Society, Law & Justice

Friday, September 11, 2026

POLICE HAS NO POWER TO INVESTIGATE AFTER FILING OF CHARGE SHEEET

Police has no power to investigate, after filing of charge sheet

The vast majority of judicial precedents has earlier endorsed authority of police to investigate further in terms of section 173(8) of Cr.PC even after filing of charge sheet. Now, the Supreme Court in a recent judgment has categorically held that the police has no such authority and shall have to take leave from the courts to do so. This is a big departure and shall be redefining the shape of criminal justice system. In the backdrop of the judgment rendered by the Supreme Court in a matter reported as PRAMOD KUMAR & ORS Vs STATE OF UTTAR PRADESH ORS 2026 INSC 120 (arising out of SLP (Criminal 350/2024) the vista of law shall be analysed in order to elucidate what the Supreme Court has dealt with in the above case. The judgment shall have far reaching consequence and therefore it deserve adequate discussion.

The sole question arose for the consideration of the Supreme Court in the appeal was as under:

Whether after submitting a final report under Section 173(2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) (also refer to Section 193(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the police/investigating agency can conduct further investigation under Section 173(8) of CrPC (also refer to Section 193(9) of BNSS) without obtaining the leave of the Magistrate/ Court concerned?

FACTUAL MATRIX

(i) That on 19.11.2013, an FIR bearing Case Crime No. 70/2013 was registered against seven accused persons including the Appellants herein by Saroj Kumar - Respondent No. 6 (hereinafter referred to as “the original complainant”) for the offence punishable under Sections 376D, 352, 504, 506 respectively of the Indian Penal Code, 1860 (for short, “IPC”) at Mahila Police Station, Sub-district Sadar, District Firozabad.

(ii) That during investigation, owing to multiple applications moved by the original complainant alleging danger to his life and his family members’ lives, the investigation was initially transferred from the Mahila Police Station to the Crime Branch, Firozabad, and subsequently to the Crime Branch, Mathura.

(iii) That after completion of the investigation, the Investigating Officer submitted the Final Report No.17/14 dated 30.05.2014 “the Closure Report”), stating that no offence was made out against the accused persons, including the Appellants herein, in light of the contradictions between the statements of the original complainant under Section 161 and 164 of the CrPC. The relevant extract of the closure report is reproduced herein under:

“On the basis of information of the informant, the aforesaid case was registered and investigation was undertaken. There is contradiction between the statements U/s. 161 and 164 Cr.P.C. of the informant. There is enmity/litigation pending between the informant and the accused persons. The statements of the informant are not supported by other evidences. Hence, the offence is not confirmed. In absence of evidences, it is impossible to file challan against the accused persons before the Court.

Hence, the case is closed by FR. Kindly approve it”

(iv) That after receiving the Closure Report, the Court of First Additional Civil Judge, (J.D.)/Judicial Magistrate, Firozabad, issued several notices to the original complainant. Despite service of notices, none appeared before the Court. No protest petition against the Closure Report was preferred. After considering the Closure Report, the same was accepted by the Court order dated 14.09.2015. It was noted that the material on record did not support the prosecution's case. The relevant extract of the order is reproduced herein under:

“The case file was presented today. Notice has been sent to the informant several times. Despite the notice has been duly served to the informant several times, he had not filed any objection/protest petition against the final report. It is clear from the case diary and police documents and evidences available in the file that the statements u/s 161 CrPC and statements u/s 164 CrPC of the informant and the person with whom the victim had gone to the bridge on a motorcycle to search for her brothers, it has been confirmed from her statements/affidavit, that neither the victim met that day nor she was taken to the bridge on a motorcycle and none of the statements of witnesses recorded by the IO have confirmed the incident. Even perusal of the medical report does not confirm any kind of external or internal injury and the statements made by the victim are also not confirmed by the medical report. Thus, according to the medical report, no clear inference can be made that the victim was raped. It is also clear from the perusal of the file that the informant had requested for the investigation of the said case, apart by the local police, shall be conducted by the Crime Branch, on which the case was investigated by the Crime Branch, Mathura. The investigation was carried out by several Investigating Officers of Crime Branch, Mathura and after the investigation, the mobile phones of the accused were matched through cell track by Mr. Narendra Singh, and the location of any of the accused persons was not found at the spot at the time of the incident, which has been recorded in the case diary by the IO and any of the witness had not confirmed the statement of the victim, on the basis of which the final report in the case No. 17/14 dated 30-5-14 has been submitted by the IO on 30.05.2014 which prima facie appears to be legal. Therefore, in compliance of Hon'ble High Court's circular no. 31/2012 Admin, G. II, Allahabad dated 11- 12-2012 and Hon'ble High Court Allahabad's criminal miscellaneous petition no. 2520/2012 Pradeep Kumar Srivastava vs. State of UP and others u/s 482/378/507 order passed in S.P. No. dated 27-7-2012 and circular letter no. of Hon’ble High Court Allahabad no. 10435 date 03.09.2014 and letter no. 420/2015 dated 17.01.2015, the final report no. 17/14 is accepted. It should be attached in the file.”

