Trishla Jain v. State NCT of Delhi

ORDER %

11.07.2013 In the above-captioned three petitions, petitioners are husband (ShailenderKumar Jain) moihQv-m-\diW-(TrishlaJain) and brother-in-law-(MunishJain), who are aggrievedby common order,of 18"' Februaiy,2013 vide whichthey have beencalledupon to face the trial in FIR No. 440/2002 underSections306/498A/34IPG registeredatPS VasantKunj, Delhi. At the outset learnedcounselfor petitionerssubmittedthat challenge to the commonimpugnedorderis on identicalgroundsregardingpetitioners facing trial for the offenceunder Section306/34 IPG and so these petitions were heard together and are being disposed of by this common order. The factual backgroundof this case finds mention in the impugned order (AnnexureP-1) so, there is no need to reproducethe factual matrix herein. Sufficeit wouldbe to note that petitioner-iS-KJam got marriedwith deceased in May, 1991 and they were residing in Sharjah (UAE) when ^QtiXiontx-ShailenderKumar Jain's wife died in July, 2002 due to burn injuries. In short, prosecution version is that deceased was humiliated, insulted and maltreated by her in-laws and the deceased had written several letters to her family members complaining that she was treated with cruelty by her husband and in-laws. Since wife of ^QiitionQx-ShailenderKumar Jain had died unnatural death due to alleged cruel treatment meted out to her by petitioner-accused therefore, on the basis of statements of family members of deceased and the letters purportedly written by deceased to her family, petitioners are being prosecuted for the offence under Section 306/34 Crl. Rev. P. No. 152,154 & 156 of 2013 Page 2 IPG. Learned counsel for petitioners challenges the impugned order on the ground that dying declaration of the deceased recorded in Sharjah exonerates petitioners and permission under Section 188 of Cr.P.C. to prosecute petitioners except Munish Jain has been granted for the offence under Section 498A/34 IPC only, which petitioners are not challenging and so, their prosecution for the offence under Section 306/34 IPC is without jurisdiction as there is no sanction for it. Learned counsel for petitioner submitted that a sanction under Section 188 of Cr.P.C. is mandatory not only for the inquiry/investigationbut also for trial and in absence of sanction under Section 188 of Cr.P.C. for the offence under Section 306 IPC, petitioners cannot be prosecutedand so, the impugned order is rendered unsustainable. To urge that the ingredients of offence under Section 306 IPC are prima facie not made out, relianceis placed upon decisionsinSuraj Prakash v. State of Delhi 135 (2006) DLT 135, Madan Mohan Sharina v. State 189 (2012) DLT 567 and Kartar Singh & Ors. v. Central Bureau of Investigation2006(2) JCC 1134. Lastly, it was contended with much vehemenceby learnedcounselfor petitionersthat even the prosecutioncase is taken as it is, still from the letters of year 2000 relied upon by the prosecution,petitionerscannot be made to face trial for the offence under Section 306/34 IPC because there has to be proximity between alleged cruelty/harassmentand the death,which is lackingin the instantcase as the purportedlettersreliedupon by the prosecutionare oftheyear2000 whereas deceased had committed suicide due to depression in July, 2002. Thus, accordingto learnedcounselfor petitioners,presumptionas