Archive
Supreme Court:- Wife, separated for years, cannot sue husband for torture.
“Issue no. 2 relates to the applicability of 498A I.P.C. As it has been alleged by the complainant that she had been given physical and mental torture by the appellant and it was not possible for her to stay with the appellant after 1993 though she was having seven months’ pregnancy at that time. She gave birth to a male child in the hospital and the appellant did not even come to see the child. The question would arise as to whether in the facts and circumstances where the complainant had left the matrimonial home and started living with her father in 1993, could a case be registered against the appellant under Section 498A I.P.C. in 1997?”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 299 OF 2003
MANJU RAM KALITA …. Appellant
Versus
STATE OF ASSAM …. Respondent
J U D G M E N T
Dr. B.S. Chauhan, J.
1. This Appeal has been preferred against the Judgment and Order dated 21 December, 2001 of the High Court of Gauhati in Criminal Revision (P) No. 578 of 2000 by which the High Court concurred with the finding of facts, recorded by the Trial Court dated 22.12.1999 passed by the Addl. Chief Judicial Magistrate, Kamrup, Guwahati in Case No. G.R.1957/1997; and of the Appellate Court, the Sessions Judge, Kamrup dated 13.10.2000 passed in Criminal Appeal No.3 of 2000 that the appellant was guilty of committing the offences under Sections 494 and 498A of the Indian Penal Code (in short “I.P.C”) and sentenced him to undergo rigorous imprisonment for 2 years u/S 498A and for 3 years u/S 494 I.P.C. However, both the sentences were directed to run concurrently.
2. The facts and circumstances giving rise to this appeal are that the appellant, a Government servant, got married with Smt. Minati Das (Kalita), the complainant on 5.2.1992 as per Hindu rites. Smt. Minati Das (Kalita) gave birth to a male child on 10.3.1993. However, the relationship between the husband and wife were not cordial as it was alleged by the wife that she was being tortured mentally and physically by the Appellant. She left the matrimonial home and started living with her father and was residing therein since 1993. In 1997, she came to know that the appellant got married with one Ranju Sarma on 2.2.1997 at Tukeswari Temple. Thus, she filed an FIR against the appellant.
3. The appellant was charged under Sections 498A/494 IPC by CJM, Guwahati. The appellant defended himself before the Trial Court denying all the charges. However, considering the evidence on record, the Trial Court found both the charges proved against the appellant beyond reasonable doubt and after convicting him, for the said offences, awarded the sentences as mentioned here-in- above, vide judgment and order dated 22.12.1999. (Annexure P-12)
4. Being aggrieved, the appellant preferred Appeal No.3 of 2000 which was dismissed by the Appellate Court vide Judgment and Order dated 13.10.2000 (Annexure P-13).
5. The appellant further approached Gauhati High Court by filing Criminal Revision (P) No. 578 of 2000 which has been dismissed by the impugned Judgment and Order dated 21 st December, 2001. Hence, this Appeal.
6. Shri S.K. Bhattacharya, learned counsel appearing for the appellant has raised all the contentions which the appellant has raised before the courts below, inter alia, that there was no valid marriage with Smt. Ranju Sarma as the marriage had taken place before a Hindu Deity and that there was no case of mental or physical torture to bring home the charges under Section 498A IPC. Thus, the appeal deserved to be allowed.
7. On the contrary, Mr. Riku Sharma, learned counsel appearing on behalf of the respondent State submitted that there are concurrent finding of facts by three courts below so far as the issue of marriage of the appellant with Smt. Ranju Sarma is concerned. This Court should not interfere with the findings so recorded, being the fourth court entertaining this matter. So far as the attraction of the provisions of Section 498 A is concerned, it was submitted that the appellant subjected the complainant (legally wedded wife) to physical and mental torture and agony; thus the charges have rightly been found proved against him by all the three courts. Therefore, there is no occasion for this Court to interfere in the matter. The appeal is liable to be dismissed.
8. We have considered the rival submissions made by learned counsel for the parties and perused the record.
9. So far as issue no. 1 is concerned i.e. as to whether the appellant got married with Smt. Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage.
10. It is settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. It’s function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by re-appreciating the evidence. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice. The position may undoubtedly be different if the inference is one of law from the facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure. (Vide Firm Sriniwas Ram Kumar Vs. Mahabir Prasad & Ors.; AIR 1951 SC 177; M/s. Tulsi Das Khimji Vs. The Workmen, AIR 1963 SC 1007; and Pentakota Satyanarayana & Ors. Vs. Pentakota Seetharatnam & Ors., AIR 2005 SC 4362).
11. Where the court below considered the material facts and did not take into consideration any inadmissible evidence etc., the interference is not required by court on third instance. (vide Madhavan Nair vs. Bhaskar Pillai, (2005) 10 SCC 553.)
12. Thus, it is evident from the above that this Court being the fourth Court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially.
13. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count required to be interfered with.
14. Issue no. 2 relates to the applicability of 498A I.P.C. As it has been alleged by the complainant that she had been given physical and mental torture by the appellant and it was not possible for her to stay with the appellant after 1993 though she was having seven months’ pregnancy at that time. She gave birth to a male child in the hospital and the appellant did not even come to see the child. The question would arise as to whether in the facts and circumstances where the complainant had left the matrimonial home and started living with her father in 1993, could a case be registered against the appellant under Section 498A I.P.C. in 1997?
15. The provisions of Section 498A IPC read as under:
“498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. – For the purposes of this section ‘cruelty’ means–
(a) any welful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
(b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
Cruelty has been defined by the explanation added to the Section itself. The basic ingredients of Section 498A I.P.C. are cruelty and harassment. In the instant case, as the allegation of demand of dowry is not there, we are not concerned with clause (b) of the explanation. The elements of cruelty so far as clause (a) is concerned, have been classified as follows:
(i) any ‘wilful’ conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any ‘wilful’ conduct which is likely to cause grave injury to the woman; or
(iii) any ‘wilful’ act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.
16. In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318, this Court considered the meaning of cruelty in the context of the provisions under Section13 of the Hindu Marriage Act, 1955 and observed that:
“mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”
17. In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710, this court, while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under:
“17. …….It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made……….. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.”
18. In Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414, this Court while dealing with the similar issue held that mental or physical torture should be “continuously” practiced by the accused on the wife. The Court further observed as under :
“Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”
19. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559, this Court held that while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.
20. In Sushil Kumar Sharma vs. Union of India, AIR 2005 SC 3100, this Court explained the distinction of cruelty as provided under Section 306 and 498A IPC observing that under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated and intended. Therefore, there is a basic difference of the intention in application of the said provisions.
21. In Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078; this Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498A I.P.C. and there should be a case of continuous state of affairs of torture by one to another.
22. “Cruelty” for the purpose of Section 498-A I.P.C. is to be established in the context of S. 498-A IPC as it may be a different from other statutory provisions. It is to be determined/inferedby considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.
23. The instant case required to be examined taking into consideration the aforesaid settled legal provisions. Undoubtedly, there had been complaint by the wife of physical and mental torture upto 1993 when she left the matrimonial home and started living with her father. The complaint of cruelty was lodged by filing an FIR on 23.5.1997 i.e. after four years of leaving the matrimonial home. More so, 11 the mental or physical torture was not continuous on the part of the appellant as there is no complaint against him between 1993 to 1997 i.e. leaving the matrimonial home by the wife and performing the second marriage by the husband.
24. The complainant Smt. Minati Das (Kalita) P.W.3 deposed that she had been tortured physically and mentally but there was no allegation that she was subjected to physical or mental torture after the birth of the child in 1993. Similarly, Shri Lakhi Kt. Das (P.W.1), the father of the complainant has not mentioned any incident of physical or mental torture after 1993. None of the witnesses examined in this respect deposed that there was a continuous physical or mental torture and some untoward incident occurred between the husband and wife after 1993.
25. The Trial Court, after considering the depositions, came to the conclusion that the appellant being husband of the complainant subjected her to cruelty both mental and physical. But it further held as under:
“No doubt there is no evidence on the record to show that the accused committed harassment on P.W.3 with a view to force her to commit suicide or to fulfil illegal demands of him. The continuous harassment, both physical and mental by the accused made her life miserable and forced her to live separately from her husband.” (Emphasis added)
26. The Appellate Court dealt with the issue as under:
“Her specific evidence is that the cruelty both physical and mental was meted to her by her husband after the marriage and this has been well supported by the evidence of the witnesses as discussed above. Her mental torture had reached to such an extent that she had to leave her matrimonial home along with the baby in the womb and this has been well testified in the evidence on record.” (emphasis added)
27. The High Court considered the issue and reached the conclusion:
“ The offence u/S 498 A IPC is punishable with imprisonment upto three years only and as such the prosecution is barred u/S468, Cr.P.C. In view of the catena of decisions of the Apex Court, the law is well settled that offence of cruelty to wife is a continuing offence. Hence the fact that the wife was not living with the husband since 1993 is immaterial and mental and other cruelty may be committed even after the parties living separately.”
The High Court further held that during the subsistence of the marriage, the appellant contracted second marriage and started living with the another woman that itself was a cruelty and therefore he was liable for the punishment under Section 498 A.
28. Thus, from the above, it is evident that the Trial Court itself had been of the view that there was no evidence of cruelty on the part of the appellant with a view to drive the complainant to commit suicide. The appellate Forum reached the conclusion that mental torture was of the magnitude that the complainant had to leave her matrimonial home during her pregnancy. The Revisional court did not find that the complainant had been subjected to cruelty continuously.
29. Thus, in our opinion, all the three courts below erred in not considering the case in correct perspective. The findings so recorded by the Courts below may be relevant for granting the relief in a matrimonial dispute i.e. divorce etc. but could not bring home the charge under Section 498-A IPC.
30. Thus, in view of the aforesaid, conviction of the appellant under Section 498-A IPC and punishment for the said offence awarded by the courts below are set aside. However, conviction and sentence under Section 494 IPC are maintained.
31. Appeal succeeds to the said extent and disposed of accordingly.
New Delhi;
….…………………………….J.
(Dr. Mukundakam Sharma)
…….…………………………….J.
(Dr. B.S. Chauhan)
29 th May, 2009.
Andhra Pradesh HC:- We never expected that women would be of such a character in this country where she comes and file false Criminal Cases against In-Laws.
“the court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse of the beneficial provision intended to save the women from unscrupulous husbands . It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision toharass innocent people for the sin of contracting marriage with egoistic women “
Andhra High Court
ORDER
B.S.A. Swamy, J.
1. The appellant is the petitioner in OP No.58 of 1998 on the file of the Family Court, Secunderabad. She filed the said OP seeking divorce from the respondent who is her husband, on various grounds. After full trial, the Family Court found that she could not prove any one of the allegations levelled against the respondent, and, therefore, dismissed the said O.P. Aggrieved by the said order, this CMA was filed by the wife.
2. Having seen the age of the parties, we summoned both of them to find out the real cause for their differences. The appellant could not say anything except that here mother-in-law did not treat her properly during her say at New Delhi. On the other hand, the father of the respondent who accompanied the respondent categorically stated that they belonged to a traditional family where divorce was unknown and that if the marriage can be saved they are prepared to send the respondent to Hyderabad, the place of the appellant, to live with her. Even then the appellant and her father who seems to be an engineer were adamant and they are not agreeable to any of the reasonable suggestions made by the Court as well as her husband except divorce.
