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“ REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.__174___ OF 2013

(Arising out of SLP (Criminal) No. 4883 of 2008)

Rajiv Thapar & Ors. …. Appellants

Versus

Madan Lal Kapoor …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J .

1.Leave granted.

2.Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on

30.11.1991. After her marriage, Dr. Monica Thapar got admission in a

Post Graduate Diploma course in Gynaecology (DGO) at Medical College,

Surat, in June 1992. Accordingly, she started working as a Resident at the

aforesaid Medical College. At his own request, Rajiv Thapar, who was

(and still is) a member of the Indian Revenue Services, was transferred

from Ahmedabad to Surat. On 16.9.1992, while the husband and wife

were living at Surat, Dr. Monica Thapar fell ill. For her treatment, she was

admitted to Mahavir Hospital, Surat. She was diagnosed as suffering from

Malaria. Having been treated for the same, she was discharged on

20.9.1992. Two days thereafter, Dr. Monica Thapar again fell ill on

22.9.1992. This time, she was taken to Medical College, Surat i.e., the

hospital where she was herself working as a Resident. She was first

examined by a radiologist, and thereafter, by Dr. Girish Kazi, a cardiologist.

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It was suspected, that she has a hole in her heart. Based on the aforesaid

diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-

cardiography. The said echo-cardiography confirmed the presence of a

large hole in her heart. On the advice of doctors who attended on Dr.

Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart

and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung

Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack

on 26.9.1992. The same supposedly proved fatal.

3.The factum of death of Dr. Monica Thapar was conveyed to the

immediate family of Rajiv Thapar, as well as to the family of the deceased.

A decision was taken to cremate the dead body at Delhi. Accordingly,

after embalming the body of Dr. Monica Thapar, it was transported by rail

to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar

including her father Madan Lal Kapoor (respondent-complainant herein)

were present at the time of arrival of the body at Delhi.

4.Madan Lal Kapoor made a complaint to the Police Control Room

alleging, that he suspected that his daughter had been poisoned. This

suspicion was based on the fact, that the body had turned blue. On the

aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of

powers vested in him under Section 176 of the Code of Criminal Procedure

(hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings. In

the first instance, the body of the deceased was subjected to a post-

mortem examination, for which the following Medical Board was

constituted:-

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(i)Dr. Bharat Singh, Medical Superintendent, Civil Hospital,

Delhi.

(ii)Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi.

(iii)Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital,

New Delhi.

(iv)Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B.

Pant Hospital, New Delhi.

The Medical Board came to the conclusion, that Dr. Monica Thapar had

died of cardiac decomposition. The final opinion of the Medical Board, was

recorded in a report dated 28.9.1992, in the following words:-

“OPINIONIn view of the clinical reports submitted and post

mortem findings observed, the Board of Direcors is of the

opinion that, death is consequent to cardiac decompensation

due to enlarged atrial septal defect & pulmonary hypertension.

No definite opinion can be given about falciparm Malaria,

histopathological assessment.

Viscera is preserved for chemical analysis as desired by

SDM. Time since death is about 48 hours and is consistent

with the history.”

(emphasis is ours)

During the post-mortem examination, samples from the stomach, intestine,

liver, spleen, kidney and blood of the deceased’s body were taken. These

samples were sent for chemical examination to the Central Forensic

Science Laboratory, New Delhi. The report of the Forensic Laboratory

dated 9.2.1993, recorded the following conclusions:-

“SPECIFICATION OF THE ARTICLE CONTAINED IN THE

PARCEL

1.Parcel contained:

(a)One wide-mouth bottle containing stomach,

intestine with contents, Exhbt 1a.

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(b)One wide mouth bottle containing liver, spleen &

kidney, Exhbt 1b.

(c)One phial containing few drops blood, Exhbt 1c.

xxx xxx xxx

RESULTS OF ANALYSIS

The Exhibit nos. 1a, 1b and 1c gave negative tests for

common poisons.”

It is therefore apparent, that the Central Forensic Science Laboratory, New

Delhi, having analysed the samples from the stomach, intestine, liver,

spleen, kidney and blood, concluded that the same did not contain any

“common poison”.

5. Insofar as the inquest proceedings initiated by the Sub-Divisional

Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are

concerned, it would be relevant to mention, that Madan Lal Kapoor (the

respondent-complainant herein) the father of the deceased, in the first

instance, refused to record any statement before the SDM, Delhi, on the

ground that he would record his statement only after the receipt of the

post-mortem report. Even on the receipt of the post-mortem report, the

said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record

their statements before the SDM, Delhi, on the assertion, that the mother

of the deceased knew the facts best of all, and as such, her statement

needed to be recorded first of all. It was pointed out, that her statement

could not be recorded immediately because she was in a state of shock. It

may be noted, that neither the mother nor the brother of Dr. Monica Thapar

appeared before the SDM, Delhi, to record their statements. Madan Lal

Kapoor had sought time thrice, from the SDM, Delhi, to get the statement

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of his wife recorded. Madan Lal Kapoor, father of the deceased, however,

eventually recorded his statement before the SDM, Delhi, even though the

mother of the deceased had not appeared before the Magistrate to record

her statement.

6.The SDM, Delhi, during the course of inquest proceedings, recorded

the statements of the following accused persons:-

(i)Rajiv Thapar (husband of the deceased; appellant no. 1

herein).

(ii)Kusum Thapar (mother-in-law of the deceased;

appellant no. 5 herein).

(iii)Sangeeta Thapar (wife of the brother-in-law of the

deceased; appellant no. 4 herein).

