafter, police
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  42  of  84  ::-

 
-::  43  ::-

recorded a statement without conducting any enquiries from me
and asked me to sign on the same stating that the contents of my

application dt. 26.04.2013 have been reproduced in this statement

and thereafter I signed the said statement which is Ex.PW1/B,

which bears my signature at point A. Thereafter, the FIR was

registered in this case.”    However, the original of     Ex.PW1/A     was

not produced by the prosecution nor the IO SI Koyal           (PW10)    has

deposed regarding the same. The media persons on whose

intervention the FIR was registered have also not been cited as

witnesses nor produced and examined by the prosecution. The

same shatters the veracity of the testimony of the prosecutrix.

74. The prosecutrix has stated in her statement under section 164 of the

Cr.P.C.  (Ex.PW1/G)     that  “In February, 2012 accused took her to

a temple in Vikas Puri and filled the parting of her hair.”        But this

fact is not mentioned in her any other statement. No explanation

regarding the same is coming forth from the prosecution which

makes her version doubtful.

 
75. The prosecutrix has deposed in her cross examination that           “I did

not make any complaint to anyone on way back from the house
of the accused to my residence in February, 2009 after the
incident nor I had raised any alarm nor sought help from any
one.  I had myself returned to my house.”             No explanation is

coming forth from the prosecution regarding this deposition as why

the porsecutrix did not complain to the father of the accused, her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  43  of  84  ::-

 
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own family, anyone she may have met on way back to her house or
the police, if she was aggrieved due to the conduct of the accused.

The same makes the prosecution version appears doubtful.

 
76. The prosecutrix has deposed in her examination in chief that             “I

saw that he had given one cup of tea to his father also in the

other room. Accused had brought two cups of tea. We had tea and

biscuit.”  Apparently, the tea was also given by the accused to his

father and tea and biscuits were consumed by them-accused and

prosecutrix. Then how only she was intoxicated has not been

explained by the prosecution. He had heaviness in her head and

slept but neither the accused nor his father who had consumed the
same tea and biscuits were not affected has not been explained by

the prosecution.

 
77. The prosecutrix has deposed in her cross examination that           “I was

working in February, 2009 in a company in the name of Vipes

which was in Meera Bagh. It was neither a Sunday nor any

festive occasion on the day when I had gone to the house of

accused in February, 2009. I have not taken any leave from my

office between January and March 2009.”                The fact that the
prosecutrix after the alleged incident of February, 2009 continued
to work normally indicates that she was comfortable with the
arrangement between the accused and herself. She has also not

taken leave from her office shows that she herself was keen to go to

the house of the accused.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  44  of  84  ::-

 
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78. A startling fact is revealed in the cross examination of the

porsecutrix. She has deposed that     “In December, 2009 I had gone

with the accused to Shimla and had stayed in a hotel for a day.   I

had not told this fact to the police in my statement. Ms. Simran

had also accompanied me to Shimla with her friend Mr. Ajay. I

had not told to the police or to any family member that accused

had taken me forcibly to Shimla where he had forcibly

established physical relations with me.  Again said there were no

physical relations between me and accused at Shimla.”              She has

concealed   this   fact   from   the   police,   learned   Metropolitan

Magistrate and this Court and only revealed about the same when
she was cross examined. It appears that she had willingly gone with

the accused to Shimla. She has also not mentioned about her trip to

Shimla with the accused in her complaint, statement under section

164 of the Cr.P.C. and examination in chief and no explanation

regarding the same is coming forth from the prosecution. It appears

that the prosecutrix has made a conscious attempt to conceal this

fact which makes her version doubtful.

 
79. According to the prosecutrix, she had talked frequently to the
accused on phone and also to his mother who had told her on phone
about the accused marrying another girl. However, neither the
phone was seized nor the CDRs of the mobile phones of the

accused and the prosecutrix were obtained during investigation.

The prosecutrix has deposed that     “My phone was not seized by the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  45  of  84  ::-

 
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police Vol. The IO had told me that she would keep my phone
under surveillance.”     This fact also makes the prosecution version

doubtful.

 
80. In her cross examination, the prosecutrix has deposed that         “In the

month of March, 2009 when I had talked to the mother of the

accused and had later met her, I had told her on both the

occasion that the accused had physical relations with me in

February, 2009.”       No explanation is coming forth from the

prosecution regarding not disclosing this fact in her earlier

statements and it appears that the prosecutrix has made a conscious

attempt to conceal this fact which makes her version doubtful.

81. In her cross examination, the prosecutrix has deposed that            “The

number of the mother of the accused was fed in my mobile and

my mother also used to talk to her.”      However, neither the CDRs of

the mobile phone of the prosecutrix have been produced nor the

mother of the prosecutrix has been associated in this case.

 
82. In her cross examination, the prosecutrix has deposed that          “I did

not make any complaint to anyone on way back from the house
of the accused to my residence in February, 2009 after the
incident nor I had raised any alarm nor sought help from any
one.  I had myself returned to my house.”         When such a shocking

incident of rape has occurred with the prosecutrix and she does not

make any complaint to any authority, the same makes her version
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  46  of  84  ::-

 
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doubtful.

83. In her cross examination, the prosecutrix has deposed that          “I did

not make any complaint to any authority against the accused

between the year 2009 and 2013 prior to the lodging of the

present case.”   The prosecutrix has been continuously raped on a

false promise of marriage since February, 2009 till April, 2013 but

she preferred to remain silent about it and not make any complaint

to any authority. No explanation is coming forth from the

prosecution regarding the same which makes her version doubtful.

 
84. In her cross examination, the prosecutrix has deposed that           “I do
not remember the exact date and time but it was summer season

of the year 2009 when I had told my mother and my friends that

the accused and I were going to get married and it was after the

accused had proposed marriage to me. In February, 2009 I had

told the father of the accused that accused and I were going to

get married.”     It is an admitted fact that the families of the

prosecutrix and the accused had not met to discuss their marriage.

She has stated that her mother had talked to the mother of the

accused on phone which is not proved. For more than four years
i.e. w.e.f. February, 2009 to April, 2013, if there was a promise to
marry by the accused to the prosecutrix, then apparently no action
was taken on the same nor the families had met nor any date of the

marriage was fixed. All these facts throw a shadow of doubt on the

prosecution version.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  47  of  84  ::-

 
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85. The prosecutrix has deposed that       “On the day of Holi in 2014 I

had telephoned the accused.”         Giving explanation that       “I was

receiving the calls from the friends of the accused including one

Mr. Ajay number of times for finishing this case so I had called

the accused  .” The prosecutrix calling the accused during the trial

of this case shows her inclination towards him even then. It can be

seen that due to her love for the accused, the prosecutrix wants to

marry the accused and her desperation is evident when she has

contacted him during trial of this case. Apparently, it is a case of

one sided love of the prosecutrix which has not been reciprocated.

86. The prosecutrix was fully aware that she had taken of risk of

having physical relations with the accused without his marring her.

She was fully aware of the pros and cons of the act being educated

and mature.

87. The above mentioned overwhelming contradictions and glaring

inconsistencies in the evidence of the prosecutrix and the other

statements of the porsecutrix cannot be ignored. The veracity of the

testimony of the prosecutrix stands shattered.

 
88. Prosecutrix a consenting party and enjoyed the company of the

accused on her own. If a full grown girl consents to act of sexual
intercourse on promise to marry and continues to indulge in such

activity, it is act of promiscuity on her part and not an act induced

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  48  of  84  ::-

 
-::  49  ::-

by misconception of fact.

89. It appears that the prosecutrix despite knowing about all the pros

and cons that the accused has not married her after the acquittal in

the first case, she still had physical relations with him. She

apparently took this step at her own risk and peril. It may be as she

was in love with him and was desperate to marry him that such a

major step was taken by her. This fact clearly indicates that the

prosecutrix was a consenting party. It also transpires from the

evidence of the prosecutrix that she was phoning him, having

physical relations with him, and this indicates that she herself was

interested in the physical relations with the accused. It appears that
the prosecutrix was aware of the acts she was indulging in and she

being a major surely knew about the morality and complications

attached to the act and hence the accused cannot be held liable.

 
90. It can be seen from the above table that the prosecutrix has made

several   contradictions   in   her   different   statements   and   the

prosecution has not been able to explain or justify them.

 
91. Here, it may be mentioned that it is important to understand what

consent implies and what is consent on misconception of facts or

misrepresentation.

 
92. An argument has been raised by the Additional Public Prosecutor

that the accused on the pretext of love and promise to marry

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  49  of  84  ::-

 
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established a physical relationship with the prosecutrix which
amounts to rape as this is obtaining the consent of the prosecutrix

by fraud and incitement which neither voluntary nor free. Had the

prosecutrix known that the accused would not marry her and he is

already married, she would not established physical relations with

him. There has to be unequivocal consent but the consent of the

prosecutrix was taken by misrepresentation amounting to breach of

trust.

 
93. On the other hand, it had argued by the counsel for the accused that

the accused and the prosecutrix did not have any physical relations

and assuming that the prosecutrix had physical relationship with

the accused, it was with her free consent and will despite knowing

that he will not marry her.

 
94. The crucial expression in section 375 of the IPC which defines rape

as against her will. It seems to connote that the offending act was

despite resistance and opposition of the woman. IPC does not

define consent in positive terms. But what cannot be regarded as

consent is explained in Section 90 which reads as follows:

“Consent given firstly under fear of injury and secondly
under a misconception of fact is not consent at all.”

95. Jowitts Dictionary on English Law, Words and Phrases,

Permanent Edn.      explains “consent” as follows:

“Consent supposes three things a physical power, a mental
power and a free and serious use of them. Hence it is that if
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  50  of  84  ::-

 
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consent   is   obtained   by   intimidation,   force,   meditated
imposition, circumvention, surprise or undue influence, it is
to be treated as a delusion, and not as a deliberate and free
act of mind.”

96. In  Words and Phrases, Permanent Edn., Vol.8-A             , the following

passages culled out from certain old decisions of the American

Courts are found:

“…..adult females understanding of nature and consequences
of sexual act must be intelligent understanding to constitute
consent.”

97. Here, it would be necessary to mention that in the case reported as
Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC

(Cri) 1448  , it has been observed that:

“The failure to keep the promise at a future uncertain date
due to reasons not very clear on the evidence does not always
amount to a misconception of fact at the inception of the act
itself. In order to come within the meaning of misconception
of fact, the fact must have an immediate relevance. The
matter would have been different if the consent was obtained
by creating a belief that they were already married. In such a
case the consent could be said to result from a misconception
of fact. But here the fact alleged is a promise to marry we do
not know when. If a full grown girl consents to an act of
sexual intercourse on a promise of marriage and continues to
indulge in such activity until she becomes pregnant it is an
act of promiscuity on her part and not an act induced by
misconception of fact. Section 90 IPC cannot be called in aid
in such a case unless the Court can be assured that from the
very inception the accused never really intended to marry
her.”
98. Similar observations have also been made in the judgments

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  51  of  84  ::-

 
-::  52  ::-

reported as  Pradeep Kumar Verma v. State of Bihar & anr., AIR
2007 SC 3059; Jyotsana Kora v. The State of West Bengal and

anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v.

State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka,

(2003) 4 SCC 46       and  Naresh Kumar v. State (Govt. of NCT)

Delhi, 2012 (7) LRC 156 (Del)      .

 
99. When a girl, a major, willfully has physical relations with the

accused on the promise to marry on an uncertain date, it cannot be

said that it is a misconception of fact or that her consent has been

obtained by fraud. It is clear that the prosecutrix accepted whatever

physical relationship was there with her free consent.

 
100.     In the present case, it is clear that that the consent of the

prosecutrix on the promise to marry cannot be said to be under a

misconception of fact as she was a major at the time of the alleged

incident and intelligent enough to understand the consequences of

establishing physical relationship with the accused. Mere promise

to marry on an uncertain date does not indicate that the accused has

obtained her consent for the physical relationship by fraud or

misrepresentation. Consent given by the prosecutrix to have

physical relationship with whom she is in love, on a promise that

he would marry her on a later date, cannot be considered as given

under misconception of fact.

 
101.     Thus, sexual intercourse by a man with a woman without her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  52  of  84  ::-

 
-::  53  ::-

consent will constitute the offence of rape. We have to examine as
to whether in the present case, the accused is guilty of the act of

sexual intercourse with the prosecutrix ‘against her consent’. How is

‘consent’ defined? Section 90 of the IPC defines consent known to

be given under ‘fear or misconception’ which reads as under:-

“Consent known to be given under fear or misconception –
A consent is not such consent as it intended by any section of
this Code, if the consent is given by a person under fear of
injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception.”

102.     Thus, if consent is given by the prosecutrix under a

misconception of fact, it is vitiated. It cannot be said that the

alleged consent said to have obtained by the accused was not

voluntary consent and the accused indulged in sexual intercourse

with the prosecutrix by misconstruing to her his true intentions. It

is not borne out from the evidence that the accused only wanted to

indulge in sexual intercourse with her and was under no intention

of actually marrying the prosecutrix.

103.     This kind of consent taken by the accused with clear intention

not to fulfill the promise and persuaded the girl to believe that he is

going to marry her and obtained her consent for the sexual

intercourse under total misconception, cannot be treated to be a

consent.

 
104.     Section 114-A of the Indian Evidence Act, 1872 provides, that

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  53  of  84  ::-

 
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if the prosecutrix deposes that she did not give her consent, then the
Court shall presume that she did not in fact, give such consent. The

facts of the instant case do not warrant that the provisions of

Section 114-A of the Act 1872 be pressed into service. Hence, the

sole question involved herein is whether her consent had been

obtained on the false promise of marriage. Thus, the provisions of

Sections 417, 375 and 376 IPC have to be taken into consideration,

alongwith the provisions of Section 90 of the Act 1872. Section 90

of the Act 1872 provides, that any consent given under a

misconception of fact, would not be considered as valid consent, so

far as the provisions of Section 375 IPC are concerned, and thus,

such a physical relationship would tantamount to committing rape.

 
105.     The judgments reported as         Uday v. State of Karnataka, AIR

2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar,

AIR 2005 SC 203;       Yedla Srinivasa Rao v. State of A.P.,      (2006)
11 SCC 615; and       Pradeep Kumar Verma v. State of Bihar &
Anr., AIR     2007 SC 3059      , observe that in the event that the

accused’s promise is not false and has not been made with the sole

intention to seduce the prosecutrix to indulge in sexual acts, such

an act (s) would not amount to rape. Thus, the same would only

hold that where the prosecutrix, under a misconception of fact to

the extent that the accused is likely to marry her, submits to the lust

of the accused, such a fraudulent act cannot be said to be

consensual, so far as the offence of the accused is concerned.

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  54  of  84  ::-

 
-::  55  ::-

106.     Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,

accompanied by deliberation, the mind weighing, as in a balance,

the good and evil on each side. There is a clear distinction between

rape and consensual sex and in a case like this, the court must very

carefully examine whether the accused had actually wanted to

marry the victim, or had mala fide motives, and had made a false

promise to this effect only to satisfy his lust, as the latter falls

within the ambit of cheating or deception. There is a distinction

between the mere breach of a promise, and not fulfilling a false

promise. Thus, the court must examine whether there was made, at

an early stage a false promise of marriage by the accused; and
whether   the   consent   involved   was   given   after   wholly,

understanding the nature and consequences of sexual indulgence.

There may be a case where the prosecutrix agrees to have sexual

intercourse on account of her love and passion for the accused, and

not solely on account of mis-representation made to her by the

accused, or where an accused on account of circumstances which

he could not have foreseen, or which were beyond his control, was

unable to marry her, despite having every intention to do so. Such

cases must be treated differently. An accused can be convicted for
rape only if the Court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.

