Mechanical Addition Of S. 302 IPC Unsustainable: All HC

It is definitely to say the least in literal words most refreshing, most rejuvenating and obviously so also most reassuring to note that the Allahabad High Court while leading from the front in a most learned, laudable, landmark, logical and latest judgment titled Rammilan Bunkar vs State of UP and connected appeals in Criminal Appeal No. – 1667 of 2021, 5193 of 2023, 5671 of 2023, 5071 of 2018 and 5069 of 2018 and cited in 2024 Live Law (AB) 413 and so also cited in Neutral Citation No. – 2024:AHC:104978-DB that was finally pronounced on May 30, 2024 while departing from the traditional route and taking strong exception to the most condemnable routine and so also as we see mechanical addition of Section 302 of IPC (murder) by the Trial Court Judges in the State to the cases that already involved dowry death and so also that involved dowry related inhuman treatment without any kind of definite supporting material to substantiate it. It must be noted here that a Division Bench of Hon’ble Mr Justice Rahul Chaturvedi and Hon’ble Mr Justice Mohd Azhar Husain Idrisi minced just no words to observe plainly that the mechanical addition of a murder charge (Section 302 IPC) to the cases involving dowry death and dowry-related inhuman treatment was making the situation “more grim and serious”. No doubt, this definitely cannot be just glossed over and definitely requires a prompt and effective check!

To put it plainly, we must note that the Division Bench held most unequivocally in this leading case that, “Charges are framed relying upon the nature of evidence collected during investigation and not only in air or whimsical way. In fact, our lower courts are under the commands or in some mistaken notion of law, they keep on adding Section 302 IPC as an alternate charge without any cogent material to justify the same, which would bound to lead a disastrous result qua the accused-appellant.” Given this, the Allahabad High Court strictly directed that all the cases be remitted back to the concerned Sessions Courts for re-trial after recasting the “charges” framed against the accused-appellants strictly following the ratio laid down in the cases of Jasvinder Saini case and Vijay Pal Singh and others vs State of Uttarakhand (2014) case after holding a day to day trial and conclude the same by 31st December 2024 without granting any unreasonable adjournment to either of the parties.

At the very outset, this brilliant judgment authored by Hon’ble Mr Justice Rahul Chaturvedi for a Division Bench of the Allahabad High Court comprising of himself and Hon’ble Mr Justice Mohd Azhar Husain Idrisi sets the ball in motion by first and foremost putting forth in para 2 that, “Since all the appeals suffer from same legal vice and flaw, therefore, all the appeals after being clubbed together and for the sake of brevity and convenience, are being decided by a common judgment.”

Do note, the Division Bench notes in para 3 that, “The moot legal questions to be adjudicated, in these appeals are; (i) as to whether the trial courts are justified in framing the charge u/s 498A, 304B I.P.C. & Section 3/4 of Dowry Prohibition Act with alternative charge u/s 302 I.P.C. simplicitor or 302/34 I.P.C.; (ii) as to whether the trial courts are justified while exonerating the accused-appellants from the primary charges of Sections 498A, 304B I.P.C. & Section 3/4 of Dowry Prohibition Act, but convicting them u/s 302/34 I.P.C. taking recourse of Section 106 of the Evidence Act? As above is a pure legal issue, which deserves strict judicial scrutiny by this Court about the alleged addition of Section 302 I.P.C., in addition to pre-existing sections about dowry death and dowry related inhuman treatment. This exercise is being carried out by the learned Trial Judges as a matter of routine and in a most mechanical fashion, making the entire episode more grim and serious, without having any supporting documents or allegations. Adjudicating of instant legal proposition would have far-reaching implications upon all the pending trials before concerned Sessions Courts of the State, as we are now inclined to decide the aforesaid moot point at this threshold stage. At this juncture, we may like to clarify that while deciding this bunch of Appeals, we are focusing our attention to above legal theorem only without touching the factual merit of the case. It is open for the trial court to decide entire spectrum of the cases after having proper evaluation of the evidence on its own.”