In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria (a

colleague of the deceased at Medical College, Surat). Insofar as the

accusations and counter allegations are concerned, it is not essential to

refer to the statements of any of the rival parties. It is however,

appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the same

is not available on the record of the case, reference thereto in the inquest

report, is being extracted hereunder:-

“Statement of Mr. Pritu Dhalaria

Sh. Pritu Dhalaria stated that Monika Thapar was known to

him from the date she got admission in the Medical College in

June, 92. And he regards her as his elder sister. He further

stated that both Monika and Rajeev were happy and living a

happy married life. On 17

th

September, 1992, he came to

know that Monika was ill and admitted in the Mahavir Hospital.

In the evening of 17.9.1992, when he met Monika he came to

know that she was suffering from Malaria. And on 24.9.1992,

he came to know that she was admitted in the Urmil Heart

Hospital. He further stated after Echo-Cardiography doctor

declared that Monika was suffering from A.S.D. (Larger Hole

in Heart) and pulmonary Hypertension. He stated that on

26.9.1992, at about 2.00-2.15 p.m., Monika’s situation became

serious. And inspite of all attempts of doctors, she got heart

attack and died on 3.30 p.m. He also stated that the MS of

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Civil Hospital, Surat, Dr. Khanna was present alongwith the

other doctors at that time.”

(emphasis is ours)

7.The statement of Dr. Pritu Dhalaria fully coincides with the version

expressed by the appellants-accused. That Dr. Monica Thapar had two

bouts of illness. In the first episode, she was diagnosed as suffering from

Malaria. She was treated for the same and discharged. Thereafter, she

was diagnosed with a large hole in her heart, on the basis of an echo-

cardiography. She died of a massive heart attack on 26.9.1992. At the

time of her death, Dr. Khanna and other doctors of the Civil Hospital,

Surat, were present.

8.The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the

following conclusions:-

“Conclusion

Allegation levelled by Shri Madan Lal Kapoor, father of the

deceased regarding harassment and dowry death, it appears

that allegation are not correct in the light of the fact of Natural

death in the statements the husband and in laws of the

deceased produced photocopies of letters written by Sh.

Madan Lal Kapoor and Rajiv Kapoor. Perusal of the letter

shows that both the families enjoyed a normal happy

relationship and not an abnormal and strained relation till the

death of Monika.

Sh. Rajeev Thapar has produced copy of telephone Bill

of residential phone shows the Telephone Cells are made to

Madan lal phone No.574390 at Mohali Chandigarh on

17.09.92, 21.09.92, 24.09.92 and 25.09.92 during the course

of illness of Monika

Sh. Rajeev Kapoor, the brother of the deceased well

aware of the situation of Monika as per his letter dated 22

nd

September, 92 and at that time the families are enjoying a

very good relationship. So it is not possible in these

circumstances that Monkka was harassed by her in-laws. The

few lines as under:-

“How are you Now? I hope by now you will have

recovered from Malaria. We should have faith in

God. Please give top priority to your health.

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Off and on I go to Janakpuri, all are very nice there, very

affectionate and very caring. You must be knowing that

Sanjay Bhai Saheb have been promoted to the rank of

Squadron Leader..

The brother is no likely to praise the family of his sister’s

in-laws in case his sister is being harassed for dowry.

Statement of Sh. Pritu, Colleague of Mrs. Monika, also

shows that Monika and Rajiv enjoyed a very happy and cordial

relationship, which also shows that allegations of harassment

does not appear to be correct. According to the statements

given before me Monika stayed with her in-laws in Delhi only

for 4-5 days. Hence the charged of harassment levelled does

not appear to be correct. From the statement and evidence

produced before me, it does not appear that she was being

harassed. Report of Sh. S.K. Pathi M.d. Radiologist during the

treatment of Monika.

“Mild Cardiac enlargement with dilated pulmonary

vessels and evidence of Pulmonary Dedema. Advise:

Echocardiography.”

Report of Dr. J.C. Damaswala M.D. during the treatment of

Monika.

“Large osteum secundum ASD Measuring 3.0 cm with

Ltd. To Rt. Shunt on colour flow and conventional

Doppler.”

Death certificate issued by Urmil Heart and Lung Centre:-

Cause of Death: Cardio-Respiratory arrest due to Malaria ASD

C Pulmonary Hypertension.

The post-mortem of the dead body revels that death is

due to Cardiac de-compensation due to enlarged atrial Septal

Defect and pulmonary Hypertension (As per board of doctors)

The CFSL report of the viscera reveals negative tests for

common poison.

Inquest proceedings started on 27.09.1992 and till now

mother of the deceased has not come forward to give her

statement. Father of the deceased visited SDM office three

times but never brought his wife for recording statement. Now

there is no point in waiting for her statement when death is

proved natural and beyond any doubt.

The case of the death is clearly determined to be natural

inquest proceedings under Section 176 Cr.PC may be closed

as foul play in the death of Smt. Monika Thapar is completely

ruled out and the allegation made in the PCR called on

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29.09.1992 have not been turned out by the evidence on

record.

Sd/-

Sub-Divisional Magistrate, Kotwali, Delhi.

6.7.1993”

A perusal of the inquest report reveals that the SDM, Delhi, concluded that

“… foul play in the death of Smt. Monika Thapar is completely ruled out…”

The SDM, Delhi, also held “…death is proved natural and beyond any

doubt…”

9.On 29.9.1992, Madan Lal Kapoor (the respondent-complainant),

father of the deceased Dr. Monica Thapar, filed a complaint before the

Commissioner of Police, Delhi. Prior thereto, on the same issue, he had

filed similar complaints before the Police Commissioner, Surat, Police

Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy.

Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura,

New Delhi. The aforesaid complaints had been filed by the father of the

deceased praying for registration of a First Information Report, interalia,

under Sections 304B and 498A of the Indian Penal Code. Since the

complaints filed by Madan Lal Kapoor did not bear any fruitful result, he

filed a criminal complaint before the Metropolitan Magistrate, Delhi on

6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning.

Relevant portion of the complaint made by Madan Lal Kapoor (the

respondent-complainant) is being extracted hereunder:-

“10.That in the second week of September, 1992, accused

no.1 Rajiv Thapar called his mother from Delhi, on the false

pretext that Monika was pregnant and needed care. As a

matter of fact, it was in the pursuance of the conspiracy

hatched by the accused themselves to do away with the life

of Monika in some mysterious manner and on the pretext the

mother of Rajiv Thapar accused no.1 was called from Delhi,

and sometimes thereafter on that pretext she was admitted in

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some hospital of their choice, where the conspiracy could be

implemented.

11.That on 26.9.1992 the complainant enquired on

telephone from accused no.2 about the welfare of his

daughter but now she was quite alright and there was nothing

worry about her. The complainant enquired from him about

the details of her illness and hospital where she was

admitted, but accused no.2 did not disclose as the voice of

Mr. Thapar accused no.2 was some what in co-herent on the

phone, the complainant suspected something wrong, when

the complainant told him that he along with his wife was

going to Surat, accused no.2 told him that there was no need

of going and everything was alright, but when the

complainant told him in clear term that he apprehended

something wrong regarding the illness of his daughter, on

which accused no.2 told the complainant on phone that

Monika had expired.

12.That accused no.2 in conspiracy with his co-accused

did not disclosed the kind of illness, of the treatment she was

given with a criminal intention that the complainant and his

wife may not able to see their daughter and give her proper

treatment. Mrs. Monika was not suffering from any disease.

Of course, due to constant harassment, torture, physical and

violent and mental torture, her health had broken down and

she fell ill. Her death was due to constant torture for not

meeting the illegal demand of a Maruti Car.

13.That the dead body of Monika was brought to Delhi

under mysterious circumstances, no permission was obtained

for taking dead body from Surat to Delhi in the train.

14.That the complainant and his wife reached Delhi and

saw some poisonous substance had been administered to

her, on this report of the complainant, the post-mortem was

conducted at Delhi.

15.That the complainant was moved hell and earth in the

matter. He has given complaint to police Commissioner,

Surat. Deputy Commissioner, Athwa Crime Women Cell,

South, Moti Bagh, Nanakpura, New Delhi, Police Officer

Incharge, Umra , Police Station, Athwa Lines, Surat and

another authority; but no action has been taken, even the

copy of the Post Mortem Report has not been supplied to the

complainant.

16.That the death of Mrs. Monika took place within a year

of her marriage under mysterious circumstances on account

of demand of dowry which demand was not met and

thereafter she was tortured mentally and physically and

leading to her illness and in that condition she was

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administered some poisonous matter. The accused have

committed serious offences under Sections

304B/120B/498A/109 I.P.C. They be tried according to law

and convicted.

Sd/-

Dated 6.7.93 Madan Lal Kapoor

Complainant”

(emphasis is ours)

10.The complaint extracted above, reveals mere aspersions, based on

suspicion. The complaint did not express any concrete fact disclosing how

the appellants-accused were responsible for having taken his daughter’s

life. In fact, the narration of facts hereafter reveal, the shifting stance of the

father of the deceased, about the cause of his daughter’s death. On

24.5.1995, Madan Lal Kapoor (the respondent-complainant) examined

himself and his son Rajiv Kapoor before the Metropolitan Magistrate, Delhi

in order to substantiate the allegations levelled by him in respect of the

unnatural death of his daughter Dr. Monica Thapar. Based on the

statements made by Madan Lal Kapoor (the respondent-complainant) and

his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated

24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi,

while summoning the accused, recorded the following observations:-

“It is further alleged that at the time of her death she was

doing Diploma in Gynaecology in territories at Surat where his

son in law was employed. The complainant did not receive

any telephone call either from his daughter or son in law and

he therefore rang up to Ramesh Thapar at Delhi to enquire

about the welfare of his daughter and Ramesh Thapar told

him on telephone that his wife Kusum Thapar had been called

to Surat to look after his daughter as she was said to be

pregnant but subsequently she was aborted. The complainant

enquired from him as to the particulars of the hospital where

she was admitted and what was the ailment she was suffering

from, she replied that her daughter was quite all right and he

should not worry about her welfare again insisted to given

particulars of the hospital and the complainant suspected that

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her in-laws were not behaving with her properly and were

harassing, therefore, he insisted that he himself and his wife

shall go to Surat and he told him that he suspected some foul

play in the matter on which Ramesh Thapar told him from

Delhi that his daughter Monika has already expired, and he

enquired as to where she will be cremated. The accused

brought the dead body of his daughter from Surat to Delhi but

they did not allow him and his family members to see the dead

body but on their insistence, they saw the dead body of his

daughter and he saw that the face and mouth of his daughter

was blue. He suspected that her daughter has been given

some poisonous matter, as a result of which she had died. He

informed the police and the police came and got the post

mortem of the dead body conducted, but thereafter nothing

was done by police in this matter. He sent a registered letter

to the Police Commissioner, Delhi and he went to Surat and

filed a complaint before the Police Commissioner but nothing

was done. The complainant suspect that his daughter has

been admitted because his daughter had not brought sufficient

dowry according to the status and had also failed to fulfill the

demands of above named accused persons of bringing dowry

and Maruti Car and cash.

