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Archive for July 26, 2010

Extra marital affair ends in suicide, but woman survives

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By Pune Mirror Bureau

Posted On Saturday, July 24, 2010 at 10:28:35 PM

 

The Lohegaon airport police has filed a case of attempted suicide against a woman who tried to kill herself and her lover on Wednesday night. She has now been sent to magisterial custody.

This 26-year-old married woman allegedly tried to commit suicide along with her lover by jumping into quarry filled with water, in Lohegaon.

The man died in this incident, but the woman, somehow survived and was later arrested by Airport police.

Sub Inspector V T Patil of Airport police station who is investigating the case said, “The man who died was identified as Vikas Pawar. The 26-year-old woman is married and has two children.

They were in love with each other since 1998 but their families did not agree to their relationship. Even after she got married, their affair ensued.

Eventually, when they couldn’t carry forth with the extra-marital status of their affair, they decided to end their lives.”

Narrating the incident, Patil, added, “On Wednesday night the woman eloped with Pawar and at around 11.30 pm they went to a quarry in Lohegaon. They both jumped into the water but the woman was trapped in the bushes.

She hung on to it all night long, while Pawar fell in the water and died. On Thursday morning some local residents found her dangling from the branches and they rescued her and handed her over to the police.”

Patil said, “Later the woman was arrested for attempted suicide, and has been remanded to magisterial attempt to commit a suicide case and she has been remanded Magisterial Custody.”

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Categories: Crime by Women

Woman arrested for dumping foetus in bin

http://www.mumbaimirror.com/article/2/2010072620100726025457824ae1e2b58/Woman-arrested-for-dumping-foetus-in-bin.html

The Cuffe Parade police have arrested a 22-year-old woman, who aborted her nine-month-old foetus and dumped it in a dustbin at Cuffe Parade.
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Rina Munda, the accused, who works as a domestic help at Jolly Makers III, Cuffe Parade confessed to the police that she took the drastic step after her lover walked out on her.

The incident came to light after the building supervisor and some residents spotted a dead female foetus in the dustbin. Vilas Bole, police inspector of Cuffe Parade Police Station said, “Initially, she refused to accept the crime but when we told her that the DNA test would reveal the truth, she accepted her crime.”

Police said that Munda was having an affair with another servant, who was sacked by his employer few months ago. “We are yet to find out her boyfriend’s role in the crime,” an investigating police officer said.

Munda, who hails from Assam, consumed some abortion pills in the bathroom of the flat and then later dumped the foetus in the dustbin. She has been booked under Section 318 of the Indian Penal Code (Concealment of birth by secret disposal of dead body).

Categories: Crime by Women

Ram Lakhan Mandal And Ors. vs State Of Bihar (Now Jharkhand) on 20 January, 2004

Equivalent citations: I (2005) DMC 464, 2005 (2) JCR 378 Jhr
Bench: V Prasad

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

Equivalent citations: 2004 CriLJ 2956, II (2004) DMC 76
Bench: S Harkauli, A Saran

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

Bench: P Srivastava

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

Bench: J Bhatt

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)