AJAY KUMAR DASversusSTATE OF JHARKHAND & ANR.

                      [2011) 11 S.C.R. 197


                       AJAY KUMAR DAS ·                               A
                                 v.
               STATE OF JHARKHAND & ANR.
              (Criminal Appeal no. 1735 of 2011)
                     SEPTEMBER 6, 2011.
                                                                      B
             [DR. MUKUNDAKAM SHARMA AND
                    ANIL R. DAVE, JJ.]

      CODE OF CRIMINAL PROCEDURE, 1973;
                                                                      c
         s. 482 .:.. Petition seeking to quash criminal proceedings
   - Death of wife of appellant - FIR 'by father of deceased that
    her father-in-law and mother-in-law after talking to the
    appellant pushed the victim into a well - Charge sheet for an
  . offence punishable uls 304-8134 /PC filed in the case -           0
· · Pe~ion filed by the husband seeking to quash the
   prpceedings on the ground that no case was made out against
    him, dismissed by High Court - Held: The allegations made
    in the complaint and the FIR are required to be looked into -
    Charge-sheet has been filed against the appellant also            E
    holding that a case uls 304-B /PC is made out - Appellant
    will have sufficient opportunity to place his case before the
    court at the time of framing of the charge - At this stage no
    case is made out to quash the entire proceedings - Penal
    Code, 1860 - s. 304-8134.
                                                                      F
      The father of the deceased filed a first information
 report stating that his daughter was tortured by her
 father-In-law and mother-In-law for dowry and on
 29.9.2006, after talking to the appellant, the husband of
 the deceased, on telephone, they caused her death. After             G
 the charge-sheet for an offence punishable u/s 304-B
 read with s. 34 IPC had been filed, the appellant filed a
 petition u/s 482 Cr.P.C. seeking to quash the proceedings
 on the ground that no case u/s 304-B IPC was made out
                                197                                   H
    198      SUPREME COURT REPORTS             [2011] 11 S.C.R.


A against him. The High Court dismissed the petition.
  Aggrieved, the husband of the deceased filed the appeal.

          Dismissing the appeal, the Court

         HELD: 1.1. In the First Information Report, there is an
B   allegation that the two other accused persons, namely,
    the parents of the appellant, on the fateful day after
    talking to him over telephone, in a pre-determined manner
    killed the informant's daughter by pushing her into a well.
    The said allegation is sought to be countered by referring
C   to a document dated 19-11-2006 issued by the
    Commanding Officer to the appellant. In the said note,
    which was sent to the Superintendent of Police, it is
    mentioned that as per the statement of the appellant, his
    wife (the deceased) fell inside the well. The aforesaid
D   document is in the nature of a defence and could be
    looked into by the court concerned at the appropriate
    stage. He also referred to some of the statements made
    in the case diary to justify the stand that no case against
    the appellant is made out. At this stage, the allegations
E   made in the complaint and in the First Information Report
    are required to be looked into. [para 11) [204-B-F]

         State of Haryana v. Bhajan Lal 1990 (3) Suppl. SCR
    259 = 1992 Suppl. 1 SCC 335; Shanti & Another v. State
    of Haryana 1990 (2) Suppl. SCR 675 =AIR 1991 SC 1226;
F   Mahbub Shah v. King Emperor(1945) 72 Indian Appeals 148;
    Bengai Manda/ alias Begai Manda/ v. State of Bihar 2010
    (1) SCR 439 = (2010) 2 SCC 91 - referred to.

