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having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the |
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deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby. 47. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this Court observed : (SCC pp. 537- 38, para 18) ‘18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in Puran v. Rambilas [Puran v. Rambilas, (2001) 6 10SCC 338 : 2001 SCC (Cri) 1124] : (SCC p. 344, para 8) “8. … Giving reasons is |
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application. Still one should not forget, as observed by this Court in Puran v. Rambilas [Puran v. Rambilas, (2001) 6 10SCC 338 : 2001 SCC (Cri) 1124] : (SCC p. 344, para 8) “8. … Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. … That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.” We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not |
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court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement |
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in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on 11bail because of the serious allegations of tampering with the witnesses made against the respondent.’ 48. In Jayendra Saraswathi Swamigal v. State of T.N. [Jayendra Saraswathi Swamigal v. State of T.N., |
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because of the serious allegations of tampering with the witnesses made against the respondent.’ 48. In Jayendra Saraswathi Swamigal v. State of T.N. [Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13 : 2005 SCC (Cri) 481] this Court observed : (SCC pp. 21-22, para 16) ‘16. … The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Jagjit Singh [State v. Jagjit Singh, (1962) 3 SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215] and Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] and basically they are — the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and |
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a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.’” 24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.” 13. In the teeth of the afore stated position of law when we turn our attention to the facts on hand it would not detain us for too long to accept the 12plea of the respondent or in other words reject the contention of the appellant for |
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position of law when we turn our attention to the facts on hand it would not detain us for too long to accept the 12plea of the respondent or in other words reject the contention of the appellant for reasons more than one, firstly, the grounds on which the respondent has been ordered to be enlarged on bail by the High Court came to be passed way back on 30.01.2023 whereunder conditions as stipulated therein has been imposed. It is not the case of the prosecution that any of the condition so stipulated has been violated or there has been infraction of any of the condition so imposed. In the absence of their being a strong prima facie case on the conditions of the bail having been violated, it would not be appropriate for the said order being reversed or set aside after a lapse of fifteen (15) months. It would be apposite to take note of the principles enunciated by this Court in this regard and we desist from reiterating laid position of law and it would suffice to note the principles |
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months. It would be apposite to take note of the principles enunciated by this Court in this regard and we desist from reiterating laid position of law and it would suffice to note the principles enunciated in this regard. In the case of Himanshu Sharma v. State of Madhya Pradesh, 2024 SCC OnLine SC 187 this court has held that considerations for grant of bail and cancellation of bails are different and if conditions of bail is flouted or the accused had misused the liberty granted or bail was granted in ignorance of statutory provisions or bail was obtained by playing fraud then bail granted to the accused can be cancelled. 1314. During the course of the arguments as already noticed herein above Shri K.M Nataraj, Additional Solicitor General of India, has vehemently contended that order granting the bail has to be set-aside, essentially on the ground that the respondent is involved in three (3) other cases namely: “a) Crime No. 99/14 dated 19.09.2014, registered for offences under |
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granting the bail has to be set-aside, essentially on the ground that the respondent is involved in three (3) other cases namely: “a) Crime No. 99/14 dated 19.09.2014, registered for offences under sections 364, 302, 201 & 34 of IPC. (State Police). b) Crime No. 108/15 dated 15.06.2015, registered under sections 302, 120B and 34 of IPC, Sec. 27 of Arms Act 1959. (State Police) c) Respondent (accused) is also accused in a case being investigated by NIA i.e. RC-38/2020/NIA/DLI dated 03.11.2020 arising out of Chandwa PS, District Latehar (JH) case number 04/2020 dated 05.01.2020” 15. As rightly contended by Shri Siddharth Luthra, learned Senior Counsel appearing for respondent, in the first case afore-mentioned the respondent has been acquitted by judgment dated 07.09.2015 (Annexure R-11). In so far as the cases at Serial No.2 and 3 (supra), the respondent has been enlarged on bail vide orders dated 10.07.2020 (Annexure R-12) and order dated 10.07.2020. In yet another case registered by |
