Mahavir vs State
2010 Latest Caselaw 1420 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                         CRIMINAL APPEAL NO. 250 OF 1997


%                                             Date of Decision: 15th March, 2010

MAHAVIR                                                             . . . Appellant

                              through :          None

                                    VERSUS

STATE                                                                . . .Respondent

                              through:           Mr.Sunil Sharma, APP

CORAM :-

       THE HON'BLE MR. JUSTICE A.K. SIKRI
       THE HON'BLE MR. JUSTICE AJIT BHARIHOKE

       1.      Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
       2.      To be referred to the Reporter or not?
       3.      Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (Oral)

1. The appellant was convicted by the Ld. Additional Sessions Judge, Delhi vide

impugned judgment dated 18th March, 1997 in Sessions Case No. 78/1993, FIR

No. 643/1992 for murder of Bimla by setting her ablaze after pouring kerosene

oil, under Section 302 IPC and sentenced to undergo imprisonment for life.

The conviction is based upon the dying declarations made by the deceased.

2. Pursuant to the order dated 15th January, 1999 the sentence of appellant was

temporarily suspended and he was released on interim bail for a period of 60

days and he was required to surrender after the expiry of said period. The

appellant failed to surrender and could not be traced.

3. On 9.11.2006, no one appeared on behalf of the appellant. Ld. counsel for the

State sought some time to find out the position regarding the appellant whether

he was in custody in respect of instant appeal arising out FIR No. 643/1992,

P.S. R.K. Puram as also FIR No. 762/1997, P.S. Hari Nargar. Accordingly, the

matter was adjourned to 20.11.2006 for directions. On 20.11.2006 also, no one

appeared on behalf of the appellant. A Status Report dated 11.11.2006 was filed

by SHO, P.S. R.K. Puram disclosing that the appellant was released from Tihar

Jail on 28.1.1999 and after expiry of the period of his interim bail, he did not

surrender. In case FIR No. 762/1997, P.S. Hari Nagar because the appellant

absconded, he was declared Proclaimed Offender by the Ld. trial court and his

other three co -accused in the said case were convicted and sentenced to

undergo imprisonment for life vide judgment dated 9.5.2005.

4. From the aforesaid Status Report, it is obvious that the appellant is deliberately

avoiding to appear, as such, he was declared Proclaimed Offender in FIR No.

762/1997 pertaining to P.S. Hari Nagar.

5. This Court has come across a number of appeals where the convicts, by abusing

the statutory right to appeal, take recourse to filing of appeal with the sole

objective of circumventing the sentence imposed pursuant to the judgment of

conviction, and after obtaining bail they abscond beyond the reach of law and

fail to turn up for hearing of appeal either in person or through the counsel.

6. The question, thus, arises as to how the matters of such appellants who have no

respect for law and who have abused the process of law should be dealt with.

The said aspect was considered and answered by a Co-ordinate Bench of this

Court and forms a part of the pronouncement in Mukesh Vs. State 2008 (3) JCC,

1986. The Division Bench, after highlighting its concern about rampant

manipulation and misuse of right to appeal by convicts with the sole object of

avoiding the sentence awarded by the learned Trial Court by obtaining bail and

thereafter escaping from the reach of the law, discussed various legal provisions

relating to appeals and the scope of Section 482 of Cr.P.C which confers

inherent powers to do substantial justice on the High Court and after discussing

different legal pronouncements of the Apex Court, the High Court thus

observed:

―24. Section 482 of the CrPC is of singular and seminal significance. The statutory provision which immediately comes to mind is Section

151 of the CPC because to a great extent the language employed therein appears to be identical to Section 482 of the CrPC. There are, however, several distinguishing features between these two Sections as is manifest from a reading thereof. We are juxtaposing the two Sections for the facility of reference:-

Section 482 of CrPC Section 151 of CPC

Saving of inherent power of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

25. It is at once obvious that whereas Section 482 of the CrPC is available only to the High Courts, Section 151 can be resorted to at any stage of civil judicial proceedings in any of the hierarchical tiers. Secondly, the use of the word ‗otherwise‗ in Section 482 has the avowed effect of boundlessly broadening the boundaries of inherent powers of the High Court in exercise of its criminal jurisdiction. Thirdly, it can be employed to ensure obedience of any order passed by the Court because of the phrase ―to give effect to any order under this Code‖. State of Karnataka -vs- L. Muniswamy, (1977) 2 SCC 699 enunciates that in exercise of its inherent powers in criminal matters ―the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. ....The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction‖. A Three-Judge Bench clarified in Krishnan -vs- Krishnaveni, (1997) 4 SCC 241 that although a second Revision before the High Court after dismissal of the first one by the Court of Sessions is barred by Section 397(3), the inherent powers of the High Court under Section 482 are nevertheless available albeit with restraint so as to avoid needless multiplicity of the proceedings. Their Lordships opined that - ―when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities ..... The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and it is preserved by the Court‖. Raj Kapoor -vs- State (Delhi

Administration), AIR 1980 SC 258 considered the question whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The view was that - ―Section 482 contradicts this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of S.482. Even so, a general principle pervades this branch of law; when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code‖. In State of Punjab -vs- Kasturi Lal, 2004 Crl. L.J. 3866 after cautioning against reckless use of Section 482 their Lordships have observed that ―Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exists. Authority of the Courts exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice‖. Advanced Law Lexicon by P. Ramanatha Aiyar defines Justice as ―The exercise of authority or power in maintenance of right; vindication of right by assignment of reward or punishment; the administration of law or the form and processes attending it; the principle of just dealing‖.

26. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction articulated on several occasions by the Apex Court has emboldened us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and be enlarged on bail and thereafter to become untraceable. It is the bounden and pious duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to be a mute spectator or an instrument by which a convict escapes serving out his sentence. (See Stirland v. Director of Public Prosecutions, 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh, (2003) 11 SCC 271). If the Court is derelict in doing its duty, the social framework will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by dismissing appeals, not in default or for non-prosecution, but because the proceedings in the Appeal manifest an abuse of the process of the Court and also an endangerment of the ends of justice. The inherent powers of the High Court, as pointedly preserved in Section 482 of the CrPC, are always to be used with care and caution. Dismissal of an appeal by the High Court should be in exercise of its inherent

powers and should be exercised with the greatest circumspection and restraint. There would be no justification to dismiss the Appeals, as in Bani Singh, merely because the appellant or his advocate fails to appear or prosecute the appeals on a date of hearing. Dismissal would be justified where the Court has employed steps available to it to secure the presence of the convict. It would be justified where non- bailable warrants have not had the desired effect of ensuring the presence of the appellant/convict, or by completion of steps for declaring the convict as a proclaimed offender. Compliance with these provisions would leave no doubt in the mind of the Court that the convict has no intention of pursuing his appeal; that the filing of the appeal was only a charade and a strategem to frustrate the outcome of a just trial. Tolerance is called for where the convict has expiated his crime. The right to personal freedom, protected by Article 21 of the Constitution of India, cannot be rendered nugatory by a pretentious or punctilious performance of the motions of an appeal. In most cases the interests of a convict may not be adequately safeguarded by the appointment of advocates in legal aid schemes or by amicus curiae. The appellant would be satisfied only if his appeal is argued by an advocate of his choice. On the other hand, a party, which chooses not to participate in the hearing of his appeal, can scarcely complain of violations of his Fundamental Right to remonstrate against the curtailment of his personal freedom. A convict cannot abuse the process and defeat criminal justice.‖

(emphasis supplied)

7. Those appeals, in the light of above discussion were dismissed by the Co-

ordinate Bench in exercise of the inherent powers of the High Court.

8. We are faced with a similar situation and follow the same course of action and

exercise the inherent powers of the High Court which are conferred by Section

482 of the Cr.P.C, and dismiss the appeal as it is manifestly an abuse of the

process of the Court. Far from securing the ends of justice their pendency or

disposal on merits will indubitably defeat the ends of justice.

9. We may, however, note that on perusal of the record, it transpired that the

appellant has been convicted on the strength of four dying declarations made

by the deceased. The first dying declaration is claimed to have been made in

presence of Doctor Rohit Nayar (PW-14), who attended to the deceased at the

casualty of the hospital on 11.12.1992 and patient herself informed him that

she had been set on fire by her ‗Devar' Mahavir Singh after pouring kerosene

oil over her. This fact is also recorded in MLC Ex. PW-14/A. The second

dying declaration is in the form of statement of the deceased Ex. PW-17/A

given in the presence of the Investigating Officer, SI Shyam Sunder, which

formed the basis for registration of FIR Ex. PW-3/A, wherein also, the

deceased had implicated the appellant as the person who poured kerosene oil

over her and set her on fire. The third dying declaration is purported to have

been made in presence of SDM. Even in the said dying declaration Ex. PW-

13/A, the deceased had implicated the appellant for setting her on fire. Fourth

dying declaration purported to have been made by the deceased in presence of

her husband Kamal Singh when he reached at the hospital after getting

information about the burning of his wife. All the abovesaid four dying

declarations are consistent with each other and implicate the appellant only.

10. On perusal of memorandum of appeal, it transpired that basic challenge of the

appellant to the impugned judgment is that Ld. Trial Court has ignored the fact

that the dying declarations of the deceased are the result of tutoring by her

husband PW-4 Kamal Singh who wants to grab the properties of the appellant

including hotels in different parts of India, which are jointly owned by the

appellant and PW-4 Kamal Singh. We do not find any merit in this contention

and this defence appears to be an afterthought because the perusal of testimony

of PW-4 Kamal Singh reveals that no such suggestion was put to him in his

cross examination and instead it was suggested to him that he was not allowed

by the Doctors to meet or talk with his wife as she was not fit for making

statement. Further, there is no reason to suspect the dying declarations

Ex.PW14/A, PW17/A and PW13/A proved by PW4 Dr. Rohit Nayar, PW17 SI

Shyam Sunder, the Investigating Officer and PW13 the SDM Shri R.S.

Randhawa who are the public servants and had no axe to grind with the

appellant.

11. Another criticism of the appellant to the impugned judgment is that the dying

declarations are not reliable because the clearance from the Doctor that the

patient was fit for making statement was not taken by the SDM or the

Investigating Officer. It is true that Investigating Officer, SI Shyam Sunder,

SDM Shri R.S. Randhawa before recording the dying declaration of the

deceased did not seek clearance from the Doctor that the patient was fit for

making statement, but this is not enough to reject all dying declarations made

by the deceased. First dying declaration of the deceased was made in

presence of Dr. Rohit Nayar, PW14, who is categoric in his testimony that

when he examined the patient in the casualty, she herself made a statement that

she had set on fire by her Devar Mahavir Singh appellant by pouring kerosene

oil on her. There is no reason to disbelieve abovesaid version of the Doctor,

which itself is sufficient to prove the dying declaration. Thus, we do not find

any infirmity in the impugned judgment.

12. In view of the above, we find the appeal is liable to be dismissed on merits

also. It is accordingly dismissed.

13. The concerned Additional Sessions Judge and the concerned SHO are directed

to take immediate steps for arresting and sending the appellant to Jail to

undergo the remaining period of sentence.

(A.K. SIKRI) JUDGE

(AJIT BHARIHOKE) JUDGE MARCH, 15, 2010.

skb