IPC 498A/323/504/506/DP 3&4 Quashed-Uttaranchal High Court

Dhiri Singh & 3 Others vs State Of Uttarakhand & Another on 26 August, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION No. 584/2007 (Under Section 482 of the CrPC)

Dhiri Singh & 3 Others …….Applicants Versus

State of Uttarakhand & Another ……Respondents

Mr. S.K. Mandal, Advocate, for the applicants. Mr. P.S. Bohara, Brief Holder, for the State/respondent no. 1. None for the respondent no. 2.

26th August, 2011

Hon’ble Servesh Kumar Gupta, J.

By way of this Criminal Miscellaneous Application, the applicants have prayed for quashing of the proceedings of Complaint Case No. 984/2007, titled as Smt. Rajbala v. Dr. Anil Kumar and 4 others, under Section 498A, 323, 504, 506 IPC and one punishable under Section 3/4 of the Dowry Prohibition Act. The applicants have also prayed to quash the summoning order dated 7.6.2007 passed in the said complaint case by the Judicial Magistrate, Khatima, District Udham Singh Nagar.

2. It is pertinent to mention that that the opposite party no. 2 Smt. Rajbala has been served sufficiently and Vakalatnama, on her behalf, has been filed by Sri Tumul Nainwal, Advocate. But none has turned up on her behalf to contest this petition. So, this Court has given hearing to the learned Counsel of the applicants only.

3. Having heard the matter in controversy, it appears that Smt. Rajbala was married to Dr. Anil Kumar on 29.1.2007. The married life of the couple went peaceful for just 2

three months only, and thereafter differences cropped up between the couple. It transpires that on 15.5.2007, Dr. Anil Kumar sent a notice through his Advocate to Smt. Rajbala calling upon her to join his company. The allegations, which Smt. Rajbala has made in her reply dated 24.5.2007, to the said notice are that her husband is impotent and unable to consume the marriage, whereas the counter allegation raised by Dr. Anil Kumar in his notice dated 15.5.2007 is that Smt. Rajbala did not submit herself for co-habitation during the period of three months of her stay, as aforementioned. Smt. Rajbala left her husband’s home on 30.4.2007 and came to her parent’s house at Khatima, District Udham Singh Nagar, and thereafter filed her complaint on 31.5.2007 for the offence of Section 498A, 323, 504, 506 IPC and one punishable under Section 3/4 Dowry Prohibition Act.

4. After recording the statement of the witnesses under Section 200 and 202 CrPC and taking on record other necessary evidence, the Judicial Magistrate, Khatima took cognizance of the offence and passed the impugned summoning order on 7.6.2007 against the applicants as well against Dr. Anil Kumar (husband of complainant Smt. Rajbala).

5. Dr. Anil Kumar (husband) is not an applicant in this petition. Only Sri Sultan Singh (father-in-law), Smt. Munni Devi (mother-in-law), Sri Dhiri Singh (fufa) and Sri S.K. Sinha (brother-in-law of Dr. Anil Kumar) have approached this Court by way of this petition.

6. It is also pertinent to mention that after filing the impugned complaint on 31.5.2007, Smt. Rajbala also filed a petition on 4.6.2007, under Section 125 CrPC, before the 3

Family Judge, Udham Singh Nagar, seeking maintenance for herself from her husband.

7. Perusal of the averments stated in the complainant, prima facie shows that Smt. Rajbala, in order to create jurisdiction of courts at Khatima, has alleged that on 23.5.2007, all the accused persons came to her parent’s house at Khatima. No sooner did they arrive there, they began hurling abuses and used filthy language and asked her as to why she did not reach to her in-laws’ house along with rupees two lakhs and a computer also. While they were being consoled by the parents of Smt. Rajbala, the accused persons allegedly began to beat the complainant with kicks and fists and they also strived to strangulate her by pressing her throat.

8. This story itself does not at all inspire confidence. It seems improbable that the husband of a newly wedded bride, just within four months of their marriage, will come along with his old aged parents and other near relatives and commit the offence of such a gravity as narrated herein above. Certainly, the averments made in the complaint are highly exaggerated by Smt. Rajbala with all the possible embellishment, and prima facie not believable, at least against the aforenamed applicants. Hence, the applicants cannot be left to suffer on the basis of such a fickle complaint. Accordingly, this Court is of the view that the entire proceedings of the impugned complaint case are liable to be quashed except in respect of Dr. Anil Kumar (husband).

9. Accordingly, the petition is allowed. The proceedings drawn against the applicants Sri Sultan Singh, Smt. Munni Devi, Sri Dhiri Singh @ Bhiri Singh and Sri S.K. Sinha in the Complaint Case No. 984/2007 pending before the Judicial Magistrate, Khatima, and the order of cognizance dated 4

7.6.2007, passed against these applicants are hereby quashed. However, the trial against Dr. Anil Kumar shall proceed as per law. It is made clear that the observations made by this Court in the body of the judgment shall not in any way prejudice the trail against Dr. Anil Kumar.

10. Let a copy of this judgment and order be sent to the court concerned so that the trial against the accused Dr. Anil Kumar may proceed further.

(Servesh Kumar Gupta, J.)

26.8.2011

Bombay HC allows Quashing IPC498A on application of complainant and accussed

Bombay High Court

Jasmine Vipul Bhatia Alias …

vs

The State Of Maharashtra on 20 February, 2004

Equivalent citations: II (2004) DMC 162, 2004 (3) MhLj 262

Author: R Desai

Bench: R Desai

JUDGMENT

Ranjana Desai, J.

1. Petitioner 1 is the original complainant in case No. 285/P/96 (C.R. 322/95) pending before the Metropolitan Magistrates 31st Court, Vikhroli, Mumbai. She was married to petitioner 2 Vipul Narottam Bhatia on 23rd January, 1995. Petitioner 3 Purnima Narottam Bhatia is the sister of petitioner 2 and petitioner 4 Narottam Haridas Bhatia is the father of petitioner 2.

2. Due to difference of opinion petitioner : could not pull on with her husband. They started residing separately from 14th February, 1995. On 6th February, 1995 petitioner 1 had filed a complaint with Pant Nagar Police Station against rest of the petitioners inter alia under Section 498A read with Section 34 of the Indian Penal Code. It was registered as C.R. No. 322/95.

3. Admittedly on 26th November, 1996, the marriage between petitioner 1 and petitioner 2 was dissolved by consent decree of divorce. Thereafter petitioner 1 got re-married and she is now staying abroad.

4. In view of the amicable settlement of disputes, the petitioners have prayed that Criminal Case No. 285/5/96 pending in the Metropolitan Magistrate’s 31st Court, Vikhroli, Mumbai, be quashed. This is a rather unusual petition where the complainant and the accused have approached this court for quashing criminal cases filed at the instance of the complainant. The question is whether this court can quash the pending criminal proceedings which involve non-compoundable offence.

5. Mr. Mundargi, learned counsel appearing for the petitioners has placed heavy reliance on the decision of the Supreme Court in B.S. Joshi and Ors. v. State of Haryana and Anr., . He

contended that though offence under Section 498A of the Code is not a compoundable offence, this court can in its jurisdiction under Section 482 of the Criminal Procedure Code (“the Code” for short) quash the pending prosecution involving the said offence because under the changed scenario, if prosecution is allowed to continue it would result in abuse of process of Court.

