RAM SARAN VARSHNEY & ORS vs. STATE OF U.P.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 128 OF 2011

J U D G M E N T 1. The challenge raised in the instant appeal is, as against the order dated 7.5.2008, namely, the charge sheet wherein the appellants before this Court have been proceeded against under Sections 498A and 506 of the Indian Penal Code, as also, under Sections 3/4 of the Dowry Prohibition Act. A JUDGMENT further challenge has also been raised, as against the order dated 12.05.2008 (passed by the Chief Judicial Magistrate, Lucknow), taking cognizance of the charge sheet, filed against the appellants. 2. It is essential to narrate the facts leading up to the controversy. In this behalf, it would be relevant to mention, that Mukul Gupta - appellant no.3 was married to Sonia Gupta - respondent no.2 on 11.06.1997. Ram Saran Varshney - appellant no.1 and Saroj Varshney - appellant no.2 are the 1 Page 1 father-in-law and mother-in-law respectively of respondent no.2. Appellant nos. 4, 5 and 6 are the sisters-in-law of respondent no.2. 3. A girl child was born to appellant no.3 and

the matrimonial home at Pune till 30.10.2001, it is the case of the appellants before this Court, that respondent no.2 left her matrimonial home on 30.10.2001. It is also alleged, that on 15.03.2002, respondent no.2 forcibly attempted to enter the house of Ram Saran Varshney and Saroj Varshney (i.e. her parents-in-law) at Lucknow. Consequently, appellant nos. 1 and 2 initiated civil proceedings, to restrain respondent no.2 from entering their house. By an order dated 15.03.2002, the District Judge, Lucknow granted the necessary restraint order, in favour of appellant nos. 1 and 2. In sum and substance, respondent no.2 was restrained from forcibly entering into the JUDGMENT house allotted to appellant no.1, namely, C-79, Butlar Palace Colony, PS Hazratganj, Lucknow, without the permission of the Court. 4. It seems, that the relationship between the parties were not amicable. It is therefore, that appellant no.3 - Mukul Gupta filed a petition under Section 13 of the Hindu Marriage Act, 1956, seeking divorce from respondent no.2 - Sonia Gupta. During the course of hearing, it was the 2 Page 2 contention of the learned senior counsel for the appellants, that as a retaliatory act to the divorce petition filed by appellant no.3 - Mukul Gupta, respondent no.2 - Sonia Gupta registered a first information report bearing Case Crime No.

Sections 3/4 of the Dowry Prohibition Act. It was alleged by respondent no.2 in the above first information report, that the appellants were harassing her. Investigation in the matter, consequent upon the registration of the first information report was handed over to Inspector - Krishan Pal Singh. Apprehending arrest, based on the allegations levelled by respondent no.2 against the appellants, they approached the High Court of Judicature at Allahabad, by filing Writ Petition (MB) No. 2600 of 2002. It is not a matter of dispute, that the High Court stayed the arrest of the appellants. 5. Krishan Pal Singh, having investigated into the JUDGMENT matter, filed a closure report dated 27.4.2003. The instant report shall hereinafter be referred to as the “First Closure Report”. The text of the aforesaid closure report is reproduced hereunder: “It is stated that on 10.04.2002 on the information of the complainant to PS Shivkutti, Allahabad, after registering a case, Sh. K.P. Singh, ASI, PS Hazratganj, started investigation and investigated the matter by CO, Hazratganj. Thereafter, I conducted the investigation and after thorough investigation and the statements of the witnesses and perusal 3 Page 3