(v) That after a span of about 3 years, the original complainant filed a Criminal Revision Petition (later registered as Criminal Miscellaneous Case No. 440 of 2017) before the Court of District and Sessions Judge, Firozabad, for setting aside the aforesaid order dated 14.09.2015, wherein the Closure Report was accepted. The said case is presently pending before the Court of District and Sessions Judge, Firozabad.

(vi) That with the approval of the Director General of Police, CBCID, an Inspector of CBCID (hereinafter referred to as “IO”) was nominated for carrying out further investigation of the present case under Section 173(8) of the CrPC and pursuantly, the newly appointed IO filed an application dated 22.04.2021 before the Court of First Additional Civil Judge (J.D.)/Judicial Magistrate, Firozabad, seeking permission to conduct further investigation in the instant case under Section 173(8) of the CrPC.

(vii) Thereafter, vide communication dated 26.04.2021, the Superintendent of Police, Agra informed the Additional Superintendent of Police/Divisional Officer, Crime Branch, A.A.D., Agra, about the nomination of the IO in the present case and also directed him to make available the special report relating to the further investigation (in 10 days), the draft of the plan (in 20 days) and the monthly progress report in the prescribed formats to the headquarters on time and complete the investigation as soon as possible and send the final progress to the headquarters.

(viii) That in furtherance of the said investigation, the IO sent a notice to the accused persons, including the Appellants, for the collection of their blood samples to conduct a DNA test and their blood samples were collected. Consequently, the Appellants filed Criminal Misc. Writ Petition No. 4000 of 2022 before the High Court challenging the communication dated 06.06.2019 and order dated 26.04.2021.

(ix) That the High Court, vide order dated 23.06.2022, initially granted interim protection from arrest to the Appellants. However, in the same order, it was directed that the investigation shall continue and that the Appellants shall cooperate with the investigation.

(x) That during the pendency of the Writ Petition, the Director, Forensic Science Laboratory, State of Uttar Pradesh, submitted the DNA Test Report dated 21.09.2022 stating that the accused persons, including the Appellants, were not the biological father of the foetus of the prosecutrix.

In this backdrop, the High Court vide the impugned judgment, observed that the allegations of rape were made against several accused, and the prosecutrix also filed a protest petition against the final report submitted by the Investigating Officer. The DNA sample of the aborted foetus (resulting from the pregnancy from the alleged rape) was also preserved, and the Investigating Officer had written to the Court praying that a DNA test be carried out to ascertain who was involved, amongst the several accused, in the commission of rape. The High Court, thus, held that it found no good grounds to entertain the petition and dismissed the same.

The appellants thus approached the Supreme Court by way of the SLP.

The Supreme Court vide order dated 16.01.2024, was pleased to have issued notice and stayed the operation of the communication dated 06.06.2019 and order dated 26.04.2021, and also the investigation in the present case.

APPELLANT’S CONTENTIONS

(a) The Superintendent of Police, Agra, on recommendation of the State of Uttar Pradesh, was directed for further investigation under Section 173(8) of CrPC, without obtaining prior permission from the competent Court, even though, a closure report had already been accepted.