6. I find substance in Mr. Mundargi’s contention. In State of Karnataka v. Muniswamy and Ors., the Karnataka High Court had quashed the proceedings initiated against the respondent therein under Section 324, 326, 307 read with 34 of the Indian Penal code on the ground that there was no sufficient ground for prosecuting them. The State challenged the High Court’s order in the Supreme Court. The Supreme Court came to a conclusion that the evidence collected by the prosecution was woefully inadequate for connecting the respondents with crime. There was no material on record on which the court could reasonably convict the accused and hence the High Court was justified in quashing the proceedings. The Supreme Court, therefore, held that the High Court was justified in coming to a conclusion that for meeting the ends of justice the proceedings against the accused ought to be quashed. This is how the Supreme Court described the High Court’s inherent powers.

“In exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be poermitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provisions which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

It is thus clear that one of the considerations which weighed with the Supreme Court was the fact that there was no possibility of a conviction, if the case had proceeded. The prosecution therein was a “lame prosecution”.

7. B.S. Joshi’s case (supra), in the facts before the Supreme Court, a wife had filed a case against her husband and members of his family under Section 498A, 323 and 406 of the Indian Penal Code. The parties thereafter settled the dispute. The marriage was dissolved. A petition then came to be filed in the High Court praying that the F.I.R. filed by the wife be quashed. The High Court refused to quash the F.I.R. on the ground that the offences were non-compoundable. The Supreme Court referred to its judgment in Muniswamy’s case (supra) and held that where the parties had amicably settled their matrimonial disputes to secure the ends of justice quashing of F.I.R. becomes necessary. The Supreme Court observed that in such a situation Section 320 of the Code would not be a bar to the exercise of power of quashing. It was observed that power under Section 482 of the Code has to be exercised with utmost care and caution. Its exercise would depend upon the facts and circumstances of each case. The sole purpose of exercise of this power is to prevent abuse of process of the court or otherwise to secure the ends of justices. The Supreme Court observed that in the facts of the case before it, the wife had filed an affidavit that the F.I.R. was registered due to temperamental differences. There may be many reasons for not supporting the imputations. In such reasons for not supporting the imputations. In such eventuality there would almost be no chance of conviction and, therefore, it would not be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. In this view of the matter the Supreme Court quashed the F.I.R.

8. The above judgments of the Supreme Court would be applicable to the present case also. It is true that offences which are not mentioned in Section 320 of the Code cannot be compound. Admittedly the offence under Section 498A of Indian Penal Code involved in the instant complaint cannot be compounded. But the petitioners are not seeking compounding of the said offence. The petitioners want the complaint to be quashed. The Courts of law should allow prosecution of the perpetrators of crime so that they are punished, if found guilty. But the courts cannot be persecutors. Depending on facts and circumstances of each case the court can always exercise its powers under Section 482 of the Code to quash a complaint, where the parties no longer bear any grudge against each other and want to bury their past. Particularly in matrimonial matters where there is an amicable settlement, allowing the prosecution to continue may be counter productive. When the chances of the prosecution ending in conviction are nil allowing such prosecution to continue would amount to abuse of process of court and quashing such proceedings would secure ends of justice. Quashing of such prosecutions would also lighten the burden of the courts, making it possible for tem to concentrate on other important cases. But this does not mean that powers under Section 482 of the code can be used in every case where parties come up with a case that there is a settlement. The gravity of the offence, the circumstances under which it was committed, the status of the victim and other attendent circumstances must be weighed by the court. This power has to be used with great care and circumspection and in exceptional cases. What may apply to matrimonial cases may not apply to other cases. Order quashing a proceeding would not create a precedent and each case will have to be dealt with having regard to its pecular facts and circumstances.

9. In the present case the parties have settled their disputes. The marriage is dissolved. Petitioner 1 has re-married and she is happily staying abroad. She does not want to prosecute her complaint. The prosecution can, therefore, be described as a lame prosecution. In such circumstances allowing the proceedings to continue would amount to abuse of process of the Court. It would not be in the interest of parties. Ends of justice would be secured, if the prosecution is quashed. Hence Criminal Case No. 285/P/96 pending before the Metropolitan Magistrate’s 31st Court, Vikhroli, Mumbai is quashed.

10. Petition is disposed of.

Bombay High court allows compounding of IPC 498A in MM court

Bombay High Court

State Of Maharashtra

vs

Madhu Bhisham Bhatia And Ors.

on 16 February, 2004

Equivalent citations: I (2005) DMC 156, 2004 (3) MhLj 303

Author: P Gaikwad

Bench: P Gaikwad

JUDGMENT

P.B. Gaikwad, J.

1. State has filed appeal challenging the order passed by Metropolitan Magistrate 31st Court, Vikroli, Bombay dated 13th November, 1992 acquitting the accused for the offence punishable under Section 498-A of Indian Penal Code as the offence has been duly compounded. In the appeal I heard Shri D. P. Adsule, A.P.P. for State, Respondents though served remained absent. It is submitted by Shri Adsule, A.P.P. that the offence under Section 498-A is not compoundable, however, the Metropolitan Magistrate, 31st Court, Vikroli, Bombay allowed the parties to compound the matter and accordingly acquitted the accused relying on the issue laid down in 1992 Criminal Law Journal, page 2106.

2. The facts in brief leading to the present appeal are that the marriage of complainant Bhavna took place with accused No. 1 in January, 1987. After her marriage she started residing with her husband along with her brother-in-law accused No. 2, mother-in-law accused No. 3 and father-in-law accused No. 4. It is the allegation that accused Nos. 1 to 4 then started harassing, ill-treating, maltreating the complainant and used to demand foreign goods. It is alleged that in the month of July, 1992 the accused demanded the cash amount of Rs. 15000/- and wireless telephone. The complainant informed about the said unlawful demands to her parents, those who have managed to pay the amount of Rs. 15,000/- to the accused/respondent. However, even thereafter ill-treatment, harassment continued at the hands of accused to complainant, accordingly complaint was filed against accused Nos. 1 to 4 by the complainant on the basis of which Crime No. 198 of 1992 was registered at Pantnagar Police Station.

3. The Police after investigating the above crime submitted charge-sheet. On 13th November, 1992 the complainant filed an application for permission to compound the offence, A.P.P. objected to allow the said application on the ground that offence under Section 498-A is not compoundable, in view of Section 320 of Criminal Procedure Code the Metropolitan Magistrate, 31st Court, Vikroli, Bombay, however, after hearing the parties allowed the said application filed by complainant and allowed the parties to compound the said criminal case and accordingly after recording the compromise acquitted the accused, the said order has been finally challenged by the prosecution.

4. Apparently on perusal of Section 498-A of Indian Penal Code and Section 320 of Criminal Procedure Code it is clear that offence under Section 498-A is not compoundable. Reference in respect is necessary to the application filed by the complainant to compound the case. According to her she lodged complaint against her husband, mother-in-law, father-in-law and brother-in-law on 23rd June, 1992 at Pantnagar Police Station. She further made clear in the application that presently she is residing with her husband and with other family members of her husband. It is clarified that the complaint was filed on account of some differences between her and her husband however, at present the dispute is settled and they are living happily, peacefully and therefore, she does not want to proceed against her husband and other family members, accordingly a request is made for permission to compound the said criminal case. Though the A.P.P. objected the Metropolitan Magistrate, 31st Court, Vikroli, Bombay has granted permission to Smt. Bhavna i.e. complainant for compounding the offence under Section 498-A of Indian Penal Code, as she is residing with her husband and other accused persons. The permission is granted considering her own welfare and welfare of accused persons and in view of the decisions 1992 Cri.L.J. 2106, Suresh Nathamal Rathi v. State of Maharashtra and Ors. A reference in this respect is necessary to 1992 Criminal Law Journal, page 2106, Suresh Nathamal Rathi v. State of Maharashtra and Ors. It is observed in the said Authority to the following effect:–

“A duty is cast upon the Court in first instance, in matrimonial cases where it may appear that there may be chance of saving a marriage, to make ever endeavoured to bring about reconciliation between the parties. Both from the personal and social point of view, stability of marriage has certain value, the duty is imposed on every Court to the Supreme Court.” It is further observed in the said authority to the following effect:–

“While granting permission to compound the offence, particularly under Section 498-A of Indian Penal Code, peculiar and special circumstances are to be considered and if considering the special and peculiar circumstances, if the trial Court is satisfied, then only parties in the matrimonial cases, keeping in mind the interest of the couple and its impart on the Society.”