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so far as the cases at Serial No.2 and 3 (supra), the respondent has been enlarged on bail vide orders dated 10.07.2020 (Annexure R-12) and order dated 10.07.2020. In yet another case registered by Chandwa PS Case No.225 of 2023 the respondent has been enlarged on anticipatory bail in ABP No.426 of 2023. 16. The afore-stated facts when seen cumulatively, it would reflect that respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated and undisputedly the appellant-state having 14not sought for cancellation of the bail till date would be the prime reason for us not to entertain this appeal. In fact, the apprehension of the Union of India that respondent is likely to pose threat to the witnesses and there was a threat posed to the complainant, Mr. Sanjay Kumar Tiwari, would not be a ground to set aside the impugned order enlarging the respondent on bail in as much in the case referred against the respondent for the said offence he has |
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Mr. Sanjay Kumar Tiwari, would not be a ground to set aside the impugned order enlarging the respondent on bail in as much in the case referred against the respondent for the said offence he has been granted bail. That apart we are of the considered view that there are no other overwhelming material on record to set aside the order granting bail which out weighs the liberty granted by the High Court under the impugned order. 17. Hence, we are of the considered view that interference is not warranted. However, to allay the apprehension of the prosecution it would suffice to observe that the prosecution would be at liberty to seek for cancellation of the bail in the event any of the conditions being violated by the respondent and in the event of such an application being filed we see no reason as to why said application would not be considered on its own merits by the jurisdictional court independently and without being influenced by its earlier observations. We also make it expressly |
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as to why said application would not be considered on its own merits by the jurisdictional court independently and without being influenced by its earlier observations. We also make it expressly clear that the observations made under the impugned order would be restricted to the consideration of the prayer for bail and the jurisdictional court without being influenced by any of the observation shall 15proceed to adjudicate the case on merits after trial. Subject to the above observations, the appeal stands dismissed. ……............………………….J. (Pamidighantam Sri Narasimha) ……............………………….J. (Aravind Kumar) New Delhi, May 10, 2024 16 |
2024 INSC 370 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2194 OF 2022 NIRMALA ...APPELLANT (S) VERSUS KULWANT SINGH & ORS. ...RESPONDENT (S) J U D G M E N T B.R. GAVAI, J. 1. The present appeal is filed against the final judgment and order of the Punjab and Haryana High Court,1 dated 23rd August, 2022. The High Court vide the impugned judgment allowed the petition filed under Article 226/227 of the Constitution of India, by the respondent No. 1 herein,2 who is the father of the detenu/minor child and directed the appellant herein,3 i.e., the 1 Hereinafter, High Court 2 Hereinafter, respondent-father 3 Hereinafter, appellant-grandmother 1maternal grandmother to hand over the custody of the minor child to respondent-father. 2. Aggrieved by the impugned judgment, the appellant- grandmother has filed the present petition. Notice was issued by this Court on 23rd September, 2022 and it was directed that in the meantime, the child shall |
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by the impugned judgment, the appellant- grandmother has filed the present petition. Notice was issued by this Court on 23rd September, 2022 and it was directed that in the meantime, the child shall remain in the custody of the appellant-grandmother. Thereafter, leave was granted by this Court on 21st November, 2022 and the interim order was confirmed to last until the decision of this appeal. 3. The facts, in brief, giving rise to the present appeal, are as follows: 3.1 The marriage took place between Dr. Kulwant Singh (respondent-father) and one Sangeeta on 5th July, 2014. This marriage was the second marriage for both of them. 3.2 From the marriage, one child, namely Garvit4 was born on 5th July, 2015. 4 Hereinafter, minor child 23.3 In 2019, the mother of the minor child, Sangeeta, went missing and so, on 5th April, 2019, a First Information Report5 was registered under Section 346 of the Indian Penal Code, 1860.6 On the next day, i.e., 6th April, 2019, father of Sangeeta (who is |