I have carefully considered the argument put forward by

Ld. Counsel for complainant. I have also carefully gone

through the complaint and have carefully considered the

preliminary evidence adduced by the complainant in support

of his case, and from the material on record in my considered

opinion, there are sufficient grounds for proceedings against

all the accused persons for committing offence punishable u/s.

304B/498A/406/120B IPC.

Accordingly, I order that accused Rajiv Thapar, Ramesh

Thapar, Sangeet Thapar and Mrs. Kusum Thapar be

summoned for 19.12.1995 on filing of PF.”

11.The appellants assailed the aforesaid summoning order dated

24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the

High Court of Delhi (hereinafter referred to as, the High Court). The

challenge raised was primarily on the ground, that Madan Lal Kapoor (the

respondent- complainant) had suppressed vital material, in his complaint.

It was alleged, that the complainant did not disclose the particulars of the

post-mortem examination, the report of the Central Forensic Science

Laboratory, as also, the inquest report. The High Court dismissed the

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aforesaid petition summarily on the premise, that the same had been

prematurely filed. Accordingly, liberty was granted to the appellants to

move the trial Court, if they were so advised, for seeking a recall of the

summoning order (dated 24.8.1995). Immediately, on the disposal of the

petition by the High Court, the appellants moved an application before the

Metropolitan Magistrate, Delhi, praying for a recall of the summoning order

dated 24.8.1995. The aforesaid application was dismissed by the

Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of

the opinion that at this stage, there is no ground to review or recall the

order dated 24.8.1995 passed by my L.D. Predecessor, whereby he

summoned the accused for the above stated offences after taking

cognizance…”

12.Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary

evidence. Based thereon, and having formed an opinion, that there was

sufficient material to proceed against the accused under Sections 498,

496, 304B read with Sections 120-B of the Indian Penal Code, the

Metropolitan Magistrate, Delhi, committed the case to the Court of

Sessions, as the offence under Section 304B is exclusively triable by a

Court of Sessions.

13.While examining the matter further, with the pointed object of either

discharging the accused (under Section 227 of the Cr.P.C.) or framing

charges against them (under Section 228 of the Cr.P.C.), the Additional

Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the

respondent-complainant) had not brought the following

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record/material/documents to the notice of the Metropolitan Magistrate,

Delhi:-

(i)The post-mortem report dated 28.9.1992.

(ii)The inquest report dated 6.4.1993.

(iii)The correspondence made by the respondent and his

son.

The Additional Sessions Judge, Delhi also felt, that the Metropolitan

Magistrate, Delhi, had not fully complied with the provisions of Section 202

of the Cr.P.C. (requiring him to enquire into the case himself). Therefore,

the Additional Sessions Judge, Delhi examined the allegations made in the

complaint in conjunction with all of the aforesaid material.

14.Since the learned counsel representing Madan Lal Kapoor (the

respondent-complainant) had raised an additional plea (before the

Additional Sessions Judge, Delhi), that the deceased was also suspected

of having been strangulated to death, the Additional Sessions Judge, Delhi

summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of

the Medical Board, which had conducted the post-mortem examination).

The Additional Sessions Judge, Delhi, sought clarifications on the

allegations of strangulation, from the two doctors. The Court also recorded

the statement of Dr. Amit Banerjee.

15.The Additional Sessions Judge, Delhi then heard detailed arguments

on charge. Upon consideration, the Additional Sessions Judge, Delhi,

recorded detailed findings, which are being summarized hereunder:-

(i)The inquest proceedings conducted by the SDM, Delhi,

which interalia contained the broad facts of the married

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life of the deceased, were inconsistent with the theory of

harassment extracted in the complaint.

(ii)The accused Rajiv Thapar, husband of Dr. Monica

Thapar (deceased) had been seeking medical advice,

and had been getting the deceased’s medical treatment

at Surat, whereupon it came to be discovered, that she

had a large hole in her heart.

(iii)The Medical Board which conducted the post-mortem

examination on the body of the deceased, confirmed the

conclusion certified by Urmil Heart and Lung Centre,

Surat, that her death occurred because of cardiac de-

compensation, and that Dr. Monica Thapar had died a

natural death.

(iv)The plea of strangulation raised on behalf of the

complainant was held to be unsubstantiated consequent

upon the clarification rendered by Dr. L.T. Ramani and

Dr. Amit Banerjee.

(v)The post-mortem report and the Central Forensic

Science Laboratory’s report, which recorded a negative

opinion on poisoning, were taken into consideration to

conclude, that the death of Dr. Monica Thapar was not

due to poisoning.

(vi)The statement made by Dr. Pritu Dhalaria, a colleague

of the deceased at the Medical College, Surat, referred

to in the inquest proceedings (relevant portion extracted

above), was relied upon to disbelieve the theory of foul

play, in the death of Dr. Monica Thapar.

(vii)Based on the facts recorded in the inquest report, as

also in the statement of Dr. Pritu Dhalaria, that Dr.

Monica Thapar had died after her admission and

treatment in the Urmil Heart and Lung Centre, Surat, it

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was deduced, that Rajiv Thapar, the husband of the

deceased could have neither strangulated nor poisoned

the deceased, while she was admitted for treatment at

the Urmil Heart and Lung Centre, Surat.

Based, interalia, on the aforesaid evaluation of the complaint filed by

Madan Lal Kapoor (the respondent-complainant), the Additional Sessions

Judge, Delhi concluded, that no prima facie case was made out against

the appellants/accused either under Section 304B of the Indian Penal

Code or under Section 498 of the Indian Penal Code. The Additional

Sessions Judge, Delhi, accordingly discharged the appellants/accused by

an order dated 7.8.1999.

