AJAY KUMAR DAS ..... APPELLANT VERSUS STATE OF JHARKHAND & ANR. ..... RESPONDENTS

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

1

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NO. 1735 OF 2011
ARISING OUT OF S.L.P. (CRL.) NO. 10005 OF 2009


AJAY KUMAR DAS ..... APPELLANT
VERSUS


STATE OF JHARKHAND & ANR. ..... RESPONDENTS


J U D G M E N T


1. Leave granted.
2. This appeal is directed against the order dated
19th August, 2009 passed by the Jharkhand High Court
dismissing 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 304B read with Section 34 of
the Indian Penal Code against the 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 marriage, informant had given
sufficient dowry. It was stated therein that the

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

2

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, 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, 2001. An order was also passed
on 17th April, 2007, by the Magistrate taking cognizance
which is also assailed in the present case. The
appellant was granted bail by the High Court on 10th
April, 2007.


4. After submission of the aforesaid charge sheet and
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 the appellant is
the husband. It was also held that the points taken by
the appellant before the High Court are rather a defence
case and that the same relates to factual dispute. The

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

3

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 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
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 304B 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 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
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

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

4

record. It is also 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 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 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 304B
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 are not mutually exclusive.
It was also held that a person charged and acquitted
under Section 304B 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 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

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

5

awarded for the major offence under Section 304B. In
that decision, this Court considered the scope and ambit
of Section 304B IPC and also of Section 498A IPC.
Reference was also made to provisions of Section 113B of
the Evidence Act. It was held that Section 113B of the
Evidence Act lays down that if soon before the death such
woman has been subjected to cruelty or harassment for or
in 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 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 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 said decision, it was held that to invoke the aid
of Section 34 IPC exclusively it must be shown that the

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

6

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 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 Mandal alias
Begai Mandal v. State of Bihar reported in (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, 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.
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 SCC 335. In the said decision, this Court

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

7

held that it may not 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, 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 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 confer an arbitrary jurisdiction
on the Court to act according to its whim or caprice.


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
ascertain 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 Ishwar Das and his wife
Sunita Devi on the fateful day after talking to the
present appellant over telephone in a pre-determined

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

8

manner killed the informant's daughter Bimla Devi by
pushing her into a well. Counsel appearing for the
appellant even sought to counter the said allegation by
referring to a document 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 Bimla Devi fell inside the well. The aforesaid
document is in the nature of a defence and 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 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 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
appellant is guilty of the charges or not. The
appellant, in our considered opinion, will have

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

9

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 under Section 304B 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, 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 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
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.


13. In terms thereof, we dismiss the appeal but with
the aforesaid liberty granted to the appellant. The stay

Crl. Appeal No. 1735 of 2011 @ SLP(Crl) 10005/2009 REPORTABLE

10


of further proceedings before the trial court granted
vide this Court order dated 22nd October, 2010 stands
vacated.

.......................J
[Dr. MUKUNDAKAM SHARMA]


NEW DELHI


........................J
[ANIL R. DAVE]
SEPTEMBER 6, 2011.