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Justice K.S. Puttaswamy (Retd.) in 498A as accused!!!

http://www.indiankanoon.org/doc/612870/

Equivalent citations: II (1997) DMC 503, ILR 1997 KAR 1729, 1997 (3) KarLJ 227

Bench: A Farooq

Justice K.S. Puttaswamy (Retd.) vs State Of Karnataka on 14/2/1997

ORDER

1. This is a petition filed under Section 482 of the Code of Criminal Procedure, Petitioner has sought for quashing proceeding in C.C. No. 2937/96 on the file of the learned Addl. C.M.M. Bangalore. He has also sought for quashing of the order dated 16-12-1996 passed by the learned magistrate taking cognisance of the offences under Sections 498A, 302, 30-B, 506, 201 and 202, I.P.C. and Sections 3, 4 & 6 of Dowry Prohibition Act.

2. A notice of this petition was given to the presecution and the respondent State has filed a detailed objections.

3. The brief facts that are necessary to dispose of this criminal petition are that on 9-1-1992 at about 5.30 a.m. Smt. Sujatha w/o Reveendra the third son of the petitioner suffered burn injuries in the house of the petitioner where she lived along with the petitioner, her husband, her mother-in-law and other family members. At about 6.30 a.m. she was shifted to Agadi Nursing Home, Bangalore and at the Nursing Home, she made a statement to the doctor stating that she suffered burn injuries accidentally. She was discharged from Agadi Nursing home on 11-1-1992 and she was admitted to the Lakeview Nursing home at Bangalore on 12-1-1992. At the time when she was admitted to Lakeview Hospital her parents were with her and she has made a statement before the doctor at Lakeview Hospital stating that she has suffered burn injuries accidentally. She was discharged from Lakeview Nursing home on 1-2-1992 and thereafter she was admitted to M. S. Ramaiah College Hospital. However, she died while undergoing treatment on 2-2-1992 and the cause of death was due to the burn injuries. No complaint was lodged by any person till then. However, the death of Smt. Sujatha was published in a Kannada news paper published from Bangalore ‘Ee Sanje’ and a case was registered by the Wilson Garden Police in C. Misc. 107/92 on 20-2-1992 and on the next day, the P.S.I. of the said Police Station went and met the mother of the deceased, who later on filed the complaint. However, she refused to give a complaint or any statement to the police. On 23-2-1992 the mother of the deceased Lalithamma lodged a complaint with the Wilson Garden Police alleging offence under Sections 498-A, 304-B, 302, 201, I.P.C. and Sections 3, 4 & 6 of the Dowry Prohibition Act. FIR was sent to the Court on the said complaint. After due investigation by the COD to whom the investigation was entrusted filed a charge-sheet on 21-3-1994 in C.C. No. 2155/94 before the learned Additional Chief Metropolitan Magistrate, Bangalore. In the said charge-sheet, the police has shown the husband of the deceased Smt. Sujatha that is, Raveendra as accused No. 1, Smt. Theyamma wife of the petitioner as accused No. 2 and the M. R. Anand Rama, Administrator of M. S. Ramaiah College Hospital as accused No. 3. A note was put up alongwith the charge-sheet by the Investigating Officer stating that for want of proof, accused Nos. 4, 5 & 6 were not sent for trial. Accused No. 4 mentioned in the report is none other than the petitioner. The learned Magistrate took cognizance of the offence for which the charge-sheet has been filed and committed the case to the Court of Session. The Court of Session was seized of the matter after it was committed before it by the learned Magistrate and the Sessions case No. 50/95 has been registered before the 23rd Additional City Civil and Sessions Judge, Bangalore. It is stated that in the said matter, accused persons had already started arguing for discharge of all the accused persons and the matter is still pending and the argument has not completed. At this stage, the Investigating Officer, filed another charge-sheet before the learned Magistrate against A-1 to A-4 showing the petitioner as accused No. 4 for the same offences, for which cognizance was already taken by the Magistrate earlier and which has been already committed to the Court of Session and the Court of Session has seisin of the matter and which is pending trial in the Sessions case No. 50/95. The learned Magistrate on receipt of the charge-sheet on 16-12-1996 has noted that charge-sheet has been filed by the Inspector of COD through the Senior APP against accused Nos. 1 to 4 for offences punishable under Sections 498-A, 302, 302-D, 506, 176, 201, 202, I.P.C. and Sections 3, 4 & 6 of the Dowry Prohibition Act. Original F.I.R. in Crime No. 118/92 kept in C.C. No. 2155/94 (which was the first charge-sheet and on which cognizance was taken and the matter which is already committed to the Sessions Court). It is also written in the order sheet that the charge-sheet and connected papers were checked and accused Nos. 1, 2 & 4 were on bail and accused No. 3 was not arrested and the copies for the accused were also enclosed and thereafter, he took cognizance of the offence and directed registration of the case and also directed issue of summons to the accused persons. 4. Sri M. V. Devaraju, learned counsel appearing for the petitioner submitted that the learned Magistrate has already taken cognizance of the offences alleged in the charge-sheet originally presented before the Magistrate and committed the matter to the Sessions Court and sent the three accused persons against whom report has been filed to the Sessions Court for trial. When such is the case, it is submitted that under Section 193 of the Criminal Procedure Code, the Sessions Court takes cognizance of the offence and when the Sessions Court has already taken cognizance of the offences under Section 193 of Cr. P.C., the Magistrate has no jurisdiction to again take cognizance of the very offences for which the Sessions Court has already taken cognizance. The learned counsel also submitted that even though the Investigating Officer has got power to further investigate into the offence and file additional charge-sheet as provided under Section 173(8) of the Code of Criminal Procedure, that has to be done only before the Court, where the matter is pending trial and once the Magistrate has committed the matter to the Court of Sessions, the Investigating Officer has to file the additional charge-sheet before the Court of Sessions. The learned counsel further submitted that the learned Magistrate has no jurisdiction at all to take cognizance of the same offences twice.

5. Sri M. H. Ibrahim, learned High Court Government Pleader, on the other hand, submitted relying upon the judgment of the Gujarat High Court in Deepak Dwarkadas Patel v. State of Gujarat, 1980 Cri LJ 29, that it was not at all necessary that there should be a fresh investigation and discovery of new material for filing an additional charge-sheet in a criminal case and if the very material is misunderstood by the Police Station Officer and if he has received proper light from his superiors, he can certainly file an additional charge-sheet and the Magistrate has got power to take cognizance on the additional charge-sheet filed by the Investigating Officer. In the judgment of the Gujarat High Court, Court was considering about filing of additional charge-sheet. Therefore, while I am unable to accept the submission made by the learned High Court Government Pleader, I am of the view that there is much force in the submission made by the learned counsel for the petitioner. Under Section 190 of the Cr.P.C., the Magistrate before whom a report is filed has jurisdiction to take or not to take cognizance of any offence. The Magistrate takes cognizance of the offence and not the offenders. Once he takes cognizance of the offence and if the case is triable by the Sessions Judge and in the course of the trial Sessions Judge comes to the conclusion from the evidence on record that there are other accused persons also involved in committing the offence, for which the charge-sheet has been filed, he has got jurisdiction under Section 319 of the Criminal Procedure Code to add any person as an accused, who has not been named by the Investigating Officer as an accused. Thus power of the Magistrate is restricted when the Magistrate takes cognizance in a case, which is exclusively triable by the Court of Sessions. When a charge-sheet is filed by the police in an offence which is exclusively triable by the Court of Sessions, if the Magistrate takes cognizance of the offence, for which the charge-sheet is filed, he has to commit the matter to the Court of Sessions. When once the matter is committed to the Court of Sessions, the Court of Sessions takes cognizance of the offence or the offences under Section 193, Cr.P.C. When once the Sessions Court takes cognizance of the offence under Section 193, Cr.P.C., any further documents or materials in respect of the offence, for which the Sessions Court has taken cognizance has to he placed before the Sessions Judge, who has taken cognizance. The Investigating Officer has no authority to place any document in respect of the said case before a Magistrate or before any other Court. In this respect, the Hon’ble Supreme Court in Raj Kishore Prasad v. State of Bihar, has held in paras 8, 11, 14 & 16 as follows :

8. Sub-section (1) of Section 319 makes it clear that it operates in an on-going inquiry into, or trial of, an offence. In order to apply Section 319, it is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial, Proceedings before a Magistrate under Section 209, Cr.P.C., are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Now do they continue to be so is the core question, to determine and spell out the powers of the Magistrate under Section 209 Cr.P.C. If proceedings under Section 209, Cr.P.C. continue to be an inquiry, Sections 319 Cr.P.C., would be obviously attracted, subject of course to deciding whether the material put-forth by the investigation could be termed as ‘evidence’, as otherwise no evidence is recordable by a Magistrate in such proceedings.”

11. “The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as “committal proceedings” have been abolished in case triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application or mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of “inquiry” as defined in Section 2(g) of the Code of Criminal Procedure, which defines that “inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court”, because of the prelude of its being “subject to the context otherwise requiring”. As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209, Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session.”

14. “Learned counsel differ however on the other question posed in Kishun Singh’s case 1993 AIR SCW 771 : (1993 Cri LJ 1700). It was whether a Court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision ? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the Court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Sessions (though it ostensibly was under Section 319, Cr.P.C., terming material of investigation before it as ‘evidence’) summoning the un-named accused to stand trial with the name – accused. A stage has thus been discovered, before the reaching of the state for exercise of power under Section 319, Cr. P.C., on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie case is made out from the material available on the record.” 16. “Thus we come to hold that the power under Section 209, Cr.P.C., to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an ‘inquiry’ and material before him not being ‘evidence’. When such power was not vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, (sic) the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319, Cr.P.C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319, Cr.P.C. when handling a matter under Section 209, Cr.P.C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Sessions and evidence is recorded, it may then in exercise of its powers under Section 319, Cr.P.C. on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguard envisaged under sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly.”

From the above reading of the observation made by the Hon’ble Supreme Court in the above mentioned case, it is clear that the Magistrate undertaking commitment under Section 209 of the Code of a case triable by a Court of Sessions cannot associate another person as accused in exercise of the power under Section 319 of Cr.P.C., or under any other provision. In order to apply Section 319, Cr.P.C., it is essential that need to proceed against a person other than the accused appearing to be guilty of the offence arises only on evidence recorded in the course of any enquiry or trial and the Hon’ble Supreme Court has held that a committal proceeding before a Magistrate is neither an enquiry nor a trial. Therefore, the Magistrate has no power either to add or delete an accused. Here in this case, what the Investigating Officer has done, is to file another charge-sheet for the same offences and for the same incident, for which she had already filed the charge-sheet, for which the Magistrate has already taken cognizance and already committed the case of the Court of Sessions. Along with the new charge-sheet she has filed a memo in Kannada, the translation of which reads as follows :

“In the above case, the charge-sheet was filed on 22-3-1994, in C.C. No. 2155/94, and the same is pending before the Hon’ble Court. In that case A1. Ravindra, A2. Thayamma and A3. Ananda Ram are accused.

The Legal Advisor Sri B. Venkata Rao, of COD has opined that on re-examination of the records of the case, even against the omitted accused K. S. Puttaswamy, there is material to charge-sheet him.