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missing and so, on 5th April, 2019, a First Information Report5 was registered under Section 346 of the Indian Penal Code, 1860.6 On the next day, i.e., 6th April, 2019, father of Sangeeta (who is the husband of the appellant-grandmother), lodged a complaint at the Women police Station, Rohtak, stating that his daughter was continuously harassed by her husband and in- laws, and that since his daughter is missing since yesterday, he fears that her husband and in-laws have done something wrong with her. 3.4 On 9th April, 2019, Sangeeta’s body was found in a canal and so, Section 304B IPC was added in the FIR. The matter was further investigated by the police and thereafter, ultimately the police prepared a cancellation report in the FIR in the year 2019, and the said cancellation report was submitted to the competent Court on 31st August, 2021. 5 FIR No. 108 @ P.S. Civil Lines, Rohtak dated 5th April, 2019 (hereinafter, FIR) 6 Hereinafter, IPC 33.5 During the investigation phase, the |
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submitted to the competent Court on 31st August, 2021. 5 FIR No. 108 @ P.S. Civil Lines, Rohtak dated 5th April, 2019 (hereinafter, FIR) 6 Hereinafter, IPC 33.5 During the investigation phase, the respondent-father had voluntarily handed over the minor child to the appellant- grandmother. Not only that, but the respondent-father had by way of an affidavit dated 1st May, 2019, appointed the appellant- grandmother as “Guardian” of the minor child and the “Caretaker” of a property,7 that was gifted by the Aunt of respondent-father (Birmi Devi) to the minor child. Since then, the custody of the minor child has been with the appellant- grandmother. 3.6 On 29th July, 2019, the respondent-father filed an application/complaint8 with the Child Welfare Committee, Rohtak,9 and sought the custody of the minor child on the ground that the appellant-grandmother took the minor child by cheating and fraud. 7 Plot No. D-102 situated at Anantpuram, Jind Road, The Indraprastha Cooperative House Building |
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minor child on the ground that the appellant-grandmother took the minor child by cheating and fraud. 7 Plot No. D-102 situated at Anantpuram, Jind Road, The Indraprastha Cooperative House Building Society Ltd., Rohtak 8 No. 3312 9 Hereinafter, CWC 43.7 The CWC took note of the affidavit recording the interaction with the minor child in the counselling session and recorded the statement of the appellant-grandmother, respondent-father, Uncle and Aunt of the respondent-father and Aunt of the minor child/sister of the respondent-father (one Sunita Devi). 3.8 Based on the statements/counselling affidavits and other documents available on record, the CWC vide order dated 5th February, 2020, decided that the minor child is “a child in need of care and protection” as defined under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015,10 and the respondent-father being the biological father and employed in a reputed government post, is able to take care and nurture |
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the Juvenile Justice (Care and Protection of Children) Act, 2015,10 and the respondent-father being the biological father and employed in a reputed government post, is able to take care and nurture the child, in result, it directed the SHO,11 to take the custody of the minor child from the appellant-grandmother and hand him over to the respondent-father. 10 Hereinafter, JJ Act 11 Sadar Police Station 53.9 Aggrieved by the decision of the CWC, the appellant- grandmother filed a Criminal Appeal on 11th February, 2020 under Section 101 of the JJ Act,12 challenging the order dated 5th February, 2020, passed by the CWC. 3.10 The Appellate Court,13 allowed the appeal, set aside the order under challenge and held that neither the minor child was “a child in care of need and protection” as defined under Section 2(14) of the JJ Act nor the CWC had any jurisdiction to pass any order regarding the minor child. The Appellate Court further held that, the CWC has exceeded its jurisdiction by |
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defined under Section 2(14) of the JJ Act nor the CWC had any jurisdiction to pass any order regarding the minor child. The Appellate Court further held that, the CWC has exceeded its jurisdiction by passing the order under challenge. Therefore, the order dated 5th February, 2020, passed by the CWC is not only illegal, but without jurisdiction also and the same is not in accordance with the provisions of the JJ Act. 3.11 Aggrieved by the decision of the Appellate Court, the respondent-father filed a Criminal Writ Petition on 5th February, 12 Criminal Appeal No. 93/2020 13 Additional Sessions Judge, Rohtak 62021 before the High Court,14 under Article 226/227 of the Constitution of India for a writ in the nature of Habeas Corpus, seeking release of the minor child from the alleged illegal custody of the appellant-grandmother. 3.12 Vide impugned order dated 23rd August, 2022, the learned Single Judge of the High Court, taking into consideration the principle that “welfare of the child is |
