Sharmila vs Rattan Lal

MANISHA BATRA, J.(Oral)

This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for quashing of the order dated 11.11.2013 (Annexure P-7) passed by the Court of learned Judicial Magistrate First Class, Pataudi, whereby the petitioner has been summoned to face trial for the offence punishable under Section 302 of IPC in complaint bearing No.RBT-1163 dated 28.01.2010/19.01.2013 titled as ‘Rattan Lal v. Sharmila’, the order dated 23.05.2014 (Annexure P-9, passed by the Court of learned Additional Sessions Judge, Gurgaon, dismissing the revision petition filed against the said order, as well as for quashing of the complaint itself (Annexure P-5) including all the subsequent proceedings arising therefrom.

Brief facts of the case relevant for the purpose of disposal of this petition are that the marriage of the petitioner was solemnized with Kanwar Lal, son of the respondent, on 09.11.2006, who was serving as a Constable in the Army in the Signal Regiment, 25 Infantry Division, Rajouri (Jammu). The couple had no issue. On 20.09.2009, Kanwar Lal came home on one month's leave. On the night of 29.09.2009, he started vomiting in his room after taking his dinner. He was taken to General Hospital, Rewari, where it was found to be a case of aluminium phosphide (celphos) poisoning. As his condition was serious, he was referred to a higher centre, but he died on the way.

On 30.09.2009, SI Kishan Lal of Police Station Farrukh Nagar recorded the statement of the respondent at General Hospital, Rewari, and carried out the proceedings under Section 174 Cr.P.C. In this statement (Annexure P-1), the respondent stated that his son had told him that he had taken some poisonous substance and had asked him to save him. He also stated that his son was under some mental tension and that he did not suspect anyone. The statement of Ram Kumar, brother of the respondent, was also recorded on the same lines. The postmortem examination on the dead body was conducted at General Hospital, Rewari on the same day, and the viscera was sent to the Forensic Science Laboratory, Madhuban.

Thereafter, the respondent made complaint No.1190/P dated 03.11.2009 to the police, alleging that the petitioner had administered poison to his son. The Assistant Commissioner of Police, Manesar enquired into the complaint and, vide report dated 28.11.2009 (Annexure P-2), found that the petitioner had not given poison to the deceased. As per this report, the complaint had been made because the service benefits of the deceased were to go to the petitioner. The respondent then sent a number of complaints to various authorities, including the Director General of Police and the National Human Rights Commission. These were enquired into by the Assistant Commissioner of Police, Pataudi, who submitted his report dated 25.01.2010 (Annexure P-3). He found that the deceased was addicted to liquor and was under mental tension on account of disputes in the family regarding partition. He also noted an earlier attempt by the deceased to end his life, in which the petitioner had saved him, and concluded that the allegations were false.

Another complaint No.195 dated 10.03.2010 was enquired into by the Assistant Commissioner of Police, Bhondsi, who reached the same conclusion vide report dated 18.06.2010 (Annexure P-4). No FIR was registered on any of these complaints.

In the meantime, on 28.01.2010, the respondent filed a criminal complaint under Section 302 IPC (Annexure P-5) against the petitioner before the learned Magistrate. He alleged that the petitioner was not happy with the marriage and mostly stayed at her parental home. According to him, she and her family members used to threaten to implicate his family in a false dowry case. It was alleged that on 29.09.2009 at about 9/9.30 PM, he heard his son shouting for help. On reaching the room, he found his son vomiting and the petitioner present there. While being taken to the hospital in a vehicle, his son told him and the other occupants that the petitioner had given him some poisonous substance with the intention to kill him. He further alleged that after the postmortem, the petitioner left for her parental village with her father and took away her jewellery and other valuables. He stated that he had moved several applications to the police and higher officers, but no action had been taken against the petitioner.