3. Without losing our hope we directed both parties to live in a hotel for one week and try to settle their differences amicably, if possible. Though the respondent instantly agreed to stay at Hyderabad by cancelling the ticket already reserved for New Delhi, the appellant agreed to go alone with him to the hotel reluctantly. After expiry of the time both parties appeared before this Court. The respondent informed the Court that the appellant was spending time jovially during day time but was going to her house in the night-time. The appellant having admitted this fact bluntly informed the Court, that she was not interested in having any marital relationship with the respondent. In fact in the Court itself, she was very jovial with the respondent and talking to him very nicely. Practically we do not find any reasons for the animosity she developed against the respondent. Once again, to save the marriage we directed both parties to live together in any holiday resort outside Hyderabad for one more week and report back. Again when they attended before this Court, both the parties admitted that they enjoyed the life to the fullest satisfaction and absolutely she did not face any problem during the inter course. In fact she had also taken him to her parents house. This indicates that there is no problem to them to lead marital life but the appellant wants divorce and nothing but divorce. Even after leading conjugal life with the respondent when the appellant said like this, we were sure that there is something in her mind, which she did not disclose to us. Hence we directed the appellant to appear before a psychiatrist. In fact, we talked to him and fixed the appointment for them but she did not choose to appear before him. We tried to find out from the respondent whether he was agreeable to give divorce by mutual consent. He told us in so many words that he was not prepared to give divorce and he would wait till her retrieval. It shows the anxiety the respondent has to save the marriage and the affection he had towards the appellant in spite of the ill-treatment shown by the appellant. In fact himself and his father were agreeable for any proposal made by this Court or the appellant to save the marriage. But, the appellant and her parents did not agree for any proposal except divorce.
4. Hence we have no option except to dismiss this appeal as there are absolutely no grounds for granting divorce and leave the parties to work out their remedies.
5. During hearing, we came to know that the appellant filed a criminal case against the respondent and his entire family under Section 498-A IPC. From the conduct of the appellant we have no hesitation to hold that the appellant being at fault wants to misuse the process of law and harass the respondent and his family members for the sin of marrying her. We never expected that women would be of such a character in this country. Even though the respondent expressed so much magnanimity towards her, without ill-will or rancor and extended his arm to lead a happy marital life, the appellant just threw away the offer with her little finger. The criminal Court shall take up the case for trial on day-to-day basis and dispose of the same within on month from the date of receipt of this order. In the event of dismissal of the criminal case as a foisted one and the allegations are far from truth, it is always open to the respondent to take appropriate criminal action on the appellant as well as her parents for implicating them in a false case and making them to come all the way from New Delhi to Hyderabad to attend the Courts.
6. This Court would like to go on record that for nothing the educated women are approaching the Courts for divorce and resorting to proceedings against their in-laws under Section 498-A IPC implicating not only the husbands but also their family members whether they are in India or abroad. This is nothing but abuse of beneficial provisions intended to save the women from unscrupulous husbands. But it has taken a reverse trend now. In some cases this type of action is coming as a formidable hurdle in reconciliation efforts made by either well meaning people or the Courts and the sanctity attached to the mandate that the Courts shall always try to save the marriage through conciliatory efforts till the last, are being buried deep-neck.
7. It is for the Law Commission and the Parliament either to continue that provision (Section 498 IPC) in the same form or to make the offence a non cognizable one and a bailable one so that the ill-educated women of this country and their parents do not misuse the provision, to harass innocent people for the sin of contacting marriage with egoistic women. We have no hesitation to hold that if this situation is continued any longer the institution of marriage and the principle one man for women will vanish into their air.
8. The CMA is accordingly dismissed. There shall be no order as to costs.
Supreme Court:- Inaction won’t render bridegroom’s kin liable for dowry death
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 982 OF 2007
BHARAT BHUSHAN & ANR. ….. APPELLANTS
VERSUS
STATE OF MADHYA PRADESH ….. RESPONDENT
J U D G M E N T
A.K. PATNAIK J.
This is an appeal against the judgment dated 7th April, 2006 of the Madhya Pradesh High Court, Jabalpur Bench in Criminal Appeal No. 1225 of 2004 by which the High Court has maintained the judgment of the XIIIth Additional Sessions Judge (Fast Track Court), Jabalpur in Sessions Trial No. 671 of 2003 convicting the appellants under Sections 304B and 498A of the Indian Penal Code.
2. On 12th February, 2007, this Court dismissed the petition for special leave to appeal qua petitions Nos. 1 and 3 and issued notice confined to appellant nos. 2 and 4 and on 18th October, 2007, this Court had also granted bail to the said two appellants. Hence this appeal is confined to the appeal of appellant Nos. 2 and 4.
3. The facts very briefly are that Madhuri got married to appellant No. 1 at Jabalpur on 10th June, 2003 and she came to the house of her parents on 5th August, 2003. In the house of her parents, she committed suicide by hanging to the ceiling on 17th August, 2003. The father of the deceased lodged a report with the Police on 17th August, 2003, saying that he had brought his daughter to the house on 5th August, 2003 and she was not sent back to her in- laws’ house on account of the illness of his wife and she committed suicide. The Police investigated the case and filed a charge sheet against the appellants under Section 304B and 498A of the Indian Penal Code. The trial court convicted the appellants and the High Court has maintained the conviction.
4. We have heard learned counsel for the appellants and learned counsel for the State at length and we find that the trial court has held on the basis of the evidence led by the prosecution witnesses that appellant Nos. 2 and 4 along with appellant No.1 demanded colour TV, `50,000/- in cash and a Hero Honda Motor Cycle towards dowry at the time of marriage and just after one day of the marriage did not supply proper meal even to the deceased and, accordingly, held that this was an act of cruelty towards the newly married bride and the appellant Nos. 2 and 4 along with the appellant Nos. 1 and 3 were jointly and directly liable under Sections 304B and 498A IPC.
5. In the appeal before the High Court, it was contented on behalf of appellant nos. 2 and 4 that they were living separately and as such no act of cruelty or harassment towards the deceased could be attributed to them. The High Court, however, held that the deceased who was a newly wedded girl would certainly be in a mental agony when her parents were making efforts to call appellant Nos. 2 and 4 along with the other appellants to come and settle the dispute with regard to the dowry and yet the appellants refused to go and settle the matter merely on the ground that they were from the groom’s side. The High Court further held that such conduct of the appellant Nos. 2 and 4 would certainly be an act of cruelty and would also result in mental distress to a newly married girl who was married just two months before committing suicide. The High Court was of the opinion that appellant Nos. 2 and 4 in keeping silence and in not coming to the rescue of the deceased committed cruelty even though they had not caused any physical cruelty to the deceased and were liable for the offences under Section 498A and 304B of the Indian Penal Code.
6. We are unable to agree with this opinion of the High Court that by keeping silence and by not coming forward to settle the dispute with regard to the dowry, the appellant Nos. 2 and 4 were are guilty of the offences under Sections 498A and 304B of the IPC.
In the facts of this case, as found both by the trial court and by the High Court, the deceased got married to the appellant No. 1 on 10th June, 2003 and she went back to the house of the appellants on 5th August, 2003 and committed suicide on 17th August, 2003 while she was in the house of her parents. True, there may have been a demand of dowry by the appellants at the time of marriage and it is quite possible that the demand of dowry may have persisted even after the marriage but unless it is established that the appellant Nos. 2 and 4 committed some act of cruelty or harassment towards a woman, they cannot be held guilty of the offences under Sections 304B and 498A IPC.
7. Section 304B IPC provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, or in connection with, any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death. Hence the criminal liability under Section 304B IPC is attracted not just by the demand of dowry but by the act of cruelty or harassment by the husband or any relative of her husband in connection with such demand; thus, unless such an act of cruelty or harassment is proved to have been caused by the accused to the deceased soon before her death in connection with the demand of dowry, the accused cannot be held to be liable for the offence of dowry death under Section 304B IPC. Similarly, Section 498A IPC provides that the act of cruelty to a woman by her husband or his relative would be punishable and would be attracted only if the husband or his relative commits an act of cruelty within the meaning of clauses (a) and (b) in the Explanation to Section 498A IPC.
8. In this case, the finding of the High Court is that the appellant Nos. 2 and 4 did not come forward to participate in the settlement of the dowry on the ground that they belonged to the groom’s family and remained silent. This act of remaining silent cannot be by any stretch of imagination construed to be an act of cruelty or harassment towards the deceased within the meaning of Section 304B IPC. The act of remaining silent with regard to the settlement of the dowry demand will also not amount to cruelty within the meaning of either clause (a) or clause (b) of the Explanation of Section 498A IPC .
9. In the result, we allow this appeal of appellant Nos. 2 and 4 and set aside the impugned judgment of the High Court as well as the judgment of the trial court and direct that the bail bonds furnished by appellant nos. 2 and 4 will stand discharged.
……………………….J
[A.K. PATNAIK]
……………………….J
[SUDHANSU JYOTI MUKHOPADHAYA]
NEW DELHI
MARCH 12, 2013.
Madhya Pradesh HC:- General experience now that relatives of husband are falsely implicated by the wife just to take revenge.
MADHYA PRADESH HIGH COURT
M.Cr.C. No. 11962/2012
11.2.2013
PRADEEP SAHU
Vs
THE STATE OF MADHYA PRADESH
Shri Narendra Kumar, Advocate for the petitioners.
Shri V.K.Lakhera, PL for the State.
Shri Neeraj Vegad, Advocate for respondent No. 2.
Coram:- Shri Anil Sharma, J
Heard finally with the consent of the learned counsel for the parties.
The petitioners have filed this petition invoking the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C. for quashing the proceedings of Criminal Case No. 6509/2012 pending in the Court of JMFC, Bhopal for the offence punishable under Section 498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act. Learned counsel for the petitioners has submitted that marriage of respondent No. 2 and petitioner No. 1 was performed on 21.11.2009. After about one year of their marriage, they were living separately from the family of petitioner No. 1. On 3.6.2011, respondent No. 2 was admitted in the hospital for delivery of a child, where she delivered a baby girl and according to discharge ticket, she remained admitted in the hospital from 3.6.2011 to 8.6.2011. Before delivery of child, respondent No. 2 left the house of petitioner No. 1 in his absence and was living in her parental house. After delivery, petitioner No. 1 made efforts to bring his wife back, but could not succeed, therefore, he filed a petition under Section 9 of the Hindu Marriage Act on 9.7.2012 in the Court of Principal Judge, Family Court, Bhopal. Notice of the case was served on respondent No. 2 on 11.7.2012. Copy of acknowledgment has been filed by the petitioners as Annexure A-4. On 16.7.2012, a written complaint was filed by the complainant/respondent No. 2 against the petitioners, on the basis of which FIR has been registered vide Crime No. 70/2012 at Mahila Thana, Bhopal, thereafter challan has been filed in the trial Court. Counsel has further submitted that respondent No. 2 lodged the report at P.S. after receiving the notice of petition filed by petitioner No. 1 under Section 9 of the Hindu Marriage Act. Before more than one year of lodging the FIR, petitioner No. 1 and respondent No. 2 were living separately from other petitioners and other petitioners have no concern with the alleged offence and they have been falsely implicated being close relatives of petitioner No. 1. Learned counsel for the petitioners has also questioned the genuineness of complaint filed by respondent No. 2 as it bears the signatures in Hindi while on other documents, the signatures are made in English.