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of the appellant-grandmother. 3.12 Vide impugned order dated 23rd August, 2022, the learned Single Judge of the High Court, taking into consideration the principle that “welfare of the child is of paramount consideration”, allowed the petition filed by the respondent-father. The High Court held that the welfare of the child, who at that time was 7 years old, will be best in the hands of the father. The High Court further directed that the appellant-grandmother and her husband shall also have visiting rights in case they so desire and for the next one year, they shall have a right to visit the house where the child resides for a period of 8 hours at least once a month. The High Court also kept open the rights of the parties 14 CRWP-1485-2021 (O&M) 7for invoking any remedy that may be available under any special law for the time being in force and in accordance with law. 3.13 Aggrieved by the decision of the High Court, the appellant- grandmother is before this Court. It must be noted |
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under any special law for the time being in force and in accordance with law. 3.13 Aggrieved by the decision of the High Court, the appellant- grandmother is before this Court. It must be noted that throughout the pendency of the present appeal, the custody of the minor child has remained with the appellant-grandmother. 4. We have heard Shri Narender Hooda, learned senior counsel appearing for the appellant-grandmother and Smt. Rukhmini Bobde, learned counsel appearing for the respondent-father. 5. Shri Narender Hooda submits that the learned Single Judge of the High Court has erred in allowing the petition. He submits that in the facts of the present case, the learned Single Judge of the High Court ought to have taken into consideration that it is the respondent-father who had placed the custody of the minor child with the appellant-grandmother and as such, the custody of the minor child could not have been considered as an illegal custody. He further submits that in such |
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placed the custody of the minor child with the appellant-grandmother and as such, the custody of the minor child could not have been considered as an illegal custody. He further submits that in such circumstances, the 8learned Single Judge ought not to have entertained the petition under Article 226 of the Constitution of India and relegated the respondent-father to the remedy available to him in law under the Guardians and Wards Act, 1890. 6. Shri Hooda further submits that the minor child is living with his grandparents from the day when the mother of the minor child i.e., the wife of the respondent-father had died. It is submitted that uprooting the minor child from the company of his grandparents at this tender age would cause a psychological trauma to the minor child. He submits that taking into consideration the best interest of the minor child, the leaned Single Judge of the High Court ought not to have passed the impugned order. He relies on the judgment of this Court in the |
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taking into consideration the best interest of the minor child, the leaned Single Judge of the High Court ought not to have passed the impugned order. He relies on the judgment of this Court in the case of Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba vs. State of West Bengal and others15. 15 2021 SCC OnLine SC 3434 97. Per contra, Smt. Rukhmini Bobde, learned counsel, submits that the respondent-father is a natural guardian being the father of the minor child under Section 6 of the Hindu Minority and Guardianship Act, 1956. She submits that the respondent-father is a well-educated person and is Ph.D. in Economics from Maharshi Dayanand University, Rohtak and he is serving as an Assistant Professor in Centre for Research in Rural and Industrial Development, Chandigarh. She submits that the respondent-father earns well and is in a better position to look after the minor child. 8. Smt. Bobde submits that, as a natural guardian, the respondent-father can shape the career of |
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that the respondent-father earns well and is in a better position to look after the minor child. 8. Smt. Bobde submits that, as a natural guardian, the respondent-father can shape the career of the minor child in a better manner. She submits that the minor child when interacted before CWC has specifically stated that he wants to live with both his father as well as his grandmother. She submits that the appellant-grandmother was appointed as a guardian vide affidavit dated 1st May 2019 executed by the respondent- 10father only for the purposes of being caretaker of the Plot which was gifted to the minor child by his aunt (Birmi Devi). Smt. Bobde submits that the said affidavit cannot be construed to be appointment of the guardian for all the purposes. She submits that, in any case, when the statute itself provides for as to who shall be the natural guardian, the said affidavit would not have much significance. Smt. Bobde in support of his submissions relied on the judgment of this |