       1.2. The records reveal that there was a demand for
G giving cows, motor cycle and other goods. All these
  allegations will have to be dealt with by the court at
  different stages for which liberty would be available to the
  appellant. This is not the stage when the court would
  make an inquiry into the factual position to find out as to
H
  AJAY KUMAR DAS v. STATE OF JHARKHAND &              199
                    ANR.
whether or not the appellant is guilty of the charges or     A
not. The appellant will have sufficient opportunity to
place his entire case before the court at the time of
framing of the charge since charge sheet has already
been filed against the appellant also holding that a case
u/s 3048 and s. 34 is made out. On a reading of the First    s
Information Report and the materials that are available in
the case file of the appellant, this Court is of the
considered opinion that no case is made out so as to
quash the entire proceeding. The appellant is at liberty
to raise all his defence as may be available to him in       c
accordance with law at the time of framing of the charge
and at that stage the court shall consider the material on
record as also the contentions raised by the appellant in
proper perspective and decide the matter in accordance
with law. [para 12] [204-G-H; 205-A-D]
                                                             D
                    Case Law Referene:
    1990 (3) Suppl. SCR 259       referred to     para 10
    (1945) 72 Indian Appeals 148 referred to      para 8
                                                             E
    2010 (1) SCR 439                referred to   para 9
    1990 (2) Suppl. SCR 675       referred to     para 7

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1735 of 2011.                                            F

    From the Judgment & Order dated 19.8.2009 of the High
Court of Jharkhand at Ranchi in Cr. M.P. No. 1347 of 2007.

     Tapesh Kumar Singh, Krishnanand Pandeya, Amrendra
Kr. Choubey, Ambhoj Kumar Sinha for the appearing parties.   G

    The Judgment of the Court was delivered by



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    200      SUPREME COURT REPORTS                (2011) 11 S.C.R.


                              JUDGMENT

          1. Leave granted.

       2. This appeal is directed against the order dated 19th
  August, 2009 passed by the Jharkhand High Court dismissing
B the petition filed by the appellant herein praying for .quashing
  of the entire criminal proceedings of Balumath P.S. Case No.
  68 of 2006 (corresponding to G.R. Case No. 445 of 2006) in
  which cognizance was taken of the offence under Section 3048
  read with Section 34 of the Indian Penal• Code against the
C appellant and others.

       3. The informant filed a First Information Report that his
  daughter was married to the appellant herein in the year 2002,
  as per the Hindu rites and custom and that at the time of her
0 marriage, informant had given sufficient dowry. It was stated
  therein that the informant's daughter complained about the
  torture meted out'to her by the father-in-law and the mother-in-
  law to her husband, the present appellant who allegedly did not
  pay any heed. It was also alleged that on 29th September,
E 2006, father-in-law and the mother-in-law talked to the accused
  on telephone and in a well-planned conspiracy caused death
  of the daughter of the informant: On receipt of the aforesaid
  information a case was registered, thereafter'the police started
  investigation. After the completion of the investigation, a charge ·
  sheet was filed on 14th April, 2007. An order was/also passed
F on 17th April, 2007, by the Magistrate taking cognizance which
  is also assailed in the present case. The appellant was
  granted anticipatory bail by the High Court on 10th April, 2007.

        4. After submission of the aforesaid charge sheet and
G passing of the order taking cognizance, the appellant filed a
  petition under Section 482 of the Code of Criminal Procedure
  praying for quashing of the proceeding in the aforesaid manner.
  The High Court considered the pleas raised by the parties and
  thereafter held that the case is a case of dowry death and that
H
  /(;jAY KUMAR DAS v. STATE OF JHARKHAND &                    201
                      ANR.
the appellant is the husband. It was also held that the points        A
taken by the appellant before the High Court are rather a
defence case and that the same relates to factual dispute. Thf!
Court also referred to the decision of this Court in State of
Haryana v. Bhajan Lal reported in 1992 Suppl. 1 SCC 335 and
also to the settled position of law that genuineness of the           B
allegations/charge is an issue to be tried and the Court in
exercise of its jurisdiction under Section 482 of the Code of
Criminal Procedure cannot delve into such factual controversy
so as to quash the proceedings.

