HC: 498A filed with oblique motive to harass husband and his parrent and hence quashed

CRLP15356-11-06-06-2011[1]

Allegations are highly exaggerated, 498A FIR quashed agaisnt all relative except husband

Smt. Minakshi Bansal & Others vs State Of Uttarakhand & Another on 13 September, 2011

RESERVED JUDGMENT

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION 84/2009 (Under Section 482 of the CrPC)

Gopal Bansal & Others …….Applicants Versus

State of Uttarakhand & Another ……Respondents With

CRIMINAL MISCELLANEOUS APPLICATION 65/2009 (Under Section 482 of the CrPC)

Smt. Minakshi Bansal & Others …….Applicants Versus

State of Uttarakhand & Another ……Respondents

CRIMINAL MISCELLANEOUS APPLICATION 52/2008 (Under Section 482 of the CrPC)

Shri Prashant Agarwal & Another …….Applicants Versus

State of Uttarakhand & Others ……Respondents

Mr. R.P. Nautiyal and Mr. Vipul Sharma, Advocates, for the applicants. Mr. M.A. Khan, Brief Holder, for the State. Mr. Siddhartha Sah, Advocate, for the respondent no. 2/complainant.

13th September, 2011

Hon’ble Servesh Kumar Gupta, J.

Since the proceedings of Criminal Case No. 160/2008, State v. Gopal Bansal & Others, under Section 498A, 323, 313 IPC read with Section 3/4 of the Dowry Prohibition Act and the summoning order dated 8.1.2008, passed therein by the Chief Judicial Magistrate, Udham Singh Nagar, are under challenge in all the aforetitled three petitions, 2

hence these petitions are being decided by this one and common judgment and order.

2. It would be pertinent to mention at the very outset that Petition No. 84/2009 has been filed by the husband Gopal Bansal, his elder brother Manoj Bansal and his younger brother Pankaj Bansal, while in Petition No. 65/2009, Smt. Minakshi Bansal (wife of Pankaj Bansal), Smt. Premlata Bansal (mother-in-law) and Km. Gitanjali Bansal (unmarried sister-in-law) are the applicants. They all reside in Gaziabad, Uttar Pradesh. In petition no. 52/2008, Prashant Agarwal and his wife Smt. Pooja Agarwal (sister of Gopal Bansal) are the applicants and they reside at Haldwani, District Nainital.

3. The factual matrix of the controversy involved in these petitions is that marriage of Smt. Sarita Bansal was solemnized with Gopal Bansal on 9.12.2005. Smt. Sarita Bansal, daughter of Om Prakash Gupta, hails from Rudrapur city of District Udham Singh Nagar, while her in-laws Bansal family resides at Gaziabad, Uttar Pradesh.

4. An FIR was lodged by Smt. Sarita Bansal against all the applicants with the allegations of demand of dowry and her torture and harassment for the same by the applicants. It has been averred in the FIR that soon after her marriage on 9.12.2005, demands for more and more dowry were raised by her husband and other accused applicants mentioned above. The applicants demanded rupees five lakhs in cash and one Innova Car, and for this demand, she was tortured and was subjected to several atrocities like electrocution, to be bitten by the tamed dog, inflicting burn injuries by throwing the boiling tea water upon her body. She was even denied both ends meal and daily clothes. Anyhow, she spent almost six months amidst such situation within the forecorners of her in- 3

laws’ house. On 28.5.2006, one Panchayat was organized at Rudrapur, which was participated by all these accused persons. In that Panchayat, the accused persons refused to keep Smt. Sarita Bansal with them until their abovementioned demands are fulfilled. On that day, rupees one lakh in cash was given to her in-laws by her parents in order to ensure her happy married life. On 5.7.2006, Smt. Sarita Bansal was made to abort her offspring in her womb. Further, on 18.1.2007, all these accused persons beaten her severely in a closed room and thereafter left her at her parent’s house in Rudrapur on the next day i.e. on 19.1.2007, and when they came to drop her at her parent’s house, Km. Gitanjali Bansal again misbehaved with the members of her family pressing for the demand of rupees five lakhs. Smt. Sarita Bansal allegedly suffered a number of injuries in the said beating. She got herself medically examined in the evening of 19.1.2007 itself at Government Hospital, Rudrapur, and thereafter complained the matter along with the medical report.