16.Dissatisfied with the order dated 7.8.1999 passed by the Additional

Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant)

filed a Criminal Revision Petition (bearing no. 42 of 2000) in the High

Court. The aforesaid Criminal Revision Petition was dismissed in default

on 11.8.2005. The order dated 11.8.2005 was assailed through a Special

Leave Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court.

The aforesaid Special Leave Petition was allowed by this Court on

31.8.2007. The matter was remanded back to the High Court for

adjudication on merits. It is thereupon, that the High Court passed the

impugned order dated 8.5.2008, setting aside the order dated 7.8.1999

passed by the Additional Sessions Judge, Delhi. The instant order dated

8.5.2008 is the subject matter of challenge in the present appeal.

17.A perusal of the order of the High Court would reveal that the

Additional Sessions Judge, Delhi, had primarily relied on certain

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observations made in the judgment rendered by this Court in Satish Mehra

Vs. Delhi Administration, (1996) 9 SCC 766:-

“15. But when the Judge is fairly certain that there is no

prospect of the case ending in conviction the valuable time of

the Court should not be wasted for holding a trial only for the

purpose of formally completing the procedure to pronounce

the conclusion on a future date. We are mindful that most of

the Sessions Courts in India are under heavy pressure of

work-load. If the Sessions Judge is almost certain that the trial

would only be an exercise in futility or a sheer waste of time it

is advisable to truncate or snip the proceedings at the stage of

Section 227 of the Code itself”

Madan Lal Kapoor (the respondent-complainant), before the High Court,

had relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi

(2005) 1 SCC 568, to contend that the judgment relied upon by the

Additional Sessions Judge, Delhi, having been overruled, had resulted in

an erroneous conclusion. For the same proposition, reliance was placed

on the judgment of this Court in Suresh Kumar Tekriwal Vs. State of

Jharkhand, (2005) 12 SCC 278. On behalf of the complainant, reliance

was also placed on the decision in State of Maharashtra Vs. Som Nath

Thapa, (1996) 4 SCC 659, to contend, that only the material placed on

record by the prosecution, could be gone into at the time of framing

charges. And if, on the basis of the said material, the commission of the

alleged offence was prima facie made out, the charge(s) was/were to be

framed. At the stage of framing of charges, it was submitted, that the

requirement was not to determine the sufficiency (or otherwise) of

evidence to record a conviction. For this, reliance was placed on State of

M.P. Vs. Mohanlal Soni (2000) 6 SCC 338, wherein this Court had

concluded, that the requirement was a satisfaction, that a prima facie case

was made out. On behalf of Madan Lal Kapoor, reliance was also placed

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on State of A.P. Vs. Golconda Linga Swamy (2004) 6 SCC 522, to contend

that at this stage, meticulous examination of the evidence was not called

for.

18.As against the submission advanced on behalf of Madan Lal Kapoor

(the respondent-complainant), the appellants/accused contended, that the

Court was justified in considering the material on the record of the case,

and on the basis thereof, to arrive at a just and reasonable conclusion. In

this behalf, it was averred that the post-mortem report, the report of the

Central Forensic Science Laboratory, the inquest proceedings recorded by

the SDM, Delhi, and the letters addressed by the family members of the

complainant (duly noticed in the inquest proceedings), were a part of the

record of the case, and as such, were to be taken into consideration while

passing the orders contemplated under Sections 227 and 228 of the

Cr.P.C. The submission advanced on behalf of Madan Lal Kapoor (the

respondent-complainant) before the High Court, was accepted. The High

Court arrived at the conclusion, that the Additional Sessions Judge, Delhi

had erroneously placed reliance on the decision rendered by this Court in

Satish Mehra Vs. Delhi Administration (supra), which had already been

overruled by the judgment rendered by a larger Bench in State of Orissa

Vs. Debendra Nath Padhi (supra).

19.While considering the contention advanced on behalf of the

appellants/accused, the High Court concluded, that the

material/documents/record which the complainant was placing reliance on,

did not fall within the ambit and scope of the term “record of the case”

contained in Section 227 of the Cr.P.C. According to the High Court, the

Page 18 18

record of the case referred to in Section 227 of the Cr.P.C. was only such

record, documents and articles which, on consideration by the Magistrate,

are sent to the Court of Sessions, consequent upon passing an order of

commitment. The material and documents relied upon by the

appellants/accused in the present controversy would, therefore, not fall

within the zone of consideration at the hands of the Court of Session under

Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the

behest of the appellants/accused were declined. For the aforesaid

reasons, the High Court accepted the Criminal Revision Petition filed by

Madan Lal Kapoor (the respondent-complainant). The order dated

7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly

quashed. The parties were accordingly directed to participate in the further

proceedings before the Court of Sessions.

20.We have considered the submissions advanced at the behest of the

rival parties. We are of the view, that in the facts and circumstances of this

case, the High Court had before it an exhaustive and detailed order

passed by the Additional Sessions Judge, Delhi, it ought to, therefore,

have examined the controversy, while keeping in mind the inherent power

vested in it under Section 482 of the Cr.P.C. specially because the

Additional Sessions Judge in his order dated 7.8.1999, had concluded, on

the basis of the material relied upon by the accused, that no case was

made out against the accused. This according to learned counsel, was

permissible in view of the inherent jurisdiction vested in the High Court

under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being

extracted hereunder:-

Page 19 19

“482.Saving of inherent power of High Court

Nothing in this Code shall be deemed to limit or affect the

inherent powers of the High Court to make such orders as

may be necessary to give effect to any order this Code, or to

prevent abuse of the process of any court or otherwise to

secure the ends of justice.”

