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Punjab & Haryana HC: Wife has file false 498A against sister-in-law….Quashed
Criminal Misc. No.M-2116 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-2116 of 2011 (O&M)
Date of decision: 5.7.2012
Channo Devi @ Charno
……Petitioner
Versus
State of Haryana and another
…….Respondents
CORAM: HON’BLE MRS. JUSTICE SABINA
Present: Mr.H.S.Sullar, Advocate,
for the petitioners.
Mr.Gaurav Dhir, DAG, Haryana.
Mr.Sanjay Jain, Advocate,
for respondent No.2.
****
SABINA, J.
Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom.
FIR (Annexure P-1) reads as under:-
“The complainant submits as under:-1. That the complainant was married with accused no. 1 Ram Ji son Criminal Misc. No.M-2116 of 2011 (O&M) 2 of Kuldeep Singh, R/o Village Munak Distt. Karnal as per Hindu Rites and ceremonies at village Sarangpur, P.S. Sadar Ambala, Tehsil and Distt. Ambala on 15.02.2009,
2. That the father of the complainant spent on the marriage of the complainant more than his capacity. He arranged the marriage in Dulhan Farm Hissar Road Ambala city and provided good food and other facilities to the Baraties and spent Rs. 2,00,000/- on marriage party in Dulhan Farm. 3. That at the time of departure of Barat a huge dowry was entrusted to the accused nos. 1 and 2 for the purpose of giving the same to the complainant in her matrimonial house which was for the exclusive use of the complainant a separate list of the dowry article is attached along with the complaint, 4. That accused no. 1 husband and accused no. 2 the father in law of the complainant and Smt. Nahmo Devi alias Bimla accused no. 3 and Nanad Channo Devi were not satisfied with this much and they started to tease the complainant on the pretext that the complainant has not brought anything worthwhile in her marriage and started to say that her (complainant’s) father has not given a car in the marriage and instead has given a Motor Cycle. All the accused started to demand a car and the others to pressurize the complainant to meet out their illegal demand of car and they also started to give beatings to the complainant Criminal Misc. No.M-2116 of 2011 (O&M) 3 every now and then on one pretext or the other 5. That having felt disturbed mentally and harassed the complainant reported the same to her father and told that her in law i.e. husband, father, mother-in-law and Nanad were demanded a car and also told that they often beat her to compel her to met out their illegal demand. The father of the complainant on the receipt of the complainant went to village Munak alongwith members of his Biradari and he alongwith other member panchayat made their best to make the accused persons understand that he could not given anything more than what he had already give in the marriage of his daughter on this all accused persons became furious and they started to quarrel with the father of the complainant and other members of brother hood accompanying him the accused persons also declared that they would not keep the complainant in their house unless a car is not given to them. However with the accused agreed to keep the complainant in her matrimonial house and also promised that they would not demand anything again in future. 6. That time went on going and the accused persons out of lust of dowry again started to demand a car in the same manner and fashion and again started to maltreat the complainant and beat her or the other to pressurize their demand. They also started to deny her food and other Criminal Misc. No.M-2116 of 2011 (O&M) 4 basic amenities of life in her matrimonial house. The complainant continued to bear all the same with the hope that good sense would prevail on the accused persons one day or the other but the accused persons did not mend their habits and they made the complainant to and her life by committing suicide. The accused persons created such an atmosphere in the house that she felt danger to her life. The accused persons harassed the complainant to such an extent to coerced the parents of the complainant to meet the unlawful demand of the accused persons. 7. That when the parents of the complainant did not meet the unlawful demand of the accused persons all the accused persons gave beatings to the complainant on 27.06.2010 and tried to put her on fire by sprinkling on her clothes. The complainant however made hue and cry and on hearing her noise the people from the neighborhood gathered at the spot and they escaped her from the cruel clutches of the accused persons. The complainant left the house of the complainant feeling danger to her life and came to the house of her parents at village Sarangpur P.S. Sadar Ambala Tehsil and District Ambala. She told everything to her parents. Upon which the father of the complainant made an application to S.P. Karnal through the complainant stating there in everything what happened to Criminal Misc. No.M-2116 of 2011 (O&M) 5 her in her in laws house on 28.06.10. The application made to S.P. Karnal was made over to Incharge Parivar Pramarash Kendar Karnal for necessary action but the matter could not be solved and the grievances of the complainant were not redressed for the eye-wash of the complainant and her father the Incharge Parivar Pramarash Kendar Karnal got a fictitious as well as vage compromise effected where in the accused party had promised to take the complainant to her matrimonial house by 15.07.2010 but non has come to take the complainant back in her matrimonial house and she still is living with her parents at village Sarangpur P.S. Sadar Ambala Tehsil and Distt Ambala the accused no. 1 filed a petition u/s 13 of H.M. Act in the courts at Karnal against complainant. 8. That the complainant has not condoned the act of maltreatment meted out to her by the accused persons and all the accused persons are liable to be punished for the criminal acts done by them and all the accused persons are liable to be punished accordingly. 9. That all accused persons have also retained the dowry articles, Jewellery, wearing apparels and other articles entrusted to them at the time of marriage and have not returned them to the complainant and converted the same to their own use. 9. That all the accused have committed an offence punishable under section 498A/307/406/34 Criminal Misc. No.M-2116 of 2011 (O&M) 6 IPC within the cognizance of this Hon’ble Court and this Hon’ble Court has got the jurisdiction to hear the present complaint.”
Learned counsel for the petitioner has submitted that the petitioner was the married sister-in-law of the complainant. The petitioner had got married much before the marriage of the complainant with her brother and was residing in her matrimonial home. The petitioner had been falsely involved in this case as a divorce petition had been filed against the complainant by her husband. The present FIR was a counter blast to the said litigation. Learned State counsel as well as learned counsel for complainant-respondent No.2, on the other hand, have submitted that the petitioner and her co-accused had harassed the complainant on account of insufficiency and demand of dowry. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
“The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible Criminal Misc. No.M-2116 of 2011 (O&M) 7 to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint Criminal Misc. No.M-2116 of 2011 (O&M) 8 are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Criminal Misc. No.M-2116 of 2011 (O&M) 9 In Kans Raj vs. State of Punjab and others, 2000 (2) RCR (Criminal) 696 (SC), their Lordships of the Apex Court have observed that a tendency has developed for roping in all the relations in dowry cases and if it is not discouraged, it is likely to affect case of the prosecution even against the real culprits. The efforts for involving the other relations ultimately weaken the case of the prosecution even against the real accused. In the present case, the marriage of the complainant took place with Ramji Lal, brother of the petitioner, on 15.2.2009. The petitioner is married sister-in-law of the complainant and is residing in her matrimonial home at village Munak. Admittedly, the petitioner was married at the time of marriage of her brother with the complainant. It appears that the petitioner has been falsely involved in this case merely because of her relationship with the husband of the complainant. It is generally seen that in matrimonial disputes all the family members of the husband are involved in criminal litigation by the complainant party with a view to put pressure on the husband and his family members. A perusal of the FIR also reveals that there are general allegations levelled against the petitioner. The petitioner had no reason to demand a car by way of dowry as she could not have used the same being residing in her own matrimonial home. Hence, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, the petition is allowed. FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 IPC registered at Criminal Misc. No.M-2116 of 2011 (O&M) 10 Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA)
JUDGE
July 05, 2012
anita
Women are filing false 498A on Saturday to keep husband in custody on Sunday and deliberately avoiding child access to father – Calcutta HC
1
7.2012
05
r.
C.O. 2453 of 2012
Smt. Banani Acharya (Sarkar)
-vs-
Sri Bikash Sarkar
Mr. S. Mukherjee,
Mr. Susanta Kumar Pal,
……. For the petitioner.
Supplementary affidavit filed by the petitioner be kept with the record. The present application is arising out of an order passed by the learned Additional District Judge in an application for custody of a male child. The learned trial Judge directed the wife to hand over the custody of the child forthwith to the husband and the husband was also directed to produce the child before the Court on first and third Saturday of each month from 11.00 A.M. to 12.30 P.M. when the wife was directed to visit the minor child during such period.
The wife being aggrieved by the said order filed this revisional application. The child is only about 4 years old and has become the pawn in the hands of the parents. In the tug-of-war the helpless child is in quandary with whom he 2
should spend his childhood and his innocent eyes show that he requires both the parents.
The custody proceeding commenced with the filing of the application by the wife under Section 38 of the Special Marriage Act, 1954 on 11th January, 2012 in which the wife prayed for a direction upon the husband to return the minor child and give custody to the wife. Initially, on 9th April, 2012, the learned Civil Judge directed the husband to send the child on each Friday in the afternoon to the house of the wife/petitioner and the petitioner was directed to return the child to the custody of the husband on Sunday evening on each week and such arrangement was to continue until further orders.
The wife in the said proceeding, thereafter, filed an application for modification of the order upon proof of change of circumstances. The change of circumstances alleged in the said petition was that since the passing of the order dated 9th April, 2012, the husband on his own whims violated and disrespected the order dated 9th April, 2012 and never sent the said minor male child to the house of the petitioner with the dishonest intention to torture the petitioner mentally and thus committed offences which are punishable under the Contempt of Courts Act, 1971. On 16th May, 2012, the petitioner got information from one of her well-wisher that on 10th May, 2012 a street dog bite her minor child and the said child was in acute distress. 3
Following receipt of such information, the petitioner on 16th May, 2012 visited the matrimonial home when she found that the said child was lying in an unconscious condition with high fever and with the help of the well-wishers and inhabitants of the locality, she rescued her minor son and, thereafter, arranged for necessary medical treatment. Gradually, the son recovered and the said male child is under the supervision of the medical practitioner who alleged to have suggested in his prescription dated 20th June, 2012 that the child requires bed rest for seven days. The wife relied upon the Photostat copy of the patient cards issued by the Department of Health & Family Welfare, Govt. of West Bengal in the name of the minor child between 10th May, 2012 and 20th June, 2012 regarding treatment. On 10th June, 2012 at about 6.00 p.m., the respondent husband along with some miscreants alleged to have trespassed into the house of the petitioner and demanded dowry of Rs.1,00,000/- and threatened the petitioner with dire consequences, in the event, such amount is not paid by the petitioner. It was alleged that the said petitioner along with miscreants forcibly wanted to take away the child who was under treatment but due to the resistance of the petitioner and inhabitants of the locality they could not succeed and left the place with the threat of repeating such offensive acts in future. Subsequently, on 19th June, 2012 similar attempts were made but they were not successful. In short, the custody of the child to the father was sought to be resisted, inter alia, on the following grounds:-
i. The opposite party/husband has criminal records;
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ii. She is well placed in life so as to take care of the minor. iii. The family environment would be conducive of a balanced up bringing of the minor.
iv. The minor is likely to receive adequate education, medical treatment and cultural training having regard to his socio-economic position in society.
v. The minor is expected to have a reasonably good start in life at the end of his minority.
It was on the aforesaid basis the wife claimed permanent custody of the child. The said matter was contested by the husband. It appears that the husband contended before the trial Judge that in terms of the direction for custody passed on 9th April, 2012, the child was handed over to the mother but the mother refused to hand over the child after 2nd June, 2012 and since 2nd June, 2012 the minor is in the custody of the petitioner/wife. The wife also did not permit the husband to see and take back the minor child to his place in terms of order dated 9th April, 2012. It was also submitted that the said child is studying in a school which is adjacent to the house of the husband and the school would reopen after summer vacation and soon after the reopening of the school on 26th June, 2012, the examination would start. In view thereof, it is important that the child should be handed over to the father. It appears that both the parties have lodged general diary with the respective Police Station alleging violation of the order passed by the trial Judge. The respondent/husband also appears to have filed a petition on 2nd June, 2012 5
praying for a direction upon the wife to hand over the custody of the child. On careful consideration of the record, the trial Judge before arriving at the conclusion observed that the custody of the minor was with the father and for which the mother prayed for custody of the child by filing the said petition along with a prayer for divorce and after hearing the parties, initially, an order was passed on 9th April, 2012 by way of an interim arrangement. On the basis of the materials on record the learned Civil Judge arrived at a finding that the wife claimed to have taken custody of the child only on 16th May, 2012 after getting the information that the child was suffering from fever and lying in distress condition. The medical examination record shows that the child was treated in the Naihati State General Hospital on 10th May, 2012 and 15th May, 2012 and on 4th June, 2012 was fixed for further medical examination. Accordingly, it cannot be said that the child was not treated by the father. In fact, when the child was sick he was under the custody of the father and the child was treated on 10th May, 2012 and 15th May, 2012 at the Naihati State General Hospital. The child was further treated on 8th June, 2012, 11th June, 2012 and 20th June, 2012 respectively when the child was under the custody of the mother. The mother did not complain that the child was not handed over to her till 16th May, 2012 alleging refusal by father to hand over the child and even no application alleging violation of the order dated 9th April, 2012 was moved on 30th May, 2012 when the suit was fixed for hearing. On 9th June, 2012 during the hearing of the matter, the learned Civil Judge passed an order in which an 6
observation was made by the Court that the male child used to reside with his father and after enquiring from the child by the Court it was found that the child was not willing to go with his mother. The Court also recorded the difficulties being created by the petitioner in effecting service on her of the petitions filed by the husband. The learned Civil Judge, on the basis of the earlier recordings and materials on record considered the interim custody of the child keeping in mind that the welfare of the child should be the paramount consideration. It is very unfortunate that a child only of 4 years had to suffer such mental trauma only because of the fights between his parents. In allowing the said application for interim custody in favour of the father, the proximity of the school, the reluctance of the child to go along with his mother, the immediate treatment of the child by the father during his stay with his father and refusal of mother to hand over the child to the father in compliance of the order dated April 9, 2012 were taken into consideration and, accordingly, the wife was directed to hand over the custody of the child forthwith to the husband with certain visitation rights and, accordingly, the trial Judge fixed on 7th July,2012 for production of the child. Thereafter what happens really shocks the judicial conscience and brings out certain disturbing features as to how the orders of the Civil Court have been attempted to be nullified or rendered otiose. Such facts are revealed from a supplementary affidavit affirmed by the wife on 17th July, 2012 after the petitioner was successful in persuading one of the learned single Judges to release the matter on grounds which are admonishable, to put it mildly. In fact, it appears that the present petition was initially heard by Justice Prasenjit Mandal. After some 7
extensive hearing it was submitted on behalf of the petitioner that the petitioner had lost confidence in the Court and in view of such submission, the matter was released by His Lordship. It is extremely unfortunate that such submission was made before His Lordship without disclosing the reason for losing confidence of the Court.
In the supplementary affidavit, the wife stated that on 22nd June, 2012 the wife lodged a complaint against the husband in the Barasat Police Station for committing offences under Sections 498A/406/448/506/120B of the Indian Penal Code, 1860 which was registered as Barasat P.S. Case No.1292 dated 22nd June, 2012 which resulted in an arrest of the opposite party/husband on 14th July, 2012 from the residence of the opposite party and it is contended that on production of the husband on 15th July, 2012, the learned Chief Judicial Magistrate at Barasat rejected his bail application and remanded him to jail custody till 27th July, 2012. It is significant to mention that on 13th July, 2012 the learned Advocate for the petitioner was successful in releasing the matter from the learned single Judge and on the very next date the husband was arrested by the police. In the application before the Civil Court, the wife alleged that she was driven out of the matrimonial home on 25th March, 2008 and in July, 2010 the husband on the pretext of keeping the son with whom for a day or two took the son from her custody but did not return which had resulted in an application filed under Section 38 of the Special Marriage Act, 1954 in which an order was passed on 9th April, 2012.
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It is a fact that the wife did not return the child nor produce the child on 7th July, 2012 as directed by the impugned order. In order to render the order passed by the Civil Judge on 4th July, 2012 ineffective and inimplementable recourse was taken to such proceedings with an ulterior motive. The police arrested the husband on the basis of an application filed on June 22, 2012 under Section 156(3) of the Code of Criminal Procedure, 1973. The basis of the said petition is a general diary lodged on June 16, 2012. The police arrested the husband on 14th July, 2012 and produced him on 15th July, 2012. The said production resulted in a routine order of remand being passed by the learned Chief Judicial Magistrate at Barasat, North 24-Parganas on 15th July, 2012. This Court in great anxiety observed that in most of such cases police arrests the so- called accused on the basis of such complaints mostly on Saturdays so that they are produced on Sundays before a Court which are practically non-functional resulting in routine orders of remand. This a clear infringement of fundamental rights of a citizen and it shakes the basic fabric of administration of justice. The police have an important role to play. It is unfortunate that in many cases such arrests are made on the basis of false complaint and usually such arrests are made on Saturday in order to ensure custody on Sunday since routine orders of remand are ordinarily passed at times even without requiring the police to produce the case dairy. In most of the cases, case diaries are not produced and the Investigating Officer is let off without any stricture or punitive orders. If a case is registered on 22nd June, 2012 this Court is unable to appreciate as to 9
why the said husband/opposite party was arrested on 14th July, 2012. The reasons are obvious. It calls for an investigation. The wife did not disclose the proceeding initiated under Section 156(3) of the Criminal Procedure Code. before the Civil Court. However, since the Chief Judicial Magistrate is in seisin over the matter it is expected that he should conduct a proper enquiry into the matter and must be very cautious in future in dealing with such matters arising out of matrimonial disputes especially when it involves custody matters since it has become the regular feature that matrimonial disputes are initiated in Criminal Courts by taking recourse to proceedings under Section 498A of the Indian Penal Code, 1860. The Courts are required to be extremely cautious and circumspect in passing an order in an application filed under Section 156(3) Criminal Procedure Code and in dealing with bail application. The advice given to the wife to initiate such proceeding in order to frustrate the order of Civil Court would be disastrous for the wife once the Court comes to a finding that such proceedings are mala fide, vexatious and an abuse of the process of law and such advisor cannot escape his or her liability and responsibility. Such irresponsible and improper acts are deprecated.
The date of filing of the petition under Section 156(3) Criminal Procedure Code the date of arrest of the husband and the subsequent order of remand give a clear impression that such process was initiated with an ulterior motive to render the order of the Civil Judge ineffective.
10
The learned Counsel on behalf of the petitioner refers to two decisions reported in AIR 1992 Madras 272 (Mrs. Umamaheswari v. V.Sekar) and AIR 1990 SC 1156 (Manju Tiwari v. Rajendra Tiwari) for the proposition that the mother should be given the custody of a child less than 5 years of age with liberty to the father to visit the father during the weekends.
In determining the question relating to the custody of a child, the paramount consideration should be the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts.
In Ashish Ranjan v. Anupma Tandon & Ors. reported in 2010 (14) SCC 274 after considering the earlier decisions on this point the Hon’ble Supreme Court held:-
“18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as 11
well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.”
In Mohan Kumar Rayana V. Komal Mohan Rayana reported in 2010 (5) SCC 657 while considering the custody of a minor under the Hindu Minority and Guardianship Act, 1956, the Hon’ble Supreme Court observed that wishes of the minor need to be given due weightage. In that case, the order of the family court directing custody of child to continue with the mother was upheld on the basis of the wishes expressed by the minor. In Anjali Kapoor v. Rajiv Baijal reported in 2009 (7) SCC 322, the Hon’ble Supreme Court while considering Section 17 of the Guardians and Wards Act, 1890 held that when a conflict arises between the rights of natural guardians vis-à-vis welfare of the child what would best serve welfare and interest of the child should be the sole and predominant criteria. The Children are not mere chattels as observed in Rossy Jacob v. Jacob A. Chakramakkal reported in 1973 (1) SCC 840. The Hon’ble Supreme Court in Anjali Kapoor (supra) quoted with approval observations of the English Court and the other foreign Courts in deciding such custody matters giving predominance to the welfare of the child as it appears from Paragraphs 19 to 21 which are reproduced hereinbelow:-
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“19. In McGrath (infants), Re 1893 (1) Ch 143 it was observed that: “… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
20. In American Jurisprudence, 2nd Edn., Vo.39, it is stated that: “…An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.”
21. In Walker v. Walker & Harrison (1981 New Ze Recent Law 257) the New Zealand Court (cited by British Law Commission, Working Paper No.96) stated that: “Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequach of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”
The learned Civil Judge, in my mind, upon taking into consideration the aforesaid factors and the wishes of the child restored the custody of the child in favour of the father by way of an interim arrangement. Such custody orders are 13
always interlocutory in nature which can be varied and/or changed with the change of circumstances.
On the basis of the order of remand it is sought to be argued that in view of such changed circumstances the order of trial judge is to be reviewed and the child should be allowed to remain with the mother. The said submission cannot be accepted. This Court before passing this order has enquired from child his wishes. The impression of this Court is that the child wants to see the father and be with the father although he was brought to the Court by the mother. The child was in a complete helpless condition. It is unfortunate that the said beautiful child has been dragged unnecessarily in this unfortunate litigation. If the mother is really fond of her child and want her child to have a proper and better living, she should not have initiated such criminal proceeding against the husband and make an attempt to render the order of the Civil Judge nugatory. In the absence of any materials on record as to whether the Chief Judicial Magistrate at Barasat was informed of the said custody matter and the orders passed by the Civil Judge, it would not be proper for this Court to make any remark on the order passed by the Chief Judicial Magistrate in entertaining the application filed under Section 156(3) Criminal Procedure Code or in passing an order of remand. However, the Chief Judicial Magistrate at Barasat is directed to immediately call for the record and consider the prayer for bail of the petitioner forthwith upon receipt of this order and to pass appropriate orders. If the said Chief Judicial Magistrate found that the said complaint is malicious, vexatious, 14
mala fide and filed with an ulterior motive, the learned Magistrate should dismiss such complain. Furthermore, if it appears to the learned Magistrate that the Investigating Officer has acted improperly or on the basis of insufficient materials, appropriate order should be passed against the Investigating officer. The learned Civil Judge should also pass appropriate orders taking into considerations the order passed by the Chief Judicial Magistrate and to ensure that the welfare of the child does not suffer in any manner whatsoever. The Civil Judge should decide the custody of the child till the husband is released on bail. Meanwhile as an interim measure the wife/petitioner must ensure that while in her custody, the welfare and the benefit of the minor is not compromised. This is the primary consideration for not disturbing the present custody of the child and subject to the order that may be passed by the Civil Judge.
A copy of this Order be immediately forwarded by the learned Registrar General, High Court, Calcutta to the learned District Judge, Barasat, the learned 5th Additional District Judge at Barasat, learned Chief Judicial Magistrate at Barasat, North 24-Parganas and the Director General of Police for compliance and necessary action.
Since this revisional application is dismissed no notice is required to be sent upon the opposite party/husband. However, the learned Registrar General is directed to effect service of this order on the husband/opposite party. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the petitioner in compliance of necessary formalities. (SOUMEN SEN, J.)
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HC: Wife and husband misuse 498A to grab parrents’s property- Quashed
Criminal Misc.No.M-18643 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM No.M-18643 of 2008
Date of Decision:- 21.2.2012
Smt.Sunita Goyal & Ors. …Petitioners Vs.
State of Punjab & Anr. …Respondents CORAM: HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Akshay Bhan, Advocate for the petitioners.
Mr.Palwinder Singh, Senior DAG Punjab for respondent No.1.
Mr.Ashok Singla, Advocate for
Mr.Ravish Bansal, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
Petitioners Smt.Sunita Goyal, Vijay Goyal, unfortunate parents-in- law and Abhishek Goyal, brother-in-law (Devar) of complainant Soni Goyal, wife of Mahavir Goyal respondent No.2 (for brevity “the complainant”), have directed the instant petition for quashing the impugned FIR, bearing No.246 dated 15.9.2007 (Annexure P5), registered against them, on accusation of having committed the offences punishable under Sections 406, 498-A, 323, 506 and 120- B IPC by the police of Police Station Division No.5, Ludhiana.
2. Concisely, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the present petition and emanating from the record, are that the marriage of the complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery, weighing 80 Tolas, cash and dowry beyond his capacity at the time of Criminal Misc.No.M-18643 of 2008 -2- her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. It was claimed that although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She and her husband also apprehend danger to their lives at the hands of the petitioners. On 30.8.2007 at 8 A.M., they were stated to have given severe and merciless beatings to the complainant and her husband Mahavir Goyal. The matter was reported to the police, where DDR No.12 dated 31.8.2007 was entered, but no action was taken by the police against them.
3. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the petitioners have harassed, treated her with cruelty in connection with and on account of demand of dowry and gave severe beatings to her as well as to her husband on 30.8.2007. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioners-accused, by virtue of FIR (Annexure P5) in the manner indicated hereinabove.
