Judgement - Section 498A - Quash

Court: Rajasthan High Court

Bench: JUSTICE Sandeep Mehta

Krishan Chander (Dr.) & Ors. Vs. State Of Rajasthan & Anr. On 30 March 2013

Law Point:
Indian Penal Code, 1860 — Sections 498A, 406, 323 — Cruelty — Hurt — Criminal breach of trust — Appreciation of evidence — Complainant in her belated complaint has without any justification and basis tried to entangle all relatives of her husband — Police after thorough investigation found offence under Section 498A, IPC made out against husband only and rightly so — Allegations as regards other accused persons are absolutely vague and non-specific so as to justify their prosecution in this case — Proceedings of complaint are apparently motivated, belated and plainly appear to be counter blast to application filed by husband under Section 9, Hindu Marriage Act — In the back-drop of admission made by complainant, allegation levelled by her in belated complaint and statement under Section 161, Cr.P.C. that accused misappropriated her dowry articles is patently false and concocted — Order taking cognizance against all petitioners for offence under Section 406, IPC unsustainable and quashed.

JUDGEMENT

The instant miscellaneous petition has been filed by the petitioners challenging the order dated 12.1.2010 passed by the Judicial Magistrate, First Class, Hanumangarh in Cr. Case No. 159/2009 whereby cognizance was taken against them for the offences under Sections 498A, 406 and 323, I.P.C. and against the order dated 24.4.2012 passed by the learned Addl. Sessions Judge (FT.) No. 1, Hanumangarh in revision whereby the Revisional Court has upheld the order taking cognizance for the offences under Sections 498A and 406, I.P.C. but has quashed the same for the offence under Section 323, I.P.C.

2. Succinctly stated the facts of the case are that the respondent No. 2 Smt. Urvashi filed a complaint in the Court of the Chief Judicial Magistrate, Hanumangarh on 20.5.2008 which was forwarded to the Police Station, Hanumangarh Junction where an F.I.R. No. 447/2008 was registered for the offences under Sections 498A, 406 and 323, I.P.C. The allegation levelled in the complaint was that the complainant was married to petitioner No. 3 Arun Kumar on 3.7.2003 at Hanumangarh Junction. The complainant also alleged that substantial dowry was given at the time of marriage and was entrusted to the accused under the belief that the same would be returned back as and when demanded. It was also alleged that right after the marriage, the accused started harassing and treating the complainant with cruelty in relation to the demand of a sum of Rs. 5 lacs and a luxury car. It was further alleged that five days after the marriage the complainant returned back to her father’s house upon onset of Shrawan month. In her absence and just after 10 days of the marriage the accused persons sold the Maruti car given to her in dowry. After the Shrawan month was over, the accused No. 1 i.e. Arun came to fetch the complainant and without accepting any hospitality took the complainant back to Sangaria. When the complainant reached Sangaria, she came to know about the car having been sold without her consent. On enquiry, the accused allegedly taunted her in relation to demand of dowry and also told her that the car was not of their choice and thus it had been sold. It was further alleged that accused persons continued to treat the complainant with cruelty in relation to the demand of Rs. 5 lacs and a luxury car. The complainant was not provided proper food and she was assaulted and kept locked up in the room. The complainant informed her parents about these cruel acts of the accused on which they tried to pacify them but the accused did not relent. The complainant was taken to Jaipur at the residence of the accused persons Dr. Krishan Chander, Smt. Girdavari Devi, Arun and Vinod and there too she was harassed for demand of dowry. The complainant further alleged that on numerous occasions, while being taken to Jaipur; she requested the accused to permit her to meet her parents but the accused did not allow her to meet the parents despite passing through Hanumangarh Junction. She was not given anything to eat during the journey period of 12-13 hours. After being taken to Jaipur also, she was continuously treated with cruelty. She further stated that after some time of the marriage, she conceived whereafter the accused intensified their cruel acts. The complainant’s father got her treated at Jaipur and Hanumangarh Junction for her ailments. The Doctors prescribed a nutritional diet for her but the accused did not provide her the same and forced her to remain hungry. She was abused and was forced to do heavy work even in her pregnancy period and the demand of Rs. 5 lacs and or luxury car continued. The complainant further alleged that she gave birth to a boy on 30.8.2004 at a nursing home at Hanumangarh Junction through a Caesarean Operation. The accused Nos. 5 and 6 i.e. Satpal and Sarita came to meet her and demanded Rs. 5 lacs and a luxury car in Chhuchhak. The other accused persons also talked to the complainant over phone and repeated the aforesaid demand and threatened her that if the demand was not met, she would not be taken back to the matrimonial home. She alleged that after the child was born, she waited for her husband to take her back to the matrimonial home but all in vain. She further alleged that number of Panchayats were held for saving the marriage. The complainant herself, her father, her brothers Raghvendra, Vikram and other persons attempted to settle the matter so that the matrimonial ties could be saved but the accused persisted with their demands and flatly refused to take the complainant back in matrimony unless their demands were met. She alleged that two Panchayats were held at Jaipur in November, 2004 and May, 2005, two Panchayats were held at Sangaria in June, 2005 and January, 2006 and a few Panchayats were also held at Hanumangarh Junction. The complainant alleged that last Panchayat was held at Hanumangarh Junction on 9.3.2008. In the last panchayat also, the accused persons refused to take the complainant back to the matrimonial house unless their demands were fulfilled. The complainant requested the accused to return her Stridhan articles but the accused did not accede to the same.