107.     Turning back to the case in hand, it may be mentioned here

that the prosecution has not produced any proof of the prosecutrix
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  55  of  84  ::-

 
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being administered any intoxicant at the time of the alleged first
incident. Except for a bare assertion, there is nothing to substantiate

this allegation.

 
108.     It is also clear that the prosecutrix was not confined by the

accused and was willingly with him in February, 2009 in his house

where his father was in another room, as she had neither not

shouted for help nor raised any alarm nor tried to escape nor

complained to his father immediately after the alleged incident or

even later. She had not called the police nor made any complaint to

the neighbours.

109.     Where the evidence of the prosecutrix is found suffering from

serious infirmities, contradictions and inconsistencies with other

material and there being no forensic or medical evidence, then no

reliance can be placed upon her evidence. Onus is always on the

prosecution to prove and accused is entitled to the benefit of

reasonable doubt. Case of the prosecution is to be proved beyond

reasonable doubt and cannot take support from weakness of case of

defence. In case the evidence is read in totality and story projected

by the prosecutrix is found to be improbable, prosecution case
becomes liable to be rejected. If evidence of prosecutrix is read and
considered in totality of circumstances along with other evidence
on record, in which offence is alleged to have been committed, her

deposition does not inspire confidence. Prosecution has not

disclosed true genesis of crime. (Reliance can be placed upon the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  56  of  84  ::-

 
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judgment of the hon’ble Supreme Court reported as               Narender
Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC)             .

110.     If one integral part of the story put forth by a witness-

prosecutrix was not believable, then entire case fails. Where a

witness makes two inconsistent statements in evidence either at one

stage or both stages, testimony of such witness becomes unreliable
and unworthy of credence and in the absence of special

circumstances, no conviction can be based on such evidence.

(Reliance can be placed upon the judgment of the hon’ble Delhi

High Court reported as    Ashok Narang v. State, 2012 (2) LRC 287

(Del) .

 
111.     The fact that the prosecutix did not make any complaint

immediately after the alleged incident of February, 2009 and

thereafter. The same also points towards the prosecution case not

being true.

112.     The Hon’ble Supreme Court had observed in the case of
Deelip Singh Alias Dilip Kumar vs. State of Bihar , AIR 2005 SC

203  that where sexual intercourse took place between parties on

promise of marriage by accused and the statement of the

prosecutrix revealing that  she was fully aware of moral quality of

act and inherent risk involved, she had considered pros and cons of

act  and the prospect of marriage proposal not materializing had

also entered her mind. The participation of prosecutrix in sexual act
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  57  of  84  ::-

 
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could be said to be voluntary and deliberate.
These statements do indicate that she was fully aware of the
moral quality of the act and the inherent risk involved and
that she considered the pros and cons of the act.   The
prospect of the marriage proposal not materializing had also
entered her mind.  Thus her own evidence reveals that she
took a conscious decision after active application of mind to
the things that were happening.  Incidentally, we may point
out that the awareness of the prosecutrix that the marriage
may not take place at all in view of the caste barrier was an
important factor that weighed with the learned Judges in
Uday’s case in holding that her participation in the sexual act
was voluntary and deliberate.”

113.     It is clear from the record that the prosecutrix is now 29 years

old and working as a beautician (as mentioned in her particulars

during evidence). She is a mature woman. The prosecutrix was

fully aware that she had taken of risk of having physical relations

with the accused without his marring her. She was fully aware of

the pros and cons of the act being working and mature.

 
114.     The above mentioned overwhelming contradictions  and
glaring inconsistencies in the evidence of the prosecutrix and the

other statements of the porsecutrix cannot be ignored. The veracity

of the testimony of the prosecutrix stands shattered. Consequently,

no inference can be drawn that the accused is guilty of the charged

offences as the prosecutrix has made different inconsistent

statements due to which her testimony becomes unreliable and

unworthy of credence.

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  58  of  84  ::-

 
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115.     Prosecutrix a consenting party and enjoyed the company of the
accused on her own for four years w.e.f. February, 2009 to April,

2013. If a full grown girl consents to act of sexual intercourse on

promise to marry and continues to indulge in such activity, it is act

of promiscuity on her part and not an act induced by misconception

of fact.

 
116.     It appears that the prosecutrix despite knowing about all the

pros and cons that the accused has not married her, she still had

physical relations with him. She apparently took this step at her

own risk and peril. It may be as she was in love with him and was

desperate to marry him that such a major step was taken by her.

 
117.     Despite knowing everything, the prosecutrix still preferred to

be with the accused and did not raise any objection or resistance.

This fact clearly indicates that the prosecutrix was a consenting

party. It also transpires from the evidence of the prosecutrix that

she went to Shimla with him and this indicates that she herself was

interested in the physical relations with the accused. It appears that

the prosecutrix was aware of the acts she was indulging in and she

being a major surely knew about the morality and complications

attached to the act and hence the accused cannot be held liable.

 
118.     The prosecution has failed to furnish any explanation in

respect of the contradictions in the statements of the prosecutrix.

The inherent contradictions strike at the very root of the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  59  of  84  ::-

 
-::  60  ::-

prosecution story making it unbelievable and improbable. In the
instant  case, the evidence and different statements of the

victim/prosecutrix   suffers   from   such   infirmities   and   the

probabilities due to which the prosecution has come out with a

story,   which   is   highly   improbable.   The   overwhelming

contradictions are too major to be ignored and they strike a fatal

blow to the prosecution version.

 
119.     Where the evidence of the prosecutrix is found suffering from

serious   infirmities   and   inconsistencies   with   other   material,

prosecutrix making deliberate improvements on material points

with a view to rule out consent on her part and there being no

injury on her person even though her version may be otherwise,

then no reliance can be placed upon her evidence. Onus is always

on the prosecution to prove and accused is entitled to the benefit of

reasonable doubt. Case of the prosecution is to be proved beyond

reasonable doubt and cannot take support from weakness of case of

defence. In case the evidence is read in totality and story projected
by the prosecutrix is found to be improbable, prosecution case

becomes liable to be rejected. Prosecutrix knew the accused prior

to the incident. If evidence of prosecutrix is read and considered in

totality of circumstances along with other evidence on record, in

which offence is alleged to have been committed, her deposition

does not inspire confidence. Prosecution has not disclosed true

genesis of crime.

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  60  of  84  ::-

 
-::  61  ::-

120.     It is a case of heinous crime of rape, which carries grave
implication for the accused, if convicted. Therefore, for convicting

any person for the said offence, the degree of proof has to be that of

a high standard and not mere possibility of committing the said

offence. In a criminal case, the prosecution has to prove its case

beyond reasonable doubt against the accused and not merely dwell

upon the shortcoming of defence.

 
121.     Consequently, no inference can be drawn that the accused is

guilty of the charged offence under section 328, 376 read with

section 417 of the IPC as the prosecutrix has made inconsistent

statements due to which her testimony becomes unreliable and

unworthy of credence. There is no material on record that the

prosecutrix was forced into having physical relations by the

accused by intoxicating her and later on a false promise of

marriage.

 
122.     It appears that the prosecutrix had willfully remained with the

accused and had physical relationship, if any, with him being a

consenting party and that the accused does not appear to have

committed any offence.

 
123.     The prosecutrix is an adult. She is sufficiently intelligent to

understand the significance and moral quality of the act she was

consenting to, having friendship with the accused and having no

grievance about her conduct and behaviour at any time and having
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  61  of  84  ::-

 
-::  62  ::-

established physical relationship number of times with her consent
and without any resistance. She never informed her family about

her relationship with the accused or his offer to marry her. Her

versions are inconsistent and contradictory. All the surrounding

circumstances reveal that the prosecutrix established physical

relationship with the accused with her free consent and in such a

situation, there is nothing on the judicial record to show that the

accused has ever committed any offence, as alleged.

 
124.     Therefore, there is no force is the contention of the Additional

Public Prosecutor that the prosecutrix was raped by the accused

after intoxicating her and raped on a false promise of marriage as

her consent is not free.

 
125.     The hon’ble Supreme Court had an opportunity to discuss as

to why discrepancies arise in the statements of witnesses. In the

judgment reported as    Bharwada Boginbhai Hijri Bhai v. State of

Gujarat, 1983 (CRI) GJX 0252 SC            , the Supreme Court pointed

out   the   following   reasons   as   to   why   the   discrepancies,

contradictions and improvements occur in the testimonies of the

witnesses.

a. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
b. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  62  of  84  ::-

 
-::  63  ::-

mental faculties therefore cannot be expected to be attuned
to absorb the details.
c. The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person’s mind,
whereas it might go unnoticed on the part of another.
d. By   and   large   people   cannot   accurately   recall   a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to be a
human tape recorder.
e. In regard to exact time of an incident, or the time duration
of an occurrence, usually people make their estimates by
guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it
depends on the time sense of individuals which varies from
person to person.
f. Ordinarily   a   witness   cannot   be   expected   to   recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated lateron.
g. A witness, though wholly truthful, is liable to be overawed
by   the   court   atmosphere   and   the   piercing   cross-
examination made by counsel and out of nervousness mix
up facts, get confused regarding sequence of events, of fill
up details from imagination on the spur of the moment.
The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or being
disbelieved through the witness is giving a truthful and
honest account of the occurrence witnessed by him
perhaps it is a sort of psychological defence mechanism
activated on the moment.

126.     The prosecution has failed to furnish any explanation in

respect of the contradictions in the statements of the prosecutrix.

The inherent contradictions strike at the very root of the

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  63  of  84  ::-

 
-::  64  ::-

prosecution story making it unbelievable and improbable. In the
instant  case, the evidence and different statements of the

victim/prosecutrix   suffers   from   such   infirmities   and   the

probabilities due to which the prosecution has come out with a

story,   which   is   highly   improbable.   The   overwhelming

contradictions are too major to be ignored and they strike a fatal

blow to the prosecution version. In fact what emerges from the

evidence of the prosecutrix is she has leveled false allegations of

rape against the accused.

 
127.     In the light of the aforesaid nature of deposition of the

prosecutrix, PW1, who happens to be the material witnesses, I am
of the considered view that her deposition cannot be treated as

trustworthy and reliable. Reliance can also be placed upon the

judgment reported as    Suraj Mal versus The State (Delhi Admn.),

AIR 1979 S.C. 1408     , wherein it has been observed by the Supreme

Court as:

“Where witness make two inconsistent statements in their
evidence either at one stage or at two stages, the testimony of
such witnesses becomes unreliable and unworthy of credence
and in the absence of special circumstances no conviction can
be based on the evidence of such witness.”

128.     Similar view was also taken in the judgment reported as

Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C.

Cases 487  .

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  64  of  84  ::-

 
-::  65  ::-

129.     Consequently, no inference can be drawn that the accused is
guilty of the charged offences as the prosecutrix has made different

inconsistent statements due to which her testimony becomes

unreliable and unworthy of credence.

130.     Consequently, no inference can be drawn that the accused is

guilty of the charged offences as the prosecutrix has made
inconsistent statements due to which her testimony becomes

unreliable and unworthy of credence. There is no material on

record that the prosecutrix was forced by the accused.

131.     This brings me to the final question as to whether it was she

was raped by the accused, raped on a false promise of marriage and
made to undergo a semblance of ceremony of marriage. In this

regard it is no doubt true that in her statement before this Court she

has stated that she had physical relations with the accused on a

false pretext of marriage but there are several contradictions in her

statements which remain unexplained and indicate that no such

offence was ever committed by the accused.

 
132.     In the judgment reported as        Namdeo Daulata Dhayagude

and others v. State of Maharashtra,  AIR 1977 SC 381,                it was

held that where the story narrated by the witness in his evidence

before the Court differs substantially from that set out in his

statement before the police and there are large number of

contradictions in his evidence not on mere matters of detail, but on
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  65  of  84  ::-

 
-::  66  ::-

vital points, it would not be safe to rely on his evidence and it may
be excluded from consideration in determining the guilt of accused.

133.     In the judgment reported as       Suraj Mal v. The State (Delhi

Administration) AIR 1979, SC 1408,             it was held that where

witnesses make two inconsistent statements in their evidence either

at one stage or at two stages, the testimony of such witnesses
becomes unreliable and unworthy of credence and in the absence of

special circumstances no conviction can be based on the evidence

of such witnesses.

134.     In such a situation, the assertions made by the prosecutrix that

the accused had physical relations with the prosecutrix forcibly, the
prosecutrix had physical relations with the accused, on the

assurance that he shall marry her, or undergoing a semblance of

ceremony of marriage are per se false and as such, unacceptable

and unbelievable. It is apparently clear that the prosecutrix had

herself got involved physically with the accused. It can be seen

from the evidence of the prosecutrix that the allegations leveled by

her of rape by the accused are false and unbelievable. It seems that

she has not been raped at any point of time but she was a

consenting party to the physical relationship with the accused.

 
135.     It is also saddening to note that when the prosecutrix, an

unmarried illiterate woman, gets involved with a man, in order to

save her respect in society or in her desperation to marry the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  66  of  84  ::-

 
-::  67  ::-

accused as she may have one sided love for him, she is projecting
herself to be a victim and the accused to be a culprit and guilty of

raping her on a false promise of marriage when she herself is fully

aware that the accused has not committed any offence. A case

where the girl agrees to have sexual intercourse on account of her

love and passion for the boy and not solely on account of the

misrepresentation made to her by the boy or a case where a boy, on

account of circumstances, which he could not have foreseen or

which are beyond his control, does not marry her, despite having

all good intentions to do so, has to be treated as innocent.

 
136.     In the light of the aforesaid nature of deposition of the

prosecutrix, PW1, who happen to be the material witnesses, I am of

the considered view that her deposition cannot be treated as

trustworthy and reliable.

 
137.     All the above facts and the ratio of the above referred

judgments indicate that there is no veracity in the prosecution

case in respect of the offences of intoxication and rape, rape on

promise to marry the prosecutrix by accused Mr.Upender Dutt

Sharma @ Goldi and the accused merits to be acquitted for the

offence under section 328, 376 read with section 420 of the IPC.

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  67  of  84  ::-

 
-::  68  ::-

MENS REA / MOTIVE

138.     Regarding the motive of crime, it may be observed that in a

case based on evidence, the existence of motive assumed

significance though the absence of motive does not necessarily

discredit the prosecution case, if the case stands otherwise

established by other conclusive circumstances and the chain of

evidence is so complete and is consistent only with the hypothesis

of the guilt of the accused and inconsistent with the hypothesis of

his innocence.

 
139.     The motive has to be gathered from the surrounding
circumstances and such evidence should from one of the links to

the chain of evidence. The proof of motive would only strengthen

the prosecution case and fortify the Court in its ultimate conclusion

but in the absence of any connecting evidence or link which would

be sufficient in itself from the face of it, the accused cannot be

convicted. Motives of men are often subjective, submerged and

unnameable to easy proof that courts have to go without clear

evidence thereon if other clinching evidence exists. A motive is

indicated to heighten the probability that the offence was
committed by the person who was impelled by the motive but if the
crime is alleged to have been committed for a particular motive, it
is relevant to inquire whether the pattern of the crime fits in which

the alleged motive.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  68  of  84  ::-

 
-::  69  ::-

140.       In the present case, a story has been projected that the
accused has raped the prosecutrix after intoxicating her and then

continued to rape her since February, 2009 till April, 2013 on a

false promise of marriage. This version appears to be untrue as

there is no reason why he would do so. No reason is shown as to

why the accused would jeopardize his future. He has claimed that

the prosecutrix was already married to someone else and she

wanted to extort money from him. In such a situation, when

according to the accused, the prosecutrix is already married, there

can be no reason why an unmarried man would want to marry a

married woman.