4. The petitioners did not feel satisfied with the initiation of criminal prosecution against them and preferred the instant petition, for quashing the FIR (Annexure P5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC inter-alia on the grounds (i) that the impugned FIR (Annexure P5) has been registered ostensibly on the complaint of Soni Goyal in furtherance to the oblique motive of aforesaid Mahavir Goyal, Soni Goyal and Chuhar Lal Garg by misusing the provisions of Sections 406 and 498-A of I.P.C. The impugned FIR was got registered as a counter-blast and in retaliation to the aforesaid complaint dated 30.08.2007 (Annexure P1) lodged by petitioner no.2 with P.S. Division No.5, Ludhiana under Section 384 read with section 120-B of I.P.C. against Mahavir Goyal, Soni Goyal and Chuhar Lal Goyal and also as a counter-blast to the disassociation and de-linking of Mahavir Goyal by petitioner no.2 from their property and the filing of the civil suit (Annexure P4) by petitioner Criminal Misc.No.M-18643 of 2008 -3- no.1 against Mahavir Goyal and Soni Goyal; (ii) the criminal case was lodged by the complainant with the sole intention to pressurize and blackmail them to transfer their property in the name of her husband Mahavir Goyal; (iii) the allegations in the FIR are absolutely concocted, false, frivolous and evince the element of malafide, after thought and maliciously & vexatiously registered against the petitioners in order to wreak vengeance and the incident of 30.8.2007 and story of payment of Rs.2,50,000/- were concocted by the complainant party; (iv) the complainant has concealed the fact that the Zen car has already been transferred in the name of Soni Goyal (complainant) on 22.4.2008, as per the transfer report/documents (Annexure P9 colly); (v) the dowry articles given at the time of marriage have already been given to the complainant, vide letter (Annexure P10). She did not make any grievance against the petitioners during five years after her marriage. As soon as, petitioner No.2 refused to part and disowned the husband of the complainant from his property, then she filed the false criminal case against them in order to take the revenge and no offence whatsoever is made out against the petitioners. On the strength of aforesaid grounds, the petitioners sought to quash the criminal prosecution against them, as depicted hereinbefore.
5. The complainant-respondent No.2 did not file any reply to deny the specific personal allegations contained in the petition. However, the DSP Crime filed the reply on behalf of State of Punjab (respondent No.1), taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the prosecution that as per the inquiry report (Annexure R1/T) and during the course of investigation, both the parties were called and the complainant’s father-in-law agreed to give the share of Rs.25 lacs from his property to Mahavir Goyal, husband of the complainant, out of which, Rs.10 lacs were already taken by him (husband) and the remaining amount was to be paid subsequently. Consequently, the complainant and her husband agreed to shift to residential HIG Flat No.11-FF, opposite Khalsa College, Ludhiana, as per Criminal Misc.No.M-18643 of 2008 -4- report (Annexure P13). Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has reiterated the allegations contained in the impugned FIR (Annexure P5). However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.
7. Ex facie, the celebrated argument of learned counsel that since there are direct allegations of cruelty, maltreatment and harassment to the complainant by the petitioners, so, no ground for quashing the criminal prosecution against them is made out, is neither tenable nor the observations of Hon’ble Supreme Court in case Central Bureau of Investigation v. K.M.Sharan 2008(4) S.C.C. 471, are at all applicable to the facts of the present case, wherein a criminal case was registered against the then Vice Chairman of the Delhi Development Authority and other senior officials for entering into conspiracy with Dharmbir Khattar and others to give undue favour to M/s DLF Universal Limited, New Delhi in the matter of allowing 300 Floor Area Ratio (FRA) in respect of one of the projects of DLF Universal by charging rates much below the prevailing rates and obtained or agreed to obtain illegal gratification from M/s DLF as quid pro quo. The total bribe amount was 1.10 crores. During the course of investigation and subsequent search conducted at the residence of son of one of the accused A.M.Sharan, who was at that time, Commissioner (Land Disposal, DDA), certain papers/documents relating to assets acquired/expenses incurred by him and his family members besides the cash amount of Rs.36 lacs were recovered and seized by the CBI. The CBI collected sufficient oral as well as documentary evidence constituting the grave Criminal Misc.No.M-18643 of 2008 -5- offences. On the peculiar facts and in the special circumstances of that case, it was observed that “where there are direct allegations and evidence to support the criminal offence, the High Court was not justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under Section 482 Cr.PC.”
8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the complainant in the present controversy, particularly when the Hon’ble Apex Court in cases Dhariwal Tobaco Products Limited and others v. State of Maharashtra and another, 2009(2) SCC 370; M/s Pepsi Foods Limited v. Special Judicial Magistrate 1998(5) SCC 749; Ashok Chaturvedi v. Shitul H.Chanchani 1998(7) SCC 698 and Central Bureau of Investigation v. Ravi Shankar Srivastava (2006)7 SCC 188 has ruled that “whenever the High Court comes to the conclusion that allowing the criminal prosecution to continue would be an abuse of the process of court and that, the ends of justice require that the proceedings should be quashed, it would not hesitate to do so, in exercise of inherent powers irrespective of other factors.”
9. Such thus being the legal position and material on record, now the short and significant question, though important that, arises for determination in this petition is, as to whether the criminal prosecution initiated against the petitioners deserves to be quashed or not under the present set of circumstances?
10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the affirmative and the criminal prosecution cannot be permitted to continue in this respect.
11. As is evident from the record, that the marriage of complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery,weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, Criminal Misc.No.M-18643 of 2008 -6- maltreating her and demanded more dowry articles. Although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She is working as a teacher in National College, Dakhan. Petitioner Nos.1 and 2 are her parents-in-law, whereas petitioner No.3 is her brother-in-law (Devar). She has not intentionally arrayed her husband Mahavir Goyal in a dowry related case in the array of the accused. According to the petitioners that on 30.8.2007, Mahavir Goyal and his wife (complainant) created nuisance in the house, broke the crockery & centre table and threatened the petitioners that in case the half share of the property and the money were not given to them, they would falsely implicate them in some false criminal case. Petitioner No.2 objected to it, then his son Mahavir Goyal, husband of the complainant, slapped him (his father petitioner No.2). The matter was reported to the police by petitioner No.2, through the medium of complaint of same date (Annexure P1). So much so, he disowned his son Mahavir Goyal from his whole movable and immovable properties and published the notice dated 1.9.2007 (Annexure P2) in Hindustan Times, Chandigarh in this connection. At the same time, in order to avoid the possibility of false implication, Sunita Goyal (petitioner No.1) wrote a UPC letter dated 3.9.2007 (Annexure P3 colly), asking her daughter-in-law (complainant) to take all the dowry articles and her other belongings.
12. Not only that, petitioner No.1 filed a civil suit for a decree of permanent injunction restraining the complainant and her husband Mahavir Goyal from interfering in the peaceful possession of their residential house, by way of plaint (Annexure P4 colly). Admittedly, in civil suit, bearing No.206 dated 13.9.2007 filed by petitioner No.1, counsel for the complainant and her husband (defendants therein) suffered a separate statement that they shall not interfere in the possession of the plaintiff in the suit property and they have no objection in case her (petitioner No.1) suit is decreed to that extent. In this manner, on the basis of statements of the parties, the suit of petitioner No.1 was decreed and the Criminal Misc.No.M-18643 of 2008 -7- complainant and her husband were restrained from interfering in her possession over the suit property, vide order dated 28.7.2010 (copy taken on record as Annexure P14).
13. It is not a matter of dispute that neither the complainant nor her husband made any complaint, raising any accusing finger towards the petitioners at any point of time before lodging the FIR (Annexure P5) nor made any such averment/statement during the course of pendency of the civil suit between them. Therefore, the arguments of learned counsel that the petitioners have been falsely implicated to pressurize and blackmail them to transfer the property and the complainant has lodged the false criminal case against them (intentionally excluding her husband in dowry related matter) vexatiously and maliciously in order to wreak vengeance, have considerable force.
14. The matter did not rest there. Even as per the FIR (Annexure P5), the father of the complainant gave a Maruti Zen Car and gold jewellery, weighing 80 Tolas besides cash. It was also alleged that the petitioners demanded more dowry articles and her father gave Rs.2,50,000/- in cash to them. That means, very very vague allegations of demand of dowry and payment of indicated amount are assigned to the petitioners. Above-all, the mere fact that the complainant did not name her husband as accused that the dowry articles were entrusted to him at the time of marriage or he has also demanded the more dowry articles, is indicative of the fact that she colluded with her husband and lodged a false complaint, on the basis of which, the FIR (Annexure P5) was registered against the petitioners without any material/evidence muchless cogent in this behalf.
15. Moreover, the indicated Zen car has already been transferred in the name of complainant, by means of transfer of ownership report/documents (Annexure P9 colly). The petitioners have specifically mentioned in their petition that whatever dowry articles were given at the time of marriage of complainant, have already been given to her, vide Annexure P10 (colly). That is the only reason Criminal Misc.No.M-18643 of 2008 -8- that the complainant intentionally did not file any reply to controvert all these vital personal aspects of the matter contained in the main petition, for the reasons best known to her. In this manner, no overt act or specific role, except one minor incident of 30.8.2007, which appear to have been concocted after the complaint (Annexure P1) of petitioner No.2 and notice (Annexure P2), are attributed to the petitioners. It is very highly impossible to believe that the petitioners would treat the complainant with cruelty or demand the dowry articles from her in the absence of her husband. She appears to have intentionally colluded with her husband in order to grab the property in this regard as discussed hereinabove.
16. It is now well settled proposition of law that, in order to attract the penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioners to indicate that the dowry articles were actually entrusted to them and they have misappropriated the same or they further demanded any dowry articles and evidence in support thereof. All other relatives of the husband cannot, in all cases, be held to be involved in the demand of dowry, especially when in this case, the husband of the complainant is not an accused. In cases, where such accusation is made, the overt acts attributed to persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences related to demand of dowry. As all the essential ingredients to constitute the offences and complicity of petitioners are totally lacking, therefore, to me, no criminal prosecution can legally be permitted to continue against them.
17. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if Criminal Misc.No.M-18643 of 2008 -9- not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction.
18. An identical question came to be decided by this Court in cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of section 498-A IPC.”
19. Sequelly, if the crux of the allegations levelled against the petitioners as discussed hereinabove, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R.(Criminal) 92. Such malafide prosecution if allowed to continue, it will inculcate and perpetuate injustice to the petitioners and is nothing else, but sheer and deep misuse/abuse of process of criminal law in this relevant connection, which is not legally permissible. Therefore, the contrary submissions of learned counsel for complainant “stricto sensu” deserve to be and are hereby repelled Criminal Misc.No.M-18643 of 2008 -10- under the present set of circumstances, as the indicated Bench mark and the ratio of law laid down in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Thus, seen from any angle, to my mind, no offences whatsoever are made out against the petitioners, in the obtaining circumstances of the case.
20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
21. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR (Annexure P5) and all other subsequent proceedings arising therefrom are hereby quashed and the petitioners are discharged from the indicated criminal case registered against them. (Mehinder Singh Sullar)
Judge
21.2.2012
AS
Whether to be referred to reporter ? Yes/No
HC: Far relatives implicated in 498A Falsely, Quashed against respondent 3 to 6
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CRIMINAL MISCELLANEOUS APPLICATION No. 891/2007 (Under Section 482 of the CrPC)
Radha Kant Adhikari & Others …….Applicants Versus
State of Uttaranchal & Another ……Respondents
Mr. M.K. Ray, Advocate, for the applicants. Mr. P.S. Bora, Brief Holder, for the State/respondent no. 1. Mr. Yogesh Pandey, Advocate, for the complainant/respondent no. 2.
2nd August, 2011
Hon’ble Servesh Kumar Gupta, J.
By way of this criminal miscellaneous application, moved under Section 482 CrPC, the applicants have challenged the summoning order dated 15.12.2006, passed by the Judicial Magistrate, Khatima in Criminal Case No. 1100/2006, Smt. Reena Adhikari v. Radha Kant Adhikari, whereby the applicants have been summoned to face the trial for the offences punishable under Section 498A, 323, 504, 506 IPC and one punishable under Section 3/4 of the Dowry Prohibition Act.
2. Brief facts of the case are that respondent no. 2 Smt. Reena Adhikari lodged a complaint on 28.8.2006 before the Judicial Magistrate, Khatima stating that she got married to the applicant no. 1 Radha Kant Adhikari on 5.9.2004. Her parents gifted articles and ornaments in the marriage as per their status. After sometime of marriage, differences cropped up between the two families on the question of dowry. Radha Kant Adhikari (husband), Anand Adhikari (father-in-law), Namita Adhikari (mother-in-law), Km. Jayanti Adhikari (unmarried sister-in-law), Dhruv Adhikari (younger brother-in- law) and Smt. Sushma (aunt {Bua} of the husband of the 2
respondent no. 2 and is working as a Nurse in Community Health Centre, Sitarganj), who are the prospective accused, started taunting Smt. Reena Adhikari for bringing insufficient dowry. It is further alleged that father of the complainant tried to resolve the matter and, accordingly, gave a plot of land in village Bakunthpur as well as sewing machine, interlock machine and rupees twenty thousand cash to Radha Kant Adhikari (husband of the respondent no. 2) in order to open a tailoring shop on the said plot. But it did not satisfy the hunger of dowry being nurtured by the in-laws of the complainant, and they started harassing her for more dowry. Finally the complainant was ousted from her in-laws’ house along with her girl child. It is further alleged that on 24.8.2006, at about 6 am, all the applicants came at the parental house of the complainant and demanded rupees thirty thousand and started abusing her for the same. When the complainant and her parents expressed their inability to fulfill the said demand, then all the applicants assaulted Smt. Reena Adhikari (complainant) at her parental house. On her raising the alarm, Shivpad Mandal, Gaur Chand Sarkar and many other people of the same village came at the place of occurrence and rescued the complainant and her parents. The applicants allegedly threatened that if the complainant shall be sent to her in-laws’ house without fulfilling their demand of dowry, then she shall be burnt alive.
3. The learned Magistrate, after recording the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC, summoned the accused applicants as stated above.
4. Heard learned Counsel for the parties and perused the materials available on record.
3
5. It has been contended on behalf of the applicants that on the alleged date of incident, that on 24.8.2006, Radha Kant Adhikari (husband) was in Gujarat in search of job. Smt. Sushma, who is aunt (Bua) of Radha Kant Adhikari (husband of the complainant) is working as Nurse and she stays at a distance of 18 kms from the alleged place of occurrence. Furthermore, she was on duty on the alleged date of incident. In support, copy of attendance sheet has also been annexed, albeit the same is illegible. It is further contended that applicants have been falsely implicated in this case
6. All told, the allegations made by the complainant Smt. Reena Adhikari in her complaint, do not, prima facie, inspire the confidence at least against the applicants no. 3 to 6, who are respectively mother-in-law, unmarried sister-in- law, younger brother-in-law and aunt (sister of her father-in- law) of the complainant. It appears to be highly improbable that these persons would accompany Radha Kant Adhikari (husband) and Anand Adhikari (father of Radha Kant Adhikar) and together abused and beat the complainant, that too at her parental house. Furthermore, Smt. Namita Adhikari is an old lady. Applicant no. 6 Smt. Sushma, who is aunt (Bua) of the complainant, is a married woman and she is living separately and she is not at all the beneficiary of demand of dowry. As such, applicants no. 3 to 6 appear to be falsely implicated being the relatives of the complainant and her husband. Hence, the impugned summoning order is liable to be quashed so far as it relates to the applicants no. 3 to 6.
7. For the reasons stated above, the present miscellaneous application under Section 482 CrPC is partly allowed. Impugned summoning order dated 15.12.2006, passed by the Judicial Magistrate, Khatima in Criminal Case No. 1100/2006, is quashed only in respect of applicants no. 3 4
to 6, namely, Smt. Namita Adhikari, Km. Jayanti Adhikari, Dhruv Adhikari and Smt. Sushma, However, learned trial court shall proceed with the trial against the applicant no. 1 Radha Kant Adhikari and applicant no. 2 Anand Adhikari. Accordingly, interim order dated 29.11.2007 stands vacated so far as it relates to applicants no. 1 & 2.
(Servesh Kumar Gupta, J.)
2.8.2011
Prabodh
HC: 498A misuse judgement
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th January, 2011
Date of Order: February 14, 2011
+ Crl. MC No. 2462/2010
% 14.02.2011 Nitika Gauba …Petitioner Versus
State & Ors. …Respondents Counsels:
Mr. M.S. Yadav for petitioner.
Mr. Sunil Sharma, APP for State/respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. This application has been preferred by the petitioner for cancellation of anticipatory bail granted to the Asha Gauba (mother-in-law), Kanika Gauba (nanad) and Shiv Kumar Gauba (Taya) on the ground that the learned ASJ while granting anticipatory bail had not appreciated the facts correctly. The respondent no.2 is the widowed mother in law of complainant, respondent no.3 is unmarried sister in law(husband’s sister) of the complainant and respondent no.4 is the elder brother of deceased husband of respondent no.2 (Taya Sasur).
2. In the complaint, the applicant had made allegations against the husband and these three respondents for harassing her for dowry. The learned ASJ while granting bail to them had considered that mother in law of complainant was a government servant in Ministry of Railways and was aged around 50 years. The respondent no.4 Taya Sasur was aged around 70 years and respondent no.3 was an unmarried sister of respondent Crl.MC 2462/2010 Page 1 Of 3 no.2. The learned ASJ observed that he had perused the police file and without commenting upon the merits or otherwise of the allegations, considered that no useful purpose was likely to be served by directing the investigating officer to arrest these three persons for the purpose of investigation and he therefore granted anticipatory bail to them.
3. In the grounds for cancellation of anticipatory bail, it is stated that the husband of the petitioner played fraud upon the petitioner. While petitioner and husband were living under the same roof, he filed a divorce petition against the petitioner without information of the petitioner and even after filing divorce petition, he continued to maintain physical and sexual relations with her. The respondents no.2, 3 and 4 were having knowledge of this act of the husband of the petitioner. The husband in order to blackmail her and to disrepute her took vulgar snaps of her to force her to withdraw the petition. She also alleged that she was badly beaten up by mother in law, nanad. Even servant of respondent no.2 gave her merciless beatings. Her husband hatched up a criminal conspiracy of criminal assault on her on 25th April 2010 and she had to be taken to DDU Hospital by the police where her MLC was prepared.
4. For cancellation of bail, the court must have strong reasons. In the present case, the bail was granted by the trial court looking into the nature of allegations. In cases of matrimonial discord Section 498A/406 IPC are invariably invoked against every family member of husband, it becomes very difficult for the trial court to assess the truth of the allegations made by the complainant. Normally every complainant ropes in all relatives including the remote relatives living far away from the matrimonial home making stereotyped and similar allegations against everybody. This tendency of roping in every known relative including the minors in offences under Section 498A/406 IPC etc has in fact made these provisions introduced in Indian Penal Code, to prevent cruelty upon women, blunt. The gross misuse of these provisions for roping in every known relatives Crl.MC 2462/2010 Page 2 Of 3 of the husband poses a grave problem for the courts during trial and while deciding bail applications. Only oral statement of complainant and her parents is there in respect of cruelty and dowry demand, and normally there is no agreed list of articles given at the time of marriage Dowry Prohibition Act proved futile to bring to an end to the evil of dowry for this reason. Mere oral allegations of giving huge dowry without substantiating these allegations by bills of purchase of the articles or list prepared at the time of marriage and signed by both the parties cannot be given credence. Even those people, who have meager salaries or are hand to mouth, claim of giving huge amounts at the time of marriage. It is in the interest of both the parties that a list of dowry articles should be prepared by the parties at the time of marriage duly signed by both the parties. Though in this way, the evil of dowry cannot be curbed but it would curb the tendency of making astronomical claims later on just to rope in every member of the family of in laws as a criminal.
5. In the present case, there is no corroboration of the oral allegations of the applicant. I find no reason to cancel the anticipatory bail granted to the respondents no.2 to 4 when there are no allegations of misuse of the bail on their part. The application for cancellation of bail is hereby dismissed.
February 14, 2011 SHIV NARAYAN DHINGRA, J rd
Crl.MC 2462/2010 Page 3 Of 3
498A Misuse judgement : Gujrat HC
CR.MA/1005/2011 2/2 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 1005 of 2011
=================================================
SHARDABEN BHIMJIBHAI KALANI & 6 – Applicant(s)
Versus
KUNTAL KALPESHKUMAR KALANI & 1 – Respondent(s)
================================================= Appearance :
MR SP KOTIA for Applicant(s) : 1 – 7. None for Respondent(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) : 2, =================================================
CORAM :
HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 04/02/2011
ORAL ORDER
Heard learned advocate for the petitioners.
It is submitted that earlier Criminal Complaint No.936 of 2009 filed under Protection of Women against Domestic Violence Act, 2005 against the husband and father-in-law and mother-in-law came to be withdrawn as per the order dated 03.05.2010. So far as offence registered under Section 498A, 504, 506(2), 497, 114, 323 of the IPC and Sections 3, 7 and 10 of the Dowry Prohibition Act. The said FIR came to be quashed and set aside Nos. 3 to 5 of the said application in Criminal Misc. Application No.13244 of 2010 vide earlier judgment dated 20.12.2010. However, they are again joined as respondent Nos.4, 5 & 6 in the impugned complaint. It is further submitted that the respondent Nos.2, 3, 7 and 8 being elder brother-in-law and sister-in-law and uncle and aunt-in-laws. The above attempt of initiating proceedings by the complainant is nothing but an abuse of process of law and is being undertaken with ulterior motive to see that all in-laws are being harassed. It is, therefore, submitted that keeping in view the decision of the State of Haryana v. Bhajan Lal [1992 SC 604], this compliant deserves to be quashed and set aside.
Having heard learned advocate for the petitioners and on perusal of complaint No.936 of 2009, order passed therein on 03.05.2010, oral judgment dated 20.12.2008 in Criminal Misc. Application No.13244 of 2007 and impugned complaint No.878/2010, prima facie, I am of the opinion that action of respondent No2 deserves closer look at the stage of final hearing.
Hence, Rule.
Ad-interim relief in terms of para 25-B till final disposal of this petition.
Notice as to interim relief returnable on 7^th March, 2011.
Direct service is permitted.
[Anant S. Dave, J.]