A reference is also necessary to one another authority, viz. Judgment 2003(3) SC 277, B. S. Joshi and Ors. v. State of Haryana and Anr.

Section 498-A and 406 of Indian Penal Code – Quashing of criminal proceedings – Scope of the inherent powers of the High Court -Matrimonial discord – wife filing criminal complaint against husband under Section 498-A and 406 of Indian Penal Code – Subsequent settlement of disputes and differences between the couple and both agreeing for mutual divorce and filing petition accordingly – Wife thereupon filing petition praying for quashing of the FIR – State however opposing the petition – High Court dismissing the petition holding that since the offences under Sections 498-A and 406 of Indian Penal Code are compoundable, the inherent powers of the Court under Section 482 of the Code cannot be invoked to by-pass the mandatory provisions of Section 320 of the Code — whether the High Court justified in refusing to exercise its power to quash the proceedings. Allowing the appeal held that if for the purposes of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of the power of quashing. The Court has a duty to encourage genuine settlements of matrimonial disputes. Where chance of an ultimate conviction is bleak, the Court while taking into consideration the special facts of a case can quash the criminal proceedings. Any hyper-technical view on the provisions of Section 498-A would be counter productive and act against the interests of women and against the object for which the provision was enacted.”

5. Thus in view of the ratio laid down in the above authorities considering the factual aspects in the present case as the application to compound the above criminal case is filed by the wife herself contending that presently she is residing with her husband and other family members including father-in-law, mother-in-law and brother-in-law and that whatever differences between the parties has now settled and considering this above aspect the Metropolitan Magistrate, 31st Court, Vikroli, Bombay has allowed the application and granted permission to compound the matter. Thus I find that it is in the interest of a woman and it is further seen the settlement between the parties being genuine so far as regarding their matrimonial dispute is concerned and in view of this position I find that the appeal filed by the State deserves to be dismissed.

In the result appeal is dismissed.

Patna HC-IPC 498A/323/313/307 DP3/4 Quashed No offence made out as per FIR

IN THE HIGH COURT OF JUDICATURE AT PATNA

Cr. Misc. No. 24423 of 2004:

(1) Dinesh Kumar Lal, son of Mohin Chander Lal,

(2) Gayatri @ Nilu, wife of Dinesh Kumar Lal, both of village Kashipur, Near Dr. B.N. Prasad, PS Town, District Samastipur Petitioners. with

Cr. Misc. No. 24437 of 2004:

(1) Dr. Mukesh Kumar, son of Babu Prasad, resident of Ashirwad Apartment, 30/D, Anandpuri, Near Himgiri Apartment, PS Sri Krishnapuri, Patna. (2) Smt. Hemlata, wife of Dr. Mukesh Kumar.

(3) Goutam @ Raja, son of Dr. Mukesh Kumar Petitioners. Vs.

(1) The State of Bihar,

(2) Menka, wife of Tarak Nath, daughter of Lallu Prasad Hemant, resident of Manju Niwas, Chitragupta Nagar, Bahadurpur, Kankarbagh, Patna Opp. Parties in both the cases. For the petitioners in both the cases :

Mr. Ashwani Kumar Singh, Senior Advocate, Mr. Shivendra Kumar Sinha, Mr. Pankaj Kumar Sinha and Mr. Rakesh Kumar Sinha, Advocates.

For the State : Mr.J.K. Singh No.1, A.P.P. in Cr.Misc.No. 24423/2004. For the State : Mr. Matloob Rab, A.P.P.in Cr.Misc. No. 24437 of 2004. 23 13-1-2011 Heard learned counsel for the petitioners and the informant. Petitioners Dinesh Kumar Lal and Gayatr @ Nilu of Cr.Misc.No. 24423 of 2004 are the brother-in-law and married sister-in- law of the complainant Menka. The petitioners of Cr. Misc. No. 24437 of 2004 likewise are also the married sister-in-law, brother-in-law and their son Gautam, who was minor at the time of institution of the case. They have come to this court for quashing of the order, dated 30.1.2003 passed by the Chief Judicial Magistrate, Patna in S.K. Puri P.S. Case No.10/2002 by which cognizance has been taken for the offences under sections 313, 498, 323 and 307/34 of the Penal Code and 3/4 of the Dowry Prohibition Act.

The date of marriage of the couple is 10.5.1989 and the case has been instituted on 5.2.2002 alleging that the complainant was tortured by her husband, the in-laws including these petitioners from the 2

date of her marriage till the date of lodging of the F.I.R. On perusal of the FIR it would appear that the allegations have been made that there was a demand of TV, washing machine and a car which led to the torture of the complainant. It has also been alleged that some time in the year 1993 the complainant was assaulted by mother-in-law, father-in- law and both the sisters-in-law and their husband, which led to a miscarriage. In the year 1998 it is said that a child was born which was very under-weight and this was because of the torture meted out by her in-laws. In the complaint petition she has also alleged that she left the in-laws’ house in 1993 and returned in the summer vacation in 1998, when it is said the aforesaid incident took place. She claims to have been living with her in-laws on the date on which the FIR has been instituted.

Counsel for the petitioners submits that the entire FIR has been exaggerated and the reasons for the break up of the marriage is incompatibility. It is submitted that the manner in which the narration has taken place indicates that it is completely false allegation considering the fact that the informant has made allegations against her in-laws relating to the years 1993 and 1998, although she had not taken any steps between the aforesaid period to lodge protest against the torture in any manner, or expressed her unhappiness to in-laws or parents or before the competent authority. It has also come on record that the husband i.e. Tarak Nath had instituted a matrimonial case on 19.1.2002 after which the present case was instituted. Before going any further I may state here that Dinesh Kumar Lal is working in the Sales Tax Department and was posted at 3

different places during the period when the marriage took place. It has specifically been asserted that Dinesh Kumar Lal was posted at Darbhanga between 1989 to 1995, Samastipur between 1995 to 2000 and at Begusarai between 2000 to 2002. His wife was living with him. Similarly Dr. Mukesh Kumar working in the Health Department since 1981 was posted at Bhagalpur in 1984, Barbigha in 1989 and at Bettiah since 1996 till 2002. The wives of the aforesaid two persons were living with them. It is also specifically stated that Dinesh Kumar Lal was married to Gayatri @ Nilu in 1983 whereas Dr. Mukesh Kumar was married to Smt. Hemlata in 1976. All these facts are not denied either in the counter affidavit filed on behalf of opposite party no.2, nor during arguments advanced in this court.