141.       There is nothing on the record to show that the accused has

committed the offence, as alleged by the prosecution. He is a

mature man aged about 27 years (as per his MLC-Ex.Pw5/A) and

capable of understanding the implications of his acts. He has

completely denied having physical relations with the prosecutrix at

any point of time.

 
142.       In the present case there is sufficient evidence on record to

show that the accused did not have a motive to commit the offence.
A witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against

the accused, to wish to implicate him falsely. However, there can be

no sweeping generalization. Each case must be judged on its own
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  69  of  84  ::-

 
-::  70  ::-

facts. These observations are only made to combat what is so often
put forward in cases as a general rule of prudence. There is no such

general rule. Each case must be limited to and be governed by its

own facts.

 
143.       There does not appear to be any criminal intention and

mens rea on the part of the accused.

 
DEFENCE OF THE ACCUSED

144.       In his statement under section 313 of the Cr.P.C., the accused

has stated that he is innocent and has been falsely implicated in this

case. He has denied all the evidence of the prosecution. This case

has been falsely lodged against him by the prosecutrix. The

prosecutrix was already to someone else and she wanted to extort

money from me for which she has lodged  the present false case

against me.

 
145.       Accused has preferred to examine three witnesses in his
defence.

 
146.       DW-1- Mr. Phool Singh, Assistant in Diwan Kedar Nath

Charitable Trust, 2, Barat Ghar Marg, Feroze Gandhi Road, Lajpat

Nagar-III, New Delhi-24 has brought the receipt no. 9360 dated

26.04.2005. As per the, list the marriage hall was booked by Mr.

Amit Kumar R/o 185/4 Lukur Ganj, Allahabad and advance

amount of Rs. 7300/- were given by the Mr. Amit Kumar for

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  70  of  84  ::-

 
-::  71  ::-

booking of marriage hall.A marriage invitation card (Mark A)
shows that the address of the marriage hall in the invitation card is

mentioned as 2, Barat Ghar Marg, Feroze Gandhi Road, Lajpat

Nagar-III, New Delhi-24. He has brought the office record

regarding the bookings vide receipts. The photocopy of booking

receipt no. 9360 dated 26.04.2005 of the amount paid by Mr.Amit

Kumar i.e Rs.7300/- is Ex.DW1/A. He did not know the names of

the bride and the groom whose marriage was solemnized in the

marriage hall on 11.05.2005 against which receipt Ex.DW1/A was

issued to Mr. Amit Kumar. In his cross examination, he has

deposed that he has been authorized to attend the Court by

Secretary for Diwan Kedarnath Charitable Trust. He has been
working as an Assistant in Diwan Kedarnath Charitable Trust, 2

Barat Ghar Marg, Firoze Gandhi Road, Lajpat Nagar-III New

Delhi, for the last one year. The document Ex.DW1/A is not in his

handwriting. He has admitted to be correct that he does not know

who had prepared the receipt Ex.DW1/A as he was not working

there in the year 2005. He can not tell that the hall booked for

11.05.2005 was for the purpose of solemnization of marriage or for

any other small function. He has admitted to be correct that the said

hall is being booked for all the purposes like some get together or
some religious function or any birthday, occasion, etc.

 
147.       DW-2-Ct. Dharamvir had brought the summoned record i.e

DD entry no. 34 registered in the Roznamcha register at serial no.

34 dated 16.03.2008 (Ex.DW2/A). In his cross examination, he has
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  71  of  84  ::-

 
-::  72  ::-

deposed that he can tell the name of the writer of DD No. 34 only
by referring to the record brought by him. He does not have any

personal knowledge about the content and writer of DD No. 34.

 
148.       DW-3- Mr.Dev Karan Singh, FSO in Food & Supply

Department, Mundka, Delhi has deposed that he is posted as Food

and Supply Officer at Mundka. Record relating to the ration of Mr.

Sehdev Barvi, the ration card no. 151605 issued for the address of

74, Nilothi Viaster, New Hari Kishen Nagar, Delhi-41 is not

available in his office. However, same is available with the FSO of

Nangloi and directions may be issued to the concerned office to

produce the relevant records. He has not been cross examined.

149.       The accused has claimed that the prosecutrix is an already

married woman who married Mr.Sehdev on 11.05.2005. Her father

had made a complaint against Mr.Sehdev, his son in law vide DD

entry, Ex.DW2/A.

 
150.       DW1 has only produced the record regarding the booking of

hall by Mr.Amit but the same does not prove in any manner that it

was for the marriage of the prosecutrix with Mr.Sehdev. DW2 has
produced the DD entry-Ex.DW2/A but the same also does not
prove in any manner that the prosecutrix is married with Mr.Sehdev
as the complainant and the victim are not examined by the

prosecution. The evidence of DW3 is of no help to the accused as

he has not deposed anything in his favour.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  72  of  84  ::-

 
-::  73  ::-

151.       The defence of the accused has also not been put to the

prosecutrix that she was already married with someone else. No

such suggestion has been given to her by the accused in her cross

examination.

 
152.       It is clear from the MLC of the prosecutrix      (Ex.PW6/A)      and

the FSL report    (Ex.PX-1)    that the prosecutix does not have any

injury and there is nothing found in the exhibits of the prosecutrix

and the accused to connect the accused with the offence. There is

no medical and forensic evidence against the accused.

153.       It is also clear while discussing the different statements of the

prosecutrix, that her version is neither reliable nor believable.

 
154.       Therefore, the defence of the accused although is not proved

but considering the unreliable evidence of the prosecutrix which

suffers   from   overwhelming   contradictions   and   glaring

inconsistencies, the prosecution version is not believable and

reliable.

155.       The case of the prosecution has to stand of its own legs and
is required to prove all its allegations against the accused and all
the ingredients of the offence alleged to have been committed by

the accused.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  73  of  84  ::-

 
-::  74  ::-

156.       Therefore, as the prosecution version is unreliable and
unbelievable that the accused had raped the prosecutrix after

intoxicating her and continued to rape her on a false pretext of

marriage, the defence of the accused appears to be plausible

that he has not committed any offence.

PUBLIC WITNESSES NEITHER CITED NOR EXAMINED

157.     The prosecution has failed to examine some very material
witnesses and this lapse gives a severe blow to the prosecution

case.

 
158.     The Investigation Officer has failed to associate in the

investigation  Ms.Simran, Mr.Ajay, the media persons, mother of

the prosecutrix      who were very material for this case. The

prosecutrix had met the accused through Ms.Simran and Mr.Ajay,

gone with the accused as well as Ms.Simran and Mr.Ajay to

Shimla, phoned the accused on the day of Holi in year 2014 as

Mr.Ajay and other friends of the accused were phoning her to
finish this case, the media persons with whose intervention the

police acted on her complaint, her mother who was talking to the

mother of the accused on phone.  These very material witnesses

have neither been cited as witnesses nor produced nor examined by

the prosecution. Their evidence could have facilitated the Court in

adjudicating the matter.

 
159.     By not citing, producing and examining the above named

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  74  of  84  ::-

 
-::  75  ::-

persons, the prosecution has left out some very material
evidence which may have been of some help to the prosecution

in this case against the accused.

 
INVESTIGATION

160.       The investigation conducted in the present case has been

deposed by police witnesses      (PWs 3, 8 and 10)    . The FIR and FSL

report have been admitted by the accused. The FIR has been proved

by PW4. The MLCs of the prosecutrix and the accused have been

proved by the doctors      (PWs 5, 6 and 7)       . The registers of the

malkhana have been proved by MHC (M)              (PW2)   . The statement

under section 164 of the Cr.P.C. of the prosecutrix has been proved
by the prosecutrix (PW1) as well as PW9. There is nothing on the

record which could show that the investigation has not been

conducted properly, fairly and impartially.

 
161.       The   investigation   conducted   including   the   documents

prepared in the present case has been substantially proved by the

police witnesses including the IO. There is nothing on the record to

show that their testimonies are false or not reliable.

162.       However, it must be mentioned here again that the
Investigation Officer has failed to associate Ms.Simran, Mr.Ajay,
the media persons, mother of the prosecutrix who were very

material for this case.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  75  of  84  ::-

 
-::  76  ::-

163.       It is the actual crime which is important  than the
investigation. Where the actual crime is being elaborated and

proved in the evidence of the prosecutrix and other material

witnesses, then the investigation becomes less important as

prosecutrix has not only deposed regarding the manner of

commission of the crime but has also elaborated all the details and

has assigned a clear and specific role to the accused.

 
164.       There are two stages in the criminal prosecution. The first

obviously is the commission of the crime and the second is the

investigation   conducted   regarding   the   same.   In   case   the

investigation is faulty or it has not been proved in evidence at trial,
does it absolve the liability of the culprit who has committed the

offence?  The answer is logically in the negative as any lapse on the

part of the investigation does not negate the offence.

 
165.       Therefore, the investigation is not being taken into

consideration although it is material but not very relevant as

the evidence of the prosecutrix itself is not reliable and

believable.

 
FINAL CONCLUSION

166.       The prosecution has failed to furnish any explanation in

respect of the numerous contradictions and inconsistencies in the

statements of the prosecutrix. The inherent contradictions strike at

the very root of the prosecution story making it unbelievable and

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  76  of  84  ::-

 
-::  77  ::-

improbable.  In the instant case, the evidence and different
statements of the victim/prosecutrix suffers from such infirmities

and the probabilities due to which the prosecution has come out

with a story, which is highly improbable. The overwhelming

contradictions are too major to be ignored and they strike a fatal

blow to the prosecution version. In fact what emerges from the

evidence of the prosecutrix is that there appears to be an element of

consent of the prosecutrix in having physical relations with the

accused as she has subsequently deposed that she had physical

relations with the accused with her consent and she was in love

with him. It is also clear from the evidence of the prosecutrix that

she had accepted the proposal of the accused. It appears that the
present rape case was lodged by the prosecutrix as she was in love

with the accused and wanted to pressurize him to marry her. She

was also aware that he is getting married elsewhere to another girl

of his parents’ choice.

 
167.       It may be observed here that consent is an act of reason

coupled with deliberation, after the mind has weighed the good and

evil on each side in a balanced manner. Consent denotes an active

will in the mind of a person to permit the doing of an act
complained off. Consent on the part of a woman, as a defence to an
allegation of rape, requires voluntary participation, not only after
the exercise of intelligence, based on the knowledge of the

significance and the moral quality of the act, but after having freely

exercised a choice between resistance and assent.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  77  of  84  ::-

 
-::  78  ::-

 
168.       Prosecution must lead positive evidence to give rise to

inference beyond reasonable doubt that accused had no intention to

marry prosecutrix at all from inception and that promise made was

false to his knowledge. The failure to keep the promise on a future

uncertain date may be on account of variety of reasons and could

not always amount to “misconception of fact” right from the
inception.”

169.       The prosecutrix is an adult who is responsible for her actions.

She is sufficiently intelligent to understand the significance and

moral quality of the act she was consenting to, having physical

relations with the accused knowing that he will not marry her. Her
versions are inconsistent and contradictory. All the surrounding

circumstances reveal that the prosecutrix established physical

relationship with the accused with her free consent and in such a

situation, there is nothing on the judicial record to show that the

accused has ever committed any offence, as alleged.

 
170.       Since the evidence of the prosecutrix, PW1, is neither

reliable nor believable as there are overwhelming contradictions in

her different statements as well as in totality with the other

evidence on record, the conscience of this Court is completely

satisfied that the prosecution has not been able to bring home the

charge against the accused. The prosecution story does not inspire

confidence and is not worthy of credence.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  78  of  84  ::-

 
-::  79  ::-

 
171.       In the case of     Sharad Birdhichand Sarda v. State of

Maharastra, AIR 1984 SC 1622           , the Apex Court has laid down

the tests which are prerequisites  before conviction should be

recorded, which are as under:

i.   The circumstances from which the conclusion of guilt
is to be drawn should be fully established. The
circumstances concerned ‘must or should’ and not
‘may be’ established;
ii.   The facts so established should be consistent onlywith
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty;
iii.   The circumstances should be of conclusive nature and
tendency;
iv.   They should exclude every possible hypothesis except
the one to be proved; and
v.   There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.

172.       Applying the above principles of law to the facts of present

case, it stands established that the accused had not raped the

prosecutrix nor raped her on a false promise of marriage. There is

no incriminating evidence against the accused. The gaps in the

prosecution evidence, the several discrepancies in the evidence and

other circumstances make it highly improbable that such incidents
ever took place.

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  79  of  84  ::-

 
-::  80  ::-

173.       Consequently, no inference can be drawn that the accused is
guilty of the charged offences as the testimony of the prosecution

witnesses is unreliable and unworthy of credence.

174.       Onus is always on the prosecution to prove and accused is

entitled to the benefit of reasonable doubt. Case of the prosecution

is to be proved beyond reasonable doubt and cannot take support
from weakness of case of defence. In case the evidence is read in

totality and story projected by the prosecution is found to be

improbable, prosecution case becomes liable to be rejected.

175.       If the prosecution evidence is read and considered in totality

of circumstances along with other material on record, in which

offence is alleged to have been committed, the deposition does not

inspire confidence and is unreliable and unworthy of credence and

in the absence of special circumstances, no conviction can be based

on such evidence. Prosecution has not disclosed true genesis of

crime.

 
176.       It is a case of heinous crime of rape which carries grave

implication for the accused, if convicted. Therefore, for convicting

any person for the said offence, the degree of proof has to be that of

a high standard and not mere possibility of committing the said

offence. In a criminal case, the prosecution has to prove its case

beyond reasonable doubt against the accused. The prosecution
story does not inspire confidence and is not worthy of credence.

The gaps in the prosecution evidence, the several discrepancies in

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  80  of  84  ::-

 
-::  81  ::-

the evidence and other circumstances make it highly improbable
that such incidents ever took place. Here in the present case, is a

prosecutrix who is not truthful. She has given different statements

and made numerous contradictions and inconsistencies which

remain unexplained.

177.       The prosecution has miserably failed to prove that from 2008
to February 2009 during the first incident on unknown date at WZ-

779, Village Tihar, he offered the prosecutrix  tea and biscuits

mixed with intoxicated material and committed rape upon her; and

thereafter the accused had raped her on the false pretext of marriage

with her.

 
178.       All the above facts indicate that there is no veracity in the

prosecution case in respect of the offences of rape and rape on

promise to marry the prosecutrix by accused Mr.Upender Dutt

Sharma @ Goldi and the accused merits to be acquitted for the

offence under section 376 of the IPC, section 376 read with

section 420 of the IPC.

 
179.       Therefore, in view of above discussion, the conscience of

this Court is completely satisfied that the prosecution has failed to

bring home the charge against the accused             Mr.Upender Dutt

Sharma @ Goldi      .

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  81  of  84  ::-

 
-::  82  ::-

180.         Accordingly,   Mr.Upender Dutt Sharma @ Goldi                , the
accused, is hereby acquitted of the charges for the offences  of

intoxication   and   rape,   rape   on   promise   to   marry   the

prosecutrix under sections 328, 376 read with section 420 of the

IPC.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER
FORMALITIES

181.       Compliance of section 437-A Cr.P.C. is made in the order

sheet of even date.

 
182.       Case property be confiscated and be destroyed after expiry of

period of limitation of appeal.