Provisions of Section 498A are being used to convert failed marriages into a crime
Equivalent citations: I (2008) DLT 337 Bench: S N Dhingra Narender Kumar And Anr. vs State (Govt. Of Nct Of Delhi) [Along With Crl. Appeal Nos. 748, 749 And 787/2004] on 1/11/2007 JUDGMENT Shiv Narayan Dhingra, J. 1. These appeals have been preferred against the judgment of learned Additional Sessions Judge dated 10th September, 2004 whereby he convicted the appellants under Section 498A read with Section 34 IPC and Section 307 read with Section 34 IPC and against the order of sentence dated 14th September, 2004 whereby he sentenced each of the appellants to undergo RI for 02 years and a fine of Rs. 3,000/- under Section 498A and RI for 07 years and a fine of Rs. 5,000/- under Section 307/34 IPC. 2. The brief facts necessary for deciding these appeals are that complainant Veena Rani was married to accused Gyan Prakash on 24th November, 1997. She was admitted to Safdarjung Hospital on 9th May, 2002 by her husband at about 10.00 p.m. with 25 % burns. She told the doctor that she received burn injuries accidentally while she was cooking food on LPG stove and her dupatta caught fire accidentally resulting into burn injuries. Her MLC Ex. PW 3/1 shows that her pulse rate, Blood Pressure were normal her chest was clean she was oriented to time, place and persons. The injuries present on her body showed that she was having thermal burns on upper parts of the body i.e. upper exteme face, lower abdomen and some patches over the back. Police was informed of the admission by the duty constable in hospital vide DD No. 4A (Ex. PW 1/1) on the night of 9th and 10th May, 2002. The investigation was given to ASI Ramesh Chand, who requested SDM to come to hospital and record statement of Smt. Veena. Statement of Smt. Veena was recorded by SDM on 10th May, 2002. Doctor’s endorsement of her being fit for giving statement is Ex. PW 12/1. In her statement given to SDM (Ex. PW 2/2) she stated that on previous night around 7.00 p.m. she was at home, her jethani and mother-in-law were also at home, LPG Stove was lying on floor. She was standing near the stove and food was being cooked. Her dupatta caught fire from the LPG stove and she cried of catching fire, her mother-in-law and jethani extinguished the fire. Her husband was on duty at the time of incident. Thereafter, she was brought to hospital by her husband. She had been living happily with her family and was not being harassed for dowry, everybody in the family loved her. The incident was an accident and she had no doubt on anyone. She was in full senses and gave the statement without any pressure. 3. Father of complainant Roshan Lal came to see her on 10th May, 2002 itself. On 11th May, 2002, her father made an application Ex. PW5/1 to SDM wherein he stated that her daughter Veena was being mistreated by her inlaws. His son-in-law Gyan Prakash was having no business or work and due to this reason his family members used to throw him out of the house and on this attitude of family of his son-in-law, he had to bring his daughter to his own house sometime for four months and sometime for six months. His daughter was having one son, who was also living with him for about last three years. Due to unemployment of his son-in-law he got his daughter employed in a private firm as a labour, so that she could maintain herself. During this period he had also been sending his daughter to in-laws house with the help of inter-mediators. Mother-in-law of his daughter told him that he should get his son-in-law Gyan Prakash settled by opening a clothier shop for him. Since he (father-in-law) was not a rich person this was not possible for him. On 9th May, 2002 around 7.00 p.m. girl’s two jeths (brothers-in-law) viz. Narender and Vijay, two jethanis (sisters-in-law) viz. Om Prabha and Nirmal and mother-in-law viz. Jeevani Devi @ Jamuna Devi and her husband Gyan Prakash poured kerosene oil on his daughter and set her on fire. He was not informed of the incident. However, he got information on 10th May, 2002 at 10.00 a.m. from some acquaintance that Veena had met with an accident. So, when he went to know well being of his daughter at her in-laws’ house there her father-in-law Pandit Prabhati Lal told him that Veena was in burns ward of the Safdarjung Hospital. When he reached Safdarjung Hospital he learnt that SDM had already recorded his daughter’s statement. His daughter told him that she made statement to SDM as per the wishes of her in-laws since her in-laws had threatened her that they would kill her and her son and that she would be divorced. By his application Ex. PW5/1 he requested SDM that another statement of his daughter Veena should be recorded. 4. After the application made by father of complainant, SDM again recorded a statement of the complainant Venna (Ex. PW 2/1). In this statement complainant stated that her husband Gyan Prakash used to do a private job and she herself was doing a private job. She was having a child around 3? years old. For about a month after her marriage she was kept by her in-laws properly thereafter her in-laws started harassing her on small things. She remained at her parents house for 8-9 months thereafter. She was again called by her in laws after a compromise and she remained at her in-laws for about two months thereafter. After two months she was against harassed for dowry. She used to be told that she had no brother and she had brought so less dowry. She again went to her parents’ house and lived there for about 8-9 months and again came back to her in-laws house after a compromise and she was living at her in-laws house since 8th December, 2001. About 15 days before the incident she had a quarrel with her Jeth and mother-in-law. Her in-laws had purchased a Maruti Car on the day of Holi Festival and they told her that in case she wanted to remain alive she should bring 2? lac rupees or a clothier shop be opened for her husband in Chandni Chowk. She refused to accede to these demands telling her that her father had no money. On this she was told to pack up and go from the house. This quarrel continued till the days of the incident. On the night of Wednesday again a similar quarrel took place and her in-laws gave her beatings and all went for sleeping. On Thursday morning she got up and cooked meals and got ready for going to office. She was told by her in-laws that in case she wanted her safety, she should bring 2? lac from her parents or she should call her father. She however, went to her office/job and after doing her job came back home. When she came back from office, all members of the family viz. both her jeths, jethanis and mother-in-law were sitting in the house. Her in-laws asked her why she had not brought her parents. When she went to her room, she found that her goods were lying packed. Her mother-in-law and jethani abused her and told her that she should pick up her goods and go away. When she refused they bolted the main gate from inside and her jeth said that she should be beaten. Jethani said that she should be burnt and cremated. In the meantime her mother-in-law brought kerosene oil in a tin and poured kerosene oil on her. When she cried then her elder jethani lit fire and set her ablaze. She cried for being saved then all of them went away from there. A bucket full of water was lying there, she picked up the bucket, poured water on herself the fire got extinguished. She asked them to take her to hospital, on this they started beating her. She kept lying in the house for about two hours and they told her that they would take her to hospital only if she would not testify against them otherwise her son and father would be killed. When she agreed to this, she was removed to hospital. She was also threatened on the way to hospital and even beaten. She made her earlier statement under pressure. Her earlier statement was not correct. Since her parents had met her in the hospital now she was under no fear and had made the statement without pressure. Her mother-in-law her jeths viz. Narender and Vijay, her husband Gyan Prakash her jethanis Om Prabha and Nirmal had burnt her. 5. The accused persons were put to trial under Section 406/498/307/34 IPC. Smt. Veena appeared as PW 2 and testified against the accused persons more vehemently, making improvements even over her second statement given to the SDM. Her father and mother also testified against the accused persons and based on the statements, the appellants were convicted. 6. The learned Trial Court observed that the two contradictory statements made by Veena before SDM have been explained and the testimony of the complainant given in the Court was trustworthy and cannot be looked upon with suspicion. The Trial Court also observed that had the complainant been having nice time with her in-laws and been loved and respected as stated in the first statement, she would not have turned a somersault and implicated everyone of her family merely because her father had come to the hospital and met her. The Trial Court observed that earlier statement made to the SDM was under a threat and therefore could not be used to erase the credibility of complainant’s testimony in the Court. The Trial Court also observed that had the incident been an accident only, the appellant would have not concealed the incident from the father of the complainant and would have immediately informed the father of the complainant. The fact that father of the complainant was not informed about the incident by the in-laws/appellants proves guilty mind of the appellants. The Trial Court brushed aside the contradictions in the ocular testimony of complainant and the medical evidence observing the same being inconsequential holding that the doctor who examined her had not taken the case of the complainant seriously and considered it as a case of accident and not a case of burning. Trial Court also brushed aside the contradiction in the stand taken by the complainant about the incident in her maintenance petition and in the Court on the ground that there must have been communication gap. There were other contradictions in the statement of complainant made in the Court and the earlier statement but all these were considered as immaterial by the Trial Court. 7. It is argued by the counsel for the appellants that the Trial Court had grossly ignored the entire sequence of the evidence and the circumstances which proved that the complainant had made false statement in the Court out of vengeance, only to see that her husband, who was not earning well and was not able to maintain her properly and the in-laws should be taught a lesson. 8. As per testimony of PW 2 complainant, made in the Court after marriage, the accused started asking her to bring 2? lac from her father or to get a shop opened for her husband. This part of the testimony is contrary to Ex. PW 5/1, a written application made by her father to SDM wherein her father had clearly stated that her son-in-law Gyan Prakash was unemployed and for this reason he was turned out by his family and he (PW 5) was forced to keep his daughter with him sometime for 04 months and sometime for 06 months and he also had to get his daughter employed as a labour in a private company. She in her statement to SDM and in court tried to make out a case as if she lived at her parents’ house for 8-9 months together due to dowry demands. Her statement in Court is also contrary to her second statement made to SDM implicating her inlaws. In Ex. PW 2/1 she talked of demand of Rs. 2? lac after purchase of a car by in-laws on Holi festival of 2002 while deposing in Court she alleged of this demand from day one of her marriage. It is clear that it was not a case where the in-laws were demanding 2? lac after marriage of the girl but it was a case where the girl was married with a boy who was practically unemployed and had no source of earning. The boy must have been unable to earn livelihood and for this reason he was being turned out from the house by his own family members. Had the in-laws been trying to extract money and been asking Rs. 2? lac from the parents of the girl, they would not have turned out their own son. Once a person grows up and attains age of majority, gets married, he has to earn for himself and his wife. His elder brothers or parents cannot be expected to sustain him and his family even after his marriage. Because of joint family system prevalent in India sometimes the parents go out of way to help such of their sons, who are not able to earn properly and do establish them in business or help them to earn livelihood but that is possible only if the parents are having enough money for this. Where the parents belong to poor or middle class and do not have enough money to extend this help, they have no alternative but to turn out such non-earning persons hoping that this would compel him to sustain himself by striving and struggling. Ex. PW 5/1 is the first admitted written account from complainant’s father that Gyan Prakash was being turned out from house time and again, so that he was able to sustain himself and struggle for himself and it seems ultimately Gyan Prakash got some private job and started going on work. Complainant in order to sustain herself also got a private job with the help of her father and the couple left their son with maternal grand parents out of poverty. The initial period of their married life went like that. It has come in evidence that father of the girl was running a clothier shop in Gurgaon. It is possible that the parents of Gyan Prakash had asked father of the complainant to help Gyan Prakash in opening a clothier shop when he was unemployed however, there was no dowry demand alleged by PW 5 in his application Ex. PW 5/1. Had there been any persistent dowry demand as testified by PW 2, nobody stopped PW 5 from writing the same in his application made to SDM. 9. Let me consider the different statements made by the complainant in this case. In her first statement, she told SDM that she met with an accident. Presuming that this statement and the story of accident told by the complainant to the SDM was made under pressure but there was no pressure on the complainant as far as other facts are concerned. In her first statement, made to SDM she stated that her husband was on duty at the time of incident and at that time her mother-in-law and jethani were at home. One may consider that there may be pressure on her to say that she had caught fire by accident but there could be no pressure on her to mis-state about the presence of persons in the house at the time of the incident. As per her first statement, except her mother-in-law and one jethani, no one was present at home at the time of incident. However, in the second statement Ex. PW 2/1 she stated that her mother-in-law, two jeths and two jethanis were present at the time of incident and her husband was not there when incident of burning took place. Her jethani and mother-in-law bolted the outer door from inside. In her statement before the Court she went further and made her husband also present at the time of incident and stated that it was her husband who bolted the door from inside at the time of incident. It is obvious that her testimony in respect of presence of persons at the time of incident is changing from one statement to other and the effort was gradually to implicate every member of the family. This reflects the mental process of the complainant who seems to wrack vengeance against the family by implicating one after statements of the family members in successive. 10. In her testimony, she alleged that a number of times she used to be confined in a room under lock and sometimes she used to be kept hungry for two days at stretch and sometimes she used to be turned out of the house. She has not stated any such thing in Ex. PW 2/1 her second statement to SDM. Moreover, she was a working girl. She was attending her office at Gurgaon and used to commute by the conveyance provided by the company, as is admitted by her in her cross examination. She was working as a labour. If she had been confined in the room for a number of days she would not have been able to attend office and would have been terminated from service for regular absence from the office. This aspect of her testimony whether she was attending office regularly or not could not be verified by the IO because she in her statement to the SDM had not stated that she was confined by her in-laws in the room. Keeping her hungry is also not believable since she was living with her husband in a separate room, as is admitted by her in cross-examination and she was going to office daily. She herself stated that on the day of incident she had cooked meal in the morning and went to office. A lady who used to cook food herself cannot be kept hungry by others. Moreover, she had every opportunity of taking meals at her work place. Her purse recovered from the room contained Rs. 1,500/- showing she used to carry sufficient money to enable her to meet her requirements. In her statement before the SDM she stated that her husband was doing a private job, while in her testimony before Court she stated that her husband was not working anywhere. In her statement before the SDM she stated that she was being taunted by in-laws that she had no brother while in her testimony she admitted that she had a brother. In such a case nobody could have taunted her that she had no brother. In her testimony she stated that there was no telephone at her parents’ house and telephone was installed only after the incident. However, her father PW 5 in his testimony stated that there was a telephone in house even before the incident and demand of Rs. 2? lac was made by mother-in-law on telephone and accused Narender and Vijay also talked on telephone. He also asserted that he was informed about the incident by some acquaintance on telephone. 11. Her testimony seen in the light of previous admitted statement shows that in order to implicate each member of the family she changed the version of incident. In her testimony in the Court she described the incident of burning her differently. She stated that her mother-in-law Jeevani Devi @ Jamuna brought Kerosene Oil and when she tried to save herself running here and there, she was held by her both jeths (brothers-in-law) and her sisters-in-law Nirmal pressed her hand against her mouth to prevent her from raising alarm and then mother-in-law poured kerosene oil and her elder sister-in-law Om Prabha set her ablaze. Her husband had bolted the main door from inside and did not try to save her. After she was set ablaze, she rushed to tap and poured water kept in a bucket on her. She also tore her clothes and extinguished the fire, of her own efforts. Her testimony in the Court was recorded on 1st May, 2003. She was in a better position to remember the details on 11th May, 2002 i.e. soon after the incident when she described the incident to SDM in Ex. PW 2/1. The description of incident given by her in her statement to SDM on 14th May, 2002 is altogether different from the description given by her in the statement given in the Court. She has nowhere stated in her earlier statement that she had torn her clothes. She did not state that she was held by her two jeths or her mouth was gagged by her jethani Nirmal or her husband bolted the door from inside and kept watching but did not try to save. In a case of maintenance her allegations changed. Her unemployed husband suddenly started earning Rs. 8,000/- p.m. and she was set ablaze by her jethani Nimal and not Om Prabha. All these improvements and changing versions have been made by her just to see that entire family is implicated. 12. It is her own case that a container of 05 litres of kerosene oil was poured on her. 05 litres of kerosene oil is an enormous quantity of oil and if this quantity is poured on a person and fire is lit, he/she will immediately turn into a fire ball. Presuming that the complainant had extinguished the fire immediately by pouring a bucket full of water on herself and by tearing her clothes, in that case the unburnt kerosene oil would remain on clothes and she would have been profusely smelling of kerosene oil. Not only her clothes but her entire body would have been drenched with kerosene oil and her clothes would have been drenched with kerosene oil and water. It is not her case that when she was removed to hospital her clothes were changed or she was washed off and bathed, rather her allegations are that she was continuously beaten for two hours before having been removed to the hospital and she kept lying there for two hours in kerosene oil and water. It cannot be believed that on seeing a patient in such a condition, doctor would have closed his eyes and would not record the condition in the MLC. There is no mention of smell of kerosene oil coming from her body in MLC, there is no mention of traces of kerosene oil on her clothes, there is no mention of her clothes being torn, there is no injury on any part of her body except the burn injuries in the MLC. A woman, who had been continuously beaten for about two hours definitely would receive some injury on some part of the body but no injury of the nature was found on her body as per MLC. The oral testimony of Smt. Veena/complainant is totally in contradiction with the medical testimony. 13. It is rightly said that men may lie but circumstances do not. Her lies have been nailed down by the circumstances. There is no seizure of torn clothes soaked with kerosene oil or water, there is no seizure of kerosene oil container by the IO moreover, there is no mention of kerosene oil smell either from body or from clothes and there is no mention of torn clothes by the doctor in the MLC. All these circumstances show that the entire story put forward by the complainant was a cooked up story and no kerosene oil was poured on her. 14. If two of her jeths had caught her so that she could be doused with kerosene oil and one jethani had gagged her mouth as alleged by her, nothing would have stopped them from burning her completely so that she did not survive. It only seems that none of the persons except mother-in-law and one jethani were even present when incident of burning took place and the incident seems to be an accidental burning and that is why she received only 25% burns at upper part of her body near neck. The nature of injuries confirms to her first version that her dupatta caught fire, fire travelled through dupatta to her upper portion. Since dupatta is normally worn by ladies around neck and keeps hanging the burns in this case seen to be due to presence of dupatta on the upper portion i.e. on neck and back that fire had travelled through dupatta on the upper parts of clothes worn by her. 15. Trial Court has heavily relied upon a presumption against the accused persons that parents of the girl were not informed. This is also belied by the witnesses. PW 13 (Raghbir Prashad) is brother-in-law of the complainant (sister’s husband). He learnt about the incident on 9th May, 2002 i.e. on the day when the incident happened from his father-in-law who informed him on telephone about the incident. However, he did not visit Veena at the hospital and met Veena at her residence only after 5-7 days of the incident. This witness has not been cross examined by the APP on any point. He is a prosecution witness. This testimony cannot be brushed aside. This shows that father of girl was informed on 9th May, 2002 itself, that is why he could inform PW 13 on telephone on 9th May, 2002 but since the incident was not so serious and the burns were received accidentally and complainant was not in any danger of life, it was not taken seriously by this witness and he did not even visit his sister-in-law at the hospital and met her only when she came back home after 5 days. The non-serious nature of the incident is also reflected from the testimony of Smt. Kanta PW 6, who is mother of the complainant. She stated that she was informed about the incident by her husband, who made her a telephone call in the morning of Saturday i.e. 11th May, 2002 and thereafter she went to hospital. Had the incident been serious her husband would have informed her at least on 10th May, 2002 when she claimed that he learnt about the incident and she also would have visited her on the same day along with her husband. 16. PW 2 testified in the Court that after getting her bandaged, none of her in-laws looked after her and all left the hospital. Her testimony is belied by the testimony of her own father. Her father stated that when he reached hospital on 10th May, 2002 her mother-in-law, brother-in-laws etc. all met him in the hospital. Similar is the testimony of her mother, who visited her on 11th May, 2002. It shows that PW 2 was out to speak patent lies in the Court. 17. There is another important factor in this case which shows that the case of dowry demand and breach of trust under Section 406 IPC was falsely foisted on the accused persons. PW 11 Sushma Rawat, SI CAW Cell, who investigated the case testified that she had visited the house along with the complainant and all her jewellery, dowry articles etc. were found in the room in which she was residing when she was living with her in-laws. It was her room and there was an almirah in the room and the key of the almirah was in the purse of the complainant. The purse was also lying in the same room and her entire jewellery and Rs. 1500 were found in the almirah. That shows that complainant and her husband were living separate in one room and her entire dowry articles and istridhan was in her own custody and none of the other in-laws had any kind of greed to take away her jewellery or her articles neither her goods were lying packed. The story of demand of Rs. 2? lac seems to be an invention made by the complainant and her father just to make a false case against the accused persons. Her father in his testimony stated that mother-in-law and brothers-inlaw demanded Rs. 2? lac from her on telephone much prior to the incident. Had it been so PW 5 in his written application Ex. PW 5/1 would have mentioned about this demand because in this application he has mentioned everything possible against the accused persons. A demand of Rs. 2? lac seem to be invented in consultation before making statement to the SDM and that is why when subsequent statement was recorded by the SDM of complainant, her father and mother this demand was included in the statement while prior to that in Ex. PW 5/1 there is no mention of demand of Rs. 2.5 lac neither it is mentioned that boy wanted a shop for him to be established in Chandni Chowk, what mentioned is the abject poverty of the boy and his inability to earn. 18. I consider that the story of the complainant that she was threatened by her husband and in-laws for making statement to doctor and SDM about her accidental burning is palpably false. Her husband was not even at home when the incident took place. Her husband used to go for his job and perhaps come back home after the arrival of his wife. He was working as a labour. The son of parties was living at Gurgaon with father of the girl. Her husband was not a criminal neither it is alleged that he had any criminal background. A poor man who was starving for his survival and had to work as a labour from morning till evening for livelihood, could not have given threats to kill his own son and father-in-law. This story of threat seems to have been developed later on by the complainant in consultation with father. The question would arise why the complainant would falsely implicate her in-laws. It is undisputed that complainant was not happy with her matrimonial life. Her husband was an idle man, who earlier was not doing any job. Complainant had to live at her parents’ house for 8-9 months together because of poverty of her husband. Complainant’s son was also being brought up by her father because of the poor financial condition of her husband. Complainant herself had to take a job as a labour. She was living with her husband while her son was living with her father in Gurgaon, miles away. It seems that after the incident her father advised her to call it a day and break this relationship once for all. But simultaneously it seems that it was decided that the in-laws must be taught a lesson for ruining the life of the complainant as she was got married to a worthless boy. May be some false representations were made at the time of the marriage about the worth of the boy. It is not uncommon that someone may decide to end the unhappy married life. It looks that the complainant made allegations of threat etc. only to turn a ‘U’ turn, as she and her parents had decided to call it a day for the unhappy married life of the complainant. 19. It must be understood that god had not made any two persons same with the same ideas, qualities and it must be acknowledged that marriages do fail and there is a mismatch not only in arranged marriages but even in love marriages. The mismatch is discovered during the continuation of married life. No doubt poverty is a curse and a poor man has to suffer in the society at different fronts but I consider that despite poverty being a curse, poverty cannot be made a crime. Neither the failed marriage can be made a crime. In this case, the poverty was not only a curse for the boy but it made to be a crime since due to his poor condition he could not provide all that which he should have provided to the wife and the wife ultimately saw to it that not only he but everyone of his other family members land in jail. Every marriage that fails does not fail due to dowry demand or cruelties. The marriages do fail for several other reaons including the reason of incompatibility of the persons. A failed marriage is not a crime however, the provisions of Section 498A are being used to convert failed marriages into a crime and the people are using this as tool to extract as much monetary benefit as possible. In many cases, where FIRs are filed under Section 498A IPC, petitions are being filed under Section 482 Cr.P.C. for quashing of FIRs after settlements between the parties and the allegations made of cruelties etc. are withdrawn the moment a lump sum payment is received. Involving each of the family members of the husband is another arm in the armory of the complainants of failed marriages. Not only close relatives but distant relatives and even neighbours are being implicated under Section 498A and other provisions of IPC in cases of failed marriages. The Courts must be very cautious during trials of such offences. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. No evidence about giving of dowry or resources of the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law. The investigating agency in all such cases must collect all circumstantial and other evidence in respect of claims made by the complainant and similarly Courts should always be careful in considering the credibility and truthfulness of the statement of the complainant and relatives. 20. From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement implicated the entire family in offences of under Section 307 and 498A IPC. The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence. Poverty should not be allowed to become a crime. Neither failed marriage be permitted to be a crime. 21 I allow these four appeals. All the persons/appellants are acquitted of Section 498A and Section 307 IPC. 22. The appellants, namely, Gyan Prakash in Crl. Appeal No. 787/2004 and Smt. Jeevani Devi @ Jamuna Devi in Crl. Appeal No. 749/2004 are directed to be released forthwith. A copy of the judgment be sent to the Superintendent, Central Jail, Tihar.
498A cannot be used to settle her personal scores : Quashed by Delhi HC
Kanchan Gulati And Anr. vs The State And Ors. on 12/9/2007
JUDGMENT
Shiv Narayan Dhingra, J.
1. This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant).
2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs. 2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs. 1,46,000/- and an amount of Rs. 4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.
3. On 06.5.1997 her husband filed a divorce petition in the Circuit Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.
4. Quashing of this FIR has been prayed for by the petitioners. It is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.
5. The complainant has not disputed about her contesting divorce petition and filing an appeal before the US Court. The orders of the US Court have been placed on record. The decree passed by the USA Court has not been challenged. The order of the US Court shows that the complainant had taken up all grounds like withholding her property, dowry etc. by her husband. The US Court directed the parties to exchange articles and passed following order:
A. That the bonds of matrimony now existing between the petitioner, ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.
B. That the marital home located at 1258 S. Pleasant Hill Gate, Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.
C. That each party shall receive his or her own vehicles and each shall execute any documents necessary to transfer the title of the vehicle to the other.
D. That each party shall receive his or her own personal property currently in his or her possession. That the Husband shall receive the following personal property as his sole property which shall be delivered to him by the Wife on March 21, 1999:
Sharp TV
Bed (with frame, and box spring)
Sharp Microwave
Small fridge
Cooking Utensils and accessories
Spices
Square side table (brown, wood)
3 Chairs ( wood frame and brown leather seat) Dining Table and Chairs
2 Chairs (steel frame, leather seat)
Glass top tables
Comforter from aunt
Utensils, spices and other stuff from my relatives.
E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.
F. That the Husband shall receive his stock options as his sole property.
G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.
H. That each party is barred from any maintenance from the other.
I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife’s interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.
J. That the parties shall exchange their dowry items within 60 days of the entry of this Judgment for Dissolution of marriage. The Wife shall give to the Husband all the items on the attached list:
One gold chain with pendant
One gold “krishna murti” pendant with diamonds. One diamond ring
one pair of big earrings (mina wale)
2 pair of earrings
one gold ring ( given on Kwar-dhoti)
one pair of silver paizeb
one long mangal-sutra (mina wala)
Bangles
One (1) Golden Challa (sister-in-law)
The Husband shall give to the Wife all items on the attached list:
One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings) One Sitarami Necklace (Necklace only)
One Gold Chain given to me
One Gold and Diamond engagement ring
One Gold wedding band
One Gold coin (guenea)
One Double gold chain given to my mother
One Gold chain given to my sister-in-law
Two gold rings (1 for my father, 1 for my brother) Two silver trays (rectangular)
One silver tray (circular)
One silver small bowl (katori)
One wedding saree
One luggage carrier (foldable cart)
Check book for bank account in Anuja’s name
6. The appellate order passed by the appeal court would show that appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfillling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.
7. Quashing of FIR in exercise of writ jurisdiction is a discretion of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.
8. I consider that it is a rarest of rare case, where the Court should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.
Courts are being used as a tool in 498A-Justice Shiv Narayan Dhingra
Smt. Sangeeta Kalra vs State on 2/3/2007
JUDGMENT
Shiv Narayan Dhingra, J.