After accepting the suggestion and discussing the same with him and on the higher officer’s direction to file Additional charge-sheet against accused No. 4, K. S. Puttaswamy an additional charge-sheet is filed.” No other extra materials have been produced before the Magistrate. What the I.O. has done is to tell the Magistrate that even though the I.O. has opined in the earlier charge-sheet that there is no case made out against accused No. 4, who is the petitioner herein, the Legal Advisor of the C.O.D. has given an opinion that on re-examination of the records of the case, there is a case against the petitioner, who is accused No. 4 and therefore, there is material to charge-sheet him and accepting the legal opinion given by the Legal Advisor, the I.O. has filed the present charge-sheet. The learned Magistrate takes cognizance of the same as narrated in the earlier paragraphs and issues summons to the petitioner. The Investigating Officer, in this case done (sic) is to tell the Magistrate to commit the present petitioner also to the Court of Sessions to be tried along with the other accused persons in the matter, which is already committed to the Court of Sessions. In other words, the Investigating Officer is directing the Magistrate to take cognizance of the offender and not the offences, which is clearly in violation of the principles laid down by the Hon’ble Supreme Court in the various decisions including the one relied upon by me in the above mentioned paragraphs. When the Court takes cognizance of only an offence, the power of the Court is unfettered and includes the power to add or delete any other accused as mentioned by me above, if in the course of the trial, there is evidence to indicate that the said person is also involved in the crime. Once the Investigating Officer has filed a charge-sheet and Court has taken cognizance of the offence and committed the case to Court of Sessions and also directed some of the accused persons to stand for trial before the Court of Sessions, it should be presumed that the Magistrate has perused the records filed before him and the Magistrate has himself come to the conclusion while taking cognizance that there is prima facie case only against those persons, whom he has asked to stand for trial before the Court of Sessions. That view of the Magistrate while taking cognizance and committing the case to the Court of Sessions, cannot be substituted by any act of an Investigating Officer by giving his opinions. The opinion of the Investigating Officer in any particular case is not relevant at all for the Magistrate either while taking cognizance or while sending the matter to the Court of Sessions. Even if the Investigating Officer has given an opinion that there is no case made out against any of the accused, the Magistrate can always take cognizance of the offence and also commit accused persons against whom a charge-sheet is filed in spite of a negative opinion given by the Investigating Officer. In the earlier charge-sheet eventhough the petitioner’s name has been mentioned as one of the accused, the Investigating Officer has given an opinion along with his report saving that this petitioner, who is accused No. 4 has not been sent up for trial because of lack of evidence against him. The learned Magistrate after perusal of the record has accepted the report and took cognizance of offence and made up his mind to send only three of the accused persons to stand trial before the Sessions Court. Once it is committed to Sessions Court, the Sessions Court having seized of the matter and having taken a cognizance under Section 193 of Cr.P.C., it is for the Sessions Court to look whether there is any accused to be added or deleted in the matter and the Magistrate has no power at all to take cognizance for the second time for the same offences. In Rajkishore Prasad’s case (1996 Cri LJ 2523) the Hon’ble Supreme Court as mentioned above, has observed in para 14 that on the basis of section 193 of the Code as it presently stands provides that once an accused is committed to the Court of Sessions by a Magistrate, the restriction placed on the power of the Court of Sessions to take cognizance of an offence as a Court of original jurisdiction gets lifted thereby investing the Court of Sessions an unfettered jurisdiction on take cognizance of the offence, which would include summons of the person or persons, whose complicity in the crime can prima facie be gathered from the material available on the record.

6. In Hemani P. Visanji v. Mulshankar Shivaram Raval, 1991 Crl. LJ 3144, the High Court of Bombay has held that the policy of the legislature appears to be that when cognizance is taken of the offence, the Court taking cognizance will take cognizance of the offence as such and not merely the particulars of the person, who are alleged to have committed an offence. It is quite conceivable that in a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making persons who are known offenders as the accused. When such a trial proceeds against the known accused and if the evidence led in the trial disclose the offence committed by other persons, who could be tried along with the accused, then Section 319 of the Code comes into play and it would be permissible to exercise its powers thereunder. It is, therefore, observed that Section 319 of the Code of Criminal Procedure that policy of the Code is that offence can be taken cognizance once only and not repeatedly upon discovering further particulars and if it was permissible to take cognizance of the same offence repeatedly, then it was unnecessary for the Legislature to have put Section 319 of the statute book as it would be redundant.

7. After considering the entire materials on record, I am of the view that the impugned order passed by the Magistrate taking cognizance of the offences and issuing summons to the petitioner is without jurisdiction and it cannot be sustained.

8. In the result, I allow this petition and set aside the impugned order and the proceedings pending against the petitioner in C.C. No. 2937/96 on the file of the learned First Addl. C.M.M. Bangalore are hereby quashed.

9. Petition allowed.

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Categories: Quash

Cannot go back on settlement: FIR Quashed

Equivalent citations: I (2008) DMC 442
Bench: S N Dhingra

Rajesh And Ors. vs State And Anr. on 17/1/2008

JUDGMENT

Shiv Narayan Dhingra, J.

1. By the instant petition under Article 226/227 of the Constitution of India read with Section 482 Cr.P.C., the petitioners sought quashing of the FIR No. 30 of 2007 under Section 498A/406/34 IPC read with Section 3/4 of Dowry Prohibition Act registered with Police Station Bhajanpura, Delhi and quashing of another FIR bearing No. 659 of 2006 under Sections 323/506/34 IPC registered with Police Station Anand Vihar, Delhi.

2. The above two FIRs were a result of matrimonial discord. After registration of these FIRs, a compromise was arrived at between parties before the Court of Ms. Reena Singh Nag, ASJ, Karkardooma Courts, Delhi and this compromise was signed by both parties. It reads as under:

COMPROMISE DEED

THIS COMPROMISE DEED is executed on 19th day of January, 2007 at Delhi between:

Sh. Rajesh s/o Sh. Mukut Lal r/o V.P.O. Jawli, P.S. Loni, Distt.

Ghaziabad, U.P. (hereinafter referred to as FIRST PARTY/HUSBAND).

AND

Smt. Neelam w/o Sh. Rajesh D/o Sh. Yudhvir Singh r/o A-42, Village North

Ghonda, Delhi (hereinafter referred to as SECOND PARTY/WIFE).

That both the parties had got married on 02.03.2006 at Delhi according to Hindu Rites and Customs.

IN WITNESSES WHEREOF both the parties have entered into the compromise on the following terms and conditions:

1. That with the intervention of the relatives and friends both the parties have amicably resolved their matrimonial differences and it has been amicably settled that both the parties shall get their marriage dissolved from a competent court of law as it is not possible for both the parties to reunite and live together.

2. That the First Party will pay a sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) to the Second party against her entire claims as full and final settlement and the said sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) includes past, present and future maintenance, divorce by mutual consent, permanent alimony, dowry/Istridhan articles including jewellery, quashing of FIR No. 30/2007 under Section 498A/406/34 IPC r/w Section 3/4 of Dowry Prohibition Act of P.S. Bhajanpura, Delhi, quashing of FIR No. 659/2006 under Section 323/506/34 IPC of P.S. Anand Vihar, Delhi, withdrawal of complaint case titled as Neelam v. Rajesh and Ors. pending adjudication in the Court of Shri S.K. Malhotra, MM, Karkardooma, Delhi fixed for 26.2.2007 and both the parties further agrees to withdraw every complaint/cases filed by them against each other in any court of law and hereinafter there shall be no civil or criminal litigation between the parties relating to the marriage.

3. That it has been mutually agreed that a sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) shall be disbursed to the Second Party as under:

(a) Rs. 5,00,000 (Rupees Five Lacs Only) before the Ld. Sessions Judge, Karkardooma at the time of grant of bail to the First Party and his family members in case FIR No. 30/2007 of P.S. Bhajanpura, Delhi under Section 498A/406/34 IPC read with Section 3/4 of Dowry Prohibition Act.

(b) Rs. 4,00,000/- (Rupees Four Lacs Only) before the Hon’ble Court at the time of recording of the Joint statement of Second Motion of Divorce by mutual consent and the said joint petitions of divorce by mutual consent shall be filed by both the parties in the month of March, 2007 or earliest possible.

(c) Rs. 4,50,000/- (Rupees Four Lacs Fifty Thousand only) before the Hon’ble High Court of Delhi at the time of quashing of FIR No. 30/2007, P.S. Bhajanpura, Delhi under Section 498A/406/34 IPC r/w Section 3/4 of Dowry Prohibition Act and FIR No. 659 of 2006 of P.S. Anand Vihar, Delhi under Section 323/506/34 IPC which have been registered on the complaint of the brother of the Second party.

4. That it is mutually settled between the parties that the entire dowry/Istridhan articles shall be retained by the First party and the said sum of Rs. 13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) includes the value of the said articles also which is being paid by the First party to the Second party.

5. That it is further agreed that the Second party shall cooperate, sign and hand over the relevant documents for transfer of the Indigo TDI SX Car bearing Registration No. DL-4C-U-7037 in favor of the First party at the time of final payment but before one month the signatures of the owner of the aforesaid vehicle shall be got verified from the Transport Authority for the purpose of verification of signature. However, relevant sale documents will be given finally at the time of final payment and in case any other relevant document is required by the Transport Authority the Second party undertakes to cooperate and to do the needful at the time of final payment.

6. That it is further agreed between the parties that the said compromise arrived between the parties is binding and enforceable.

7. That in case of non-fulfillment of the above mentioned compromise the Second party shall be at liberty to initiate legal proceedings against First party and his family members and the present compromise deed shall stand null and void and in case the Second party do not cooperate and perform the above mentioned acts, the First Party shall be entitled for refund of the amount received by the Second party as mentioned above.

8. That the present compromise have been arrived and signed by both the parties without any threat, force, fraud, coercion, pressure or undue influence from any side and at their free will without any collusion.

IN WITNESSES WHEREOF both the parties have signed on this Compromise Deed on the day, month and year mentioned above.

Witnesses:

SD/-

1. (FIRST PARTY/HUSBAND)

SD/-

2. (SECOND PARTY/WIFE)?

3. It is submitted by the petitioners that in terms of the compromise a sum of Rs. 5 lac was paid to the respondent No. 2 at the time of grant of bail and another sum of Rs. 4 lac was paid to respondent No. 2 before the Court of Shri Deepak Jagotra, Additional District Judge at the time of making joint statement for grant of divorce by mutual consent in petition No. 127 of 2007 and remaining amount of Rs. 4.5 lac was to be paid by the petitioner to respondent No. 2 before this Court at the time of quashing of the aforesaid two FIRs. The respondent No. 2 in terms of the compromise was to sign the transfer documents of car bearing registration number DL4CU7037 in favor of petitioner No. 2 before this Court. Respondent No. 2, give her specimen signatures on the documents/letters regarding transfer of vehicle before the Court of Shri Deepak Jagrotia, for verification but deliberately put her signatures in Hindi while her signatures before Transport Authorities were in English. When the petitioner No. 1 went for verification of signatures, he found that the signatures were not tallying because respondent No. 2 signed the documents in Hindi while her signatures were actually in English. Respondent No. 2 was also to withdraw her complaint filed against petitioner No. 1 titled as Neelam v. Rajesh pending adjudication before the Court of Shri S.K. Malhotra, Metropolitan Magistrate. The respondent No. 2 neither withdrew her complaint nor put her correct signature on sale/transfer documents qua vehicle. When she was approached by the petitioner to sign the quashing petition and receive balance amount before this Court and cooperate in quashing of the above noted two FIRs, she refused to do so. The petitioners, therefore, approached this Court for quashing of the above-mentioned FIRs.