5. It has been argued on behalf of the learned Counsel for the applicants that the allegations made in the FIR lodged by Smt. Sarita Bansal are totally false, misconceived and there is not even a pinch of truth in the allegations. This Court does not fully agree with the above contention because a newly married girl, who leaves her parent’s house and goes to her in- laws’ house after solemnization of her marriage, which incur huge expenditure, will not make such allegations without any substance, that too soon after her marriage because it will upset her matrimonial life for good.

6. The learned Counsel has vehemently contended that on 19.1.2007, Gopal Bansal (husband) has made the bank transaction at Gaziabad and withdrew money by a self- bearing cheque. It shows that on 19.1.2007, he was very much 4

present at Gaziabad, and did not go to Rudrapur at all. This contention is not tenable because in the banking transactions, it is not uncommon that money can be withdrawn from the bank by some other person even through a self-bearing cheque, and the actual account holder may remain present at some other place at the same time.

7. It has also been contended that a mutual divorce petition was filed on 9.3.2010, but not a single whisper regarding demand of dowry has been made in that petition. This contention is also not tenable because when a couple files a mutual divorce petition, non-mentioning of such types of allegations is very natural because no husband would allow incorporating such type of contents in a mutual divorce petition.

8. Another contention raised on behalf of the learned Counsel for the applicant is that on 19.1.2007, Gopal Bansal met with an accident at Gaziabad. The matter was reported to the Police Station, Kavinagar and the acknowledgment of that report has been filed on record as Annexure 2 to the supplementary affidavit. This is also not acceptable because this paper bears an illegible stamp and signature of a police officer, and such an acknowledgment can easily be obtained by manipulation, which becomes more easier for a person who, at many a times, impersonated himself as a journalist.

9. There is yet another argument put forth on behalf of the applicants that the investigation changed hands three times, and lastly the third Investigation Officer favoured the complainant, which is apparent from the fact that the said Investigation Officer went to Gaziabad and returned to Rudrapur within 14 hours. This argument is also not convincing one because the distance between Gaziabad and 5

Rudrapur is approximately 150 kilometers and to and fro journey between these cities can easily be performed in this period nay the carrying out the investigation to some of the facts connected with the offence.

10. Lastly, the learned Counsel for the applicants contended that the allegations of beating and demand of dowry at the behest of other applicants (except husband Gopal Bansal) are concocted and the allegations made in the FIR in this regard are highly exaggerated. I find substance in this argument of the learned Counsel for the reasons mentioned hereinafter.

11. The medical report of the complainant, who got herself examined on 19.1.2007 at Rudrapur, reveals following injuries on her body:

(i) One contusion 2 cm x 2 cm.

(ii) Two parallel contusions at right infra scapular region of back 2.5″ x 1.5 cm and 3.5 cm x 1.5 cm. (iii) (a) Old scan mark 2.5 cm x 0.5 cm upon the abdomen.

(b) Old scan mark 3 cm x 1 cm below scan mark (a).

12. Needless to say that all these injuries are very simple in nature and can easily be self-incorporated in order to put more weight in the allegations of beating. Allegation of Smt. Sarita Bansal that she was beaten by all the accused persons simultaneously in a closed room does not appear to be trustworthy inasmuch as had they wanted to beat her so, the aim could have been accomplished by a single person like her husband only. There was no need to assemble all the members of the family including married sister-in-law and her husband (brother-in-law of the complainant), who live separately in different city Haldwani, District Nainital. So, this allegation has no substance, and has only been made just to implicate them as they are relatives of her husband. 6

13. Fortiori, Smt. Sarita Bansal has alleged that she was beaten cold and blue by the accused persons, but the aforementioned medical report does not corroborate her allegation because no vital injury was found on her body. She has alleged that she was electrocuted, bitten by the pet dog and also complained of throwing boiled water on her body, but no such injury has ever been found upon her body.

14. It is also significant to note that Prashant Agarwal and his wife Smt. Pooja Agarwal (sister of Gopal Bansal) live separately at Haldwani and they cannot be said to be the beneficiary of the alleged demand of dowry.

15. Another important fact, which goes into the root of the allegations, is that Smt. Minakshi Bansal (wife of elder brother of husband) delivered a child on 12.1.2007. The Nursing Home certificate and the duly certified Birth Register Certificate have been annexed with the record. Then how it could be possible for her to travel to Rudrapur from Gaziabad on 19.1.2007 along with other accused persons to leave Smt. Sarita Bansal at her parent’s house, or to beat Smt. Sarita Bansal in a confined room along with other members, as stated above.