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the statute itself provides for as to who shall be the natural guardian, the said affidavit would not have much significance. Smt. Bobde in support of his submissions relied on the judgment of this Court in the cases of Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others16 and Yashita Sahu vs. State of Rajasthan and others17. 9. Though allegations and counter allegations have been made by the parties against each other, we do not propose to go into them as they may cause prejudice to the rights of either of the parties in the proceedings that may arise between them. 16 (2019) 7 SCC 42 17 (2020) 3 SCC 67 1110. The question on the maintainability of the Habeas Corpus petition with regard to custody of the minor child has come up for consideration before this Court in several matters. 11. This Court in the case of Tejaswini Gaud and others (supra) after considering the earlier cases, observed thus: “19. Habeas corpus proceedings is not to justify or examine the |
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in several matters. 11. This Court in the case of Tejaswini Gaud and others (supra) after considering the earlier cases, observed thus: “19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the |
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of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or 12others was illegal and without any authority of law. 20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a |
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a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. 1321. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ |
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guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.” 12. It can thus be seen that this Court has held that the habeas corpus is a prerogative writ which is an extraordinary remedy. It has been held that recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has been held that in child custody matters, the power of the High Court in granting the writ 14is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. It has |
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in child custody matters, the power of the High Court in granting the writ 14is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. It has further been held that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 13. This Court further held that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. It has been held that there are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. It has further been held that what is important is the welfare of the child. It has been further held that where the court is of the view that a detailed enquiry is required, the court may decline to exercise the |
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been held that what is important is the welfare of the child. It has been further held that where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. 1514. In the facts of the said case, this Court found that the child being a minor, aged 1½ years, cannot express its intelligent preferences and in the facts and circumstances of said case, the father being the natural guardian was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India. 15. The same legal position has been reiterated by this Court in the cases of Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba (supra) and Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu and others18. 16. It can thus be seen that no hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of |
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Ganesh vs. State of Tamil Nadu and others18. 16. It can thus be seen that no hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child is concerned. As to whether the writ court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case. 18 2022 SCC OnLine SC 885 1617. In the present case, it will be relevant to refer to the case pleaded by the respondent-father. The learned Single Judge of the High Court himself recorded the submissions of the respondent-father in the impugned judgment as under: “He further submitted that when the wife of the petitioner died, then at that point of time due to psychological and social reasons, the child was sent to the maternal grand-parents which was the need of the hour at that time since the petitioner himself was also under psychological stress and a family environment was |
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reasons, the child was sent to the maternal grand-parents which was the need of the hour at that time since the petitioner himself was also under psychological stress and a family environment was required for the child especially from the grand-parents and that was the sole reason as to why the son of the petitioner who at that point of time was of the age of 5 years was sent to them to be taken care of.” 18. It can thus be clearly seen that according to the case of the respondent-father himself, in the peculiar facts and circumstances of the case, a family environment was required for the child especially from the grandparents and that he had placed the custody of the minor child with the appellant- grandmother for taking his care. It can thus clearly be seen that 17it is not a case that the appellant-grandmother had illegally kept the custody of the minor child. It is the respondent-father who had placed the custody of the minor child with the appellant- grandmother. 19. We are of |