1. This is a petition under Section 482 Cr. P.C. for quashing of FIR No. 518/2000, under Sections 498A/406/34 IPC.
2. Complainant in this case married petitioner’s brother on 11.3.99. She lived in matrimonial home for two weeks and left the matrimonial home. She wrote a letter to her husband giving reasons of her leaving matrimonial home, which reads as under:
Dear Raju,
There are several other things which I wanted to tell but I could not tell you, so I have gathered courage to write the same. I have now learnt that you are a good human being and you have condoned my several draw backs. Thus, I shall always be grateful to you. Raju, like any other girl, I also had dreams, which I could not tell you but I would like to tell you the same today, so that we can understand each other better and can give happiness and love to each other. My dreams were there should be light music in my room and my partner should shower love on me and should accept me from core of his heart fully. I should be attractive and we should be able to possess each other. Raju, I know there were some mistakes on my part that I could not seduce you completely. While preparing you mentally I forgot to prepare you physically. I am sorry. Henceforth I shall make full efforts that you get satisfaction from me and not from yourself. You must be understanding what I am trying to say. Raju, the relationship of husband and wife is not only of body but it is of heart and soul as well. I understand your all problems and I shall give company to you in all times. So far as babies are concerned, we will not have babies till you do not want them and I will not make any demand from you howsoever long it may take. Raju, I am going today, you should come to my parental house to take me back if you consider that I am not a useless thing. Raju, please destroy this letter after reading it so that it does not fall into the hands of others and we become laughing matter. And lastly thank you very much for all your affection, concern, care and love ( I hope so) ” I love you very much dear and will always do so even if you accept me or not it doesn’t matter”. Always your and only yours. Summi.
Post Script. – Raju I have disturbed you for several nights and now you should sleep properly. I know if you wanted you could have forcibly established relationship with me but you left me thinking as if I was a child. I would not get better husband than you in this world. I am very lucky that I got a husband like you and I thank god for giving such a wonderful husband.
3. This letter is undisputedly in the hands of complainant. After this letter, she never lived at the matrimonial home. This letter was written about two weeks after the marriage when she left the matrimonial home. First complaint thereafter was made to the police by her father on 24.6.1999 and in that complaint he specifically wrote that his daughter was at his home for more than three months which also shows that complainant had not lived with her husband for more than 10 days or so, since marriage had taken place on 11.3.99. In the complaint written by the father of the girl, he did not give the date of leaving of matrimonial home by his daughter and made all vague allegations without specifying any demand of dowry and any incident of cruelty. He wrote that few days after marriage of the girl, the boy, mother, father sometime accompanied by sister troubled the girl. The sister mentioned herein is the sister who was married much before the marriage of the complainant and was living in her house at New Friends Colony, which is almost 20 kilometer away from the matrimonial home of the complainant, with her husband and children. It is not alleged in this complaint or in the statement made by the girl that the sister of the boy left her matrimonial home and started living at her parental home. The sister who is married and having children, obviously has to look after her home. Thus, there was no occasion for her to live at the matrimonial home of the complainant.
4. It seems that the complainant, who left the matrimonial home due to failure of physical relationship and resultant dissatisfaction, later on thought of implicating every member of the family in an anti-dowry and cruelty case. Initially, she made vague allegations against everybody and thereafter made a supplementary statement under Section 161 Cr. P.C. supplementing her earlier statement. In the supplementary statement it is stated that her father spent more than Rs. 22,00,000/- on her marriage while there was no such claim made by her father even in his own complaint made to the police on 24.6.1999.
5. It is true that while considering the quashing of criminal proceedings under Section 482 Cr. P.C, the Court should not embark upon an enquiry into the truthfulness of the allegations made by complainant but where the charges are framed by the lower court without considering the material, with closed mind and charges amount to gross misuse of criminal justice system and trial is an abuse, it becomes the duty of the High Court to intervene in such cases, under Section 482 Cr. P.C so that there is no miscarriage of justice and faith of people remains intact in the judicial system. In this case, charges have been framed against the petitioner, sister of the husband, without their being an iota of evidence of any cruelty or entrustment of any property by the complainant in the intial complaint or in the later complaint. Even in subsequent complaint made by the complainant herself there are no specific allegations and only vague allegations are there involving every family member.
5. In G. Sagar Suri v. State of UP , Supreme Court observed that criminal proceedings should not be allowed to be resorted to as a short cut to settle the score. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under Section 482 Cr. P.C has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 Cr.P.C or Article 227 of the Constitution of India. In Indian Oil Corporation v. NEPC Indian Limited Supreme Court deprecated the tendency of using criminal justice system as a tool for arms twisting and to settle the score and laid down that High court can intervene where the criminal justice system is used as a tool.
6. In Ramesh and Ors. v. State of Tamil Nadu 2005 CRI.L.J 1732 in a similar case the married sister of husband living at her matrimonial home was roped in under Section 498A/406 IPC. In that case she had stayed at her parents house, for some days. In the present case, there are no allegations that petitioner stayed at her parents house even for one day after the marriage. Allegations against the petitioner in that case were that she directed complainant to wash W.C and sometimes made some imputations against her. Supreme Court observed that all these do not amount to harassment with a view to coercising informant or her relations to meet an unlawful demand. In the present case the complainant left house after leaving a letter to her husband giving reasons of leaving the matrimonial home. However, she turned colour after she started living at her parental house. She who showered praises on her husband for his understanding, love and affection, without living with him a day further, suddenly made allegations of dowry demand and cruelty and used language which is not used by the civilized persons. In her complaint she used abusive language for her father-in-law like ‘kameena’ and ‘zaleel’ etc. Simultaneously she claimed that she belonged to a well educated family.
7. I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed. I, therefore, hereby quash criminal proceedings against the petitioner under Sections 498A/406/34 IPC, in FIR No. 518/2000 Police Station Shalimar Bagh, Delhi. dusty.
Petition stands disposed of.
498A Quashed against minor Girls: Justice SN Dhingra
Smt. Neera Singh vs The State (Govt. Of Nct Of Delhi) And Ors. on 21/2/2007
JUDGMENT
Shiv Narayan Dhingra, J.
1. This petition under Section 482 of Cr.P.C. read with Section 397 and 401 of Cr.P.C. has been made on behalf of the petitioner for quashing/settingaside order dated 25th April, 2006 passed by, Additional Sessions Judge wherebythe learned ASJ observed that no charge was made out against two minor girlsnamely Kamlesh and Mamta Rani, sister in laws of the complainant (husband’ssisters) under Section 498A of the IPC.
2. A perusal of the FIR would show that the allegations against the twominor girls are that on the directions of their mother they stopped doinghousehold work and they used to tell her “bhabhi you have not brought gold itemsfor us, how we will give reply to our friends”. Complainant after narrating The words used by respondent stated that it had become clear to her that her in -laws were greedy and they were making demands of gold ring, gold chain etc. fromher.
3. Considering the allegations made by complainant in her statement to The police and in the FIR, the learned ASJ observed that the ingredients under section 498A of the IPC were not made out against the minor girls Kamlesh andMamta. The complainant had also not stated as to on which date such remarks asalleged were made by the two girls. There were no allegations of eitherphysical or mental torture by these two girls and, therefore, he considered thatno case was made out against the two minor girls under Section 498A of the IPC.
4. It is submitted by the petitioner that the learned ASJ has failed toappreciate that there were sufficient allegations in the complainant/FIR toconstitute offences under Section 498A of the IPC. Section 498A IPC reads asunder:
498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative or the husband of a woman, subjectssuch woman to cruelty shall be punished with imprisonment for a term which mayextend to three years and shall also be liable to fine.Explanation.-Fro the purpose of this section, “cruelty” means-
(a) any willful conduct which is of such a nature as is likely to drivethe woman to commit suicide or to cause grave injury or danger to life, limb orhealth (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view tocoercing her or any person related to her to meet any unlawful demand for anyproperty or valuable security or is on account of failure by her or any personrelated to meet such demand.]
5. Cruelty as defined in Section 498A of the IPC must meet the following requirements:
1. There should be harassment of the woman.
2. Harassment should be with a view to coercing her or any person related to herto meet the unlawful demand of a property or valuables security.
3. The harassment may be even where on account of failure by woman or any personrelated to her to meet any such demand earlier made.
6. The cruelty perpetuated on a woman may be physical or mental. However,not doing household work by minor girls either of their own or at the instanceof their mother, as alleged, cannot be stated to be cruelty to the woman or theutterances as assigned to these two minor girls that she had not brought anygold item for them would amount to harassment being made by minor girls for thepurpose of coercing her or her relatives to meet the unlawful demands.
7. Now-a-days, it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under Section 498A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the Courts to carefullys crutinize the allegations and to find out if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of complainant and there after observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations madeby the complainant, no other role was assigned to these two minor girls(respondents).
8. In view of the my foregoing discussion, I find no infirmity in the order passed by learned ASJ. The petition is hereby dismissed being devoid ofmerits.
Another Misuse Judgement from Karnataka HC – Full Text
498A IPC misuse judgement from Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25340 of 2010
BIPAT MISTRY
Versus
STATE OF BIHAR
———–
2. 12.08.2010 Heard learned counsel for the petitioner and learned counsel for the State. No case under Section 498A is made out even after accepting the allegation that informant son is 20 years old, two daughters are married and Rs. 10,000/- was demanded by the petitioner from informant’s son that was opposed by the informant which resulted in an incident of assault took place and she received injury but not grievous in nature. Accordingly, the prayer for anticipatory bail of the petitioner is allowed.
In the event of arrest or surrender within one month from the date of receipt/production of a copy of this order in connection with Ekangar Sarai P.S. Case No. 42 of 2010 above named, petitioner shall be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of A.C.J.M. Hilsa, subject to the conditions as laid down under Section 438 (2) Cr. P.C.
This case is an example that how the 2 provision under section 498A of the Indian Penal Code is misused.
Anand Kr. ( Mandhata Singh, J.)
Another Misuse acknowledge judgemet from SC
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1512 OF 2010
(Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus
State of Jharkhand & Another ….Respondents JUDGMENT
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent 2
resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.
3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.
3
4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.
5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken 4
place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.
6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.
7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also 5
stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.
8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offence could be made out against them.
9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:
6
“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”
10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.
11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.
7
12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.
13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their re- settlement may not be impossible.
8
14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?
15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.
16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process 9
from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.
17. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to 10
grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
18. This court had occasion to examine the legal position in a large number of cases. In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or
continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their
entirety do not constitute the offence
alleged;
11
(iii) where the allegations constitute an offence, but there is no legal evidence
adduced or the evidence adduced clearly
or manifestly fails to prove the charge.
19. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts. 12
20. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551, a three-Judge Bench of this court held as under:- “…..In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”
21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:
“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any 13
oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
22. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to 14
myriad kinds of cases wherein such power should be exercised:
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
15
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
23. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.
24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-
“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of 16
it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”
25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-
“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.” 17
26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.
27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.
28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with 18
matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.
29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-
“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, `cruelty’ means:-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the 19
moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains 20
intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never 21
visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not 22
be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.
36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the 23
appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.
……………………………J.
(Dalveer Bhandari)
……………………………J.
(K.S. Radhakrishnan)
New Delhi;
August 13, 2010
Another 498A IPC misuse Judgement – HON’BLE SRI JUSTICE P. SWAROOP REDDY
Judgement:
THE HON’BLE SRI JUSTICE P. SWAROOP REDDY Criminal
Petition No. 6642 of 2007
22-11-2007
Kamireddy Mangamma and others
State of AP represented by the Public Prosecutor
Counsel for the Petitioner: Sri D. Bhaskar Reddy, Advocate
Counsel for Respondent No.1: The Public Prosecutor
:Order:
This petition for granting anticipatory bail is filed by A-3 to A-7 in Cr.No. 251 of 2007 of P.S., Narsaraopet Town, Guntur District.
2. A-3 is the mother; A-4 is the elder sister; A-5 is the brother-in-law, being the husband of A-4; A-6 is the younger sister and A-7 is the brother-in- law, being the husband of A-6, of A-1,
the husband of the de facto complainant.
3. According to the complainant at the time of marriage twelve cents of plot worth Rs.6.00 Lakhs; cash of Rs.3.00 Lakhs; gold ornaments of Rs.1.00 Lakh and house hold articles worth Rs.50,000.00 were given to the husband (A-1) at the time of marriage, which was held on 19.5.2006. One month after the marriage, at the instance of A-2 to A-7, A-1 started harassing the complainant. A-3 went to USA some time after the marriage of the complainant and before her leaving for USA, A-3 subjected the
complainant to harassment both, physically and mentally and A-5, who is residing in USA is behind the scene in subjecting the complainant to cruelty. He used to change the minds of all the accused to subject her to harassment for money. From USA he used to speak over telephone, everyday and direct the other accused to harass the complainant, as A-5 bore grudge against the complainant. At the instance of A-5 all the accused abused and beat her several times for no fault of her. A-1 became a puppet in the hands of other accused and finally on 30.9.2006 A-1 necked her out from the matrimonial house.
4. Thus most of the allegations in the complaint are vague and petitioner Nos. 2 to 5 are married sisters and their husbands, who are admittedly living elsewhere and out of them, A-5 is living in USA. It is very difficult to believe that from USA A-5 every day used to telephone and instigate the other accused to harass the complainant. As per the complaint, A-5 has grudge against the complaint, but it is not stated as to why A-5 should have grudge against the complainant.
5. The contention of the learned counsel for the petitioners is that A-1, husband of the complainant filed a petition for divorce and a copy of the same is enclosed with this petition. As per the divorce petition, the complainant, herself, has been harassing the petitioners/ accused.
6. The nature of allegations referred to in the complaint, particularly against the present petitioners, particularly against petitioner Nos. 2 to 5, the married daughters and their husbands, would show that in all probability, the allegations are false and exaggerated. It is very difficult to believe that the third petitioner used to harass the complainant, all the way from USA by instigating the other accused, particularly when no reasons are shown for him to have any grievance against the complainant. The
reference to A-5 in the complaint, might be A-3 and, in fact, even that also would not make any difference.
7. In these circumstances, I hold that it is a fit case for granting anticipatory bail to the petitioners. Accordingly the petition is allowed. All the petitioners, who are A-3 to A-7 in Cr.No. 251 of 2007 of P.S., Narsaraopet Town, on their surrender before the Station House Officer of the said police station, within
ten days from today, shall be enlarged on bail, on each of them executing a personal bond for a sum of Rs.10,000-00 with two sureties for the like sum each to the satisfaction of the Station House Officer of P.S., Narsaraopet Town, Guntur District. The petitioners shall abide by the conditions laid down in Section 438 Cr.P.C.
8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands;unmarried sisters and brothers and married brothers and their wives. There are instances
where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined; marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of
unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.
9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
10. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband.
Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of the alleged victim like herself and her parents etc. These aspects have to be kept in view, while dealing with the cases of
anticipatory bail/bail in cases of offences involving section 498-A IPC.
Ram Lakhan Mandal And Ors. vs State Of Bihar (Now Jharkhand) on 20 January, 2004
Ram Lakhan Mandal And Ors. vs State Of Bihar (Now Jharkhand) on 20/1/2004
JUDGMENT
Vikramaditya Prasad, J.
1. This criminal appeal is directed against the order of Shri Vinod Kumar Sinha, the 5th Additional Sessions Judge, Giridih dated 25.5.1999 and 26.5.1999 whereby and whereunder the learned Court held the appellants guilty in Sessions Trial No. 251 of 1994 and convicted all of them under Sections 304B and 498A of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for nine years under Section 304B of the Indian Penal Code and fine of Rs. 2,000/- each and in default simple imprisonment for three months and further to undergo rigorous imprisonment for three years under Section 498A of the Indian Penal Code and a fine of Rs. 500/- and in default one month’s imprisonment. However, both the sentences were ordered to be run concurrently.
2. The conviction arose out of the following prosecution story as appearing in the Fardbeyan (Ext. 1) lodged by Ghanshyam Mandal, the father of the victim
3. It is not at all in dispute that the deceased Anita Devi was not married to appellant No. 1 and she did not die within seven years of the marriage. The autopsy of the dead body of Anita Devi was conducted by P.W. 5 Doctor who also proved the Post-mortem report (Ex. 2) and found no evidence of any injury on the person of the deceased and he could not ascertain the cause of death and consequently preserved the viscera but the viscera report did never reach the Trial Court and, therefore, whether the viscera contained poison supporting the prosecution allegation of administering of poison to the deceased remains absence. The conviction is mainly based on the oral dying declaration of the deceased and its corroboration by the statement of doctor before the police (Ext. 8) who examined the deceased when she was first brought to him.
4. In the aforesaid circumstance the following questions do require answer in this appeal:
(1) Whether the oral dying declaration in the facts and circumstances of the case is reliable piece of evidence on which conviction can be based?
(2) Whether the Ext. 8 which is the statement of the doctor before police who examined the victim is admissible evidence and can be relied upon, when the doctor did not turn up before the Court to depose?
(3) Whether there is any nexus between the death and torture for the demand of dowry?
5. Fardbeyan (Ext. 1) was recorded on the statement of the father of the victim on 1.12.1992. This is a detailed Fardbeyan as it appears from the prosecution story (supra) but it does not disclose that the daughter of the informant had made any dying declaration before her death. This simply says that the informant got information (Pata chala) that her in-laws had administered some poison. The learned Counsel for the appellant has argued that since the Fardbeyan made much after the death of the victim and contains every detail even of the previous year happening then had there actually been a dying declaration this would have been mentioned specifically in the FIR and its non-mentioning makes the dying declaration subsequent concoction and doubtful. To the contrary the learned Counsel for the State has argued that a Fardbeyan is not the Bible and it may not contain the entire fact and, therefore, on this score alone the dying declaration cannot be disbelieved. But it is clear that the Fardbeyan does not make any mention as to in whose presence the girl made the dying declaration. Therefore, the specific evidence that has come on the record has to be scrutinized carefully.
6. P.W. 1 is the brother of the victim. In paragraph 2 he says that on 18.10.1992 in night he got information that his sister had consumed poison then he and his elder brother Jay Prakash Mandal P.W. 2 went to the sasural of their sister where they found her unconscious and they removed her to the dispensary of Dr. Ramashankar and during the course of treatment there she regained sense and she uttered that at about 9 p.m. her mother-in-law and father-in-law had throttled poison to her and then during treatment she died. In paragraph 10 in examination-in-chief he said that the dying declaration if at all relates to the administration of poison by the mother-in-law and the father-in-law. In paragraph 6 of his cross-examination this witness says that when his sister made the aforesaid declaration that her mother-in-law and father-in-law had administered poison at that time there were his mother, his brother and father also present besides doctor Ramashankar From this evidence it is found that only the mother-in-law and father-in-law were named and at the time of that declaration the aforesaid three persons were also present including the father (informant). If he was present then in Fardbeyan the father in all fairness was expected to state that his daughter had made such a statement which he did not. This witness in further cross-examination (in para 12) says that he has stated before the police that after assaulting the mother-in-law and father-in-law had made Anita to drink poison. P.W. 9 is the I.O. in paragraph 13 he says that during investigation he (P.W. 1) had not stated specifically that her mother-in-law and father-in-law had administered poison rather he had stated that after assaulting, in-laws had administered poison. Thus it is found that his evidence before the I.O. was quite omnibus which became categorical in Court.
7. P.W. 2 is another brother of the victim who says that victim was removed to the clinic and there when she regained sense for some time she had declared that her mother-in-law and father-in-law and her husband had administered jahar and died then and there. In paragraph 10 of his cross-examination he says that he has stated before the police that after regaining sense she had disclosed that her mother-in-law and father-in-law and husband had jointly administered poison to her. P.W. 9 the I.O. in his evidence vide para 14 has said that this witness Jay Prakash had not stated before him that when Anita regained sense she said that the mother-in-law and father-in-law and Ram Lakhan (husband) had jointly administered poison rather he had stated before the police that she had made the statement that in-laws has committed atrocities and administered poison.
8. P.W. 3 is the father of the victim girl. In paragraph 3 of examination-in-chief he says that it was Ram Lakhan (appellant No. 1) who came and said that his daughter had consumed poison and then he started fleeing away. At that time it was 12 p.m. in night. Then Jay Prakash Mandal (P.W. 2) and Rajeev Mandal (P.W. 1) went to the sasural of his daughter and from there took her to Dr. Ramashankar and they also went there and the girl regained sense and stated that she has been put to atrocities and they had administered poison to her. According to him this was a dying declaration. To a Court question he clarified that among the administrators of the poison there was mother-in-law, father-in-law and husband then the girl died. In his cross-examination he says that he does not remember whether he made such statement before the police that when he reached the hospital her daughter regained sense and said that she was put to great julm and they had administered poison to her. In paragraph 4 at page 4 of cross-examination he says that the girl said the name of sas, sasur and pati and this was told to him by his sons (Bachhe). The I.O. vide paragraph 15 has said that he (father) had not given the statement before him that in the meantime his daughter regained sense and told him that she was put to great atrocities and in his presence Anita had not stated that poison was administered to her. Thus from his evidence three things emerge; (1) As per his own statement in para 4 of cross-examination he got information of the alleged dying declaration from his sons. (2) Meaning thereby he was not present at that time when such declaration was made. (3) He also did not make such a statement before the I.O. or even in his Fardbeyan.
9. P.W. 4 is the mother of the victim girl. In paragraph 3 in examination-in-chief she says that after coming to know at about 2 a.m. in night (though according to P.W. 3 it was 1 a.m. in the night and P.W. 2 it was 12 p.m. in the night) from her damad, Rajeev Mandal (P.W. 1) and Jay Prakash Mandal (P.W. 2) went to her sasural and took her to Dr. Ramashankar’s clinic and when he regained sense she told that her father-in-law and mother-in-law and husband had administered poison to her and thereafter she died. In cross-examination (Para-8) she says that when she regained sense she had told her two sons that it was her mother-in-law, father-in-law and husband who had administered poison to her thereafter she died. In paragraph 10 of cross-examination she was confronted with her previous statement made before the I.O. The I.O. simply said in paragraph 16 that she has said only this much that her daughter had been married in the year 1986. Before the I.O. she did not say about the dying declaration, but as per own evidence it appears that Whatever dying declaration was made it was made in presence of two sons and she had got information from her sons regarding it.
Here I find that though in his examination-in-chief the father (P.W. 3) says that victim has said that her in-laws has committed julm and administered poison, but in his answer to a Court question on that very moment he became elaborate in telling the names of the persons. Evidence on oral dying declaration should come in the form in which it was heard and then the Court appreciating it may come to a conclusion as to what was the meaning and indications of the deceased when he or she made it. Any Court question at the time of recording the trial though intended to remove ambiguity but, in fact, spoils the chastity of the statement, because the witnesses may use such an opportunity for adding or substracting something which may give a entire different meaning to what was actually said.
10. Uptil now it appears that two persons P.W. 1 and P.W. 2 were the persons in whose presence the dying declaration was made which is clear from the evidence of P.W. 4 also. The presence of P.W. 3 appears to be doubtful but to be safe I wish to compare the statement (dying declaration) as was heard by these three witnesses. P.W. 1 categorically said that her sas, sasur had administered poison (paragraph 1 and paragraph 6) though he did not speak this before the police. P.W. 2 says (paragraph 3) that sas, sasur and husband administered poison while father P.W. 3 says that she said she was put to great atrocities and they had administered poison. The variation in the statement is not difficult to decipher. While P.W. 1 completely excludes the husband, P.W. 2 includes the husband. P.W. 3 gives a general statement and that general statement was got specified by the Court. Anything said by the victim is expected to be heard in the same wards in which it was said. Here three witneses are hearing three things, therefore, I am of the view that these variations are due to conjectures and feeling of these three witnesses and not based on the real facts and, therefore, when the FIR was being drawn at that time also this dying declaration did not come in picture and, therefore, the father though he claims that he was present at the alleged time of dying declaration did not specifically disclose it though he gave every detail of the happenings right from the date of the marriage.
11. In the aforesaid circumstances it is held that their oral dying declaration is doubtful and not dependable and non-disclosure of such a dying declaration at the earliest in the Fardbeyan adds more doubt to this claim of the defence that no dying declaration was made. It is also held that the oral dying declaration when is stated before the Court by interested witnesses must come in its original form, a bit variation notwithstanding then it should be appreciated when the trial is concluded. The Court should not prompt a witness to give a particular meaning of that oral dying declaration and thus enlarging the scope of the dying declaration at the time of examination-in-chief of the witnesses. Such promptness, though may be inquisitive on the part of the Court but it helps the prosecution.
12. Question Nos. (2) Whether the Ext. 8 which is the statement of the doctor who examined first the victim can be admissible evidence and relied upon when doctor himself did not turn up before the Court to say it?