4. Notice of the instant petition was served upon the respondent No. 2. It is contended by respondent No. 2 in the written submissions filed before this Court that she has no objection insofar as quashing of FIR bearing No. 30 of 2007, Police Station Bhajanpura is concerned, however, on account of the acts of the petitioners, she considered that the petitioners were not entitled for any relief. She alleged that in fact the petitioners failed to honour the compromise and the spirit behind the compromise. The FIRs were to be quashed subject to the condition that petitioners will pay a sum of Rs. 13,50,000/- , out of which, Rs. 9 lac has been received by respondent No. 2, the remaining amount of Rs. 4.5 lac has not been paid by the petitioners to respondent No. 2. The respondent No. 2 served a legal notice dated 13th April, 2007, reminding the petitioners about failure on their part to pay the balance amount. However, the petitioners failed to respond to this notice, instead the petitioners approached the Court of Shri S.C. Malik, Additional Sessions Judge for appropriate directions to respondent No. 2 to give her signatures on the transfer form. The respondent No. 2 told the Court of Shri S.C. Malik that she had already given her signatures on the transfer form.

5. It is not disputed by respondent No. 2 that she signed the transfer documents in Hindi and her signatures before the Transport Authorities for the registration of vehicle were in English. However, she took the stand that had the petitioners any grievance in this regard, they would have responded to the legal notice of by respondent No. 2 to the petitioners and would have paid the remaining amount of Rs. 4.5 lac in terms of the compromise to respondent No. 2. It is stated that the petitioners No. 1, 2 and 3 are the police officials and they were misusing their position and they know all tricks of the game. She reiterated that it were the petitioners who were not cooperating for quashing of the above FIRs.

6. In this Court, an offer was made to respondent No. 2 that she should receive the balance amount of Rs. 4.5 lac in the Court, she should cooperate in quashing of above FIRs, on which respondent No. 2 contended that since the amount had not been paid for long time and the vehicle has also been used by the petitioners, she was entitled to an additional amount by way of interest over this amount. She also took the stand that there was no compromise regarding quashing of other FIR and she shall not cooperate in quashing of FIR No. 659 of 2006.

7. Undisputedly a statement of petitioner No. 1 and respondent No. 2 was recorded before the Court of ADJ on 3.2.2007 at the time of granting divorce by mutual consent. The statement made by the petitioner No. 1 and respondent No. 2 reads as under:

We have already settled all our claims and disputes against each other, qua this marriage, with regard to maintenance, past, present and future, permanent alimony, dowry, stridhan, in full and final.

We have settled the matter for an amount of Rs. 13,50,000/- (Rs. Thirteen lacs and fifty thousand only) towards full and final settlement, out of which an amount of Rs. 5,00,000/- (Rupees Five Lacs Only) has already been received by petitioner No. 2 and out of the remaining amount an amount of Rs. 4,00,000/- (Rs. Four Lacs Only) is handed over to petitioner No. 2 today, by way of Demand Draft, bearing No. 242055, dated 03.02.2007, drawn on Indina Overseas Bank, and the balance amount of Rs. 4,50,000/- (Rupees Four Lacs and Fifty Thousand Only) shall be handed over to petitioner No. 2 at the time of quashing of FIR No. 30/07, Under Section 498A/406/34 IPC and 3/4 Dowry Prohibition Act, PS Bhajanpura and FIR No. 659/06, Under Section 323, 506, 34 IPC PS Anand Vihar, before Hon’ble High Court.

It has been further agreed between us that petitioner No. 2 shall cooperate in the proceedings of getting the above mentioned two FIRs quashed. It has been further agreed between us that petitioner No. 2 shall withdraw her complaint case, pending in the Court of Shri S.K. Malhotra, Ld. MM, Delhi. It has been further agreed between us that petitioner No. 2 shall execute all the necessary documents for the transfer of vehicle No. DL 4CU 7037. Petitioner No. 2 has handed over all the documents relating to the transfer of the above said vehicle to petitioner No. 1, however, it is made clear that petitioner No. 2 has executed all the documents for the purposes of verification, her signatures, etc. in the concerned authority.

It has been further agreed between us that the above said vehicle shall be completely transferred in the name of petitioner No. 1 only after the full and final payment of Rs. 13,50,000/- (Rs. Thirteen Lacs and Fifty Thousand only) shall be made by the petitioner No. 1 and till the complete transfer, all right, title or interest shall remain with petitioner No. 2.

It has been further agreed between us that as the vehicle is in the possession of petitioner No. 1, since 02.03.2006, he shall remain bound by all the consequences, relating to the vehicle, including insurance, court cases. Etc.

We have also agreed that we shall not file any sort of litigation in future relating to this marriage.

8. A perusal of above statement coupled with the compromise mentioned above would show that it was categorically agreed between petitioners No. 1 and respondent No. 2 that on receipt of total amount of Rs. 13.5 lac, the above two FIRs, lodged at the behest of respondent No. 2 and her relatives shall be got quashed and the respondent No. 2 shall cooperate in quashing of these two FIRs. The amount of Rs. 4.5 lac was to be handed over to the respondent No. 2 at the time of quashing of the above two FIRs. It was also agreed between parties that respondent No. 2 shall execute all requisite documents for transfer of the vehicle (car) and she will withdraw her complaint pending adjudication in the Court of Shri S.K. Malhotra, Metropolitan Magistrate and that she will not initiate any sort of litigations in future qua this marriage and that the vehicle shall remain in possession of petitioner No. 1 and he would be responsible for all consequences pertaining to the vehicle like insurance, court proceedings etc. The petitioner No. 1 has denied having received any notice from respondent No. 2 and stated that this writ petition for quashing was filed by the petitioner in July, 2007 after the statement of parties before the Court of learned ASJ was recorded in February, 2007.? The petitioner was to arrange the balance amount of Rs. 4.5 lac and after arranging the same, had approached respondent No. 2 for cooperating in quashing the above referred two FIRs but respondent No. 2 declined to cooperate. It is submitted that respondent No. 3 who is father of R-2 and an advocate had all along been instrumental for all the troubles and that is the reason why respondent No. 2 did not cooperate.

9. Respondent No. 2 made a statement before the court on 3.2.2007, after entering into compromise, with the petitioners, that she would honour the compromise. She has to adhere to the statement made by her before the Court. She had already received a substantial amount of Rs. 9 lac, out of the total amount of Rs. 13.5 lac, as agreed between the parties. ?She had only to receive the balance amount of Rs. 4.5 lac. On receipt of the same, she had to agree for quashing of the above two FIRs and for withdrawal of the complaint filed by her before the Court of Shri S.K. Malhotra, MM, Delhi. The balance amount of Rs. 4.5 lac was to be paid to her by the petitioners in the Court at the time of quashing of FIRs. Respondent No. 2 cannot be allowed to make mockery of the Court proceedings, nor the statement made by her in the Court can be considered a trash. Respondent No. 2 now cannot be allowed to back out from the compromise or to wriggle out of the statement made before the court. If it is allowed, there shall be no sanctity to the Court proceedings and the statements made by the witness and the parties before the Court.

10. In view of above discussion, I allow this writ petition. The above two FIRs and the criminal complaint pending before the Court of Shri S.K. Malhotra, MM, Delhi are hereby quashed. The petitioners are directed to deposit the balance amount of Rs. 4.5 lac by way of a pay order/Bank Draft in this Court within three days in the name of respondent No. 2. Respondent No. 2 will be at liberty to withdraw this amount from this Court immediately thereafter.

11. With above directions, this writ petition stands allowed.

Categories: 498A Judgements

Provisions of Section 498A are being used to convert failed marriages into a crime