In preliminary evidence, the complainant examined himself as PW10 (Annexure P-6). He also examined PW1 Dr. Deepak Verma, PW2 Constable Parveen Kumar, PW3 EHC Inderjeet, PW4 Shiv Kumar, PW5 SI Kishan Lal, PW6 Surender Kumar, PW7 Ram Mehar, PW8 Ram Kumar and PW9 Dr. Kamlesh Kumar. He tendered in evidence the postmortem report Ex.PA, a copy of the DDR entry Ex.PD, the inquest report Ex.PE, the medical report Ex.PG, the report of the Chemical Examiner Ex.PM and copies of his applications to the police authorities and the National Human Rights Commission. Vide order dated 11.11.2013 (Annexure P-7), the learned Magistrate held that a prima facie case under Section 302 IPC was made out and summoned the petitioner. The revision petition filed by the petitioner (Annexure P-8) was dismissed by the learned Additional Sessions Judge, Gurgaon vide order dated 23.05.2014 (Annexure P-9). Hence, the present petition. Vide order dated 16.07.2014, this Court stayed further proceedings before the learned trial Court and the interim order was extended from time to time, which is still continuing.

Upon notice, the respondent has filed a reply. He has pleaded that the married life of the couple was not smooth and that the petitioner remained at her parental home for most of the time. It is pleaded that aluminium phosphide was administered to the deceased by the petitioner, who was present with him but did not help him in any manner. As per the reply, the deceased was brought to General Hospital, Rewari at 10:55 PM, where Dr. Kamlesh Kumar found it to be a case of celphos poisoning. The respondent has further pleaded that the police obtained his signatures on certain papers when the dead body was at the stage of cremation. The three enquiries are stated to be based on the statement of the petitioner alone and on presumptions, and to have been influenced by village representatives. The statements of PW4 Shiv Kumar, PW6 Surender Kumar and PW10 Rattan Lal have been placed on record as Annexures R-1 to R-3. It is also pleaded that the petitioner remarried on 07.03.2011, but obtained appointment as an Anganwari worker on the basis of her status as a widow. A copy of the judgment dated 06.08.2013 passed by the learned Additional District Judge, Rewari in that regard has been placed on record as Annexure R-4.

Learned counsel for the petitioner has argued that the petitioner has been falsely implicated by her father-in-law only to deprive her of the service benefits of her deceased husband. The respondent himself, in his statement recorded on 30.09.2009 (Annexure P-1), stated that his son told him about having consumed poison on his own, and he did not suspect anyone. The proceedings under Section 174 Cr.P.C. were concluded on the basis of this statement. The allegation against the petitioner was raised for the first time on 03.11.2009, more than a month after the occurrence, when the respondent came to know that the service benefits would go to the petitioner. Learned counsel has further argued that the allegations of the respondent were enquired into three times by different police officers and were found to be false on each occasion. These facts were not disclosed by the respondent either in the complaint or in his statement before the learned Magistrate, and so he did not approach the Court with clean hands. In this regard, reliance has been placed upon Kuldip Raj Mahajan v. Hukam Chand, 2008(1) RCR (Criminal) 370. It is also argued that the learned Revisional Court passed a vague order without giving any reason to disbelieve the three enquiries. Its observation about the inquiry still going on is factually incorrect, as all the enquiries had been concluded much earlier. The impugned orders are, thus, the result of non-application of mind and liable to be set aside along with the complaint. Hence, it is urged that the petition deserves to be allowed.

Per contra, learned counsel for the respondent has argued that the petition is without merit. The petitioner was alone with the deceased in the room when he started vomiting. On the way to the hospital, the deceased told the occupants of the vehicle that the petitioner had given him poison. This oral dying declaration has been supported in preliminary evidence by PW6 Surender Kumar and PW7 Ram Mehar, who are independent witnesses, besides PW8 Ram Kumar and the complainant himself. The medical evidence also shows that the deceased died due to poisoning. Learned counsel has further argued that the police enquiries were one-sided and were conducted without recording the statements of the neighbours. These were only preliminary enquiries on complaints and have no binding force. As the police did not register an FIR, the respondent was left with no option except to file the complaint. The learned Magistrate passed the summoning order after recording the evidence of ten witnesses, and the learned Revisional Court rightly declined to interfere. The truthfulness of the versions of the parties can only be tested during trial. Hence, it is urged that the petition is liable to be dismissed. To buttress his arguments learned counsel for the respondent has relied upon the authorities cited as State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, Shanmughan v. State of Kerala, 2012 Cri.L.J. 1489 (SC), Dhaval Gopalbhai Darji v. State of Gujarat, 2013 Cri.L.J. 1225 and Trimukh Maroti Kirkan v. State of Maharashtra, 2007 Cri.L.J. 20 (SC).