(b) It was submitted that once the final report is accepted, only the criminal Court has the power to order further investigation and such power cannot be exercised by the police or any executive authority. Further, the so-called “further investigation” is in fact an impermissible de-novo or fresh investigation, as it was ordered after about seven years without any new or additional material and was initiated from the very first stage, including demands for DNA samples after several years, which amounts to filling up lacunae in the prosecution case.

(c) The final report dated 30.05.2014 was filed after a thorough investigation and was accepted by the Court on 14.09.2015, after due notice to the original informant, who did not file any objection or a protest petition. It was also contended that the DNA report dated 21.09.2022 clearly concluded that the accused persons, including the Appellants, are not the biological fathers of the prosecutrix’s aborted foetus, which debunks the very genesis of the case and directly contradicts the allegations of the alleged incident. Reliance was placed on the Supreme Court judgment in Vinay Tyagi versus Irshad Ali alias Deepak and Ors. [reported in (2013) 5 SCC 762], wherein it was held that it is the part of procedure of the investigating agency to seek leave of the Court before conducting “further investigation”.

CONTENTIONS OF AAG

(a) There is no bar under Section 173(8) of CrPC against conducting further investigation. It was argued that “further investigation” is merely continuation of the earlier investigation, and there is nothing in the CrPC to suggest that the Court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of CrPC.

(b) Reliance was placed upon the judgment of the Supreme Court in Dharam Pal versus State of Haryana and Ors. [reported in (2016) 4 SCC 160], wherein the Supreme Court held that the Police Officer has unrestricted power under Section 173(8) of CrPC to conduct further investigation.

ANALYSIS & FINDINGS

According to the Supreme Court, the power of the investigating agency to order further investigation in any criminal case is derived from the aegis of Section 173(8) of CrPC (also refer to Section 193(9) BNSS), which is reproduced as follows:

“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection

(2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”

The powers of the investigating agency for further investigation are not in dispute herein. However, according to the Supreme Court, what catches attention here and which is also the crux of the controversy in the present case, is which authority can pass an order directing investigating agency to undertake further investigation under Section 173(8) of CrPC.

The issue regarding the procedure to be followed for directing further investigation in a case has been dealt by this Court in the case of Vinay Tyagi (supra), wherein the Supreme Court, while dealing with the contours of Section 173(8) of CrPC relating to further investigation, propounded that the police ought to follow the procedure of seeking permission from the Court to conduct “further investigation” and file a supplementary chargesheet. The relevant paragraphs from the judgment are reproduced as under:

“40. Having analysed the provisions of the Code and the various judgments as afore indicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:

40.1. The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.

40.2. A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code.

40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case by a three-Judge Bench and thus in conformity with the doctrine of precedent.

40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173 (8) itself. In fact, such power would have to be read into the language of Section 173(8).

40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.

40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue “further investigation” and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case……”

In this very judgment, the Supreme Court, while noting that, although, there is no explicit mandate under Section 173(8) of CrPC to seek leave of the Court before conducting further investigation, nevertheless, over the time, a practice has been developed to seek permission of the Court. Therefore, the practice of seeking the leave of the Court will have to be read into the provisions of Section 173(8) of CrPC, and it is essentially a prerequisite for directing further investigation. The Supreme Court therein held as follows:

“49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.

50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as afore noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused”

The proposition of the law laid down in the case of Vinay Tyagi (supra) has been further affirmed by the three Judge Bench of the Supreme Court in the case of Vinubhai Haribhai Malviya and Others versus State of Gujarat and Another reported in (2019) 17 SCC 1. The Supreme Court, has also dealt with a similar situation in the case of Peethambaran versus State Of Kerala & Another reported in (2024) 16 SCC 65, wherein the District Police Chief, i.e., Superintendent of Police, ordered further investigation. The Supreme Court therein, while quashing the order passed by the District Police Chief, held that the power to order further investigation rests either with the Magistrate concerned or a higher court, and not with the investigating agency. The relevant paragraphs from the judgment are reproduced as follows:

“19. The Chief Police Officer of a district is the Superintendent of Police who is an officer of the Indian Police Service. Needless to state, an order from the District Police Chief is not the same as an order issued by the Magistrate concerned. Referring to Vinay Tyagi, this Court in Devendra Nath Singh v. State of Bihar noted that there is no specific requirement to seek leave of the court for further investigation or to file a supplementary report but the investigating agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with.