to abetmentof suicideby a marriedwoman cannotbe raised as there is nothingon record Crl. Rev. P. No. 152,154 &156 of 2013 Page 3 a. from which it could be inferred that petitioners had instigated the deceased to commit suicide. Setting aside of impugned order and discharge of petitioners is sought in this petition. I At the hearing learned Additional Public Prosecutor for State read out the relevant portion of the deposition of the witnesses to show that even in November/December 2001 parents-in-law of the deceased had gone to Dubai and had stayed there with the deceased and her husband and it is allegedthat they had made the life of the deceasedvery miserablethere in Sharjah and this was disclosed by deceased on phone to her parents. Attention of this Court was also drawn to the statements of colleagues and neighbours of the deceased in Sharjah to show that deceased was not in depressionand so, it would not be correct to concludethat deceasedhad committedsuicide due to depressionas allegedby petitioners. According to learned Additional Public Prosecutor for State priina facie case for proceedingunder Section 306/34 IPC is made out against petitionersand lackofsanctionunder Section188 ofCr.P.C.for the offence under Section 306/34 IPC qua petitioners-6'/zflz7en<ierKumar Jain and Trishla Jain and under Section 498A/34 IPC qua petitioner-Mw^w/zJain would not be fatal at the threshold of trial as an opportunity ought to be granted to prosecutionto establish as to whether alleged irregularity in obtainingsanction under Section 188 Cr.P.C. is curable or incurable and since the offences under Sections 306/498A/34IPC are of same species therefore,lack ofsanctionunder Section188 Cr.P.C. cannotbe fatal to the prosecutionand so the impugnedorderdeservesto be sustained. Submissions advanced have been considered and impugned order, materialonrecorddecisionscitedhavebeenperused. The parameterswhich Crl. Rev. P. No. 152,154 &156of2013 Page4 t govern j&-amingof chargehave been recentlyreiterated by the Apex Court in Amit Kapoor v. Rainesh Chander and Another (2012) 9 SCC 460. The pertinentobservationsmade by the Apex Court in Amit Kapoor (supra) are as under: -"At the initial stage offraming of a charge, the court is concernednot withproof but with a strong suspicionthat the accusedhas committedan offence, which, ifput to trial, could prove him guilty. All that the court has to see is that the material on record and thefacts wouldbe compatiblewith the innocenceof the accusedor not. Thefinal test ofguilt is not to be applied at the stage." In the instantcase, it would be pre-matureto hold at the thi'esholdof trialthatnon-obtainingofsanctionfor the offenceunderSection306/34IPC is fa^l to the prosecutioncase becausesanctionunder Section 188 Cr.P.C. for prosecutingunder Section498-A/34IPC has alreadybeen obtainedqua ^Q^Aiiowtv-ShailenderKumar Jain and TrishlaJain. As regards petitioner-MunishJain sanctionunder Section188 Cr.P.C.has not been obtainedat all. Imp igned order infact deals with the aspect ofsanctionunder Section 188 Cr.P.C.qua petitioner-ShailenderKumarJain and TrishlaJain but does not effectively deal with regarding the mandatory sanction required under Section188 of Cr.P.C.quapetitioner-accusedMwnw/zJam. Section 188 of Cr.P.C. reads as under: "OffencecommittedoutsideIndia: When an offenceis committedoutsideIndia-