This Court has heard the rival submissions at considerable length, besides going through the material placed on record.

The petitioner has been summoned on a private complaint after the learned Magistrate recorded preliminary evidence under Sections 200 and 202 Cr.P.C. The question before this Court is whether the summoning order suffers from any such illegality as would call for interference under Section 482 Cr.P.C.? The scope of inquiry at the stage of issuing process is limited. The Magistrate has to see whether there is sufficient ground for proceeding against the accused, and not whether there is sufficient ground for conviction. The Hon'ble Supreme Court in Bhushan Kumar and another v. State (NCT of Delhi) and another, (2012) 5 SCC 424, after referring to Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, (1976) 3 SCC 736, explained this position in the following words:

Thus, once the Magistrate has exercised his discretion judicially on the basis of the material before him, the High Court is not to substitute its own view or examine the merits to find out whether the allegations would end in conviction. Interference is called for only where the allegations, even if accepted in their entirety, do not make out any offence, or where the proceedings are manifestly an abuse of the process of the Court, as recognised in Bhajan Lal's case (supra). The case of the petitioner has to be examined in the light of these principles.

Much emphasis has been laid by learned counsel for the petitioner on the three enquiry reports (Annexures P-2 to P-4). It is not in dispute that no FIR was registered on the complaints of the respondent. The reports were submitted by the police officers on complaints made to the police, and no investigation under Chapter XII Cr.P.C. culminating in a report under Section 173 Cr.P.C. was ever placed before a Magistrate. Such enquiries reflect only the opinion of the enquiry officers, formed on the statements recorded by them. They do not bind the Magistrate who takes cognizance on a complaint. The law, in fact, gives a complainant the remedy of approaching the Magistrate precisely when the police fail to act on his information. The Hon'ble Supreme Court in Minu Kumari and another v. State of Bihar and others, (2006) 4 SCC 359 observed as under:

The present complaint was filed in exactly such a situation. The learned Magistrate was required to form his own opinion on the basis of the evidence led before him, and not on the opinion of the police officers. The conclusion of the police officers in favour of the petitioner is, at best, a circumstance on which she may rely in her defence. It cannot, by itself, render the summoning order illegal. Moreover, the respondent has questioned the fairness of these enquiries on the ground that the neighbours who accompanied the deceased to the hospital were not examined. This Court is not in a position to decide, in these proceedings, which of the two versions is correct.

The judgment in Kuldip Raj Mahajan's case (supra) does not help the petitioner. In that case, an FIR had been registered on the same allegations and, after investigation by a Gazetted Officer, a cancellation report had been submitted. The Magistrate had himself called for the report of the Investigating Officer, but passed the summoning order without even referring to it. The complainant had also concealed the cancellation report, and there were other circumstances showing mala fide and unexplained delay. It was in those facts that the summoning order was set aside. In the present case, no FIR was registered, and no cancellation report under Section 173 Cr.P.C. was ever prepared. The question of the Magistrate being bound to consider an investigation report, as in that case, therefore, did not arise.