The submission on behalf of opposite party no.2 is that these persons could have easily been at the place of occurrence on the date on which Menka is said to have been assaulted. This court finds that such an argument and circumstance from which the court would infer that the sister-in-laws and their husbands were present in Patna to allegedly assault opposite party no.2 seems too far fetched vague and unbelievable. The sister-in-laws and their respective husbands are not supposed to be involved in the daily life of opposite party no.2 and her husband Tarak Nath. As such the allegation that they were present seems to be far fetched and has been included in the FIR with a view to put the entire family to harassment. Even the allegation that opposite party no.2 was assaulted by her mother-in-law, father-in-law or these petitioners which led to miscarriage seems to be unbelievable for the reason that at the time, when the said miscarriage took place or at the 4

time when under-weight baby was born to opposite party no.2, she or the family, had not raised any protest. It is only after a period of four to seven years, that such an allegation has been made against the petitioners. I, therefore, find that the allegation under sections 313 and 307 of the Penal Code is unbelievable as far as it concerns these petitioners.

In fact, this court also finds that the allegation that there was demand of a car, washing machine and the like has not specifically been attributed to the petitioners. In the FIR it has been said that on 11.5.1989 after the opposite party no.2 went to her matrimonial home, the mother-in-law, father-in-law, brothers-in-law, elder Nand Hemlata Devi along with these petitioners had raised a demand for a car, washing machine, TV and Mixi. Except for this one statement made at the beginning of the FIR, the allegations are not repeated anywhere else in the FIR. Any demand made for a car, TV or like would be for the benefit of the husband and can hardly be attributed to the sister-in-law, brother-in-laws who are separate unit and live in a different district altogether. The Supreme court has noticed in the case of Ramesh vs. State of T.N., (2005) 3 SCC 507 that in the anxiety to make the allegations look serious, quite often a exaggerated version is put forth in the complaint petition, making vague allegations involving all close relations of the family, some times even minor boys and girls. In such circumstances it would not be proper to allow such persons to face the rigors of a trial.

I may also point out that the husband of the complainant has moved this court for quashing of the allegations against him on various 5

grounds. This court in Cr.Misc.No. 10072 of 2003 found that no offence was made out under sections 307 and 313 of the Penal Code as far as it concerned husband Tarak Nath. The order of this court, dated 31.7.2007 was challenged by filing S.L.P. No. 527 of 2005 wherein the Supreme court held that from the FIR it is clear that the offence under section 313 of the Penal Code is made out and as such the High court was not justified in quashing the prosecution of the accused persons for the aforesaid offence. A separate quashing application was filed on behalf of the father-in-law and mother-in-law which was numbered as Cr.Misc. No. 24436 of 2004 disposed of on 31.7.2007. This court again interfered and quashed the cognizance taken under sections 313 and 307 of the Penal Code as well as sections 3/4 of the Dowry Prohibition Act, against the father-in-law and the mother-in-law. The in-laws being aggrieved by the order moved the Supreme court for quashing of the allegations under sections 498A and 323 of the Penal Court. The supreme court upheld the order of the High court. In view of the orders of the Supreme court I find that in fact if the allegations under sections 313 and 307 of the Penal Code are quashed against the mother-in-law and the father-in-law, it can hardly be held that these petitioners who lived in a different town, could be responsible for the allegations mentioned in the FIR. These allegations have been made after a great delay and are unbelievable on the face of it.

It has lastly been submitted on behalf of the petitioners that opposite party no.2 after her marriage and birth of the child was able to compete in the 41st Combined Competitive Examination and was 6

appointed as a Deputy Collector. She joined on the said post on 8.3.1999. It is submitted that her attendance register would indicate that she had only taken leave on 31.1.2002 which is the date on which she had come to institute this case. At the time of institution of this case, she was posted at Hajipur. This court cannot consider the attendance register produced on affidavit. It may be relevant for considering the probabilities of the allegations against the other accused persons during the trial. This court however may consider that opposite party no.2, as per her own case, while living with her in-laws and husband was able to prepare herself for competitive examination and succeeded and is now working in Bihar Government as Deputy Collector, which could have only been done with the cooperation of the family. In any event as far as these petitioners are concerned, this court, as already recorded above, does not find that any offence is made out against the petitioners under sections 498A, 323, 313 and 307 of the Penal code and 3/4 of the Dowry Prohibition Act. The impugned order, dated 30.1.2003 passed by the Chief Judicial Magistrate, Patna is hereby quashed so far it relates to the petitioners. These applications are allowed.

haque ( Sheema Ali Khan, J.)

HC: 498A Quashed against A2 to A5

IN THE HIGH COURT OF JHARKHAND, RANCHI.

Cr.M.P. No. 1155 of 2010

1.Ajit Kumar Rai

2. Laxmi Prasad Rai

3. Chanchala Devi

4.Mamta Devi

5.Anju Kumari

6.Dhrup Singh @ Dhrup Deo Singh .. Petitioners.

Versus

1. The State of Jharkhand

2.Rekha Devi Opp. Parties.

Coram :- Hon’ble Mr. Justice D.K.Sinha

For the Petitioners :- M/s.Ramesh Kumar Singh Kunal Kishore

Rakesh Kumar Advocates.

For the State :- Mr. Md. Hatim A.P.P. For the O.P.No.2 :- Mr. Kalyan Banerjee Advocate.

3/25.3.2011 The petitioners have invoked the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for quashment of their entire criminal proceeding including the order dated 3.10.2008 by which Sri. A.K. Dubey, the Judicial Magistrate,Ist Class, Dhanbad after enquiry, found a prima facie case under sections 498A and Section 494 of the Indian Penal Code against the petitioner No.1 Ajit Kumar Rai and under section 498A IPC against the remaining petitioners in C.P. Case No. 1477 of 2007, accordingly, summons were directed to be issued against all of them who were later on admitted to anticipatory bail.

2. The prosecution story in short, as per the complaint lodged by the O.P. No.2 Rekha Devi in the court of CJM, Dhanbad on 11.9.2007 was that she was married to the petitioner No.1 Ajit Kumar Rai in the year 2002 in the premises of Deoghar Temple and after marriage she went to her matrimonial home at Maniadhi P.S. Tundi within the district of Dhanbad . She narrated in the complaint that on the eve of marriage, Rs one lakh in cash, gold, furniture and utensils were given to them. She remained peacefully at her matrimonial home for one year but thereafter all the accused persons started perpetrating torture alleging that she could not be able to bear any child in the meantime. She further alleged that her mother-in-law, father-in-law, sister-in-law and husband used to administer two tablets in the morning and evening as a result of which her health deteriorated day by day. She was then taken away by her brother to parental home for her treatment and in the meantime, taking the benefit of her absence, the husband-petitioner No.1 solemnized second marriage with another girl on the instigation of other accused persons to which a panchayati was held and according to the resolution, she was allowed to stay at her matrimonial home but again her misery started and accused persons tried to create such a situation and to put such impression that she would be killed it continued to stay there. She was kept confined in a room without food and inhuman behaviour was extended to her and finally she was driven out by the accused persons by assaulting her. She any how reached her paternal home and narrated the occurrence to her brother. She then went to the Tundi police Station where she was advised to institute complaint case.