 
183.       It would not be out of place to mention here that today there

is a public outrage and a hue and cry is being raised everywhere

that Courts are not convicting the rape accused. However, no man,

accused of rape, can be convicted if the witnesses do not support

the prosecution case or give quality evidence, as in the present case

where the evidence of the prosecutrix is neither reliable nor

believable, as already discussed above. It should not be ignored

that the Court has to confine itself to the ambit of law and the

contents of the file as well as the testimonies of the witnesses and is

not to be swayed by emotions or reporting in the media.

 
184.       Here, I would also like to mention, once again as already
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  82  of  84  ::-

 
-::  83  ::-

observed in several other similar cases, that in recent times a new
expression is being used for a rape victim i.e.    a rape survivor    . The

prosecutrix, a woman or a girl who is alive, who has levelled

allegations of rape by a man is now called a rape survivor. In the

present case, the accused has been acquitted of the charge of rape,

after trial, as evidence of the prosecutrix is not reliable. In the

circumstances, such a person, an acquitted accused, who has

remained in custody for a considerable period during inquiry,

investigation and trial and who has been acquitted honourably,

should he now be addressed as       a rape case survivor     ? This leaves

us with much to ponder about the present day situation of the

veracity of the rape cases.

 
185.       It cannot be ignored that the accused due to this case

which has ultimately ended in his acquittal, has suffered

humiliation, distress and misery besides the expenses of the

litigation. His plight may also continue after his acquittal as his

implication may have caused an uproar in society but his
acquittal may not even be noticed. He would continue to suffer

the stigma of being a rape case accused. He has remained in

custody for a considerable period.

186.       It may not be possible to restore the dignity and honour

of the accused nor compensate him for the humiliation, misery,
distress and monetary loss. However, his acquittal may give

him some solace. He may also file any case for damages against

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  83  of  84  ::-

 
-::  84  ::-

the prosecutrix, if advised. No one discusses about the dignity
and honour of a man as all are only fighting for the rights,

honour and dignity of women. Laws for protection of women

are being made which may be misused by a woman but where

is the law to protect a man from such a woman where he is

being persecuted and implicated in false cases, as in the present

case. Perhaps, now it is the time to take a stand for a man.

 
187.       One copy of the judgment be given to the Additional Public

Prosecutor, as requested.

188.       After the expiry of the period of limitation for appeal and

completion of all the formalities, the file be consigned to record
room.

 
Announced in the open Court on             (   NIVEDITA ANIL SHARMA              )

nd
this 02  day of January, 2016.                      Additional Sessions Judge,
(Special Fast Track Court)-01,
West,Tis Hazari Courts, Delhi.
**********************************************************

 
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376  of the Indian Penal Code.
State vs  Upender Dutt Sharma @ Goldi                                                                                   -:: Page  84  of  84  ::-

The post Delhi Sessions Court raises question about dignity of falsely accused men in rape cases appeared first on Men Rights India.

I am beginning to build respect for Justice J R Midha of Delhi High Cout.  Few of his previous judgments are already covered on this site.  Those refer to his decisions on making filing of income and assets affidavits mandatory in any matrimonial suit (divorce, RCR etc), so the the time of court and both parties can be saved in trying to find the level of income/assets of husband and wife, and need for maintenance of wives.

This recent judgment marks a departure from judiciary’s almost lack of concern for unscrupulous litigants and accusers from wasting time of courts, taxpayers’ money, and last but not the least of the accused party or defendants, depending on whether it’s a criminal or civil case.

There are multiple sections in Indian Penal Code (IPC) to punish false statements, fabricated/forged evidence, perjury etc; but rarely do such provisions are utilized to punish those abusing and misusing the judicial system.  In the West, even well known celebrities and rich people have had to spend time in jail, pay fine etc for committing perjury (Martha Stewart, Jeffrey Archer, Lance Armstrong), but all those things are never seen in India, even though Indian law is supposedly derived out of English common law and case laws, and tries to evolve and learn from best of jurisprudence followed in democratic countries like UK and US.  Regular news is repeated in media about lack of courts, judges’ vacancies, but hardly no one tries to find the root causes of why there is high pendency in Indian courts – one of them being almost zero consequences for filing frivolous, false cases, or making false statements in pleadings or during evidence.  It’s good that a few judges are taking up such matters head-on – justice S N Dhingra of Delhi HC was another one who gave such bold and well-reasoned decisions – so standards of judicial decisions can be raised, and hopefully the (self-inflicted) curse of false and frivolous cases can be removed from Indian courts.

Note: The current judgment is regarding a landlord-tenant dispute.  There is another news from September 2015 that Delhi HC has been evolving general guidelines to punish false cases under IPC 209, especially for landlord-tenant disputes: http://indianexpress.com/article/cities/delhi/file-false-claims-before-delhi-high-court-and-face-criminal-action/

The judgment is given below.  Hope to do a brief analysis on IPC 209 etc at a later time.

Full judgment text below:

* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

+                            RFA 784/2010

nd
%                                    Date of Decision : 22  January, 2016

HS BEDI                                     ….. Appellant
Through :  Mr.        Suhail      Dutt,    Senior
Advocate  with  Mr.  Azhar
Alam, Advocate.
versus

NATIONAL HIGHWAY
AUTHORITY OF INDIA                          ….. Respondent
Through :  Mr.  Rohit  Jain,  Advocate  for
NHAI.
Mr.  Siddharth  Luthra,  Senior
Advocate as amicus curiae with
Mr. Satyam Thareja, Advocate.

CORAM :-
HON’BLE MR. JUSTICE J.R. MIDHA

JUDGMENT

1.     In  Subrata Roy Sahara       v.  Union of India,    (2014) 8 SCC 470,

J.S. Khehar, J.    observed that the Indian judicial system is grossly

afflicted with frivolous litigation and ways and means need to be

evolved to deter litigants from their compulsive obsession towards

,
senseless and ill-considered claims.    The Supreme Court discussed
the menace of frivolous litigation.    Relevant portions of the said

judgment are as under:

RFA 784/2010                     Page 1 of 99

“191. The Indian judicial system is grossly afflicted,
with frivolous litigation. Ways and means need to be
evolved,  to  deter  litigants  from  their  compulsive
obsession, towards senseless and ill-considered claims.
One  needs  to  keep  in  mind,  that  in  the  process  of
litigation, there is an innocent sufferer on the other side,
of every irresponsible and senseless claim. He suffers
long  drawn  anxious  periods  of  nervousness  and
restlessness, whilst the litigation is pending, without any
fault on his part. He pays for the litigation, from out of
his savings (or out of his borrowings), worrying that the
other side may trick him into defeat, for no fault of his.
He  spends  invaluable  time  briefing  counsel  and
preparing them for his claim. Time which he should have
spent at work, or with his family, is lost, for no fault of
his. Should a litigant not be compensated for, what he
has lost, for no fault?…
xxx                          xxx                          xxx
194.   Does  the  concerned  litigant  realize,  that  the
litigant on the other side has had to defend himself, from
Court to Court, and has had to incur expenses towards
such defence? And there are some litigants who continue
to  pursue  senseless  and  ill-considered  claims,  to
somehow or the other, defeat the process of law. …”

2.     The  greatest  challenge  before  the  judiciary  today  is  the

frivolous litigation. The judicial system in the country is choked with

false claims and such litigants are consuming Courts’ time for a

wrong cause. False claims are a huge strain on the judicial system.

Perjury has become a way of life in the Courts. False pleas are often

taken and forged documents are filed indiscriminately in the Courts.

The  reluctance of the  Courts  to  order prosecution  encourage  the

litigants  to  make  false  averments  in  pleadings  before  the  Court.

Section 209 of the Indian Penal Code, which provides an effective

RFA 784/2010                     Page 2 of 99

mechanism  to  curb  the  menace  of  frivolous  litigation,  has  been
seldom invoked.

3.     An important question of law of public interest relating to the

scope  of  Section  209  of  Indian  Penal  Code  has  arisen  for

consideration before this Court. Section 209 of the Indian Penal Code

provides that dishonestly making a false claim in a Court is an offence

punishable with punishment of imprisonment upto two years and fine.

Section 209 of the Indian Penal Code is reproduced hereunder: –

“ Section 209  Dishonestly making false claim in Court           —
–
Whoever fraudulently or dishonestly, or with intent to injure
or annoy any person, makes in a Court of Justice any claim
which  he  knows  to  be  false,  shall  be  punished  with
imprisonment of either description for a term which may
extend to two years, and shall also be liable to fine.     ”

4.     Background facts

4.1.    The appellant let out property bearing No.B-529, New Friends

Colony to the respondent for a period of three years vide registered

th
th
lease deed dated 27  April, 1998.  Three years’ period expired on 14
April, 2001.  However, the parties, by exchange of letters, mutually

th
extended the lease upto 30  September, 2001.

th
4.2.    Vide  letter  dated  24   September,  2001,  the  respondent
th
intimated the appellant that the suit property would be vacated on 30
September,  2001  and,  therefore,  the  appellant  may  depute  a

representative to take over the possession.  However, the appellant did

not turn up to take the physical possession.

st
4.3.    Vide letter dated 01  October, 2001, the respondent intimated
th
the  appellant  that  the  suit  property  had  been  vacated  on  30

RFA 784/2010                     Page 3 of 99

September, 2001 and once again requested the appellant to take over
the possession. However, the appellant kept on delaying the taking

over of the possession. The appellant finally took over the possession
th
of the suit property on 18  January, 2002.

4.4.    The respondent claimed the refund of security deposit from the

appellant, who declined to refund the same on the ground that the

same had been adjusted against liquidated damages equivalent to

double the rent.

4.5.    The respondent instituted a suit for recovery of the security

deposit. The Trial Court decreed the respondent’s suit which was

challenged by the appellant before this Court.

th
4.6.    Vide judgment dated 14  May, 2015, this Court dismissed the

appeal. This Court held that the appellant made a false claim before

the Court and issued a show cause notice to the appellant to show

cause why a complaint be not made against him under Section 340

Cr.P.C. for making a false claim under Section 209 of the Indian

Penal Code.

th
4.7.    Paras 14.1 and 14.4 of the judgment dated 14  May, 2015 are
reproduced hereunder:

“14.1      On careful consideration of the rival contentions
of the parties and applying the well-settled principles of law,
this Court is of the view that the tenant’s lease determined
th
on  30   September,  2001  when  the  tenant  offered  the
possession to the landlord, who deliberately chose not to
take  the  possession  with  the  dishonest  intention  of
misappropriating  the  tenant’s  security  deposit  and,
therefore, the possession is deemed to have been delivered

RFA 784/2010                     Page 4 of 99

to the landlord who is not entitled to rent or mesne profits
from the tenant.
14.2       There is no merit in this appeal which is gross

abuse and misuse of the process of law.  The appeal as well
as CM 19620/2012 are, therefore, dismissed with costs of
Rs.50,000/-. CM 1320/2013 is disposed of.
xxx                  xxx                   xxx

14.4       The tenant(sic.landlord) has made a false claim
which amounts to an offence under Section 209 of Indian
Penal Code and therefore, show cause notice is hereby
issued to him as to why the complaint be not made against
him under Section 340 of the Code of Criminal Procedure
for making a false claim under Section 209 of the Indian
Penal Code.   ”
(Emphasis supplied)

th
4.8.    On 19  May, 2015, the appellant tendered an unconditional

apology and sought discharge of the show cause notice issued by this

Court whereupon this Court accepted the unconditional apology and

discharged the show cause notice issued to the appellant subject to

further cost of Rs.50,000/- which has been deposited by the appellant.

However, the matter was kept pending for considering the scope of

Section 209 of the Indian Penal Code.

4.9.    This Court appointed Mr. Sidharth Luthra, Senior Advocate, as

amicus curiae to assist this Court. Mr. Luthra, learned amicus curiae,

has made submissions with respect to the scope of Section 209 of the

Indian Penal Code.

4.10. Mr. Suhail Dutt, learned senior counsel for the appellant, has
made exhaustive submissions on the scope of Section 209 of the

Indian Penal Code.  Mr. Dutt, learned senior counsel, has made

RFA 784/2010                     Page 5 of 99

submissions giving history and object of Section 209 as well as the
corresponding  provisions  in  Singapore,  Pakistan,  Myanmar  and

Malaysia.

5.     History and object of Section 209 IPC

th
5.1.    On 15  June, 1835, the Governor General of India in Council
constituted Indian Law Commission to draft the Indian Penal Code.

The Commission comprised of          Lord T.B. Macaulay, J.M. Macleod,

G.W. Anderson      and  F. Millett , who submitted their report to     George

th
Lord Aukland Governor General of India           on 14  October, 1837.  The
,
report of the Commission has been published by Bengal Military

Orphan Press, Calcutta in 1837.

5.2.    The Law Commission, in their report, proposed Clause 196

which made institution of any civil suit containing a false claim as an

offence. Clause 196 was eventually modified and enacted as Section

209 of the Indian Penal Code.    Clause 196 of the report of the

Commission is reproduced hereunder:

“Clause 196
Whoever, fraudulently, or for the purpose of annoyance,
institutes any civil suit knowing that he has no just ground
to institute such suit, shall be punished with imprisonment
of either description for a term which may extend to one

year, or fine, or both

Explanation:  It is not necessary that the party to whom
the offender intends to cause wrongful loss or annoyance
should be the party against whom the suit is instituted.       ”

5.3.    The  Indian  Law  Commission,  in  Note  G  of  their  Report,

acknowledged that they were creating a new offence which had no

English precedent and they were motivated to criminalise false claims

RFA 784/2010                     Page 6 of 99

because it tends to delay justice and compromise the sanctity of a
Court of justice as an incorruptible administrator of truth and a bastion

of rectitude. The primary objective of the provision was to deter the

filing of such claims.  Relevant portion of Note G is reproduced

hereunder:

“The rules which we propose touching the offence of
attempting to impose on Court of Justice by false evidence
differ from those of the English law, and of the Codes which
we have had an opportunity of consulting. It appears to us, in
the first place, that the offence which we have designated as
the fabricating of false evidence is not punished with adequate
severity under any of the systems to which we refer. This may
perhaps be because the offence, in its aggravated forms, is not
one of very frequent occurrence in western countries. It is
notorious,  however,  that  in  this  country  the  practice  is
exceedingly  common,  and  for  obvious  reasons.  The  mere
assertion of witness commands far less respect in India than
in Europe, or in the United States of America. In countries in
which the standard of morality is high, direct evidence is
generally  considered  as  the  best  evidence.  In  England
assuredly it is so considered, and its value as compared with
the value of circumstantial evidence is perhaps overrated by

the great majority of the population. But in India we have
reason to believe that the case is different. Judge, after he has
heard transaction related in the same manner by several
persons who declare themselves to be eye-witnesses of it, and
of whom he knows no harm, often feels considerable doubt
whether the whole from beginning to end be not fiction, and is
glad to meet with some circumstance, however slight, which
supports  the  story, and  which  is  not  likely  to  have been
devised for the purpose of supporting the story.