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the appellant-grandmother had illegally kept the custody of the minor child. It is the respondent-father who had placed the custody of the minor child with the appellant- grandmother. 19. We are of the considered view that in the peculiar facts and circumstances of the case, the High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India. Since a detailed enquiry including the welfare of the minor child and his preference would have been involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890. 20. In any case, we are of the view that compelling a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances. 21. In our view, an exercise for promoting the bond between the minor child and the respondent-father in a graded manner and 18thereafter |
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the last about 5 years may cause psychological disturbances. 21. In our view, an exercise for promoting the bond between the minor child and the respondent-father in a graded manner and 18thereafter considering the grant of custody of minor child to the respondent-father taking into consideration the paramount interest of the welfare of the minor child would be required to be done in the present matter. Such an exercise would not be permissible in the extraordinary jurisdiction under Article 226 of the Constitution of India. 22. We therefore find that the High Court was not justified in entertaining the petition under Article 226 of the Constitution of India. The impugned judgment and order of the Punjab and Haryana dated 23rd August 2022 in CRWP-1485-2021 (O&M) is quashed and set aside. The writ petition filed by the respondent- father is dismissed. 23. However, we clarify that no observation in the impugned judgment and order and in the present judgment and order would be binding on |
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writ petition filed by the respondent- father is dismissed. 23. However, we clarify that no observation in the impugned judgment and order and in the present judgment and order would be binding on the proceedings if taken by the respondent- father under the Guardians and Wards Act, 1890 and the 19proceedings would be decided in accordance with law on its own merits. 24. In the light of the aforesaid, we direct that in the event the respondent-father files an application under the provisions of the Guardians and Wards Act, 1890, the competent Court shall decide the same expeditiously. We further direct that in the event such an application is made, an order at least with regard to visitation rights would be passed within a period of 4 weeks from the making of such an application. 25. The appeal is allowed in the above terms. Pending applications, if any, shall stand disposed of. …….........................J. [B.R. GAVAI] …….........................J. [SANDEEP MEHTA] NEW DELHI; MAY 03, |
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is allowed in the above terms. Pending applications, if any, shall stand disposed of. …….........................J. [B.R. GAVAI] …….........................J. [SANDEEP MEHTA] NEW DELHI; MAY 03, 2024 20 |
REPORTABLE 2024 INSC 393 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 906 OF 2023 SELVAMANI …APPELLANT(S) VERSUS THE STATE REP. BY THE INSPECTOR OF POLICE …RESPONDENT(S) J U D G M E N T B.R. GAVAI, J. 1. This appeal challenges the final judgment and order dated 27th August 2019, passed by the learned Single Judge of the High Court of Judicature at Madras1, whereby vide a common judgment, the High Court dismissed Criminal Appeal Nos. 449 and 840 of 2012. The present Appellant, who is Accused No. 2, had filed the Criminal Appeal No. 840 of 2012, along with Accused Nos. 3 and 4, under Section 374 of Criminal Procedure Code, 19732, challenging the judgment and order dated 26th June 2012, passed by the learned 1 Hereinafter referred to as, “High Court”. 2 Hereinafter referred to as, “CrPC”. 1Additional District and Sessions Judge, Court No. III, Thirupathur, Vellore District3, in Sessions Case No. 277 of 2010, whereby the trial court had convicted and |
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Hereinafter referred to as, “CrPC”. 1Additional District and Sessions Judge, Court No. III, Thirupathur, Vellore District3, in Sessions Case No. 277 of 2010, whereby the trial court had convicted and sentenced the accused persons for offences punishable under Section 376(2)(g) and 506(1) of Indian Penal Code, 18604, and Section 4 of the Tamil Nadu Prevention of Women Harassment Act. 2. The facts, in brief, giving rise to the present appeal are as given below: 2.1 On 28th January 2006, Police Station Vaniyampadi Town received a written information from the victim (PW-1), to the effect that she had been gang raped. On the basis of the said written information, Police Station Vaniyampadi Town registered a First Information Report (FIR), vide P.S. Crime No. 115 of 2006 for the offence punishable under Sections 341, 323, 376 and 506(2) IPC read with Section 4 of Tamil Nadu Prevention of Women Harassment Act. On registration of the FIR, Shri Loganthan, Inspector of Police, Vanianpadi Town |