(a) By a citizen of India, whether on the high seas or elsewhere: or Crl. Rev. P. No. 152,154 & 156 of 2013

(b) By a person, not being such citizen, on any ship or aircraft registered in India. He may be dealt with in respect of such offence as if it had been committed at any place wnthin India at which he may befound: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with theprevious sanction of the Central Government. " A bare reading of the aforesaid provision reveals that sanction for not only taking cognizance of the offence committed outside India but previous sanction of the Central Government for trial of such offence is mandatorily required. Since no sanction for prosecution of petitioner-Mwnw/zJain either for the offence under Section 498A/34 IPG or Section IPG has been obtained therefore, his prosecution for the aforesaid offence or the offence under Section 306/34 IPG stands vitiated. It is true that there has to be a reasonable proximity between the alleged crueltyand the death,to prosecutethe accusedfor the offencesunder Section 306 IPG but, it cannot be said that the deceased was not subjected to crueltyfrom the year 2000 to year2002 as there are statementsof parentsof the deceased and the first informant who is none other than sister of the deceased. A bare perusal of the charge-sheet and the statements of witness coupledwith the letters writtenby the deceasedto her family,primafacie make out a case for putting petitioners-^/zazVewc/e/"Kumar Jain and Trishla Jain at trial for offence under Section 306/34 IPG as v/ell and both these offences are of the same species. Trial court has aptly noted that what Crl. Rev. P. No. 152,154 &156 of 2013 Page 6 offence is made out and against whom, becomes clear only after investigation/inquiry is complete. So, it is not unusual that initially a person is arrayed as an accused of Section 498A/34 IPC and the charge-sheet is filed for the offence under Section 306/34 IPC as well. Thus, it cannot .be said that the sanction for prosecution under Section 498A/34 IPC alone would preclude the prosecution of the accused for the offence of same species i.e. under Section306/34IPC. This is an aspectwhich ought to be left open to be consideredat trial to be finally determinedas to whetherit is a defect which is curable or not and as to whether it is fatal to the prosecution or not. The petitioners-ShailenderKumar Jain and TrishlaJain have been calleduponto face thetrial for a seriousoffenceand the scopeofscrutinyat this initial stage of trial is quite limited. It camiot be lost sight of that the offence of cruelty is a continuingone. Applyingthe ratio of the decisions relied upon to the facts of this case, it cannot be primafacie said that the ingredientsof the offenceunder Section306/34 IPC are utterly lacking as the letterswrittenby the deceased,thoughtwo years priorto her death, and the statements of family members of the deceased as well as of colleagues/neighboursof the deceased cannot be discarded merely by relying upon dying declaration of the deceased. It is at trial, dying declaration of the deceased as well as statements of family members of deceasedand her colleagues/neighboursetc. is requiredto be tested and to minutelyscrutinizethem now wouldbe pre-matureexercisewhich oughtnot to be undertaken at the stage of charge. It needs no reiteration that even on strong suspicion charge can be framed. Viewed from, any angle, no case for discharge of petitioners-Crl.Rev.P. No. 152,154&156of2013 ' Page 7 r ShailenderKumar Jain and Trishla Jain is made out. Impugned order directing petitioners Shailender Kuniar Jain and Trishla Jain to face trial for the offenceunder Section306/34 IPG does not suffer from any illegalityor infirmity. However, impugned order requiring petitioner-Mwwi^'AJain to face trial under Section 306/498A/34 IPG is unsustainable due to lack of mandatory sanction under Section 188 of Gr.P.C. Hence, revision petition of petitioner-Mwww/zJain qua impugned order succeeds and the impugned order against Munish Jain is set aside and he is discharged. Impugned order qua ^^QXAiionQrs-ShailenderKumar Jain and Trishla Jain is upheld. The above captioned three petitions are disposed of in aforesaid terms while not commenting on merits of this case lest it may prejudice either side at trial. (SUNIL GAUR) Judge JULY 11, 2013 vn Crl.Rev.P. No. 152,154&156of2013-Page 8

$-7, 8 & 9 * IN THE HIGH COURT OF DELHI AT NEW DELHI (i) CRL.REV.P. 152/2013 MUNISH JAIN Through; versus STATE NCT OF DELHI Through: (ii) CRL.REV.P. 154/2013 SHAILENDER KUMAR JAIN Through: versus STATE NCT OF DELHI Through: (in) CRL.REV.P. 156/2013 TRISHLA JAIN Through: versus STATE NCT OF DELHI Through: CrI. Rev. P. No. 152,154 & 156 of 2013 Petitioner Mr. Vivek Sood, Mr. R.D. Sharma and Mr. Chetan Sharma, Advocates Respondent Mr. Mukesh Gupta, Additional Public Prosecutor for the state with Insp. Akashay Kumar, AHS/Crime Branch. Petitioner Mr. Vivek Sood, Mr. R.D. Sharma and Mr. Chetan Sharma, Advocates Respondent Mr. Mukesh Gupta, Additional Public Prosecutor for the state with Insp. Akashay Kumar, AHS/Crime Branch. Petitioner Mr. Vivek Sood, Mr. R.D. Sharma and Mr. Chetan Shamia, Advocates Respondent Mr. Mukesh Gupta, AdditionalPublic Prosecutor for the state with Insp. Akashay Kumar, AHS/Crime Branch. Page 1 CORAM: HON'BLE MR. JUSTICE SUNIL GAUR