Learned counsel for respondent No. 2 has opposed the petition and submitted that the allegation of false implication of the petitioners is baseless, therefore, this petition is liable to be dismissed.
Counsel has placed reliance on the judgment of this Court in Dashrath P. Bundela and others Vs. State of M.P. and another – I.L.R. [2011] MP 2923, in which it was not disputed that respondent No. 2 Gayatri was living separately since one year as mentioned by herself in the FIR and she was having three children. However, this Court observed that there is no specific allegation that when demand was made, when she was beaten, by whom, no specific year, month, date or time was mentioned. The report was lodged on 11.3.2006, just after the filing of the divorce petition against respondent No. 2 and date of appearance on the aforesaid case i.e. 10.3.2006. It has been held that no prima facie case is made out against the petitioners, who are near relatives of husband of respondent No. 2 and permitting to continue such criminal proceedings, would be abuse of process of law and prosecution against the petitioners was quashed. In the instant case also no specific allegation has been made against petitioner Nos. 2 to 7. Before delivery, respondent No. 2 left the house of petitioner No. 1 without informing him. There is no specific allegation when she was beaten by any of the petitioners. It is general experience now that relatives of husband are falsely implicated by the wife just to take revenge of ill treatment by the husband.
Resultantly, in the light of the decision of this Court in Dashrath P. Bundela (supra), the petition is allowed in part. The proceedings of Criminal Case No. 6509/2012 pending in the Court of JMFC, Bhopal for the offence punishable under Section 498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act so far
as it relates to petitioner Nos. 2 to 7, are quashed. However, the trial Court is directed to proceed with the prosecution with respect to petitioner No. 1 Pradeep Sahu.
(A.K. Sharma)
Judge
Supreme Court:- IPC 498a, 304B were actuated by malice and ulterior motive for wreaking vengeance on the accused
Supreme Court of India
, , , ,
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.__174___ OF 2013
(Arising out of SLP (Criminal) No. 4883 of 2008)
Rajiv Thapar & Ors. …. Appellants
Versus
Madan Lal Kapoor …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on 30.11.1991. After her marriage, Dr. Monica Thapar got admission in a Post Graduate Diploma course in Gynaecology (DGO) at Medical College, Surat, in June 1992. Accordingly, she started working as a Resident at the aforesaid Medical College. At his own request, Rajiv Thapar, who was (and still is) a member of the Indian Revenue Services, was transferred from Ahmedabad to Surat. On 16.9.1992, while the husband and wife were living at Surat, Dr. Monica Thapar fell ill. For her treatment, she was admitted to Mahavir Hospital, Surat. She was diagnosed as suffering from Malaria. Having been treated for the same, she was discharged on 20.9.1992. Two days thereafter, Dr. Monica Thapar again fell ill on 22.9.1992. This time, she was taken to Medical College, Surat i.e., the hospital where she was herself working as a Resident. She was first examined by a radiologist, and thereafter, by Dr. Girish Kazi, a cardiologist. It was suspected, that she has a hole in her heart. Based on the aforesaid diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The said echo-cardiography confirmed the presence of a large hole in her heart. On the advice of doctors who attended on Dr. Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack on 26.9.1992. The same supposedly proved fatal.
3. The factum of death of Dr. Monica Thapar was conveyed to the immediate family of Rajiv Thapar, as well as to the family of the deceased. A decision was taken to cremate the dead body at Delhi. Accordingly, after embalming the body of Dr. Monica Thapar, it was transported by rail to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar including her father Madan Lal Kapoor (respondent-complainant herein) were present at the time of arrival of the body at Delhi.
4. Madan Lal Kapoor made a complaint to the Police Control Room alleging, that he suspected that his daughter had been poisoned. This suspicion was based on the fact, that the body had turned blue. On the aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of powers vested in him under Section 176 of the Code of Criminal Procedure (hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings. In the first instance, the body of the deceased was subjected to a post- mortem examination, for which the following Medical Board was constituted:-
(i) Dr. Bharat Singh, Medical Superintendent, Civil Hospital, Delhi.
(ii) Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi. (iii) Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital, New Delhi.
(iv) Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi.
The Medical Board came to the conclusion, that Dr. Monica Thapar had died of cardiac decomposition. The final opinion of the Medical Board, was recorded in a report dated 28.9.1992, in the following words:- “OPINION In view of the clinical reports submitted and post mortem findings observed, the Board of Direcors is of the opinion that, death is consequent to cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension. No definite opinion can be given about falciparm Malaria, histopathological assessment.
Viscera is preserved for chemical analysis as desired by SDM. Time since death is about 48 hours and is consistent with the history.”
(emphasis is ours)
During the post-mortem examination, samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken. These samples were sent for chemical examination to the Central Forensic Science Laboratory, New Delhi. The report of the Forensic Laboratory dated 9.2.1993, recorded the following conclusions:-
“SPECIFICATION OF THE ARTICLE CONTAINED IN THE PARCEL
1. Parcel contained:
(a) One wide-mouth bottle containing stomach, intestine with contents, Exhbt 1a.
(b) One wide mouth bottle containing liver, spleen & kidney, Exhbt 1b.
(c) One phial containing few drops blood, Exhbt 1c.
xxx xxx xxx
RESULTS OF ANALYSIS
The Exhibit nos. 1a, 1b and 1c gave negative tests for common poisons.”
It is therefore apparent, that the Central Forensic Science Laboratory, New Delhi, having analysed the samples from the stomach, intestine, liver, spleen, kidney and blood, concluded that the same did not contain any “common poison”.
5. Insofar as the inquest proceedings initiated by the Sub-Divisional Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are concerned, it would be relevant to mention, that Madan Lal Kapoor (the respondent-complainant herein) the father of the deceased, in the first instance, refused to record any statement before the SDM, Delhi, on the ground that he would record his statement only after the receipt of the post-mortem report. Even on the receipt of the post-mortem report, the said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record their statements before the SDM, Delhi, on the assertion, that the mother of the deceased knew the facts best of all, and as such, her statement needed to be recorded first of all. It was pointed out, that her statement could not be recorded immediately because she was in a state of shock. It may be noted, that neither the mother nor the brother of Dr. Monica Thapar appeared before the SDM, Delhi, to record their statements. Madan Lal Kapoor had sought time thrice, from the SDM, Delhi, to get the statement of his wife recorded. Madan Lal Kapoor, father of the deceased, however, eventually recorded his statement before the SDM, Delhi, even though the mother of the deceased had not appeared before the Magistrate to record her statement.
6. The SDM, Delhi, during the course of inquest proceedings, recorded the statements of the following accused persons:-
(i) Rajiv Thapar (husband of the deceased; appellant no. 1 herein).
(ii) Kusum Thapar (mother-in-law of the deceased; appellant no. 5 herein).
(iii) Sangeeta Thapar (wife of the brother-in-law of the deceased; appellant no. 4 herein).
In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria (a colleague of the deceased at Medical College, Surat). Insofar as the accusations and counter allegations are concerned, it is not essential to refer to the statements of any of the rival parties. It is however, appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the same is not available on the record of the case, reference thereto in the inquest report, is being extracted hereunder:-
“Statement of Mr. Pritu Dhalaria
Sh. Pritu Dhalaria stated that Monika Thapar was known to him from the date she got admission in the Medical College in June,
92. And he regards her as his elder sister. He further stated that both Monika and Rajeev were happy and living a happy married life. On 17th September, 1992, he came to know that Monika was ill and admitted in the Mahavir Hospital. In the evening of 17.9.1992, when he met Monika he came to know that she was suffering from Malaria. And on 24.9.1992, he came to know that she was admitted in the Urmil Heart Hospital. He further stated after Echo-Cardiography doctor declared that Monika was suffering from A.S.D. (Larger Hole in Heart) and pulmonary Hypertension. He stated that on 26.9.1992, at about 2.00-2.15 p.m., Monika’s situation became serious. And inspite of all attempts of doctors, she got heart attack and died on 3.30 p.m. He also stated that the MS of Civil Hospital, Surat, Dr. Khanna was present alongwith the other doctors at that time.”
(emphasis is ours)
7. The statement of Dr. Pritu Dhalaria fully coincides with the version expressed by the appellants-accused. That Dr. Monica Thapar had two bouts of illness. In the first episode, she was diagnosed as suffering from Malaria. She was treated for the same and discharged. Thereafter, she was diagnosed with a large hole in her heart, on the basis of an echo- cardiography. She died of a massive heart attack on 26.9.1992. At the time of her death, Dr. Khanna and other doctors of the Civil Hospital, Surat, were present.
8. The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the following conclusions:-
“Conclusion
Allegation levelled by Shri Madan Lal Kapoor, father of the deceased regarding harassment and dowry death, it appears that allegation are not correct in the light of the fact of Natural death in the statements the husband and in laws of the deceased produced photocopies of letters written by Sh. Madan Lal Kapoor and Rajiv Kapoor. Perusal of the letter shows that both the families enjoyed a normal happy relationship and not an abnormal and strained relation till the death of Monika.
Sh. Rajeev Thapar has produced copy of telephone Bill of residential phone shows the Telephone Cells are made to Madan lal phone No.574390 at Mohali Chandigarh on 17.09.92, 21.09.92, 24.09.92 and 25.09.92 during the course of illness of Monika
Sh. Rajeev Kapoor, the brother of the deceased well aware of the situation of Monika as per his letter dated 22nd September, 92 and at that time the families are enjoying a very good relationship. So it is not possible in these circumstances that Monkka was harassed by her in-laws. The few lines as under:-
“How are you Now? I hope by now you will have recovered from Malaria. We should have faith in God. Please give top priority to your health.
Off and on I go to Janakpuri, all are very nice there, very affectionate and very caring. You must be knowing that Sanjay Bhai Saheb have been promoted to the rank of Squadron Leader..
The brother is no likely to praise the family of his sister’s in-laws in case his sister is being harassed for dowry.
Statement of Sh. Pritu, Colleague of Mrs. Monika, also shows that Monika and Rajiv enjoyed a very happy and cordial relationship, which also shows that allegations of harassment does not appear to be correct. According to the statements given before me Monika stayed with her in-laws in Delhi only for 4-5 days. Hence the charged of harassment levelled does not appear to be correct. From the statement and evidence produced before me, it does not appear that she was being harassed. Report of Sh. S.K. Pathi M.d. Radiologist during the treatment of Monika.
“Mild Cardiac enlargement with dilated pulmonary vessels and evidence of Pulmonary Dedema. Advise: Echocardiography.”
Report of Dr. J.C. Damaswala M.D. during the treatment of Monika.
