O.P. Malhotra And Anr. vs The State
2005 Latest Caselaw 881 Del

JUDGMENT

Manju Goel, J.

1. This petition seeks setting aside of the order dated 30th November, 2002 passed by Shri Yogesh Khanna, Addl. Sessions Judge, Delhi in case FIR No. 87/1989 under Sections 498-A/304-B/120-B of the IPC registered at Police Station defense Colony, New Delhi. By the impugned order, the learned Additional Sessions Judge declined an application of Smt.Swarankanta and Om Prakash Malhotra, the present petitioners for dropping of proceedings against them. The main contention of the defense is that the charges against a similarly placed co-accused Smt.Neena Anand were dropped by the High Court, vide an order dated 11th April, 2001 in Crl.Rev.P.25/1994. An SLP was dismissed on 25th January, 2002. Vide another order dated 25th January, 2002, in another SLP the Supreme Court declined to interfere with the order in favor of Smt. Neena Anand.

2. The background is now necessary in order to understand the scope of the present petition. On 21st -22nd April, 1989 Police Station defense Colony received an intimation from Ram Manohar Lohia Hospital that Shalini Malhotra wife of Praveen Malhotra had been admitted there with burn injuries of 50 per cent. A dying declaration was recorded by the SDM at 8.30 AM on 22nd April, 1989 in which she stated that when her husband was taking liquor, she got angry and poured liquor on herself and set herself on fire. Subsequently, on the same day at 4.20 PM she gave another statement which was recorded by A.S.I. Sukh Ram in which she stated that her mother-in-law and father-in-law namely the two petitioners herein and her sister-in-law Neena Anand had been harassing her and had been beating her and that her husband had been fighting with her after drinking. About the cause of death, she stated that on that day she picked up the whisky bottle after being fed up with the fighting and beating of her husband, poured the whisky on her and burnt herself. She, however, also demanded action against the two petitioners and Neena Anand. Further, she stated that the petitioners and Neena never gave her enough food and taunted her for bringing insufficient dowry. In yet another statement at 6.35 PM to the SDM, she again talked about her fights with her husband on account of his drinking habit. About the cause of death she stated that on that day she was abused, when she requested him to stop drinking, and when the fight intensified, she declared that she wanted to die as she had tolerated his tortures enough on which her husband told that if she did not know how to die, he could show the way to her. She went on to say that she threatened to die in the office where they were at that time and, thereafter, she poured the whisky from his bottle and lit herself with the match stick. She proceeded to say that on hearing her scream, the landlord of that building came to the door which her husband refused to open and thereupon she went to the door and let the landlord come in. She then said that since her mother-in-law was standing next to her when she was brought to the hospital, she gave the statement that she had caught fire while preparing food. On 29th April, 1989 Shalini passed away. The cause of death was septicemia, 70 per cent anti mortem superficial and deep burns. The Doordarshan got an opportunity to interview the persons connected with the incident in which it elicited that Shalini had been tortured for bringing insufficient dowry. On conclusion of investigation, the husband of the deceased, namely, Praveen, the present petitioners as well as the sister-in-law were challaned for the offence under Sections 498-A/302/120-B of the IPC. The Additional Sessions Judge charged Praveen with offence under Section 302 of the IPC and under Section 304-B of the IPC and in the alternative under Section 306 of the IPC. The present petitioners who are parents of Praveen and Neena, the sister of Praveen were charged under Section 304-B and in the alternative under Section 306 of the IPC. All of them were also further charged under Section 498A of the IPC.

3. The husband Praveen died during the pendency of the case. Thus, the principal accused has escaped justice from the Court. Of the other three, Neena Anand filed a revision petition in the High Courft against the order of charge. The order dated 8th December, 1993 framing charge against the two petitioners and Neena Anand was set aside in Crl.Rev.P.25/1994 by a judgment dated 11th April, 2001. The order dated 11th April, 2001 is brief and can be quoted here in extenso:-

  "11.04.2001
Present:                Mr.U.R. Lalit, Sr.Advocate, Mr. D.C. Mathur,
                        Sr. Advocate, Mr. R.S. Suri, Sr. Advocate,
                        with Mr. Ravikesh K. Sinha, Ms. Rebecca M.
                        John and Ms. Kamna Vohra for the 
                        petitioner.
                        Mr. P.K. Dey for the respondent-State.
Crl. Revision No. 25/1994
 