We think this the proper place to notice an offence
which bears a close affinity to that of giving false evidence,
and which we leave, for the present, unpunished, only on
account  of  the  defective  state  of  the  existing  law  of

procedure. We  mean  the  crime  of  deliberately  and

RFA 784/2010                     Page 7 of 99

knowingly asserting falsehoods in pleading        . Our opinions on
this subject may startle persons accustomed to that boundless
licence which the English law allows to mendacity in suitors.
On what principle that licence is allowed, we must confess
ourselves unable to discover.     A lends Z money. Z repays it. A
brings an action against Z for the money, and affirms in his
declaration that he lent the money, and has never been
repaid.  On  the  trial  A’s  receipt  is  produced.    It  is  not
doubted, A himself cannot deny, that he asserted falsehood
in his declaration. Ought A to enjoy, impunity?  Again: Z
brings an action against A for debt which is really due.  A’s
plea is a positive averment that he owes Z nothing.  The case
comes to trial; and it is proved by overwhelming evidence
that the debt is a just debt. A does not even attempt a
defence. Ought A in this case to enjoy impunity?  If, in
either of the cases which we have stated, A were to suborn
witnesses  to  support  the  lie  which  he  has  put  on  the
pleadings, every one of these witnesses, as well A himself,
would be liable to severe punishment. But false evidence in
the vast majority of cases springs out of false pleading, and
would be almost entirely banished from the Courts if false
pleading could be prevented      .
It appears to us that all the marks which indicate that
an act is proper subject for legal punishment meet in the act
of false pleading. That false pleading always does some
harm is plain. Even when it is not followed up by false
evidence  it  always  delays  justice.  That  false  pleading
produces any compensating good to atone for this harm has
never, as far as we know, been even alleged. That false

pleading will be more common if it is unpunished than if it
is  punished  appears  as  certain  as  that  rape,  theft,
embezzlement, would, if unpunished, be more common than
they now are. It is evident also that there will be no more
difficulty in trying charge of false pleading than in trying
charge of false evidence. The fact that statement has been
made in pleading will generally be more clearly proved than
the fact that statement has been made in evidence. The
falsehood of statement made in pleading will be proved in

RFA 784/2010                     Page 8 of 99

exactly  the  same  manner  in  which  the  falsehood  of
statement made in evidence is proved. Whether the accused
person knew that he was pleading falsely, the Courts will
determine  on  the  same  evidence  on  which  they  now
determine whether witness knew that he was giving false
testimony.
We have as yet spoken only of the direct injury produced
to honest litigants by false pleading. But this injury appears to
us to be only part, and perhaps not the greatest part, of the
evil engendered by the practice.      If there be any place where
truth  ought  to  be  held  in  peculiar  honor,  from  which
falsehood ought to be driven with peculiar severity, in which
exaggerations, which elsewhere would be applauded as the
innocent sport of the fancy, or pardoned as the natural
effect of excited passion, ought to be discouraged, that place
is Court of Justice.     We object therefore to the use of legal
fictions even when the meaning of those fictions is generally
understood, and we have done our best to exclude them from
this Code. But that person should come before Court, should
tell that Court premeditated and circumstantial lies for the
purpose of preventing or postponing the settlement of just
demand, and that by so doing he should incur no punishment
whatever, seems to us to be state of things to which nothing
but habit could reconcile wise and honest men. Public opinion
is vitiated by the vicious state of the law. Men who, in any
other circumstances, would shrink from falsehood, have no
scruple about setting up false pleas against just demands.
There is one place, and only one, where deliberate untruths,
told  with  the  intent  to  injure,  are  not  considered  as
discreditable and that place is Court of Justice.           Thus the
authority of the tribunals operates to lower the standard of
morality, and to diminish the esteem in which veracity is held

and  the  very  place  which  ought  to  be  kept  sacred  from
misrepresentations  such  as  would  elsewhere  be  venial,
becomes  the  only  place  where  it  is  considered  as  idle
scrupulosity to shrink from deliberate falsehood.
We  consider  law  for  punishing  false  pleading  as
indispensably necessary to the expeditious and satisfactory

RFA 784/2010                     Page 9 of 99

administration of justice, and we trust that the passing of
such law will speedily follow the appearance of the Code of
procedure.    We do not, as we have stated, at present propose
such  law,  because,  while  the  system  of  pleading  remains
unaltered in the Courts of this country, and particularly in the
Courts established by royal charter, it will be difficult, or to
speak more properly, impossible to enforce such law.              We
have, therefore, gone no further than to provide punishment
for  the  frivolous  and  vexatious  instituting  of  civil  suits,
practice which, even while the existing systems of procedure
remain unaltered, may, without any inconvenience, be made
an offence.   The law on the subject of false evidence will, as it
appears to us, render unnecessary any law for punishing the
frivolous and vexatious preferring of criminal charges.”
(Emphasis supplied)

6.     Scope of Section 209 of the Indian Penal Code

6.1    Ingredients of the offence

The essential ingredients of an offence under Section 209 are as

under:

(i)     The accused made a claim;

(ii)    The claim was made in a Court of Justice;

(iii)    The claim was false, either wholly or in part;

(iv)    The accused knew that the claim was false; and

(v)     The claim was made fraudulently, dishonestly, or with

intent to injure or to annoy any person.

6.2    A litigant makes a ‘     claim ’ before a Court of Justice for the

purpose of Section 209 when he seeks certain relief or remedies from

the Court and a ‘  claim  ’ for relief necessarily impasses the grounds for

obtaining that relief.  The offence is complete the moment a false

claim is filed in a Court.

RFA 784/2010                    Page 10 of 99

6.3    The word “    claim ” in Section 209 of the IPC cannot be read as
being confined to the prayer clause.  It means the “            claim ” to the

existence or non-existence of a fact or a set of facts on which a party

to a case seeks an outcome from the Court based on the substantive

law and its application to facts as established.  To clarify, the word

“ claim ” would mean both not only a claim in the affirmative to the

existence of fact(s) as, to illustrate, may be made in a plaint, writ

petition, or an application; but equally also by denying an averred fact

while responding (to the plaint/petition, etc.) in a written statement,

counter affidavit, a reply, etc.    Doing so is making a “      claim ” to the

non-existence of the averred fact.  A false “      denial ”, except when the

person responding is not aware, would constitute making a “          claim ” in

Court.

6.4    The word ‘    claim ’ for the purposes of Section 209 would also

include the defence adopted by a defendant in the suit.  The reason for

criminalising false claims and defences is that the plaintiff as well as

the defendant can abuse the process of law by deliberate falsehoods,

thereby perverting the course of Justice and undermining the authority

of the law.

6.5    The words “     with intent to injure or annoy any person           ” in

Section 209 means that the object of injury may be to defraud a third

party, which is clear from the Explanation to Clause 196 in the Draft

Code namely     “It is not necessary that the party to whom the offender

intends to cause wrongful loss or annoyance should be the party

against whom the suit was instituted.”

6.6    In   Queen-Empress  v.  Bulaki  Ram,          (1890)  All  WN1,  the

RFA 784/2010                    Page 11 of 99

plaintiff instituted a suit for recovery of Rs 88-11. In the course of
proceedings, the defendant produced a receipt from the plaintiff for

Rs 71-3-3.  The  plaintiff’s  claim  to  the  extent  of    Rs 71-3-3  was

dismissed but the decree was passed for the balance. The plaintiff was

subsequently charged with making a false claim.          Straight J.  held that

the Section 209 is not limited to cases where the whole claim made by

the accused is false.  It applies even where a part of the claim is false.

The relevant portion of the judgment is reproduced hereunder:

“ The  petitioner  brought  a  suit  against  another  person  to
recover from that person a sum of Rs. 88-11, and in his plaint
he alleged that the whole of that amount was due and owing
from  the  defendant.  In  the  course  of  the  proceedings  the
defendant produced a receipt purporting to have been made by
the plaintiff for a sum of Rs. 71-3-3. Both the Courts of first
instance and the appellate Court which subsequently heard the
appeal,  were  of  opinion  that  the  defendant  satisfactorily
established that he had paid to the plaintiff the sum of Rs. 71-3-
3, and that to that extent the claim of the plaintiff was an untrue
and unjust one, and accordingly his suit was dismissed to that
extent, and the decree given him for the balance. The Munsif,
who tried the case, had an application made to him for sanction
for prosecution of this plaint for false verification of plaint and
also for dishonestly and fraudulently making a false claim, and
he sanctioned, prosecution under both sanctions. The learned
Judge in appeal, for reasons which are stated in his judgment,
and which I need not discuss, considers it unnecessary that the
prosecution should be maintained under s. 198, but he affirms
the sanction under s. 209 of the Indian Penal Code.
The contention urged before me on behalf of the petitioner
against that order is first, that s. 209 of the Indian Penal Code
has no application to the facts of the case, and secondly, that
taking all the circumstances together there is no case in respect
of which it is likely a conviction can be sustained. I think it
enough, with the exception of one remark I shall have to make,

RFA 784/2010                    Page 12 of 99

to say that I am not trying, nor am I deciding upon the guilt or
otherwise of the person to be prosecuted. I have to determine
whether in my opinion there is prima facie material to warrant
the institution of his prosecution. How that prosecution will
proceed or what effect the evidence when produced to support
it will have I am unable to say, but there is sufficient prima
facie material  to  warrant  prosecution.          Mr Amiruddin has
contended that because a part of the petitioner’s claim was
held to be well founded and due and owing, therefore his
conduct and action does not fall within s. 209 of the Indian
Penal Code, and he says that section contemplates that the
whole claim and every piece of it must be false. I entirely
dissent from this view. As I put an illustration in the course of
argument, so I do now, that if that view were adopted, a man
having a just claim against another for Rs. 5, may make claim
for Rs. 1,000, the Rs. 995 being absolutely false, and he may
escape punishment under this section. The law never intended
anything so absurd. These provisions were made by those who
framed this most admirable Code, which I wish we had in
England, with full knowledge that this was a class of offences
very common in this country       . We who sit in this Bench and try
civil cases know that this is so, and that most dishonest claims
are made by persons who thinking to place a judgment-debtor
in difficulty, repeat claims against him which are satisfied..”
(Emphasis supplied)

6.7    In   Deputy Legal Remembrancer and Public Prosecutor of

,
Bihar and Orissa v. Ram Udar Singh           AIR 1915 CAL 457, a suit for
recovery was dismissed as being false and malicious whereupon an

application for prosecution of the accused under Section 209 IPC was

filed before the Munsif who dismissed the application on the ground

of delay in making the application. The Division Bench of Calcutta

High Court held that mere delay cannot be a ground to dismiss the

application. The Division Bench further held that the refusal to grant a

RFA 784/2010                    Page 13 of 99

sanction  to  prosecute  has  resulted  in  failure  of  justice.  Relevant
portion of the said judgment is reproduced hereunder:-

“5. ……. The ground for refusing sanction in the
Courts below was solely that of delay. Doubtless in
many cases where there is delay by a person in
applying for the sanction to prosecute, the delay
may suggest a want of good faith on the part of the
applicant.  The  present  case,  however,  is  in
substance  a  prosecution  undertaken  by  the
Government and mere delay cannot, therefore, be
taken as suggesting mala fides.
6. I think the reasons assigned by the lower Courts
for refusing to grant a sanction when they came to
the conclusion that the suit was false and malicious,
are insufficient and have occasioned a failure of
justice. I think the present Rule ought to he made
absolute  and  sanction  should  be  granted  to
prosecute the opposite party under Section 209 of
the Indian Penal Code. We accordingly sanction the
prosecution of Ram Udar Singh under Section 209
of the Indian Penal Code for having on the 10th
December 1912 dishonestly made a false claim in
Court, viz., in Suit No. 308 of 1912 in the second
Court of the Munsiff at Muzaffarpore against Naik
Lahera and Hira Labera.”

6.8    In  Badri v. Emperor,     AIR 1919 All 323, the Allahabad High

Court held that Section 209 has used the words ‘         Court of Justice  ’ as

distinguished from a ‘     Court of Justice having jurisdiction’       .    It is

immaterial whether the Court in which the false claim was instituted

had jurisdiction to try the suit or not.    The relevant portion of the

judgment is reproduced hereunder:

“2.     Now on the learned Judge’s finding, which is the
only  finding  with  which  I  am  concerned,  these  four

RFA 784/2010                    Page 14 of 99

persons  fraudulently,  dishonestly  and  with  intent  to
injure Badri, misrepresenting their residence, went to a
Court which they knew had no jurisdiction and obtained
by the use of the most dishonest methods decrees for
sums not due to them, and in one instance obtained the
imprisonment of Jagat for six weeks.  It would have been
an extraordinary defect in the Indian Penal Code if such
acts could pass unpunished, because the Court had no
jurisdiction, but I see no reason to suppose that the law
contains this defect.     The words in Section 209 are “a
Court  of  Justice”  not  “a  Court  of  justice  having
jurisdiction in the case.”  If a person brings a claim in a
Court of justice which has no jurisdiction the case falls
under Section 209 in my opinion, and similarly, if he
obtains a decree fraudulently for a sum of not due, the
case will fall under Section 210, whether the Court had,
or had not, power to pass the decree.      ”
(Emphasis supplied)

6.9    In  Ramnandan Prasad Narayan Singh v. Public Prosecutor,

Patna,  (1921) 22 Cr LJ 467, the Patna High Court held that mere

dismissal of the plaintiff’s claim would not justify sanction under

Section 209 of the Indian Penal Code. A mere proof that the accused

failed to prove his claim in the civil suit or that Court did not rely

upon his evidence on account of discrepancies or improbabilities is

not  sufficient.  The  Court  held  that  the  plaintiff  may  have  over-

estimated his case but that will not necessarily show that he was

making a false claim.  Relevant portion of the said judgment is

reproduced hereunder: –

“The case was, therefore, decided upon the question of
onus, which was thrown upon the petitioner by reason of
the Survey entries.  It was not decided that the claim of
the plaintiffs was false.  Therefore, the decision in the

RFA 784/2010                    Page 15 of 99

former case does not at all show that the claim of the
plaintiffs, either in those eight suits or in the present
ones, was necessarily false, nor does it show that the
claim was in bad faith and not bona fide.  As the learned
Judge has put it,    he may have over-estimated his case
and even may have claimed more than what was his
legal due, but that will not necessarily show that he was
making a false claim, and unless there was evidence
that the claims made in those suits were false section
209, Indian Penal Code, has no application.  The mere
dismissal  of  the  plaintiff’s  claim  would  not  justify
sanction under section 209, Indian Penal Code          .”
(Emphasis supplied)

6.10  In    National Insurance Company Limited v. Babloo Pal and
Ors . (1999) ACJ 388, two persons impersonated themselves as son

and daughter of the deceased victim of a road accident to claim

compensation under Section 166 of the Motor Vehicles Act, 1988.

The Madhya Pradesh High Court directed the Claims Tribunal to

conduct an inquiry into the matter. From the inquiry report, it was

clear that the claimants were not the son and daughter of the deceased

and  had  impersonated  to  claim  compensation.  The  High  Court

directed the Registrar to initiate proceeding for prosecution of the two

litigants and their lawyer under Section 207, 209, 419 and 420 of the

Indian Penal Code. Relevant portion of the judgment is reported

hereunder :-

“5.  After considering objection and the report of
the Enquiry Officer, it is apparent that Babloo Pal
had  impersonated  himself  as  son  of  deceased
Patiram, whereas lady Sukhi, sister of Babloo Pal
had impersonated herself as Sukhi, though her
name is Ramko.