3. After completion of investigation, the police filed a charge-sheet only against the petitioner Arun for the offence under Section 498A, I.P.C.

4. The complainant, filed an application under Section 190 of the Cr.P.C. before the Trial Court and the Trial Court by the order dated 12.1.2010 accepted the same and proceeded to take cognizance against the petitioners Arun, Krishan Chandra, Girdavari Devi, Vinod, Satpal and Sarita and summoned them as additional accused to face trial for the offences under Sections 498A, 406 and 323, I.P.C. The order taking cognizance was challenged in revision and the Revisional Court whilst upholding the order taking cognizance for the offences under Sections 498A and 406, I.P.C. quashed the same so far as the offence under Section 323, I.P.C is concerned. Now, the petitioners have approached this Court by way of the instant miscellaneous petition seeking quashing of the order taking cognizance and all subsequent proceedings going on against them.

5. Mr. H.S. Sandhu, learned Counsel for the petitioners submitted that the prosecution of the petitioners in this case is patently illegal and amounts to a gross abuse of the process of the Court. He submitted that the petitioner Krishan Chandra is a 72 years old retired Professor and is living with his wife and son Vinod at Jaipur and the petitioner No. 5 Satpal (a practising lawyer) is living at Hanumangarh with his wife Smt. Sarita. He contended that after the marriage of Urvashi with Arun, the husband and wife shifted to Jaipur and lived together for one year. Thereafter Urvashi came back to Hanumangarh on 5.7.2004 and never returned back to the matrimonial home. He submitted that on 6.12.2007 Arun filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and the notice of the petition was served upon Smt. Urvashi. She filed a reply to the petition on 21.5.2008. He contended that the prosecution which has been initiated by the complainant against the petitioners was only precipitated after receiving the notice of the proceedings under Section 9 of the Hindu Marriage Act. He submitted that the proceedings are thoroughly illegal and amount to a gross abuse of the process of the Court. He placed on record the judgment dated 30.11.2010 passed by the District Judge, Sri Ganganagar in the divorce petition filed by the petitioner Arun Kumar against Smt. Urvashi whereby the learned District Judge accepted the divorce petition on the ground of desertion and cruelty. A copy of the reply filed by Smt. Urvashi to the application under Section 9 of the Hindu Marriage Act has also been placed on record. Learned Counsel Mr. Sandhu referred to para-11 of the reply wherein the complainant admitted that all the gifts given to her at the time of marriage by Arun, his family members and her own family members are in safe custody with her. Learned Counsel thus submitted that ex facie the cognizance which has been taken by the Trial Court against the petitioners for the offence under Section 406, I.P.C. is illegal because the complainant has concealed the fact of the ‘Stridhan’ being in her custody. Learned Counsel submitted that the implication of the petitioners Dr. Krishan Chandra, Girdavari, Vinod, Satpal and Sarita as additional accused in this case is absolutely without justification because these petitioners had no occasion to live or interact with the complainant after the year 2004. Learned Counsel submitted that the proceedings of the case initiated by the complainant are hopelessly barred by limitation and in order to get over the bar of limitation, she concocted a story regarding some Panchayat having been held in the year 2008 at Hanumangarh Junction. Learned Counsel submitted that the very fact that the criminal prosecution has been launched after the notice of the application under Section 9 of the Hindu Marriage Act was served on the complainant is by itself sufficient to draw an inference that the proceedings are mala fide and have been filed as a counter blast. He placed reliance on the decisions of the Apex Court in the cases of Arun Vyas v. Anita Vyas, reported in II (1999) DMC 247 (SC)=V (1999) SLT 184=AIR 1999 SC 2071 and State of Himachal Pradesh v. Tara Dutt, reported in IX (1999) SLT 612=IV (1999) CCR 280 (SC)=2000 (1) SCC 230, in support of his contentions.