Criminal Revision No. 25/1994 is directed against the order of the learned Additional Sessions Judge dated 8.12.1993 whereby the learned Additional Sessions Judge directed framing of charge and subsequently went on to frame the charge. I need not burden this Order with the facts of the case. Suffice it to say that charges as framed are set down as under:-

(1) That on the night between 21st & 22nd April, 1989 at A-32, defense Colony at about 10-30 P.M. you accused Parveen caused extensive burns on the body of your wife Shalini by lighting a match stick and putting her clothes on fire, while she had drenched her clothes with liquor, intending to cause her death of(sic) intending to cause such bodily injury as you knew to be likely to cause her death or intending to cause such bodily injury burns as is sufficient in ordinary course of nature to cause her death or knowing that your act was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. And thus you caused death of Shalini on 29th April, 1989.

And thereby you committed an offence of murder punishable U/s 302 IPC and within my cognizance.

(2) Secondly during 21-4-89 to 28-4-89 at New Delhi you all the accused caused dowry death of Shalini (you all being husband and relatives of husband of Shalini) by subjecting her (even since her marriage till her death) to cruelty or harassment for or in connection with demands of dowry. And her death having been caused within 7 years of her marriage and the death having been caused by burns at A-32, defense Colony, resulting in death on 28.4.89 in Willington Hospital, New Delhi, and otherwise than under normal circumstances.

And thereby you all committed an offence punishable U/s 304-B IPC and within my cognizance.

(3) Thirdly, in the alternative on 21.4.89 at A-32, defense Colony, Shalini committed by burning herself after putting liquor over herself and putting herself to flame having been continuously subjected to cruelty by you all the accused,(you accused Parveen by continuously beating her abusing her and rebuking her and harassing her and you all the other accused by harassing her and by putting her to various deprivations) and she ultimately died on 28.4.89, and you all the accused thus Abetted her suicide.

And thereby you all committed an offence punishable U/s 306 IPC and within my cognizance.

(4) Fourthly, during the period December, 1987 to April, 1989 in Delhi and at other places you all the accused, being husband & relatives of Shalini subjected Shalini to cruelties in the manner, described in charges 2 & 3 above.

And thereby you all committed an offence punishable U/s 498-A IPC and within my cognizance.

And I hereby direct that you all be tried by this Court on the said charge.

It is the case of both the parties, namely, the prosecution as also the petitioner that the deceased caught fire on 21st April, 1989 and was admitted to hospital on that day. She died on 28th April, 1989.

The charge as against the petitioner herein Meena Anand is that during 21st April, 1989 to 28th April, 1989, she had committed acts, which made her liable for being tried under Section 304-B IPC. This is factually incorrect, as stated by the Public Prosecutor and counsel for the petitioner, in which event there is no basis nor material on record to support this charge. Similarly charge No. 3 cannot be sustained. Having framed charge No. 1 under Section 302 IPC, an alternative charge under Section 306 IPC, which is a contradiction in terms cannot be sustained. This is agreed to by both the counsel. I, therefore, need not dwell further on this.

The basis of charge No. 4 is charge Nos. 2 and 3, which, as has already been stated above, cannot be sustained. Consequently, charge 4 must fall.

In this view of the matter, the order of charge cannot be sustained. I have no hesitation in setting aside the same. Ordered accordingly.

Criminal Revision No. 25/1994 is allowed.

Interim order is hereby vacated. Record of the trial court be sent back forthwith."

4. This order of this Court in the revision petition was challenged both by the State as well as by the complainants, namely, father of the deceased. The trial court's record shows apparent error in the second charge namely that from 21st April, 1989 to 28th April, 1989, the deceased had been treated with cruelty. This is the admitted case that during the period of 21st April, 1989 to 28th April, 1989, the deceased was actually in the hospital after having suffered the burn injuries and that was not the period during which any harassment have been alleged. In fact, the second charge itself clarified by the portion (even since her marriage till her death). Clearly this period was not 21st April, 1989 to 28th April, 1989. It cannot be said that the Additional Sessions Judge intended to charge the accused with the offence under Section 304-B of the IPC (for short `IPC') on account harassment meted out to Shalini for this period namely 21st April, 1989 to 28th April, 1989. Nonetheless, this Court in its order dated 11th April, 2001 found that the second charge was factually incorrect and found that there was no material on record to support such charge. For the same reason, this Court set aside all the other charges as the other charges depended upon the second charge.