6. Respondent no.2 - Sonia Gupta, it seems, expressed dissatisfaction with the investigation carried out by Krishan Pal Singh. It is therefore, that she addressed a representation to the Superintendent of Police, City (East), Lucknow, requiring him to order further investigation, through some other police station. In this context, it would be relevant to notice, that the Superintendent of Police ordered further investigation by the Station House Officer, Police Station Hussainganj. Accordingly, Badan Singh conducted further investigation. Having carried out the investigation, JUDGMENT Badan Singh also submitted a closure report dated 10.07.2003. The instant report shall hereinafter be referred to as the “Second Closure Report”. The text of the same is being extracted hereunder: “I perused the case diary maintained by Sr. SI and former Ios and considered the same carefully. I have also considered the statements maintaining the case diary and contents of the annexures. I also considered the statements of complainant and her family members. The complainant and her family members have only stated orally regarding the demand of dowry for demanding a sum of Rs. 10 lakhs and 4 Page 4

JUDGMENT 7. Sonia Gupta - respondent no.2, filed a protest petition before the Chief Judicial Magistrate, Lucknow, against the filing of the First Closure Report dated 27.4.2003. The aforesaid protest petition was filed on 17.07.2006. Having taken into consideration the issues canvassed by respondent 5 Page 5 no.2, the Chief Judicial Magistrate, Lucknow, ordered further investigation vide order dated 06.09.2006. 8. Dissatisfied with the order dated 6.9.2006, Ram Saran Varshney - appellant no.1, and Saroj Varshney - appellant no.2

revisional Court stayed the order passed by the Chief Judicial Magistrate, Lucknow, dated 6.9.2006 (whereby she had ordered further investigation in the matter). 9. Despite the fact, that the order passed by the Chief Judicial Magistrate, Lucknow, dated 6.9.2006 had been stayed by the revisional Court, further investigation continued to be carried on, by yet another investigating officer, namely, N.K. Bajpai. After completing investigation, he also submitted a closure report dated 27.02.2007. The instant report shall hereinafter be referred to as the “Third Closure Report”. It is not necessary to extract the whole of the report. JUDGMENT Accordingly, a relevant part thereof is being reproduced hereunder: “...Accused no. 3 Mukul Gupta is posted in London. He was contacted on 8.2.2007 on return to Lucknow. His father Sh. R.S. Varshney and mother Smt. Saroj Varshney are now residing at their residence situated at Sitapur Road, Sri Nathji Vihar Colony. They were also contacted and they told that the complainant letter dated 14.2.2002 written by Sh. D.D. Varshney to Distt. Magistrate is a forged one as such complainant letter have never been received in the District Magistrate's office. In this connection has produced a proof on 8.8.2002 and 6 Page 6

JUDGMENT 7 Page 7 knowledge. Therefore, I agree with the previous investigation. Final report may be accepted.” 10. It would also be relevant to mention, that the revision petition filed by the parents-in-law of respondent

finality, as the pleadings do not indicate any further action on the part of the appellants in the matter. 11. Learned senior counsel for the appellants, has expressly invited our attention to the fact, that after the submission of the Third Closure Report, no direction was given by any Court for conducting any re-investigation/further investigation in the case. It was submitted during the course of hearing, that no further investigation was ordered to be conducted at the hands of any senior police officer also. Yet, at the back of the appellants, further investigation into the first information report lodged by respondent no.2, as far back JUDGMENT as on 10.4.2002, was carried out, even after the submission of the Third Closure Report. It was sought to be pointed out, that the aforesaid investigation came to light, when Sonia Gupta - respondent no.2 moved an application before the Chief Judicial Magistrate, Lucknow, seeking the status of investigation, pursuant to the directions issued by her on 6.9.2006, directing further investigation into the matter. While taking cognizance of the said application, the Chief 8 Page 8 Judicial Magistrate, Lucknow, by an order dated 27.03.2008, directed the officer in-charge to file an action taken report. It was at that juncture, that further investigation into the matter, was taken up by yet another investigating officer,