20. In the facts at hand, it is clear that such a permission was never taken, granted or ordered. Consequently, FR-II is without basis. In FR-I it has been stated that in the absence of any documents in respect of the financial transactions, the instant case may be treated as a false case. This, then would necessarily imply that after due investigation conducted by a duly authorised person, the conclusion is that the ingredients of the section mentioned in the FIR have not been met and no case is made out.

Thus, the above discussion makes clear that the District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the Magistrate concerned or with a higher court and not with an investigating agency.”

It was thus held in:

33. In light of the legal position as settled by this Court through the above judgments, it is safe to say that the power to direct further investigation in a case rests solely at the discretion of the Magistrate/Court concerned. In the event, the police/ investigating agency is of the opinion that further investigation is necessary in any particular case to cull out complete facts and truth in the case, it is binding upon them to file an appropriate application before the Magistrate/Court, without directing an order for further investigation by themselves. Once such an application is filed by the investigating agency, the Magistrate/Court would apply its judicial mind, in light of the facts and circumstances of the particular case and the reasons demonstrated by the investigating agency, in order to exercise its discretion for exercise of its power to decide whether or not further investigation is to be ordered under the purview of Section 173(8) of CrPC”.

In PRAMOD KUMAR (Supra), the Under Secretary to the State of Uttar Pradesh, vide its letter dated 06.06.2019, directed that the investigation in the matter would be conducted by the CBCID. The Under Secretary also recommended that further investigation under Section 173(8) of CrPC be conducted through its letter addressed to the NHRC dated 12.02.2021. Consequently, the Investigating Officer of the CBCID wrote a letter dated 22.04.2021 to the Judicial Magistrate, Firozabad, requesting to grant permission to conduct further investigation under Section 173(8) of CrPC and provide a copy of the case diary. However, the Court did not pass any order to the extent of requisitioning the Investigating Officer to conduct further investigation.

Further, vide letter dated 26.04.2021, the Superintendent of Police informed the Additional Superintendent of Police/Divisional Officer, Crime Branch, A.A.D., Agra, about the nomination of the IO in the present case and directed him to complete the investigation expeditiously, submit monthly progress reports, and forward the final report upon completion of the investigation.

Thus, it is amply clear that the Superintendent of Police acted in complete defiance of the procedure laid down under the law while passing orders directing further investigation without seeking leave of the Court. It is an unbecoming conduct from the officer of such a rank to exercise unfettered powers, in excess of its jurisdiction, thereby undermining the authority vested in the Court of law.

The reliance of Supreme Court judgment in Dharam Pal (supra) to suggest that the investigating agency has unrestricted powers to conduct further investigation and is only required to inform the Court about the same is misplaced as the facts of the said case are completely in contrast with the present one. In Dharam Pal (supra), the Supreme Court was dealing with a situation wherein the complainant sought transfer of the investigation to the CBI, alleging several lapses in the investigation. The High Court declined such a transfer, noting that the trial had already commenced and several witnesses had been examined. This Court, therein, while setting aside the judgment of the High Court, transferred the investigation (de novo) to the CBI and held that while the constitutional courts can direct fresh/de novo/reinvestigation. Additionally, in Dharam Pal (supra), the Supreme Court, while referring to Vinay Tyagi (supra), has held that the Magistrate is empowered to direct “further investigation” as per its discretion based upon the facts and circumstances of the case.

Therefore, in Pramod Kumar (Supra) the impugned judgment dated 20.11.2023 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal Misc. Writ Petition No. 4000 of 2022 is set aside. In addition to that, the communication dated 06.06.2019 and order dated 26.04.2021 passed by the Respondent No. 1 and Respondent No. 4, respectively, directing further investigation, were also quashed and set aside.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

Wednesday, September 9, 2026

PARTIAL QUASHING OF F.I.R BASED ON SETTLEMENT : PERMISSIBILITY ?

PARTIAL QUASHING OF F.I.R based on settlement: permissibility ?

In apt cases, even F.I.R u/s 307 of IPC could be quashed.