The discretion vested in a High Court under Section 482 of the Cr.P.C. can

be exercised suo-moto to prevent the abuse of process of a court, and/or

to secure the ends of justice. This Court had an occasion to examine the

matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally

the said judgment was heavily relied upon by the learned counsel for the

respondent-complainant), wherein it was held thus:-

“29. Regarding the argument of accused having to face the trial

despite being in a position to produce material of

unimpeachable character of sterling quality, the width of the

powers of the High Court under Section 482 of the Code and

Article 226 of Constitution of India is unlimited whereunder in

the interests of justice the High Court can make such orders

as may be necessary to prevent abuse of the process of any

Court or otherwise to secure the ends of justice within the

parameters laid down in Bhajan Lal's case .”

(emphasis is ours)

Recently, this Court again had an occasion to examine the ambit and

scope of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya

Satardekar & Ors., (2008) 14 SCC 1, wherein in the main order it was

observed, that the width of the powers of the High Court under Section 482

of the Cr.P.C. and under Article 226 of the Constitution of India, was

unlimited. In the instant judgment, this Court held that the High Court

could make such orders as may be necessary to prevent abuse of the

process of any court, or otherwise to secure the ends of justice. In a

concurring separate order passed in the same case, it was additionally

Page 20 20

observed, that under Section 482 of the Cr.P.C., the High Court was free

to consider even material, that may be produced on behalf of the accused,

to arrive at a decision whether the charge as framed could be maintained.

The aforesaid parameters shall be kept in mind while we examine whether

the High Court ought to have exercised its inherent jurisdiction under

Section 482 of the Cr.P.C. in the facts and circumstances of this case.

21.The High Court, in exercise of its jurisdiction under Section 482 of

the Cr.P.C., must make a just and rightful choice. This is not a stage of

evaluating the truthfulness or otherwise of allegations levelled by the

prosecution/complainant against the accused. Likewise, it is not a stage

for determining how weighty the defences raised on behalf of the accused

is. Even if the accused is successful in showing some suspicion or doubt,

in the allegations levelled by the prosecution/complainant, it would be

impermissible to discharge the accused before trial. This is so, because it

would result in giving finality to the accusations levelled by the

prosecution/complainant, without allowing the prosecution or the

complainant to adduce evidence to substantiate the same. The converse

is, however, not true, because even if trial is proceeded with, the accused

is not subjected to any irreparable consequences. The accused would still

be in a position to succeed, by establishing his defences by producing

evidence in accordance with law. There is an endless list of judgments

rendered by this Court declaring the legal position, that in a case where the

prosecution/complainant has levelled allegations bringing out all

ingredients of the charge(s) levelled, and have placed material before the

Page 21 21

Court, prima facie evidencing the truthfulness of the allegations levelled,

trial must be held.

22.The issue being examined in the instant case is the jurisdiction of

the High Court under Section 482 of the Cr.P.C., if it chooses to quash the

initiation of the prosecution against an accused, at the stage of issuing

process, or at the stage of committal, or even at the stage of framing of

charges. These are all stages before the commencement of the actual

trial. The same parameters would naturally be available for later stages as

well. The power vested in the High Court under Section 482 of the

Cr.P.C., at the stages referred to hereinabove, would have far reaching

consequences, inasmuch as, it would negate the

prosecution’s/complainant’s case without allowing the

prosecution/complainant to lead evidence. Such a determination must

always be rendered with caution, care and circumspection. To invoke its

inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to

be fully satisfied, that the material produced by the accused is such, that

would lead to the conclusion, that his/their defence is based on sound,

reasonable, and indubitable facts; the material produced is such, as would

rule out and displace the assertions contained in the charges levelled

against the accused; and the material produced is such, as would clearly

reject and overrule the veracity of the allegations contained in the

accusations levelled by the prosecution/complainant. It should be

sufficient to rule out, reject and discard the accusations levelled by the

prosecution/complainant, without the necessity of recording any evidence.

For this the material relied upon by the defence should not have been

Page 22 22

refuted, or alternatively, cannot be justifiably refuted, being material of

sterling and impeccable quality. The material relied upon by the accused

should be such, as would persuade a reasonable person to dismiss and

condemn the actual basis of the accusations as false. In such a situation,

the judicial conscience of the High Court would persuade it to exercise its

power under Section 482 of the Cr.P.C. to quash such criminal

proceedings, for that would prevent abuse of process of the court, and

secure the ends of justice.

23.Based on the factors canvassed in the foregoing paragraphs, we

would delineate the following steps to determine the veracity of a prayer for

quashing, raised by an accused by invoking the power vested in the High

Court under Section 482 of the Cr.P.C.:-

(i)Step one, whether the material relied upon by the accused is

sound, reasonable, and indubitable, i.e., the material is of

sterling and impeccable quality?

(ii)Step two, whether the material relied upon by the accused,

would rule out the assertions contained in the charges levelled

against the accused, i.e., the material is sufficient to reject and

overrule the factual assertions contained in the complaint, i.e.,

the material is such, as would persuade a reasonable person

to dismiss and condemn the factual basis of the accusations

as false.

(iii)Step three, whether the material relied upon by the accused,

has not been refuted by the prosecution/complainant; and/or

Page 23 23

the material is such, that it cannot be justifiably refuted by the

prosecution/complainant?

(iv)Step four, whether proceeding with the trial would result in an

abuse of process of the court, and would not serve the ends of

justice?