16. Thus, in view of the facts and circumstances of the case, discussed above, it is quite apparent that the allegations are highly exaggerated, and even if the averments made in the FIR are taken to be true in their entirety, the same does not inspire confidence against the applicants except Gopal Bansal (husband).

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17. Learned Counsel on behalf of the applicants has placed his reliance upon a precedent of Honble Apex Court delivered in case of Preeti Gupta & Anr. v. State of Jharkhand & Anr. reported in (2010) 7 SCC 667, wherein the Hon’ble Apex Court has observed as under:

“A serious relook at Section 498-A is warranted by the legislature. 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. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not 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 taken into consideration the informed public opinion and the pragmatic realities and make necessary changes in the relevant provisions of law.”

18. The Hon’ble Court, in the said judgment, has further observed that the allegations of harassment by the husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant wife resided would have an entirely different complexion. Such allegations of the complainant are required to be scrutinized with great care and circumspection. 8

19. While observing as above, the Apex Court was of the view that permitting complainant to pursue such a complaint would be abuse of the process of law because their implication was only meant to harass and humiliate the husband’s relatives. But the citation of the above precedent does not mean that relatives of the husband are always falsely implicated. There may be cases when these relatives, viz, mother-in-law, sister-in-law, brother-in-law play a direct or indirect role in raising the demand of dowry. However, in the instant case, as the facts and other circumstances disclose, except husband, all other members of his family have been implicated by Smt. Sarita Bansal just to harass and humiliate them and to create a coercive pressure upon them for some ulterior motive.

20. The learned Counsel for the complainant cited two judgments of the Hon’ble Apex Court. In the first verdict delivered in case of State of Bihar & Anr. v. Shri P.P. Sharma & Anr. reported in AIR 1991 SC 1260, charges of corruption against a very senior IAS officer was under scrutiny before the Hon’ble Apex Court, and in that case it was held that the annexures and affidavits filed with the petition should not be taken as evidence by the High Court for quashing the proceedings. This ratio is hardly applicable in the matrimonial disputes.

21. The second precedent rendered in case of Sunita Kumari Kashyap v. State of Bihar & Anr. in Criminal Appeal No. 917 of 2011 (arising out of the SLP (Crl.) No. 8078/2010), the question involved for adjudication was exclusively confined to jurisdiction and it was held by the Hon’ble Apex Court that the matrimonial offence is a continuing one because its consequences ensue at the place where the wife resides after leaving her matrimonial house. Therefore, the courts having 9

the territorial jurisdiction over the place where the wife is residing has the jurisdiction. This way, the second precedent does not have any relevancy for deciding the matter in controversy.

22. For the reasons recorded above, C482 Petition No. 52/2008 and 65/2009 are allowed in toto, while Petition No. 84/2009 is partly allowed with the result that the impugned chargesheet and the order of cognizance passed against the applicants Manoj Bansal, Pankaj Bansal, Prashant Agarwal, Smt. Pooja Agarwal, Smt. Minakshi Bansal, Smt. Premlata Bansal and Km. Gitanjali Bansal are hereby quashed, while the same is left intact and operative against Gopal Bansal (husband of the complainant), against whom the trial shall proceed as per law. However, any observations made by this Court in the body of the judgment shall not prejudice the trial against Gopal Bansal. Interim order dated 21.1.2009, passed in Petition No. 84/2009, stands vacated.

23. Registry is directed to inform the court concerned accordingly.

(Servesh Kumar Gupta, J.)

13.9.2011

Prabodh

http://indiankanoon.org/doc/305141/

HC: Far relatives implicated in 498A Falsely, Quashed against respondent 3 to 6

Radha Kant Adhikari & Others vs State Of Uttaranchal & Another on 2 August, 2011

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.

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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

Complainant graphically described the acts of physical and mental cruelty hence FIR not quashed

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

JUDGMENT

Kamla & Ors. Vs. State of Rajasthan & Anr.

(S.B. Criminal Misc. Petition No.1874/2010)

S.B. Criminal Misc. Petition under Section 482 Cr.P.C.