6. Per contra Mr. Pankaj Sharma, learned Counsel appearing for the complainant has vehemently opposed the submissions advanced by the learned Counsel for the petitioners. He submitted that there is a specific allegation of the complainant that right from the date of her marriage with the accused Arun, she was harassed and treated with cruelty by all the petitioners on account of demand of dowry. Thus, he submitted that the order taking cognizance which has been affirmed in revision does not call for any interference.

7. Heard and considered the arguments advanced at the bar. Perused the orders impugned as well as the record. From a perusal of the record, it is apparent that the police after detailed and thorough investigation did not find the offence under Section 406, I.P.C. made out against any person. Arun (the husband) was alone found responsible and that too only for the offence under Section 498A, I.P.C. It is an undisputed fact that the spouses are living separately since the year 2004. In the reply filed by the complainant to the application under Section 9 of the Hindu Marriage Act, she has stated as below:

“(Hindi matter omitted)”

8. The complainant has admitted in her pleadings that all her Stridhan gifted to her from the parental side as well as from the side of the accused are in her custody. In the backdrop of this admission made by the complainant, it is apparent that the allegation levelled by her in the belated complaint and in her statement recorded under Section 161, Cr.P.C. that the accused misappropriated her dowry articles is patently false and concocted. She has admitted in the reply that she is living separately from her husband since the year 2004. In order to bring the prosecution in limitation she has tried to concoct a story of a Panchayat held at Hanumangarh in the year 2008 wherein the accused are alleged to have persisted with the demand of dowry. On perusal of the reply filed by the respondent to the application under Section 9 of the Hindu Marriage Act filed by Arun Kumar, it is apparent that the specific allegation of cruelty in relation to demand of Rs. 5 lacs and luxury car is against Arun Kumar alone. There are vague and uncertain allegations against the other accused in this reply. Significantly enough, in this reply, which was filed in the competent Court on 21.5.2008, there is no averment regarding any Panchayat having been held at Hanumangarh in the year 2008. The competent Court i.e. the District Judge, Sri Ganganagar accepted the application for divorce filed by the husband i.e. the petitioner No. 3 herein on the ground that the respondent deserted her husband without any justification. It would however not be out of place to mention that the respondent has filed an appeal against the said judgment dated 30.11.2010 passed by the District Judge, Sri Ganganagar and the judgment has been stayed by this Court in the appeal.

9. If the facts of the case at hand are tested in the light of observations made by the Hon’ble Supreme Court in Preeti Gupta v. State of Jharkhand, reported in II (2010) DMC 387 (SC)=VI (2010) SLT 7=III (2010) CCR 338 (SC)=(2010) 7 SCC 667, it is apparent that the complainant in her belated complaint has without any justification and basis tried to entangle all the relatives of her husband. The police after thorough investigation found the offence under Section 498A, I.P.C. made out against the husband Arun only and rightly so. The allegations as regards the other accused persons are absolutely vague and non-specific so as to justify their prosecution in this case. It is manifest from the record that the complainant’s husband Arun filed an application under Section 9 of the Hindu Marriage Act against the complainant in the year 2007 and no sooner the notice of the application was served on the complainant, she implicated all the matrimonial relatives in the belated complaint. The proceedings of the complaint are thus apparently motivated, belated and also plainly appear to be a initiated as a counter blast to the application filed by the husband under Section 9 of the Hindu Marriage Act.

10. The upshot of the above discussion is that the order passed by the Trial Court on 12.1.2010 taking cognizance against all the petitioners for the offence under Section 406, I.P.C. cannot be sustained and deserves to be quashed. There is no specific allegation of the complainant in the complaint as well as in her statement recorded under Section 161, Cr.P.C. against the accused petitioner No. 1 Dr. Krishan Chander (father-in-law), petitioner No. 2 Smt. Girdavari (mother-in-law), petitioner No. 4 Vinod and petitioner No. 5 Satpal (brother-in-law) and petitioner No. 6 Sarita (sister-in-law) so as to justify their prosecution for the offence under Section 498A, I.P.C. Accordingly, the order taking cognizance as affirmed in revision deserves to be quashed in entirety to their extent.

11. Resultantly the miscellaneous petition filed by the petitioner No. 3 Arun succeeds in part. The order dated 12.1.2010 passed by the learned Trial Court as affirmed by the learned Revisional Court whereby cognizance was taken against the petitioner No. 3 Arun for the offence under Section 406, I.P.C. is quashed. The miscellaneous petition filed by petitioners Dr. Krishan Chander, Smt. Girdavari Devi, Vinod, Satpal, and Smt. Sarita succeeds and the order dated 12.1.2010 taking cognizance against these petitioners as affirmed in revision as well as and all the subsequent proceedings sought to be taken against these petitioners are hereby quashed.

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