5. The SLP filed by the State was dismissed without a speaking order. In the SLP filed by the complainant(Special Leave to Appeal (Crl.) No. 3225/2001), the Supreme Court went into the question of error and passed the following order on 19th November, 2001:-

"Upon hearing counsel the Court made the following

ORDER

The impugned order indicates that the learned Public Prosecutor stated before the High Court that the charges under Section 304-B against accused Neena had been framed under certain erroneous facts. Counsel for the informant, who is the petitioner in this Court, states that this is an incorrect recording of the High Court. In the circumstances, we call upon the learned Public Prosecutor, who was appearing before the High Court, to file an affidavit as to the correct state of affairs, and whether in fact such assertions had been made before the High Court or not. The affidavit in question be filed within four weeks from today.

Put up after six weeks."

6. This order required the Public Prosecutor appearing before this Court to file an affidavit about the proceedings in this Court when the last order was passed. Mr. P.K. Dey, Advocate who was representing the State in the High Court proceedings filed an affidavit before the Court, copy of which has been placed in this Court's present file. It was explained that the Public Prosecutor had pointed out that the dates of 21st April, 1989 to 28th April, 1989 were actually typographical error and that he had stated before the Court that during this period the deceased was in hospital when there was no harassment to her by the present petitioners. The SLP was decided by order dated 25th January, 2002 in which the Supreme Court passed the following order:-

"Upon hearing counsel the Court made the following

ORDER

Having heard the learned counsel for the parties, we are not inclined to interfere with the impugned order by which the High Court has quashed the charge so far as the accused Neena is concerned. The special leave petition is rejected."

7. It cannot be said that this order was passed without taking into the fact that this Court had set aside the charge on an erroneous view of the period of harassment. This order was passed after the affidavit mentioned above was filed. The Supreme Court said that it was not inclined to interfere with the impugned order of the High Court. Thus, it can be said that the Supreme Court upheld the High Court's order quashing the charge against the accused Neena.

8. What is submitted in the present petition is that the offence were one and the same because all the allegations of harassment or cruelty is alleged by all the witnesses in the same breath. They have always been named together by all the witnesses. It is submitted that if the three are accused of the same offence, and if one is discharged, there is no reason why the others can be prosecuted.

9. On behalf of the State it is submitted that the present petitioners did not challenge the order on charge and the order on charge has now become final and, therefore, they cannot now seek the relief in the proceedings under Section 482 Cr.P.C.

10. It is to be noticed that the Supreme Court's order in the two SLPs has given rise to a fresh cause to the petitioners to approach this Court and seek a relief in the inherent jurisdiction of this Court on the ground of parity. Although, the Supreme Court upheld the order of the High Court so far as accused Neena is concerned, there is no mention against the present petitioners in any of the two orders. This Court is, therefore, free to enter into the question as to whether on the ground of parity the present petitioners should also be discharged.

11. I have given my careful consideration to the question. While it is true that in every case of murder or of dowry death, or for that matter, of any other offence, the Court should make every effort to bring the offender to book, it is equally true that no innocent person should be punished for the offence. Unfortunately, in the present case the principal accused before whom Shalini caught fire is no more in this world. The parents and sister-in-law of Shalini were indicted in the subsequent dying declarations. All the dying declarations invariably show that the main cause of unhappiness of Shalini was her frequent quarrels with the husband who was given to drinks and was perhaps violent. The allegations of cruelty under Section 498-A developed subsequently from the later dying declarations of the deceased and more so after the parents were examined by the Investigating Officer and, thereafter, by the Doordarshan.

12. Be that as it may, as stated earlier Neena as well as the parents-in-law of the deceased fall in the same bricket and if Neena is discharged and the petitioners are tried it will result into an inconsistency which will be impossible to explain. I see no reason why the benefit of parity should be denied to the present petitioners.

13. I, therefore, allow the petition, and set aside the order of 30th November, 2002 of Shri Yogesh Khanna, Additional Sessions Judge, New Delhi and discharge the petitioners.