Investigating Officer-Uma Shankar Tripathi filed a charge sheet dated 7.5.2008. The contents of the above charge sheet are reproduced below: “Above mentioned prosecution dated 10-04-2002 has been registered on the statement of complainant Smt. Sonia Gupta, whose investigation was first carried out by Sh. Pankaj Gautam C.O. PS. Hazrathganj, S.I. KP Singh, S.I. CL Sachan, and S.I. SK Bajpai. All the investigating Officers after investigation submitted final report through F.R. 207. However, the Hon'ble Court passed an order on the petition of the complainant for investigation under Section 178 CrPC. In pursuance of the Court Order investigation was started. On the basis of the statement of the complainant, witness statements, charge sheet No. 203/08 is being filed against the accused persons in column no. 3 under sections 498-A/506 IPC and ¾ Dowry Protection Act, after cancelling the previously filed final reports. Kindly consider the evidence and take action as per law. JUDGMENT It is noteworthy that by the accused persons have been granted a Stay on Arrest by the Hon'ble High Court. The investigation is being concluded. Charge sheet is filed against all the accused.” 9 Page 9 Consequent upon the filing of the aforesaid charge sheet before the Chief Judicial Magistrate, Lucknow, cognizance was taken on 12.5.2008, and the appellants were summoned to face trial. The above order is being reproduced hereunder:

13. The appellants filed another revision petition challenging the order dated 12.5.2008, taking cognizance, before the Sessions Court, Lucknow. The Sessions Judge dismissed the revision petition filed by the appellants on 1.7.2008. 14. The appellants then approached the High Court of JUDGMENT Judicature at Allahabad, by filing Criminal Miscellaneous Case No. 2463 of 2008 under Section 482 of the Code of Criminal Procedure, seeking quashing of the charge sheet dated 7.5.2008, the order passed by the Chief Judicial Magistrate dated 12.5.2008, and the order passed by the Sessions Judge dated 1.7.2008. The impugned order came to be passed by the High Court on 1.12.2008, when the challenge raised by the appellants before the High Court, was rejected. 10 Page 10 15. The first contention advanced at the hands of the learned senior counsel for the appellants was, that the charge sheet dated 7.5.2008, and the order taking cognizance dated 12.5.2008 were cryptic in nature. It was the vehement

as also, the Chief Judicial Magistrate, Lucknow, had not taken into consideration the earlier closure reports, and as such, the charge sheet dated 7.5.2008, as also, the order dated 12.5.2008 taking cognizance, were not sustainable in law. Insofar as the instant aspect of the matter is concerned, learned senior counsel placed reliance on a decision of this Court rendered in the case of Vinay Tyagi vs. Irshad Ali alias Deepak and others (2013) 5 SCC 762. Our attention was expressly invited to the following observations recorded in the above judgment: “41. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kinds of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the first information report. Then, upon completion of the investigation, the police is required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the court. It is the record of the case and the documents annexed thereto, which are considered by the court and then the court of the Magistrate is expected to exercise any of the three options aforenoticed. Out of JUDGMENT 11 Page 11

JUDGMENT 49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a 12 Page 12

(a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof; (b) Where an order is passed by the higher courts in exercise of its extraordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on “fresh investigation” or “reinvestigation” or any part of it be excluded, struck off the court record and be treated as non est.” JUDGMENT (emphasis is ours) 16. There is no serious ambiguity in the submission advanced by the learned senior counsel representing the appellants. On a perusal of charge sheet dated 7.5.2008, and the order taking cognizance dated 12.5.2008, it is apparent, that the Second and the Third Closure Reports were apparently not taken into consideration. In the above factual position , there would be no difficulty for us to accept the contention 13 Page 13 advanced at the hands of the learned senior counsel for the appellants. The submission made by the learned senior counsel for the appellants, has however been strenuously contested on behalf of the learned counsel for the State of Uttar Pradesh,