The quashing of F.I.R based on settlement are the most common mode of seeking its quashing, particularly, in respect of matrimonial cases and / or also in commercial transactions and money disputes having a predominantly civil profile. Whether all the F.I.R, based on settlement, could be quashed has no longer been a res integra. The high court u/s 482 of Cr.PC (Now, under section 528 of Bhartiya Nyaya Suraksha Sanhita (BNSS) 2023) is empowered to quash F.I.R and/or proceeding in order to secure the ends of justice, even qua non compoundable offences. However, it is now settled that F.I.R relating to heinous crimes such as attempt to murder, rape, dacoity etc cannot be quashed, even after settlement between the parties.

The burning issues hovering over the years, though, has been, as regards the permissibility of partial quashing of F.I.R against some accused only or in respect of some of the offences only. Whether, partial quashing against an accused is permitted or not, based on the settlement, while continuing with proceedings against other accused? There are conflicting views in this regard and whereas, several high courts has held that partial quashing of F.I.R could be permitted, still, some other high courts has held that it cannot be permitted. The matter is now pending before the hon’ble Supreme Court for a final view in this regard. Gainfully, though, the Supreme Court in the past and the high courts in apt cases have allowed partial quashing of F.I.R based on settlement. In fact, even F.I.R u/s 307 of IPC has been quashed, though, that is a rarity. Some of the judicial precedents shall be worthy of reference:

1. Anil Bhimrao Sapate & Ors The State of Maharashtra & Ors Crl Writ Petition No. 4530/2-0025

2. State of Madhya Pradesh Vs. Kalyan Singh & Ors. In Criminal Appeal No. 14 of 2019 [arising out of SLP (Crl.) No. 5632 of 2014], dated 4th January 2019,

3. Naushey Ali and Ors. Vs. State of Uttar Pradesh & Anr. (2025) 4 SCC 78,

4. Gian Singh vs. State of Punjab, (2012) 10 SCC 303,

5. Narinder Singh and Ors. Vs. State of Punjab and Anr. (2014) 6 SCC 466.

In Anil Bhimrao Sapate & Ors The State of Maharashtra & Ors Crl Writ Petition No. 4530/2-0025, The High Court of Bombay (Circuit Bench, Kolhapur) had occasion to deal with the aspect and for the offence punishable under Section 307 of the IPC, which is serious in nature. It was contended by the prosecution that the quashing of such a serious offence cannot be permitted. Reliance was placed on the decision of the Hon’ble Supreme Court in State of Madhya Pradesh Vs. Kalyan Singh & Ors in Criminal Appeal No. 14 of 2019 [arising out of SLP (Crl.) No. 5632 of 2014]. The accused therein were facing criminal proceedings for the offence punishable under Section 307 r/w Section 34 of the IPC. It was then held that offences under these sections are not compoundable offences, and looking at the serious allegations against the accused, the proceedings were not quashed. To buttress the contentions further, it was stated that, merely, because the parties have settled their dispute, the criminal proceedings cannot be quashed as the nature of the offence is serious.

In Anil Bhimrao Sapate (Supra) it is held that :

11. We are conscious of the fact that powers under Section 482 of the Cr. P.C corresponding to Section 528 of the BNSS are to be exercised very sparingly. Formation of opinion by this Court, before it exercises inherent powers under Section 482 of the Cr.P.C. on either of the twin objectives, (i) to prevent abuse of the process of any Court, or (ii) to secure the ends of justice, is a sine qua non.

The principles laid down in Gian Singh Vs. State of Punjab (2012) 10 SCC 303 have been reiterated in Narinder Singh & Ors. (Supra).

12. In the present case, we find that the village elders intervened in the matter and parties have not only buried the dispute but have also decided to live peacefully. In view of the compromise, there is minimal chance of witnesses coming forward in support of the prosecution case. It would become difficult to prove as to who caused injuries and hence, chances of conviction appears to be less. Further, the parties are related to each other and as submitted by learned counsel, the boundary dispute has now been resolved with the parties maintaining cordial relations with each other. Also, considering the medical certificate on record, the allegations and the nature of injuries, it is doubtful whether this is a case which would satisfy the ingredients of Section 307 of the IPC.