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under Sections 341, 323, 376 and 506(2) IPC read with Section 4 of Tamil Nadu Prevention of Women Harassment Act. On registration of the FIR, Shri Loganthan, Inspector of Police, Vanianpadi Town Police Station (PW-13) (I.O.) visited the place of occurrence and prepared observation Mahazar and sketch. He recorded the statement of witnesses. The accused 3 Hereinafter referred to as, “trial court”. 4 Hereinafter referred to as, “IPC”. 2persons were arrested. The medical officer examined the victim and her statement was recorded under Section 164 CrPC by the Judicial Magistrate, Thirupattur. 2.2 The prosecution case, in a nutshell, is that the victim was working at Emerald Shoe Company, Vaniyampadi for three years leading upto the day of the incident. On the day of the incident, i.e., 27th January 2006, at about 7 PM, when the victim, aged 22 years, was returning to her house, after completing her work, the Accused No. 1 who was the Manager/Owner of the said Company came to her and told |
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2006, at about 7 PM, when the victim, aged 22 years, was returning to her house, after completing her work, the Accused No. 1 who was the Manager/Owner of the said Company came to her and told her that he wanted to talk to her about certain matter and so he took her to a place near the Railway Bridge, where already the other four persons (Accused Nos. 2 to 5) were standing, who then forcibly dragged her to a secluded place and threatened to throw her on the railway track if she shouted. They then stripped her. The victim cried for help, upon which she was threatened with a knife. The accused persons committed gang rape on her. Accused No. 1 assaulted the victim as well. The act continued till 3:30 AM, the next morning, when she escaped and came back to her house. On her return, she informed her mother (PW-2) and aunt (PW-3) 3and later during the same day, she got the FIR registered. 2.3 At the conclusion of the investigation, a charge-sheet came to be filed by the I.O. in the Court of |
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her mother (PW-2) and aunt (PW-3) 3and later during the same day, she got the FIR registered. 2.3 At the conclusion of the investigation, a charge-sheet came to be filed by the I.O. in the Court of Vanianpadi Judicial Magistrate. Since the offence charged against the accused persons was triable only by the Court of Sessions, the case was committed to the learned Principal District and Sessions Judge, Vellore, and the same was made over to the learned trial court, for disposal. 2.4 Charges were framed by the trial court under Sections 376(2)(g) and 506(1) of IPC and Section 4 of Tamil Nadu Prevention of Women Harassment Act. 2.5 The accused persons pleaded not guilty and claimed to be tried. To bring home the guilt of the accused, the prosecution examined fourteen (14) witnesses, twenty-five (25) exhibits were marked along with two (2) material objects. The defence of the accused was that they had been falsely implicated. At the conclusion of the trial, the trial court found that the |
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(25) exhibits were marked along with two (2) material objects. The defence of the accused was that they had been falsely implicated. At the conclusion of the trial, the trial court found that the prosecution had proved the case beyond reasonable doubt against the accused persons and so convicted them under Section 376(2)(g) and 506(1) IPC and Section 4 of Tamil Nadu Prevention of Women Harassment 4Act and sentenced each accused person to 10 years rigorous imprisonment and fine of Rs. 5,000/- for the offence committed under Section 376(2)(g) IPC, 1-year rigorous imprisonment and fine of Rs. 1,000/- for the offence committed under Section 506(1) IPC and 1-year imprisonment for the offence committed under Section 4 of the Tamil Nadu Prevention of Women Harassment Act, in default of payment of fine they were to undergo 3-months simple imprisonment. The sentence was to run concurrently and the period already undergone was to be set-off. Since the Accused No. 5 had died during the trial, |
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of fine they were to undergo 3-months simple imprisonment. The sentence was to run concurrently and the period already undergone was to be set-off. Since the Accused No. 5 had died during the trial, the case against him stood abated. 2.6 Being aggrieved thereby, the accused persons preferred appeal against the final judgment and order of the trial court. There were two appeals before the High Court. Accused No. 1 filed Criminal Appeal No. 449 of 2012 and the Accused Nos. 2 to 4 filed Criminal Appeal No. 840 of 2012. Vide impugned judgment, the High Court dismissed both the criminal appeals and upheld the findings of the trial court. 2.7 Aggrieved as a result, the present appeal has been filed only on behalf of Accused No. 2. 53. We have heard Shri Rahul Shyam Bhandari, learned counsel appearing on behalf of the appellant and Shri V. Krishnamurthy, learned Senior Additional Advocate General appearing on behalf of the State of Tamil Nadu. 4. Shri Rahul Shyam Bhandari, learned counsel |