Be it noted, the Division Bench notes in para 11 that, “From the aforesaid bunch of appeals, it is evident that there is common thread that in all the appeals the case was registered u/s 498A, 404B I.P.C. & 3/4 Dowry Prohibition Act, BUT the learned Sessions Judge while framing the charge have invariably added Section 302 I.P.C. simplicitor or 302 read with Section 34 I.P.C. in all the appeals. Interesting feature of all the appeals is that the learned Sessions Judge have exonerated the appellants from the charges u/s 498A/304B I.P.C. & 3/4 D.P. Act, but at the tale of their respective judgments the learned Sessions Judges cursorily but in oddish way taking the aid of Section 106 of Evidence Act have convicted all the appellants for the offence u/s 302 I.P.C. This is the LCM of all the appeals.”

While tracing the root for the growing trend of adding Section 302 IPC mechanically in dowry death cases, the Division Bench lays bare in para 12 stating that, “After doing slight research work, it has come to our knowledge that this practice has started with a judgment pronounced by the Hon’ble Apex Court in the case of Rajbir alias Raju and another vs. State of Haryana, (2010) 15 SCC 116, whereby the Hon’ble Apex Court, while relying upon its own judgments in the cases of Satya Narayan Tiwari vs. State of U.P., 2010 (13) SCC 689 and Sukhdev Singh vs. State of Punjab, 2010 (13) SCC 656, pleased to pass the following directions to all the trial courts:

“7. We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304-B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to the Registrars General/Registrars of all High Courts, who will circulate it to all trial courts.””

It is worth noting and worth adhering that the Division Bench minces just no words to note in para 13 that, “We have an occasion to peruse the judgment of Rajbir @ Raju (supra) running into only seven paragraphs. No doubt that now-a-days the crime against women is quite rampant and the Hon’ble Judges of the Supreme Court have shown their concern about increasing graph of crime against women, but it seems that, it was a more of an emotional cry by the Apex Court to frame alternatively charge an accused u/s 302 I.P.C. so that the offender may be hanged or death sentence could be imposed upon such an offender, unconcern by the fact that there is no evidence even for the namesake to attract the essential ingredients of Section 302 I.P.C. which would justify the learned Trial Judge to frame an alternative charge u/s 302 I.P.C. Ignoring this vital legal fallacy, in order to obey the commands of the Hon’ble Supreme Court, a circular was issued pursuant to the aforesaid judgment, which is being scrupulously followed by the different trial courts in India since 2010 itself. However, this proposition of law was later on explained by the Hon’ble Apex Court while pronouncing yet another judgment in Jasvinder Saini and others vs. State (Government of NCT of Delhi), (2013) 7 SCC 256. In this judgment while assessing the scope and ambit of Section 216 of Cr.P.C., it was held that, the courts have an unrestricted power to add or alter any charge whenever courts find that erroneous/defective charges have been framed which lately requires an addition or its dropping. Under Section 216 Cr.P.C. the scope and ambit of existing charges become necessary after commencement of the trial, but such change or alteration should be made before the pronouncement of the judgment. In addition to this, if any alteration or addition is being made by the learned Trial Judge, it must primarily satisfy that there are sufficient material on record to justify the said addition or alteration of charge.”

Most forthrightly, the Division Bench propounds in para 49 that, “Evaluating and assessing the present controversy in its entirety where the respective trial courts supposedly have framed the charge under the dictate and command of Hon’ble Apex Court’s judgment in the case of Rajbir alias Raju and another vs. State of Haryana, (2010) 15 SCC 116, whereby the Hon’ble Apex Court has circulated the judgment to all the courts throughout the country. As mentioned earlier, in the small judgment running in only seven paragraphs there is no reasoning for giving a direction, but it seems that it was an emotional cry which was later on clarified by yet another judgment of Hon’ble Apex Court in Jasvinder Saini’s case (supra), but the learned Trial Judges in State of U.P. keep on fastening the alternative charge by way of adding Section 302 I.P.C., unmindful of the fact that whether sufficient material was collected during investigation or not for prima facie justifying the adding of alternative charge of Section 302 I.P.C. Secondly, fastening of the provisions of Section 106 of Evidence Act indiscreetly just to condemn and convict the husband and his relatives with the aid and help of aforesaid provisions of law which is in stark contrast with the recent judgment of Hon’ble Apex Court in Balvir Singh’s case (supra).”