RFA 784/2010                    Page 16 of 99

6. Babloo Pal has moved an application, after the
award,  in  this  inquiry,  claiming  himself  to  be
adopted son of the deceased Patiram. These facts
were not mentioned by him in the application for
claim filed under Section 166 of Motor Vehicles Act.
From entire proceedings, it is apparent that plea of
adoption is an after-thought. The adoption was also
not proved by Babloo Pal. There is no evidence on
record to demonstrate that there was any ceremony
of give and take of Babloo Pal by natural parent to
adoptive father. The Claims Tribunal has rightly
held that Babloo Pal was not adopted son and he
had misrepresented before the Tribunal in getting
the claim. Similar finding is recorded that claimant
Sukhi in the application is not Sukhi but her name is
Ramko and she had impersonated herself as Sukhi.
The court also found that complainant is the real
daughter  of  Patiram.  The  conduct  of  Mr.  N.D.
Singhal, Advocate, was also considered and from
going through the conduct of Mr. N.D. Singhal, it
appears that Mr. N.D. Singhal himself was also
involved in playing fraud with the court, and was in
a position to get an award in favour of fictitious
persons.
7. It is really distressing that an advocate, who is an
officer of the court, has neglected to perform his
duty. It is the duty of an advocate to be fair in the
court and should apprise the court about the correct
facts. He being officer of the court is duty bound to
assist the court in administration of justice, but the
act  of  Mr. N.D.  Singhal was unbecoming of an
advocate and he has denied the real claimant of her
legitimate  right  in  receiving  compensation.  The
objections of claimants and of Mr. N.D. Singhal are
considered. After considering the entire evidence on
record,  we  are  of  the  opinion  that  the  findings
recorded by the Claims Tribunal are proper, which
have been recorded after appreciating the evidence

RFA 784/2010                    Page 17 of 99

on record. Therefore, the report is accepted. As
ordered in M.C.C. No. 302 of 1996,       the Registrar is
directed to report in order to initiate proceedings
for prosecution against Babloo Pal, Ramko (who
impersonated  herself  as  Sukhi)  and  Mr.  N.D.
Singhal, Advocate under the provisions of Sections
207, 209, 419 and 420 of Indian Penal Code. It is
further ordered that notice of criminal contempt
for playing fraud upon the court be also issued to
Mr.  N.D.  Singhal,  Advocate,  Babloo  Pal  and
Ramko by registering separate proceeding and for
their appearance in the court on 24.10.1997.
8. The grave misconduct is committed by Mr. N.D.
Singhal, Advocate. Therefore, a copy of this order
be sent to the State Bar Council at Jabalpur for
appropriate  action  against  Mr.  N.D.  Singhal,
Advocate.
9. The amount of compensation paid to Babloo Pal
and Ramko be recovered from them. Since Mr. N.D.
Singhal, Advocate, was instrumental in getting the
fraudulent claim, he is also jointly and severally
liable  to  refund  the  amount  of  compensation
received by the claimants. It is, therefore, ordered
that  the  compensation  with  interest  paid  to
aforesaid persons, shall be recovered from Babloo
Pal,  Ramko  and  Mr.  N.D.  Singhal,  jointly  and
severally with interest at the rate of 14 per cent per
annum from the date of payment till realization.”
(Emphasis supplied)

7.     Recent cases of Delhi High Court in which Section 209 IPC
has been invoked

th
7.1.    In  Surajpal Singh v. Punjab and Sind Bank          (Order dated 10
April, 2015 in RFA No.110/2015), the appellant took a loan from
Punjab and Sind Bank by mortgaging his immovable property.  The

bank instituted two suits for recovery of Rs.2,09,201.65 against the

RFA 784/2010                    Page 18 of 99

appellant in 1961 and 1963.  During the pendency of these suits, the
appellant compromised the matter with the bank.  The terms of the

settlement  were  that  the  mortgaged  property  was  given  by  the

appellant to the bank in full and final settlement of the loan amount.
th
The Sub-Judge, First Class recorded the settlement on 09  June, 1965

and passed a comprise decree which recorded that the appellant has

transferred the property to the bank, possession has been delivered to

the  bank,  the  bank  has  become  the  full  owner  thereof  and  the
th
appellant has no right or interest therein.  On 28  October, 2014 i.e.

after about 50 years of the compromise decree, the appellant instituted

th
a suit for cancellation of the decree dated 09  June, 1965.  The suit
was dismissed by the Trial Court with costs of Rs.50,000/- for filing a

frivolous and time barred suit after almost half century.  The appellant
th
approached this Court in appeal.  On the first date of hearing i.e. 10

April, 2015, this Court issued a show cause notice to the appellant to

show cause as to why a complaint be not made against him under

Section 340 of the Code of Criminal Procedure for an offence under

Section 209 of the Indian Penal Code.  Relevant portion of the order

th
dated 10  April, 2015 is reproduced hereunder:
“1.     The appellant has challenged the impugned judgment
rd
dated 3  November, 2014 whereby the learned Trial Court has
dismissed his suit with cost of Rs.50,000/- for filing a frivolous
and time barred suit without any justified ground after a lapse
of almost half century.
th
2.      On 28  October, 2014, the appellant instituted a suit for
th
cancellation of a decree dated 9  June, 1965 passed by the
Sub-Judge First Class in Suit No.63/1963 and 495/1961.

xxx                   xxx                  xxx

RFA 784/2010                    Page 19 of 99

4.      The reading of the decree dated 9th June, 1965 makes it
clear that in a suit for recovery of Rs.2,09,201.65 with interest,
the appellant compromised the matter with the bank and the
mortgaged properties were transferred in favour of the bank.
The appellant delivered the possession of the property also to
the bank.  The Court recorded the compromise and declared
that  bank  has  become  full  owner  of  the  property  and  the
appellant has no right, title or interest therein.
5.      Learned counsel for the appellant submits that there is no
valid  transfer  of  the  property  in  favour  of  the  Bank  and
therefore, the appellant continues to be the owner.  Learned
counsel further submits that the bank has not become the owner
of the property and therefore, the decree is liable to be set
aside.
6.      This Court is of the prima facie view that the appellant
has made a false claim which amounts to an offence under
Section 209 of the Indian Penal Code.

7.      Before hearing the matter further, a show cause notice
is issued to the appellant as to why a complaint be not made
against him under Section 340 CrPC for an offence under
Section 209 of the Indian Penal Code.
8.      The appellant present in Court accepts the show cause
notice and seeks time to file the reply. Let the reply to the show

cause notice be filed within one week from today.”
(Emphasis supplied)

th
On  29   May,  2015,  the  appellant  sought  permission  to
withdraw the appeal and tendered unconditional apology which was

accepted and the appeal was dismissed with costs.
th
7.2.    In  Gagan Myne v. Ritika Bakshi        (order dated 30  April, 2015

in RFA 125/2015), the tenant challenged a decree for possession on

the ground that the period of two years of the lease had not expired

and upto date rent and post-dated cheques upto the expiry of two years

period had been given to the landlord whereupon this Court issued

RFA 784/2010                    Page 20 of 99

notice to the landlord and in the meantime, stayed the execution of the
impugned decree. The landlord approached this Court for vacation of

the stay on the ground that the tenant was in arrears of more than

Rs.11 lakh whereupon the tenant admitted being in arrears.  This

Court dismissed the appeal and issued a show cause notice to the

tenant as to why a complaint be not made against him under Section

340 of the Code of Criminal Procedure for making a false claim under
th
Section 209 IPC.   Relevant portion of the order dated 30  April, 2015

is reproduced hereunder:

“1.     The appellant has challenged the impugned decree for
th
possession dated 24  December, 2014 in respect of first floor of
property D-415, Defence Colony, New Delhi – 110024 on the
ground that the appellant had taken the subject property on
th
lease for a period of two years from 18  September, 2013 to
th
17  September, 2015 at a monthly rent of Rs.85,000/- to be
increased by 10% after 12 months apart from maintenance
th
charges of Rs.10,000/- vide registered lease deed dated 18
September, 2013.
th
2.      This appeal was listed for admission on 27  February,
2015 when it was submitted that the appellant has given post-
th
dated  cheques  for  the  entire  period  of  lease  upto  17
September,  2015  to  the  respondent.    On  the  basis  of  the
submissions made by the appellant, this Court issued the notice
th
to the respondent returnable on 13  May, 2015 and stayed the
execution of the impugned judgment and decree.
3.      The respondent has approached this Court by filing CM
7659/2015 for vacation of the ex parte stay order on the ground
that  the  appellant  has  not  paid  the  rent  and  maintenance
th
charges of the suit property since 18  June, 2014 and the
arrears of rent and maintenance are more than Rs.11,00,000/-.
Learned counsel for the respondent submits that the appellant
has made a false claim before this Court to obtain an ex parte
stay order against the decree for possession.  Learned counsel

RFA 784/2010                    Page 21 of 99

for the respondent further submits that the appellant did not
th
serve the copy of the order dated 27  February, 2015 on the
respondent.
4.      The appellant is present in Court and has handed over an
undertaking in which he has admitted the arrears of rent as
Rs.7,44,000/-.  The appellant seeks time to handover the vacant
and peaceful possession of the suit property to the respondent
st
on 31  May, 2015.  However, the appellant is not prepared to
pay the arrears of rent and maintenance charges.  He further
submits that at present he does not have the means to pay and
he seeks time to give a schedule for payment of amount in
instalments.

5.      On careful consideration of the contentions raised by
the appellant, this Court is of the view that the appellant has
made a false claim before this Court by concealing that he is
in arrears of rent and maintenance charges to the tune of
more than Rs.7,00,000/- and has played fraud to this Court to
obtain an ex parte order from this Court.

6.      The appeal and the pending applications are therefore
dismissed with cost of Rs.50,000/-.
7.      A show cause notice is hereby issued to the appellant
why a complaint be not made against him under Section 340
Cr.P.C. for filing a false claim under Section 209 of the
Indian Penal Code.          The appellant present in Court accepts
notice.  The reply to the show cause notice be filed within one
week from today.

8.      List for considering the appellant’s reply to the show
th
cause notice on 8  May, 2015.
9.      The appellant shall remain present in Court on the next
date of hearing.”
(Emphasis supplied)

th
On  20   May,  2015,  the  appellant  tendered  unconditional
apology, which was accepted subject to costs.

7.3.    In   Seema Thakur v. Union of India      ,  223 (2015) DLT 132 the

RFA 784/2010                    Page 22 of 99

plaintiff,  after  having  sold  an  immovable  property,  instituted  a
frivolous suit to claim the same.  This Court dismissed the suit and

issued notice under Section 340 Cr.P.C. to the plaintiff as well as her

attorney to show cause as to why they be not prosecuted under Section
th
209 of the Indian Penal Code.  Relevant portion of the order dated 19

August, 2015 is reproduced hereunder:

“19.           Considering the facts of the present case I am of
the opinion that the plaintiff has come to this Court with a false
case.  Section  209  of  the  Indian  Penal  Code,  1860  (IPC)
provides that when a person comes to court with a false case,
such person is liable to be punished by imprisonment for a
period upto two years in addition to fine. I therefore issue
notice to the plaintiff as also to her attorney, Sh. Vijay Kapoor
under Section 340 of the Code of Criminal Procedure, 1973
(Cr. P.C) to show cause as to why a criminal case be not
lodged against the plaintiff and her attorney, Sh. Vijay Kapoor
by the Registrar General of this Court or by the defendant no.6
in terms of permission to be granted by this Court, under
Section 209 IPC….”

8.     Cognizance of Offence under Section 209, Indian Penal Code

The  offence  under  Section  209  is  non-cognisable,  non-

compoundable and triable by a Magistrate of the first class. Under

Section 195 of the Code of Criminal Procedure read with Section 340

of  the  Code  of  Criminal  Procedure,  the  Court  before  which  the

offence under section 209, IPC is committed, or of some other Court

to which it is subordinate, has to make a complaint in writing to the

Magistrate.

8.1.    In  Sanjeev Kumar Mittal v. State      , 174 (2010) DLT 214, this

Court examined the scope of Section 340 of the Code of Criminal

Procedure. The relevant portion of the said judgment is reproduced

RFA 784/2010                    Page 23 of 99

hereunder:
“6.6.  If there is falsehood in the pleadings (plaint, written
statement  or  replication),  the  task  of  the  Court  is  also

multiplied and a lis that could be decided in a short time, then
takes several years. It is the legal duty of every party to state in
the pleadings the true facts and if they do not, they must suffer
the consequences and the Court should not hold back from
taking action.
xxx                  xxx                   xxx
6.13. A party, whether he is a petitioner or a respondent, or a
witness, has to respect the solemnity of the proceedings in the
court and he cannot play with the courts and pollute the stream
of  justice.  It  is  cases  like  this,  with  false  claims  (or false
defences) which load the courts, cause delays, consume judicial
time and bring a bad name to the judicial system. This case is a
sample where the facts are glaring. Even if they were not so
glaring, once falsehood is apparent, to not take action would be
improper.
6.14. The judicial system has a right and a duty to protect itself
from such conduct by the litigants and to ensure that where
such conduct has taken place, the matter is investigated and
reaches its logical conclusion and depending on the finding
which is returned in such proceedings, appropriate punishment
is meted out.

6.16.  In an effort to redeem the situation, not only realistic
costs and full compensation in favour of the winning party
against the wrongdoer are required, but, depending on  the
gravity of the wrong, pe

nal action against the wrongdoers is also called for.       Unless the
judicial system protects itself from such wrongdoing by taking
cognizance, directing prosecution, and punishing those found
guilty, it will be failing in its duty to render justice to the
citizens . Litigation caused by false claims and defences will
come to be placed before the courts, load the dockets and delay
delivery of justice to those who are genuinely in need of it.
…………..

RFA 784/2010                    Page 24 of 99

8.  False  averments  in  pleadings  are  sufficient  to  attract
Chapter XI of the Indian Penal Code:
xxx                  xxx                   xxx
8.7.  Making false averment in the pleading pollutes the stream
of justice. It is an attempt at inviting the Court into passing a
wrong judgment and that is why it must be treated as an
offence.

8.8. Where a verification is specific and deliberately false, there
is nothing in law to prevent a person from being proceeded for
contempt. But it must be remembered that the very essence of
crimes of this kind is not how such statements may injure this or
that party to litigation but how they may deceive and mislead

the courts and thus produce mischievous consequences to the
administration of justice. A person is under a legal obligation
to verify the allegations of fact made in the pleadings and if he
verifies falsely, he comes under the clutches of law.
8.9. Consequently, there cannot be any doubt that if a statement
or averment in a pleading is false, it falls within the definition
of  offence  under  Section  191  of  the  Code  (and  other
provisions).   It is not necessary that a person should have

appeared in the witness box. The offence stands committed
and completed by the filing of such pleading. There is need
for the justice system to protect itself from such wrongdoing
so that it can do its task of justice dispensation.

10. Expedient in the interests of justice under section 340 Cr.
P.C.:
10.1. When an inquiry for having committed an offence as listed
in Section 195 Cr.P.C. is proposed to be launched, Section 340
Cr.P.C. provides for the procedure. One of the requirements in
sub-section  (1)  is  that  the  “  court  is  of  opinion  that  it  is
expedient  in  the  interests  of  justice  that  …     ”  When  is  it
expedient in the interests of justice?

10.2. A common thread that can be culled out from these
decisions is that perjury, which includes false averments in
pleadings, is an evil to eradicate which every effort must be
made.    The  reluctance  of  the  courts  to  order  prosecution

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encourage parties to make false averments in pleadings before
the Court and produce forged documents.
xxx                  xxx                   xxx
10.4  The  gravity  of  the  offence,  the  substantiality  of  the
offenders, the calculated manner in which the offence appears
to have been committed and pernicious influence such conduct
will have in the working of the Courts and the very faith of the
common man in Courts and the system of the administration of
justice, all have been reckoned in arriving at a conclusion that
action under Section 340 is fully justified.