“Large osteum secundum ASD Measuring 3.0 cm with Ltd. To Rt. Shunt on colour flow and conventional Doppler.”
Death certificate issued by Urmil Heart and Lung Centre:-
Cause of Death: Cardio-Respiratory arrest due to Malaria ASD C Pulmonary Hypertension.
The post-mortem of the dead body revels that death is due to Cardiac de-compensation due to enlarged atrial Septal Defect and pulmonary Hypertension (As per board of doctors)
The CFSL report of the viscera reveals negative tests for common poison.
Inquest proceedings started on 27.09.1992 and till now mother of the deceased has not come forward to give her statement. Father of the deceased visited SDM office three times but never brought his wife for recording statement. Now there is no point in waiting for her statement when death is proved natural and beyond any doubt.
The case of the death is clearly determined to be natural inquest proceedings under Section 176 Cr.PC may be closed as foul play in the death of Smt. Monika Thapar is completely ruled out and the allegation made in the PCR called on 29.09.1992 have not been turned out by the evidence on record. Sd/-
Sub-Divisional Magistrate, Kotwali, Delhi.
6.7.1993”
A perusal of the inquest report reveals that the SDM, Delhi, concluded that “… foul play in the death of Smt. Monika Thapar is completely ruled out…” The SDM, Delhi, also held “…death is proved natural and beyond any doubt…”
9. On 29.9.1992, Madan Lal Kapoor (the respondent-complainant), father of the deceased Dr. Monica Thapar, filed a complaint before the Commissioner of Police, Delhi. Prior thereto, on the same issue, he had filed similar complaints before the Police Commissioner, Surat, Police Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy. Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura, New Delhi. The aforesaid complaints had been filed by the father of the deceased praying for registration of a First Information Report, interalia, under Sections 304B and 498A of the Indian Penal Code. Since the complaints filed by Madan Lal Kapoor did not bear any fruitful result, he filed a criminal complaint before the Metropolitan Magistrate, Delhi on 6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning. Relevant portion of the complaint made by Madan Lal Kapoor (the respondent- complainant) is being extracted hereunder:-
“10. That in the second week of September, 1992, accused no.1 Rajiv Thapar called his mother from Delhi, on the false pretext that Monika was pregnant and needed care. As a matter of fact, it was in the pursuance of the conspiracy hatched by the accused themselves to do away with the life of Monika in some mysterious manner and on the pretext the mother of Rajiv Thapar accused no.1 was called from Delhi, and sometimes thereafter on that pretext she was admitted in some hospital of their choice, where the conspiracy could be implemented.
11. That on 26.9.1992 the complainant enquired on telephone from accused no.2 about the welfare of his daughter but now she was quite alright and there was nothing worry about her. The complainant enquired from him about the details of her illness and hospital where she was admitted, but accused no.2 did not disclose as the voice of Mr. Thapar accused no.2 was some what in co-herent on the phone, the complainant suspected something wrong, when the complainant told him that he along with his wife was going to Surat, accused no.2 told him that there was no need of going and everything was alright, but when the complainant told him in clear term that he apprehended something wrong regarding the illness of his daughter, on which accused no.2 told the complainant on phone that Monika had expired.
12. That accused no.2 in conspiracy with his co-accused did not disclosed the kind of illness, of the treatment she was given with a criminal intention that the complainant and his wife may not able to see their daughter and give her proper treatment. Mrs. Monika was not suffering from any disease. Of course, due to constant harassment, torture, physical and violent and mental torture, her health had broken down and she fell ill. Her death was due to constant torture for not meeting the illegal demand of a Maruti Car.
13. That the dead body of Monika was brought to Delhi under mysterious circumstances, no permission was obtained for taking dead body from Surat to Delhi in the train.
14. That the complainant and his wife reached Delhi and saw some poisonous substance had been administered to her, on this report of the complainant, the post-mortem was conducted at Delhi.
15. That the complainant was moved hell and earth in the matter. He has given complaint to police Commissioner, Surat. Deputy Commissioner, Athwa Crime Women Cell, South, Moti Bagh, Nanakpura, New Delhi, Police Officer Incharge, Umra , Police Station, Athwa Lines, Surat and another authority; but no action has been taken, even the copy of the Post Mortem Report has not been supplied to the complainant.
16. That the death of Mrs. Monika took place within a year of her marriage under mysterious circumstances on account of demand of dowry which demand was not met and thereafter she was tortured mentally and physically and leading to her illness and in that condition she was administered some poisonous matter. The accused have committed serious offences under Sections 304B/120B/498A/109 I.P.C. They be tried according to law and convicted.
Sd/-
Dated 6.7.93 Madan Lal Kapoor Complainant”
(emphasis is ours)
10. The complaint extracted above, reveals mere aspersions, based on suspicion. The complaint did not express any concrete fact disclosing how the appellants-accused were responsible for having taken his daughter’s life. In fact, the narration of facts hereafter reveal, the shifting stance of the father of the deceased, about the cause of his daughter’s death. On 24.5.1995, Madan Lal Kapoor (the respondent-complainant) examined himself and his son Rajiv Kapoor before the Metropolitan Magistrate, Delhi in order to substantiate the allegations levelled by him in respect of the unnatural death of his daughter Dr. Monica Thapar. Based on the statements made by Madan Lal Kapoor (the respondent-complainant) and his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated 24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi, while summoning the accused, recorded the following observations:- “It is further alleged that at the time of her death she was doing Diploma in Gynaecology in territories at Surat where his son in law was employed. The complainant did not receive any telephone call either from his daughter or son in law and he therefore rang up to Ramesh Thapar at Delhi to enquire about the welfare of his daughter and Ramesh Thapar told him on telephone that his wife Kusum Thapar had been called to Surat to look after his daughter as she was said to be pregnant but subsequently she was aborted. The complainant enquired from him as to the particulars of the hospital where she was admitted and what was the ailment she was suffering from, she replied that her daughter was quite all right and he should not worry about her welfare again insisted to given particulars of the hospital and the complainant suspected that her in-laws were not behaving with her properly and were harassing, therefore, he insisted that he himself and his wife shall go to Surat and he told him that he suspected some foul play in the matter on which Ramesh Thapar told him from Delhi that his daughter Monika has already expired, and he enquired as to where she will be cremated. The accused brought the dead body of his daughter from Surat to Delhi but they did not allow him and his family members to see the dead body but on their insistence, they saw the dead body of his daughter and he saw that the face and mouth of his daughter was blue. He suspected that her daughter has been given some poisonous matter, as a result of which she had died. He informed the police and the police came and got the post mortem of the dead body conducted, but thereafter nothing was done by police in this matter. He sent a registered letter to the Police Commissioner, Delhi and he went to Surat and filed a complaint before the Police Commissioner but nothing was done. The complainant suspect that his daughter has been admitted because his daughter had not brought sufficient dowry according to the status and had also failed to fulfill the demands of above named accused persons of bringing dowry and Maruti Car and cash.
I have carefully considered the argument put forward by Ld. Counsel for complainant. I have also carefully gone through the complaint and have carefully considered the preliminary evidence adduced by the complainant in support of his case, and from the material on record in my considered opinion, there are sufficient grounds for proceedings against all the accused persons for committing offence punishable u/s. 304B/498A/406/120B IPC.
Accordingly, I order that accused Rajiv Thapar, Ramesh Thapar, Sangeet Thapar and Mrs. Kusum Thapar be summoned for 19.12.1995 on filing of PF.”
11. The appellants assailed the aforesaid summoning order dated 24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the High Court of Delhi (hereinafter referred to as, the High Court). The challenge raised was primarily on the ground, that Madan Lal Kapoor (the respondent- complainant) had suppressed vital material, in his complaint. It was alleged, that the complainant did not disclose the particulars of the post-mortem examination, the report of the Central Forensic Science Laboratory, as also, the inquest report. The High Court dismissed the aforesaid petition summarily on the premise, that the same had been prematurely filed. Accordingly, liberty was granted to the appellants to move the trial Court, if they were so advised, for seeking a recall of the summoning order (dated 24.8.1995). Immediately, on the disposal of the petition by the High Court, the appellants moved an application before the Metropolitan Magistrate, Delhi, praying for a recall of the summoning order dated 24.8.1995. The aforesaid application was dismissed by the Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of the opinion that at this stage, there is no ground to review or recall the order dated 24.8.1995 passed by my L.D. Predecessor, whereby he summoned the accused for the above stated offences after taking cognizance…”
12. Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary evidence. Based thereon, and having formed an opinion, that there was sufficient material to proceed against the accused under Sections 498, 496, 304B read with Sections 120-B of the Indian Penal Code, the Metropolitan Magistrate, Delhi, committed the case to the Court of Sessions, as the offence under Section 304B is exclusively triable by a Court of Sessions.
13. While examining the matter further, with the pointed object of either discharging the accused (under Section 227 of the Cr.P.C.) or framing charges against them (under Section 228 of the Cr.P.C.), the Additional Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the respondent-complainant) had not brought the following record/material/documents to the notice of the Metropolitan Magistrate, Delhi:-
(i) The post-mortem report dated 28.9.1992.
(ii) The inquest report dated 6.4.1993.
(iii) The correspondence made by the respondent and his son. The Additional Sessions Judge, Delhi also felt, that the Metropolitan Magistrate, Delhi, had not fully complied with the provisions of Section 202 of the Cr.P.C. (requiring him to enquire into the case himself). Therefore, the Additional Sessions Judge, Delhi examined the allegations made in the complaint in conjunction with all of the aforesaid material.
14. Since the learned counsel representing Madan Lal Kapoor (the respondent-complainant) had raised an additional plea (before the Additional Sessions Judge, Delhi), that the deceased was also suspected of having been strangulated to death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of the Medical Board, which had conducted the post-mortem examination). The Additional Sessions Judge, Delhi, sought clarifications on the allegations of strangulation, from the two doctors. The Court also recorded the statement of Dr. Amit Banerjee.
15. The Additional Sessions Judge, Delhi then heard detailed arguments on charge. Upon consideration, the Additional Sessions Judge, Delhi, recorded detailed findings, which are being summarized hereunder:- (i) The inquest proceedings conducted by the SDM, Delhi, which interalia contained the broad facts of the married life of the deceased, were inconsistent with the theory of harassment extracted in the complaint.
(ii) The accused Rajiv Thapar, husband of Dr. Monica Thapar (deceased) had been seeking medical advice, and had been getting the deceased’s medical treatment at Surat, whereupon it came to be discovered, that she had a large hole in her heart.
(iii) The Medical Board which conducted the post-mortem examination on the body of the deceased, confirmed the conclusion certified by Urmil Heart and Lung Centre, Surat, that her death occurred because of cardiac de-compensation, and that Dr. Monica Thapar had died a natural death.
(iv) The plea of strangulation raised on behalf of the complainant was held to be unsubstantiated consequent upon the clarification rendered by Dr. L.T. Ramani and Dr. Amit Banerjee.
(v) The post-mortem report and the Central Forensic Science Laboratory’s report, which recorded a negative opinion on poisoning, were taken into consideration to conclude, that the death of Dr. Monica Thapar was not due to poisoning.