     5. Learned counsel appearing for the appellant has               C
challenged the legality of the aforesaid order passed by the
High Court on the ground that no case is made out against the
appellant either under Section 3048 or under Section 34 of the
Indian Penal Code as according to him there is no such
allegation in the First Information Report specifically against the   D
appellant. He has also submitted that the order taking
cognizance· is wrong and disclosed non-application of mind by
the Magistrate for even prior to passing of the said order charge
sheet was already filed. He also took us through the contents
of the case diary wherein statements of seven witnesses have          E
been recorded to substantiate his submission as aforesaid.

     6. Counsel appearing for the respondents, however,
submits that this is not the stage when this Court should embark
upon a factual inquiry as regards the materials on record. It is      F
aiso pointed out to us that in fact the appellant would have such
an effective opportunity even at the stage when charges are
framed. Counsel also submits that it is possible and also
permissible to alter the charges and frame charges under
some other provisions of law if it appears to the Court that          G
material for framing such charge under other sections are also
available on record.

     7. Having heard the learned counsel appearing for the
parties, we may appropriately refer to a decision of this Court
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    202      SUPREME COURT REPORTS               [2011] 11 S.C.R.


A in Shanti & Another v. State of Haryana reported in AIR 1991
  SC 1226. What was considered in that case by this Court was
  a case of dowry death under Section 3048 and also a case of
  498A of the Indian Penal Code. While dealing with the
  aforesaid provisions, this Court has held that the two sections
8 are not mutually exclusive. It was also held that a person
  charged and acquitted under Section 3048 could be convicted
  under Section 498A without charge being there if such a case
  is made out. This Court, however, hastened to add that to avoid
  technical defects it is necessary in such cases to frame charges
c under both the sections and that if the case is established then
  they can be convicted under both the sections but no separate
  sentences need be awarded under Section 498A in view of the
  substantive sentences being awarded for the major offence
  under Section 3048. In that decision, this Court considered
  the scope and ambit of Section 3048 IPC and also of Section
0
  498A IPC. Reference was also made to provisions of Section
  1138 of the Evidence Act. It was held that Section 1138 of
  the Evidence Act lays down that if soon before the death such
  woman has been subjected to cruelty or harassment for or in
E connection with any demand for dowry then the Court would
  presume that such a person has committed the dowry death.
  It was also held that the meaning of 'cruelty' for the purpose of
  this Section has to be gathered from the language as found in
  Section 498A and as per that Section 'cruelty' means 'any wilful
  conduct which is of such a nature as is likely to drive the woman
F to commit suicide or to cause grave injury or danger to life, limb
  or health (whether mental or physical} of the woman or
  harassment of the woman where such harassment is with a view
  to coercing her or any person related to her to meet any
  unlawful demand for any property or valuable security or is on
G account of failure by her or any person related to her to meet
  such demand.'

        8. Our attention is also drawn to the decision of Mahbub
    Shah v. King Emperor (1945) 72 Indian Appeals 148. In the
 AJAY KUMAR DAS v. STATE OF JHARKHAND &                         203
                   ANR.
said decision, it was held that to invoke the aid of Section 34         A
IPC exclusively it must be shown that the criminal act
complained against was done by one of the accused persons
in furtherance of common intention of all and if that is shown
then the liability for the crime may be imposed on any one of
the persons in the same manner as if the acts were done by              B
him alone. It was further held that it is difficult if not impossible
to procure direct evidence to prove the intention of an
individual; in most cases it has to be inferred from his act or
conduct or other relevant circumstances of the case.