Most significantly, the Division Bench mandates in para 50 postulating that, “Therefore, we are of the considered opinion that these are the apt cases where retrial could be ordered as the same has occurred after serious legal flaw and irregularity on account of the misconception of nature of proceedings. Accordingly, let the record of these cases be remitted back by the Registry of this Court within next 15 days to the concerned Sessions Courts for re-trial after recasting the “charges” framed against the accused-appellants strictly in accordance with the ratio laid down in the cases of Jasvinder Saini and others vs. State (Government of NCT of Delhi), (2013) 7 SCC 256 and (ii) Vijay Pal Singh and others vs. State of Uttarakhand, (2014) 15 SCC 163, after holding a day to day trial and conclude the same by 31st December, 2024 without granting any unreasonable adjournment to either of the parties. This Court would appreciate if the concerned learned Trial Judges would fix 2-3 days in a week to conclude the trial.”

It would be worthwhile to note that the Division Bench holds in para 51 that, “Since we are remitting the matter back for retrial, it is desirable that all the appellants, namely, Rammilan Bunkar, Prem Chandra, Meena Srivastava, Amit Srivastava @ Ashu, Shiv Kumar, Jamuna Devi and Shankar Lal shall be released on bail, who have been convicted and sentenced in aforesaid sessions trials, on their furnishing a personal bond and two heavy sureties (out of which one should be their close relative) each in the like amount to the satisfaction of the court concerned, with an undertaking to the concerned court that they would not seek any adjournment whatsoever and cooperate with the trial. The fine amount awarded by the concerned trial courts under the impugned judgments shall remain stayed subject to final decision of the case after having full-dressed re-trial of the case as ordered earlier.”

Further, the Division Bench directs in para 52 that, “Registrar (compliance) of this Court shall forthwith communicate this order to the concerned trial courts who have passed the impugned judgment and orders. The original records of the cases received from the respective sessions divisions be also returned back.”

Furthermore, the Division Bench also directs in para 53 that, “Let the copy of this Judgment be circulated to all the Sessions Divisions by the Registrar General of this Court at the earliest, so that they must frame the charge and hold the trial strictly in accordance with the ratio laid down by Hon’ble Apex Court in Jasvinder Saini and others vs. State (Government of NCT of Delhi), (2013) 7 SCC 256 and (ii) Vijay Pal Singh and others vs. State of Uttarakhand, (2014) 15 SCC 163.”

What’s more, the Division Bench then also directs in para 54 that, “In addition to above, let a copy of the judgment be placed before the Director General of Police, Lucknow by the Registrar General of this Court, so that suitable direction may be given to his subordinates, that in every case of Dowry related deaths, the I.O. of the case shall hold wide spectrum of investigation to examine and collecting the material during investigation so as to justify his report u/s 173(2) Cr.P.C. as to whether such unnatural death of the lady falls within the ambit of Section 302 I.P.C. or it is a plain and simple Dowry Death punishable u/s 304B I.P.C. or it is a case of suicide punishable u/s 306 I.P.C. where the woman died on account of any abetment by her husband or in-laws. The I.O. of the case must specify in its report u/s 173(2) Cr.P.C. about the material collected by him during wide spectrum investigation against the accused persons that the said unnatural death of the lady falls within the realm of Section 302 I.P.C. or falls within the ambit of Section 304B I.P.C. or comes within the scope of Section 306 I.P.C.”

In sum, we thus see that the Allahabad High Court has most brilliantly pointed out and brought to the fore the blatant, blind and brutal misuse of Section 302 of IPC in dowry death cases by mechanically adding it in all such cases which cannot be ever justified by even citing one Supreme Court ruling or the other as pointed out in this judgment also most commendably! It has also laid bare when Trial Courts can add murder charge in dowry death cases. Of course, there can be just no gainsaying that what all has been directed by the Allahabad High Court in this leading case must be strictly adhered to by all the Judges of the Trial Courts and the directions to whom they have been issued including DGP, Lucknow and Registrar General of Allahabad High Court as stated hereinabove must most strictly ensure that these directions are implemented properly and within the time limit as stated hereinabove!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.