appearance in person. 17. Insofar as the Second Closure Report is concerned, it was the submission of the learned counsel for the respondent-State, that the same must be deemed to have been expressly taken into consideration, when consequent upon the filing of the First Closure Report dated 27.4.2003, the Chief Judicial Magistrate, Lucknow ordered further investigation on 6.9.2006. To support the instant submission, learned counsel for the respondent submitted, that the solitary contention advanced on behalf of the appellants, in the challenge to the order dated 6.9.2006 is noted in paragraph 6 in the order passed by the Additional Sessions Judge, Special Court, Lucknow JUDGMENT dated 1.3.2008. Paragraph 6, aforementioned, is reproduced below: “6. The only basis taken in the Revision is that the further investigation done by the investigating officer S.S.I., Shri Badan Singh Police Station Hussainganj, was not considered by the Chief Judicial Magistrate who passed the disputed order. In this context, it is worthwhile mentioning that the Final Report on the orders of further investigation was returned on its own level by the Police Superintendent (East), Lucknow, on which from 29.06.2003 S.S.I., Badan Singh started the investigation and noted the supplementary Case 14 Page 14

(emphasis is ours) While dealing with the above solitary contention on behalf of the learned counsel for the appellants, the Sessions Court, while rejecting the appellants' claim, recorded as under: “10. During the Revision, along with affidavit 18-B in Hon'ble High Court, Allahabad, Lucknow Bench, Lucknow the certified photocopy of the writ petition No.6588/MB/2006 instituted by the accused/revisionists was made available, by which it was applied that during investigation by the police station Hazratganj the police will not arrest the accuseds and also it has been requested to dismiss the First Information Report registered by the complainant. Also relying on the judgment passed by the Hon'ble High Court in Writ Petition No.2600/2002 dated 15.05.2002, the order was affixed with the writ petition according to which during the investigation of Crime No. 326/2002 under sections 498A, 506 I.P.C. and 3/4 of Dowry Prohibition Act, police station Hazratganj, was arrest stayed of the revisionists/accused. District Court, Lucknow Court by its order dated 15.03.2002 passed an injunction against the respondent/complainant. This order was also made available in form of 18-B/37 and 39. Order passed by the Hon'ble High Court, Allahabad dated 18.10.2006 (18-B/51) was made available by which during the investigation the arrest of the revisionists were stayed by the Hon'ble High Court, Allahabad therefore the accused/revisionists are not adversely affected JUDGMENT 15 Page 15

18. A perusal of the submission made at the behest of the appellants, and the order passed by the Sessions Judge, according to the respondents, leave no room for any doubt, that the Sessions Judge, while rejecting the solitary contention advanced at the hands of the appellants, arrived at the conclusion, that the Second Closure Report dated 10.07.2003, had duly been taken into consideration by the Chief Judicial Magistrate, Lucknow. The aforesaid finding recorded by the Sessions Judge in the order dated 1.3.2008, was not assailed by the appellants, and therefore attained finality. 19. Without repeating the contention advanced at the JUDGMENT hands of the learned counsel for the respondent, we are satisfied, that the submission advanced is wholly justified and deserves to be accepted. In the above view of the matter, we hereby hold, that while passing the order dated 6.9.2006, the Chief Judicial Magistrate, Lucknow, had duly taken into consideration the second Closure Report dated 10.07.2003. 20. Insofar as the submissions advanced at the hands of the learned senior counsel for the appellants is concerned, the 16 Page 16 only remaining contention is, that the concerned authorities had not taken into consideration the Third Closure Report dated 27.02.2007, either at the time of investigation, whereafter the Fourth Investigating Report was submitted on 23.4.2008, or