11. Preliminary Inquiry under Section 340 Cr.P.C.
11.1.  Another  question,  one  of  procedure,  is  about  a
preliminary  inquiry.  Section  340(1)  Cr.P.C.  uses  the  word
“ such court may, after such preliminary inquiry, if any, as it
thinks necessary   ”.
xxx                  xxx                   xxx

11.3. The preliminary inquiry in the second part of Section 340
is not mandatory. The use of the words ‘if any’ is clearly
indicative. This is so because situations can be such where
there is strong suspicion, but there is not sufficient evidence to
return a finding (although still prima facie) that it appears to
have been committed. And there can be cases where there is
sufficient material on record to return such a finding. In the
former case, preliminary inquiry is necessary, in the latter case,
it is not.
xxx                  xxx                   xxx

11.5.  If the facts are sufficient to return a finding that an
offence appears to have been committed and it is expedient in
the interests of justice to proceed to make a complaint under
Section 340 Cr.P.C., the Court need not order a preliminary
inquiry. But if they are not and there is suspicion, albeit a
strong one, the Court may order a preliminary inquiry. For
that purpose, it can direct the State agency to investigate and
file a report along with such other evidence that they are able
to gather.
xxx                  xxx                   xxx

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11.6.  Ordering  of  the  preliminary  inquiry  also  includes
investigation by a State agency where the nature is such that a
private party in civil proceedings could not possibly gather and
place before the Court those facts, documents, etc. Many times,
there can be suspicion, strong suspicion, or even suspicion that
borders on conviction, and it is expedient in the interests of
justice to proceed to lodge a complaint, but there may be no
sufficient  legal  evidence  on  the  record  at  that  time  to  so
proceed.

12. Case law on ordering investigation by the Police
12.1. The next question is whether as part of the Preliminary
Inquiry under Section 340 Cr.P.C., an investigation by the
Police or any other State Agency can be ordered…………”.

12.2. Thus, the law is settled that the Court has a power to
direct the police to investigate and report, which power has
been readily exercised by the Courts whenever they felt that the
facts of the case so warranted.

12.3. Often, the facts are such on which a private party cannot
be expected to itself investigate, gather the evidence and place
it before the Court. It needs a State agency exercising its
statutory powers and with the State machinery at its command
to investigate the matter, gather the evidence, and then place a
report before the Court along with the evidence that they have
been able to gather. Moreover, the offence(s) may be a stand-
alone or as a carefully devised scheme. It may be by a single
individual or it may be in conspiracy with others. There may be
conspirators, abettors and aiders or those who assisted, who
are not before the Court, or even their identity is not known.

12.4.  Where  the  facts  are such  on  which  the  Court  (or a
subordinate  officer)  can  conduct  the  inquiry,  it  will  be  so
conducted, but where the facts are such which call for tracing
out other persons involved, or collection of other material, or
simply investigation, it is best carried out by a State agency.
The Court has not only the power but also a duty in such cases
to exercise this power. However, it may be clarified that a party
cannot ask for such direction as a matter of routine. It is only

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when the Court is prima facie satisfied that there seems to have
been wrongdoing and it needs investigation by the State agency
that such a direction would be given.”
(Emphasis supplied)

9.     Comparative analysis of law in other countries        .

9.1.    Section 209 of Penal Code of Singapore, Pakistan, Malaysia,

Myanmar and Brunei are same as Section 209 of the Indian Penal

Code.

Singapore

9.2.    In  Bachoo Mohan Singh v. Public Prosecutor             (2010) SGCA

25,  the Singapore Supreme Court exhaustively examined the scope of

Section 209 of the Singapore Penal Code, which is similar to Section

209 of Indian Penal Code.  In that case, the appellant Bachoo Mohan

Singh, an Advocate and solicitor of 36 years’ standing, was convicted

of abetting his client to dishonestly make a false claim in Court under

Section 209 of the Singapore Penal Code in a suit for damages on

behalf of sellers of an immovable property against the buyers in which

a false claim was made with respect to the sale price of the flat as $

4,90,000/- instead of $ 3,90,000/- to facilitate illegal cash back of $

1,00,000/-.  It was alleged that the appellant was aware of the sale

price of the flat being $ 3,90,000/-.  The suit was discontinued at the

initial stage itself whereupon the prosecution was launched against the

counsel for abetting his client to make a false claim in the Court.  The

District  Judge  convicted  the  appellant  under  Section  209  of  the

Singapore  Penal  Code  and  sentenced  him  to  three  months’

imprisonment.    The  District  Judge  relied  upon  the  judgment  of

Queen-Empress v. Bulaki Ram          (supra).  The District Judge held that

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the appellant was aware that the agreed sale price of the flat in
question was $ 3,90,000/- whereas a false claim of $ 4,90,000/- was

made by the appellant.  The appellant challenged the conviction and

sentence before the High Court.  The High Court allowed the appeal

on sentence in part and reduced the three months’ sentence to one

month imprisonment with fine of $1,00,000.  The High Court also

relied upon    Queen-Empress  v.  Bulaki Ram          (supra)  and  held  that

Section 209 of the Penal Code would apply to cases where whole

claim was false as well as cases where the claim was false in a

material  particular  whether  by  way  of  a  outright  lie,  deliberate

omission or suppression of material facts.  The High Court further

held that the offence was complete once the claim was filed in Court.

The High Court referred to the questions of law of public interest with

respect to the scope of Section 209 of the Penal Code to the Supreme

Court.  The Singapore Supreme Court examined the scope of Section

209 of the Penal Code and set aside the conviction by a majority of

2:1.  The brief introduction given in paras 1 and 2 of the judgment are

reproduced hereunder:

“1       In these criminal references, this court has to consider
questions of law of public interest relating to how s 209 of the
Penal Code (Cap 224, 1985 Rev Ed) (“the PC”) should be
construed  and  the  scope  of  lawyers’  duties  to  verify  their
client’s instructions. These criminal references arise from the
conviction of Bachoo Mohan Singh (“BMS”), an advocate and
solicitor of some 36 years’ standing, in the Subordinate Courts
by  a  district  judge  (“the  District  Judge”)  (          see Public
Prosecutor v Bachoo Mohan Singh [2008] SGDC 211                  (“BMS
(No 1)”)). BMS had been convicted of abetting (by aiding) his
client to dishonestly make a false claim in court, under s 209

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(read with s 109) of the PC…………..
xxx                   xxx                  xxx
BMS’s conviction was subsequently affirmed by a High Court
judge (“the High Court Judge”) (see         Bachoo Mohan Singh v
Public Prosecutor     [2009] 3 SLR(R) 1037 (“BMS (No 2)”)).
xxx                   xxx                  xxx
2       According to BMS’s counsel,      this matter has the dubious
distinction  of  being  the  first  known  case  in  the
Commonwealth’s  legal  annals  where  a  lawyer  has  been
convicted of abetting his client in the making of a false claim.
This is also the first known case in Singapore involving a
prosecution in relation to s 209 of the PC even though this
provision has been in force in Singapore for well over a
century.  In  India,  no  lawyer  appears  to  have  ever  been
prosecuted in connection with such an offence under s 209 of
the Penal Code 1860 (Act 45 of 1860) (India) (“the Indian
Penal  Code”)  (the  progenitor  to  s 209  of  the  PC
(see [54] below))  since  the  Indian  Penal  Code  was  first
enacted.  ”
(Emphasis supplied)

9.3.    The Court formulated the questions of law (       paras 29 & 30    ) of

public interest and the issues considered by the Supreme Court (          para

40 ), which are reproduced hereinunder:

“29.           The five questions of law of public interest raised
by BMS will, for convenience, be referred to, respectively, as
“BMS’s       Question 1”,       “BMS’s       Question 2”,      “BMS’s
Question 3”, “BMS’s Question 4”, and “BMS’s Question 5”.
They are as follows:

(a)     Section 209 of the [PC] makes it an offence for a person
to      (i) dishonestly (ii) make(iii) before       a      court      of
justice (iv) a claim which he (v) knows to be (vi) false. What is
the meaning of each these words and the cumulative purport of
this provision in the Singapore context? [ie, BMS’s Question 1]
(b)     In what circumstances would a solicitor be held to have
acted dishonestly (causing wrongful gain or wrongful loss, as

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defined in s 24 of the [PC] since if he obtains judgment for a
client in an action for payment of a debt or for damages, it is
bound to cause a loss to the defendant. When is the gain or loss
wrongful or unlawful for this purpose? [ie, BMS’s Question 2]
(c)     In what circumstances is the offence committed: at the
point of the filing of the statement of claim or defence in court?
[ie, BMS’s Question 3]

(d)     Can a claim before a court ever be held as false if the
defendant settles the claim in whole or in part before the claim
is tried in court, or if the defendant submits to judgment to the
whole or part of the claim? [ie, BMS’s Question 4]

(e)     In what circumstances ought a solicitor decline to accept
and/or doubt his client’s instructions before filing pleadings
considering that a solicitor has no general duty imposed on him
to verify his client’s instructions? [ie, BMS’s Question 5]
30.            The  Prosecution’s  questions  of  law  of  public
interest are as follows:

Question 1

If an advocate and solicitor files a statement of claim in court
on behalf of his client with the knowledge that the claim is
based on facts which are false; and that his client was dishonest
in making the false claim, does he commit an offence under
section 209 read with section 109 of the [PC]?
Question 2

If the answer to question 1 is in the affirmative, would he still
have committed an offence if he was only acting on his client’s
instructions?

xxx                   xxx                  xxx
Overview of the issues

40.            I have already set out the questions of law of
public interest raised to this court above (at [29]–[30]) and
will  not  repeat  them  here.  It  is  immediately  apparent  that
BMS’s  Question 1  (see [29] above)  straddles  four  issues
concerning how s 209 should be construed. The issues are as
follows:

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(a) The meaning of “claim”;
(b) The meaning of “makes” a claim;

(c) The meaning of making a claim that one “knows to be
false”; and

(d) The meaning of “court of justice”.
BMS’s  Question 3  and  BMS’s  Question 4  will be discussed
under (a) and (c) respectively. BMS’s Question 2 and BMS’s
Question 5, in my view, can be discussed together; they relate
to one overarching issue, viz, a solicitor’s liability for abetting
the making of a false claim. I should add that my observations
on, and answers to, the questions are made for the purpose of
clarifying  the  ambit  of  s 209  of  the  PC,  and  they  should
therefore be read in that context.”

9.4.    V.K. Rajah, J.  (in his majority judgment) held as under: –

“ Conclusion
137.    I would answer the questions of law of public interest
posed by BMS (see [29] above) as follows:

(a)     BMS’s Question 1:
(i)       A “claim” for the purposes of s 209 refers to the
relief or remedy sought from the court, as well as
the grounds for obtaining that relief or remedy. A
“claim” may also be said to be a cause of action.

(ii)       In writ actions, a litigant “makes” a claim at the
point in time when pleadings have closed, after the
statement  of  claim  and  reply  (if  any)  (for  the
plaintiff) and the defence (for the defendant) is
filed. For originating summons actions, a litigant
“makes” a claim when his affidavit evidence is
filed in court as directed.

(iii)       To  succeed  under  s 209  of  the  PC,  the
Prosecution  must  establish  that  the  claim  was
“false” beyond a reasonable doubt and that the
accused knew that it was false. A claim is “false” if
it is made without factual foundation. A claim is
not “false” if it involves a question of law. The test

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for falsity is not considered by reference to the
pleadings in isolation, but must take into account
the wider factual context; this necessarily includes
facts not revealed in the pleading itself.
(iv)       A “court of justice” for the purposes of s 209 of
the PC refers to the legal institution or body where
disputes are adjudicated.

(b)     BMS’s Question 2: This question does not directly affect
the outcome of the proceedings below. In my view, a solicitor
acts dishonestly if, having actual knowledge about the falsity
of a client’s claim (or after he subsequently acquires that
knowledge), he proceeds to make that claim in court and
thereby allows the client to gain something that he is not
legally entitled to, or causes the adversary to lose something
which he is legally entitled to.

(c)     BMS’s Question 3: In writ actions, a litigant “makes” a
claim at the point in time when pleadings have closed, after
the statement of claim and reply (if any) (for the plaintiff) and
the  defence  (for  the  defendant)  is  filed.  For  originating
summons  actions,  a  litigant  “makes”  a  claim  when  his
affidavit evidence is filed in court as directed.
(d)     BMS’s Question 4: If an action is settled before the
close of pleadings (for actions commenced by writs) or before
affidavits are filed as directed (for actions commenced by
originating  summonses),  no  “claim”  is  “made”  for  the
purposes of s 209 of the PC. Where only part of the action is
settled or the defendant submits only to part of the action, a
claim would be “made” at or after the close of pleadings stage
or the filing of affidavits, as the case may be. Whether that
claim is “false” will depend on the facts of the case. Here, it
must be borne in mind that not all overstated or exaggerated
claims are false.

(e)     BMS’s Question 5: A solicitor should decline to accept
instructions  and/or  doubt  his  client’s  instructions  if  they
plainly appear to be without foundation (eg, lacking in logical
and/or legal coherence). A solicitor is not obliged to verify his
client’s  instructions  with  other  sources  unless  there  is

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compelling evidence to indicate that it is dubious. The fact
that the opposing parties (or parties allied to them) dispute the
veracity  of  his  client’s  instructions is  not a  reason  for a
solicitor to disbelieve or refuse to act on those instructions,
and a solicitor should not be faulted if there are no reasonable
means  of  objectively  assessing  the  veracity  of  those
instructions.”

9.5.    The Court considered the report of Indian Law Commission and

discussed the object of Section 209 as under:-

“55.     It follows that s 209 of the PC was clearly intended to
deter the abuse of court process by all litigants who make false
claims fraudulently, dishonestly, or with intent to injure or
annoy. The essence of this provision is entirely consistent with
the desire of the Indian Law Commissioners to preserve the
special standing of a court of justice and safeguard the due
administration of law by deterring the deliberate making of
false  claims  in  formal  court  documents.  I  should  perhaps
round up this discussion on the objectives of s 209 of the PC by
pointing out that in India it is the court and not the Public
Prosecutor who initiates prosecutions under the equivalent
provision. At the end of the day, it can be said with some force
that it is the court that is best positioned to assess when its
processes have been misused or abused. The court is also well-
equipped to deal with litigants and/or solicitors who abuse its
processes  through  a  variety  of  well  established  judicial
remedies  including  adverse  personal  costs  orders  and/or
contempt proceedings.  In the case of advocates and solicitors,
disciplinary proceedings will swiftly follow serious infractions
of professional responsibilities. This may explain why other
common law jurisdictions have not seen a compelling need to
criminalise abuses of the pleading process.

56.    I summarise. It is imperative to firmly bear in mind the
objectives for which the Legislative Council enacted s 209 of
the PC. It was clearly not the intention of the Legislative
Council or the object of s 209 of the PC to alter or even
criminalise, by a side wind, well-established civil pleading
practices – this much is obvious from the fact that Singapore

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has, unlike India, all along incorporated and preserved the
architecture of contemporary English civil procedure rules.
57.     Therefore,  in  purposively  construing  the  constituent
elements of s 209 of the PC (in particular the terms “claim”,
“makes  …  any  claim”,  and  “knows  to  be  false”),
consideration should be given to the Legislative Council’s (and
now  Parliament’s)  intention to  prevent  the  abuse  of  court
process by the making of false claims in the context of the
applicable civil procedure rules in Singapore and not India        .”
(Emphasis supplied)

9.6.    The Court interpreted the terms  ‘       claim  ’, “ makes a claim   ”,

“ making  a  claim  that  one  knows  to  be  false      ”,  “ fraudulently  or

dishonestly or with the intent to injure or annoy any person             ” and

“ Court of Justice ” in Section 209.

