A division bench of the Apex Court held that ‘Section 9 of Hindu Marriage Act, 1955 (popularly called as Restitution of Conjugal Rights case) is not violative of Articles 14 and 21 (right to privacy)‘.
Tag: Article 14 – Equality before law
Harikumar Vs State of Karnataka on 22 October 1993
The 3-judge bench of Karnataka High Court held that Section 8A of Dowry Prohibition Act 1961 is constitutionally valid and the burden of proof laid on the accused in offences under this Act carry onus on the Prosecution to discharge their duty to establish their case based on foundational facts relevant and only then the proof of burden shifts to accused.
From Paras 4-8,
4. It is true that if Section 8-A of the Act, is read literally, an impression is gathered therefrom that once an accused is prosecuted and charged for the offences under Sections 3 and 4 of the Act, then the entire burden is on him to show that he had not committed any offence and the prosecution may not be required to prove anything else except placing implicit reliance on the contents of the charge framed against the accused. But, on a closer scrutiny, such first-hand impression about the Section gets dispelled. It has to be kept in view that Section deals with burden of proving innocence in given cases. Therefore the Section,in substance, creates a Rule of Evidence and deals with casting of burden of proof in certain cases on the accused. A close reading of the Section shows that merely because the accused is charged with offences under Section 3 or Section 4 of the Act, the initial burden which is always on the prosecution to prove basic ingredients of the Sections for bringing home the charges to the accused will not get displaced or dispensed with. Section 8-A will have to be read with Section 2, which defines the term dowry. When so read, it becomes clear that when an accused is charged of an offence of giving or taking or abetting in giving or taking any dowry, under Section 3, the following ingredients of the offence will have to be established before a competent Criminal Court before which the accused is prosecuted.
i) any property or valuable security must be proved to have been given or taken by the accused pursuant to an agreement or otherwise; or
ii) the accused must be shown to have abetted such giving or taking of any property or valuable security;
iii) such giving or taking of any property or valuable security either directly or indirectly or its abetment must be done by any party to the marriage vis-a-vis the other party to the marriage; or;
iv) such giving or taking of any property or valuable security either directly or indirectly or its abetment is done by the parents of either party to a marriage or by any other person, for the benefit of either party to the marriage or any other person;
v) such property or valuable security is given or taken at or before or at any time after the marriage;
vi) such property or valuable security must be given in connection with the marriage of said parties.
5. Now it is obvious that before any offence can be brought home to the accused under Section 3 read with Section 2 of the Act, the aforesaid ingredients have to be established. So far as Section 8A is concerned, all that it mandates is that the burden of proof that he has not committed such an offence is on the accused. Meaning thereby, that it will be for the accused to show that he had not taken or given or abetted in giving or taking any property or valuable security in connection with the marriage of the said parties. He will have to show that last ingredient of the offence being ingredient No. (vi), is not established.The only burden cast on the accused is to prove that he had not committed offence of giving or taking or abetting the giving or taking of dowry as contemplated by Section 3 of the Act. It is not as if he has also to prove that he has not taken or given or abetted in giving or taking any property or valuable security or that he has not taken or given or abetted in giving or taking any property or valuable security or that he has to disprove all the ingredients (i) to (vi). As per Section 8A, once prosecution establishes beyond reasonable doubt the basic ingredients (i) to (v), burden shifts on the accused to prove that the last one is not established viz., that he had not taken or given or abetted in giving or taking any property or valuable security in connection with the marriage of the said parties. The Section, of necessity, will have to be read down as aforesaid.
6. Similarly, for the purpose of proving an offence under Section 4, Section 8A will have to be read with Sections 4 and 2 of the Act. On a conjoint reading of these provisions, it becomes clear that before any offence under Section 4 is brought home to an accused, the following facts will have to be established:
(1) The accused must be shown to have demanded directly or indirectly from the parents or other relatives or guardian of a bride or bridegroom, as the case may be;
(2) Any property or valuable security to be given by one party to the marriage to the other party to the marriage; or
(3) Any property or valuable security to be given by parents of either party to the marriage or by any other person, to either party to the marriage or to any other person;
(4) Such demand should be made at or before or any time after the marriage;
(5) Such demand for any property or valuable security must be in connection with the marriage of the said parties.