3. The learned counsel appearing for the petitioners submitted that taking of cognizance of the offence is barred by jurisdiction. The cause of action arose within the jurisdiction of the Deoghar court but her complaint case was filed before the CJM Dhanbad. Admittedly, petitioner No.1 Ajit Kumar Rai is the husband, whereas the petitioners No.2,3,4 and 5 are the father-in-law, mother-in-law, second wife and sister of the husband of the complainant respectively. It would be relevant to mention from perusal of the complaint petition that the entire allegation was levelled either of perpetrating torture or solemnizing second marriage against the husband but all the members of his family, who were unconcerned with the affairs of the complainant and her husband, have been maliciously impleaded. It would be evident from the statement of the complainant recorded on solemn affirmation by the CJM wherein she narrated that when she visited her parental home to attend the marriage of her brother, her husband solemnized second marriage with another girl Mamta Devi and thereafter she was driven out from her matrimonial home by her husband and she had no where alleged that she was assaulted by any other member/ in-laws of her matrimonial home.

4. Mr.Kalyan Banerjee, the learned counsel appearing on behalf of the O.P. No.2 submitted that the complainant was driven out from her matrimonial home after her husband solemnized second marriage with another girl without seeking decree of divorce and that such second marriage could be possible only with the consent of the other members of his family and therefore they cannot be exonerated from their criminal liability who abetted which led to the complainant to suffer miserable and deserted life. The entire occurrence took place within the jurisdiction of the Dhanbad court except the marriage of the complainant with the petitioner No.1 Ajil Kumar Rai which was solemnized at Deoghar Temple.

5. Heard Mr. Hatim the learned A.P.P. appearing on behalf of the State.

6. Having regard to the facts and circumstances of the case, composite reading of the complaint petition as well as the statement of the complainant recorded on solemn affirmation, I find that the husband-petitioner No.1 was the principal accused who perpetrated torture mentally and physically to her and that he solemnized second marriage with another girl in the life time of the complainant. I further find that though some overtact alleged to have been attributed against the father-in-law, mother-in-law and sister-in-law of the complainant who were the petitioners No. 2,3 and 5 herein but such allegation could not be substantiated in the statement of the complainant on her solemn affirmation and therefore, I find that the facts alleging against all the petitioners in the complaint case could not be substantiated in her statement recorded on solemn affirmation. No overt act has been attributed against the in-laws except the husband and false implication of the in- laws, in the circumstances has been deprecated by various decisions .

7. In the result I find prima facie case against the petitioner No.1 Ajit Kumar Rai to proceed against him for the offence under sections 498A/494 of the Indian Penal Code but for the reasons discussed above I find that it is a fit case for quashment of the criminal proceeding of the other petitioners viz Laxmi Prasad Rai,Chanchala Devi, Mamta Devi,Anju Kumari and Dhrup Singh @ Dhrup Deo Singh in C.P.Case No. 1477 of 2007 pending in the court of Sri.A.K.Dubey, Judicial Magistrate, Ist Class Dhanbad. Accordingly, they are exonerated from their criminal liability. This petition is allowed in part in the manner indicated above. The trial court is directed to proceed against the husband- petitioner No.1 Ajit Kumar Rai in accordance with law.

 

IPC 498a Quashed-FIR to harras husband and his family,abuse of process of law…

Supreme Court of India

Bench: G Singhvi, A K Ganguly

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1512 OF 2010

(Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus

State of Jharkhand & Another ….Respondents JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

 

2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.

 

3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:

The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.

4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.

 

5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.

6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.

7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.

8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offence could be made out against them.

9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:

“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”

10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.

11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.

12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.

13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their re- settlement may not be impossible.

14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?

15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.

16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

 

17. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

18. This court had occasion to examine the legal position in a large number of cases. In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.

20. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551, a three-Judge Bench of this court held as under:- “…..In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”

 

21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:

“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

22. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:

“(1) Where the allegations made in the first information report or the complaint, 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 not 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 a 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 a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding 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.”

23. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.

24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-

“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-

“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”

26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

 

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-

“498-A. 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 wilful 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; or

(b) harassment of the woman where such harassment is with a view to coercing her or 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.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

 

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.

……………………………J.

(Dalveer Bhandari)

……………………………J.

(K.S. Radhakrishnan)

New Delhi;

August 13, 2010

 

IPC 498a Quashed-Jurisdiction Issue

IN THE HIGH COURT OF JUDICATURE AT PATNA

Cr.Misc. No.5944 of 2008

1. Maulana Abdul Razak @ Abdul Razak, Son of Md. Ismile.

2. Md. Ismile, Son of Rawawat Hussain.

3. Sainab Khatoon @ Saibunisha, wife of Md. Ismile. All residents of Mohalla- 11C, Teljala Shivtalla Line, P.S. Tapaya, District- Chaubis Pargana, Kolkatta(W.B.)……………………….Petitioners. Versus

1. The State of Bihar.

2. Darkhsa Pravin, daughter of Abdul Zabbar, wife of Maulana Abdul Zabbar, resident of Village- Bhadas, P.S. and District- Khagaria. ………………Opposite Parties. ———–

For the petitioners: M/S. Bhola Prasad and Tarun Prasad Mandal, Advocates.

For the State : Mr. Rajesh Kumar, A.P.P. ———–

 

04. 01.09.2010. Heard learned counsels for the petitioners and the State.

In spite of valid service of notice on opposite party no.2, none appears on behalf of the opposite party no.2.

In the present proceeding, the quashing of the order dated 15.06.2004 passed by the learned Chief Judicial Magistrate, Khagaria, in complaint case no. 184C of 2004 has been prayed for whereby cognizance has been taken under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The main grounds for quashing the impugned order are as follows:-

i) The Khagaria court has no territorial jurisdiction as no cause of action arose in Khagaria rather all the occurrences are alleged to have occurred in West Bengal.

ii) The impugned order has been passed only on the examination of the complainant on S.A. as no other witnesses have been examined.

iii) Earlier complaint with similar allegation being complaint case no. 465C of 2000 was dismissed on 14.08.2001 on the basis of compromise and lack of evidence as contained in Annexure-2.

iv) The petitioner no.1 has given divorce through letter to opposite party no.2 as contained in Annexure-3/1.

Though learned counsel for the petitioners has confined his submissions only on the ground that the learned Chief Judicial Magistrate, Khagaria, has no territorial jurisdiction to take cognizance in the matter as no cause of action arose within the territorial jurisdiction of Khagaria.

In the present petition, petitioner no.1 is the husband and the petitioner no.2 is father-in-law whereas petitioner no.3 is mother-in-law.

It is alleged that the complainants marriage took place on 06.07.1996 but there has been a consistent demand of Rs. 50,000/- and due to non-payment of the same, the complainant-opposite party no.2 was being assaulted which ultimately led to lodging of complaint case no. 465C of 2000 against all the three accused persons which was ultimately disposed off on the basis of the compromise. Thereafter, the opposite party no.2 was being properly treated but sometimes thereafter the torture started again.

The first allegation is dated 01.01.2002 when the witness nos. 1 and 2 went to meet the complainant then the opposite party no.2 was being abused by the accused persons when the father of opposite party no.2 forbade the accused then it was conveyed that unless one lac rupees is paid, the opposite party no.2 will not be allowed to remain in the house and ultimately opposite party no.2 was being assaulted badly by the accused persons. Thereafter, all the belongings of opposite party no.2 was taken away and she was forced to leave the house then the father of opposite party no.2 brought her to his house and got her treated. It is further alleged that subsequently the opposite party no.2 went to the in-laws house on 31.07.2002 at Kolkata where the child of opposite party no.2 was being treated and the second child was born on 31.07.2003.

The second allegation is dated 26.01.2004, when the opposite party no. 2 was again being assaulted and on information being received the father of opposite party no.2 went to the accuseds house and brought the opposite party no.2 and got her treated. The third allegation is dated 30.03.2004 when the parents of opposite party no.2 sent certain persons for reconciliation then they were also being misbehaved and the belongings of opposite party no.2 were also not returned.