9.7.    The meaning of a ‘claim’ in Section 209

The Court held that a litigant makes a claim before a Court of

Justice for the purpose of Section 209 when he seeks certain relief or

remedies from the Court and a ‘      claim ’ for relief necessarily impasses

the grounds for obtaining that relief.  The Court further held that the

word ‘  claim ’ for the purposes of Section 209 of the Penal Code would

also include the defence adopted by a defendant in the suit.  The
reason for criminalising false claims and defences is that the plaintiff

as well as the defendant can abuse the process of law by deliberate
falsehoods.    The  relevant  portion  of  the  majority  judgment  is

reproduced hereunder: –

“The meaning of a “claim”
58.     The  term  “claim”,  while  appearing  in  a  number  of
provisions in the PC, is not defined in the PC, and it therefore
falls to this court to determine what should be regarded as a
“claim” for the purposes of s 209 of the PC.

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59.     In The Law Lexicon, it is noted that the word “claim” is
“of very extensive signification, embracing every species of
legal demand” and “is one of the largest words of law” (at
p 329). The protean nature of the word “claim” is illustrated by
the  fact  that  various  legal  dictionaries  provide  multiple
definitions. Among some of the more relevant definitions of the
word  “claim”  for  present  purposes  listed  by The  Law
Lexicon are (at p 330):
(a)     a “demand made of a right or supposed right” or a
“calling of another to pay something due or supposed to be
due”;

(b)     a demand for something as due, or an assertion of a right
to something;

(c)     “relief and also any grounds of obtaining the relief”; and
(d)     the assertion of a cause of action.

xxx                   xxx                  xxx

62 .     In the context of s 209 of the PC, the most helpful
definitions of the word “claim” are definitions (c) and (d) as
set out at [59] above. Drawing on these definitions, a litigant
makes a “claim” before a court of justice for the purposes of
s 209 when he seeks certain relief or remedies from the court,
and a “claim” for relief necessarily encompasses the grounds
for obtaining that relief.
64.     I pause to note that while the word “claim” is ordinarily
taken to refer to the relief prayed for by a claimant, s 209 ought
not to be restrictively confined to just a plaintiff’s claim. It is
noteworthy  that  when  the  Indian  Law  Commissioners  first
contemplated  criminalising  false  pleadings,  they  plainly
regarded false defences as being equally objectionable as false
claims. One of the examples given of a false claim in the Law
Commission Report (at p 98) (see also [87] below) would be as
follows:

Z brings an action against A for a debt which is really due.
A’s plea is a positive averment that he owes Z nothing. The
case comes to trial; and it is proved by overwhelming
evidence that the debt is a just debt. A does not even

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attempt a defence. Ought A in this case to enjoy impunity?
65.      The reason for criminalising false defences as well as
false claims is obvious when the purpose of s 209 of the PC is
recalled: the court process can just as easily be abused by
defendants  as  by  plaintiffs  in  perpetrating  deliberate
falsehoods,  thereby  perverting  the  course  of  justice  and
undermining the authority of the law. Further, I note that
s 209 when finally enacted in India used the broader term
“claim” in place of the narrower term “civil suit” as the
Indian Law Commissioners originally suggested in the Draft
Provision (see [54] above). I am therefore of the view that the
word “claim”, for the purposes of s 209 of the PC, ought to
also refer to defences adopted by a defendant.       ”
(Emphasis supplied)

9.8.    The meaning of “makes a claim”

Bachoo  Mohan  Singh             (supra)  contains  an  exhaustive

discussion on the term “    makes a claim    ”.  The Court observed that a

litigant “ makes a claim  ” for the purpose of Section 209 upon the close

of pleadings when the respective cases of the parties are crystallised

and the parties cannot amend their pleadings without the Court’s

permission.    The  relevant  portion  of  the  majority  judgment  is

reproduced hereunder:-

“The meaning of “makes a claim”

66.     The word “makes” is also not defined anywhere in the
PC, and there were vigorous exchanges between BMS’s counsel
and  the  Prosecution  about  what  it  means.  BMS’s  counsel
argued that a claim is not made until just before a judge
adjudicates  on  it,  while  the  Prosecution  submitted  that  a
litigant “makes” a claim is as soon as the claim is filed.

xxx                   xxx                  xxx
76.    It  seems  to  me  on  the  basis  of  the  prevailing  civil

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procedure rules in Singapore that the only appropriate point in
time when it can be said that a litigant “makes” a claim for the
purposes of s 209 of the PC is one that takes into account the
present notional deadline for the filing of pleadings, viz, the
close of pleadings. This is the crucial point of time when the
parties’  respective  cases  have  crystallised.  At  the  close  of
pleadings,  the  issues  of  fact  and  law  between  the  parties
“should  be  revealed  precisely”  (see  Sir Jack  Jacob  &
Iain S Goldrein, Pleadings: Principles and Practice (Sweet &
Maxwell, 1990) at p 4). Thereafter, the parties cannot amend
their pleadings without the court’s intervention.
78.      Deeming the close of pleadings as the point in time a
litigant “makes” a claim for the purposes of s 209 of the PC
avoids most of the pitfalls inherent in both parties’ extreme
positions.  It  is  a  definitive  and  determinate  point  in  the
litigation process   (see Singapore Court Practice 2009 (Jeffrey
Pinsler SC gen ed)  (LexisNexis,  2009)  at paras 18/20/2  and
18/20/3),  and  it  gives  full  effect  to  the  significance  of  a
plaintiff’s ability, as provided for in the Rules of Court, to file a
reply. At the same time, making the close of pleadings the
decisive point in time also covers the situation where no reply is
made  by  the  plaintiff.  In  that  situation,  it  would  not  be
premature to prosecute an offence under s 209 based solely on
what  is  included  in  a  plaintiff’s  statement  of  claim.  It  is
important to appreciate, however, that it is only at the close of
pleadings that it becomes possible to say whether the plaintiff’s
“claim” consists of either the statement of claim and reply or
only the statement of claim, for it is only at that stage that the
parties are deemed, in law, to have finalised their pleadings.

79.      This construction of s 209 of the PC also promotes the
purpose  of  the  provision, viz,  to  prevent  litigants  from
corrupting the administration of justice and abusing the court
process by filing false claims      (see [57] above). It is only after
the close of pleadings that the court’s machinery is ordinarily
engaged, in the sense that the close of pleadings “signifies the
commencement of the timeline under O 25 r 1 of the Rules [of
Court] for taking out a summons for directions as well as
triggers in appropriate cases the operation of the automatic

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directions  under  O 25  r 8”  (see  the  passage  quoted
at [77] above).  Beyond  that  point,  parties  may  only  make
amendments  to  their  pleadings  with  leave  of  court.
Determining that a plaintiff only “makes” a claim for the
purposes  of  s 209  of  the  PC  at  the  close  of  pleadings,
therefore, ensures that the conduct Parliament intended to
prevent is criminalised neither too early nor too late      , but at the
precise  point  of  time  at  which  it  would  ordinarily  cause
mischief – that is to say when the interactive curial processes
would usually commence.”

9.9.    The meaning of making a claim which one “knows to be
false”

Bachoo  Mohan  Singh             (supra)  contains  an  exhaustive

discussion  on  this  term.    The  relevant  portion  of  the  majority

judgment is reproduced hereunder:-

“84.     The word “false” is similarly not defined in the PC,
though it appears in quite a number of other provisions in
relation to different subject matters (eg, false claims (s 209),
false evidence (s 191), false information (s 177), false statement
(s 181), and false instrument (s 264), etc). What is considered
“false” would depend, largely, on the intent and purport of
each particular provision. As for the meaning of the word
“false” under s 209 of the PC, three points are noteworthy.

85.     First,  given  that  these  are  criminal  proceedings,  the
Prosecution bears the burden of proving the falsity beyond a
reasonable doubt. The Prosecution cannot simply assert that
the claim would have failed, on a balance of probabilities at the
civil trial, or establish that it was probable, possible or could
be inferred that the claim was false, as may ordinarily be
sufficient  in  a  civil  case  (see Hiralal  Sarda  and  others  v
Emperor (1932)  33 Cri  LJ 860  at  861).  The  following
observations by Bucknill J in Lalmoni Nonia and another v
Emperor (1922) 24 Cri LJ 321 at 325, though made within the
context of s 193 of the Indian Penal Code, apply with equal
force to s 209 of the PC:

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[W]hat I do ascertain from the papers which have been
placed before me is that there have been inferences drawn
as to probabilities which may be deduced from facts and
from circumstances which formed the environments of this
somewhat peculiar affair; and, where one has to make up
one’s mind as to inferences and the correctness of those
inferences  and  as  to  what  is  probable  and  what  is
reasonable and what is possible, there is often introduced
… an element of doubt as should properly cause a Court to
give accused persons … the benefit of whatever doubt there
is. Here, I think there is a loophole in this case; although a
suspicious and sinister affair, I cannot think that the charge
has been fully maintained against these two men by the
prosecution. [emphasis added]
86.     Second, where questions of law are involved, it cannot be
plausibly said that the claim made in court by the plaintiff (or
defendant, as the case may be) is false. In Baisakhi v The
Empress (1888) 7 PR No 38 (“Baisakhi”), the court opined (at
100):

When  the  correctness  of  the  claim  depends  upon  the
existence and validity of a custom having the force of law or
upon a question of law and not upon a question of fact, it
will generally be found impossible to establish the charge.
[emphasis added]

I accept Baisakhi as correctly stating the position under s 209
of the PC.    It is a legal fiction to say that the courts simply
expound the law as it has always been. Existing statements or
declarations of legal principle ought not to be considered as
being invariably set in stone. Precedents are the servants and
not the masters of the judicial process. In ascertaining and
applying the law, a court is, of course, bound by the decisions
of higher courts. But absent the shackles of stare decisis, a
court may undertake its own enquiry into the state of the law
and depart from earlier decisions. It is then for the court to
make a final determination on any question of law. If it were
otherwise, the law would never be able to progressively adapt
and  advance.  The  contrary  position  would  also  have  an

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immediate chilling effect on counsel’s ability to uninhibitedly
prosecute a client’s case comprehensively. Given the above, it
is my view that the Prosecution will ordinarily not be able to
establish that a claim resting on a question of law is false for
the purposes of s 209 of the PC, even if the court eventually
rules against the litigant making the claim on that question of
law.  I  would,  therefore,  emphatically  reject  the  District
Judge’s suggestion that claims concerning issues of law can
also be considered to be false       (see [16] above; see also BMS
(No 1) at [239] and [240]).
87.     Third, I will now turn to consider the position in respect
of issues of fact. The Indian Law Commissioners gave the
following illuminating examples of what they regarded to be
“false” claims (the Law Commission Report at p 98):

A lends Z money. Z repays it. A brings an action against Z
for the money, and affirms in his declaration that he lent the
money, and has never been repaid. On the trial A’s receipt
is produced. It is not doubted, A himself cannot deny, that
he asserted a falsehood in his declaration. Ought A to enjoy
impunity? Again: Z brings an action against A for a debt
which is really due. A’s plea is a positive averment that he
owes Z nothing. The case comes to trial; and it is proved by
overwhelming evidence that the debt is a just debt. A does
not even attempt a defence. Ought A in this case to enjoy
impunity? If, in either of the cases which we have stated, A
were to suborn witnesses to support the lie which he has put
on the pleadings, every one of these witnesses, as well as A
himself, would be liable to severe punishment. But false
evidence in the vast majority of cases springs out of false
pleading, and would be almost entirely banished from the
Courts if false pleading could be prevented.

In both examples, it is obvious that the claims made by A were
entirely without factual foundation. In the first example, there
was no factual basis for A to claim for the money, as it had
already  been  repaid.  In  the  second  example,  there  was
absolutely no factual basis raised by A to support his positive
averment that he owed Z nothing. It is clear, from these

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examples cited by the Indian Law Commissioners, that the
mischief that the drafters intended to address under s 209 of
the Indian Penal Code was that of making claims without
factual foundation.
88.     The case of Bulaki Ram, which the High Court Judge and
the District Judge (hereafter referred to collectively as “the
Judges below”) heavily relied on, involved facts that were
actually rather strikingly similar to the first example given by
the Indian Law Commissioners (see [87] above). The plaintiff
in Bulaki Ram brought a claim for Rs 88-11. In the course of
proceedings, the defendant produced a receipt from the plaintiff
for Rs 71-3-3. Before the courts, the plaintiff’s claim to that
extent (ie, Rs 71-3-3) was dismissed but he obtained a judgment
for the balance. The plaintiff was subsequently charged with
making a false claim.

89.     On  the  facts  of  the  case,  Straight J  held  that  there
was prima  facie evidence  for  the  Prosecution  to  proceed
against the plaintiff. He did not decide that the plaintiff was
guilty of making a false claim on the facts of the case. On the
contrary, he was careful to emphasise, twice in his judgment,
that he was not trying the case before him or expressing any
opinion on the plaintiff’s guilt. However, the Judges below
relied on Bulaki Ram as excerpted in        Justice C K Thakker &
M C Thakker, Ratanlal & Dhirajlal’s Law of Crimes vol 1
th
(Bharat Law House, 26  Ed, 2007) (Ratanlal & Dhirajlal’s
Law of Crimes    ), which reads as follows (at p 989):

This section is not limited to cases where the whole claim
made by the defendant is false. The accused brought a suit
against a person to recover Rs. 88-11-0 alleging that the
whole of the amount was due from the defendant. The
defendant produced a receipt for a sum of Rs. 71-3-3, and
this  amount  was  proved  to  have  been  paid  to  the
accused. The       accused     was     thereupon       prosecuted
and convicted under this section. It was contended on his
behalf that because a part of the accused’s claim was held
to  be  well-founded  and  due  and  owing, he  could  not
be convicted  under  this  section. It  was  held  that  the

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conviction was right. Straight J., said: … “if that view
were adopted, a man having a just claim against another
for Rs. 5, may make claim for Rs. 1,000, the Rs. 995 being
absolutely false, and he may escape punishment under
this section.” [emphasis added in italics and bold italics]
92.     In  the  examples  provided  by  the  Indian  Law
Commissioners and Bulaki Ram, the claims, as made, were
prima  facie without  any  factual  foundation.  The  plaintiff
in Bulaki Ram apparently did not question the veracity of the
receipt for Rs 71-3-3 and therefore did not have any factual or
legal basis for claiming for Rs 88-11 in its entirety. In short,
there was not even a colourable claim for the amount claimed
as allegedly due. There was a claim, if at all, only for a very
small fraction of what was alleged to be due. Similarly, in the
first example provided by the Indian Law Commissioners, the
receipt produced was not doubted. In their second example, A
did not even attempt, at trial, a defence despite his positive
averment that he owed Z nothing. In both examples, there were
no facts whatsoever to support the plaintiff’s (or defendant’s)
claim. In my view, it was on this very narrow and facile basis
that these claims were considered by both Straight J and the
Indian Law Commissioners to be false. Pertinently, in none of
these cases or illustrations was there any complex interplay of
issues  of  fact  and  law.  They  simply  involved  either
unambiguous repeat claims or unarguably sham defences. It
ought to be also pointed out that all the Indian cases involving
s 209 drawn to our attention appear to be instances where the
courts  initiated  proceedings  (against  the  litigants  who  had
made false claims) only after all the pertinent facts had been
established at the conclusion of trial proceedings.

93.     I  would  further  observe  that  the  Judges  below  were
content  to  rely  on Bulaki  Ram (as  excerpted  (see[89]–
[90] above)) to suggest that the test for falsity was applied by
considering the pleading on its face (see BMS (No 1) at [234]–
[236]  and BMS  (No 2) at  [52]).  However,  I  do  not  think
that Bulaki Ram stands for the proposition that the litmus test of
falsity is to be assessed solely by reference to the pleadings
alone, or that every statement of claim which does not, on its