By now it is found that according to the P.W. 2, Doctor Ramashankar was also present when the dying declaration was made by the victim, when other witnesses aforesaid are the interested witnesses and could be prompted to concoct a story, the doctor was an independent witness, his statement before the police is contained in case diary. It has been admitted as (Ext. 8). The Trial Court used this statement (Ext. 8) as the corroborating evidence coming from an independent witness. This witness never was produced as a witness and on scanning the entire order sheet or the evidence I have not been able to find that this witness is either dead or untraceable or it was difficult to find out his whereabout. The statement recorded under Section 161 of the Cr.P.C. can be used for the purposes of contradicting the person who made the statement and not for corroborating him or any other witness. It is settled principle of law that the statement made during the police investigation are not substantive evidence and cannot be treated as such and it can be used for the purpose of contradiction of its manner. The proviso Section 162(1) can be used for the purposes of contradiction of the witnesses. Section 33 of the Evidence Act permits admission of such evidence given by a witness in judicial proceeding or before any person authorised by law to take it, when the witness is dead or cannot be found or incapable to give evidence or kept out of the way by the other party or his presence cannot be obtained.
13. Here the statement before the police is not evidence and such statement cannot be treated as an evidence before person authorised by law to take it. The police is authorised by law to collect the statement but not to record the evidence. Therefore, Section 33 of the Evidence Act is not applicable, consequently the admission of Ext. 8 as evidence is illegal and so corroboration of the witnesses (supra) by this piece of evidence is also illegal. This second question is answered accordingly. Thus the learned Trial Court has erred in admitting this evidence and using it for the purpose of corroborating other witnesses in arriving at the finding.
14. Question No. (3): Whether there is any nexus between the death and torture for the demanded of dowry?
The FIR (Ext. 1) clearly states that one year prior to the occurrence the accused persons after assaulting Anita had. broken her leg and it were the parents who got her treated and in-laws had not even come to see her. This was the affair of one year ago, according to the FIR. According to the FIR further on 16.10.1992, two days prior to the occurrence the mother-in-law, father-in-law and husband had abused her. The FIR does not show that this abuse was for the purpose of demand of dowry.
15. P.W. 1 the brother in his examination-in-chief says the story of the fracture of leg one year earlier had made a general allegation that they used to torture her for dowry. He does not give any specific time of such torture though one year prior they fractured her leg is stated categorically. In paragraph 8 this witness says that he came to know from the neighbour that Anita was tortured time-to-time. No neighbour has been examined and even no name of such witness has been disclosed. In paragraph 10 he admits that no panchayati was even called for to deal with the situation and in his evidence before I.O. he did not say that Anita was being tortured from time-to-time (paragraph 13 of the I.O. read with paragraph 9). Thus he is making the statement for the first time before the Court that from time-to-time Anita was being tortured and he had come to know this fact from the neighbours.
16. P.W. 2, another brother of the victim girl in paragraph 3 states making the allegation of one year prior to death makes statement that from time-to-time she was put to cruelty by the in-laws and they also used to demand dowry and one room. He also says that no panchayati was done. In cross-examination he says that in-laws always used to demand one room and for that they caused cruelty. The father says that in-laws demanded land for constructing a house. To a Court question in his examination-in-chief he said that he had executed a sale deed of some land in the name of daughter in the year 1992. In paragraph 5 in cross-examination he says (para 4) that he had never spoken earlier that her in-laws had demanded land but actually he had given the land. While the other two brothers (supra) deny any panchayati this witness says in paragraph 8 that there was a panchayati but he does not remember in which year the panchayati was done. In paragraph 13 he says that regarding the atrocities he came to know from the neighbour of the accused persons but he cannot say their names nor the date on which they said it. The mother P.W. 4 says in paragraph 6 that her daughter was tortured which was told by neighbour of the accused but she does not know the name of any person. In paragraph 12 she says that in-laws demanded dahej but no complaint was made against such demand. P.W. 7 through her wife came to know that she was being tortured but that wife has not come to say so and thus this witness is only hearsay witness on this point.
17. By now it appears that about the cruelty the knowledge was gained by the prosecution witnesses from the neighbour of the accused persons, but the prosecution failed to examine any such witness or even to name them as a witness. To the contrary the defence examined no witnesses. D.W. 1 proved that there was a partition though the partition deed was not proved it was simply marked for identification and said that accused persons were living at the same place but in the different houses and when the partition among the accused had taken place many other witnesses were also present (D.W. 1, Paras 2 and 3). The informant P.W. 3 was confronted with the question that whether the accused persons lived separately which he had denied. D.W. 2 also said that they lived separately and in this regard Ext. A was produced in which name of husband, wife and two children aged about 10 years and 7 years appears. This Ration Card is completely a doubtful document for the reasons that it appears to have been prepared in the year 1996 but it contains the name of the deceased who had already died in the year 1992. The sale deed by which the informant claims to have given land to his daughter on the demand for such by in-laws had not been brought on record which could have been a very convincing piece of evidence, that demand was made and corresponding to that such a deed was executed. Thus this withholding of the deed is not explained. Thus it is not proved that soon before the occurrence there was the atrocities to some demand of dowry, of course, one year prior to the death, there is allegation of fracture of leg by the in-laws but that time, distance and the death are wide apart. Under the aforesaid circumstances it is held that the most essential ingredient (soon before the occurrence) for proving the offence has not at all been proved. Thus it is held that there is no immediate nexus between the death and any cruelty perpetrated for demand of dowry.
18. Thus in the entirety of the discussion made above I find that the learned Trial Court’s reliance on oral dying declaration is unjust because there were inherent contradictions among the witnesses about the exact declaration made and that cannot be attributed to variation due to lapse of time and it was further vitiated by putting a question in the examination-in-chief whereby the prosecution witnesses got an opportunity to give a larger meaning to the dying declaration and it was further vitiated by its corroboration by a non-admissible evidence. The Trial Court also erred in finding that there was nexus between the death and demand of dowry and the atrocities pertaining thereto.
Thus I find that because of these errors, the learned Trial Court came to a wrong decision. The death of a young lady is no doubt is a cause of concern but in holding conviction the Court should be cautious that section is not misused.
19. In the result I find that prosecution has failed to prove the charge under Section 304B and also under Section 498A of the Indian Penal Code beyond all reasonable doubts and consequently the convictions under these sections and the sentence have to be set aside, which are hereby set aside. This appeal is allowed. The appellants are already on bail, they are acquitted of the charges and discharged from their bail bonds.
Rajeev Verma And Ors. vs State Of U.P. And Ors. on 5 March, 2004
Rajeev Verma And Ors. vs State Of U.P. And Ors. on 5/3/2004
JUDGMENT
Sushil Harkauli, J.
1. The respondent No. 4 who is the father of the wife Sharda Devi lodged an FIR against the husband, who is the petitioner No. 1 and the petitioners No. 2 to 5 at P.S. Phoolpur, District Varanasi under Sections 498A/504/506, IPC read with Sections 3/4 D.P. Act which was registered as Case Crime No. 225 of 1997. After investigation final report was submitted by the police, which was accepted by C.J.M. Varanasi.
2. A suit for divorce was instituted on 28-8-1999 by the petitioners. On 7-12-1999 written statement was filed in the suit. On 10-2-2000 another FIR was lodged by the respondent No. 4 at Mahila Thana, Allahabad against the petitioners under Section 498A, IPC and 3/4 D.P. Act which was registered as Case Crime No. 112 of 2000. After investigation charge-sheet has been submitted by the police being Charge-Sheet No. 17 of 2000 dated 28-12-2000 under Sections 498A, IPC and 3/4 D.P. Act.
3. This writ petition prays for quashing of the charge-sheet on the ground that the above sequence of events referred above indicate that the allegations in the FIR have been concocted to create a pressure after notice of the divorce suit.
4. The other and more important ground is that the real parties to the dispute i.e. the husband and wife have settled the matter by mutual consent and there has been a written compromise in which the parties have agreed to drop all the proceedings against each other including the criminal case in which charge-sheet has been submitted. Paragraph No. 4 of the compromise annexed as Annexure-8 to this writ petition states that the lady and her father (respondent No. 4) have agreed to give statement in favour of the accused in the police station as well as Court in the criminal case.
5. In this writ petition an interim stay of arrest was granted by order dated 20-3-2001, but the respondent No. 4 has not put in appearance which would indicate that the respondent No. 4 and his daughter have lost interest in the litigation and the alleged compromise is not fabricated or result of coercion. This in effect means that the parties have compounded the alleged offence.
6. The said offences are not compound-able.
7. It has been held by the Supreme Court in the case of B.S. Joshi v. State of Haryana, reported in 2003 (51) All LR 222 : (AIR 2003 SC 1386 : 2003 Cri LJ 2028) that in a proper case the High Court in exercise of its inherent power under Section 482, Cr.P.C. can quash criminal proceedings or FIR or complaint and Section 320, Cr.P.C. which deals with the compounding offence does not limit or effect such powers of the High Court (vide paragraph 13 of the law report).
8. In the same decision the Supreme Court has also laid down that the quashing can be done under Article 226 of the Constitution of India also, notwithstanding Section 320, Cr.P.C. (vide paragraph 7 of the law report).
9. In the light of the above law declared by the Supreme Court and in view of the facts mentioned above we are of the opinion that in the interest of both sides to put an end to these criminal proceedings, because even if the proceedings are not quashed, they are unlikely to result in conviction if the girl, her father and the witnesses do not support the prosecution story in Court.
10. Continuing such futile proceedings would be an unnecessary drain upon the time, money and other resources not only of the parties and witnesses, but also of the Court.
11. In the circumstances, we allow this writ petition and quash the charge-sheet No. 17 of 2000 dated 28-12-2000.
Amar Saran, J.
12. I have had the benefit of reading the concise and lucid reasons given by my learned brother in his judgment. I am in entire agreement with the reasoning of my brother and his proposed order quashing the charge-sheet in this case on merits. But a few words of my own are needed because I think that a recommendation should be made to the Law Commission for making an offence under Section 498A IPC compoundable.
13. It was heartening to note that the parties to this case have decided to bury the hatchet and have filed an application for compromising the matter on 24-10-2000 before the Judge, Family Court, Allahabad. We are disturbed by the spate of marital litigation, and have begun to wonder whether India is not going the way of the West. It was the sanctity of the institution of marriage and the understanding and tolerance in the relationship of the spouses which had given strength to couples to tide over critical periods in their lives. A good marriage and family life was the bedrock for bringing up well adjusted children with good values, who ultimately constitute the future of the nation. The Apex Court in a recent judgment (B.S. Joshi v. State of Haryana, 2003 (51) All LR 222 : (AIR 2003 SC 1386 : 2003 Cri LJ 2028) has expressed some of the problems which have arisen in view of the rise in marital discords with great felicity in para 12 of the decision.
“12. The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad are very apt for determining the approach required to be kept in view in matrimonial disputes by the Courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process, the parties lose their ‘young’ days in chasing the ‘cases’ in different Courts”.
14. The petitioner was forced to seek refuge in this Hon’ble Court due to the absence of powers under Section 320 of the Code of Criminal Procedure for compounding an offence under Section 498A of the Penal Code. Initially we doubted whether we could pass appropriate orders taking the compromise application into account, or whether the Hon’ble Supreme Court alone could pass necessary orders in its plenary powers under Article 142 of the Constitution. But this question appears to have been raised and answered in the above-quoted case of B.S. Joshi, (AIR 2003 SC 1386) which was examining the correctness of the High Courts’ view which had by the impugned judgment dismissed the petition filed by the appellants seeking quashing of the FIR, holding that offences under Sections 498A and 406, IPC being non-compoundable, the inherent powers could not be invoked by passing the mandatory provisions of Section 320, Cr.P.C. In this connection paras 1 and 7 of the judgment in B.S. Joshi which raise and answer the High Court’s objections may be usefully perused.
Para 1 : “The question that falls for determination in the instant case is, about the ambit of the inherent powers of the High Court under Section 482, Code of Criminal Procedure (Code) read with Articles 226 and 227 of the Constitution of India to quash criminal proceedings. The scope and ambit of power under Section 482 has been examined by this Court in catena of earlier decisions, but in the present case, that is required to be considered in relation to matrimonial disputes. The matrimonial disputes of the kind, in the present case, have been on considerable increase in recent time, resulting in filing of complaints by the wife under Sections 498A and 406, IPC not only against the husband, but his other family members also. When such matters are resolved either by wife agreeing to rejoin the matrimonial home or mutual separation of husband and wife and also mutual settlement of other pending disputes as a result whereof, both sides approach the High Court and jointly pray for quashing of the criminal proceedings or the first information report of complaint filed by the wife under Sections 498A and 406, IPC, can the prayer be declined on the ground that since the offences are non-compoundable under Section 320 of the Code, and, therefore, it is not permissible for the Court to quash the criminal proceedings or F.I.R. or complaint.”
Para 7 : “It is thus, clear that Madhu Limey’s case (AIR 1978 SC 47 : 1978 Cri LJ 165) does not lay down any general proposition limiting power of quashing the criminal proceedings or F.I.R. or complaint as vested in Section 482 of the Code or extra-ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if, for the purpose of securing the ends of justice, quashing of F.I.R. becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.”
15. The Apex Court in B.S. Joshi’s case (AIR 2003 SC 1386 : 2003 Cri LJ 2028) further pointed out that any prosecution where the wife does not support the prosecution version would be a lame prosecution with no likelihood of conviction. According to the decision (para 9), there may be many reasons for the wife not supporting the imputations. “It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds.” It would be improper in such situations for the Court to refuse a bona fide application oh the ground that this would amount to quashing a non-compoundable offence.
16. However I still think that the proper forum where the compromise application could have been properly considered, the averments and the voluntariness of the com-. promise could have been verified, and the appropriateness for allowing the parties to compromise the matter could have been considered, was the trial Court before whom the matter was at large and which was aware of the local situation. It is only because of the want of such a forum and procedure that we have been constrained to pass this order in the present writ petition.
17. It is not clear why Section 498A I.P.C. has not been made compoundable. Whether it was due to inadvertence on part of the law makers, or whether it was the result of pressure from women’s groups.
18. It may be true that some special provisions such as Section 304B I.P.C. for checking the growing menace of dowry deaths, and Section 498A IPC for domestic cruelty and violence against women were needed because increasing attacks on women were becoming the order of the day. With this end in view Section 498A IPC was introduced on 21-12-1983 by Criminal Law (Second Amendment) Act No. 46 of 1983. The provision has provided some succour where the natal family of the woman, or some women’s group has come forward to support the woman in her quest for justice.
19. The provision however has on occasion become an instrument of misuse. Reports from the subordinate Courts indicate that entire families of the accused, including old women are languishing in jail for days till they are granted bail by the Sessions Courts or the High Court because Magistrates have become fearful of granting bail in these cases because of public outcry even though the case is only punishable with imprisonment up to three years. This on occasion results in the abdication of their powers by the Magistrate before the Police or the complainant.
20. An all to easy resort to criminal prosecution under this provision may sometimes result in an irrevocable break down of the marriage, which may have been avoided if the parties had first sought to settle their disputes outside Court on their own or with the help of intermediaries. An incident of violence against the wife, although never condonable could have been the result of a complex set of factors, which law Courts rarely investigate, as the Courts usually take the position that they are concerned only with the discrete act of violence, but not its background. Two situations where outwardly the violence practiced on the woman may qualitatively appear the same may call for varying responses. Thus where a woman is subjected to cruelty because of an innate wickedness or inhumanity of the husband or his family members or because of greed for dowry, may be a proper case for recourse to proceedings under Section 498A IPC or under the Dowry Prohibition Act. But in another situation where the man belabours his querulous, quarrelsome wife in a momentary fit of anger, or wrongly vents his frustration on his hapless wife because he has suddenly lost his job or after he has been unfairly reprimanded by his boss, although condemnable, recourse to criminal proceedings may not be desirable.
21. There could be immediate gratification for the wife or her supporters when they implicate the errant husband or his family members in a case under Section 498A IPC or succeed in sending them to jail. But what happens thereafter. In the absence of other systems of support and the woman still being largely economically dependent, it is the woman who may become the sufferer in the end if a too early recourse to the law Courts is taken in these matters. It is not like a complaint against an erring neighbour or a stranger who has wronged you. If he is jailed or punished, the complainant is satisfied and his life is not affected significantly because there has to be no further economic relationship between the parties. This is not the case with an inter-dependent relationship like that between the spouses to a marriage. Ultimately however the best safeguard to a woman against domestic violence can only be her acquisition of an equal status with her spouse. This is only possible when she is economically empowered and becomes self-reliant, which in turn can only be ensured when the woman or girl child’s education is considered as important as a man’s education.
22. The pursuit of the invariably protracted litigation and the need to be repeatedly present on all dates in Court sometimes becomes an engine of oppression not only for the accused but also for the maker of the complaint.
23. The best women’s groups therefore resist the heady temptation of rushing to the media tarring the image of the man or his family as soon as there is a complaint of domestic violence by a wife, but first try to go to the bottom of the dispute and to effect a reconciliation between the parties. It is only as a last resort, when all efforts at reconciliation have failed that they seek the help of the law Courts or the police.
24. An analysis of Section 320 Cr. P.C. and an examination of its legislative history shows that usually two classes of cases have been made non-compoundable. These are very grave cases, or cases against the public interest. When basically it is an individual who is aggrieved, those provisions have usually been made compoundable, particularly where the offence is of minor nature. The Law Commission in para 24.66 of its 41st Report in connection with Section 345 of old, 1898 Code of Criminal Procedure which corresponds with the present Section 320 Cr.P.C. has expressed it as follows :
“The broad principle that forms the basis of the present scheme is that where the offence is essentially of a private nature and relatively not serious, it is compoundable”.
25. Thus Section 345 Cr. P.C. lists twenty-two Penal Code offences as compoundable at the instance of the aggrieved party without the permission of the Court. In the present 1973 Code these offences subject to some limitations, are Sections 298, 323, 334, 341, 342, 352, 355, 358, 426, 427, 447, 448, 491, 497, 498 and 500, 501, 502, 504, 506 and 508 IPC. Thirty-two Penal Code offences were made compoundable by the aggrieved party with the permission of Court. The corresponding provisions in the new Code of Criminal Procedure subject to some limitations are Sections 324, 325, 335, 337, 338, 343, 344, 346, 354, 357, 379, 381, 403, 406, 407, 408, 411, 414, 417, 418, 419, 420, 421, 422, 423, 424 and 428, 429, 430, 451, 482, 483, 486, 494, 500 and 509 IPC.
26. We find that these sections include offences relating to women such as Section 497 IPC which deals with adultery, Section 498 which deals with enticing or taking away or detaining with criminal intent a married woman. These offences can be compounded by the husband of the woman, and do not require any permission from Court. Section 354 which relates to assault or criminal force to woman with intent to outrage her modesty can be compounded after permission from Court. Specifically with regard to Section 354 IPC which has been made compoundable in the new Code of Criminal Procedure, the 41st Report of the Law Commission while recommending its inclusion observed as follows in para 24.70 : “We, however, agree with the suggestion that the offence under Section 354 IPC should with the permission of the Court, be compoundable by the woman on whom the assault is committed or to whom criminal force is used.” Likewise the offence of marrying again during the lifetime of husband or wife, (Section 494 IPC) has been made compoundable by the aggrieved party with permission of Court.
27. Now Section 498A IPC would also be in part materia with the above mentioned provisions of crimes relating to women. It deals with punishment for subjecting a married woman to cruelty. The punishment for Section 498A of three years imprisonment is also comparable with the 2 years imprisonment provided under Section 354 IPC, 5 years imprisonment provided under Section 497 IPC, 2 years imprisonment under Section 498 IPC, and 7 years imprisonment under Section 494 IPC. Thus it is not a graver offence than the other offences relating to women enumerated above.
28. Furthermore both for initiating investigation or for cognizance by a Court under Section 498A IPC the intervention by the aggrieved woman or her family members is needed. Thus according to the First Schedule of the Code of Criminal Procedure, Section 498A is only cognizable if information relating to the commission of the offence is given to an officer in charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative by any public servant. Likewise Section 198A Cr. P.C. prohibits cognizance by a Court in a case under Section 498A IPC, except on a police report or a complaint by the aggrieved woman or other relations by blood, marriage or adoption enumerated therein.
29. It then becomes completely illogical and anomalous if action (i.e. both for investigation and for cognizance by a Court) in respect of offences under Section 498A IPC can only be initiated at the instance of the aggrieved party, yet that party is disem-powered from compounding the offence against the other party even then the parties have come to terms.
30. To check misuse, Section 498A could be made compoundable by the aggrieved under Section 320(2) Cr. P.C. with permission of Court. The Court could then always refuse to grant permission to compound the offence where it is of the opinion that the application for compounding appears to be coerced or it is not bona fide, or where after a similar compromise on an earlier occasion, the present incident has occurred, and again the matter is being sought to be closed by a compromise. Need for permission by Court before permitting compounding could obviate any mala fide recourse to this provision.
31. The desirability of making offences under Section 498A IPC compoundable under Section 320 Cr.P.C. has also been emphasized in a Division Bench decision of the Allahabad High Court in the case of Km. Madhurima Bhargava v. State of U.P., 1999 (38) All Cri C 367 : (1999 All LJ 75 : 1999 Cri LJ 685). The following observations have been made in that decision :
“Although this is beyond our scope in this reference to suggest to make the offences in relation to marriage or married life compoundable, yet it would not be out of place to mention that in every provision of law relating to marriage, it has been provided that the Court shall first try to reconcile the dispute between the parties, i.e., husband and wife parties to the marriage and if reconciliation is not possible then to proceed with the case. Reconciliation is nothing else but a compromise of compounding between the parties. The Family Court Act, in which all the family disputes are covered is specific example of this fact. This is with a view to maintain a matrimonial home than to break it and in view of these facts we can only suggest than an offence pertaining to marriages should be made compoundable.”
32. In the light of all these observations and the facts and circumstances alluded to in this judgment I think it would be proper to suggest to the Law Commission to consider the appropriateness of making offences under Section 498A IPC compoundable under Section 320 Cr.P.C. although with the permission of Court. Let a copy of this decision be forwarded by the Registrar General of the Allahabad High Court to the U.P. and Central Law Commissions for appropriate consideration in the matter.
Lalit Bhatia Son Of Sri J.N. … vs State Of Uttar Pradesh And Sri … on 27 May, 2005
Lalit Bhatia Son Of Sri J.N. Bhatia, Sri Jagdish Narain Bhatia Son Of Sri R.K. Bhatia And Smt. Kanta Bhatia W/O Sri Jagdish Narain Bhatia vs State Of Uttar Pradesh And Sri Pritam Dass, S/O Sri Sawan Ram on 27/5/2005
JUDGMENT
Poonam Srivastava, J.
1. Heard Sri Sharad Malviya, learned counsel for the applicants, Sri Akhilesh Srivastava and Sri Dharmendra Singhal, Advocates, for the contesting opposite party and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed invoking inherent powers for quashing the complaint case No. 27 of 2000-Pritam Dass v. Lalit Bhatia and Ors., pending before the Judicial Magistrate-II, Aligarh.
