Home > 498A Judgements > In matrimonial offence the courts should be liberal, cannot be accepted in generality:498A judgement

In matrimonial offence the courts should be liberal, cannot be accepted in generality:498A judgement

Bench: A B Chaudhari

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : N A G P U R.

CRIMINAL WRIT PETITION No. 431 OF 2009

1. Satish @ Rajendra s/o Harbans Tiwari,

aged 42 years.

2. Harbans Tiwari Shivsahay,

aged 72 years, Occ.: Retired.

3. Smt. Shakuntala w/o Harbans Tiwari,

aged 64 years, Occupation : Household.

4. Surendra s/o Harbhans Tiwari,

aged 38 years.

5. Manoj s/o Harbans Tiwari,

aged 36 years.

6. Smt. Gayatri w/o Santosh Tiwari,

Occupation : Household

r/o Near Mental Hospital, Sadar, Nagpur.

Nos. 1 to 5 r/o Dr. Mazumdar Ward,

Hinganghat, District Wardha. … PETITIONERS. VERSUS

1. State of Maharashtra,

Through P .S.O. P.S. Kanhan,

District Nagpur.

2. Smt. Chhaya w/o Satish @ Rajendra Tiwari,

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aged 40 years, Occupation : Service,

r/o Hanuman Nagar, Kanhan,

District Nagpur. … RESPONDENTS. ….

Mr. R.M. Patwardhan Advocate for the Petitioners. Mr. D.B. Patel, A.P ., for Respondent no.1.

.P

Mr. J.M. Gandhi Advocate for Respondent no.2.

….

CORAM : A.B. CHAUDHARI, J.

RESERVED ON : 27.04.2010.

PRONOUNCED ON : 7 JUNE, 2010.

th

J U D G M E N T :

Rule. Heard forthwith finally by consent of learned counsel for rival parties.

2. Being aggrieved by the order dated 14.8.2008 passed by J.M.F.C. Kamptee in Criminal Complaint Case No. 660 of 2007 issuing process in a complaint made under Section 498A of Indian Penal Code against the applicants, the present writ petition has been filed.

3. In support of writ petition, Mr.Patwardhan learned counsel for the petitioner, vehemently argued that the complainant/respondent no.2wife had lodged first information report with the police station against her husband and other petitioners who are the father, mother, brother and brother’s wife and petitioner no.1. Police carried out investigation in Crime No. 196 of 2004 registered for the offence punishable under Section 498A 3

of Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act and after thorough investigation police found that case was made out only against petitioner no.1 and not other family members of the petitioner no.1, i.e. petitioners 2 to 4. and therefore chargesheet was filed only against petitioner no.1. Thereafter the complainant/respondent no.2wife filed private criminal complaint case No. 660 of 2007 under Section 498A read with Section 406 and 506 of Indian Penal Code read with Sections 4 and 6 of Dowry Prohibition Act in the Court of J.M.F.C. Kamptee who issued process under Section 498A of Indian Penal Code against the petitioners. According to Mr.Patwardhan, respondent no.2wife has decided to put the entire family to harassment and that is why she has filed false criminal complaint against all the family members and that is clearly mala fide and abuse of process of law. Inviting my attention to the amended provisions of Section 202 of Code of Criminal Procedure he argued that the said amendment came into force with effect from 23.6.2006 and the complaint case was filed by respondent no.2 on 15.12.2007. He argued that the petitioners reside at Hinganghat, i.e. beyond the territorial jurisdiction of J.M.F.C. Kamptee and therefore the said Court could not have issued process without holding enquiry contemplated by the said amended provision of Code of Criminal Procedure. According to him, the impugned order clearly shows that the 4

trial court did not know about this amended provision and hence the order issuing process is bad in law.