If the answer to all the steps is in the affirmative, judicial conscience

of the High Court should persuade it to quash such criminal

proceedings, in exercise of power vested in it under Section 482 of

the Cr.P.C. Such exercise of power, besides doing justice to the

accused, would save precious court time, which would otherwise be

wasted in holding such a trial (as well as, proceedings arising

therefrom) specially when, it is clear that the same would not

conclude in the conviction of the accused.

24.The complaint made by Madan Lal Kapoor (the respondent-

complainant) proceeds on the assumption, that his daughter Dr. Monica

Thapar was administered poison. The said assumption was based on the

fact, that the respondent-complainant, (as also the members of his family),

found the body of their daughter had turned blue when they laid their eyes

on it for the first time after her death. The motive disclosed in the

complaint is non-cordiality of relations between the deceased Dr. Monica

Thapar, and the family members of her husband (the appellants herein),

on account of non-fulfillment of dowry demands. Insofar as the allegation,

that the appellants had poisoned Dr. Monica Thapar to death is concerned,

the appellants have placed reliance on the post-mortem report dated

28.9.1992, chemical analysis findings recorded in the Central Forensic

Page 24 24

Science Laboratory’s report dated 9.2.1993, the inquest report dated

6.7.1993, and the order passed by the Additional Sessions Judge, Delhi,

dated 7.8.1999. It is clear, that Madan Lal Kapoor (the respondent-

complainant), was associated with the investigative process from the very

moment the body of Dr. Monica Thapar arrived at Delhi. It was at his

instance, that the post-mortem examination was conducted. The body of

the deceased, after the same was subjected to the post-mortem

examination, was handed over jointly to Madan Lal Kapoor (the father of

the deceased) and to Rajiv Thapar (the husband of the deceased). The

cremation of the body of Dr. Monica Thapar was carried out jointly by the

two families. A high level Medical Board, constituted for conducting the

post-mortem examination, in unequivocal terms returned a finding, that

“cardiac decompensation due to enlarged atrial septal defect & pulmonary

hypertension” was the cause of Dr. Monica Thapar’s death. It would be

pertinent to notice, that samples from the stomach, intestine, liver, spleen,

kidney and blood of the deceased’s body were taken for forensic

examination in order to verify the allegation of poisoning levelled by Madan

Lal Kapoor. The Central Forensic Science Laboratory, New Delhi, in its

report dated 9.2.1993 negatived the aforesaid allegation by concluding,

that the samples did not indicate the presence of any common poisoning

substance. Relying on the inquest report dated 6.7.1993, rendered by the

SDM, Delhi, it was sought to be asserted, that echo-cardiography

conducted at the Urmil Heart and Lung Centre, Surat, disclosed the

presence of a large hole in Dr. Monica Thapar’s heart. Even according to

the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had suffered a

Page 25 25

massive heart attack, and had died at the said hospital on 26.9.1992. It

was the submission of the learned counsel for the appellants, that the

aforesaid material is evidence of sterling quality which was sufficient to

demonstrate, that there was not the remotest possibility, that the trial

against the appellants would lead to their conviction.

25.The evidence, relied upon by the appellant has not been contested

or refuted by Madan Lal Kapoor (the respondent-complainant), even

though he was aware of the same when he filed the complaint. During the

course of the proceeding before the committing Magistrate, and even

before Sessions Court and the High Court, the appellants had placed

emphatic reliance on the material referred to above. The same remained

unrefuted in the pleadings filed on behalf of Madan Lal Kapoor. During the

course of hearing at the stages referred to above, the veracity of the

documents/material referred to above was not contested. The aforesaid

position has subsisted even before this Court. It was accordingly

submitted on behalf of the appellants, that even if trial is allowed to

proceed against the appellants, at the culmination thereof, it would be

impossible to return a finding of guilt against any of the accused.

26.According to the learned counsel for the appellants, the material in

the nature of the post-mortem report, the Central Forensic Science

Laboratory’s report, as also the inquest report, would be sufficient to

exculpate the appellants from the allegations and accusations levelled in

the complaint.

27.We are one with the aforesaid submission. From the

documents/material relied upon by the appellants, for exactly the same

Page 26 26

reasons as have been projected on behalf of the appellants, we are

satisfied to conclude, that the death of Dr. Monica Thapar was not caused

by poisoning. Merely because her body had turned blue, when it arrived at

Delhi, in our view, is not a sufficient basis to infer that she had been

poisoned to death. In fact material relied upon by the appellants is

sufficient to condemn the factual basis of the accusation as false.

28.It also needs to be noticed, that Madan Lal Kapoor (the respondent-

complainant) took a summersault before the Additional Sessions Judge,

Delhi by alleging, that Dr. Monica Thapar had been strangulated by the

appellants, (even though the assertion in the complaint was, that she had

been poisoned to death). To determine the veracity of the allegation of

strangulation, as the cause of her death, the Additional Sessions Judge,

Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital,

New Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B.

Pant Hospital, New Delhi (members of the Medical Board which had

conducted the post-mortem examination) to clarify the altered accusation

levelled by Madan Lal Kapoor. The aforesaid doctors, as is apparent from

the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi,

opined in the negative. They affirmed, that the death of Dr. Monica Thapar

had not been caused by strangulation. We are therefore satisfied to affirm,

that the death of Dr. Monica Thapar has not been shown to have been

caused by strangulation. On an overall examination of the matter, we have

no other option, specially in the absence of any submission to the contrary,

but to conclude, that the material relied upon by the appellants would lead

Page 27 27

to the indubitable conclusion, that Dr. Monica Thapar had not died on

account of having been strangulated.