3. The facts giving rise to the dispute is that Lalit Bhatia, applicant No. 1 was married with Smt. Mamta Rani, daughter of opposite party No. 2 on 17.5.1989 according to Hindu Rites. The wife came to her marital house and has performed all her marital obligations. One son Karan Bhatia was born in the year 1991 from the wedlock of applicant No. 1 and Smt. Mamta Rani. Till 31.8.1997 the husband and wife lived happily with a son born out from their wedlock. The applicant Lalit Bhatia was running a factory of Cosmetics at Delhi which was dang good business till the year 1995 but thereafter the factory suffered huge loss, as a consequence, the business was shut down. At this point of time on account of interference by parents and other family members, relations between Smt. Mamta Rani and applicant No. 1 became sour and she left her matrimonial house on 27.8.1997 Thereafter it is submitted on behalf of the applicants that continuous efforts were made on the part of the applicants to bring back Smt. Mamta Rani to her marital home. On one or two occasions she did come back but just for a short period and thereafter she left her in-laws house on one pretext or the other. The other side of the story is that after closer of the factory, the in-laws started making demand for dowry i.e. after 8 years of marriage and since the complainant was unable to fulfill the demand of Rs. one lac, it led to the institution of the criminal proceedings. The applicants had already given an information to the Station House Officer, Police Station Sarswati Vihar, Delhi on 1.9.1997 informing threats extended to the applicants by father i.e. opposite party No. 2 and his daughter Smt. Mamta Rani that they will ensure that the entire family members are implicated in criminal cases. This information is annexed as Annexure-1 to the affidavit. A notice sent by Smt. Mamta Rani to the applicant No. 1 was received on 18.1.1998 and he was called upon to take her back otherwise necessary consequences will ensue. Proceedings for divorce was initiated on 31.3.1998 and divorce petition No. 257 of 1998 was instituted in the court of Civil Judge (Senior Division), Aligarh, under Section 13 of the Hindu Marriage Act. A copy of the divorce petition has been annexed as Annexure-2 to the affidavit, to demonstrate that false and frivolous allegations were levelled against all the family members of the applicants to make out a ground for divorce. Finally, the instant criminal complaint was filed by the opposite party No. 2 on 5.5.1998, a copy of which has been annexed as Annexure-3 to the affidavit. The Statements under Sections 200 and 202 Cr.P.C. were recorded, which are also part of the record as Annexures-4, 5, 6, 7 and 8 to the affidavit. Learned Judicial Magistrate-II, Aligarh summoned the applicants under Sections 498A and 506 I.P.C. vide order dated 4.7.1998. The applicants appeared before the Judicial Magistrate and filed a review petition for reviewing the summoning order, which was also rejected. So far the order dated 7.4.2000 is concerned, there is no illegality in the said order, since the Criminal Procedure Code do not contemplate any power to review the summoning order. In the present application, I am only concerned with the original summoning order dated 4.7.1998 and also the prayer for quashing of the complaint. An application for maintenance was also moved under Section 125 Cr.P.C. by Smt. Mamta Rani which was dismissed in default. Counter affidavit has been filed on behalf of the contesting opposite party denying all the averments made in the affidavit filed in support of this application. Rejoinder affidavit has also been filed. Subsequently a supplementary affidavit has been filed on behalf of the applicants with a view to bring on record the original summoning order, which could not be annexed with the application and also the final judgment and decree dated 23.3,2002 passed by the 1st Additional Civil Judge (Senior Division), Aligarh in Matrimonial Petition No. 257 of 1998. It has been argued on behalf of the applicants that the complaint filed under Sections 498A, 323, 504, 506 I.P.C. read with Section 3/4 Dowry Prohibition Act is only a frivolous complaint with a view to cause harassment to the applicants and though it has been stated in the complaint that the wife was beaten by in-laws, there is no injury report on record as no injuries were examined, which goes to show falsity of the entire allegations. It has also been argued that the filing of the complaint is only a result to the threat extended earlier regarding which, information was given to the police by the mother-in-law Smt. Kanta Bhatia (applicant No. 3) on 1.9.1997. It has also been argued that prior to the lodging of the complaint, the divorce petition was instituted on the ground of cruelty on 31.3.1998 i.e. 2 1/2 months before the criminal complaint was filed. Counsel for the applicants has also placed the findings recorded by the learned 1st Additional Civil Judge (Senior Division), Aligarh in his judgment dated 23.3.2002 in the divorce petition. The part of the judgment, on which emphasis has been laid by counsel for the applicants, is that the complainant Pritam Dass, opposite party No. 2 was examined as PW-2 in the divorce petition and he has admitted that at no point of time any dowry was demanded directly from him, he came to know about it only through his daughter Smt. Mamta Rani. He has further admitted in his statement that there was no demand of dowry either at the time of wedding or before the wedding whatever gifts were given in the marriage, was the sweet will of the family members of the bride. The divorce petition, which was instituted by the wife Smt. Mamta Rani, was dismissed holding that in fact she was never subjected to any cruelty, on the contrary, the husband was subjected to cruelty at the hands of the wife and in the circumstances, the divorce petition was dismissed/Notices were issued in this application to the opposite party No. 2 and an interim order was granted. The applicants were directed to pay compensation of Rs. 2,000/- per month through a bank draft to Smt. Mamta Rani. Nothing has come in the counter affidavit that the payment in pursuance to the order dated 8.1.2003 is not being made. It is, therefore, presumed that since the interim order is continuing, the condition imposed is being complied with till date.
4. After hearing the counsel for the respective parties, I proceed to examine whether the complaint filed against the applicants can be quashed in exercise of inherent powers or not. The object of introducing Section 498A in the Indian Penal Code was to prevent a woman from being tortured or harassed by her husband or by her relatives with a view to extract dowry but at the same time it is relevant to examine that what is the meaning of cruelty against a married woman by the husband or his relatives to attract the offence and bring the family members and the husband within the purview of Section 498A and the consequent punishment. In the case of Sarla Prabhakar Vaghmare v. State of Maharashtra, 1990 Criminal Law Journal, 407, it has been held that in any event, the willful act or conduct ought to be a proximate cause in order to bring home the charge under Section 498A I.P.C., an event some times back can not be termed to be a factum, taken note in the matter of charge under Section 498A I.P.C. Legislative intend is clear enough to indicate any particular reference to Explanation (b) that there shall have to be a series of act in order to be harassment within the meaning of the said Explanation. In the present case, the complaint has been lodged on 5.5.1998 but in paragraph 3 of the complaint without mentioning any date, the allegation of dowry has been levelled against the applicants. In paragraph 6 again the allegation is that on 24.4.1998, the applicants came to his house and made demand of Rs. one lac from his family members. The complainant has stated in the complaint that the threat and demand was extended to him on the date when the family members have visited his house to take back their daughter-in-law. The same allegations have been repeated in the statements under Sections 200 and 202 Cr.P.C. but there is no injury report on record Besides the fact, the allegation in the divorce petition, which has been filed as Annexure-2 to the affidavit, spells out an entire different story. The judgment, which has been brought on record by means of supplementary affidavit in the divorce petition contains the evidence of the complainant, which was examined as PW-2 in the divorce proceeding. The denial before the divorce court was given on oath and court has come to a conclusion that there was no demand of dowry and wife was never subjected to any kind of harassment for demand of dowry. In view of the various categories laid down in the case of State of Haryana and Ors. v. Chaudhary Bhutan Lal 1991 (28) A.C.C., 111 (S.C.), the Apex Court has held that in the event, on the basis of admitted documents available on record, if the court prima facie comes to a conclusion that there are no chances of conviction, first information report, charge sheet or complaint as the case may be, can be quashed. In the case of R.P. Kapoor v. State of Punjab A.I.R. 1960 S.C. page 866. the Apex Court had carved out three specific categories where the criminal proceedings could be quashed. The three categories are enumerated below:-
(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged Absence of the requisite sanction may, for instance, furnish cases under this category.
(ii) Where the allegations in the First Information Report of the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
5. The facts and the evidence in the instant case is clearly covered under the third category’. There is no question of any enquiry or recording any evidence on the face of clear admission of the complaint in the divorce case.
6. I have gone through the entire records as well as supplementary affidavit and I feel that this is one of those cases in which the complaint has been filed only with a view to cause harassment to the husband and his family members. In fact it is gross misuse of the provisions of Section 498A I.P.C. which certainly pricks the judicial conscience and can not be left to stand. In the circumstances, I am in agreement with the argument advanced by counsel for the applicants that the continuation of the proceedings on the basis of complaint impugned in this application, is nothing short of an abuse of the process of the court and is liable to be quashed in exercise of inherent powers. I therefore, come to a conclusion that the complaint instituted by the opposite party No. 2 is frivolous one and is quashed The interim order directing for payment of Rs. 2000/- to Smt. Mamta Rani by the applicants is also discharged. The application is accordingly, allowed.
Brij Kishore Prasad, Sheojee … vs The State Of Bihar on 16 May, 2006
Brij Kishore Prasad, Sheojee Prasad And Suchita Devi vs The State Of Bihar on 16/5/2006
JUDGMENT
J.N. Bhatt, C.J.
Page 1247
1. This is an application under Section 482 of the Code of Criminal Procedure. 1973 (In short “the Code”), by which the petitioners have made a prayer for quashment of the order dated 24.11.2005 of Sub Divisional Judicial Magistrate, Nalanda, passed in Complaint Case No. 161(C)/2004, corresponding to Bihar P.S. Case No. 54 of 2004 by which the learned Court below has refused to discharge the petitioners from the charges under Sections 498A, 406. and 323 read with Section 34 of the Indian Penal Code.
2. The instant trial arises out of a complaint filed by the complainant-wife, Khusbu Kumari, against her husband, and the petitioners, alleging, inter alia, that she was married with Sanjay Kumar, in the year 2003, who was engaged in a partnership business with petitioners. After the marriage when the complainant came to live with her husband, she found that Braj Kishore Prasad was also living there along with his family. In course of time, the complainant gathered that her husband had illicit connection with petitioner No. 3. the wife of petitioner No. 1. and when she objected to it, her husband and the petitioners began to torture her, both mentally and physically. whereupon her father brought her with him. The complainant further alleged that the Page 1248 accused petitioners and her husband demanded Rs. 50,000/- from her. if she wanted to live with him separately. One night she found her husband and petitioner No. 3 sleeping on the same bed. When she protested, all the accused persons assaulted her and drove her out from the house.
3. Learned Counsels for the parties have been heard. Police papers and record emerging from the present case have also been examined.
4. In order to avail the inherent powers of the High Court under Section 482 of the Code for quashment of the Criminal Proceedings. it has to be shown that there is exceptional case for exercise of such powers. While exercising the jurisdiction under Section 482 of the Code, the High Court would not embark upon a fresh inquiry – whether the allegations against the petitioners in the complaint is likely to be established or not. The power under Section 482 of the Code, as per the settled proposition of law, has to be exercised sparingly. Such powers are extra-ordinary powers and are designed to help those persons against whom, on plain reading of the complaint petition or relevant papers, no offence is made out or constituted. The interference in minor matters with the help of Section 482 of the Code would be warranted only when the complaint or the first information report or the Police papers do not, even on plain perusal, constitute, prima facie, any offence against the accused persons.
5. In the recent decision in the case of Mohd. Malek Mondal v. Pranjal Bardalal and Anr. (2005) 10 SCC 608, the Hon’ble Apex Court has highlighted. once again, the principles for the purpose of exercising powers under Section 482 of the Code for quashing the criminal proceedings. When and how such powers should be excercised are also articulated and expounded. Obviously, such powers are to be exercised sparingly and with caution and not to stifle legitimate prosecution. Such powers could only be exercised in a case where the complaint does not disclose any offence and it is brought to the notice of the Court that it is frivolous, excessive, vexatious or oppressive. At that stage of quashment of the proceedings, meticulous appreciation of evidence or quality of the material or detailed analysis is not warranted.
6. In the instant case, upon consideration of the facts profile, as well as, the legal set up, highlighted herein above, and the record, it is noticed that, prima facie, no offence under Section 498A of the Indian Penal Code is disclosed against the petitioners, who are business partners of the husband of the complainant.
7. Learned Counsel for the State has also fairly conceded that in such a case, proceeding ought to be quashed as the provisions of Section 498A of the Indian Penal Code cannot be allowed to be misused.
8. Therefore, the impugned order dated 24.1.2004 passed by the Subdivisional Judicial Magistrate, Nalanda at Biharsharif, in Complaint Case No. 161(C) of 2004 corresponding to Bihar P.S. Case No. 54 of 2004 is quashed Consequently the entire criminal prosecution, so far as these petitioners are concerned, shall also stand quashed.
9. In the result, the petition shall stand allowed. Rule is made absolute.
Another Misuse Judgement-Punish Dowry Givers!!!
IN THE COURT OF
ASJ-II, NORTH WEST DISTT. ROHINI: DELHI
Uma Devi
W/o Sh. Sunil Garg,
D/o Sh. Jai Kumar,
R/o C-451/9, Chandra Quarters,
Rampura, Delhi-35.
Presently residing at
T/367/29, Onkar Nagar-B,
Tri Nagar, Delhi-35.
VERSUS
1. Sunil Garg
S/o Sh. S. C. Garg,
R/o 30, Rajdhani Enclave,
Pitampura, Delhi-34.
Address given in the complaint
E-1/21, Phase-I,
Budh Vihar, Delhi.
2. The State (NCT of Delhi)
Date of institution : 24.12.2009
Arguments heard on : 13.05.2010
Date of final order : 02.06.2010
O R D E R
This revision petition has been preferred by the revisionist/ petitioner Uma Devi the estranged wife of the respondent no.1, against the order of Ld. MM dated 21.10.2009 by way of which Ld. MM directed the SHO PS Maurya Enclave to conduct investigation on the allegations made in the complaint as they attracted the commission of cognizable offence under Section 3 of Dowry Prohibition Act.
The facts leading to the filing of the revision are briefly stated as under:
A complaint was made by the petitioner/ revisionist regarding harassment by the respondent and his family on account of dowry demand, on the basis of which FIR No. 218/09 was registered at Police Station Keshavpuram. In the said complaint it was alleged by the petitioner/ revisionist that she was married to respondent no.1 on 21.4.2008 according to Hindu Rites and ceremonies at Shubham Vatika, Mundka, Delhi. As per the allegations prior to the marriage Roka ceremony had taken place on 28.1.2008 and God-Bharai ceremony was conducted on 15.4.2008 at Meri-Maker Banquet Hall, Wazirpur, Delhi and during the Roka and God-Bharai ceremonies the father of respondent no.1 had spoken to her father regarding the expenses to be incurred on the marriage and had demanded that Rs.15 to 16 lacs should be spent on the marriage and 25% to 30 % more was to be spent on the amount settled. It is also alleged by the petitioner/ present revisionist that after the marriage she was being harassed on account of insufficient dowry and demands were made by her inlaws on account of which a detail complaint was filed by the revisionist with the CAW Cell on 16.1.2009, which was after the almost 8 to 9 months of marriage. It was further alleged that respondent no.1 and his parents are influential people and despite her complaint, except registration of the FIR No. 218/09 under Section 498A/406/34 IPC PS Keshavpuram, neither any dowry articles have been returned nor any arrest has been made.
After the registration of the above FIR the respondent no.1 who is the husband of the petitioner filed a complaint under Section 156 (3) Cr.P.C. before the Ld. MM alleging that the complaint of the present petitioner itself reflected that offences under the Dowry Prohibition Act, 1961 have been committed. It was alleged by the respondent no.1 that since the petitioner before this court has already alleged in her complaint on the basis of which the FIR was registered, that pursuant to the demand by the family of the respondent, the father of the petitioner fulfilled their demands.
The Ld. MM taking into account the aforesaid directed the investigations and now being aggrieved by the same the petitioner has approached this court alleging that in the complaint filed by the respondent u/s 156 (3) Cr. P.C, he had intentionally given wrong address as L-425, Shakarpur Colony, New Delhi-34 whereas he is in-fact residing with his parents at 30, Rajdhani Enclave, Pitampura, Delhi and now in the complaint on the basis of which the impugned order has been passed, he has given another false address i.e. E-1/21, Phase-I, Budh Vihar, Delhi.
The Revisionist has also assailed the order of Ld. MM on the ground that it is against the law and facts. It is pleaded that the revisionist was residing earlier at Rampura, and now at Onkar Nagar, Tri Nagar and the petitioner after her marriage had resided with respondent no. 1 and her in-laws at 30, Rajdhani Enclave, Pitampura, Delhi and no incident has happened within the jurisdiction of PS Maurya Enclave and the respondent no.1 has intentionally mentioned the police station Maurya Enclave in his complaint and the order passed on the said complaint is having no territorial jurisdiction. It is alleged that the impugned order has been passed on the basis of the false facts as a counter blast and as such is liable to he set aside. It is pleaded that the respondent no.1 and his relatives have been causing mental and physical harassment to her in respect of which FIR No.218/09 under Section 498A/406/34 IPC PS Keshav Puram has been registered. It is further pleaded that the offences for which directions have been given are not made out against her and her relations and as such the impugned order may be set aside as no specialized investigation is required to prove the allegations for commission of an offence under Section 3 of the Dowry Prohibition Act.
Notice was issued to the respondents but no reply has been filed. The trial court record has been called which I have duly perused. I have also gone through the written synopsis of arguments filed on behalf of the revisionist and the authorities relied upon by the parties, which are as under:
1. Sabir Vs. Jaswant and Others (2003) Vol. (1) RCR (Criminal) 479.
2. Ajai Malviya Vs. State of U.P. and Others, 2001 (Vol. I) RCR (Criminal) 83.
3. Pawan Verma Vs. SHO PS Model Town & Ors.2009 (Vol. 2) JCC 1000, Delhi High Court.
4. Kalia Prem Rattan Vs. State of Punjab, 2000 (Vol.1), RCR (Criminal) 769 (Punjab & Haryana High Court).
5. Trisuns Chemicals Industry Vs. Rajesh Aggarwal and Others, (1999) Vol. 8, SCC, 686.
6. Smt. Neera Singh Vs. The State (Govt. of NCT of Delhi) and Ors. 138 (2007), DLT-152, I (2007) DMC 545.
7. Suresh Chand Jain Vs. State of Madhya Pradesh, 2001, AIR, SCW 189.
Before proceeding further to decide the present revision on merits, it is necessary to observe that the order of Ld. Magistrate directing the police to investigate on the basis of the allegations made in a complaint under Section 156(3) Cr.P.C. can always be challenged in revision and therefore, the present revision petition is maintainable against the order of the Ld. MM.
The first challenge to the impugned order is on the ground of territorial jurisdiction of the Ld. MM to entertain the complaint. In this regard it may be observed that the present revision is the outcome of the order passed by the Ld. MM dated 21.10.2009 on a complaint under Section 156 (3) Cr.P.C. filed by the respondent. On that aspect it is necessary to observe that provisions of Sections 190, 193, 179, 177 Cr. PC, are very clear. The arguments that the Ld. Magistrate taking cognizance should have the territorial jurisdiction to try the case as well, is on the face of it erroneous. The provisions of Section 177 and Section 179 Cr.PC do not restrict the power of any court of Magistrate to take cognizance of the offence and the only restriction contained in Section 190 Cr. PC is that the power to take cognizance is subject to the provisions of this Chapter. Any Metropolitan Magistrate has the power to take cognizance of any offence, no matter whether the offence has been committed within his territorial jurisdiction or not. There is nothing in Chapter-IV of the Code of Criminal Procedure to impair the power of Metropolitan Magistrate to take cognizance of the offence on the strength of any territorial jurisdiction. The aspect of territorial jurisdiction would become relevant only when the question of inquiry or trial arises. Therefore, under these circumstances, I hereby hold that the Ld. Trial Court being the Metropolitan Magistrate, has power to take cognizance of the offence even if the offence was not committed within his territorial jurisdiction. The aspect of territorial jurisdiction becomes relevant only after during the post cognizance stage.
Before proceeding further to discuss the validity of the impugned order on merits, it is necessary to discuss the existing statutory law. Dowry Prohibition Act, is a welfare legislation which aims at curtailing and abolishing the vice of dowry. Whenever the valuable security has been given as a consideration for marriage or for continuation of marriage for a good and happy relationship, then under such circumstances an act of giving or taking of valuable securities are both covered by the Act. (Ref.: Inder Sen Vs. Sinte, 1988, Criminal Law Journal, 1116). Dowry is a two way traffic and unless there is a giver there can be no taker and it is for this reason that in order to eliminate this evil both the giver and taker have been made liable (Under Section 3 of the Dowry Prohibition Act) apart from the fact that even demand for dowry made is punishable (Under Section 4 of the Act). In a case where it is evident that there was a demand of dowry even before the marriage and pursuant to such demand, dowry was given as consideration of marriage, all persons making such demand for dowry and those giving valuable security as a consideration for marriage or for its continuance as well as those receiving this valuable security would be guilty under this Act. It is not possible to leave one and book another. Therefore, it is only that interpretation which is in-consonance with the object sought to be attained by the act that has to be adopted and nothing else would suffice.
Numerous social welfare legislations have been enacted in favour of women and Dowry Prohibition Act, 1961 is one such legislation denouncing traditions and customary practices derogatory to women. It is unfortunate that this legislation has been reduced to a mere paper tiger and what is more unfortunate is the fact that it is none else but the family of the women (involved in the marriage) who is responsible for non accomplishment of this legislation. Dowry is shamelessly demanded, given and received under the pretext of social compulsions. It is time that this Social Welfare legislation (Dowry Prohibition Act) is ruthlessly implemented and none is permitted to take the shield of social compulsions. This has become all the more necessary in order to check the misuse and abuse of Special Laws.
It has been observed that a large number of customary gifts are exchanged at the time of marriage. These gifts fall outside the purview of dowry in case if they are Istridhan and find a mention in the list prepared and signed by both the parties (the family of the girl and boy) as required under the Dowry Prohibition Rules. However, expensive gifts given to relatives which do not fall within the definition of Istridhan are taxable in the hands of the recipient, in case if the value of the gift which would be a transfer for inadequate consideration exceeds the statutory limit as provided under the Income Tax Act. Also, in case of gift of any immovable property, the same would require a compulsory registration. It is, therefore, necessary for the courts of law to ensure that due inquiry and investigations are got conducted not only with regard to the source of income of the person giving dowry but also as to whether these transactions are duly reflected in the Wealth Tax returns of both the Donor and the Donee. Further, in case if it is established that expensive gifts (i.e. transfer for inadequate consideration) were given to relatives (beyond the stipulated limit), the competent authority be informed so as to ensure a proper fiscal benefit to the government by way of tax from recipient of such a gift.
Coming now to the ground raised by the Revisionist that the order of the Ld. MM is against the law and facts. I may observe that the case of the present petitioner is that there was a demand of dowry by the respondent no.1 and his family even prior to her marriage. It is evident from the pleadings of the petitioner and even in her revision petition before this court she has alleged that there were discussions between her father and father of the respondent no.1 between the roka and godbharai ceremonies, wherein certain demands were made. On the basis of the aforesaid allegations FIR No.218/09 under Section 498A/406/34 IPC, PS Keshav Puram has already been registered on the basis of the complaint given by the petitioner against respondent no.1 and his family, which is under investigation. While the said investigations were pending, the respondent against whom allegations have been made by the petitioner in the main FIR, approached the court in the complaint under Section 156 (3) for proceedings against the present petitioner and her family for the various offences committed by him under the Dowry Prohibition Act and the Ld. MM vide the impugned order dated 21.10.09 directed the SHO concerned to carry out investigation into the allegations made which disclosed the commission of a cognizable offence.
In the present case, on the basis of the complaint given by the present petitioner, an FIR bearing No. 218/09, PS Keshav Puram had already been registered. Another complaint has now been given by the accused husband of petitioner for registration of counter FIR against the family of the petitioner who are alleged to have given dowry pursuant to the demand raised by the family of the husband even before the marriage. This being so, it is not possible for the Ld. Magistrate under the given circumstances to make inquiries with regard to the correctness of the allegations regarding giving or taking of dowry which can only be got inquired into and investigated by the investigating agency which is already investigating the complaint given by the present petitioner alleging harassment on account of insufficient dowry on the basis of which the FIR has been already registered.
Directions of the High Court are the laws declared binding all subordinate courts. While dealing with a similar case Hon’ble Mr. Justice S.N. Dhingra of the Delhi High Court has in the case of Smt. Neera Singh Vs. The State (Govt. of NCT of Delhi) and Ors. 138 (2007), DLT-152, I (2007) DMC 545, observed that Section 3 of the Act lays down a punishment for giving and taking dowry and therefore not only is it necessary for the courts to insist upon the compliance of the rules framed under the Act and draw adverse inference where these rules are not followed, but also to ensure that due inquiry and investigations are got conducted in all such cases which come before it with allegations of demand of dowry……. Whenever it is noticed that unaccounted cash amounts or expensive gifts are given at the time of marriage as consideration there of, then it is necessary for the courts of the Ld. Magistrates to bring these facts to the notice of the government authorities including the Income Tax authority so that not only the sources of the income of the person allegedly giving dowry but also the correctness of the allegations with regard to giving dowry are got verified and both the giver and the taker are brought to law. This being so, all subordinate courts are bound by the aforesaid directions and are under an obligation to get an inquiry conducted and bring these facts to the notice of the Government Authorities particularly the Income Tax authorities.
The incidents of misuse and abuse of special provisions of dowry harassment are increasing by the day. The already overburdened judicial system cannot permit its misuse and abuse and it has, therefore, become necessary for the courts to verify the correctness of such allegations so as to eliminate the false complaints made in this regard at its inception. In view of the aforesaid, I find no ground to intervene. The revision petition is hereby dismissed being devoid of merits. The trial court record be sent back alongwith copy of this order. Copy of this order be placed before the Commissioner of Police, Delhi to ensure strict compliance of the directions of the Hon’ble Delhi High Court in the case of Smt. Neera Singh Vs. The State (Govt. of NCT of Delhi) and Ors. (Supra) while conducting investigations in cases of dowry harassment. Revision file be consigned to Record Room.
Announced in the open court
(Dr. Kamini Lau)
CHANDER KANTA LAMBA & ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV. P. NO.267/2008 Reserved on : 30.7.2009
Date of Decision : 21.12.2009
CHANDER KANTA LAMBA & ORS. Petitioners Through: Ms.Geeta Luthra, Sr.Adv. with Mr.Jatin Sehgal,
Advocate.
Versus
STATE & ORS. Respondents Through: Mr.Jaideep Malik, APP for
the State.