From perusal of the complaint, it appears that broadly there were three allegations. They are dated 01.02.2002, 26.01.2004 and 30.03.2004 as mentioned in paragraph nos. 7, 12 and 17 of the complaint.

All the aforesaid three alleged occurrences as per the complaint had taken place in the house of the accused persons and according to the own averment of the complainant, as the accuseds address has been given in the complaint as residents of 24 Parganas District of the West Bengal. Hence, admittedly no cause of action arose within the territorial jurisdiction of Khagaria.

It is further submitted that earlier the complainant filed a complaint being complaint case no. 465C of 2000 which was disposed off due to non-prosecution/non- production of the witnesses on 14.08.2001 vide Annexure-2 wherein the complainant made the statement that she is staying with her husband at Kolkata which is apparent from the order dated 14.08.2001. Hence, the present prosecution is a malicious prosecution.

Section 177 Cr. P. C. enumerates the ordinary place of inquiry and trial as every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.

Learned counsel for the petitioners has placed reliance on the case of Dipanker Dutt Gupta & Ors. Vs. The State of Bihar & Ors reported in 2007(4) P.L.J.R. 528 which lays down that under Section 177 Magistrate has no jurisdiction to deal with an enquiry or trial in respect of the case involving cause of action having not taken place in his territorial jurisdiction.

The other judgment relied by the learned counsel for the petitioners is the case of Md. Kalim and ors. Vs. The State of Bihar & Anr reported in 2009(1) P.L.J.R. 111 which also lays down that the Magistrate has no jurisdiction under Section 177 Cr. P. C. to deal with an enquiry or trial in respect of the case involving cause of action having not taken place in his territorial jurisdiction.

The aforesaid judgment has been passed placing reliance on a judgment of Apex Court in the case of Y. Abraham Ajith Vs. Inspector of police reported in 2004(8) S. C. C. 100.

The expression “cause of action” has acquired judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction but also the infraction, coupled with the right itself.

The expression “cause of action” has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.

The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal. In Halsburys Laws of England (4th 8 Edn.) “cause of action” has been defined in the following words:-

” a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action”.

Admittedly, all the three incidents in the present case, have occurred within the territorial jurisdiction of West Bengal and not in Khagaria hence it appears that no cause of action on the own averments of the complainant arose within the territorial jurisdiction of Khagaria.

It is further submitted by the learned counsel for the petitioners that the complainant of her own went to reside with the parents and she was never been forced to leave the house of the husband and still husband is ready to keep the complainant as wife with full dignity and honour. In the similar situation as discussed above, the Apex Court in the case of Bhura Rai and ors Vs. State of Rajasthan reported in 2008(3) P.L.J.R. S. C. 367 quashed the criminal prosecution. Since cause of action did no arise where the complaint was filed and the complaint was directed to be returned to the complainant with a liberty to the complainant to file the same before appropriate court if complainant so wishes. It is true that Section 177 of Cr. P. C. requires every offence to be enquired, tried by a court in whose local jurisdiction it was committed but Section 460 of Cr. P. C. prescribes certain situations where the irregularities which do not vitiate the proceedings and one of such situation under Section 460(e) is to take cognizance of offence under clause(a) or clause (b) of sub-section (1) of Section 190 by any Magistrate not empowered by law to do. The provision of section 460 (e) Cr. P. C. is further clarified by the provision enumerated in Section 462 Cr. P. C. which reads as follows:-

“462. Proceedings in wrong place- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice”.

The word “irregularity” has been defined in the Blacks Law Dictionary as” something irregular” specially an act or practice that varies from normal conduct of action” whereas “illegality” has been defined as “an act that is not authorized by the law”. It is true that the order taking cognizance by a court having no territorial jurisdiction can be treated as irregularity under Section 460 of Cr. P.C. whereas from the reading of Section 462 of Cr. P. C. it appears that the finding, sentence or order of the Criminal Court shall not be set aside merely on the ground that it has been passed by a wrong court unless it appears that such error has in fact occasioned a failure of justice.

Considering the provisions of Sections 177, 460 and 462 of Cr. P. C. in my opinion where the cause of action is such where the jurisdictions are overlapping then the order can be treated as a irregular but in the present case where the complainant has herself admitted that the accused persons are resident of West Bengal where all the three alleged incidents have taken place hence it appears that the complaint was deliberately filed before a wrong court. In such a situation the impugned order can not be treated as irregular rather it is in contravention of the provisions of Section 177 Cr. P. C.

When the question of territorial jurisdiction is raised in any proceedings it has to be seen that at what stage of the proceeding it is raised. If it is raised at the initial stage then it is always advisable to decide the issue immediately without allowing the proceeding to continue further wasting precious time of the court. In the present proceeding the question of territorial jurisdiction has been raised at the cognizance level.

The power under Section 190 Cr. P. C. of taking cognizance by the court does not only mean that the court has to see the sequence of facts which constitutes of offence but has also to see prima facie that those facts constituting the offence have occurred within the territorial jurisdiction of the court concerned who is exercising the powers under Cr. P.C. because if the latitude is given in pursuance to the provision under Sections 460 and 462 of Cr. P. C. the litigants will start filing the criminal cases at any place of their choice taking it for granted that any such order will not be quashed being treated as irregularity which will be violative of Provision of Sections 177 and 178 Cr. P. C.

So far as the provision of Section 460 Cr. P. C. is concerned, it prohibits the setting aside of any order merely on the ground of lack of territorial jurisdiction but it permits the setting aside if it has occasioned the failure of justice and in my opinion the complainant was conscious that all the causes of action arose within the territorial jurisdiction of West Bengal and admitted in the present complaint that the accused persons are residents of West Bengal. It was also admitted in previous proceedings that both the complainant and her husband are residing presently in Kolkata hence the complaint was deliberately filed at Khagaria because it was convenient for the complainant, since she was residing at Khagaria with her parents.

Hence, in my view since the accused persons are admittedly resident of Kolkatta and all the causes of action arose within the territorial jurisdiction of West Bengal therefore, the impugned order has been passed by a court having no territorial jurisdiction, has in fact occasioned the failure of justice.

In the circumstances and the discussions made above, the order dated 15.06.2004 including the entire prosecution of complaint case no. 184 C of 2004 passed by the learned Chief Judicial Magistrate, 14

Khagaria, is hereby quashed. The present quashing application stands allowed. However, the complainant if so advised may receive the complaint from the court of leaned Sub Divisional Judicial Magistrate, Khagaria, for presenting before the court of appropriate jurisdiction if any such prayer is made, then the learned Sub Divisional Judicial Magistrate, Khagaria, will return the complaint to the complainant.

U.K. (Dinesh Kumar Singh,J)

 

IPC 498a Quashed-Mutual Compromise-Complainant Filed petition for Quashing

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3760 of 2010()

 

1. HASEENA.K.V,AGED 22 YEARS,

… Petitioner

Vs

 

1. STATE OF KERALA-STATION HOUSE OFFICER, … Respondent

2. SIDDIQUE,AGED 30 YEARS,S/O.MAMMADKOYA,

3. BICHEEBI,AGED 50 YEARS,W/O.MAMMADKOYA,

4. SAFIYA,AGED 25 YEARS,D/O.MAMMADKOYA,

5. ANWAR,AGED 30 YEARS,S/O.SIDDIQUE,

6. HABEEB,AGED 25 YEARS,S/O.SIDDIQUE,

7. KOYAMON ALIAS KOYAKKA,AGED 50 YEARS, For Petitioner :SRI.MANJERI SUNDERRAJ For Respondent : No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :13/09/2010

O R D E R

M.Sasidharan Nambiar, J.