(vi) The statement made by Dr. Pritu Dhalaria, a colleague of the deceased at the Medical College, Surat, referred to in the inquest proceedings (relevant portion extracted above), was relied upon to disbelieve the theory of foul play, in the death of Dr. Monica Thapar.
(vii) Based on the facts recorded in the inquest report, as also in the statement of Dr. Pritu Dhalaria, that Dr. Monica Thapar had died after her admission and treatment in the Urmil Heart and Lung Centre, Surat, it was deduced, that Rajiv Thapar, the husband of the deceased could have neither strangulated nor poisoned the deceased, while she was admitted for treatment at the Urmil Heart and Lung Centre, Surat.
Based, interalia, on the aforesaid evaluation of the complaint filed by Madan Lal Kapoor (the respondent-complainant), the Additional Sessions Judge, Delhi concluded, that no prima facie case was made out against the appellants/accused either under Section 304B of the Indian Penal Code or under Section 498 of the Indian Penal Code. The Additional Sessions Judge, Delhi, accordingly discharged the appellants/accused by an order dated 7.8.1999.
16. Dissatisfied with the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant) filed a Criminal Revision Petition (bearing no. 42 of 2000) in the High Court. The aforesaid Criminal Revision Petition was dismissed in default on 11.8.2005. The order dated 11.8.2005 was assailed through a Special Leave Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court. The aforesaid Special Leave Petition was allowed by this Court on 31.8.2007. The matter was remanded back to the High Court for adjudication on merits. It is thereupon, that the High Court passed the impugned order dated 8.5.2008, setting aside the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi. The instant order dated 8.5.2008 is the subject matter of challenge in the present appeal.
17. A perusal of the order of the High Court would reveal that the Additional Sessions Judge, Delhi, had primarily relied on certain observations made in the judgment rendered by this Court in Satish Mehra Vs. Delhi Administration, (1996) 9 SCC 766:-
“15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself”
Madan Lal Kapoor (the respondent-complainant), before the High Court, had relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, to contend that the judgment relied upon by the Additional Sessions Judge, Delhi, having been overruled, had resulted in an erroneous conclusion. For the same proposition, reliance was placed on the judgment of this Court in Suresh Kumar Tekriwal Vs. State of Jharkhand, (2005) 12 SCC 278. On behalf of the complainant, reliance was also placed on the decision in State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, to contend, that only the material placed on record by the prosecution, could be gone into at the time of framing charges. And if, on the basis of the said material, the commission of the alleged offence was prima facie made out, the charge(s) was/were to be framed. At the stage of framing of charges, it was submitted, that the requirement was not to determine the sufficiency (or otherwise) of evidence to record a conviction. For this, reliance was placed on State of M.P. Vs. Mohanlal Soni (2000) 6 SCC 338, wherein this Court had concluded, that the requirement was a satisfaction, that a prima facie case was made out. On behalf of Madan Lal Kapoor, reliance was also placed on State of A.P. Vs. Golconda Linga Swamy (2004) 6 SCC 522, to contend that at this stage, meticulous examination of the evidence was not called for.
18. As against the submission advanced on behalf of Madan Lal Kapoor (the respondent-complainant), the appellants/accused contended, that the Court was justified in considering the material on the record of the case, and on the basis thereof, to arrive at a just and reasonable conclusion. In this behalf, it was averred that the post-mortem report, the report of the Central Forensic Science Laboratory, the inquest proceedings recorded by the SDM, Delhi, and the letters addressed by the family members of the complainant (duly noticed in the inquest proceedings), were a part of the record of the case, and as such, were to be taken into consideration while passing the orders contemplated under Sections 227 and 228 of the Cr.P.C. The submission advanced on behalf of Madan Lal Kapoor (the respondent- complainant) before the High Court, was accepted. The High Court arrived at the conclusion, that the Additional Sessions Judge, Delhi had erroneously placed reliance on the decision rendered by this Court in Satish Mehra Vs. Delhi Administration (supra), which had already been overruled by the judgment rendered by a larger Bench in State of Orissa Vs. Debendra Nath Padhi (supra).
19. While considering the contention advanced on behalf of the appellants/accused, the High Court concluded, that the material/documents/record which the complainant was placing reliance on, did not fall within the ambit and scope of the term “record of the case” contained in Section 227 of the Cr.P.C. According to the High Court, the record of the case referred to in Section 227 of the Cr.P.C. was only such record, documents and articles which, on consideration by the Magistrate, are sent to the Court of Sessions, consequent upon passing an order of commitment. The material and documents relied upon by the appellants/accused in the present controversy would, therefore, not fall within the zone of consideration at the hands of the Court of Session under Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the behest of the appellants/accused were declined. For the aforesaid reasons, the High Court accepted the Criminal Revision Petition filed by Madan Lal Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly quashed. The parties were accordingly directed to participate in the further proceedings before the Court of Sessions.
20. We have considered the submissions advanced at the behest of the rival parties. We are of the view, that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 of the Cr.P.C. specially because the Additional Sessions Judge in his order dated 7.8.1999, had concluded, on the basis of the material relied upon by the accused, that no case was made out against the accused. This according to learned counsel, was permissible in view of the inherent jurisdiction vested in the High Court under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being extracted hereunder:-
“482. Saving of inherent power of High Court
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice. This Court had an occasion to examine the matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent-complainant), wherein it was held thus:-
“29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.”
(emphasis is ours)
Recently, this Court again had an occasion to examine the ambit and scope of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & Ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 of the Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed, that under Section 482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 of the Cr.P.C. in the facts and circumstances of this case.
21. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.
24. The complaint made by Madan Lal Kapoor (the respondent-complainant) proceeds on the assumption, that his daughter Dr. Monica Thapar was administered poison. The said assumption was based on the fact, that the respondent-complainant, (as also the members of his family), found the body of their daughter had turned blue when they laid their eyes on it for the first time after her death. The motive disclosed in the complaint is non- cordiality of relations between the deceased Dr. Monica Thapar, and the family members of her husband (the appellants herein), on account of non- fulfillment of dowry demands. Insofar as the allegation, that the appellants had poisoned Dr. Monica Thapar to death is concerned, the appellants have placed reliance on the post-mortem report dated 28.9.1992, chemical analysis findings recorded in the Central Forensic Science Laboratory’s report dated 9.2.1993, the inquest report dated 6.7.1993, and the order passed by the Additional Sessions Judge, Delhi, dated 7.8.1999. It is clear, that Madan Lal Kapoor (the respondent-complainant), was associated with the investigative process from the very moment the body of Dr. Monica Thapar arrived at Delhi. It was at his instance, that the post- mortem examination was conducted. The body of the deceased, after the same was subjected to the post-mortem examination, was handed over jointly to Madan Lal Kapoor (the father of the deceased) and to Rajiv Thapar (the husband of the deceased). The cremation of the body of Dr. Monica Thapar was carried out jointly by the two families. A high level Medical Board, constituted for conducting the post-mortem examination, in unequivocal terms returned a finding, that “cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension” was the cause of Dr. Monica Thapar’s death. It would be pertinent to notice, that samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken for forensic examination in order to verify the allegation of poisoning levelled by Madan Lal Kapoor. The Central Forensic Science Laboratory, New Delhi, in its report dated 9.2.1993 negatived the aforesaid allegation by concluding, that the samples did not indicate the presence of any common poisoning substance. Relying on the inquest report dated 6.7.1993, rendered by the SDM, Delhi, it was sought to be asserted, that echo-cardiography conducted at the Urmil Heart and Lung Centre, Surat, disclosed the presence of a large hole in Dr. Monica Thapar’s heart. Even according to the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had suffered a massive heart attack, and had died at the said hospital on 26.9.1992. It was the submission of the learned counsel for the appellants, that the aforesaid material is evidence of sterling quality which was sufficient to demonstrate, that there was not the remotest possibility, that the trial against the appellants would lead to their conviction.
25. The evidence, relied upon by the appellant has not been contested or refuted by Madan Lal Kapoor (the respondent-complainant), even though he was aware of the same when he filed the complaint. During the course of the proceeding before the committing Magistrate, and even before Sessions Court and the High Court, the appellants had placed emphatic reliance on the material referred to above. The same remained unrefuted in the pleadings filed on behalf of Madan Lal Kapoor. During the course of hearing at the stages referred to above, the veracity of the documents/material referred to above was not contested. The aforesaid position has subsisted even before this Court. It was accordingly submitted on behalf of the appellants, that even if trial is allowed to proceed against the appellants, at the culmination thereof, it would be impossible to return a finding of guilt against any of the accused.
26. According to the learned counsel for the appellants, the material in the nature of the post-mortem report, the Central Forensic Science Laboratory’s report, as also the inquest report, would be sufficient to exculpate the appellants from the allegations and accusations levelled in the complaint.
27. We are one with the aforesaid submission. From the documents/material relied upon by the appellants, for exactly the same reasons as have been projected on behalf of the appellants, we are satisfied to conclude, that the death of Dr. Monica Thapar was not caused by poisoning. Merely because her body had turned blue, when it arrived at Delhi, in our view, is not a sufficient basis to infer that she had been poisoned to death. In fact material relied upon by the appellants is sufficient to condemn the factual basis of the accusation as false.
28. It also needs to be noticed, that Madan Lal Kapoor (the respondent- complainant) took a summersault before the Additional Sessions Judge, Delhi by alleging, that Dr. Monica Thapar had been strangulated by the appellants, (even though the assertion in the complaint was, that she had been poisoned to death). To determine the veracity of the allegation of strangulation, as the cause of her death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, New Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi (members of the Medical Board which had conducted the post-mortem examination) to clarify the altered accusation levelled by Madan Lal Kapoor. The aforesaid doctors, as is apparent from the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, opined in the negative. They affirmed, that the death of Dr. Monica Thapar had not been caused by strangulation. We are therefore satisfied to affirm, that the death of Dr. Monica Thapar has not been shown to have been caused by strangulation. On an overall examination of the matter, we have no other option, specially in the absence of any submission to the contrary, but to conclude, that the material relied upon by the appellants would lead to the indubitable conclusion, that Dr. Monica Thapar had not died on account of having been strangulated.
29. We shall now advert to the allegation made in the complaint by Madan Lal Kapoor, that there was non-cordiality of relations between the deceased Dr. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in consistent and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as “very affectionate and very caring”. The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint.
30. Even though the statement of Dr. Pritu Dhalaria has been relied upon by the SDM, Delhi in the inquest report, which completely knocks out all the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are of the view, that it would be improper to make any reference thereto in deciding the present controversy. Reliance on the statement of Dr. Pritu Dhalaria would be permissible only after the same is recorded by a court on oath, whereupon, he has to be subjected to cross-examination. Only then, his statement would acquire credibility for reliance. Any fact situation based on the oral testimony, by one or the other party, cannot be the basis of a determination, akin to the one in hand.
31. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory’s report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.
32. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.
33. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.
…………………………….J.
(D.K. Jain)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 23, 2013.
Bombay HC: Acquits 5 people in 498a. On such flimsy evidence it is impermissible in law to convict any person of the serious offence of murder.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
CRIMINAL APPEALLTE JURISDICTION.