Mr.Tiger Singh, Adv. for
the respondent no.2.
CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported in the Digest ? YES V.K. SHALI, J.
1. This is a revision petition filed by Chander Kanta Lamba, Suman Bhardwaj, Manju Mal and Neeru Behl-sisters in law of the complainant Ms.Namrata Behl against the order dated 04.03.2008 by virtue of which the learned MM, Patiala House Courts directed the framing of charge under Section 498A/34 IPC against the petitioners.
2. Briefly stated the facts of the case are that the complainant got married with one Sh.Naresh Behl according to Hindu rites and ceremonies on 17.1.2000 in Delhi. It seems that Crl.Rev. P.No.267/2008 Page 1 of 12 the marriage did not last long and resulted in breakdown, as a consequence of which the complainant, Ms.Namrata Behl lodged a complaint on 11.9.2001 with the Crime Against Women Cell to take action against her husband Naresh Behl and his other family members for allegedly making illegal demand of dowry and treating her with cruelty. On the basis of the said complaint, an FIR No.111/2002 was registered at P.S. Malviya Nagar by the police against Naresh Behl (husband), Mohini (mother in law)(since deceased), Chander Kanta Lamba, Suman Bhardwaj, Manju Mal, Poonam Behl and Neeru Behl-sisters in law and one Rajiv Behl, brother in law of the complainant.
3. After investigation, the charge sheet was filed. While as all the accused persons were sent for trial the name of Poonam Trehan was shown in column No.2 in the charge sheet. She was residing out of India. Column No.2 deals with the persons who are not sent for trial for lack of evidence.
4. It has been stated in the impugned order that so far as the mother in law of the deceased is concerned, she has expired during the pendency of the proceedings and accordingly, the proceedings vide order dated 20.6.2006 against her are deemed to have abated.
5. In the complaint, the main allegation made by the complainant against the accused persons and their brother Naresh Behl was that they had demanded a sum of Rs.5 Crl.Rev. P.No.267/2008 Page 2 of 12 lacs and her articles were retained which are alleged to have been returned to her during the pendency of the investigation. So far as the present petitioners are concerned, the allegations made in the complaint are that Chander Kanta Lamba, Suman Bhardwaj and Manju Mal use to plant false stories about the complainant and Manju Mal and Neeru Behl had also deliberately and intentionally removed the money from the purse of their mother, Mohini and accused the complainant of stealing her money. There are general allegations that all the sisters in law namely the present petitioners had subjected her to demand of dowry and consequent cruelty on the basis of which they deserves to be dealt with in accordance with law.
6. The learned Magistrate after hearing arguments discharged Rajesh brother in law of the complainant while as it directed framing of charge against the present petitioners for an offence u/s 498A IPC only.
7. The learned counsel for the petitioners had cited six judgments, which are detailed below:
” i) Neera Singh Vs. State (Govt. of NCT of Delhi) & Ors. 138 (2007) DLT 152
ii) Anu Gill Vs. State & Anr. 2001 (2) JCC (Delhi) 86
iii) Ramandeep Kaur Vs. State of Punjab 2001 (4) RCR (Criminal) 394
iv) Mukesh Rani Vs. State of Haryana 2002 (1) RCR (Criminal) 163
v) Ujjal Maitra & Ors. Vs. Kanchan Maitra 1998 Cri.L.J. 1002
vi) Ramesh & Ors. Vs. State of Tamil Nadu AIR 2005 SC 1989″
Crl.Rev. P.No.267/2008 Page 3 of 12
8. But the learned MM has distinguished cases of Anu Gill, Ramandeep Kaur, Ramesh and Ujjal Mitra and observed that the facts of these cases are totally different and there are allegations against the present petitioners which constitutes subjecting the complainant to cruelty, if not physical at least the mental which falls within the ambit of Section 498A IPC and therefore, directed the framing of charge u/s 498A of the IPC.
9. As regards, the offence u/s 406 of IPC all the accused persons were discharged from the aforesaid offence.
10. The petitioners feeling aggrieved by the aforesaid impugned order have preferred the present revision petition.
11. I have heard the learned counsel for the petitioners and the complainant as well as the learned APP.
12. The main contention of the learned Senior counsel for the petitioners is that the learned MM has grossly erred and committed illegality by directing framing of charge against the present petitioners, who were admittedly married much prior to the marriage of the complainant with the brother of the petitioners. It is contended that they were living in their matrimonial homes separately and peacefully. They had obviously no reason to make suggestions to the complainant to get the dowry from her parents or subject her to cruelty. The learned Senior counsel has referred to the authorities which were cited before the learned Magistrate in order to urge the point that invariably in a Crl.Rev. P.No.267/2008 Page 4 of 12 matrimonial dispute there is a tendency on the part of the complainant to enrope almost all the relatives once the relations get strained between the parties and this is precisely what has been done in the instant case.
13. Secondly on merits also, it has been contended by the learned Senior counsel that the allegations which are made against the present petitioners are too generic in nature which are highly improbable to be believed. No date, time or place has been given by the complainant in her complaint and moreover an impression is sought to be created as if all the petitioners had made the demand for dowry around the same time and simultaneously subjected her to cruelty.
14. The learned counsel for the complainant has refuted the contention of the learned Senior counsel for the petitioners and contended that at the stage of framing of the charge only a prima facie case has to be made out and since the learned MM has formed an opinion that a prima facie case is made out against the present petitioners this revisionist Court should not sit as a Court of Appeal and substitute its own view in place of view expressed by the learned Magistrate. The learned counsel has relied upon the following judgments of the Apex Court in this regard :
15. So far as the learned APP for the State is concerned, he has left it to the Court to decide the question as to whether the Crl.Rev. P.No.267/2008 Page 5 of 12 charge can be framed against the present petitioners or not.
16. I have carefully considered the respective submissions of the learned counsel for the parties and gone through the record as well as the impugned order. At the outset, I must say that the learned Magistrate has grossly fallen into a serious of error and committed a grave illegality by directing the framing of charge against the present petitioners by distinguishing the authorities referred to by the petitioner.
17. There is no dispute about the fact that no two different cases are similar. It has also been observed by the Apex Court in Haryana Financial Corporation Vs. Jagdamba Oil Mills AIR 2002 SC 834 that while applying the principles of law laid down in a case, the Court should not apply the law blindly or mathematically. It must analyze the facts of the case in which such a law is laid down and co-relate the same with the facts of the case where the proposition of law is sought to be made applicable.
18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or Crl.Rev. P.No.267/2008 Page 6 of 12 even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.
19. By such a conduct not only the gravity of the offence against the husband who is the main accused gets diluted, even the parents in law or other relative who are not ordinarily living in a joint family are enroped and weakened because she loses on her credibility. It is in this background that in Mukesh Ranis case (supra), the learned Single Judge of Punjab and Haryana High Court has observed that
“whenever there is a matrimonial dispute
between the husband and wife for the fault of husband other relations of the husband
that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living
jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”
20. The learned Judge had shown the concern of the Court that the provisions of Section 498A/304B IPC and the presumptions which are permitted u/s 113A and 113B of the Evidence Act, 1872 by the legislature in its wisdom, for the protection of women, have been put to greater misuse by the girls side than to the actual use.
21. Similar is the observation in Anu Gill’s case by the learned Single Judge of our own High Court wherein the proceedings against the sisters in law themselves were quashed by the High Court. It is not correct on the part of Crl.Rev. P.No.267/2008 Page 7 of 12 the learned Magistrate to observe that there were no allegations against the sister in laws in Anu Gills case and therefore, the case was distinguishable. On the contrary, admittedly there were allegations against the sister in law which was considered to be totally vague, unworthy of credence by the Court. The allegations which were made by the complainant in Anu Gill’s case was that the in-laws of the complainant had demanded various gold items apart from a sum of Rs.11 lacs from the complainant to meet the requirement of the cash expenses for the “chuchak” ceremony of Anu Gill by the parents of the husband.
22. The nature of allegations in the two cases are bound to be different and merely because a generic term of in-laws was used, it did not mean that the complainant in the reported case did not make allegations against Anu Gill who would also form part of inlaws.
23. Another learned Single Judge of our own High Court in case titled Savitri Devi Vs. Ramesh Chand 2003 (11) DMC 328 has again echoed the same sentiments of the Court that though the provision in question has been made by the good intentions of the legislature but implementation has left a very bad taste and it has become counter productive as there is a growing tendency amongst women to perpetuate an action against the parents in law, relatives irrespective of the fact whether they are minor school going children, distant relatives. Because of the FIR having been Crl.Rev. P.No.267/2008 Page 8 of 12 registered against them, they are made to run for protection of their liberty.
24. In the light of the aforesaid concern which the different Judges of different High Courts have shown from time to time, one thing is very clear that as and when the relations between husband and wife get strained, then allegations are levelled not only against the husband but all his relatives with a view to teach him a lesson.
25. I have purposely not referred to all the authorities cited by the learned counsel for the petitioner because they are also echoing almost the same sentiments.
26. Coming back to the facts of the present case, I feel that this is precisely what has happened in the instant case also that although the marriage had taken place in the month of June, 2000, but the relations got strained may be on account of alleged illegal demands having been made by the husband or the relatives who were ordinarily living with him in a joint family but certainly it is highly improbable to assume that the married sisters of the husband of the complainant who got married much prior to the marriage of the complainant and were living in their own matrimonial homes would come down simultaneously to the matrimonial home of the complainant and subject her to demand of dowry and the consequent cruelty. Therefore, on this ground itself, I feel that the charge against the present petitioners is not prima facie made out nor is any Crl.Rev. P.No.267/2008 Page 9 of 12 grave suspicion to have summoned such an offence available on record to put them to trial.
27. Even if it is assumed that the allegations as have been made by the complainant are true on its face value even then they do not fall within the mischief of Section 498A of the IPC. A perusal of the impugned order shows that the complainant had alleged against the petitioners that they planted false stories or that they took out money from the purse of the mother in law of the complainant and accused complainant probably of stealing of the said money or that the petitioners and her husband tied her twice in May in order to compel her to bring Rs.5 lacs. So far as these two allegations are concerned, they do not fall within the mischief of cruelty as is enunciated in the explanation to Section 498A of IPC. So far as explanation a is concerned, it is willful conduct of such a nature which is likely to drive a women to commit suicide or cause grave injury or danger to her life whether mentally or physically which will tentamount to cruelty and certainly this does not fall within the said parameters. In explanation b, there must be harassment of the women with a view to coerce her and her relations to unlawful demand and obviously a plain reading of explanation b would show that there should be more than one act, only then it will constitute harassment while as in the instant case, there is no such allegations that there were series of action to which the complainant was Crl.Rev. P.No.267/2008 Page 10 of 12 subjected with a view to extract dowry either from her or her parents or relations. On the contrary, the allegations made in the complaint are vague, unspecified and improbable as no date, time or place of any incident is given. The same would be the fate of the allegation that the petitioners along with the husband of the complainant had tied her in May, 2000 in order to compel her to bring Rs.5 lacs from her father.
28. It is understandable or believable prima facie that her husband might have tied her subjecting her to cruelty with a view to demand dowry of Rs.5 lacs but extending the said allegations qua the present petitioners who are admittedly married sisters living separately in their own matrimonial homes is absurd, unbelievable and not worthy of credence and accordingly on merits also, I feel that the trial Magistrate has fallen into a serious error which will result in great mis-carriage of justice by directing the petitioners to face the trial for an offence u/s 498A IPC.
29. I cannot refrain from mentioning that in a case of this nature, the Court has to be very sensitive and it should not get swayed by emotions which the complainant may be suffering from with a view to put persons or relatives who are totally unconnected with the incident to the facing of the trial in itself in present times is a great deal of punishment especially in the light of the fact that the same Crl.Rev. P.No.267/2008 Page 11 of 12 continues endlessly for years together on account of heavy load on the learned MM.
30. For the reasons mentioned above, I feel that the order dated 4.3.2008 passed by the learned Magistrate is not only improper, illegal but also incorrect on appreciation of facts as well as the application of law so as to warrant framing of charge against the present petitioners for an offence u/s 498A IPC.
31. Accordingly, all the four petitioners are discharged.
32. Copy of this order be sent to the learned Trial Court for the purpose of information.
V.K. SHALI, J.
DECEMBER 21, 2009
RN
Crl.Rev. P.No.267/2008 Page 12 of 12
IN THE HIGH COURT OF UTTARAKHAND
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Government Appeal No. 1452 of 2001
Old Number
Government Appeal No. 2333 of 1996
State of U.P.
Now State of Uttarakhand. ..Appellant.
Versus.
Nishikant .Respondent
Present:
Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ appellant. Mr. Vivek Shukla, learned counsel for the respondent.
Hon’ble Nirmal Yadav, J.
This appeal has been preferred by the State of Uttarakhand challenging the judgment dated 30.08.1996 vide which accused respondent Nishikant has been acquitted of the charges under section 304-B, 306 and 498A of Indian Penal Code (hereinafter referred to as “IPC”).
Facts, in brief, are that marriage between Nishikant and Pushp Lata (since deceased) was performed on 14/15.04.1988 in a hotel at Amritsar. According to PW2 Lokman Das Agarwal, father of Pushp Lata, Nishikant as well as his mother Prakashwati started harassing his daughter and making demand of dowry immediately after the marriage. According to the complainant, he had been 2
fulfilling their demands as per his capacity. Even one year prior to the present occurrence, Prakashwati had tried to set Pushp Lata on fire but somehow she escaped. Pushp Lata was not even provided with proper meals and other basic necessities. On 29.03.1991, she was given beatings by the accused and thereafter, she was set on fire by pouring kerosene oil on her. The complainant came to know about the incident on 30.03.1991. On reaching Dehradun, he found that Pushp Lata had received hundred percent burn injuries and was not conscious. Complainant submitted a written complaint (exhibit Ka 11) before Kotwali Incharge, Dehradun and on the basis of the said complaint, chick First Information Report (exhibit Ka 27) was recorded on 30.03.1991 at 07.30 p.m. According to the complainant, as per understanding between the parties prior to the marriage, all the articles and cash, as demanded by them, were given at the time of marriage. He had given a draft of Rs. 30,000/- before marriage to Hari Gopal Gupta, father of accused Nishikant. On the date of marriage, FDR of Rs. 20,000/- in the name of Nishikant and Pushp Lata, was given by complainant. However, the said FDR was encashed by Nishikant before the maturity date. This amount of FDR was initially deposited in the saving account of Pushp Lata but later on, the said account was closed and the entire amount was withdrawn by Nishikant. In spite of the articles and cash having been given as per the demand made by Nishikant and his family, they were not satisfied. Both 3
Nishikant and his mother wanted to purchase a plot measuring 850 sq. yard at Dehradun and for the said purpose they demanded a sum of Rs. 75,000/- from the father of deceased. Nishikant along with Pushp Lata came to the house of complainant at Meerut asking to give a sum of Rs. 75,000/- to him. However, complainant expressed his inability to pay the said amount. The said plot was purchased by Nishikant by arranging the money from some other source but Nishikant started harassing Pushp Lata thereafter. Pushp Lata informed her father about his behaviour. Complainant had visited the office of Nishikant i.e. ONGC, Dehradun and also his house and advised him not to harass his daughter but there was no improvement in the situation. Pushp Lata informed her father vide letter exhibit Ka-7 that Nishikant had decided to perform second marriage and on receiving the said letter PW2 Lokman Das Agarwal again went to Dehradun to advise Nishikant and his mother. During the said visit, he found one ‘can’ containing kerosene oil lying in the bedroom of Pushp Lata. He inquired from Nishikant as to why kerosene oil was lying in their bed room when they are having gas cylinder, on this Nishikant explained that they use kerosene oil whenever there is no electricity in the house. Accused Nishikant had given one written estimate (exhibit 1) to the complainant stating as to how much amount has been spent in marriage and how much amount is yet to be paid. According to this estimate Rs. 75,000/- was shown as balance towards 4
complainant. Complainant also produced letters (exhibit Ka 6, Ka 7 and Ka 8) written by Pushp Lata to the complainant and his son Yogesh Agarwal.
On 29.03.1991 at 08.20 a.m. Pushp Lata was admitted in ONGC Hospital, Dehradun where she was attended by Dr. S.L. Gupta, who sent information to the police at 08.55 a.m. which is exhibit Ka 3. He prepared treatment summary Exhibit Ka 2 with regard to patient Pushp Lata. On the request made by Nishikant vide application exhibit Ka 4 to the effect that he wanted to get his wife treated at Safdarjung Hospital, the patient was referred to Safdarjung Hospital and was removed along with medical attendant. Dr. S.L. Gupta is stated to have got recorded the statement of Pushp Lata through attendant Kanta Mohan Rawat, which is exhibit Ka-1 on the record. On 30.03.1991, Pushp Lata was admitted in Safdarjung Hospital at 12.40 a.m. and was attended by Dr. C.L. Thakaral, Neurosurgeon. As per the summary prepared by Dr. Thakaral, Pushp Lata had received hundred percent deep burn injuries all over the body. She was conscious but she could not survive even after treatment. She died on 31.03.1991 at 03.20 a.m.
Complainant PW2 Lokman Das Agarwal reached Safdarjung Hospital on 30.03.1991 and thereafter, he went to the office of Mr. B.K. Sehgal, Sub Divisional Magistrate, South Delhi at 10.25 a.m. on 30.03.1991 and disclosed that his daughter has been set on fire by Nishikant and his mother Prakashwati. His 5
daughter Pushp Lata wanted to make her statement. SDM vide letter exhibit Ka 18 inquired from the concerned police official and the doctor who, was treating Pushp Lata, – as to whether patient was in a fit condition to make statement. However, doctor reported that patient was not fit to make statement. Complainant also made statement before SHO, police station Vinay Nagar and also before the Magistrate, which were attested by Mr. B.K. Sehgal. Statement of Yogesh Agarwal was also recorded which is exhibit Ka-14. After the death of Pushp Lata, SDM sent letter (exhibit Ka 15) for conducting autopsy on the dead body of Pushp Lata. SHO prepared the inquest report (exhibit Ka 16). After the death of the deceased all the papers were sent by the police official of police station Vinay Nagar to SP, Dehradun. Initially, the investigation was conducted by Sub Inspector Anilekh and later on it was handed over to Circle Officer Shyam Singh Yadav. Thereafter, it was entrusted over to Additional Superintendent of Police Shailendra Pati Tripathi (PW8). He recorded the statement of Dr. S.L. Gupta and Dr. A.S. Anand of ONGC Hospital, Dehradun and arrested the accused. He also recorded the statement of PW2 Lokman Das Agarwal on 02.07.1991 and took into possession the letters handed over by PW2 Lokman Das Agarwal. Thereafter, the Investigating Officer recorded the statement of other witnesses. The Investigating Officer moved an application (exhibit Ka 25) before the Magistrate for 6
taking specimen hand writing of accused but he refused to give his specimen writing.
On completion of the investigation challan was presented against the accused and he was chargesheeted under section 304B, 306, 498A IPC to which he pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined PW1 Dr. S.L. Gupta; PW2 Lokman Das Agarwal, father of the deceased; PW3 Dr. Ashok Kumar Sharma, Medical Officer at Safdarjung Hospital; PW4 B.K. Sehgal, SDM, South Delhi; PW5 Yogesh Agarwal, brother of deceased; PW6 Sharad Chand Sharma, Branch Manager, Cooperative Bank, Meerut; PW7 Hukum Singh, ASI at Police Chowki Safdarjung Hospital; PW8 Shailendra Pati Tripathi; PW9 Constable Jai Bhagwan.
Accused when examined under section 313 Cr.P.C. denied the allegations put to him by the prosecution. According to him, in the year 1986 he was working as Inspector in Custom and Central Excise Department. His marriage was settled through advertisement in the year 1988 without any demand of dowry. The marriage was performed on 15.04.1988 during day time as those were days of terrorism. He further stated that his wife remained with his parents for few days in Tarantaaran. Thereafter, she went to Meerut to appear in MA Part I examination on 01.05.1988. She came back to Dehradun after her MA 7
examination on 22.05.1988. According to him since his wife was feeling lonely he brought his brother’s daughter Vandana from Tarantaaran and got her admitted in class V. He further stated that when his wife returned from her parent’s house at Meerut, she told him that Vandana should be sent back to Tarantaaran on which he told her that she could not be sent back to Tarantaaran as situation in Punjab was not congenial due to terrorism. In the month of October 1988, PW2 Lokman Das Agarwal also came to Dehradun and asked him that Vandana should be sent back to Tarantaaran, but on his refusal he got angry. PW2 Lokman Das Agarwal, complainant, wrote a letter to brother of accused Nishikant that Vandana should be taken back from Dehradun but Nishikant informed his father-in-law that Vandana will not go back from Dehradun thereafter, Pushp Lata started harassing his niece Vandana. He further stated that Pushp Lata gave birth to a baby boy on 04.02.1989.
Pushp Lata wanted to continue her studies and accused Nishikant always supported and cooperated with her. In the month of April 1989 she went to Meerut to appear in MA Final year examination. After completing MA, Pushp Lata took admission for B.Ed. in Maharishi Dayanand University, classes which were held in Saharanpur in November, 1989 and Pushp Lata used to commute everyday from Dehradun to Saharanpur to attend the classes. According to accused, Pushp Lata along with her entire family went 8
to Jwala Devi, Chintpurni, Vaishno Devi etc. and from there they went to Tarantaaran and thereafter, Pushp Lata came back to Dehradun on 26.10.1989. In the month of September, 1990 Pushp Lata was to be operated at Dehradun and therefore, Nishikant called his mother to look after her. Meanwhile, in the month of October 1990 Pushp Lata was selected for the post of Assistant Post Master. She joined training in Postal Department on 31.12.1990 at Saharanpur. She applied for AAO in LIC, IAS and PCS, competitive examinations which were to be conducted from the month of April, 1991 upto July, 1991. From Saharanpur sometime she used to visit Meerut and sometime she would come to Dehradun. The training continued upto 15.03.1991. During this time their son was living at Tarantaaran with his mother. However, Pushp Lata had asked her mother-in-law to come to Dehradun along with her son and therefore, she came to Dehradun. Since 28 29 March, 1991 were holidays, therefore, in the morning of 29.03.1991 accused along with his wife had made a programme for going to Mussorie. Vandana also expressed her desire to accompany them. While Vandana was getting ready Pushp Lata inquired as to where was she going. On this Nishikant told Pushp Lata that Vandana was also accompanying them to Mussorie. However, Pushp Lata flared up and refused to take Vandana along with them Nishikant’s mother requested Pushp Lata to take Vandana with her stating that she is also like her own child. On this Pushp Lata got enraged and threw a 9
slipper on the face of her mother-in-law. Nishikant felt very bad and advised Pushp Lata not to behave in this manner in front of children. Thereafter, he went out but after some time on hearing cries of children, he came inside the house and found his wife engulfed in fire. He inquired from his wife as to why did she put herself on fire. Pushp Lata told him that out of remorse she had set herself on fire and requested Nishikant to save her. He immediately removed Pushp Lata to ONGC Hospital. He further stated that doctor informed the police about the incident. Some police official had also came to the hospital and made inquiries from Pushp Lata. On the same day, Nishikant requested the doctors at ONGC Hospital to provide him ambulance so that he could remove his wife to Safdarjung Hospital for better treatment. He also informed his father-in-law through telegram, who had reached Safdarjung Hospital in the morning of 30.03.1991. However, Pushp Lata died on 31.03.1991. Her last rites were performed on 01.04.1991 at Nigam Bodh Ghat, New Delhi by the accused.
After taking into consideration the entire evidence on record, the learned trial court acquitted accused Nishikant of the charges alleged against him.
The grounds highlighted by the trial court for acquitting the accused are that firstly that it was not a dowry death but deceased had herself committed suicide out of remorse. Second, the testimony of PW2 Lokman Das Agarwal and PW5 Yogesh Agarwal, 10
father and brother of decased are not reliable. Third, the letters exhibit Kha-3, Kha-6, Kha-7, Kha-9, Kha-10, Kha-12, Kha-13, Kha-14 and Kha-15 had been written by Pushp Lata and these letters indicate that Pushp Lata was very happy with her mother-in-law as she looked after her after the delivery of child and thereafter also. None of these letters proved that any demand of dowry was made by the accused or that Pushp Lata was ever harassed for the demand of dowry. Fourthly, the trial court relied upon the alleged dying declaration exhibit Ka1 made by Pushp Lata before Dr. S.L. Gupta wherein she has stated that she herself has committed suicide out of anger. Learned trial court has then relied upon the testimony of DW 1 Vandana and DW2 Anil Kumar, niece and brother of the accused Nishikant, who have proved that Pushp Lata committed the suicide out of anger and remorse.
I have heard learned counsel for the parties and perused the entire evidence and documents on record.
