Crl. Appeal No.   1735   of 2011 @  SLP(Crl) 10005/2009                                                                                                  REPORTABLE 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1735 OF 2011 ARISING OUT OF S.L.P. (CRL.)  NO. 10005 OF 2009

AJAY KUMAR DAS ..... APPELLANT

VERSUS

STATE OF JHARKHAND & ANR. ..... RESPONDENTS  

J U D G M E N T

1. Leave granted. 2. This appeal is directed against the order dated  

19th August,  2009  passed  by  the  Jharkhand  High  Court  

dismissing the petition filed by the appellant herein  

praying for quashing of the entire criminal proceedings  

of Balumath P.S. Case No. 68 of 2006 (corresponding to  

G.R. Case No. 445 of 2006) in which cognizance was taken  

of the offence under Section 304B read with Section 34 of  

the Indian Penal Code against the appellant and others.   

3. The  informant  filed  a  First  Information  Report  

that his daughter was married to the appellant herein in  

the year 2002, as per the Hindu rites and custom and that  

at  the  time  of  her  marriage,  informant  had  given  

sufficient  dowry.   It  was  stated  therein  that  the

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informant's daughter complained about the torture meted  

out to her by the father-in-law and the mother-in-law to  

her husband, the present appellant who allegedly did not  

pay  any  heed.   It  was  also  alleged  that  on  29th  

September,  2006,  father-in-law  and  the  mother-in-law  

talked to the accused on telephone and in a well-planned  

conspiracy caused death of the daughter of the informant.  

On  receipt  of  the  aforesaid  information  a  case  was  

registered, thereafter the police started investigation.  

After the completion of the investigation, a charge sheet  

was filed on 14th April, 2001.  An order was also passed  

on 17th April, 2007, by the Magistrate taking cognizance  

which  is  also  assailed  in  the  present  case.   The  

appellant  was  granted  bail  by  the  High  Court  on  10th  

April, 2007.

4. After submission of the aforesaid charge sheet and  

passing of the order taking cognizance, the appellant  

filed  a  petition  under  Section  482  of  the  Code  of  

Criminal Procedure praying for quashing of the proceeding  

in the aforesaid manner.  The High Court considered the  

pleas raised by the parties and thereafter held that the  

case is a case of dowry death and that the appellant is  

the husband.  It was also held that the points taken by  

the appellant before the High Court are rather a defence  

case and that the same relates to factual dispute.  The

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Court also referred to the decision of this Court in  

State of Haryana v. Bhajan Lal  reported in 1992 Suppl. 1  

SCC 335 and also to the settled position of law that  

genuineness of the allegations/charge is an issue to be  

tried and the Court in exercise of its jurisdiction under  

Section  482  of  the  Code  of  Criminal  Procedure  cannot  

delve into such factual controversy so as to quash the  

proceedings.

5. Learned  counsel  appearing  for  the  appellant  has  

challenged the legality of the aforesaid order passed by  

the High Court on the ground that no case is made out  

against the appellant either under Section 304B or under  

Section 34 of the Indian Penal Code as according to him  

there  is  no  such  allegation  in  the  First  Information  

Report specifically against the appellant.  He has also  

submitted that the order taking cognizance is wrong and  

disclosed non-application of mind by the Magistrate for  

even prior to passing of the said order charge sheet was  

already filed.  He also took us through the contents of  

the case diary wherein statements of seven witnesses have  

been  recorded  to  substantiate  his  submission  as  

aforesaid.   

6. Counsel  appearing  for  the  respondents,  however,  

submits that this is not the stage when this Court should  

embark upon a factual inquiry as regards the materials on

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record.  It is also pointed out to us that in fact the  

appellant would have such an effective opportunity even  

at  the  stage  when  charges  are  framed.   Counsel  also  

submits that it is possible and also permissible to alter  

the charges and frame charges under some other provisions  

of  law if  it appears  to the  Court that  material for  

framing  such  charge  under  other  sections  are  also  

available on record.   

7. Having heard the learned counsel appearing for the  

parties, we may appropriately refer to a decision of this  

Court in Shanti & Another v. State of Haryana reported in  

AIR 1991 SC 1226.  What was considered in that case by  

this Court was a case of dowry death under Section 304B  

and also a case of 498A of the Indian Penal Code.  While  

dealing with the aforesaid provisions, this Court has  

held that the two sections are not mutually exclusive.  

It was also held that a person charged and acquitted  

under Section 304B could be convicted under Section 498A  

without charge being there if such a case is made out.  

This  Court,  however,  hastened  to  add  that  to  avoid  

technical defects it is necessary in such cases to frame  

charges under both the sections and that if the case is  

established then they can be convicted under both the  

sections but no separate sentences need be awarded under  

Section 498A in view of the substantive sentences being

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awarded for the major offence under Section 304B.  In  

that decision, this Court considered the scope and ambit  

of  Section  304B  IPC  and  also  of  Section  498A  IPC.  

Reference was also made to provisions of Section 113B of  

the Evidence Act.  It was held that Section 113B of the  

Evidence Act lays down that if soon before the death such  

woman has been subjected to cruelty or harassment for or  

in connection with any demand for dowry then the Court  

would presume that such a person has committed the dowry  

death.  It was also held that the meaning of 'cruelty'  

for the purpose of this Section has  to be gathered from  

the language as found in Section 498A and as per that  

Section 'cruelty' means 'any wilful conduct which is of  

such a nature as is likely to drive the woman to commit  

suicide or to cause grave injury or danger to life, limb  

or health (whether mental or physical) of the woman or  

harassment of the woman where such harassment is with a  

view to coercing her or any person related to her to meet  

any unlawful demand for any property or valuable security  

or is on account of failure by her or any person related  

to her to meet such demand.'