CRIMINAL APPEAL NO. 314 OF 1997
1. Sukhdev Hindurao Patil
2. Sulochana Hindurao Patil
3. Sou.Shalan Hindurao Patil
4. Hindurao Bhau Patil
5. Dattatraya Hindurao Patil….. ….Appellants.
(Orig.Accd.)
V/s
The State of Maharashtra ….. …. Respondents.
Mr.S. A. Ingawale, Adv. for the appellants.
Mr.A. S.Shitole, APP for the State.
CORAM: V.G. PALSHIKAR AND R.C. CHAVAN, JJ. 24th June, 2005.
ORAL JUDGMENT: (Per Palshikar, J.)
Being aggrieved by the judgment and order of conviction and sentence passed by the learned III Additional Sessions Judge, Kolhapur in Sessions Case No.201 of 1996 on 12.5.1997 the appellantsaccused have preferred this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before us.
2. With the assistance of the learned Advocate for the appellants as also the learned Public Prosecutor we have scrutinized the entire evidence on and reappreciated the same.
3. The prosecution case as disclosed by reappreciation of evidence stated briefly is that Sukhdeo Hindurao Patil was married to Kanchan sometime in the year 1995. The prosecution alleged that soon after the marriage Kanchan was harassed and tortured by her inlaws for getting additional dowry. On 21.8.1995 a report was lodged at the Kagal police station by the complainant Vishnu Ghatage that his daughter is missing. Thereafter the complainant received information that there was a dead body of a woman floating in the river Vedganga. He along with others went to the spot, saw the dead body and identified it as that of Kanchan. Accordingly the complaint in the Bhivashi police station was prepared. Eventually during the investigation the accused persons were arrested and prosecuted in Sessions Case No.201 of 1996. The prosecution examined eight witnesses to prove its case that Kanchan was murdered by accused Nos.1 to 5 with the common intention for not getting adequate or more dowry after her marriage. The learned Judge accepted the evidence as led by the prosecution and convicted all the accused persons under section 302 read with section 34 of Indian Penal Code to suffer imprisonment for life. It is this order which is impugned in this appeal by all the five accused.
4. Before we proceed to deal with the matter and contentions raised by the learned counsel on both sides it is necessary and important to note the first and most vital submission made by Shri Ingawale on behalf of the appellants accused. He has submitted that the conviction of accused Nos.4 and 5 under section 302 of Indian Penal Code read with section 34 of Indian Penal Code was unsustainable in law as there was no charge under section 302 against accused Nos.4 and 5. He substantiated to the point by pointing out the charge which is at Ex.2 and the observations of the learned Judge in the judgment. The charge atpage 2 reads as under :
“I Shri B. T. Narwade, IIIrd Additional Sessions Judge, Kolhapur do
hereby charge you:
1. Sukhdev Hindurao Patil, age 27 yrs.
2. Sulochana Hindurao Patil, aged: 35 yrs.
3. Sou.Shalan Hindurao Patil, aged 60 yrs.
4. Hindurao Bhau Patil, aged 70 yrs.
5. Dattatray Hindurao Patil aged 23 yrs.
All are resident of Mhakve, Tal. Kagal, Dist: Kolhapur.
as follows:
That you accused No.1 being husband of deceased Sou.Baby alias Kanchan, you accused No.2 being sister of accused No.1, you accused Nos.3 and 4 being mother and father of accused No.1 and you accused No.5 being brother of accused No.1, that you all accused above named, individually or in the alternative in furtherance of the common intention of you all, at your house at village Mhakve, Tal.Kagal, Dist. Kolhapur within the period of 27.5.94 to 19.8.1995., subjected the said Sou.Baby alias Kanchan to cruelty by your willful conduct by demanding from her parents amount of Rs.20,000/ and golden ornaments and harassed her by beating and abusing, and thereby you have committed an offence punishable under section 498A simpliciter or in the alternative under section 498A read with section 34 of the Indian Penal Code and within my cognizance. That you accused Nos.1 to 3 above named, on 19.8.1995 at about 5.00 a.m. In your house at village Mhakve, Tal. Kagal, Dist. Kolhapur, individually or in the alternative in furtherance of common intention of you all, did commit murder by intentionally or knowingly causing the death of Sou.Baby alias Kanchan Sukhdev Patil by threatening her and pouring boiled water on her face and body and thereby committed an offence punishable under section 302 simplicitor or in the alternative under section 302 read with section 34 of the Indian Penal Code and within my cognizance. That you accused Nos. 1 to 3 above named, on the aforesaid date, time and place, individually or in the alternative, in furtherance of common intention of you all, knowing that certain offence, to wit murder punishable with death, has been committed, did cause certain evidence of the said offence, to disappear, to wit, you kept the dead body of sou. Baby alias Kanchan Sukhdev Patil in the gunny bag and thrown gunny bag in Vedganga River, with the intention of screening yourself from legal punishment, and thereby committed an offence punishable under section 201 simplicitor or in the alternative under section 201 read with section 34 of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by me on the said charges.
Date: 18.3.1997 Sd/
3rd Addl. Sessions Judge, Kolhapur.
The contents of the above charge were read over and explained to the accused in vernacular, thereupon they pleaded not guilty and claimed to be tried.
Date: 18.3.1997 Sd/
3rd Addl. Sessions Judge, Kolhapur.”
5. We have completely quotes the charge as framed by the learned trial Judge only to point out that the first charge pertains to section 498A of Indian Penal Code and is against all the five accused, the second charge specifically states that accused Nos. 1 to 3 above named on 19.8.1995 at about 5.00 a.m. In furtherance of their common intention committed murder of Kanchan and they were therefore charged under section 302 read with section 34 of as also simplicitor section 302.
6. Similar is the case of charge in relation to section 200. Accused Nos. 1 to 3 were said to have caused destruction of evidence as contemplated by section 201 of Indian Penal Code. It is thus evident from the charge itself that accused Nos.4 and 5 were never charged even for offence punishable under section 302 of Indian Penal Code or section 302 read with section 34 of IPC or with section 201 of IPC read with section 34 IPC.
7. The operative part of the order reads thus : “The accused Nos.1 to 5 are convicted of the offence punishable under section 302 read with section 34 of I.P.C. and they are sentenced to suffer life imprisonment each and to pay a fine of Rs.1,000/ (Rupees One thousand only) each and in default of payment of fine each of them to suffer further R.I. For 3 (three) months. The accused Nos.1 to 5 are further found guilty for the offence punishable under section 498A read with section 34 of Indian Penal Code and they are sentenced to suffer R.I. For 3 (three) years each and to pay fine of Rs.1,000/ (Rupees one thousand only) each. In default of payment of fine each of them to suffer further R.I. For 3 (three) months.
The accused Nos. 1 to 5 are further found guilty of the offence punishable under section 201 read with sec.34 of Indian Penal Code and they are sentenced to suffer R.I. For 3 (three) years each and to pay fine of Rs.1,000/ (Rupees one thousand only) each. In default of payment of fine, each of them to suffer further R.I. For 3 (three) months.”
It will thus be seen that the learned trial Judge has chosen to convict the accused under section 302 read with section 34 of Indian Penal Code and 201 read with section 34 of IPC without they being called upon by the charge to that effect. This is gross illegality which a seasoned Additional Sessions Judge is not expected to commit. Nothing more is required to be said except that accused Nos.4 and 5 are liable to be acquitted on both the charges.
8. That takes us to consider as to whether conviction under section 498A of IPC is proper or not or whether conviction of accused Nos. 1 to 3 under section 302 read with section 34 of IPC and section 201 read with section 34 of IPC is proper or not. As already pointed out we have re-appreciated the evidence on record which consists of eight witnesses.
9. P.W.1Ananda Makwane was panch witness to the arrest panchnama of the accused appellants. He has turned hostile. However fact of the arrest of the accused is not disputed. Similar is the case of P.W.2 Sakubai Rajpur who also was panch to the arrest panchnama and was declared hostile. The fact remains that accused were arrested. P.W.3 Balasaheb Suryavanshi is panch to the recording of spot panchnama. He also is declared hostile. P.W.4 Sukhadev Patil is the second witness for that spot panchnama and he is also hostile. It will thus further be seen that the prosecution has failed to prove that the accused were arrested or that spot panchnama as alleged by the prosecution was prepared and proved. However the deposition of P.W.8Investigating Officer can be held adequate to hold that the accused were factually arrested and spot panchnama was factually prepared. That leaves only two witnesses i.e. P.W.5 Vishnu Ghatage and P.W.6Krishna Ghatage the father and uncle of the deceased respectively. Their’sis the only evidence regarding any torture, ill treatment, cruelty for dowry as also for commission of murder. P.W.5Vishnu isfather of the victim. He has very categorically deposed that after six months of the marriage she was tortured by her inlaws, who tortured her, in what manner and when is kept vague. They he mentions about demand of Rs.20,000/ to purchase motorcycle. According to the witness this demand was made to Kanchan sometime prior to Nagpanchami festival, when was that festival, in what year is not proved. He has said then that accused Sukhdev i.e. Husband of Kanchan took back Kanchan saying that Vishnu P.W.5 father of the victim should not come to the house of the accused No.1 to see his daughter i.e. Deceased Kanchan until he pays Rs.20,000/. There is thus not even a whisper as to the manner in which Kanchan was tortured by any of the accused persons.
In para 3 the witness goes to say that from Nagpanchami till date of death Kanchan nobody from his house went to the house of Kanchan to see her. Then in para 4 how body was discovered is narrated. Then in paras 5, 6 and 7 he narrates how the complaint was lodged and the matter was referred to Kagal police station. That is his examination in chief. This nowhere discloses with any certainty when was the torture meted out and how it was effected and except for a vague allegation that prior to Nagpanchmi Rs.20,000/ were demanded there is no other demand nor any other evidence to that effect.
10. To the same effect is the testimony of P.W.6Krishna uncle of the deceased. He does not give any details of ill treatment, he does not give any details of approximate time when the ill treatment was meted out but only speaks of demand of Rs.20,000/ once and then narrates how the body was discovered, how complaint was lodged and how the prosecution was launched. This is the totality of the evidence on the basis of which the learned trial Judge has chosen to convict the appellants.
11. Even if the entire evidence is accepted as true there is no evidence of any torture, there is no evidence except bald statement that demand of Rs.20,000/ was made prior Nagpanchmi festival. The prosecution has not even examined the doctor who conducted the post mortem. Consequently homicidal death of Kanchan also is not proved. All that has been proved is body of Kanchan was found floating in the river on 21.8.1995. It was identified as that of Kanchan by her and therefore the accused persons were prosecuted. On such flimsy evidence it is impermissible in law to convict any person of the serious offence of murder. There is no evidence whatsoever of common intention to murder, not even charge as regards involvement of accused Nos.4 and 5 and there is no averment whatsoever as regards the demand of dowry or torture by accused 2 and 3 and yet there is conviction of all. We regret to record our dissatisfaction over the manner in which the prosecution was conducted as also the manner in which the learned trial Judge proceeded to convict the accused. In the result therefore appeal succeeds and the same is allowed. The order of conviction and sentence against the accused is set aside. Appellantsaccused are on bail.