The high court therefore was pleased to hold that a case is made out to quash and set aside the criminal proceedings and that the petition deserves to be allowed and is accordingly allowed subject to payment of costs of Rs.50,000/- by the petitioners as well as respondent nos. 2 and 3. The costs to be paid to Chairman Police Welfare Fund and to Baqr Librray.

In Narinder Singh (Supra), the Supreme Court has prescribed the guidelines:

"26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well."

The Hon’ble Supreme Court in Narinder Singh (Supra) has laid down the guidelines observing that only because FIR / Charge-sheet incorporates provisions of Section 307 of the IPC could not by itself, constitute a ground to reject the petition under Section 482 of the Cr.P.C. and refuse to accept the settlement between the parties. The quashment of the proceedings depends on the facts and circumstances of each case. In paragraph 29, Their Lordships have laid down detailed guidelines to be followed before framing a view under what circumstances this Court should accept the settlement between the parties and quash the proceedings, and when we should refrain from doing so. Paragraph 29 is important, which reads thus :-

“29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2 When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone.

The observations of Sikri, J. in Narinder Singh (supra) is worth noting:-

However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc.

Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”

The Hon’ble Supreme Court in Naushey Ali and Ors. Vs. State of Uttar Pradesh & Anr. (2025) 4 SCC 78 had significantly observed as under:

18. As would be additionally clear from a close reading of the above two paragraphs in Gian Singh vs. State of Punjab, (2012) 10 SCC 303, even though compounding and quashing are conceptually different, this Court was careful in pointing out that merely because there is a settlement, for certain categories of offences proceedings will not be quashed. This is on the premise that crimes that have harmful effect on the public and consist of wrongdoing that seriously endangers and threatens the well-being of the society cannot be quashed, only because the accused and the victim have amicably settled the matter.

19. Coming to the facts, notwithstanding the fact that the High Court has mixed up the concepts of compounding and powers of quashment, still the case needs to be considered from the point of view of Section 482.

What therefore emerges from the above dicta of the Supreme Court, is that the proceedings, should not be quashed solely on the ground that original complainant and the accused have settled their disputes, if the allegations are of serious in nature such as under Section 307 r/w Section 34 of the IPC.

In Kalyan Singh & Ors. (Supra), it was noted that looking at the serious allegations against the accused u/s 307 and 294 of IPC, the High Court committed a grave error in quashing the criminal proceedings solely on the ground that the original complainant and the accused have settled the dispute.

In Anil Bhimrao Sapate (Supra) , it was held that the facts are distinguishable.

The Medico Legal Certificate of the injured witness reveals that he has suffered simple injuries on the right shin and left shin. So far as other respondent is concerned, two of the injuries, simple in nature are on the parietal head and parieto-occipital portion. There is one injury on the left knee, the nature of which is stated to be blunt. The x-ray of the left knee reveals that there was fracture of the upper shaft tibula of left side.

PARTIAL QUASHING OF F.I.R: Permissibility

What bears emphasis is that the FIR was registered against various accused persons. The partial quashing of the FIR is permissible in accordance with Lovely Salhotra Vs State (NCT of Delhi), (2018) 12 SCC 391 it is held therein by the hon’ble Supreme Court:

"3. We have taken into account the facts of the matter in question as it appears to us that no cognizable offence is made out against the appellants herein. The High Court was wrong in holding that the FIR cannot be quashed in part and it ought to have appreciated the fact that the appellants herein cannot be allowed to suffer on the basis of the complaint filed by Respondent 2 herein only on the ground that the investigation against co-accused is still pending. It is pertinent to note that the learned Magistrate has opined that no offence is made out against Co-accused 2, 3, 4 and 6 prima facie. According to us, the FIR in question filed against the appellants herein by Respondent 2 is only an afterthought with the sole intention to pressurise the appellants not to prosecute their criminal complaint filed by them under Section 138 of the Negotiable Instruments Act, 1881”.

Accordingly, the order of High Court, declining to quash the F.I.R owing to partial quashing plea, was set aside by the hon’ble Supreme Court and F.I.R was quashed qua the appellant.