Equivalent citations: I (2008) DLT 337 Bench: S N Dhingra Narender Kumar And Anr. vs State (Govt. Of Nct Of Delhi) [Along With Crl. Appeal Nos. 748, 749 And 787/2004] on 1/11/2007 JUDGMENT Shiv Narayan Dhingra, J. 1. These appeals have been preferred against the judgment of learned Additional Sessions Judge dated 10th September, 2004 whereby he convicted the appellants under Section 498A read with Section 34 IPC and Section 307 read with Section 34 IPC and against the order of sentence dated 14th September, 2004 whereby he sentenced each of the appellants to undergo RI for 02 years and a fine of Rs. 3,000/- under Section 498A and RI for 07 years and a fine of Rs. 5,000/- under Section 307/34 IPC. 2. The brief facts necessary for deciding these appeals are that complainant Veena Rani was married to accused Gyan Prakash on 24th November, 1997. She was admitted to Safdarjung Hospital on 9th May, 2002 by her husband at about 10.00 p.m. with 25 % burns. She told the doctor that she received burn injuries accidentally while she was cooking food on LPG stove and her dupatta caught fire accidentally resulting into burn injuries. Her MLC Ex. PW 3/1 shows that her pulse rate, Blood Pressure were normal her chest was clean she was oriented to time, place and persons. The injuries present on her body showed that she was having thermal burns on upper parts of the body i.e. upper exteme face, lower abdomen and some patches over the back. Police was informed of the admission by the duty constable in hospital vide DD No. 4A (Ex. PW 1/1) on the night of 9th and 10th May, 2002. The investigation was given to ASI Ramesh Chand, who requested SDM to come to hospital and record statement of Smt. Veena. Statement of Smt. Veena was recorded by SDM on 10th May, 2002. Doctor’s endorsement of her being fit for giving statement is Ex. PW 12/1. In her statement given to SDM (Ex. PW 2/2) she stated that on previous night around 7.00 p.m. she was at home, her jethani and mother-in-law were also at home, LPG Stove was lying on floor. She was standing near the stove and food was being cooked. Her dupatta caught fire from the LPG stove and she cried of catching fire, her mother-in-law and jethani extinguished the fire. Her husband was on duty at the time of incident. Thereafter, she was brought to hospital by her husband. She had been living happily with her family and was not being harassed for dowry, everybody in the family loved her. The incident was an accident and she had no doubt on anyone. She was in full senses and gave the statement without any pressure. 3. Father of complainant Roshan Lal came to see her on 10th May, 2002 itself. On 11th May, 2002, her father made an application Ex. PW5/1 to SDM wherein he stated that her daughter Veena was being mistreated by her inlaws. His son-in-law Gyan Prakash was having no business or work and due to this reason his family members used to throw him out of the house and on this attitude of family of his son-in-law, he had to bring his daughter to his own house sometime for four months and sometime for six months. His daughter was having one son, who was also living with him for about last three years. Due to unemployment of his son-in-law he got his daughter employed in a private firm as a labour, so that she could maintain herself. During this period he had also been sending his daughter to in-laws house with the help of inter-mediators. Mother-in-law of his daughter told him that he should get his son-in-law Gyan Prakash settled by opening a clothier shop for him. Since he (father-in-law) was not a rich person this was not possible for him. On 9th May, 2002 around 7.00 p.m. girl’s two jeths (brothers-in-law) viz. Narender and Vijay, two jethanis (sisters-in-law) viz. Om Prabha and Nirmal and mother-in-law viz. Jeevani Devi @ Jamuna Devi and her husband Gyan Prakash poured kerosene oil on his daughter and set her on fire. He was not informed of the incident. However, he got information on 10th May, 2002 at 10.00 a.m. from some acquaintance that Veena had met with an accident. So, when he went to know well being of his daughter at her in-laws’ house there her father-in-law Pandit Prabhati Lal told him that Veena was in burns ward of the Safdarjung Hospital. When he reached Safdarjung Hospital he learnt that SDM had already recorded his daughter’s statement. His daughter told him that she made statement to SDM as per the wishes of her in-laws since her in-laws had threatened her that they would kill her and her son and that she would be divorced. By his application Ex. PW5/1 he requested SDM that another statement of his daughter Veena should be recorded. 4. After the application made by father of complainant, SDM again recorded a statement of the complainant Venna (Ex. PW 2/1). In this statement complainant stated that her husband Gyan Prakash used to do a private job and she herself was doing a private job. She was having a child around 3? years old. For about a month after her marriage she was kept by her in-laws properly thereafter her in-laws started harassing her on small things. She remained at her parents house for 8-9 months thereafter. She was again called by her in laws after a compromise and she remained at her in-laws for about two months thereafter. After two months she was against harassed for dowry. She used to be told that she had no brother and she had brought so less dowry. She again went to her parents’ house and lived there for about 8-9 months and again came back to her in-laws house after a compromise and she was living at her in-laws house since 8th December, 2001. About 15 days before the incident she had a quarrel with her Jeth and mother-in-law. Her in-laws had purchased a Maruti Car on the day of Holi Festival and they told her that in case she wanted to remain alive she should bring 2? lac rupees or a clothier shop be opened for her husband in Chandni Chowk. She refused to accede to these demands telling her that her father had no money. On this she was told to pack up and go from the house. This quarrel continued till the days of the incident. On the night of Wednesday again a similar quarrel took place and her in-laws gave her beatings and all went for sleeping. On Thursday morning she got up and cooked meals and got ready for going to office. She was told by her in-laws that in case she wanted her safety, she should bring 2? lac from her parents or she should call her father. She however, went to her office/job and after doing her job came back home. When she came back from office, all members of the family viz. both her jeths, jethanis and mother-in-law were sitting in the house. Her in-laws asked her why she had not brought her parents. When she went to her room, she found that her goods were lying packed. Her mother-in-law and jethani abused her and told her that she should pick up her goods and go away. When she refused they bolted the main gate from inside and her jeth said that she should be beaten. Jethani said that she should be burnt and cremated. In the meantime her mother-in-law brought kerosene oil in a tin and poured kerosene oil on her. When she cried then her elder jethani lit fire and set her ablaze. She cried for being saved then all of them went away from there. A bucket full of water was lying there, she picked up the bucket, poured water on herself the fire got extinguished. She asked them to take her to hospital, on this they started beating her. She kept lying in the house for about two hours and they told her that they would take her to hospital only if she would not testify against them otherwise her son and father would be killed. When she agreed to this, she was removed to hospital. She was also threatened on the way to hospital and even beaten. She made her earlier statement under pressure. Her earlier statement was not correct. Since her parents had met her in the hospital now she was under no fear and had made the statement without pressure. Her mother-in-law her jeths viz. Narender and Vijay, her husband Gyan Prakash her jethanis Om Prabha and Nirmal had burnt her. 5. The accused persons were put to trial under Section 406/498/307/34 IPC. Smt. Veena appeared as PW 2 and testified against the accused persons more vehemently, making improvements even over her second statement given to the SDM. Her father and mother also testified against the accused persons and based on the statements, the appellants were convicted. 6. The learned Trial Court observed that the two contradictory statements made by Veena before SDM have been explained and the testimony of the complainant given in the Court was trustworthy and cannot be looked upon with suspicion. The Trial Court also observed that had the complainant been having nice time with her in-laws and been loved and respected as stated in the first statement, she would not have turned a somersault and implicated everyone of her family merely because her father had come to the hospital and met her. The Trial Court observed that earlier statement made to the SDM was under a threat and therefore could not be used to erase the credibility of complainant’s testimony in the Court. The Trial Court also observed that had the incident been an accident only, the appellant would have not concealed the incident from the father of the complainant and would have immediately informed the father of the complainant. The fact that father of the complainant was not informed about the incident by the in-laws/appellants proves guilty mind of the appellants. The Trial Court brushed aside the contradictions in the ocular testimony of complainant and the medical evidence observing the same being inconsequential holding that the doctor who examined her had not taken the case of the complainant seriously and considered it as a case of accident and not a case of burning. Trial Court also brushed aside the contradiction in the stand taken by the complainant about the incident in her maintenance petition and in the Court on the ground that there must have been communication gap. There were other contradictions in the statement of complainant made in the Court and the earlier statement but all these were considered as immaterial by the Trial Court. 7. It is argued by the counsel for the appellants that the Trial Court had grossly ignored the entire sequence of the evidence and the circumstances which proved that the complainant had made false statement in the Court out of vengeance, only to see that her husband, who was not earning well and was not able to maintain her properly and the in-laws should be taught a lesson. 8. As per testimony of PW 2 complainant, made in the Court after marriage, the accused started asking her to bring 2? lac from her father or to get a shop opened for her husband. This part of the testimony is contrary to Ex. PW 5/1, a written application made by her father to SDM wherein her father had clearly stated that her son-in-law Gyan Prakash was unemployed and for this reason he was turned out by his family and he (PW 5) was forced to keep his daughter with him sometime for 04 months and sometime for 06 months and he also had to get his daughter employed as a labour in a private company. She in her statement to SDM and in court tried to make out a case as if she lived at her parents’ house for 8-9 months together due to dowry demands. Her statement in Court is also contrary to her second statement made to SDM implicating her inlaws. In Ex. PW 2/1 she talked of demand of Rs. 2? lac after purchase of a car by in-laws on Holi festival of 2002 while deposing in Court she alleged of this demand from day one of her marriage. It is clear that it was not a case where the in-laws were demanding 2? lac after marriage of the girl but it was a case where the girl was married with a boy who was practically unemployed and had no source of earning. The boy must have been unable to earn livelihood and for this reason he was being turned out from the house by his own family members. Had the in-laws been trying to extract money and been asking Rs. 2? lac from the parents of the girl, they would not have turned out their own son. Once a person grows up and attains age of majority, gets married, he has to earn for himself and his wife. His elder brothers or parents cannot be expected to sustain him and his family even after his marriage. Because of joint family system prevalent in India sometimes the parents go out of way to help such of their sons, who are not able to earn properly and do establish them in business or help them to earn livelihood but that is possible only if the parents are having enough money for this. Where the parents belong to poor or middle class and do not have enough money to extend this help, they have no alternative but to turn out such non-earning persons hoping that this would compel him to sustain himself by striving and struggling. Ex. PW 5/1 is the first admitted written account from complainant’s father that Gyan Prakash was being turned out from house time and again, so that he was able to sustain himself and struggle for himself and it seems ultimately Gyan Prakash got some private job and started going on work. Complainant in order to sustain herself also got a private job with the help of her father and the couple left their son with maternal grand parents out of poverty. The initial period of their married life went like that. It has come in evidence that father of the girl was running a clothier shop in Gurgaon. It is possible that the parents of Gyan Prakash had asked father of the complainant to help Gyan Prakash in opening a clothier shop when he was unemployed however, there was no dowry demand alleged by PW 5 in his application Ex. PW 5/1. Had there been any persistent dowry demand as testified by PW 2, nobody stopped PW 5 from writing the same in his application made to SDM. 9. Let me consider the different statements made by the complainant in this case. In her first statement, she told SDM that she met with an accident. Presuming that this statement and the story of accident told by the complainant to the SDM was made under pressure but there was no pressure on the complainant as far as other facts are concerned. In her first statement, made to SDM she stated that her husband was on duty at the time of incident and at that time her mother-in-law and jethani were at home. One may consider that there may be pressure on her to say that she had caught fire by accident but there could be no pressure on her to mis-state about the presence of persons in the house at the time of the incident. As per her first statement, except her mother-in-law and one jethani, no one was present at home at the time of incident. However, in the second statement Ex. PW 2/1 she stated that her mother-in-law, two jeths and two jethanis were present at the time of incident and her husband was not there when incident of burning took place. Her jethani and mother-in-law bolted the outer door from inside. In her statement before the Court she went further and made her husband also present at the time of incident and stated that it was her husband who bolted the door from inside at the time of incident. It is obvious that her testimony in respect of presence of persons at the time of incident is changing from one statement to other and the effort was gradually to implicate every member of the family. This reflects the mental process of the complainant who seems to wrack vengeance against the family by implicating one after statements of the family members in successive. 10. In her testimony, she alleged that a number of times she used to be confined in a room under lock and sometimes she used to be kept hungry for two days at stretch and sometimes she used to be turned out of the house. She has not stated any such thing in Ex. PW 2/1 her second statement to SDM. Moreover, she was a working girl. She was attending her office at Gurgaon and used to commute by the conveyance provided by the company, as is admitted by her in her cross examination. She was working as a labour. If she had been confined in the room for a number of days she would not have been able to attend office and would have been terminated from service for regular absence from the office. This aspect of her testimony whether she was attending office regularly or not could not be verified by the IO because she in her statement to the SDM had not stated that she was confined by her in-laws in the room. Keeping her hungry is also not believable since she was living with her husband in a separate room, as is admitted by her in cross-examination and she was going to office daily. She herself stated that on the day of incident she had cooked meal in the morning and went to office. A lady who used to cook food herself cannot be kept hungry by others. Moreover, she had every opportunity of taking meals at her work place. Her purse recovered from the room contained Rs. 1,500/- showing she used to carry sufficient money to enable her to meet her requirements. In her statement before the SDM she stated that her husband was doing a private job, while in her testimony before Court she stated that her husband was not working anywhere. In her statement before the SDM she stated that she was being taunted by in-laws that she had no brother while in her testimony she admitted that she had a brother. In such a case nobody could have taunted her that she had no brother. In her testimony she stated that there was no telephone at her parents’ house and telephone was installed only after the incident. However, her father PW 5 in his testimony stated that there was a telephone in house even before the incident and demand of Rs. 2? lac was made by mother-in-law on telephone and accused Narender and Vijay also talked on telephone. He also asserted that he was informed about the incident by some acquaintance on telephone. 11. Her testimony seen in the light of previous admitted statement shows that in order to implicate each member of the family she changed the version of incident. In her testimony in the Court she described the incident of burning her differently. She stated that her mother-in-law Jeevani Devi @ Jamuna brought Kerosene Oil and when she tried to save herself running here and there, she was held by her both jeths (brothers-in-law) and her sisters-in-law Nirmal pressed her hand against her mouth to prevent her from raising alarm and then mother-in-law poured kerosene oil and her elder sister-in-law Om Prabha set her ablaze. Her husband had bolted the main door from inside and did not try to save her. After she was set ablaze, she rushed to tap and poured water kept in a bucket on her. She also tore her clothes and extinguished the fire, of her own efforts. Her testimony in the Court was recorded on 1st May, 2003. She was in a better position to remember the details on 11th May, 2002 i.e. soon after the incident when she described the incident to SDM in Ex. PW 2/1. The description of incident given by her in her statement to SDM on 14th May, 2002 is altogether different from the description given by her in the statement given in the Court. She has nowhere stated in her earlier statement that she had torn her clothes. She did not state that she was held by her two jeths or her mouth was gagged by her jethani Nirmal or her husband bolted the door from inside and kept watching but did not try to save. In a case of maintenance her allegations changed. Her unemployed husband suddenly started earning Rs. 8,000/- p.m. and she was set ablaze by her jethani Nimal and not Om Prabha. All these improvements and changing versions have been made by her just to see that entire family is implicated. 12. It is her own case that a container of 05 litres of kerosene oil was poured on her. 05 litres of kerosene oil is an enormous quantity of oil and if this quantity is poured on a person and fire is lit, he/she will immediately turn into a fire ball. Presuming that the complainant had extinguished the fire immediately by pouring a bucket full of water on herself and by tearing her clothes, in that case the unburnt kerosene oil would remain on clothes and she would have been profusely smelling of kerosene oil. Not only her clothes but her entire body would have been drenched with kerosene oil and her clothes would have been drenched with kerosene oil and water. It is not her case that when she was removed to hospital her clothes were changed or she was washed off and bathed, rather her allegations are that she was continuously beaten for two hours before having been removed to the hospital and she kept lying there for two hours in kerosene oil and water. It cannot be believed that on seeing a patient in such a condition, doctor would have closed his eyes and would not record the condition in the MLC. There is no mention of smell of kerosene oil coming from her body in MLC, there is no mention of traces of kerosene oil on her clothes, there is no mention of her clothes being torn, there is no injury on any part of her body except the burn injuries in the MLC. A woman, who had been continuously beaten for about two hours definitely would receive some injury on some part of the body but no injury of the nature was found on her body as per MLC. The oral testimony of Smt. Veena/complainant is totally in contradiction with the medical testimony. 13. It is rightly said that men may lie but circumstances do not. Her lies have been nailed down by the circumstances. There is no seizure of torn clothes soaked with kerosene oil or water, there is no seizure of kerosene oil container by the IO moreover, there is no mention of kerosene oil smell either from body or from clothes and there is no mention of torn clothes by the doctor in the MLC. All these circumstances show that the entire story put forward by the complainant was a cooked up story and no kerosene oil was poured on her. 14. If two of her jeths had caught her so that she could be doused with kerosene oil and one jethani had gagged her mouth as alleged by her, nothing would have stopped them from burning her completely so that she did not survive. It only seems that none of the persons except mother-in-law and one jethani were even present when incident of burning took place and the incident seems to be an accidental burning and that is why she received only 25% burns at upper part of her body near neck. The nature of injuries confirms to her first version that her dupatta caught fire, fire travelled through dupatta to her upper portion. Since dupatta is normally worn by ladies around neck and keeps hanging the burns in this case seen to be due to presence of dupatta on the upper portion i.e. on neck and back that fire had travelled through dupatta on the upper parts of clothes worn by her. 15. Trial Court has heavily relied upon a presumption against the accused persons that parents of the girl were not informed. This is also belied by the witnesses. PW 13 (Raghbir Prashad) is brother-in-law of the complainant (sister’s husband). He learnt about the incident on 9th May, 2002 i.e. on the day when the incident happened from his father-in-law who informed him on telephone about the incident. However, he did not visit Veena at the hospital and met Veena at her residence only after 5-7 days of the incident. This witness has not been cross examined by the APP on any point. He is a prosecution witness. This testimony cannot be brushed aside. This shows that father of girl was informed on 9th May, 2002 itself, that is why he could inform PW 13 on telephone on 9th May, 2002 but since the incident was not so serious and the burns were received accidentally and complainant was not in any danger of life, it was not taken seriously by this witness and he did not even visit his sister-in-law at the hospital and met her only when she came back home after 5 days. The non-serious nature of the incident is also reflected from the testimony of Smt. Kanta PW 6, who is mother of the complainant. She stated that she was informed about the incident by her husband, who made her a telephone call in the morning of Saturday i.e. 11th May, 2002 and thereafter she went to hospital. Had the incident been serious her husband would have informed her at least on 10th May, 2002 when she claimed that he learnt about the incident and she also would have visited her on the same day along with her husband. 16. PW 2 testified in the Court that after getting her bandaged, none of her in-laws looked after her and all left the hospital. Her testimony is belied by the testimony of her own father. Her father stated that when he reached hospital on 10th May, 2002 her mother-in-law, brother-in-laws etc. all met him in the hospital. Similar is the testimony of her mother, who visited her on 11th May, 2002. It shows that PW 2 was out to speak patent lies in the Court. 17. There is another important factor in this case which shows that the case of dowry demand and breach of trust under Section 406 IPC was falsely foisted on the accused persons. PW 11 Sushma Rawat, SI CAW Cell, who investigated the case testified that she had visited the house along with the complainant and all her jewellery, dowry articles etc. were found in the room in which she was residing when she was living with her in-laws. It was her room and there was an almirah in the room and the key of the almirah was in the purse of the complainant. The purse was also lying in the same room and her entire jewellery and Rs. 1500 were found in the almirah. That shows that complainant and her husband were living separate in one room and her entire dowry articles and istridhan was in her own custody and none of the other in-laws had any kind of greed to take away her jewellery or her articles neither her goods were lying packed. The story of demand of Rs. 2? lac seems to be an invention made by the complainant and her father just to make a false case against the accused persons. Her father in his testimony stated that mother-in-law and brothers-inlaw demanded Rs. 2? lac from her on telephone much prior to the incident. Had it been so PW 5 in his written application Ex. PW 5/1 would have mentioned about this demand because in this application he has mentioned everything possible against the accused persons. A demand of Rs. 2? lac seem to be invented in consultation before making statement to the SDM and that is why when subsequent statement was recorded by the SDM of complainant, her father and mother this demand was included in the statement while prior to that in Ex. PW 5/1 there is no mention of demand of Rs. 2.5 lac neither it is mentioned that boy wanted a shop for him to be established in Chandni Chowk, what mentioned is the abject poverty of the boy and his inability to earn. 18. I consider that the story of the complainant that she was threatened by her husband and in-laws for making statement to doctor and SDM about her accidental burning is palpably false. Her husband was not even at home when the incident took place. Her husband used to go for his job and perhaps come back home after the arrival of his wife. He was working as a labour. The son of parties was living at Gurgaon with father of the girl. Her husband was not a criminal neither it is alleged that he had any criminal background. A poor man who was starving for his survival and had to work as a labour from morning till evening for livelihood, could not have given threats to kill his own son and father-in-law. This story of threat seems to have been developed later on by the complainant in consultation with father. The question would arise why the complainant would falsely implicate her in-laws. It is undisputed that complainant was not happy with her matrimonial life. Her husband was an idle man, who earlier was not doing any job. Complainant had to live at her parents’ house for 8-9 months together because of poverty of her husband. Complainant’s son was also being brought up by her father because of the poor financial condition of her husband. Complainant herself had to take a job as a labour. She was living with her husband while her son was living with her father in Gurgaon, miles away. It seems that after the incident her father advised her to call it a day and break this relationship once for all. But simultaneously it seems that it was decided that the in-laws must be taught a lesson for ruining the life of the complainant as she was got married to a worthless boy. May be some false representations were made at the time of the marriage about the worth of the boy. It is not uncommon that someone may decide to end the unhappy married life. It looks that the complainant made allegations of threat etc. only to turn a ‘U’ turn, as she and her parents had decided to call it a day for the unhappy married life of the complainant. 19. It must be understood that god had not made any two persons same with the same ideas, qualities and it must be acknowledged that marriages do fail and there is a mismatch not only in arranged marriages but even in love marriages. The mismatch is discovered during the continuation of married life. No doubt poverty is a curse and a poor man has to suffer in the society at different fronts but I consider that despite poverty being a curse, poverty cannot be made a crime. Neither the failed marriage can be made a crime. In this case, the poverty was not only a curse for the boy but it made to be a crime since due to his poor condition he could not provide all that which he should have provided to the wife and the wife ultimately saw to it that not only he but everyone of his other family members land in jail. Every marriage that fails does not fail due to dowry demand or cruelties. The marriages do fail for several other reaons including the reason of incompatibility of the persons. A failed marriage is not a crime however, the provisions of Section 498A are being used to convert failed marriages into a crime and the people are using this as tool to extract as much monetary benefit as possible. In many cases, where FIRs are filed under Section 498A IPC, petitions are being filed under Section 482 Cr.P.C. for quashing of FIRs after settlements between the parties and the allegations made of cruelties etc. are withdrawn the moment a lump sum payment is received. Involving each of the family members of the husband is another arm in the armory of the complainants of failed marriages. Not only close relatives but distant relatives and even neighbours are being implicated under Section 498A and other provisions of IPC in cases of failed marriages. The Courts must be very cautious during trials of such offences. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. No evidence about giving of dowry or resources of the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law. The investigating agency in all such cases must collect all circumstantial and other evidence in respect of claims made by the complainant and similarly Courts should always be careful in considering the credibility and truthfulness of the statement of the complainant and relatives. 20. From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement implicated the entire family in offences of under Section 307 and 498A IPC. The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence. Poverty should not be allowed to become a crime. Neither failed marriage be permitted to be a crime. 21 I allow these four appeals. All the persons/appellants are acquitted of Section 498A and Section 307 IPC. 22. The appellants, namely, Gyan Prakash in Crl. Appeal No. 787/2004 and Smt. Jeevani Devi @ Jamuna Devi in Crl. Appeal No. 749/2004 are directed to be released forthwith. A copy of the judgment be sent to the Superintendent, Central Jail, Tihar.

