Judgement - Section 498A - Discharged

Court: Mumbai High Court

Bench: JUSTICE P.S.NARAYANA

Kumari Sri Uma vs The State Of A.P. Rep By on 10 March, 2010

Law Point:
Ingredients of 498A not attracted, discharged

JUDGEMENT

1. Heard Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned counsel for the petitioner, learned Additional Public Prosecutor representing the first respondent and Sri Y.Krishna Mohan Rao, learned counsel representing the second respondent.
2. This Criminal Petition is filed under Section 482 of Cr.P.C. (herein referred as ‘the Code’, for the purpose of convenience) praying for quashing of the proceedings in C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections 498-A, 420 read with 109 I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961. Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned counsel for the petitioner would maintain that even if the allegations made out in the charge sheet are to be taken as true and correct, none of the alleged offences would be attracted as it relates to petitioner / Accused No.5 since she is an outsider and not a relative within the meaning of Section 498-A IPC; that when the ingredients of Section 498-A IPC are not attracted as it relates to the petitioner / Accused No.5, the question of trying the petitioner / Accused No.5 under Sections 4 and 6  of the Dowry Prohibition Act, 1961 would not arise; that even the alleged offence under Section 420 IPC is  not applicable to the petitioner / Accused No.5 as there is no specific allegation on her to the effect that she  had cheated the defacto complainant; that as far as the alleged offence under Section 109 IPC is concerned,  the stand taken that the petitioner / Accused No.5 threatened the defacto complainant being false, this alleged offence also is not applicable. Thus, learned counsel would ultimately pray this Court to quash the proceedings as against the petitioner / Accused No.5 and to allow the Criminal Petition. To substantiate his submissions, learned counsel also relied on certain decisions.
3. Learned Additional Public Prosecutor representing the first respondent had taken this Court through the allegations made in the charge sheet and would maintain that it is not that the petitioner / Accused 5 approached this Court for the first time, but the petitioner, infact, filed Crl.P.No.1371 of 2005 in this Court praying to quash proceedings in FIR No.253 of 2004 of Musheerabad Police Station, Hyderabad, and in the light of the specific observation made that the threats may, prima facie, amount to criminal intimidation, this is not a fit matter to quash the proceedings against the petitioner / Accused No.5.
4. Sri Y.Krishna Mohan Rao, learned counsel representing the second respondent / defacto complainant would maintain that the whole episode of the prosecution revolves around the petitioner / Accused No.5. It may be that the petitioner / Accused 5 cannot be charged with Section 498 I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961, but, however, as far as other alleged offences are concerned, may be at appropriate stage, she may also be tried along with the other accused. Learned counsel pointed out to the order made in Crl.P.No.1371 of 2005 of this Court in this regard.
5. Heard the learned counsel on record.
6. At the earlier instance, the petitioner herein / Accused No.5 filed Criminal Petition No.1371 of 2005 before this Court and this Court, by order dated 29.08.2006, dismissed the Criminal Petition observing as hereunder. “The present petitioner is A.5 in the crime. The case is registered for the offences punishable under Sections 498A, 420 and 109 P.C. and 4 and 6 of the Dowry Prohibition Act. Even if the entire allegations in the complaint are taken as true and correct at this stage, they do not make out a prima facie case for the offence alleged against the petitioner/A.5. Insofar as the offence punishable under Section 109 I.P.C. is concerned, the allegation is that this petitioner threatened the defacto complainant to take divorce from her husband failing which she would kill her. No act has been committed in consequence of that abetment. Therefore, even if the allegations in the complaint are taken as true, no prima facie case for the offence punishable under Section 109 I.P.C. is made against the present petitioner. However, there was a threat given by the present petitioner to the defacto complainant, which prima facie amounts to criminal intimidation. Under Section 503 I.P.C., whoever threatens another with injury to his person, reputation or property is said to have committed criminal intimidation. Therefore, there are no grounds to quash the proceedings. It is for the police to take appropriate decision at the time of filing of the charge sheet after completion of investigation, on the prima facie offence alleged to have been committed by the petitioner.

With the above observations, the Criminal Petition is dismissed.”

7. The brief facts of the case are as follows:-

The respondent No.2 – defacto complainant married A-1 on 28.11.2003 by paying Rs.12,00,000/- as dowry, as demanded by A-1 and his brother A-2; that 3 days after the marriage, her husband – A-1 informed that he is  not interested in the defacto complainant and he had a pre-marital affair with petitioner whom he wanted to marry but his brother and sister-in-law did not permit the same as petitioner belongs to a different caste; that subsequently, when she informed the same to A-2 to A-4, they took it lightly, demanded and harassed her for additional dowry; that the petitioner herein threatened the defacto complainant over phone to leave A-1 or else she will be killed. Finally, that A-1 to A-4, by concealing the pre-marital affair of A-1 with A-5, cheated the defacto complainant by performing his marriage with the defacto complainant.