4. He then argued inviting my attention to the dates that the last incident of illtreatment even according to the complainant is alleged to have taken place on 19.7.2004 and it is not in dispute that thereafter there is no single allegation about the illtreatment or the facts constituted any offence. In view of the fact that the trial Court took cognizance of offence under Section 498A of Indian Penal Code only, the limitation of three years provided by law expired on 19.7.2007 as the complaint came to be filed on 15.12.2007 and there was no occasion for the trial Court to exercise power under Section 473 of Code of Criminal Procedure as in the private complaint case filed by respondent no.2 she did not file any application for condonation of delay. The complaint was thus clearly barred by limitation and looking to the intention of respondent no.2, who is working as a teacher in a school as against her husband being unemployed, and in the light of the above facts, the complaint case filed by her is clearly malafide and the order issuing process deserves to be quashed and set aside. He relied on the following decisions (i) 2007 ALL MR (Cri) 213 Sunil s/o Bhaskarrao Kulkarni v. State of Maharashtra

(ii) 2007 ALL MR (Cri) 623 Captain Lance Irwin 5

Lobo v. Ismail D’Souza @ Angelo Ismail D’Souza (iii) AIR 1963 SC 1430 Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose

(iv) AIR 2007 SC 2774 Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan.

5. Per contra, Mr.Gandhi learned counsel for respondent no.2 vehemently opposed the writ petition and argued that police having failed to file the chargesheet against all the petitioners except petitioner no.1, the respondent no.2 was required to approach this Court by filing writ petition and in the said writ petition this Hon’ble Court dismissed her petition giving her liberty to adopt alternate remedy vide order dated 12.4.2006 . According to him, counting the limitation even from 12.4.2006 the complaint would be within limitation. These facts therefore clearly show that respondent no.2 was at no fault and, on the contrary, it was police machinery who did not take action in time against the accused persons. Time was therefore lost in the above process, for which respondent no.2 could not be blamed. According to him, in the matter of offence under Section 498A of Indian Penal Code the Hon’ble Supreme Court has taken a view that the courts should not be too technical in the matter of limitation for taking cognizance of the offences. According to him there was nothing wrong with the trial Court in taking cognizance of 6

the offence even after the period of limitation. He argued that even otherwise offence under Section 498A of Indian Penal Code is a continuing offence and therefore the plea of limitation is not available. The counsel then went on to argue that the averments made in the complaint and the verification statement of the complainant that was recorded on oath is nothing but an enquiry made by the Magistrate and that is reflected in the impugned order and therefore it cannot be said that there was no enquiry made by the trial Court. He relied on the following decisions (i) 1999 Cri.L.J. 3479 Arun Vyas & anr. v. Anita Vyas (ii) 2007(2) Crimes 69 (Bom.) Floyd D. Aguiar v. Bornwyn D. Aguiar

(iii) 1999 Cri.L.J. 5012 Vijaya v. Laxmanrao & anr. (iv) 1994 SCC (Cri.) 1480 Sukhdev Raj v. State of Punjab

6. I have gone through the copy of the complaint as well as impugned order and the provisions of law cited before me so also the various decisions. It would be appropriate to quote Section 202 of Code of Criminal Procedure as amended.

“Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made 7

over to him under section 192, may, if he thinks fit,[and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:”

7. Perusal of the above provision shows that it was brought by amendment looking to the fact that private criminal cases were filed and accused persons residing far away from the territorial jurisdiction of the court were being put to harassment and that is why in order to curb the abuse of process of Court, particularly in relation to accused persons residing outside territorial jurisdiction of the Magistrate, sufficient enquiry to be made by the Magistrate has been provided. In the instant case, respondent no.2 had already set the criminal law in motion by filing F.I.R. in the police station and her F.I.R. was thoroughly investigated. The police found offence committed by petitioner no.1 husband only and not by petitioners 2 to 6 and that is why no chargesheet was filed against petitioners 2 to 6. Nothing prevented respondent no.2 from putting her challenge in the Court of Magistrate to the said final report submitted by 8

police after investigation. When she filed criminal writ petition in this Court she did not pray for any such relief that she should be allowed to object to the final report submitted by police and, on the contrary, she remained absent before this Court when the writ petition was called out for hearing as is clear from the order made by this Court on 12.4.2006 in C.W.P. No. 157 of 2006 which reads thus:

“1. On 5.4.2006 we have given last chance to the counsel for the petitioner. Today also Mr.Prashant Rawate, the learned counsel, submits that the counsel for the petitioner are not available. There are four counsel appearing for the petitioner.