FIR was a gross misuse of criminal justice system: Quashed by Delhi HC

September 22, 2010 1 comment

Harvinder Singh Khurana And Ors. vs The State (Nct Of Delhi) And Anr. on 9/10/2007

JUDGMENT

Shiv Narayan Dhingra, J.

Page 2906

1. This petition under Article 226 read with Section 482 Cr.P.C. for quashing of FIR No. 1198/06 under Section 498A/406/34 IPC registered at PS Lajpat Nagar filed by respondent No. 2 against the three petitioners. Petitioner No. 1 is husband of the respondent No. 2 and while petitioners No. 2 and 3 are jeth and jethani (brother-in-law and his wife) of respondent No. 2.

2. The petitioner No. 1 was married to respondent No. 2 on 19th July, 1992. They have two children. A perusal of FIR shows that the complainant/respondent No. 2 made allegations in FIR that at the time of marriage her parents had given dowry but the petitioners were not satisfied with the dowry given and she was taunted that the dowry articles were not up to the mark. The elder brother of her husband Parvinder Singh Khurana and his wife played a leading role in causing harassment, humiliation to the respondent No. 2 by describing the dowry articles as sub-standard and insufficient as a result that the relations between her and her husband were strained and never cordial. She was also asked to bring Rs. 2 Lac from her parents for enhancement of their business, which demand could not be fulfillled. She continued to live with the petitioner hoping that happy days may come and good sense may prevail upon but it did not happen. She made specific allegations against her husband in the FIR in the following terms:

That the husband of the applicant Sh. Harvinder Singh has been indulging in bad habits like drinking, womanizing etc. The applicant also made her best efforts that he should leave his bad habits but all in vain. He is daily drinker and some time, he come to house at objectionable hours in the dead night and dead drink on being objected by the applicant, he always created rowdy scenes even annoy the neighborers and to the applicant. He is in habit of hurling filthy abuses and he is also in the habit of beating physically to the applicant and thereby caused physical and mental tortures. It has been learnt by Page 2907 the applicant that the husband of the applicant also keeps a concubine and reside with her at Panipat. The applicant has been subjected to cruelties to the extent that he has created serious horror in her mind and she has a serious apprehension to her life.

She further made allegations in the FIR in the following terms: He stopped the Taxi and brought out can of petrol etc. and he wanted to throw the petrol etc. over the applicant but fortunately, the parents of the applicant helped her in getting her inside the door and bolted. He tried to throw the petrol and some petrol poured on her clothes. When he failed in his attempt, then out of frustration, he poured the petrol himself and lit himself. As a result of that he sustained burn injuries and he was removed by the police who had come immediately at the spot and he was admitted to Civil Hospital, Anandpur Sahib but later on he was shifted to P.G.I. Chandigarh. The entire expenses were borne by the father of the applicant. Later on, his family members came at the Chandigarh Hospital and he tried to blame the parents of the applicant. However, the police registered a case Under Section 309 IPC at PS Anandpur Sahib vide FIR No. 75/01 dated 22.8.2001.

3. It is undisputed that the respondent No. 2 had also filed a petition under Section 10 of Hindu Marriage Act for judicial separation from her husband. Copy of this petition being HMA No. 2/2003 is placed on record. In this petition, respondent No. 2 stated that relations between her and her husband became strained after about two years of marriage, however, the dispute between respondent No. 2 and her husband was amicably settled by mother-in-law. After the death of mother-in-law her husband again started teasing and maltreating her on flimsy matter specially after consuming liquor and started beating her and threw her out of matrimonial home along with her daughter. There was intervention of relatives and she was sent to her matrimonial home on the assurance of her husband that he would behave properly. Even after that, behavior of her husband did not improve and he gave threats to burn her forcibly by pouring kerosene oil. She went to her parents’ house and narrated about these threats to her parents. Again the matter was got resolved and petitioner No. 1 again promised not to drink liquor in future, not to misbehave and give threats and respondent No. 2 joined his company. However, the maltreatment of respondent No. 2 at the hands of petitioner No. 1 continued and his threats also continued with the result that she had to leave the company of petitioner No. 1 along with children on 24th May, 2001. She got a job of teacher in Anandpur Sahib and got admitted her children there and she started living there since May, 2001.