The Delhi High Court has also observed in CRL. M.C. 1741/2021, titled Sunil Tomar Vs The State of NCT of Delhi & Anr

"Partial quashing or part quashing of FIR only qua the petitioner/ accused with whom the complainant has compromised or settled the matter can be allowed and while quashing, it must be appreciated that the petitioner/accused cannot be allowed to suffer based on a complaint filed by the respondent, when subsequently, all disputes have been settled between the parties."

In TAMANNA BATRA & ANR WP ( Crl) 2247/2021 in a matter captioned as TAMANNA BATRA & ANR Vs STATE & ANR , the Delhi High Court in WP ( Crl) 2247/2021 was pleased to quash FIR No. 60/2017 dated 30.01.2017, under sections 420/467/468/471/120 B /34/174-A IPC, registered at Police Station-Begampur, New Delhi and proceedings emanating therefrom. The FIR was registered under aforesaid sections and as per the FIR, the petitioners had fraudulently obtained loans from the complainant bank by mortgaging properties which did not belong to the petitioners. However, during the pendency of the proceedings, the petitioners have settled their disputes with the complainant/respondent No.2, A compromise deed dated 11.06.2018 between the complainant and the petitioners was arrived at and placed on record. The AR of the complainant remained present in Court through video conferencing and was identified by his counsel. The petitioner was also present in the court and duly identified by the counsel.

Both the parties had stated that they have entered into the out of their own free will, volition and without any threat, force, undue influence or coercion. It is stated by respondent No.2 that he has no objection if the FIR is quashed qua the petitioners only and accordingly F.I.R was quashed, subject to the following:

“13. However, I am of the view that considerable time of the police and judicial time has been wasted as the FIR is of the year 2017 and charge- sheet has been filed. The police machinery has been put in motion on account of the acts of commission & omission on behalf of the parties and useful time of the police which could have been utilised for important matters has been misdirected towards this case. Hence, the petitioners must pay costs.

14. For the reasons stated above, FIR No. 60/2017 dated 30.01.2017, under Sections 420/467/468/471/120-B/34/ 174-A IPC, registered at Police Station-Begampur, New Delhi is hereby quashed against the petitioners only subject to payment of a cost of Rs. 10,000/- by each petitioner to the DHCLSC within a period of four weeks from today. The proof of payment of cost shall be filed in the Registry within 4 weeks and in case the same is not furnished, this file be put up before the Court”.

Yet again, the Delhi High Court in CHANDER PRAKASH & ANR Vs THE STATE & ORS CRL.M.C. 2806/2023 seeking quashing of FIR No. 0374/2021 dated 03.08.2021, under Sections 323/354/354-B/506/509/34 IPC had occasion to deal with the partial quashing of F.I.R. To put the facts in perspective, as per the FIR, it is stated that the brother of the complainant along with his friends had misbehaved and outraged the modesty of the complainant and also had a fight with her sister's to be in-laws. However, during the pendency of the proceedings, the parties have arrived at a settlement dated 21.03.2023, pursuant to which the dispute has been settled between the parties and the respondent No.3 has agreed to cooperate in quashing of the FIR. Both the parties had stated that they have entered into the aforesaid settlement out of their own free will, volition and without any threat, force, undue influence or coercion. It is stated by the complainant that she has no objection if the FIR is quashed against the petitioners.

Though one accused had absconded and was not a party to the petition. The F.I.R was quashed, taking note of the mandate of Lovely Salhotra (Supra) and Sunil Tomar (Supra), of course, while imposing costs, since the wherewithal and machinery were invoked and considerable time and resources were put in.

That the underlying object of the high court while allowing partial quashing of F.I.R based on settlement that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice and to put a quietus to the matter. No fruitful purpose shall be served, if criminal proceedings are permitted to be prosecuted any further qua the petitioners only. In apt cases, though, not as a norm F.IR u/s 307 of Cr.PC could also be quashed for securing peace and harmony, if both the parties accord their consent and if it is found plausible by the high court in the interest of justice and with a view to secure the ends of justice.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