     9. This Court in the decision of Bengai Manda/ alias               C
Begai Manda/ v. State of Bihar reported ir:i (2010) 2 SCC 91
after referring to some allied decisions of this Court held that
the position with regard to Section 34 IPC is crystal clear and
that the existence of common intention is a question of fact. It
was held that since intention is a state of mind it is, therefore,      D
very difficult if not impossible to get or procure direct proof of
intention and, therefore, courts in most cases have to infer the
intention from the act or conduct of the party or other relevant
circumstances of the case.
                                                                        E
     10. Counsel appearing for the appellant also drew our
attention to the same decision which is relied upon in the
impugned judgment by the High Court, i.e. the case of State of
Haryana v. Bhajan Lal and others reported in 1992 suppl. 1
sec 335. In the said decision, this Court held that it may not          F
be possible to lay down any specific guidelines or water tight
compartment as to when the power under Section 482 Cr.P.C.
could be or is to be exercised. This Court, however, gave an
exhaustive list of various kinds of cases wherein such power
could be exercised. In paragraph 103 of the said judgment,              G
this Court, however, hastened to add that as a note of caution
it must be stated that the power of quashing a criminal
proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases for the
Court would not be justified in embarking upon an inquiry as to         H
    204      SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A   the reliability or genuineness or otherwise of the allegations
    made in the First Information Report or in the complaint that the
    extraordinary or the inherent powers do not conter an arbitrary
    jurisdiction on the Court to act according to its whim or caprice.

S       11. Keeping the aforesaid legal principles in our mind, we
  now proceed to examine the contentions raised by the counsel
  appearing for the appellant in order to. aseertain and find out
  whether a case for quashing is made out in the facts of the
  present case. In the First Information Report, there is an
  allegation that the two other accused persons namely lshwar
C Das and his wife Sunita Devi on the fateful day after talking to
  the present appellant over telephone in a pre-determined
  manner killed the informant's daughter Simla Devi by pushing
  her into a well. Counsel appearing for the appellant even
  sought to counter the said allegation by referring to a document
D issued by the Commanding Officer to the appellant dated 19th
  November, 2006. In the said note, which was sent to the
  Superintendent of Police, it is mentioned that as per the
  statement of the appellant his wife Simla Devi fell inside the
  well. The aforesaid document is in the natur:e of a defence and
E could be looked into by the appropriate Court at the appropriate
  stage and not now. What we are required to look at this stage
  is the allegations made in the complaint and in the First
  Information Report. He also referred to some of the statements
  made in the case diary to justify the stand that no case against
F the. appellant is made out.

        12. We are, however, unable to accept the said contention
  at this stage for we find that there was a demand for giving
  cows, motor cycle and other goods. All these allegations will
  have to be dealt with by the Court at different stages for which
G liberty would be available to the appellant. In our considered
  opinion, this is not the stage when the Court would make an
  inquiry into the factual position to find out as to whether or not
  the appettan~ is guiltY of the charges or not. The appellant; in
  our considered opinion, will have sufficient opportunity to place
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  AJAY KUMAR DAS v. STATE OF JHARKHAND &                     205
                    ANR.
his entire case before the Court at the time of framing of the      A
charge since charge sheet has already been filed against the
appellant also holding that a case under Section 3048 and
Section 34 is made out. We do not wish to enter into the factual
details for any discussion on them at this stage as the same
may prejudicially affect the case of the appellant. We are,         B
however, of the considered opinion that on a reading of the First
Information Report and the materials that are available in the
case file of the appellant that no case is made out so as to
quash the entire proceeding. Therefore, while rejecting the
contention of the counsel appearing for the appellant so far        c
quashing of the proceedings is concerned we give him the
liberty to raise all his defence as may be available to him in
accordance with law at the time of framing of the charge and
at that stage the Court shall consider the material on record as
also the contentions raised by the appellant in proper              0
perspective and decide the matter in accordance with law. We
also. make it clear that any observation made by us herein
would not be in any manner construed as our observations or
views with regard to the merit of the case or the defence of the
appellant.
                                                                    E
     13. In terms thereof, we dismiss the appeal but with the
aforesaid liberty granted to the appellant. The stay of further
proceedings before the trial court granted vide this Court order
dated 22nd October, 2010 stands vacated.
                                                                    F
R.P.                                        Appeal dismissed.