4. Nothing is stated by respondent No. 2 in her petition under Section 10 about any dowry demand made by any of the petitioners or any cruelty perpetuated on her by petitioners No. 2 and 3 or any role played by them. A perusal of petition would show that since 1994 respondent No. 2 and petitioner have been living separately; first they lived at G-1 Railway Colony Shahdara, then they lived at Sector 13, Rohini and then they lived at Karol Page 2908 Bagh. Petitioner No. 2 and 3 had not been living with them since 1994 when they shifted to Rohini. Respondent No. 2 had also filed an FIR at District Ropar on 22.8.2001 in respect of incident of pouring petrol on petitioner No. 1 on himself and in that FIR she gave following account:

I was married to Harvinder Singh Khurana @ Goldi son of Sh. Kulwant Singh Khurana respondent of 14/1076, Naiwalan Karol Bagh, New Delhi on 19th July, 1992. My husband is running a shop of spare parts of Maruti. My husband daily use to haras me after taking liquor after my marriage. I inform the same to my parents, my parents tried to convince to him, but he did not understood. Resulting which I along with my children came to Anandpur Sahib to my parents from Delhi in the month of May, 2001. I am working as private teacher in Mata Sahib kaur academy school, Anandpur Sahib. My two children are studying here. My husband so many time told me on phone I shall brought back my children, in case you did not give the children to me, I shall make suicide before you. On 21.8.2001, I along with my children went to Mata Sahib Kaur Academy Anandpur Sahib for teaching, then my husband came to academy in my class where I was teaching to the children, I told him it is not permitted to come in the school, you can talk me outside the school gate after school time. After holiday I return back to my house along with children through school bus. It was 4, ‘O’ clock from leaving bus near my house gate my husband was coming towards behind me who was having can in his hand who told me that children be handed over to him failing which I shall throw kerosene oil upon myself and set fire, I told him that I shall not permit the children to go with you in this condition, then in my presence he poured kerosene oil upon him and set fire through match stick in front of me.

5. After the incident of burning of petitioner No. 1 petitioner No. 1 moved Punjab and Haryana High Court making allegations that he was set on fire by his in-laws and he had not made attempt to commit suicide. Punjab and Haryana High Court vide order dated 24.1.2002 gave directions to the SHO of PS Anandpur Sahib to investigate/inquire into the version given by petitioner No. 1, as contained in his statement made to judicial magistrate and take further action according to law.

6. It is obvious that the present FIR is contrary to the earlier complainants by the respondent No. 2 to the Courts. The allegations made in the present FIR in respect of her harassment by petitioners No. 2 and 3 for dowry or taunting for dowry do not stand anywhere. She has been living separate with her husband since 1994. In her complaint she stated that her husband was a drunkard and womanizer and maltreating her because of his drinking habits. Her husband attempted to commit suicide in her presence when she refused to hand over the children to him. It was not her case that her husband tried to pour kerosene oil on her as alleged in the present FIR.

7. Although this Court must be loath in quashing FIR and FIR should be quashed in rarest of rare cases. FIRs can be quashed only in those cases where either the criminal justice system is being put to gross misuse and is used as a tool to settle the scores by making such allegations which can Page 2909 stand even the initial scrutiny by the Court and are made malafidely or in those circumstances where, if all facts are considered as true, still no commission of a offence is revealed. In the present case, the respondent No. 2/complainant was living separate from her husband since May, 2001. She was living at Anandpur Sahib and alleged incident of attempt to commit suicide took place in August, 2001 and is being investigated there. Her husband lodged a complaint that it was not an attempt to suicide but it was an attempt to killing. During pendency of these complaints she filed a petitioner under Section 10 of Hindu Marriage Act for judicial separation from her husband, her husband filed a petition under Section 9 of Hindu Marriage Act. In none of these complaints or petitions there was even a talk of harassment for dowry or involvement of any other family member in the dispute between husband and wife. Suddenly in 2006 when she filed this FIR she implicated elder brother and his wife in this FIR making allegations of dowry demands, despite the fact that they were living separate from them since 1994.

8. It is apparent that this FIR was a gross misuse of criminal justice system. Respondent No. 2 in order to settle the score with her husband implicated other family members for dowry harassment while there was no complaint prior to that and she was married to petitioner No. 1 for about 14 years before lodging of this complaint and had two children. Her main allegation even in FIR are against her husband, who has been stated to be a drunkard and womanizer. I consider that FIR lodged by the respondent No. 2 against petitioners No. 2 and 3 regarding her harassment for dowry or taunting is a malafide and needs to be quashed. I, therefore allow this petition and criminal proceedings arising out of FIR No. 1198/2006 PS Lajpat Nagar in respect of petitioners No. 2 and 3 are hereby quashed. As far as petitioner No. 1 is concerned, serious allegations of cruelties being perpetuated by him from the very beginning of his marriage are stated in the FIR against him and the police shall investigate the crime vis-a-vis petitioner No. 1.

The writ petition stands disposed of with above directions.

Categories: 498A Judgements

498A cannot be used to settle her personal scores : Quashed by Delhi HC

September 22, 2010 2 comments
Equivalent citations: II (2007) DMC 644
Bench: S N Dhingra

Kanchan Gulati And Anr. vs The State And Ors. on 12/9/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant).

2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs. 2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs. 1,46,000/- and an amount of Rs. 4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.

3. On 06.5.1997 her husband filed a divorce petition in the Circuit Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.

4. Quashing of this FIR has been prayed for by the petitioners. It is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.

5. The complainant has not disputed about her contesting divorce petition and filing an appeal before the US Court. The orders of the US Court have been placed on record. The decree passed by the USA Court has not been challenged. The order of the US Court shows that the complainant had taken up all grounds like withholding her property, dowry etc. by her husband. The US Court directed the parties to exchange articles and passed following order:

A. That the bonds of matrimony now existing between the petitioner, ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.

B. That the marital home located at 1258 S. Pleasant Hill Gate, Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.

C. That each party shall receive his or her own vehicles and each shall execute any documents necessary to transfer the title of the vehicle to the other.

D. That each party shall receive his or her own personal property currently in his or her possession. That the Husband shall receive the following personal property as his sole property which shall be delivered to him by the Wife on March 21, 1999:

Sharp TV

Bed (with frame, and box spring)

Sharp Microwave

Small fridge

Cooking Utensils and accessories

Spices

Square side table (brown, wood)

3 Chairs ( wood frame and brown leather seat) Dining Table and Chairs

2 Chairs (steel frame, leather seat)

Glass top tables

Comforter from aunt

Utensils, spices and other stuff from my relatives.

E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.

F. That the Husband shall receive his stock options as his sole property.

G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.

H. That each party is barred from any maintenance from the other.

I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife’s interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.

J. That the parties shall exchange their dowry items within 60 days of the entry of this Judgment for Dissolution of marriage. The Wife shall give to the Husband all the items on the attached list:

One gold chain with pendant

One gold “krishna murti” pendant with diamonds. One diamond ring

one pair of big earrings (mina wale)

2 pair of earrings

one gold ring ( given on Kwar-dhoti)

one pair of silver paizeb

one long mangal-sutra (mina wala)

Bangles

One (1) Golden Challa (sister-in-law)

The Husband shall give to the Wife all items on the attached list:

One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings) One Sitarami Necklace (Necklace only)

One Gold Chain given to me

One Gold and Diamond engagement ring

One Gold wedding band

One Gold coin (guenea)

One Double gold chain given to my mother

One Gold chain given to my sister-in-law

Two gold rings (1 for my father, 1 for my brother) Two silver trays (rectangular)

One silver tray (circular)

One silver small bowl (katori)

One wedding saree

One luggage carrier (foldable cart)

Check book for bank account in Anuja’s name

6. The appellate order passed by the appeal court would show that appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfillling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.

7. Quashing of FIR in exercise of writ jurisdiction is a discretion of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.

8. I consider that it is a rarest of rare case, where the Court should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.

Justice Shiv Narayan Dhingra sets aside conviction under 498A/308/34

Equivalent citations: I (2007) DMC 723
Bench: S N Dhingra

Surender Kumar And Anr. vs The State (Nct Of Delhi) on 7/3/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this appeal the appellants have assailed the judgment dated 18.3.1999 passed by learned Addl. Sessions Judge whereby the appellants Surender Kumar and Ashwani Kumar were convicted under Section 308 read with Section 34 of Indian Penal Code and Surender Kumar was convicted under Section 498A IPC as well and against the order on sentence dated 23.3.1999 whereby the appellant Surender Kumar was sentenced to undergo RI for two years and fine of Rs. 1000/- under Section 498A IPC and the two appellants were sentenced to RI for five years and fine of Rs. 1000 under Section 308 read with Section 34 of IPC.

2. The case was registered against four persons on the statement of complainant Mamta who, in her complaint dated 9.3.1992, stated that she was living with her family at House No. 86/14, Sector-I, Pushp Vihar, New Delhi. She was married to appellant Surender Kumar on 2.2.1992. Her parents used to live at Sarojini Nagar. A day before the incident, her husband had taken her to her parents house and then brought her back to her matrimonial home at 4 pm. On the night intervening 8th and 9th March, 1992, she was beaten up by her husband and to suppress her cries from outsiders, a tape recorder was played. Daily she used to be told that she had brought less dowry and she should bring more dowry. On the morning of 9.3.1992, she telephoned her father and called him. Her father and brother came to her matrimonial home to take her to her parents’ house. When they (she, her father and brother) had come downstairs for going to parental house, her husband called her upstairs to open the lock of Almirah. On her going upstairs, her husband and her Dewar Ashwani Kumar, bolted the door from inside and thereafter both of them picked her up and threw her down from balcony, due to which she received injuries on her body. She further stated that her mother-in-law, brother-in-law Braham Prakash (elder brother of husband), her husband, her other brother-in-law Ashwani Kumar should be prosecuted as per law. A case under Section 498A/308/34 IPC was registered against all the four persons namely Surender Kumar, Braham Prakash, Ashwani Kumar and Parmeshwari Devi. All the four were charged under Section 498A read with Section 34 of IPC while appellant Surender Kumar and Ashwani Kumar were also charged with Section 308 read with Section 34 of the IPC.