2. We have gone through the petition and find that it would be proper if the petitioner takes recourse to alternative remedy available to her considering the facts and circumstances stated in the petitioner and the delay in approaching this Court.

3. Petition is, therefore, dismissed with liberty to seek alternative remedy.”

8. Respondent no.2 thereafter filed private complaint case on 15.12.2007, cognizance in respect of which was taken on 14.8.2008 only in respect of offence under Section 498A of Indian Penal Code against petitioner no.1. Perusal of the complaint and the verification statement impressed the Magistrate to issue process and the impugned order clearly shows that the Magistrate did not make any application of mind regarding 9

the amended provision in respect of accused persons who reside beyond his territorial jurisdiction. No enquiry was held by him and in a mechanical manner upon perusal of the complaint and verification statement he issued process. I, therefore, hold that the learned Magistrate acted in violation of provision of Section 202 of Code of Criminal Procedure. The submission made by Mr.Gandhi that perusal of the complaint and recording of verification statement on oath is enough to hold that the Magistrate held enquiry. I do not agree. The decisions cited by him relating to unamended provisions of Section 202 of Code of Criminal Procedure and when those decisions were rendered, the question about amended provisions of Section 202 which is under consideration before me now did not fall for consideration.

9. Looking to the object of bringing amendment to the Code, in my opinion, the enquiry contemplated by Section 202 in relation to the accused persons residing outside the territorial jurisdiction has to be a good, satisfactory and sufficient enquiry. By merely going through the averments in the complaint and verification statement it cannot be said that the Magistrate had held enquiry as contemplated by amended provision of Section 202 of the Code. To say so would result into giving no effect to the amendment to Section 202. It is the duty of the Court to give full effect to the provisions of law and respect the wisdom of the 10

Legislature which thought it fit to amend the provisions of Section 202. In the instant case, as found by me, the learned Magistrate did not see the amended provisions of Section 202 but proceeded to issue process in ignorance of the said amended provisions of law. In the light of the above discussion, it would be appropriate to quote relevant portion from para 16 from the decision in 2007 ALL MR (Cri) 623, supra, since the said discussion is made on various supreme court decisions. The relevant portion reads thus :

“… A conjoint reading of Sections 203/204, Cr.P.C. shows that process is to be issued after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202. The recording of the statement on oath of the complainant under Section 200 Cr.P is not an empty .C.

formality. Commonly it is nicknamed as verification. To verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also 11

stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the offence was committed and how the accused persons are responsible therefor. After the statement on oath is recorded, a Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto and find out what offence/s is made out, notwithstanding that the other party at that stage is unrepresented. As observed by the Apex Court time and again, summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. A Magistrate is required to examine the nature of the allegations made in the complaint and the evidence both oral and documentary to see if it is sufficient for the complainant to succeed in bringing charge home to the accused. In other words, the examination of the complainant on oath is for the purpose of ascertaining 12

whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. As observed by the Apex Court in Punjab National Bank & ors. v. Surendra Prasad Sinha (1993 Supp.(1) SCC 499), it is salutary to note that judicial process should not be an instrument of oppression or needless harassment. A Magistrate is required to find out whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued and at that stage the Court has got to be circumspect in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. Vindication of Majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.”

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10. For the above reasons, I hold that the learned Magistrate had clearly committed error of law in issuing process to the accused persons beyond his territorial jurisdiction.