8. Our attention is also drawn to the decision of  

Mahbub Shah v. King Emperor (1945) 72 Indian Appeals 148.  

In the said decision, it was held that to invoke the aid  

of Section 34 IPC exclusively it must be shown that the

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criminal act complained against was done by one of the  

accused persons in furtherance of common intention of all  

and if that is shown then the liability for the crime may  

be imposed on any one of the persons in the same manner  

as if the acts were done by him alone.  It was further  

held that it is difficult if not impossible to procure  

direct evidence to prove the intention of an individual;  

in most cases it has to be inferred from his act or  

conduct or other relevant circumstances of the case.

9. This Court in the decision of Bengai Mandal alias  

Begai Mandal v. State of Bihar reported in (2010) 2 SCC  

91 after referring to some allied decisions of this Court  

held that the position with regard to Section 34 IPC is  

crystal clear and that the existence of common intention  

is a question of fact.  It was held that since intention  

is a state of mind it is, therefore, very difficult if  

not  impossible  to  get  or  procure  direct  proof  of  

intention and, therefore, courts in most cases have to  

infer the intention from the act or conduct of the party  

or other relevant circumstances of the case.   

10. Counsel appearing for the appellant also drew our  

attention to the same decision which is relied upon in  

the impugned judgment by the High Court, i.e. the case of  

State of Haryana v.  Bhajan Lal and others reported in  

1992 suppl. 1 SCC 335.  In the said decision, this Court

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held that it may not be possible to lay down any specific  

guidelines  or  water  tight  compartment  as  to  when  the  

power under Section 482 Cr.P.C. could be or is to be  

exercised.  This Court, however, gave an exhaustive list  

of various kinds of cases wherein such power could be  

exercised.  In paragraph 103 of the said judgment, this  

Court, however, hastened to add that as a note of caution  

it must be stated that the power of quashing a criminal  

proceeding should be exercised very sparingly and with  

circumspection and that too in the rarest of rare cases  

for the Court would not be justified in embarking upon an  

inquiry as to the reliability or genuineness or otherwise  

of the allegations made in the First Information Report  

or  in  the  complaint  that  the  extraordinary  or  the  

inherent powers do not confer an arbitrary jurisdiction  

on the Court to act according to its whim or caprice.

11. Keeping  the  aforesaid  legal  principles  in  our  

mind, we now proceed to examine the contentions raised by  

the  counsel  appearing  for  the  appellant  in  order  to  

ascertain and find out whether a case for quashing is  

made out in the facts of the present case.  In the First  

Information Report, there is an allegation that the two  

other  accused  persons  namely  Ishwar  Das  and  his  wife  

Sunita  Devi  on  the  fateful  day  after  talking  to  the  

present  appellant  over  telephone  in  a  pre-determined

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manner  killed  the  informant's  daughter  Bimla  Devi  by  

pushing her into a well.   Counsel appearing for the  

appellant even sought to counter the said allegation by  

referring to a document issued by the Commanding Officer  

to the appellant dated 19th November, 2006.  In the said  

note, which was sent to the Superintendent of Police, it  

is mentioned that as per the statement of the appellant  

his wife Bimla Devi fell inside the well.  The aforesaid  

document  is in  the nature  of a  defence and  could be  

looked into by the appropriate Court at the appropriate  

stage and not now.  What we are required to look at this  

stage is the allegations made in the complaint and in the  

First Information Report.  He also referred to some of  

the statements made in the case diary to justify the  

stand that no case against the appellant is made out.   

12. We  are,  however,  unable  to  accept  the  said  

contention at this stage for we find that there was a  

demand for giving cows, motor cycle and other goods.  All  

these allegations will have to be dealt with by the Court  

at different stages for which liberty would be available  

to the appellant.  In our considered opinion, this is not  

the stage when the Court would make an inquiry into the  

factual position to find out as to whether or not the  

appellant  is  guilty  of  the  charges  or  not.   The  

appellant,  in  our  considered  opinion,  will  have

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sufficient opportunity to place his entire case before  

the Court at the time of framing of the charge since  

charge sheet has already been filed against the appellant  

also  holding that a case under Section 304B and Section  

34 is made out.  We do not wish to enter into the factual  

details for any discussion on them at this stage as the  

same may prejudicially affect the case of the appellant.  

We are, however, of the considered opinion that on a  

reading of the First Information Report and the materials  

that are available in the case file of the appellant that  

no case is made out so as to quash the entire proceeding.  

Therefore, while rejecting the contention of the counsel  

appearing  for  the  appellant  so  far  quashing  of  the  

proceedings is concerned we give him the liberty to raise  

all his defence as may be available to him in accordance  

with law at the time of framing of the charge and at that  

stage the Court shall consider the material on record as  

also the contentions raised by the appellant in proper  

perspective and decide the matter in accordance with law.  

We also make it clear that any observation made by us  

herein  would  not  be  in  any  manner  construed  as  our  

observations or views with regard to the merit of the  

case or the defence of the appellant.

13. In terms thereof,  we dismiss the appeal but with  

the aforesaid liberty granted to the appellant.  The stay

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of further proceedings before the trial court granted  

vide  this  Court  order  dated  22nd October,  2010  stands  

vacated.  

.......................J [Dr. MUKUNDAKAM SHARMA]

........................J [ANIL R. DAVE]

NEW DELHI SEPTEMBER 6, 2011.