8. It is also stated that the petitioner went to Chennai to pursue her studies in MCA and was staying at her elder sister’s house. A-1 pursued his MBA at Chennai, from Anna University and being neighbours, the petitioner was friendly with A-1. In reply to the allegations, the petitioner denies that the same is false and invented for the purpose of the complaint and to harass The petitioner is a third party to all the transactions that took place between the defacto complainant and her husband and his other relatives. The petitioner, during that time, was in Chennai and is no way concerned with the said state of affairs between the defacto complainant and her husband. The petitioner humbly submits that the said allegations against her in the charge sheet are false and do not constitute any offence. The defacto complainant and her family members malafidely filed the criminal case against petitioner / A-5 to harass her.
9. It is also stated that after lodging complaint in crime No.253 dated 16.07.2004 by the defacto complainant, the petitioner filed Crl.P.No.1371 of 2005 before this Hon’ble Court seeking to quash of FIR and this Hon’ble Court rightly pointed out that even if the entire allegations in the complaint are taken to be true and correct do not make out a prima facie case and while disposing the said criminal petition, it was left open to the police to investigate the matter further and file charge sheet in the It is humbly submitted that even as per the allegations in the charge sheet, no offence is made out against the petitioner nor the petitioner was charged with any offence and the continuation of the criminal proceedings against this petitioner is unwarranted, abuse of the process of law and hence, the same needs to be quashed. It is further submitted that now marriage of the petitioner is fixed and continuation of the above criminal proceedings, without making out any offence against the petitioner, will cause severe loss and hardship to the petitioner.
10. In such a situation, the petitioner / Accused No.5 approached this Court by filing the present Criminal Petition, under Section 482 of the Code.
11. Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned counsel for the petitioner, placed strong reliance on para 6 of the decision reported in Sia Ram and another Vs. State of U.P.1, wherein, it was observed as follows.

The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention, is whether the only interference which arises from the fact that Violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar singh, Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing whom “Intentionally aids, by any act or illegal omission, the doing of that thing”. Explanation 2 to the section says that:

“Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

Thus, in order to constitute abetment, the abettor must be shown to have “intentionally” aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of  the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with the intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentionally aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.

12. Learned counsel also placed reliance on para 7 of the decision reported in Suram Kiran Kumar Reddy and others Vs. State of A.P. and another2, wherein, it was observed as follows.

The other offences alleged against the petitioners are under Section 417 and 420 read with section 109 IPC. Under Sec.109 IPC, abettor is liable to the same punishment as that which may be inflicted on the principal offender if (a) the act of the offender is committed in consequence of the abetment and (b) no express provision is made in the IPC for punishment of such abetment. Obviously, prosecution is taking the aid of Section 109 IPC to rope in petitioners 2 and 4 for the offences alleged against the 1st petitioner by the 2nd respondent. As stated earlier, no offence can be said to have been committed by 1st petitioner under Section 493 and 376 IPC. So petitioners 2 to 4 also cannot be said to have abetted under Sections 493 and 376 IPC.

13. Learned counsel further relied on Male Ramnadham and another State of A.P.3, wherein, it was observed as under.

The FIR does not disclose the necessary ingredients of abetment like ‘instigation’ or ‘conspiracy’, or ‘active support’ by the petitioners in B.Saroja (A-1) preparing illicit arrack, because mere sale of goods across the counter cannot be said to be ‘instigation’, or ‘conspiracy’ or ‘active support’. So, even if all the allegations in the FIR are taken to be true, petitioners cannot be said to have committed an offence under Section 34 of the Excise Act or abetment of such offence.

14. The petitioner is an outsider to the family of the defacto complainant. No doubt, as there was an allegation that illicit intimacy existed between the petitioner / A-1 and Accused No.5, offences relating to cheating and abetment also had been attributed. It appears that certain threats also had been made. The truth or otherwise of all these allegations cannot be gone into at this There cannot be any doubt or controversy that the ingredients of Section 498A IPC are not attracted so far it relates to the petitioner / Accused No.5. It is needless to say that when the ingredients of Section 498-A IPC are not attracted, Sections 4 and 6 of the Dowry Prohibition Act, 1961, also are not applicable. Likewise, the alleged offence of cheating under Section 420 IPC and abetment under Section 109 IPC are also not applicable.
15. Hence, it is made clear that the petitioner / Accused 5 cannot be charged with any of the alleged offences specified supra and all such offences are are liable to be quashed.
16. Accordingly, the proceedings against the petitioner / Accused No.5 in C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad alone are quashed relating to offences under Sections 498A, 420 read with 109 IPC and Sections 4 and 6 of the Dowry Prohibition Act, 1961.
17. However, keeping in view the prima facie evidence relating to the offence of criminal intimidation against the petitioner and also keeping in view the observations made by this Court in criminal petition No.1371 of 2005, this Court is not inclined to quash the whole proceedings in C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, in toto, leaving it open to the learned Magistrate to consider framing of charge relating to criminal intimidation in the light of the material available on record.
18. In the result, the Criminal Petition is partly allowed to the extent indicated above.

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