Their bail bonds stand canceled.
12. A copy of this judgment be marked to the Registrar, Special Investigation Department, High Court, Bombay and Shri B.T.Narwade, Additional Sessions Judge wherever he is now posted.
SC: Allegations against family members in 498A generall, reckless and vague hence FIR Quashed
Supreme Court of India
, , , ,
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2070 OF 2012
[Arising out of Special Leave Petition (Crl.) No.9092 of 2011]
CHANDRALEKHA & ORS. … APPELLANTS
Vs.
STATE OF RAJASTHAN & ANR. … RESPONDENTS
O R D E R
1. Leave granted.
2. This appeal, by special leave, challenges order dated 14/9/2011 passed by the Rajasthan High Court dismissing the petition filed by one Rajeev Bhandari and appellants 1, 2 and 3 herein (original petitioners 2, 3 and 4 in the Special Leave Petition No.9092 of 2011) under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of FIR lodged by respondent 2 against them under Sections 498A and 406 of the Indian Penal Code.
2. Rajeev Bhandari is the husband of respondent 2. Appellant 1 is the mother-in-law and appellants 2 and 3 are the sisters-in-law of respondent
2.
3. In the special leave petition, Rajeev Bhandari was arraigned as petitioner 1. However, on 9/12/2011, this court dismissed the special leave petition insofar as Rajeev Bhandari is concerned. Therefore, today, the challenge to the impugned order can be said to be raised only by appellants 1, 2 and 3.
4. It is necessary to give a gist of the facts. On 1/4/2009, respondent 2 lodged the FIR in question at Thana Mahila, District Jodhpur against Rajeev Bhandari, his father Meghraj Bhandari and appellants 1, 2 and 3 alleging offences under Sections 498A and 406 of the IPC. In the FIR, she stated that she got married to Rajeev Bhandari on 9/7/2002 at Jodhpur; her father gave cash of Rs.1,25,000/- and gold and silver ornaments, other articles, clothes, household utensils, etc. to her husband’s family; she resided at Ahmedabad with her husband after her marriage; her husband behaved well for about two and half months; after that, the behaviour of Rajeev Bhandari, his father and the appellants 1, 2 and 3 changed; they started harassing her because she had brought less dowry; they did not give her sufficient food to eat; in her absence, appellants 1, 2 and 3 used to scatter her clothes and belongings and they demanded cash of Rs.6 lakhs. It is further stated in the complaint that on 26/1/2003, all of them harassed her and asked her to bring Rs.6 lakhs and gold and silver items from her father and threatened her that if she does not bring them, she will suffer. According to her, she suffered mental shock because of this behaviour and, hence, she left the matrimonial home in the morning of 27/1/2003. Then, her husband Rajeev Bhandari came searching for her and assured that there will be no demand of dowry. Due to this assurance, she again went to the matrimonial home. However, there was no difference in the behaviour of Rajeev Bhandari and appellants 1, 2 and 3. The dowry demand persisted. She, therefore, phoned her father and told him to come to Ahmedabad. On 14/2/2003, her father came to Ahmedabad and took her to Jodhpur on 15/2/2003. Since then, she has been staying with her parents. According to her, her husband Rajeev Bhandari and appellants 1, 2 and 3 have not contacted her thereafter. She contacted them and asked them to return her original degree certificate, silver and gold ornaments and other articles. But, they ignored her request. She, therefore, requested the police to take legal action against her husband Rajeev Bhandari, her father- in-law Meghraj Bhandari and appellants 1, 2 and 3. It must be stated here that during the pendency of the proceedings, Meghraj Bhandari died.
5. Before the Rajasthan High Court, it was submitted that a perusal of the FIR shows that respondent 2 had left her matrimonial home in the year 2003 and was residing in Jodhpur. No offence can be said to have been committed by the appellants in the territorial jurisdiction of Jodhpur. Hence, registration of FIR at Mahila Thana, Jodhpur is illegal. It was also urged that there is delay in lodging the FIR. On these grounds, it was prayed that the FIR be quashed. The Rajasthan High Court was of the view that part of cause of action had accrued at Jodhpur. It was held that since the offence is a continuous offence, FIR cannot be quashed on the ground of jurisdiction. The High Court also refused to quash the FIR on the ground of delay.
6. Before we refer to the submissions of learned counsel for the appellants, we must note that office report dated 16/8/2012 indicates that respondent 2 has been served. However, she has not engaged any counsel. We, therefore, requested Ms. Asha Nair to assist us on her behalf as amicus curiae. Ms. Nair has accordingly assisted us.
7. Learned counsel for the appellants submitted that respondent 2 left the matrimonial home on 15/2/2003 and the FIR was filed on 1/4/2009 after six years. Counsel submitted that the allegations made in the FIR are of general nature and extremely vague. The FIR, therefore, deserves to be quashed. Ms. Nair, on the other hand, has supported the order of the High Court.
8. We must, at the outset, state that the High Court’s view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3.
9. Hence, impugned judgment and order dated 14/9/2011 passed by the Rajasthan High Court in S.B. Criminal Misc. Petition No.1935 of 2009 is quashed and set aside insofar as it refuses to quash the FIR in question against appellants 1, 2 and 3. FIR No.66 of 2009 lodged at Mahila Thana, District Jodhpur, Rajasthan is quashed insofar as it relates to appellants 1, 2 and 3 viz. Smt. Chandralekha, Vandana and Vinita respectively. We make it clear that so far as Rajeev Bhandari s/o. Meghraj Bhandari is concerned, the proceedings shall go on in accordance with law. We have not quashed FIR No.66 of 2009 insofar as it relates to Rajeev Bhandari. Needless to say that the court seized of the complaint shall deal with Rajeev Bhandari’s case independently, without being influenced by anything said by us on the merits of the case and in accordance with law.
10. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
DECEMBER 14, 2012.
———————–
Supreme Court:- Casual, wholesale reference to in-laws won’t justify dowry case, hence quash.
“It is a well-settled principle laid down in cases too numerous to mention that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings, [thus] preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family at the instance of the complainant, who is out to settle scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”
the court clarified, “We deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of an overt act indicating the complicity of the members of the family named in the FIR in a given case, cognisance would be unjustified.”
Pls go through the Judgment below:
To download the same Click Here
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1674 OF 2012
(Arising out of SLP (Crl.) No. 10547/2010)
Geeta Mehrotra & Anr. ..Appellants
Versus
State of U.P. & Anr. . Respondents
J U D G M E N T
GYAN SUDHA MISRA, J.
1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court
had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High
Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of
the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.
2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-inlaw and sister-in-law. This appeal has been preferred by the sister-in-law, who is appellant No.1 and brotherin-law of the complainant, who is appellant No.2.
3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and
her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary of Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed
after which the respondent-complainant left for the house of her in-laws.
4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from
now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not getting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape
every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in
the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other
three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.
5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who
was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-inlaw and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go with
him immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla
Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.
6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For many days the complainant and her family members hoped
that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house.
After much effort, they came to know that the father-inlaw and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively
that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may do whatever he could but if he could afford to give Rs.10
lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.
7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in-law’s place in order to live with her father where she lodged a police case as stated hereinbefore.
8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabad started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.
9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV,
Allahabad, inter-alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done
there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of the complainant got the arrest warrant issued through
George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.
10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.
11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked
as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers
under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.
12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-inlaw and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members.
Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictions indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and
extract money from the family of her ex-husband Shyamji Mehrotra and his family members.
13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not
applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has
territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.
14. The High Court further overlooked the fact that during the pendency of this case, the complainantrespondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the
unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.
15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed.
However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.
16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the
jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two
contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives
as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the
FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.
18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no
prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the
complainant to have demanded dowry from her. The High Court, therefore, ought to have considered that even if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.
19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that
the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view
to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.
22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the
complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side-tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting
the trial.
23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the
High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names.
Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of
course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose
the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the
FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.
26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.
27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the
order passed by the High Court shall stand overruled.
The appeal accordingly is allowed.
……………………………J
(T.S. Thakur)
……………………………J
(Gyan Sudha Misra)
New Delhi,
October 17, 2012
Punjab & Haryana HC: Complainant Wife has filed false 498A against sister-in-law….Quashed
“It appears that the petitioner (Sister-in-Law) has been falsely involved in this case merely because of her relationship with the husband of the complainant. It is generally seen that in matrimonial disputes all the family members of the husband are involved in criminal litigation by the complainant party with a view to put pressure on the husband and his family members. A perusal of the FIR also reveals that there are general allegations levelled against the petitioner. The petitioner (SIL) had no reason to demand a car by way of dowry as she could not have used the same being residing in her own matrimonial home. Hence, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law.”
Punjab-Haryana High Court
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M-2116 of 2011 (O&M)
Date of decision: 5.7.2012
Channo Devi @ Charno……Petitioner
Versus
State of Haryana and another…….Respondents
CORAM: HON’BLE MRS. JUSTICE SABINA
Present: Mr.H.S.Sullar, Advocate, for the petitioners.
Mr.Gaurav Dhir, DAG, Haryana.
Mr.Sanjay Jain, Advocate, for respondent No.2.
****
SABINA, J.
Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom.