3. Mrs. Mamta appeared as PW-1 before the Trial Court and in her testimony before the Court she did not restrict herself to the statement given by her initially to the police and made a lot of improvements in that. Before the Court, she stated that all the accused persons harassed her and tortured her for not bringing sufficient dowry. Accused Surinder used to tell her that she would meet the same fate as wife of Narender. Accused Braham Prakash also used to say same thing and they used to say that her parents were supposed to pay huge amount of dowry. Regarding 8.3.1992, she deposed that on that day she had gone to her parents house as she was told by her husband that she should bring Rs. 25,000/- from her parents as he was to purchase a scooter. Her husband Surender left her at her parents’ house. She told her parents to give her Rs. 25,000/- but her parents had no money to give her. She brought certain certificates along with her from her parents’ house since she was to clear SSC Examination. Accused Surender had also told her and threatened her to return from her house within 15 minutes otherwise he would kill her. She was then taken to her matrimonial house at Preet Vihar and there her mother-in-law asked her if she had brought Rs. 25,000/- from her parents house. She told her mother-in-law that she had not brought money as her parents were not in a position to pay the amount. On this, her husband Surender switched on a tape recorder on high pitch and gave her beatings and told that she would be given more beatings when Ashwani would come. On 9.3.1992, on her making a telephone call, her father and brother came to her in-laws’ house at about 8 am and she told them that she was beaten and should be taken away from the house. The accused persons told her father and brother that she would be sent in the evening or on the next day. However, she was not prepared to remain in the house of her husband as she feared for her life as earlier her husband Surender had told her that acid would be thrown on her person and he had brought acid for that purpose. When she tried to pack her clothes, accused persons did not allow her to do so. However, she came downstairs despite resistance of accused persons. They used to live at 3rd Floor. Accused Ashwani and Surender (appellants in this case) came downstairs and told that their mother was calling her and wanted to know where the keys of almirah were kept. She, therefore, went upstairs. On her reaching upstairs in the room, Surender bolted the door from inside. Accused Ashwani, Surender and Parmeshwari Devi were in the room. Her mother-in-law Permeshwari Devi did not allow her to go to her parents’ house but she requested her to allow her to go to her parents’ house. On this, she was given beatings with fists and slaps. She was not allowed to escape from there and then accused persons told her that she would be allowed to go from different passage. She was then dragged to the balcony and accused Surender, Ashwani and her mother-in-law physically lifted her and thrown her on the ground floor from 3rd floor. She sustained injuries on her legs, her back bone and other parts of body. She lost consciousness but regained it in the hospital. She was removed to Modi Hospital. From there she was removed to Safdarjung Hospital on 10.3.1992 where she remained admitted up to 1.5.1992.

4. During cross examination, she admitted that after 3 days of her marriage her husband had taken her to her parents’ house and both of them came back on the same day. She admitted that thereafter she and her husband had gone to Nainital for honeymoon. They stayed in hotel ‘Madhuban’ at Nainital for five days. She admitted that both of them enjoyed their honeymoon and they had prepared photographs of the tour. After they came from honeymoon, her brother came to her in-laws’ house to take her but her husband and mother-in-law did not send her with her brother. She admitted that there were four flats at each storey but stated that none of the family came to her rescue. The reasons for not coming to her rescue by neighbours as given by her is that the appellant Surender had beaten up all the neighbours and all the neighbours were afraid of him. There was no telephone connection either at the house of her parents or at the house of her in-laws. She further admitted that she was going out for shopping from her matrimonial home right from the day one of her marriage. She used to be sent for purchasing vegetables daily. She did not give any telephone message to her parents regarding beatings by accused prior to 9.3.1992. She went to her parents house after 5/7 days of coming from Nainital and she told her father about the beatings but her father neither told this fact to any other relative nor reported the matter to the police. Next day at around 12 am, her husband Surender came to her parents’ house with her and talked to her parents. He threw bedsheet on them saying that same was of sub-standard quality. Her parents told her not to go back with her husband but since she wanted to settle herself in husband’s family, she went along with her husband against the advise of her parents. However, on the same night she was beaten up by accused Surender and Ashwani and she became unconscious. Again she improved herself and stated that she had not become unconscious. She used to be beaten till the accused persons got tired. During these beating sessions, she sustained injuries on her head and blood came out. However, she did not go to hospital or doctor or did not undergo any dressing. She admitted that she had been going to learn typing and shorthand from her matrimonial home and in her class there were 50 students in the batch. She did not tell any of her colleagues about the ill-treatment meted out to her. She stated that police had not recorded her statement ever, so she had not told about demand of Rs. 25,000/-. She had not told her father about the demand of Rs. 25,000/- or that her husband would kill her. She told that she was afraid of telling these things to her father as her husband always used to keep revolver with him. She telephoned her father in the morning of 9.3.1992 at about 6.45 am when she went to take milk from the milk booth. She had telephoned at the house of a neighbour of her parents house. Though she was apprehending danger to her life but she made no effort to go to her parents house despite having opportunity to go to her parents house from the milk booth directly. She further stated that her mother and father had reached her ‘in -laws’ house at 8 am and they sat in the drawing room. Ashwani and Surender were in the drawing room and they all talked in her presence. In the presence of her father, the accused persons talked nicely as if they were having lovely relations with her. The talks continued till 12.30 pm and it was only at 12.30 pm when she told that she was going with her father and mother, accused persons told her that they were not willing to send her with her parents but if she wanted to go, she may go. She denied that suggestion that her husband had made a complaint to her parents that she was having illicit relations with somebody who used to come to meet her in his absence when he was in the office. She denied that when her husband made this complaint, she ran speedily and fell down from stairs and received injuries on her person. She admitted that she had decided not to live at her in-laws’ house after sustaining injuries. She admitted that accused persons used to visit her in the hospital but stated that they used to visit to torture her.

5. Her father appeared as PW-5 and in his testimony he admitted that before marriage the accused persons had told him that he should not spent a single paisa on marriage. He admitted that after marriage Surender and Mamta had gone for honeymoon to Nainital and they had come back happily. He admitted that his statement was recorded by the police at the hospital and he did not state to police that on 9.3.1992 her daughter told him on phone that she was beaten up on previous night by her in laws. He admitted that in his statement to the police, he had got recorded that the accused persons had agreed to sent Mamta with him after exchange of hot words. In cross examination, he further admitted that Mamta and Surender were living in a separate house and rest of the accused persons were living in a separate house with their family. He, however, stated that mother-in-law of Mamta was living with Mamta and Surender. Accused Ashwani was a constable in Delhi Police. He denied that Ashwani was not present on the place of occurrence on 9.3.1992. He admitted that the accused Surender was in the hospital when he reached there after admission of Mamta. Other accused persons had also come to the hospital. He stated that after seeing her daughter in injured condition, he decided not to send her to her in-laws house. He denied the suggestion that appellant Surender had told him that one boy used to come to visit his daughter in his absence.

6. Brother of Mamta who was allegedly present at the time of this occurrence has not been examined on the ground that he was not in India. Prosecutrix Mamta stated that she became unconscious after she fell and she regained consciousness only in the hospital. Same is the statement of father of the prosecutrix that he became unconscious on hearing his daughter fell from the 3rd floor and he regained consciousness after sometime. Thus, neither PW1 nor PW5 are the witnesses as to who took Mamta to hospital. Their testimony that Ashok, brother of Mamta, took her to hospital is baseless. On the contrary, DD No. 8 was recorded on 9.3.1992 at about 1.30 pm by the Duty Officer wherein it is stated that doctor of Modi Hospital through telephone gave information at about 1.30 pm that Mamta wife of Surender r/o 86/14, Sector-I, Pushp Vihar was admitted to the hospital by her husband Surender since she had injured herself by falling from the stairs and somebody should be sent. From this DD, it is obvious that it was husband of Mamta who got her admitted in the hospital. It has come in the testimony of PW-5 that Surender was present in the hospital when he reached the hospital. I consider that there was no reason that doctor at the hospital had any motive to give false information to police that Mamta was brought to hospital by Surender, her husband.

7. It is admitted by PW-5 that before marriage of Mamta, Surender, appellant, and his relatives had told him that he need not spend even a single paise on the marriage. If the appellants, or any of their relations were dowry seekers, they would not have told this to the father of the complainant. They would have rather welcomed if dowry was given. Appellants specifically telling the father of the complainant that he need not spent a single paise on the marriage, proves that they were not dowry-seekers. A list of articles of dowry received back by the complainant show the articles as kitchen utensils, one sewing machine, one double bed, one steel almirah, one wrist watch, ladies personal articles, one sofa and a central table. This would show that the parties to the marriage belonged to middle class family. Both of them were not having telephone at their houses and they were living a lower middle class standard.

8. The marriage took place on 2.2.1992. It is obvious that she would have reached her matrimonial home on 3.2.1992. She went to her parents house after 3 days of marriage. Surender accompanied her and in the evening they come back. After a day or so they proceeded for honeymoon to Nainital. They stayed at Nainital in a hotel for five days. There was no problem between them and they come back happily. She went to her parents’ house after 5-7 days of honeymoon and stayed there over night. She makes no complaint to her parents either of beatings or dowry demand. Her allegations that she used to be beaten after every three days, black and blue till the accused persons got tired of beating her, does not find support from circumstances and her own conduct. She used to go every morning for bringing milk and vegetables from the milk booth. She also used to go for shopping. She daily used to go for learning typing and shorthand. Obviously her traveling had to be by bus. She went to her parents house after 5/7 days of coming from honeymoon and then on 8.3.1992. Her husband accompanied her on both occasions. If she had been beaten black and blue as told by her , there was no reason for her to come back to her matrimonial home. She could have refused to accompany her husband from her parents house and reported the matter to police. Her testimony that her husband was keeping revolver with him and had brought acid and in order to suppress her cries he played the tape recorder, are not supported by any of the recoveries made from the house. She did not tell all these facts to the police in her complaint. No recovery of tape recorder, acid or revolver is made from the house of appellant. There was no tape recorder in her own dowry articles.

9. The total stay of the prosecutrix at her matrimonial home is hardly 35 days. Out of these 35 days, first 10 days, she stated, she lived very happily, rest 25 days she was going to learn typing and shorthand almost daily. She was going to market to bring vegetables, milk etc. She visited her parents’ house minimum twice and stayed there overnight once. Her husband accompanied her to her parents’ house both the times. In her complaint to the police, no specific instance of dowry demand is stated by her and the only allegation made by her is that she used to be told that she had been given less dowry. She did not state anything about throwing of bed sheet complaining that the bed sheet was of poor quality or of demand of Rs. 25,000/- for scooter. In her statement to the police, she made allegations only against her husband about taunts. She made no allegation against any other person about dowry demand but asked for action against her Dewar, Jeth and mother in law as well, apart from her husband. In her statement before Court she even implicated Braham Prakash who was living separately with his family. Even her mother-in-law Parmeshwari Devi was not living with them. She was also living separately. Her father, in her testimony, admitted that Parmeshwari Devi and Braham Prakash were living in separate houses. In her complaint to the police, she did not mention that Parmeshwari Devi was present on 9.3.92 at the house. She only stated that her husband and Ashwani had lifted her up and thrown her from balcony. Her entire testimony shows that she had not deposed truthfully.

10. The real cause of dispute between husband and wife was something else. If her husband had been demanding more dowry, he would have readily agreed to send her back to her parents house and told her that she would not come back till she brings dowry. But her statement is that her husband was resisting her going to her parents house. Her father does not say a word as to what transpired between him and her husband from 8 am till 12.30 pm when both talked. He remained in the house of appellants from 8 am to 12.30 pm. He had come there with his wife or son and kept on discussing something in the presence of her daughter. What was the topic of discussion is not disclosed to the Court. It is not his case that during these four hours any demand of dowry was made or he was counseling to her daughter to adjust or to her in laws not to be greedy or he had made any proposal. It is admitted by prosecutrix that during this period her husband has been talking nicely as if he was having lovely relations with her. His statement that his daughter was beaten earlier also due to dowry demand and despite that he did not make any complaint to any one and allowed his daughter to go to her matrimonial home does not inspire confidence being contradictory to his statement to police. The statement of prosecutrix that she was beaten after every 2/3 days black and blue to the extent that she got injuries on her body and to the extent that she became unconscious or accused persons got tired of beating her is unbelievable in view of the fact that she used to go to learn typing and shorthand everyday and used to go for purchasing vegetables and milk in the morning and had an opportunity to go to her parents house at any time or to the police station at any time. Her this statement is also contradictory to her earlier version. It is apparent that something else was going on between the couple which culminated into some altercation on the night of 8th and 9th March,1992 with the result that she called her parents either to settle it down or to take her back. Since truth is not disclosed to the Court, something is amiss and Court cannot imagine what was the real cause but certainly dowry was not the cause. Neither the testimony of prosecutrix about beatings is trustworthy.