More importantly, the record does not bear out the plea of concealment. In para 7 of the complaint and in his statement as PW10, the respondent specifically stated that he had moved applications to the police and higher officers, but no action had been taken. He tendered his applications Ex.PC, Ex.PF and Ex.PI to Ex.PL in evidence. He also examined PW5 SI Kishan Lal, who had conducted the inquest proceedings, and tendered the copy of the DDR entry Ex.PD and the inquest report Ex.PE. Thus, the very proceedings under Section 174 Cr.P.C., which according to the petitioner were concealed, were brought on record by the complainant himself. The learned Magistrate was, therefore, aware of the inquest proceedings when he passed the summoning order.

The main plank of the case of the petitioner is the statement of the respondent recorded on 30.09.2009 (Annexure P-1). The relevant portion thereof, as per the translated copy on record, reads as under:

There is no doubt that this statement is not in line with the version subsequently put forth by the respondent in his complaint. As noticed in Annexure P-4, the brother of the respondent, Ram Kumar, had also made a similar statement. However, the nature of these statements has to be kept in view. They were recorded during the proceedings under Section 174 Cr.P.C., the object of which is limited. The Hon'ble Supreme Court in Pedda Narayana and others v. State of Andhra Pradesh, (1975) 4 SCC 153 held as under:

The proceedings under Section 174 Cr.P.C. are, thus, meant only to ascertain the apparent cause of death. A statement recorded in such proceedings does not amount to a finding on the question as to who was responsible for the death. The respondent has explained in his reply that his signatures were obtained by the police on certain papers when the dead body was at the stage of cremation. Whether this explanation is true, and which of his two versions deserves to be believed, are pure questions of fact. The earlier statement can certainly be put to the respondent and the other witnesses during trial, in accordance with law, to test their credibility. However, this Court, while exercising jurisdiction under Section 482 Cr.P.C., cannot hold one version to be true and the other to be false without evidence being led. Doing so would amount to holding a mini trial, which is not permissible at this stage. The same reasoning applies to the delay of about five weeks in making the first complaint to the police, which the respondent attributes to his grief and to the inaction of the police.

On the other hand, the evidence before the learned Magistrate was not confined to the statement of the complainant alone. PW6 Surender Kumar, the owner of the vehicle in which the deceased was taken to the hospital, deposed that on the way the deceased was saying, "papa please save me, Sharmila has given some poisonous substance" (Annexure R-2). PW4 Shiv Kumar, a neighbour, deposed that the respondent came to the house of his uncle crying and told him that his son had been poisoned by his wife, and asked for a vehicle (Annexure R-1). The summoning order records that PW7 Ram Mehar and PW8 Ram Kumar also supported the version given in the complaint. It further records that the medical evidence showed the death to be due to poisoning. These materials, if believed, are sufficient to make out a prima facie case under Section 302 IPC. Their worth will have to be tested during trial, where the petitioner will be at liberty to point out the contradictions in the versions of the witnesses, including the earlier statement of PW8 Ram Kumar.

It is also relevant that the offence under Section 302 IPC is triable exclusively by the Court of Session. In such a case, the proviso to Section 202(2) Cr.P.C. requires the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The learned Magistrate examined ten witnesses, including two doctors and the police officer who had conducted the inquest proceedings. It cannot, therefore, be said that the summoning order was passed in a casual manner or without any material. The order discusses the oral and documentary evidence and the legal position, and reflects due application of mind.

Learned counsel for the petitioner has urged this Court to look into the material relied upon by the petitioner and quash the proceedings on that basis. The Hon'ble Supreme Court in Rajiv Thapar and others v. Madan Lal Kapoor, (2013) 3 SCC 330 has laid down the parameters within which the High Court may consider the material produced by an accused at the pre-trial stage. It was held that this is not a stage for evaluating the truthfulness of the allegations. The material relied upon by the accused must be of sterling and impeccable quality, which cannot be justifiably refuted by the complainant. The relevant observations are as under:

The view taken in Rajiv Thapar's case (supra) is not in conflict with the principle laid down in Smt. Nagawwa's case (supra). The High Court may look at the material of the accused only when it is so unimpeachable that it demolishes the accusation without any trial. Where the material is disputed, the general rule stated in Smt. Nagawwa's case (supra) continues to apply. When tested on these parameters, the material relied upon by the petitioner does not meet the requirement. The enquiry reports are only the opinions of police officers formed on statements recorded by them, and their fairness has been questioned by the respondent. The statement Annexure P-1 has been explained by the respondent and is contrary to his sworn statement and to the statements of the other witnesses. This material has been seriously refuted and cannot be described as indubitable. It is also significant that in Rajiv Thapar's case (supra), the postmortem report and the report of the Central Forensic Science Laboratory showed that the death had not been caused by poisoning at all, and so the very foundation of the complaint stood demolished. In the present case, it is the admitted case of both sides that the deceased died due to aluminium phosphide poisoning. The only question is whether he consumed it himself or it was administered to him by the petitioner. That question cannot be answered without evidence.

It has also been argued that the complaint is motivated by greed for the service benefits of the deceased. On the other hand, the respondent has referred to the remarriage of the petitioner and to her appointment as an Anganwari worker (Annexure R-4). Neither aspect has any direct bearing on the question involved in this petition. The plea of motive is a matter of defence, which the petitioner may raise during trial. The civil litigation regarding the post of Anganwari worker is wholly unrelated to the allegation of murder, and this Court has not taken it into account against the petitioner.

As regards the authorities relied upon by learned counsel for the respondent, the principles laid down in Bhajan Lal's case (supra) have already been applied above. The remaining judgments were rendered in appeals arising out of convictions, after appreciation of the evidence led during full trials. They have been cited to show that offences committed inside a house are often committed in secrecy and that the conduct of the inmates becomes relevant in such cases. This Court has not found it necessary to rest its decision upon them, as the present matter is at the threshold and the evidence is yet to be appreciated by the trial Court.

Learned counsel for the petitioner is right in pointing out that the observation of the learned Revisional Court, about the inquiry still going on, is not correct. All the three enquiries had been concluded much before the complaint was decided. However, the conclusion of the learned Revisional Court is not based on this observation alone. It noticed the DDR, the enquiries and the preliminary evidence, and rightly held that the merits were not to be gone into at that stage. The erroneous observation, therefore, does not vitiate the order. It is also to be kept in mind that the petitioner had already availed the remedy of revision before the Court of Session. A second revision by the same party is barred under Section 397(3) Cr.P.C. Though the inherent power of this Court remains available, it is to be exercised sparingly in such a situation. The Hon'ble Supreme Court in Krishnan and another v. Krishnaveni and another, (1997) 4 SCC 241 held as under:

No grave miscarriage of justice or abuse of the process of the Court has been shown in the present case, which would justify interference with the concurrent view of the Courts concerned. The petitioner is not without remedy. After her appearance, the case will have to be committed to the Court of Session under Section 209 Cr.P.C. At the stage of considering the charge under Sections 227 and 228 Cr.P.C., the Court of Session will examine the record of the case and hear both sides. The petitioner will be at liberty to raise all her pleas at that stage, including those based on Annexure P-1 and the enquiry reports. As the complaint was instituted in the year 2010, the proceedings shall continue to be governed by the Code of Criminal Procedure, 1973 in view of Section 531(2)(a) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

In view of the above discussion, this Court finds no illegality or perversity in the order dated 11.11.2013 (Annexure P-7) or in the order dated 23.05.2014 (Annexure P-9). The complaint discloses the commission of an offence and is supported by preliminary evidence. The disputed questions raised by the petitioner can only be decided during trial. Consequently, the present petition is dismissed. The interim order dated 16.07.2014 stands vacated. The petitioner is directed to appear before the learned trial Court within a period of 30 days from today. As the complaint has remained pending since the year 2010, the learned trial Court is requested to proceed with the matter expeditiously.

It is clarified that nothing observed hereinabove shall be construed as an expression of opinion on the merits of the case. The learned trial Court shall decide the matter uninfluenced by any observation made in this judgment. Pending miscellaneous application(s), if any, also stand disposed of.