————————–

Crl.M.C.No.3760 of 2010

————————–

ORDER

Petitioner, the defacto complainant in C.C.Nos. 477/2009 and 542/2009 on the file of Judicial First Class Magistrate’s Court-III, Kozhikode and C.C.No. 513/2007 on the file of Judicial First Class Magistrate’s Court-I, Kozhikode, filed this petition under Section 482 of Code of Criminal Procedure to quash the proceedings. C.C.No.477/2009 was taken cognizance on Annexure-2 final report for the offences under Sections 498A of Indian Penal Code. C.C.No.542/2009 was taken cognizance on Annexure-4 final report for the offences under Sections 342 and 323 read with Section 34 of Indian Penal Code. C.C.No.513/2007 was taken cognizance on Annexure-6 final report for the offences under Sections 341 and 323 of Indian Penal Code. This petition is filed by the defacto complainant in C.C.No.477/2009 stating that entire disputes with respondents 2 to 7, the accused in the cases, were settled amicably, evidenced by Annexures-7 to 9 joint petitions. It is submitted that consequent to the settlement, she has no subsisting grievance against the accused and therefore, all the cases are to be quashed.

2. Learned Public Prosecutor was heard.

3. C.C.No.477/2009 was taken cognizance for the offence under Section 498A of Indian Penal Code on the allegation that petitioner was treated with cruelty by her husband and in-laws. Affidavit filed by the petitioner/defacto complainant establishes that entire matrimonial disputes were settled amicably. As held by the Apex Court in B.S.Joshi v. State of Haryana ((2003) 4 SCC 675), when the matrimonial disputes were settled, it is not in the interest of justice to continue the prosecution. C.C.Nos.513/2007 and 542/2009 were taken cognizance for the offences under Sections 341 and 323 read with Section 34 of Indian Penal Code. Petitioner is not the person to whom hurt was caused after wrongful restrainment. Hence, petitioner is not entitled to get those cases quashed. In any case, all the offences are compoundable under Section 320 of Code of Criminal Procedure. When the offences are compoundable, it is not for this Court to exercise the extraordinary jurisdiction to quash the proceedings. It is for the respective parties to approach the learned Magistrate for compounding the offences.

In such circumstances, petition is allowed in part. C.C.No.477/2009 on the file of Judicial First Class Magistrate’s Court-III, Kozhikode is quashed. 13th September, 2010 (M.Sasidharan Nambiar, Judge) tkv

 

IPC 498a Quashed-Complaint after Divorce-Malicious & Supression of Facts

Patna High Court

CRIMINAL MISCELLANEOUS No.11378 OF 2003 —-

In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. —-

1. SACHIDANAND SINGH, SON OF LATE PARMANAND SINGH

2. AGAM KUMAR SINGH, SON OF LATE PARMANAND SINGH

3. PANKAJ KUMAR, SON OF AGAM KUMAR SINGH

4. MADHUKAR KUMAR, SON OF AGAM KUMAR SINGH

5. SANYUKTA DEVI, WIFE OF AGAM KUMAR SINGH ALL ARE RESIDENT OF VILLAGE KAS TIKARI, POLICE STATION SULTANGANJ, DISTRICT BHAGALPUR. … … PETITIONERS.

Versus

1. THE STATE OF BIHAR

2. SHANTI DEVI, DAUGHTER OF LATE AYODHYAY MANDAL, RESIDENT OF VILLAGE SAUJUWA, POST OFFICE HATHIYOK, POLICE STATION ASARGANJ, DISTRICT MUNGER. … … OPPOSITE PARTIES. —-

For the Petitioners : M/S Krishna Prasad Singh, Sr. Adv. Mithilesh Kr. Singh, Adv.

For O.P. No.2 : M/S Bhola Prasad, Adv. Swapnil Kumar Singh, Adv.

For the State : Mrs.Indu Bala Pandey, A.P.P. —-

P R E S E N T

THE HON’BLE MR. JUSTICE RAKESH KUMAR —-

Rakesh Kumar,J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 17.4.2003 passed in Complaint Case No.1113 of 1999 by learned Chief Judicial Magistrate, Bhagalpur. By the said order, the learned Magistrate has taken cognizance of offence under Sections 498A, 323 and 341 of the Indian Penal code.

2. Short fact of the case is that opposite party no.2 filed a complaint, which was numbered as Complaint Case No.1113 of 1999 in the court of Chief Judicial Magistrate, Bhagalpur, alleging therein against all the petitioners for commission of offences under Sections 307, 376, 125, 147, 148, 325, 509, 498A, 323, 334, 352, 355, 358 and 34 of the Indian Penal Code. In the complaint petition, it was alleged that while the opposite party no.2 was returning from court after doing pairvi in her case and she arrived at a lonely place, all the aforesaid accused persons intercepted the complainant and forcibly took her to the house of accused persons where it was alleged that her husband petitioner Sachidanand Singh forcibly kept the complainant in a room and on force, she committed rape. It was alleged that accused persons were demanding huge amount as dowry from the complainant and she was pressurized to withdraw the case, which was instituted by her against the accused persons. On the aforesaid allegation, complaint petition was filed and after conducting enquiry, the learned Magistrate came to the conclusion that since the petitioner no.1 was husband of complainant offence under Section 376 of the Indian Penal Code was not made out. However, the learned Magistrate took cognizance of offence under Sections 498A, 323 and 341 of the Indian Penal code and directed for summoning the petitioners.

3. Aggrieved with the order of cognizance, all the petitioners approached this Court by filing the present petition, which was admitted on 20.10.2005. While admitting, it was directed that during the pendency of this application, interim order passed on 27.9.2004 shall remain operative. The order of stay is still contining.

4. Shri Krishna Prasad Singh, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the present complaint petition was filed maliciously as well as by way of suppression of material fact. Learned Senior Counsel has referred to Annexure-2 to the petition, which is decree prepared in Marriage Case No.4 of 1993. It was submitted that on contest, marriage of petitioner no.1 with opposite party no.2 was finally dissolved by the judgment and decree dated 4.5.1998. It was submitted that order was passed in presence of learned counsel for both the parties. It was submitted that since the marriage had already been dissolved, on contest, the opposite party no.2, by way of suppression of fact, filed the present complaint petition i.e. Complaint Case No.1113 of 1999 on 9.12.1999. It was submitted that in the complaint petition, the complainant had not even whispered that her marriage with petitioner no.1 was already dissolved by the court of competent jurisdiction and due to that reason, the learned Magistrate, while taking cognizance, had refused to take cognizance under Section 376 of the Indian Penal code. In some and substance, it was submitted that the prosecution in the present case was initiated maliciously and by way of suppression of fact and on those grounds, the entire prosecution as well as order of cognizance is liable to be set aside.

5. Shri Swapnil Kumar Singh, learned advocate appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioners. It was argued by him that complaint petition itself constitutes commission of offences committed by all the accused persons and the learned Magistrate had conducted thorough enquiry and thereafter, he had passed the order of cognizance. According to learned counsel appearing on behalf of opposite party no.2, there is no defect in the impugned order of cognizance and as such, according to him, the petition is liable to be rejected.