Monday, August 31, 2026

SUPREME COURT ON UNFETTERD COPARCENARY RIGHTS OF DAUGHTERS

SUPREME COURT ON UNFETTERED COPARCENARY RIGHTS OF WOMEN

The daughter has equal rights on the ancestral property

The Hindu Succession (Amendment) Act 2005 and its applicability analysed

Prior to enactment of The Hindu Succession ( Amendment) Act 2005, a daughter had no rights in the ancestral property of the family and only limited rights were available to a daughter in terms of The Hindu Succession Act 1956. The journey of equal treatment, has now run a full circle in as much as in terms of The Hindu Succession (Amendment) Act 2005 , the daughter is treated as coparcener, like her brothers and equal rights and entitlement was bestowed on her in the estate of her father. However, the right was not unfettered, in as much if, the father of the daughter, had breathed his last, prior to the enactment of The Hindu Succession ( Amendment) Act 2005, then, such daughters could not have claimed the rights in the ancestral properties. That anomaly is set at rest by the hon’ble Supreme Court with authoritative pronouncement of judgment reported as Vineeta Sharma Vs Rakesh Sharma AIR 2020 Supreme Court 3717. The analysis of the judgment needed to be pondered over in the prelude to the judgment, shall be worthwhile.

The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property.

The 174^th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of 2005') were referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of the Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343.

In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016], the High Court held that section 6, as amended by the Act of 2005, is deemed to be there, since, 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of 'partition' used in the Explanation to amended Section 6(5).

In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of 2005 came into force, whether daughter would become a coparcener of joint Hindu family property?

In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016], the question raised is where the final decree has not been passed in a suit for partition, whether the redistribution of shares can be claimed by the daughters by amended section 6, as substituted?

In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019], the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters.

In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP [C] Nos. 176667/ 2020], the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned.

Another Division Bench of the Supreme Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. The Supreme Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition, on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener, which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 has been held to be prospective.

In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the petitioner sought partition of his father's ancestral properties, and suit was filed in 2001. The trial court granted 1/7^th share to all the parties. The same was modified. It was held that petitioner, and daughters were entitled to only 1/35^th share in the light of the decision of the Supreme Court in Prakash v. Phulavati (supra).

In Danamma (supra), the Supreme Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5^th share apiece.

Acquisition of Rights in Coparcenary Property

According to Supreme Court while dealing with Vinetta Sharma (Supra) It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. According to the Supreme Court such interpretation cannot be accepted, because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

In effect, the suits/appeals pending before different High Courts and subordinate courts were delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section. It was therefore directed that the pending matters be decided, as far as possible, within six months. In view of this judgment, the Supreme Court has overruled the contrary views expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is also partly overruled to the extent it is contrary to this decision.

The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

The decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 lays down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed:

“22. For the purpose of assigning one’s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case.

23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.”

PRELIMINARY DECREE AND FINAL DECREE: ANALYSIS

When a suit for partition is preferred in courts of law, generally, a preliminary decree is followed by a final decree. The Preliminary decree ascertains the shares of the parties in the suit and as regards modalities of partition, demarcation of properties, sale or auction of the properties, if the properties are not capable of being divided by metes and bounds. The appointment of surveyor, Local Commissioner may also have to be appointed in view of fully and finally decide the claim of partition.

To elucidate the aspect further, the Supreme Court has consistently held that a preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. The three-Judge Bench decision of the Supreme Court in Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470, it is Court stated as follows:

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree….."

As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition , that is, division by metes and bounds takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.

What is interesting is that for instance, if a suit for partition was filed in the year 2002 and during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

What emerges, therefore, is that It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. To argue that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

The discussion , if taken further shall entail that the protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.

A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

Significantly, the Supreme Court has held in Vineeta Sharma (Supra) as under:

128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

The Supreme Court had answered the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

The Hindu Succession ( Amendment) Act 2005 is thus historic and the further judgments including the one under reference ( Ref: Vineeta Sharma) has settled what was ambiguous and hitherto unsettled. The finality has emerged and in a great deal it may appear that die is cast. The ambiguity has successively been mitigated and now, probably it is settled fully and finally. The coparcenary rights of daughters are established and that too by birth as has been the norm in case of males, hence, there is no distinction between males and females as regards the rights of females. The concept recognised is “once a daughter always a daughter”. The inherent antipathy or relegation of females rights are the nuances of the past and the rights of women have now been truly and really established in inheritance.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com