11. Now I come to incident of 9.3.1992. She stated in the complaint to the police that when she was going with her brother and father, her husband called her to open the Almirah and she went up stairs. This itself shows that even when she was going with her parents, she was not going after a quarrel. If she had come down after a quarrel, she would not have gone upstairs at 3rd Floor simply to open an alimrah. After she goes up, she submits in her complaint and that her husband and Dewar picked her up and threw her down the balcony. There is no talk of her Dewar being in the house prior to this. In the complaint she does not say that her Dewar had done anything prior to that. Or he had talked with her parents. While in her statement before the police, she named husband and Devar, in the Court she added one more name and stated that her husband, Dewar and mother-in-law; all three picked her up and threw down from balcony. The presence of mother-in-law, for the first time, is shown in the house only during the testimony in the Court. In the complaint, there is no talk of mother-in-law being present there. Even in the statement under Section 161 Cr.P.C. made by father of Mamta, he does not say that Parmeshwari Devi was in the house. He simply submits that he and his son Ashok Kumar came downstairs and thereafter her son-in-law called her daughter for giving keys of almirah. So her son and daughter both went upstairs and after some time, he heard a sound of ‘Thud’ and her son raised a cry that Mamta had been thrown down. In his testimony before the court, he states that he and his son remained standing on the ground floor and only Mamta had gone up and thereafter he sent her son to find out what was the matter and then his son heard some shouts from inside the house. When attention of witness to contradictions between statement made to the police and made in the Court was drawn, he simply stated that he had not made any statement to the police. Testimony of Mamta giving account of what happened when she again went upstairs is full of falsehood. She stated her mother-in-law told her not to go to her parents’ house. Once she was told that she could go to her parents’ house if she wanted, why would she be again told not to go there by her mother-in-law who was not even present in the house as per her earlier complaint to police. No reason has been given why her going to her parents’ house was being resisted by the appellants. If her story of dowry is to be believed, the appellants would have readily told her to go to her parents’ house and bring dowry. Non examination of Ashok Kumar as a witness in the court, raises serious doubts about her story. It is to be noted that despite the fact that Ashok Kumar was with Mamta when she went upstairs, and when she fell on ground from 3rd floor, he did not get her sister admitted to hospital and then he did not appear before the court to support the story of her sister. It seems he was privy to facts different from what was being sought to be projected and he kept himself away deliberately.

12. Investigating Officer in this case reached the hospital after DD No. 8 was marked to him. He found Mamta conscious in the hospital and made an application Ex.PW9/A to the CMO for recording statement of Mamta. The application reads as under:

It is requested that Smt. Mamta wife of Surender Singh resident of H. No. 86/14, Sector-I, Pushp Vihar has been admitted in hospital in injured condition after she jumped from Balcony of the house. Permission be granted to record her statement.

Sd/-

13. The Investigating Officer testified that after reaching hospital he found Mamta conscious and after talking to her made application for recording her statement. It is obvious that initially he was told by her that she jumped from balcony. Her husband’s stand constantly had been that she fell from stairs.

14. After recording statement of Mamta, he visited the spot and made enquiries from neighbours about the truth but he did not place on record statements of any of the neighbours. He did not find brother of Mamta in hospital. Mother of complainant is not produced in Court as a witness although she is also stated to have accompanied her husband to appellants’ house. It has come in appellants’ testimony that from 8 am till 12.30 pm her parents were at her in-laws’ house and talks were normal and husband and in-laws talked as if they had lovely relations with her. There seemed to be no acrimony even thereafter since on the calling of her husband, she went three stories upstairs just to open an Almirah. Considering entire sequence and facts, a grave doubt arises on her version that suddenly she was picked up and thrown down the balcony. The version of the incident given by complainant seems to be an afterthought and incredible. The version given by accused persons and by one defense witness that complainant rushed out of the door and she entangled in the railing also does not seem to be true.

15. From the entire evidence and circumstances, two views are possible (i) that despite the cordial atmosphere which was there from 8 am to 12.30 pm and the complainant was told that though appellants were not in favor of her going to her parents’ house but she if wanted could go to her parents house, the appellants suddenly lost balance of mind and became mad and picked her up and threw her from the balcony. The other view which is possible is that the complainant had called her parents because of some allegations regarding her character by the appellants and when allegations were made, even before her parents, she decided to go to her parents house along with her parents. She then went upstairs to open the almirah and there again some exchange of allegations took place and she in a huff jumped from the balcony.

16. The efforts of the criminal courts had to be to find out the truth, but this is not always easy, especially when parties develop vindictive attitude. Where there is a reasonable doubt and when two incredible versions confront the Court, the Court should give benefit of the doubt to the accused and it is not safe to sustain conviction ( State of Maharashtra v. Sanjay). The proof which the Court of criminal justice has to require must be proof which affirms moral certainty to the judge. The Courts must give advantage to the accused if, after considering the entire evidence and the entire circumstances, a Judge conscientiously and reasonably entertains a grave doubt regarding guilt of the accused. In the instant case, although the complainant received injuries but the entire story put forward by the complainant leading to the entire episode does not inspire confidence and does not seem credible. I have serious doubts about the prosecution version that the appellants picked up the complainant and threw her down from the 3rd floor from balcony. I, therefore, consider that appellants are entitled to benefit of doubt under Section 308 of the IPC.

17. In view of my foregoing discussion, the appeal is allowed. The conviction under Section 498A/308/34 is hereby set aside. The appellants are set free. Their bail bonds are cancelled and sureties discharged.

Categories: 498A Judgements

Courts are being used as a tool in 498A-Justice Shiv Narayan Dhingra

Equivalent citations: 138 (2007) DLT 535
Bench: S N Dhingra

Smt. Sangeeta Kalra vs State on 2/3/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. This is a petition under Section 482 Cr. P.C. for quashing of FIR No. 518/2000, under Sections 498A/406/34 IPC.

2. Complainant in this case married petitioner’s brother on 11.3.99. She lived in matrimonial home for two weeks and left the matrimonial home. She wrote a letter to her husband giving reasons of her leaving matrimonial home, which reads as under:

Dear Raju,

There are several other things which I wanted to tell but I could not tell you, so I have gathered courage to write the same. I have now learnt that you are a good human being and you have condoned my several draw backs. Thus, I shall always be grateful to you. Raju, like any other girl, I also had dreams, which I could not tell you but I would like to tell you the same today, so that we can understand each other better and can give happiness and love to each other. My dreams were there should be light music in my room and my partner should shower love on me and should accept me from core of his heart fully. I should be attractive and we should be able to possess each other. Raju, I know there were some mistakes on my part that I could not seduce you completely. While preparing you mentally I forgot to prepare you physically. I am sorry. Henceforth I shall make full efforts that you get satisfaction from me and not from yourself. You must be understanding what I am trying to say. Raju, the relationship of husband and wife is not only of body but it is of heart and soul as well. I understand your all problems and I shall give company to you in all times. So far as babies are concerned, we will not have babies till you do not want them and I will not make any demand from you howsoever long it may take. Raju, I am going today, you should come to my parental house to take me back if you consider that I am not a useless thing. Raju, please destroy this letter after reading it so that it does not fall into the hands of others and we become laughing matter. And lastly thank you very much for all your affection, concern, care and love ( I hope so) ” I love you very much dear and will always do so even if you accept me or not it doesn’t matter”. Always your and only yours. Summi.

Post Script. – Raju I have disturbed you for several nights and now you should sleep properly. I know if you wanted you could have forcibly established relationship with me but you left me thinking as if I was a child. I would not get better husband than you in this world. I am very lucky that I got a husband like you and I thank god for giving such a wonderful husband.

3. This letter is undisputedly in the hands of complainant. After this letter, she never lived at the matrimonial home. This letter was written about two weeks after the marriage when she left the matrimonial home. First complaint thereafter was made to the police by her father on 24.6.1999 and in that complaint he specifically wrote that his daughter was at his home for more than three months which also shows that complainant had not lived with her husband for more than 10 days or so, since marriage had taken place on 11.3.99. In the complaint written by the father of the girl, he did not give the date of leaving of matrimonial home by his daughter and made all vague allegations without specifying any demand of dowry and any incident of cruelty. He wrote that few days after marriage of the girl, the boy, mother, father sometime accompanied by sister troubled the girl. The sister mentioned herein is the sister who was married much before the marriage of the complainant and was living in her house at New Friends Colony, which is almost 20 kilometer away from the matrimonial home of the complainant, with her husband and children. It is not alleged in this complaint or in the statement made by the girl that the sister of the boy left her matrimonial home and started living at her parental home. The sister who is married and having children, obviously has to look after her home. Thus, there was no occasion for her to live at the matrimonial home of the complainant.

4. It seems that the complainant, who left the matrimonial home due to failure of physical relationship and resultant dissatisfaction, later on thought of implicating every member of the family in an anti-dowry and cruelty case. Initially, she made vague allegations against everybody and thereafter made a supplementary statement under Section 161 Cr. P.C. supplementing her earlier statement. In the supplementary statement it is stated that her father spent more than Rs. 22,00,000/- on her marriage while there was no such claim made by her father even in his own complaint made to the police on 24.6.1999.

5. It is true that while considering the quashing of criminal proceedings under Section 482 Cr. P.C, the Court should not embark upon an enquiry into the truthfulness of the allegations made by complainant but where the charges are framed by the lower court without considering the material, with closed mind and charges amount to gross misuse of criminal justice system and trial is an abuse, it becomes the duty of the High Court to intervene in such cases, under Section 482 Cr. P.C so that there is no miscarriage of justice and faith of people remains intact in the judicial system. In this case, charges have been framed against the petitioner, sister of the husband, without their being an iota of evidence of any cruelty or entrustment of any property by the complainant in the intial complaint or in the later complaint. Even in subsequent complaint made by the complainant herself there are no specific allegations and only vague allegations are there involving every family member.

5. In G. Sagar Suri v. State of UP , Supreme Court observed that criminal proceedings should not be allowed to be resorted to as a short cut to settle the score. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under Section 482 Cr. P.C has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 Cr.P.C or Article 227 of the Constitution of India. In Indian Oil Corporation v. NEPC Indian Limited Supreme Court deprecated the tendency of using criminal justice system as a tool for arms twisting and to settle the score and laid down that High court can intervene where the criminal justice system is used as a tool.

6. In Ramesh and Ors. v. State of Tamil Nadu 2005 CRI.L.J 1732 in a similar case the married sister of husband living at her matrimonial home was roped in under Section 498A/406 IPC. In that case she had stayed at her parents house, for some days. In the present case, there are no allegations that petitioner stayed at her parents house even for one day after the marriage. Allegations against the petitioner in that case were that she directed complainant to wash W.C and sometimes made some imputations against her. Supreme Court observed that all these do not amount to harassment with a view to coercising informant or her relations to meet an unlawful demand. In the present case the complainant left house after leaving a letter to her husband giving reasons of leaving the matrimonial home. However, she turned colour after she started living at her parental house. She who showered praises on her husband for his understanding, love and affection, without living with him a day further, suddenly made allegations of dowry demand and cruelty and used language which is not used by the civilized persons. In her complaint she used abusive language for her father-in-law like ‘kameena’ and ‘zaleel’ etc. Simultaneously she claimed that she belonged to a well educated family.

7. I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed. I, therefore, hereby quash criminal proceedings against the petitioner under Sections 498A/406/34 IPC, in FIR No. 518/2000 Police Station Shalimar Bagh, Delhi. dusty.

Petition stands disposed of.