6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has supported the stand taken by Shri Swapnil Kumar Singh, learned counsel appearing on behalf of opposite party no.2.

7. Besides hearing learned counsel for both the parties, I have also perused the materials available on record. On going through the allegation made in the complaint petition itself, this Court is satisfied that the allegation appears to be doubtful. Moreover, in view of annexure-2 i.e. judgment and decree of divorce passed by the competent court in Marriage Case No.4 of 1993, it is evident that marriage of complainant with petitioner no.1 has come to an end on 4.5.1998. After the divorce decree, filing of the present complaint by the complainant makes it clear that the complaint was not filed fairly and honestly, rather it was filed with some oblique motive and maliciously. On the ground of malicious prosecution as well as suppression of fact, the court is satisfied that the order of cognizance is not tenable in the eye of law and it amounts to abuse of the process of the court.

8. Accordingly, the order of cognizance dated 17.4.2003 passed in Complaint Case No.1113 of 1999 by the Sub Divisional Judicial Magistrate, Bhagalpur is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.)

PATNA HIGH COURT

Dated 13.9.2010

N.A.F.R./N.H.

 

IPC 498a Quashed-Not a relative of husband

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1745 OF 2010

(@ SPECIAL LEAVE PETITION(CRL.) No.4758 of 2009) SUNITA JHA … APPELLANT Vs.

STATE OF JHARKHAND & ANR. … RESPONDENTS J U D G M E N T

ALTAMAS KABIR, J.

 

1. Leave granted.

 

2. This Appeal is directed against the judgment and order dated 29th April, 2009, passed by a learned Single Judge of the Jharkhand High Court in Criminal Revision No.410 of 2007 dismissing the same and affirming the order of the Trial Court rejecting the prayer of the Appellant for being discharged from the case.

 

3. One Asha Rani Pal, the Respondent No.2 herein, filed a complaint case against her husband, Mukund Chandra Pandit, and the Appellant herein, being Complaint Case No.404 of 2005, before the Sub-Divisional Judicial Magistrate, Dumka, Jharkhand, under Section 498A IPC. The learned Magistrate by his order dated 6th February, 2006, took cognizance against the Appellant and other accused and issued process for the accused to appear before him on 5th April, 2006. Pursuant to the said order, the Appellant appeared before the learned Magistrate on 10th July, 2006, when the prosecution examined two witnesses, namely, PW.1 Kanhai Pal, father of the Respondent No.2 and PW.2 Mukti Pal. No further evidence was led by the complainant/Respondent No.2 and on 13th November, 2006, the learned Magistrate closed the pre-charge evidence and posted the case for arguments on framing of charge.

 

4. On 9th March, 2007, the Appellant filed an application for discharge, inter alia, on the ground that the complainant had not been examined as a witness in the case. During the arguments on the said application, it was contended that the Appellant could not be made an accused under Section 498A IPC since she was not a relative of Mukund Chandra Pandit and that the allegations made against her did not make out a case of cruelty under the aforesaid Section. However, by his order dated 9th March, 2007, the learned Magistrate rejected the Appellant’s application for discharge on the ground that there was prima facie evidence for framing of charge against the accused, including the Appellant, under Section 498A IPC.

5. Aggrieved by the said order, the Appellant moved the Jharkhand High Court at Ranchi by way of Criminal Revision No.410 of 2007. As indicated hereinabove, a learned Single Judge of the High Court by his order dated 29th April, 2009, dismissed the Revision Application on the ground that since the Appellant was living with the accused husband of the complainant, she must be deemed to have become a family member of Mukund Chandra Pandit for the purpose of Section 498A IPC.

 

6. The case of the Appellant before us is that the High Court erred in law in holding that the Appellant became a member of the family of Mukund Chandra Pandit merely because she was living with him in his house allegedly as his wife. Mr. Gaurav Agrawal, Advocate, appearing for the Appellant, contended that Section 498A IPC was very clear as to who could be charged under the said Section. For the sake of convenience, the said Section is reproduced hereinbelow :- “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 purpose of this section, “cruelty” means-

(a) Any willful 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; or

(b) Harassment of the woman where such harassment is with a view to coercing her or 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.”

7. It will be seen from the aforesaid provisions that it is either the husband or the relative of a husband of a woman who subjects her to cruelty, who could be charged under the said Section. Such provision could not apply to a person who was not a relation of the husband when the alleged offence is said to have been committed. It was contended that the Appellant was in no way related to the husband and was not his wife as held by the High Court so as to bring her within the ambit of Section 498A IPC and the charge framed against her was, accordingly, invalid and liable to be quashed. Reliance was placed by Mr. Agrawal on the decision of this Court in U. Suvetha v. State [(2009) 6 SCC 757], wherein the aforesaid question was directly in issue. This Court took up for consideration the question as to the persons who could be charged under Section 498A IPC having particular regard to the phrase “relative of the husband” occurring in the said Section. This Court categorically held that neither a girlfriend nor a concubine is a relative of the husband within the meaning of Section 498A IPC, since they were not connected by blood or marriage to the husband.

8. The other question which fell for determination was if a husband was living with another woman besides his wife, whether the same would amount to “cruelty” within the meaning of Section 498A. It was held that if such other woman was not connected to the husband by blood or marriage, the same would not attract the provisions of Section 498A I.P.C., although it could be an act of cruelty for the purpose of judicial separation or dissolution of marriage under the marriage laws, but could not be stretched to amount to “cruelty” under Section 498A IPC.

9. While construing the provisions of Section 498A IPC in the given circumstances, this Court observed that Section 498A being a penal provision deserved strict construction and by no stretch of imagination would a girlfriend or even a concubine be a “relative”, which status could be conferred either by blood connection or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.

10. Mr. Agrawal urged that the High Court had misconstrued the provisions of Section 498A vis- `-vis the Appellant in relation to the said Section and the impugned order of the High Court was, therefore, liable to be set aside along with the order of the learned Sub-Divisional Judicial Magistrate rejecting the Appellant’s prayer for discharge from the complaint case filed by Asha Rani Pal.

11. An attempt was made on behalf of the complainant, Asha Rani Pal, to justify the order passed by the learned Magistrate as also the High Court on the ground that the Appellant must be deemed to have acquired the status of wife of Mukund Chandra Pandit by her conduct and the fact that they had been living together as husband and wife.

 

12. We have considered the submissions made on behalf of the Appellant and the complainant wife. It may be indicated that the husband Mukund Chandra Pandit has not been made a party to these proceedings. However, having regard to the view which we are taking, his presence is not necessary for disposing of the present appeal.

13. Section 498A IPC, as extracted hereinabove, is clear and unambiguous that only the husband or his relative could be proceeded against under the said Section for subjecting the wife to “cruelty”, which has been specially 1

defined in the said Section in the explanation thereto. The question as to who would be a relative of the husband for the purpose of Section 498A has been considered in detail in U. Suvetha’s case (supra). We are entirely in agreement with the views expressed in the said case and we agree with the submissions made on behalf of the Appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit’s family. The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the Appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U. Suvetha’s case (supra), the same would enable the Respondent No.2 to proceed against her husband under Section 498A I.P.C. and also against the Appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C.

14. The Appeal, therefore, succeeds and is allowed. The judgment of the learned Single Judge of the Jharkhand High Court impugned in this Appeal is set aside and the cognizance taken against the Appellant on 6th February, 2006, by the learned Sub-Divisional Judicial Magistrate, Dumka, under Section 498A IPC, is hereby quashed. …………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

New Delhi

Dated: 13.09.2010