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on behalf of the appellant and Shri V. Krishnamurthy, learned Senior Additional Advocate General appearing on behalf of the State of Tamil Nadu. 4. Shri Rahul Shyam Bhandari, learned counsel appearing for the appellant, submits that the High Court has grossly erred in dismissing the appeal filed by the appellant herein. It is submitted that the victim (PW-1) as well as her mother- Jaya (PW-2) and her aunt-Jamuna (PW-3) have not supported the prosecution case in their cross examination. Learned counsel for the appellant further submits that the medical evidence also does not support the evidence of the prosecution. Learned counsel for the appellant, relying on the judgment of this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi)5, submits that when the evidence of the prosecutrix and the medical evidence does not support the prosecution case, the conviction could not be sustainable. 5. In the present case, the prosecutrix as well as her mother-Jaya (PW-2) and her |
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prosecutrix and the medical evidence does not support the prosecution case, the conviction could not be sustainable. 5. In the present case, the prosecutrix as well as her mother-Jaya (PW-2) and her aunt-Jamuna (PW-3) have fully 5 (2012) 8 SCC 21 : 2012 INSC 322 6supported the prosecution case. The examination-in-chief of the prosecutrix would reveal that she has stated that when she was returning to her house, the Accused No.1, who is the owner of the company in which she works, came and asked her to come with him for giving details of some official work. Accused No.1 took the victim, where four accused persons were standing and then Accused No.1 asked the prosecutrix to remove her clothes and when she refused, her clothes were removed by the other accused and thereafter they ravished her. The evidence would also show that though she informed that she was at pains, they committed forcible sexual intercourse with her one by one on various occasions. She has stated that, when the |
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her. The evidence would also show that though she informed that she was at pains, they committed forcible sexual intercourse with her one by one on various occasions. She has stated that, when the accused persons left at around 3 o’clock in the morning, she went home and narrated the version to her mother and relatives. PW-2 and PW-3, mother and aunt of the prosecutrix respectively, have also stated in their evidence that when the prosecutrix came home, she narrated the incident to them. The FIR came to be lodged immediately on the very same day. 6. The statement of the prosecutrix under Section 164 CrPC was also recorded before Smt. Lakshmi Ramesh, 7Judicial Magistrate (PW-6). PW-6 has also deposed about the prosecutrix, giving the statement and narrating the entire incident. 7. Dr. Indrani, Medical Expert (PW.8), who had examined the victim, has clearly stated that the prosecutrix was having injuries on her person. Her evidence establishes the fact that there was forcible sexual |
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Medical Expert (PW.8), who had examined the victim, has clearly stated that the prosecutrix was having injuries on her person. Her evidence establishes the fact that there was forcible sexual intercourse several times by several persons. Her evidence also shows that on account of the said incident, the victim lost her virginity and there were also abrasions on the private parts of the victim. 8. No doubt that the prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case. 9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh6, relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana7, Sri Rabindra Kuamr Dey v. State of Orissa8, Syad Akbar v. State of Karnataka9, has held 6 (1991) 3 SCC 627 : 1991 INSC 153 7 (1976) 1 SCC 389 : 1975 INSC 306 8 (1976) 4 SCC |
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v. State of Haryana7, Sri Rabindra Kuamr Dey v. State of Orissa8, Syad Akbar v. State of Karnataka9, has held 6 (1991) 3 SCC 627 : 1991 INSC 153 7 (1976) 1 SCC 389 : 1975 INSC 306 8 (1976) 4 SCC 233 : 1976 INSC 204 9 (1980) 1 SCC 30 : 1979 INSC 126 8that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. 10. This Court, in the case of C. Muniappan and Others v. State of Tamil Nadu10, has observed thus: “81. It is settled legal proposition that : (Khujji case, SCC p. 635, para 6) ‘6. … the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such |
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SCC p. 635, para 6) ‘6. … the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.’ 82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 10 (2010) 9 SCC 567 : 2010 INSC 553 9SCC 516], Radha Mohan Singh v. |
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Subsets and Splits