Judicial Magistrate, Lucknow on 12.5.2008. 21. When confronted with the second submission, as has been noticed in the foregoing paragraph, learned counsel for the respondent pointed out, that the Third Closure Report was based on the order of the Chief Judicial Magistrate, Lucknow dated 6.9.2006, whereby further investigation was ordered. It was submitted on behalf of the respondent, that in the revision petition filed by the appellants themselves (before the Sessions Judge, Lucknow), further investigation ordered by the Chief Judicial Magistrate, Lucknow, was stayed on 7.11.2006. In view of the above restraint order, passed by the Sessions JUDGMENT Judge, Lucknow, no further investigation could have been carried out, after the order dated 6.9.2006 had been passed. It is also the pointed contention of the learned counsel for the respondent, that the Third Closure Report was submitted on 27.02.2007, whereas the interim order passed on 7.11.2006 came to be vacated only on 1.3.2008, when the criminal revision petition filed by the appellants was dismissed, by the Sessions Judge. In sum and substance, it was the contention of the 17 Page 17 learned counsel for the respondent, that the entire investigation leading to the passing of the Third Closure Report dated 27.2.2007, was a nullity in law. 22. We have no doubt whatsoever, when the Third Closure

aforesaid order passed by the Chief Judicial Magistrate, Lucknow, came to be stayed by the Sessions Judge, Lucknow on 7.11.2006, and the said order continued till 1.3.2008(when the criminal revision petition filed by the appellants came to be dismissed). In the meantime, during the subsistence of the restraint order (staying investigation), the investigation was completed and the third investigating officer – N.K. Bajpai submitted the Third Closure Report dated 27.2.2007. Since the above investigation leading to the closure report dated 27.2.2007 was clearly in violation of an express judicial order to the contrary, in our considered view, the same is a nullity JUDGMENT in law, and cannot be accepted. In view of the conclusion recorded hereinabove, we are satisfied, that the contention advanced at the hands of the learned senior counsel for the appellants, that the Second and Third Closure Reports were not taken into consideration, cannot be accepted as a justifiable plea in law, insofar as the present controversy is concerned. The same is accordingly rejected. 18 Page 18 23. Despite our conclusion recorded hereinabove, in respect of the first contention advanced by the learned senior counsel for the appellants, it is important to refer to his second submission also. It was the pointed contention of the

are all sisters-in-law of respondent no.2 - Sonia Gupta. In that view of the matter, they are the sisters of the husband of respondent no.2 - Mukul Gupta. We were informed, that appellant nos. 4, 5 and 6 are all married and living independently. They are not residing with any of the appellant nos. 1 to 3. Since they are married, and living independently in different places, they had no concern with the relationship of respondent no.2 - Sonia Gupta with appellant nos. 1 to 3. Further more, our attention was also invited to the fact, that no clear allegations have been levelled by respondent no.2 - Sonia Gupta against any of the appellant nos. 4, 5 and 6. Even JUDGMENT during the course of hearing, respondent no.2 - Sonia Gupta, who entered appearance in person, did not contest the aforesaid factual position. Her only submission, during the course of hearing was, that her three sisters-in-law had visited the matrimonial house of respondent no.2, on the occasion of 'Grah Parvesh', and the 'Naming Ceremony' of her daughter. We are of the view, that the visit of the three sisters-in-law of respondent no.2 - Sonia Gupta, on the above two occasions were 19 Page 19 for celebration, and cannot be treated as occasions where they harassed respondent no.2. In any case, in the absence of any material on the record of this case, relating to harassment on the above two occasions, we are satisfied, that the proceeding

no.2 - Sonia Gupta on 10.04.2002, was not justified. The same deserves to be quashed. The same is accordingly hereby quashed. 24. Since, we have not interfered with the impugned summoning order dated 12.05.2008(as against appellant nos. 1 to 3), we would consider it just and appropriate to request the trial Court, to take up and dispose of the proceedings emerging out of Crime Case No. 326 of 2002, registered at Police Station Shiv Kutti, Allahabad, under Sections 498A and 506 of the Indian Penal Code, read with Sections 3/4 of the Dowry Prohibition Act, against appellant nos. 1 to 3 only, as JUDGMENT expeditiously as possible. 25. The instant appeal is disposed of in the above terms. .………………..……………….…....…J. (Jagdish Singh Khehar) ………………...…………………….…J. (N.V. Ramana) New Delhi; February 05, 2016. 20 Page 20