Learned AGA argued that learned trial court has erred in relying upon the alleged statement made by Pushp Lata in the hospital before Dr. S.L. Gupta. It is submitted that statement was recorded in the presence of Nishikant, who was working with ONGC and therefore, he must be have influenced over the doctor, who was working in the ONGC Hospital. It is further argued that testimony of PW2 Lokman Das Agarwal and PW5 Yogesh Agarwal, father and brother of 11
deceased, has been brushed aside by the learned court below on flimsy grounds. It is argued that from the testimony of PW2 Lokman Das Agarwal, it is well proved that accused and his mother were not satisfied with the dowry given at the time of marriage of Pushp Lata and PW2 Lokman Das Agarwal has categorically stated that just after marriage Nishikant and his mother started harassing his daughter. He also stated that Nishikant had complained on the date of marriage itself that the jewellry given by him is not pure and it contained more copper than gold and the clothes given for his relatives are of inferior quality. According to him, he had given a bank draft of Rs. 30,000/- in the name of father of Nishikant prior to the marriage and he had also given FDR of Rs. 20,000/- in the name of Nishikant and his daughter Pushp Lata. He also stated that Nishikant and his mother made a demand of Rs. 75,000/- for purchasing a plot in Dehradun and when he expressed his inability, his daughter was harassed for non-fulfillment of their demand. She was kept without meals for many days. According to him, his daughter had informed him about her harassment and maltreatment meted out to her through letters. He further stated that Nishikant had given an estimate mentioning therein the estimated expenditure of marriage and the actual expenditure incurred during the marriage. As per this estimate Rs. 75,000/- remained balance out of the estimated amount of expenditure and the said amount was being demanded by the accused from the complainant.
12
Learned AGA submitted that similar is the statement of PW5 Yogesh Agarwal. Both of them have referred to the letters written by Pushp Lata exhibit Ka-7 and exhibit Ka-8. In the First Information Report the complainant has mentioned that one year prior to the incident, Nishikant and his mother had tried to set Pushp Lata on fire. Even on the date of occurrence, Pushp Lata was given beatings, thereafter, she was burnt to death.
Learned AGA further pointed out that learned trial court has failed to appreciate the testimony of trustworthy and reliable PWs and has placed undue reliance on the testimony of DW1 Vandana and DW2 Anil Kumar. Learned AGA further argued that the testimony of PW 3 Dr. Ashok Kumar Sharma has been misread and not been interpreted in proper perspective.
Learned AGA argued that since Pushp Lata received hundred percent burn injuries so it was not possible for Pushp Lata to give statement (exhibit Ka- 1) prior to her death. He further pointed out that even there is no certificate of the doctor that patient was in a fit condition to make statement, therefore, statement exhibit Ka-1 cannot be relied to suggest that Pushp Lata had herself committed the suicide due to anger.
On the other hand, learned counsel for the accused respondent argued that there is not iota of evidence with regard to demand of Rs. 75,000/- having 13
ever made by him. Learned counsel for the respondent pointed out that even PW2 Lokman Das Agarwal has admitted in his cross examination that marriage was settled through advertisement. He also admitted that he has not mentioned in the First Information Report with regard to demand of dowry before marriage. He admitted in the cross examination that he has not made any expenditure from his own account and the marriage was performed from the account of Pushp Lata, which was about rupees two lakhs. However, he failed to disclose any reasonable source of income of Pushp Lata.
Learned counsel further argued that marriage of Nishikant and Pushp Lata took place in the month of April, 1988, however, demand of Rs. 75,000/- and estimate is alleged to have given after 4-5 months of marriage. Learned counsel further pointed out that prosecution has failed to produce the original copy of the estimate and only carbon copy of the alleged estimate has been produced. According to PW2 Lokman Das Agarwal the said estimate was sent by his daughter Pushp Lata whereas PW5 Yogesh Agarwal stated that his sister had given the said estimate to his father in his presence but he could not disclose the year or month in which the said estimate having been given by his sister. Learned counsel argued that there is nothing on record to show that any list with regard to dowry articles had been given or prepared at the time of marriage. Learned counsel further argued that 14
there is no proximate link between the alleged cruelty based on the demand of dowry and death in question. None of the witnesses stated that soon before death any demand was made by accused Nishikant or by his mother or any other family members. Rather it is well proved from the letters written by Pushp Lata, PW2 Lokman Das Agarwal and other letters produced by the defence that Pushp Lata was leading a normal happy life with her husband and in-laws and she never complained about any harassment having been caused to her on account of demand of dowry. He referred to the letter exhibit ka-7 wherein only one stray sentence is mentioned that her husband has decided to perform second marriage. The said letter is dated 28.09.1989 but thereafter several letters in the years 1989 and 1990 have been exchanged between Pushp Lata and her father and other family members wherein there is no mention about the second marriage or any demand having made by the accused or any of his family members. Learned counsel for the respondent vehemently argued that accused Nishikant had always been supportive and encouraged his wife for further studies. She passed B.Ed and M.A. examinations and also appeared in other competitive examinations. She had filled the form for competitive examinations of AAO LIC, IAS and PCS. She had been looked after by her mother-in- law Prakashwati after delivery of her child as well as when she was being operated for fibroids. Learned counsel further argued that deceased Pushp Lata had 15
been selected for the post of Assistant Postmaster and was undergoing training at Saharanpur and during that period her son was with mother of accused Nishikant. She had been visiting her parents as well as Dehradun during the period of her training. Pushp Lata had written letters in this regard to her father. In case, Pushp Lata was being harassed or treated with cruelty for demand of dowry accused would not have allowed her to work in independent manner and to pursue higher studies or to appear in the competitive examinations. Learned counsel argued that the only circumstance which emerges out from the letters is that Pushp Lata did not like that Vandana, daughter of Nishikant’s elder brother, who lived and pursued her studies with them at Dehradun. This has been depicted in various letters of Pushp Lata and her father PW2 Lokman Das Agarwal written to accused Nishikant and his brother. On account of Vandana only, got enraged on the date of occurrence and threw slipper towards her mother-in-law and when Nishikant advised her not to behave in this manner, out of remorse or out of anger, she herself committed suicide. Learned counsel pointed out that in case, Nishikant had set her on fire he would not have removed her to the hospital immediately nor he would have taken her to Safdarjung Hospital for better treatment. Learned counsel for the accused respondent further submitted that even the last rites of Pushp Lata were performed by Nishikant at Nigam Bodh Ghat, Delhi. Learned counsel argued that there is nothing on 16
record to prove that there was any demand of dowry and the trial court has rightly come to the conclusion that Nishikant had no role to play in the unnatural death of his wife Pushp Lata.
On careful consideration of rival submissions and scrutinizing the evidence on record, I endorse the view taken by the learned trial court, as prosecution case mainly rests on the testimony of PW2 Lokman Das Agarwal and his son Yogesh Agarwal (PW5), letters exhibit Ka-7 and exhibit Ka-8, alleged estimate exhibit 1. However, on the careful scrutiny of the testimony of PW2 Lokman Das Agarwal and PW5 Yogesh Agarwal, I find that their testimony is full of contradictions and discrepancies. Their testimony is also not corroborated by any independent witness or documentary evidence. It has been well established from the evidence on record that there was no demand of dowry at the time of marriage or thereafter. Even from the letters exhibit Ka-7 and exhibit Ka-8 it is not at all proved that Pushp Lata had complained to her parents with regard to demand of dowry made by accused Nishikant or his mother. In letter exhibit Ka-7 she simply stated she would like to continue her studies and in case, she has to go through some bad time she would at least able to make her both ends meet. She further stated that she does not have any faith in anyone as he (it appears that she is mentioning about her husband) has decided to perform second marriage. No other letter written after this letter has 17
mention about second marriage or any harassment being meted out to her. Learned counsel referred to letters exhibit Kha-3, Kha-6, Kha-7, Kha-9, Kha-10, Kha-12, Kha-13, Kha-14 and Kha-15. As far as letter exhibit Ka-8 is concerned, as there is no proof with regard to the delivery of this letter to PW2 Lokman Das Agarwal. As per PW2 Lokman Das Agarwal, this letter was sent by his daughter to him through Kedar Nath, Sub Postmaster. However, this fact has neither been disclosed in his statement made under section 161 Cr.P.C. nor in the statement recorded before the Magistrate Mr. B.K. Sehgal. Kedar Nath has not been produced in the witness box, therefore, veracity of this letter is not at all proved. The prosecution has also failed to prove that FDR which was given by the complainant at the time of marriage in the name of Nishikant and his daughter Pushp Lata was encashed by Nishikant or that he had withdrawn the said amount. There is no mention about this fact in any of the letters written by Pushp Lata. Even PW5 Yogesh Agarwal admitted in his statement that before marriage no settlement with regard dowry was made. It is worth mentioning that Pushp Lata passed her B.Ed. and M.A. examination after marriage. She had applied to appear for many competitive examinations. She was selected for the post of Assistant Postmaster and had undertaken training at Saharanpur. After the training she had joined the service in the Postal Department in the month of March, 1991. It appears that accused Nishikant and Pushp Lata had very 18
cordial relations with each other. The only point of conflict appears to be that Pushp Lata did not want Vandana, daughter of elder brother of Nishikant to live with them. On this account only they had some controversy between them.
As per statement of accused, on 28 29 March, 1991 he was having holiday. He had planned to go to Mussorie along with his wife on 29.03.1991. Even Vandana wanted to accompany them. Nishikant agreed to her request, however, when Pushp Lata came to know that Vandana would also accompany them she objected about Vandana accompanying them. At that time, mother of Nishikant requested Pushp Lata to take Vandana along with them, as she is like her own child. On this Pushp Lata threw slipper on the face of her mother-in-law. On this Nishikant advised Pushp Lata not to behave in such a manner in front of children as it would show her in poor light before children. It may be possible that Nishikant had given beating with slipper to his wife, as he must not have liked the way she treated his mother and on this Pushp Lata got infuriated and in a fit of anger she set herself on fire. This fact is further corroborated by the statement of Dr. S.L. Gupta, who stated that Pushp Lata was brought to the casualty unit on 29.03.1991 at 08.20 a.m. as medico legal case. On inquiry stated that she had put herself on fire and thereafter, she ran towards the room of her husband. He further stated that Pushp Lata had made statement (exhibit Ka-1) at 19
08.45 a.m. This statement was written by Kanta Mohan Rawat, Attendant, in his presence and Pushp Lata had put her thumb impression and signature underneath the said statement and the said statement was attested by him. Learned AGA has challenged the statement exhibit Ka-1 on the ground that there is no certificate given by doctor that patient was fit to make statement and as per the statement of PW3 Dr. Ashok Kumar Sharma, Pushp Lata was having hundred percent burn and in such a situation her general condition must be very poor and it was not possible for her to make any statement.
I have gone through the statement (exhibit Ka-1) recorded by Dr. S.L. Gupta and do not find any ground to disbelieve his statement. He is an independent witness. A perusal of his statement reveals that he had no bias either in favour of accused or against the patient or her family members. He categorically stated that he had informed the police immediately after the admission of Pushp Lata. The police had reached the hospital and he had told them that patient had made a dying declaration and in case, police wanted to make any inquiry from her they can do so. He categorically stated that patient was talking while she was admitted. In reply to a question he replied a patient having hundred percent burn injuries can speak for 5-6 hours or 8-9 hours as it depends on the condition of the patient. PW3 Dr. Ashok Kumar Sharma also admitted in cross examination that a 20
patient having hundred percent burn injuries can speak upto 3-4 hours. Thus, in the circumstance referred above, there is nothing to disbelieve the statement of Dr. S.L. Gupta and statement (exhibit Ka- 1) in which Pushp Lata has stated that out of anger she threw slipper towards his mother-in-law Prakashwati which fell on her foot, thereafter, her husband gave 3-4 slippers beatings to her, thus, out of anger she enclosed herself in the room and poured kerosene oil on her and set herself on fire and thereafter she open door and went towards her husband room, however, thereafter, she did not know what happened to her.
The legislature enacted the provision of section 304-B IPC and section 113-B of the Indian Evidence Act, to deal with social evil of dowry, however, sometimes it is seen that these provisions are more pronounced in their misuse and there is general tendency to implicate husband or his relatives after death of the wife takes place. The present case is also one of such cases. There is no convincing evidence against the respondent that he had treated Pushp Lata with cruelty or harassed her for demand of dowry. Rather it has been culled out from the entire evidence on record that Pushp Lata pursued higher studies after marriage and she was also successful in getting her career secured, as she was selected for the post of Assistant Postmaster and had joined the service in the earlier part of March, 1991. All these achievements 21
could not be possible without the support of her husband.
From the above discussion, I am of the view that prosecution could not prove the essential ingredients of section 304B or 498 A as well as 306 IPC. I do not find any ground to interfere with the conclusion arrived at by the trial court acquitting the respondent for the offence punishable under section 304B, 498A and 306 IPC. Thus, there is no merit in the appeal and the same is dismissed.
(Nirmal Yadav, J)
16.07.2010
SKS
498A misuse judgements
6.1 In Sushil Kumar Sharma Vs. Union of India (UOI) (Case No: Writ Petition (C) No. 141 of 2005), the Honorable Supreme Court has observed:
“The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view. “
6.2 In Som Mittal Vs Govt. of Karnataka (Appeal (crl.) 206 of 2008, DATE OF JUDGMENT: 29/01/2008), the Honorable Supreme Court has observed:
33. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. For instance, often false FIRs are filed e.g. under Section 498A IPC, Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by me above, this is in violation of the decision of this Court in Joginder Kumars case (supra), and the difficulty can be overcome by restoring the provision for anticipatory bail.
6.3 Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr on 14 December, 2007, Honorable Supreme Court observed as:
The Honorable Judge has observed that:
“Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.”
6.4 In Kans Raj vs. State of Punjab and others AIR 2000 SC 2324 the Hon’ble Supreme Court, inter alia, observed as under:-:
The Honorable Judge has observed that:
“Crl.A.No.339-41/2005 Page 21 of 27 “In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in thematters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.””
6.5 IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No.339-41/2005 % Reserved on: 23rd February, 2010 Date of Decision: 02nd March, 2010
The Honorable Judge has observed that:
“23. There is growing tendency these days to take revenge from the husband, by implicating all his family members, by making allegations of general nature against all of them, though the husband alone may be responsible for the cruelty inflicted to the woman. The Courts, therefore, need to carefullyanalyze the evidence and need to separate the chaff from the grain, so as to arrive at a just and fair conclusion.”
6.6 IN THE HIGH COURT OF DELHI AT New Delhi, Reserved on: 12.02.2007 Date of Decision: February 23, 2007, CRL.M.C.7262/2006 by JUSTICE SHIV NARAYAN DHINGRA
“Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with.
The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.
I consider that the kinds of vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge.”
6.7 IN THE HIGH COURT OF DELHI AT NEW DELHI, CRL. R 462/2002 DATE OF DECISION: May 19, 2003, Savitri Devi ………….Petitioner. Through Mr. H C Mittal,Adv.
Versus Ramesh Chand and Ors. …………Respondents Through Mr. R P Bhardwaj, Adv.
HON’BLE MR. JUSTICE J.D. KAPOOR
21.Before parting, I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.
To leave such a ticklish and complex aspect of proposition as to what constitutes `marital cruelty’ and `harassment’ to invoke the offences punishable under sections 498A/406 IPC to a lower functionaries of police like Sub Inspectors or Inspectors whereas some times even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters.
22. This Court has dealt with thousands of cases and matters relating to dowry deaths and cases registered under Section 498A./406/306 IPC arising out of domestic violence, harassment of women on account of inadequate dowry or coercion of the woman for not fulfilling the demand of dowry and hundred of divorce cases arising therefrom. Experience is not so happy nor is implementation or enforcement of these laws is anything but satisfactory or punctilious.
23.These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative- including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sistes, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out.
24.These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable more for the woman. Remarriage is not so easy. Once bitten is twice scared. Woman lacking in economic independence starts feeling as burden over their parents and brothers. Result is that major bulk of the marriages die in their infancy, several others in few years. The marriage ends as soon as a complaint is lodged and the cognizance is taken by the police.
25.It was primarily a social problem and social evil but has been allowed to be dealt with iron and heavy hands of the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the definition of harassment or cruelty vests with the lower police functionaries and not with officers of higher rank who have intellectual capacity to deal with the subject.
29.To start with, marital offences under Sections 498A/406 IPC be made bailable , if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatchet they have buried should be allowed to be dug up and mar their present life or future married life.
30.Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law as it stands today it is required that the investigation into these offences be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sect on 498A/406 IPC and D.C.P for the offence under Section 304-B IPC i.e dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and futher proceedings. Their arrest ruin their future life and lower them in their self esteem. This court has even dealt with the bail applications and prosecution of children merely for the fact that their names also figured in the complaint lodged by the wife. In certain cases even grand-parents of the husband who are in their eighties and nineties suffer this traumatic situation.
31.There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
32. These ground realities have pursuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.
Copy of the order be sent to Law Secretary, Union of India.
6.8 2002 (4) ALT 592 (D.B), In the High Court of judicature, Andhra Pradesh at hyderabad
B. S. A Swamy and Dr. G. Yethirajulu, JJ, A. A. O. No. 1039 of 2001-Decided on 9-7-2002
Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB )
“The court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse e of the beneficial provision intended to save the women from unscrupulous husbands. It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women “
6.9 In 1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana, (1990)2 Rec Cri R 243 case as:
“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”
6.10 In Kanaraj vs. State of Punjab, 2000 CriLJ 2993 the apex court observed as:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
6.11 Karnataka High Court, in the case of State Vs. Srikanth, 2002 CriLJ 3605 observed as:
“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
6.12 Supreme Court, In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case, observed as:
“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
6.13 Delhi high Court, in Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759 case observed as:
“These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”
6.14 Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others, 2003 CriLJ 3394 case observed as:
“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”
6.15 Jharkhand High Court in Arjun Ram Vs. State of Jharkhand and another, 2004 CriLJ 2989 case observed as:
“In the instant case, it appears that that the criminal case has been filed, which is manifestly intended with mala fide and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
6.16 Punjab and Haryana High Court in Mukesh Rani Vs. State of Haryana 2002 (1) RCR (Criminal) 163 observed as:
The learned Single Judge of Punjab and Haryana High Court has observed that:
“Whenever there is a matrimonial dispute between the husband and wife for the fault of husband other relations of the husband that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”
6.17 Delhi High Court in Anu Gill Vs. State & Anr. 2001 (2) JCC (Delhi) 86 observed as:
The Honorable Judge of Punjab and Haryana High Court has observed that:
“ 8. It has almost become a practice that whenever a police report is lodged consequent upon a matrimonial discord, there is always a tendency on the part of the complainant to involve practically all the relations of her in-laws’ family either out of vengeance or to curl out appropriate settlement. Such a tendency ought to be deprecated.”
6.18 Ramesh & Ors. Vs. State of Tamil Nadu AIR 2005 SC 1989 observed as:
The Honorable Judge has observed that:
“The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible.”
6.19 Delhi High Court CHANDER KANTA LAMBA & ORS. observed as:
The Honorable Judge has observed that:
“18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.”
6.20 THE ADDITIONAL SESSIONS JUDGE-01/SOUTH,PATIALA HOUSE COURT in Criminal Revision No. 88/2008/2002, observed as:
The Honorable Judge has observed that:
“ It is settled legal position that vague and bald statement7 cannot be the foundation for framing of charge. Since a tendency has emerged to rope in other family members of the husband in cases of 498-A, concrete allegations with regard to the date, the place, the manner, the act of cruelty should be present in the evidence in order to frame a charge for offence under Section 498-A. Because of the present propensity to rope in innocent persons, the Trial Court has to be vigilant while framing charge for offence under Section 498-A.“
6.21 THE Panjab and harayana High Court in Krishan Jeet Singh vs State Of Haryana on 3/10/2002, observed as:
The Honorable Judge has observed that:
“18. It is germane to mention here that the petitioner had stayed at her matrimonial home only on four occasions during her marital life. These are from the date of marriage that is February 18, 1991 till February 21, 1991, from February 22, 1991 to February 25, 1991, from March 12, 1991 to March 14, 1991 and thereafter from June 15, 1991 to June 20, 1991. The total period of the stay of the petitioner at her matrimonial home as per her own version was 13 days in all. It is the case of the petitioner that during her short stay at her matrimonial home, she was given beating, abuses, and harassment on the point of inadequate dowry given to her by her parents and further demand of dowry was made. It is an admitted fact that the parties belong to Hissar. As can be gleaed from the evidence led by the parties, the parties arc affluent and belong to families of high strata of society. The father of the petitioner is Deputy Director in Ch. Charan Singh Haryana Agriculture University, Hissar. The real uncle of the petitioner, Sh. Jawant Singh, was a Minister in the State Government. The petitioner herself is educated. The respondent is also running a restaurant in Hissar besides having agricultural land. With this background, this Court is of opinion that in such a short span of 13 days, demand of dowry, as has been alleged by the petitioner, could not have been made by the respondent or his family members. At the risk of repetition, it is being mentioned that had it been so, the figure that is Rs. one lac or two lacs or Rs. 11,000/- must have been referred to in the petition by the petitioner which she did not for the reasons best known to her. This Court is conscious of a fact that in these days when the number of divorce petitions are increasing in our society, this is one of the easiest allegations to level against the husband by the wife. It is easy to level it but it is very difficult to prove the same. It also appears obnoxious that a bride, as the petitioner was, when left her parental home for her permanent home that is her husband’s home after the marriage on February 18, 1991 and stayed there upto February 21, 1991 and during 2-3 days, she was given beating and abuses by the respondent and his family members because it is in the rarest of rate cases that such bad treatment would be given to the bride by the bridegroom or his family members, particularly having considered the background of the families, as has been indicated above.”
6.22 THE Orrissa High Court in Benumadhab Padhi Mohapatra vs State on 28/8/2003, observed as:
The Honorable Judge has observed that:
“But then, while dealing with the prosecution relating to such offences the Court cannot close their eyes to the fact that the provisions are also misused by unscrupulous litigants to satisfy their personal vendetta. Often being enraged, innocent relatives are roped in just for the sake of harassment and taking revenge. In view of the aforesaid scenario the Court has to be careful while dealing with cases involving dowry torture.”
6.23 THE HON’BLE SRI JUSTICE P. SWAROOP REDDY Criminal Petition No. 6642 of 2007, 22-11-2007, Kamireddy Mangamma and others, State of AP represented by the Public Prosecutor, Counsel for the Petitioner: Sri D. Bhaskar Reddy, Advocate
Counsel for Respondent No.1: The Public Prosecutor, observed as:
The Honorable Judge has observed that:
4. Thus most of the allegations in the complaint are vague and petitioner Nos. 2 to 5 are married sisters and their husbands, who are admittedly living elsewhere and out of them, A-5 is living in
USA. It is very difficult to believe that from USA A-5 every day used to telephone and instigate the other accused to harass the complainant. As per the complaint, A-5 has grudge against the
complaint, but it is not stated as to why A-5 should have grudge against the complainant.
6. The nature of allegations referred to in the complaint, particularly against the present petitioners, particularly against petitioner Nos. 2 to 5, the married daughters and their husbands, would show that in all probability, the allegations are false and exaggerated. It is very difficult to believe that the third
petitioner used to harass the complainant, all the way from USA by instigating the other accused, particularly when no reasons are shown for him to have any grievance against the complainant. The
reference to A-5 in the complaint, might be A-3 and, in fact, even that also would not make any difference.
8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands; unmarried sisters and brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined; marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.
9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
10. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband. Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of
the alleged victim like herself and her parents etc. These aspects have to be kept in view, while dealing with the cases of anticipatory bail/bail in cases of offences involving section 498-A IPC.
6.24 THE Allahabad High Court in Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010, Petitioner :- Sanjeev Kumar & Others, Respondent :- State Of U.P. & Others, Petitioner Counsel :- P.N. Gangwar, Respondent Counsel :- Govt. Advocate, observed as:
The Honorable Judge has observed that:
Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.
The other reason why this Court often interferes in such cases, is that when the atmosphere, between the wife and her natal family and the husband and his family has become sour, there is a tendency to rope in as many of the relations of the husband as possible, even though they may not be directly involved in the crime. This negative tendency was adversely commented upon by the Supreme Court in Kansraj v. State of Punjab, AIR 2000 SC 2324. Such en masse involvement of a large number of family members takes place because in the aftermath of the incident, tempers are extremely high, the parties do not have a cool mind, and the aggrieved party at that stage only wants to seek recompense, by sending the other party to jail. It is only with the passage of some time usually with the help of mediators, that wisdom may dawn and the complaining party may consider the advisability of exploring other options such as either to resolve their differences and to come together, or to mutually agree to part on acceptable terms.
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