Before any offence under Section 4 is brought home to the accused, all the aforesaid ingredients must be established. So far as the first four ingredients are concerned, they will have to be established as basic facts by the prosecution and only when the burden would shift to the accused to show that he had not demanded directly or indirectly any property or valuable security in connection with the marriage of the said parties. The burden of proving non-existence of last ingredient rests on the accused as per Section8A of the Act. But the initial burden to establish beyond reasonable doubt the aforesaid ingredients (1) to (4) will rest on the prosecution. Once these basic ingredients are established by the prosecution, the burden would shift on the accused to show that such demand if any by him was not in connection with the marriage of the said parties. Meaning thereby, that he had not demanded any dowry from the parents or other relatives or guardian of a bride or bridegroom, as the case may be. Thus burden will shift on him only to establish that the last ingredient is not proved. Section 8-A, in its operation, will have to be read down in the light of Sections 2, 3 and 4 of the Act. Once it is so read down, the challenge to the said Section on the anvil of Articles 14, 20(3) and 21 of the Constitution of India, would not survive. However, as the learned Advocate for the appellant has sought to challenge the Constitutional validity of Section 8-A on the anvil of Articles 14, 20(3) and 21 of the Constitution, we may now deal with these challenges.
From Para 9,
9. As we have discussed earlier, if Section 8-A is read down as aforesaid, then there would remain no substance in what the learned Advocate submits. Once it is read down as indicated hereinabove, then the challenge to this Section on the anvil of Article 14 of the Constitution of India, would not survive. The prosecution will have to lead in the first instance evidence to prove the basic ingredients of the offences under Sections 3 and 4. Once the prosecution proves them beyond reasonable doubt, then only the burden is shifted on the accused under Section 8A of the Act. Thus, the initial burden will rest on the prosecution to bring home the basic ingredients of the Sections and that will never shift on the accused under Section 8A of the Act. The Section so read down, would represent only a rule of evidence and nothing more. Even the objects and reasons for introducing Section 8-A to which we have made reference earlier, clearly indicate the legislative intent that the Section is to serve only as a rule of evidence by casting on the accused the burden of proving that he had not taken or given or abetted in taking or giving of dowry or that he had not demanded either directly or indirectly any dowry.
Citations: [1995 ALT CRI 1 25], [1993 ILR KAR 3035], [1994 DMC 1 356], [1995 CRIMES 1 573], [1994 KARLJ 3 335], [1994 KANTLJ 3 335], [1993 SCC ONLINE KAR 240], [1994 KANT LJ 3 335], [1993 HLR 2 672]
Other Source links:
https://indiankanoon.org/doc/1973279/
https://www.casemine.com/judgement/in/56093aeee4b0149711228334
Index of Dowry related Judgments is here.
Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010
This is the landmark judgment from my favorite judge Shri Dalveer Bhandari J on the duration of a anticipatory bail granted by a High Court of a Sessions Court.
- Based on Gurbaksh Singh Sibbia case available here, it was held that once granted anticipatory bail continues to protect the accused until the end of trial.
- In Sushila Aggarwal & Ors Vs State (NCT of Delhi) in 15 May, 2018 here, a reference is made to a larger bench of Supreme Court on the point of valid time period of an anticipatory bail. This was at last decided in favor this Mhetre judgment only here.
From Para 25,
Mr. Bhushan submitted that a plain reading of the section 438 Cr.P.C. clearly reveals that the legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court’s discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby the legislature has not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the legislature then this court in some of its orders was not justified in placing this embargo.
From Para 93,
Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case (supra).
From Para 94,
The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be takenagainst him in accordance with law. If the connivance betweenthe complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
From Para 97,
A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
From Para 101,
The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
From Para 102, (VERY IMPORTANT)
The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case (supra).
From Para 105, (VERY IMPORTANT)
The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case.
From Para 106, (VERY IMPORTANT)
The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.
From Para 108,
Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation.
From Para 110,
In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
From Para 112,
The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.
From Paras 115, 116 (VERY IMPORTANT)
The Apex Court in Salauddin’s case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.
The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.
From Para 119, (VERY VERY IMPORTANT)
This Court in the Sibbia’s case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.
From Para 128, (VERY VERY IMPORTANT)
In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds;
4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.
Citation: [(2011) 1 SCC 694], [AIR 2011 SC 312],
Indiankanoon.org or Casemine link: https://indiankanoon.org/doc/1108032/
Index of all Anticipatory Bail Matters is here.