29.We shall now advert to the allegation made in the complaint by

Madan Lal Kapoor, that there was non-cordiality of relations between the

deceased Dr. Monica Thapar, and her in-laws. Telephone bills

demonstrate, that phone calls were regularly made from the residence of

Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica

Thapar. The family of the husband of Dr. Monica Thapar was in consistent

and regular contact with the other family members also. This relationship

is shown to have been subsisting even at the time of the illness of Dr.

Monica Thapar which proved to be fatal. Of utmost importance is a letter

written by Rajiv Kapoor (the brother of the deceased, and the son of

Madan Lal Kapoor, the respondent-complainant). In a letter dated

22.9.1992, just four days before the death of Dr. Monica Thapar (on

26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv

Thapar residing at Delhi. His letter to his sister describes her in-laws in

Delhi, as “very affectionate and very caring”. The telephone bills, as also

the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are

materials of sterling quality. Neither of the said materials has been

controverted, either on veracity or on truthfulness. All this, in our opinion,

would undoubtedly and inevitably result in concluding, that the relationship

between the two families was cordial and affectionate. Clearly contrary to

what has been alleged in the complaint.

30.Even though the statement of Dr. Pritu Dhalaria has been relied

upon by the SDM, Delhi in the inquest report, which completely knocks out

Page 28 28

all the pleas advanced by Madan Lal Kapoor (the respondent-

complainant), we are of the view, that it would be improper to make any

reference thereto in deciding the present controversy. Reliance on the

statement of Dr. Pritu Dhalaria would be permissible only after the same is

recorded by a court on oath, whereupon, he has to be subjected to cross-

examination. Only then, his statement would acquire credibility for

reliance. Any fact situation based on the oral testimony, by one or the

other party, cannot be the basis of a determination, akin to the one in

hand.

31.We are persuaded to conclude from the facts and circumstances of

the case exhaustively discussed in the foregoing paragraphs, that all the

steps delineated in the paragraph 23 above, can be answered in the

affirmative, on the basis of the material relied by the accused, more

particularly, the post-mortem examination report dated 28.9.1992

conducted by a Medical Board comprising of four doctors, whose integrity

has not been questioned by the respondent-complainant; the chemical

analysis findings contained in the Central Forensic Science Laboratory’s

report dated 9.2.1993 which has not been disputed by the respondent-

complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings

whereof have been painstakingly recorded by involving the respondent-

complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated

22.9.1992 addressed to Dr. Monica Thapar just four days before her death,

the contents and authenticity whereof are not subject matter of challenge

at the hands of the respondent-complainant; and finally, the telephone bills

produced by the appellants-accused substantiating consistent and regular

Page 29 29

contact between the rival families, which have not been questioned. We,

therefore, have no hesitation in concluding, that the judicial conscience of

the High Court ought to have persuaded it, on the basis of the material

examined by it, to quash the criminal proceedings initiated against the

appellants-accused. We, therefore, hereby quash the aforesaid

proceedings.

32.Despite the conclusion recorded hereinabove, we are of the view,

that in the facts and circumstances of this case, there should have been no

difficulty whatsoever for the High Court to have exercised its judicial

conscience for invoking the power vested in it under Section 482 of the

Cr.P.C. From the narration of the facts recorded above, it emerges, that

even though the respondent-complainant Madan Lal Kapoor, in his

complaint dated 6.7.1993, adopted a clear and categoric stance, that his

daughter Dr. Monica Thapar had been poisoned to death, before the

Additional Sessions Judge, Delhi, the respondent-complainant ventured to

suggest, that the appellants-accused had strangulated her. The Additional

Sessions Judge, Delhi, summoned two of the doctors who were members

of the Medical Board which had conducted the post-mortem examination,

and sought clarifications from them. He also recorded the statement of

one of the said doctors. The Additional Sessions Judge, thereupon, ruled

out the plea of strangulation. When the respondent-complainant himself

was uncertain about the manner in which his daughter had allegedly died,

the High Court should have viewed the matter keeping in mind the

likelihood of the hurt caused to a father who had lost his daughter within

one year of her marriage. The matter needed to have been evaluated, on

Page 30 30

the basis of one of the parameters laid down in State of Haryana & Ors.

Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the

criminal proceedings initiated by Madan Lal Kapoor (the respondent-

complainant) were actuated by malice and ulterior motive for wreaking

vengeance on the accused with a view to spite him due to some

private/personal grudge. There is yet another reason emerging from the

facts of the case which needed to be kept in mind. Madan Lal Kapoor (the

respondent-complainant) had continued to represent before the SDM,

Delhi, that he would produce the mother of the deceased, who knew the

facts best of all. Despite that, the mother of the deceased did not appear

in the inquest proceedings to record her statement, even though a number

of opportunities were afforded to the respondent-complainant to produce

her. The permissible inference is that he was himself not privy to the facts.

The fact that the mother of the deceased had not appeared to record a

statement against the appellants-accused has to have some

reason/justification. Would a mother who believes that her daughter had

been poisoned/strangulated, restrain herself from recording her statement,

despite the persuasion of her husband? Probably not. The instant factual

position has been recorded hereinabove, not for the sake of determination

of the present controversy. In a factual situation not as clear as the one in

hand, facts such as these, could be taken into consideration by a High

Court for recording its satisfaction, on the parameters formulated above.

33.For the reasons recorded hereinabove, criminal proceedings against

the appellants-accused are hereby set aside. The order of the High Court

is accordingly also set aside, but on grounds different from those taken into

Page 31 31

consideration by the High Court. The instant appeal, accordingly

succeeds.

…………………………… .J.

(D.K. Jain)

…………………………….J.

(Jagdish Singh Khehar)

New Delhi;

January 23, 2013.