Date of Order :- April 08, 2011

PRESENT

HON’BLE MR. JUSTICE R.S. CHAUHAN

Mr.Suresh Sahni, for the petitioners.

Mr.Laxman Meena, Public Prosecutor.

Mr.Rajesh Kapoor, for respondent No.2.

BY THE COURT:

The petitioners have prayed for quashing of the FIR, FIR No.147/2010, registered at Mahila Thana (North), Jaipur for offences under Sections 498A and 406 IPC.

Briefly the facts of the case are that Smt. Jyoti Sharma, respondent No.2, was married to Kuldeep Sharma, petitioner No.5, on 02.12.2009 according to the Hindu customs and rites. According to Smt. Jyoti Sharma, at the time of her marriage, her parents had given sufficient dowry as per their capabilities. However, when Smt. Jyoti Sharma reached her matrimonial home, both her husband and her in-laws’, including both of her sister-in-laws, namely Komal and Alka, petitioner Nos.3 and 4 respectively, started physically and mentally torturing her for dowry. Unable to bear their cruel behavior, eventually on 13.09.2010, Smt. Jyoti Sharma filed a complaint before the Additional Civil Judge (JD) and Judicial Magistrate No.13, Jaipur City, Jaipur. The learned Magistrate sent the said complaint for further investigation under Section 156(3) Cr.P.C. to the Police Station Mahila Thana (North), Jaipur. On the basis of the said complaint, the police chalked out a formal FIR, FIR No.147/2010, for the aforementioned offences. Hence, this petition before this Court. Mr. Suresh Sahni, the learned counsel for the petitioners, has vehemently raised the following contentions before this Court : firstly, the FIR is a counter-blast to a civil suit filed by Mr. Gopal Lal Sharma, petitioner No.2, the father-in-law of the complainant, wherein he had clearly pleaded that he is willing to return the stridhan. Therefore, direction should be issued to the complainant to collect the stridhan. The filing of the civil suit by the father-in-law clearly establishes his fairness in wanting to return the stridhan to Smt. Jyoti Sharma. Secondly, the FIR is a counter-blast to the divorce petition filed by Kuldeep Sharma against Smt. Jyoti Sharma. Thirdly, all the family members have been roped in, including two sister-in-laws. This clearly shows that the FIR has been lodged to wreak personal vendetta. Lastly, relying on the case of Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. [(2010) 7 SCC 667], the learned counsel has contended that even the Hon’ble Supreme Court is of the opinion that the cases under Sections 498A and 406 IPC are more or less frivolous cases. Therefore, even this Court should be alive to the possibility that the case is a frivolous one. On the other hand, Mr. Rajesh Kapoor, the learned counsel for respondent No.2, has strenuously argued that the jurisdiction of this Court for interfering in investigation is extremely limited. According to him, in case the allegations levelled in the FIR make out the commission of a cognizable offence committed by known or unknown persons, then this Court is preempted from interfering in the investigation. Secondly, the allegations levelled by Smt. Jyoti Sharma do make out a prima facie case against all the petitioners including the sister-in-laws. The complainant has not only given details of the incidents, but has also graphically described the circumstances to which she was subjected to. Therefore, according to the learned counsel, this Court should not interfere with the FIR. Mr. Laxman Meena, the leaned Public Prosecutor, has adopted the arguments of Mr. Kapoor.

Heard the learned counsel for the parties and perused the FIR.

It is, indeed, a settled position of law that the investigation is the sphere of the police. It is equally well settled that in case the allegations levelled in the FIR are taken to be true and are taken to be un-rebutted, and if the allegations make out commission of the offence then this Court should not interfere with such a FIR in its inherent jurisdiction under Section 482 Cr.P.C. [Ref. to State of Haryana & Ors. vs. Chaudhary Bhajan Lal & Ors. (AIR 1992 SC 604)]. A bare perusal of the FIR clearly reveals that Smt. Jyoti Sharma has graphically described the acts of physical and mental cruelty committed against her by all the petitioners. Thus, prima facie offences under Sections 406 and 498A IPC are made out against the petitioners. Hence, this Court is not inclined to quash the FIR No.147/2010, registered at Mahila Thana (North), Jaipur for offences under Sections 498A and 406 IPC. Thus, this petition is devoid of any merit. It is, hereby, dismissed.

(R.S. CHAUHAN) J.

Manoj solanki