11. Examining the second question raised before me regarding limitation, there is no dispute that limitation for taking cognizance of offence under Section 498A of Indian Penal Code is three years. Perusal of the complaint and the verification statement clearly show that the last incident regarding cruelty or demand of dowry as described in para 6 is dated 20.7.2004 and thereafter there is no allegation about any incident of cruelty taking place. The complaint was filed on 15.12.2007. In the case of Japani Sahoo v. Chandra Sekhar Mohantry AIR 2007 SC 2762 the apex court held the relevant date for computing limitation is the date of filing complaint and not the date of taking cognizance of the complaint and therefore the date 15.12.2007 is relevant looking to the date of complaint and the last incident is dated 20.7.2007 and thus it was clearly barred by limitation. The submission made by Mr.Gandhi that police having failed to file chargesheet against all the petitioners, except petitioner no.1husband, it was not the fault of respondent no.2wife and therefore the wife could not be blamed does not appeal to me for reasons more than one. In the first place nothing prevented respondent no.2 from making application for taking cognizance beyond the period of limitation 14

by applying for condonation of delay in filing private complaint. That apart, when the wife filed writ petition she never proosecuted the writ petition seriously which eventually came to be dismissed by this Court. She did not claim the relief to allow her to raise the objection to the final report filed by the police against only petitioner no.1 her husband and not against others. She never challenged the action of police in filing the chargesheet against the petitioner no.1 alone. On the contrary, after the period of limitation she chose to file private complaint as aforesaid and obtained the order of issuance of process against all the petitioners. When petitioner no.1/husband is already being prosecuted, her attempt to prosecute others obviously after the period of limitation does not appear to be bona fide and is nothing but abuse of process of court. Perusal of verification statement shows, particularly para 2 that the word “all” accused persons has been inserted subsequently in different ink and hand writing in Marathi and that appears to have been done with a view to involve all other petitioners 2 to 6. The proposition canvassed by Mr.Gandhi that in case of matrimonial offence the courts should be liberal, cannot be accepted in generality and it is the duty of this Court to interfere and quash the process when there is abuse of process of law. In the facts and circumstances of the present case, I clearly find that respondent no.2 is not bona fidely prosecuting petitioners 2 to 6 in private complaint case. I, 15

therefore, hold that the complaint was clearly barred by limitation and cold not have been entertained by the Magistrate. In the result, I make the following order.

12. Criminal Writ Petition No. 431 of 2009 is allowed. Rule is made absolute in terms of prayer clause (1).

JUDGE

/TA/

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Categories: 498A Judgements
  1. Retired Judge
    May 14, 2012 at 9:59 pm

    Any court order prior to an issue of process without establishing the truth under Section 202, is just an order at a preliminary stage. A mere summons/warrant order is just an interlocutory order and does not amount to Issue of Process because an order by itself without ‘written justification’ by the Judge does not spell out the liability or evidence against the accused and neither can it be appealed by the accused. Accused is not a Defendant and neither are they on Trial at this stage.

    The Judge is just giving the accused an opportunity to appear voluntarily prior to issue of process. The accused is not obligated to obey court orders prior to issue of process under Section 202.

    Issue of process under section 202 is the most difficult task for any judge. They have to really understand the law, the evidence, the laws of evidence, make sure all accused are included, ensure all witnesses are summoned, cross-examine witnesses under oath, cross examine complainant under oath,etc.

    This MUST BE all in writing and must accompany the summons/warrant to the accused and accused must sign for receipt at the back. The court must always have a signed record to show that Process has been Issued and is complete.

    Since this is a difficult proposition for any judge, they most likely will avoid it when the matter is a harassment lawsuit. Even dismissing the complaint is difficult because the judge has to go through this same process and put it in writing, to legally dismiss the complaint under Section 204.

    In Private Complaints, the judge has no option but to follow Section 202 and Issue Process only after deliberate consideration.

    Any thing short of this, is just abuse of process of criminal courts or another harassment lawsuit by the complainant over a property dispute (civil matter).

  2. Retired Judge
    May 15, 2012 at 6:04 pm

    Forgot to mention.

    a) Accused person has no right of any say (cross examine witness or complainant) prior to Issue of Process under Sec 202. This is opportunity for Complainant to make their case in a truthful manner under oath. At this stage, accused need not be present.
    b) Accused cannot be summoned based on mere desire of Complainant. Judge has to use discretion (Sec 205) which means Judge is not the boss who can decide and randomly issue a summons order. Judge must document in writing as per law as to why Accused needs to appear. Just an order of summons is abuse of process.

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