FIR (Annexure P-1) reads as under:-
“The complainant submits as under:-1. That the complainant was married with accused no. 1 Ram Ji son of Kuldeep Singh, R/o Village Munak Distt. Karnal as per Hindu Rites and ceremonies at village Sarangpur, P.S. Sadar Ambala, Tehsil and Distt. Ambala on 15.02.2009,
2. That the father of the complainant spent on the marriage of the complainant more than his capacity. He arranged the marriage in Dulhan Farm Hissar Road Ambala city and provided good food and other facilities to the Baraties and spent Rs. 2,00,000/- on marriage party in Dulhan Farm. 3. That at the time of departure of Barat a huge dowry was entrusted to the accused nos. 1 and 2 for the purpose of giving the same to the complainant in her matrimonial house which was for the exclusive use of the complainant a separate list of the dowry article is attached along with the complaint, 4. That accused no. 1 husband and accused no. 2 the father in law of the complainant and Smt. Nahmo Devi alias Bimla accused no. 3 and Nanad Channo Devi were not satisfied with this much and they started to tease the complainant on the pretext that the complainant has not brought anything worthwhile in her marriage and started to say that her (complainant’s) father has not given a car in the marriage and instead has given a Motor Cycle. All the accused started to demand a car and the others to pressurize the complainant to meet out their illegal demand of car and they also started to give beatings to the complainant every now and then on one pretext or the other 5. That having felt disturbed mentally and harassed the complainant reported the same to her father and told that her in law i.e. husband, father, mother-in-law and Nanad were demanded a car and also told that they often beat her to compel her to met out their illegal demand. The father of the complainant on the receipt of the complainant went to village Munak alongwith members of his Biradari and he alongwith other member panchayat made their best to make the accused persons understand that he could not given anything more than what he had already give in the marriage of his daughter on this all accused persons became furious and they started to quarrel with the father of the complainant and other members of brother hood accompanying him the accused persons also declared that they would not keep the complainant in their house unless a car is not given to them. However with the accused agreed to keep the complainant in her matrimonial house and also promised that they would not demand anything again in future. 6. That time went on going and the accused persons out of lust of dowry again started to demand a car in the same manner and fashion and again started to maltreat the complainant and beat her or the other to pressurize their demand. They also started to deny her food and other basic amenities of life in her matrimonial house. The complainant continued to bear all the same with the hope that good sense would prevail on the accused persons one day or the other but the accused persons did not mend their habits and they made the complainant to and her life by committing suicide. The accused persons created such an atmosphere in the house that she felt danger to her life. The accused persons harassed the complainant to such an extent to coerced the parents of the complainant to meet the unlawful demand of the accused persons. 7. That when the parents of the complainant did not meet the unlawful demand of the accused persons all the accused persons gave beatings to the complainant on 27.06.2010 and tried to put her on fire by sprinkling on her clothes. The complainant however made hue and cry and on hearing her noise the people from the neighborhood gathered at the spot and they escaped her from the cruel clutches of the accused persons. The complainant left the house of the complainant feeling danger to her life and came to the house of her parents at village Sarangpur P.S. Sadar Ambala Tehsil and District Ambala. She told everything to her parents. Upon which the father of the complainant made an application to S.P. Karnal through the complainant stating there in everything what happened to her in her in laws house on 28.06.10. The application made to S.P. Karnal was made over to Incharge Parivar Pramarash Kendar Karnal for necessary action but the matter could not be solved and the grievances of the complainant were not redressed for the eye-wash of the complainant and her father the Incharge Parivar Pramarash Kendar Karnal got a fictitious as well as vage compromise effected where in the accused party had promised to take the complainant to her matrimonial house by 15.07.2010 but non has come to take the complainant back in her matrimonial house and she still is living with her parents at village Sarangpur P.S. Sadar Ambala Tehsil and Distt Ambala the accused no. 1 filed a petition u/s 13 of H.M. Act in the courts at Karnal against complainant. 8. That the complainant has not condoned the act of maltreatment meted out to her by the accused persons and all the accused persons are liable to be punished for the criminal acts done by them and all the accused persons are liable to be punished accordingly. 9. That all accused persons have also retained the dowry articles, Jewellery, wearing apparels and other articles entrusted to them at the time of marriage and have not returned them to the complainant and converted the same to their own use. 9. That all the accused have committed an offence punishable under section 498A/307/406/34 IPC within the cognizance of this Hon’ble Court and this Hon’ble Court has got the jurisdiction to hear the present complaint.”
Learned counsel for the petitioner has submitted that the petitioner was the married sister-in-law of the complainant. The petitioner had got married much before the marriage of the complainant with her brother and was residing in her matrimonial home. The petitioner had been falsely involved in this case as a divorce petition had been filed against the complainant by her husband. The present FIR was a counter blast to the said litigation. Learned State counsel as well as learned counsel for complainant-respondent No.2, on the other hand, have submitted that the petitioner and her co-accused had harassed the complainant on account of insufficiency and demand of dowry. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
“The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” In Kans Raj vs. State of Punjab and others, 2000 (2) RCR (Criminal) 696 (SC), their Lordships of the Apex Court have observed that a tendency has developed for roping in all the relations in dowry cases and if it is not discouraged, it is likely to affect case of the prosecution even against the real culprits. The efforts for involving the other relations ultimately weaken the case of the prosecution even against the real accused. In the present case, the marriage of the complainant took place with Ramji Lal, brother of the petitioner, on 15.2.2009. The petitioner is married sister-in-law of the complainant and is residing in her matrimonial home at village Munak.Admittedly, the petitioner was married at the time of marriage of her brother with the complainant. It appears that the petitioner has been falsely involved in this case merely because of her relationship with the husband of the complainant. It is generally seen that in matrimonial disputes all the family members of the husband are involved in criminal litigation by the complainant party with a view to put pressure on the husband and his family members. A perusal of the FIR also reveals that there are general allegations levelled against the petitioner. The petitioner had no reason to demand a car by way of dowry as she could not have used the same being residing in her own matrimonial home. Hence, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, the petition is allowed. FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 IPC registered at Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA)
JUDGE
July 05, 2012
anita
HC: 498A filed with oblique motive to harass husband and his parrent and hence quashed
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 06T11 1)AY OF JUNE 201 1
BEFORE
THE HONBLE MR.JUSTICE K.SREEDHAR AO
CRIMINAL PETITION NO.15356/2011
BETWEEN:
1. SANTOSH Sb KALLLPPA FALASKAR AGE:37 YEARS.
2. KALLAPPA Sb. AGE:67 YEARS.
3. KRISHNABAI W/O KALLAPPA AGE:(30 YEARS.
4. PAJ U S/O KALLAPPA AGE:35 YEARS.
ALL RIG NAGSHE1T KOPPA
KESHAVPUPA. HUBLI
DIST: DHARWAD.
PETITIONERS
BY SRI.SACHIN M MAHAJAN, ADV.)
AND
1. ThE STATE OF KARNATAKA ANR
BY SADAR BAZAR POLICE STATION
RAICHUR THROUGH ITS PSI
R/BY ThE SPP, HONBLE HIGIl COURT OF KARNATAKA CIRCUIT BENCH, GULBARGA
2. SMT.SR1DEVI W/O SANTOSI-I KALASKAR
AGE: 28 YEARS.
RIO : H.NO.3-7-23. BEROON KI-JILLA
RAICHUR.
RESPONDENTS
(BY SRLSUBHASH.MALLAPUR, HCGP)
ThIS CRLP IS Filed U/S. 482 OF CR.P.C BY THE
ADVOCATE FOR ThE PETITIONERS PRAYiNG THAT ThIS
HONBLE COURT MAY BE PLEASED 10, CALL FOR ThE
RECORDS AND QUASH THE CHP.RGE SHEET DATED
22.02.2010 FILED BY THE SADAR BAZAR POLICE STATION
AT RAICHUR AGAINST THE PETITIONERS HEREIN FOR
ThE ALLEGED OCFENCES P/L1/S. 498(A). 504. 506(2) R/W
SEC. 34 OF IPC AND SECTIONS 3 & 4 OF THE DOWRY
PROHIBiTION ACT. 1961 AND CONSEQUENTLY QUASH
THE ENTIRE PROCEEDINGS IN C.C. NO. 1444/2010
PENDING ON THE FILE OF THE J.M.F.C.-II AT RAICHUR.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE ThE FOLLOWING:
ORDER
One Srnt.Sridevi CW- 1, is the wife of petitioner No.1. Petitioner Nos.2 and 3 are the parents of ptitioner No.1. Petitioner No.4 is the brother of Petitioner No.1. The Petitioner No.1 and CW- 1 were married on 17.04.2000. The family disputes arose. It is
the case of CW- 1 that the petitioner started abusing CW- I to bring additional dowry from her parents and she was subjected to cruelty and harassment by the petitioner No.1, CW— I unable to bring additioiai dowry, left her matrimonial home and lived with her parents.
2. The CW- I says that, she was no aware of the
petition filed in Conjugal Rights and petition for divorce. The CW- 1 had filed a case for seeking maintenance before the Family Court, Raichur on 11.08.2009 and
18.08.2009. When she attended to Family Court at Raichur, the 1st petitioner along with his friends abused CW- 1 and threatened with dire consequences. if CW- 1 does not wlthdravrn the maintenance case. CW- 1 aggrieved by criminal conduct filed a private complaint under Section 200, J.M.F.C. Raichur who referred the complaint to police. The case is registered. A charge sheet Is filed for the offence punishable under Sections 498A, 504. 506. 34 IPC and Section 3 and 4 of D.P Act.
2. The Counsel for the petitioners strenuously submitted that, the complaint flied by CW- 1 is only counter blast. The petitioner No. I in fact has tiled petition seeking constitute conjugal rights The said petition was allowed. The CW- 1 refused to cohabit with petitioner No. 1.
3. The petitioner No. 1 later on filed a petition seeking divorce on the ground of desertion. In the said petition. CW- I s exparte, the divorce petition is allowed. The petitioner thus contends that, the case is registered agaiist them Ofl tile instant of CW— I is false and a concocted version
4. The counsel appearing for the petitioner submits that, there are two instance of cruelty alleged. The first instance of cruelty, that all the petitioners some time after the marriage started harassing ew- 1 to get more dowry. The said complaint does riot refer to nature, overt acts and date and time of the overt acts.
The complaint refers to a latest of criminal acts on the part of petitioner No. 1 and his friends. It is said tnat on 11.08.2009 and 18.08.2009. when CW-1 came tO the Family Court., petitioner No.1 and his fritd threaten and tire consequence and directed her to withdraw her petition filed by her.
5. In respect of 2T’ld instance, the allegation is only against petitioner No. 1. There is no allegation against the pctitioner Nos.2 to 4. In the further statement. CW- I states thai she does not know who the friend were. Petitioier No.1 threatened her with dire consequence at tne Family Court Raichur. In respect of 1 instance, the allegations are vague. The CW– 1 has not stated why she has not filed complaint immediately alleging cruelty and dowry harassment at the earliest. The conduct of CW- 1 in filing the complaint after grant of divorce suggests dubious intention on the part of CW- 1. The averment in the complaint discloses that CW- 1 was aware of petition filed for conjugal rights and petition for divorce. CW- I could have contested the said case and prove her theory. The facts reveal that, the petitioner No.1 is paying maintenance to CW- I and the said case is still pending. In the context of the facts stat.ed above, it is inferable that the ‘ornpIaint is gi cii with oblique motive oniy to harass the’ accuscd.In that view, the proceedings in C.C No. 144/2010 on the file of J.M.F.C lind Court at Raichur, are quashed.
Sitemeter
Live Feed
World Map
Paper In
Do not Copy
Categories
- Anti Rape Law
- Application Formats
- Circulars
- Cracking 498a
- Data & Statistics
- Domestic Violence Act 2005
- Fighting KIT-498a
- Gender Neutral Laws
- IMD
- IPC
- IrBM
- Judgments
- Justice Shiv Narayan Dhingra
- MRA
- Multiple maintenance
- NCRB
- News
- Petition
- RTI
- SHWB
- Slogans
- Strategy
- Videos
Recent Posts
- Gujarat HC-CrPC 125 only allows Monthly, no lumpsum payments for Residence
- Madras HC- Police to file perjury under CrPC 340 against wife for filing forged documents.
- CIC-Husband entittle to get copies of complaints filed by his wife under RTI Act
- हिंदू विवाह अदिनियम् -हिन्दू विरोदी व पक्ष पाती
- CALCUTTA HC:- Coming with unclean hands – disqualifies litigant from obtaining any relief
- Movie Review – Dawat-e-Ishq
- Good Women vs Bad Men—An insight into media gender stereotyping
- False Rape Statistics—Young love often reported as rape in our ‘cruel society’ – The Hindu
- CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
- Dowry law misused by disgruntled housewives, stop automatic arrests: SC
Disclaimer:
The family of the writer was tortured by the Indian Law which are bias against the Indian Husband. Thousands of 498A, DV Act 2005 & Maintenance cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.
Gladiator 