Court: Madhya Pradesh High Court
Bench: JUSTICE J.P. Gupta
Mohammed Haroon Ahmad & Ors. Vs. Shashista Parveen & Anr. On 15 February 2018
Law Point:
Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860 — Section 498A — Dowry Prohibition Act, 1961 — Sections 3, 4 — Quashing of Order — Cruelty — Dowry Demand — Complaint filed maliciously by respondent No. 1 against applicants without any ground, just to take revenge — Applicants have neither demanded dowry nor tortured respondent No. 1 for dowry demand — Cause of quarrel was that respondent No. 1 does not want to live in joint family with applicant — On account of non-fulfilment of said desire, she filed complaint against applicants stating incorrect facts regarding dowry demand and harassment — Impugned orders passed by ASJ set aside.
JUDGEMENT
1. This petition under Section 482 of the Cr.P.C. has been preferred by the applicants against the order dated 15.3.2013 passed by the I Additional Sessions Judge, Damoh in Cr. Revision No. 97/2011 arising out of order dated 8.8.2011 passed by C.J.M. Damoh in Criminal Case No. 1898/11, whereby cognizance of the offence under Section 498A of the IPC and Sections 3/4 of the Dowry Prohibition Act was taken against the applicants.
2. The facts of the case in brief are that marriage of the applicant No. l was solemnised with the Respondent No. l on 5.11.2006. Applicant Nos. 2 and 3 are parents of the applicant No. l and applicants Nos. 4 and 5 are his brothers and all are residing together. Out of the wedlock, one daughter was born. On 24.3.2009, respondent No. l made a complaint at Police Station, Damoh to the effect that since 2006 applicants are harassing and torturing her in connection with demand of dowry. As a consequence thereof, applicants were called in the Parivar Paramarsh Kendra but they were not ready to change their behaviour, therefore, criminal complainant was filed on 15.7.2009 before the C.J.M., Damoh. The C.J.M., Damoh on the basis of the statements of the complainant and her father Dr. Abdul Jaleel recorded under Section 200 of the Cr.P.C. and under Section 202 of the Cr.P.C., took cognizance against the applicants. The said order was challenged before the Revisional Court, and the Revisional Court also affirmed the order of the learned Magistrate and passed the impugned order.
3. The aforesaid orders have been challenged on the ground that learned Trial Court without making appropriate enquiry and without calling report of investigation under Section 202 of Cr.P.C. on the basis of insufficient material wrongly passed the impugned order. The proceedings of the learned Trial Court show that under Section 202 of the Cr.P.C., the report was called for from the Police Station concerned; but, suddenly without awaiting for the report, took the cognizance on the insufficient material. While it is averted in the complaint that earlier the matter was reported to the Superintendent of Police, Damoh and parties were called with a view to settle the dispute amicably, whereas repondent/ complainant on 25.6.2009 has categorically deposed that she is post graduate and her husband compelled her to reside with him in a joint family. On account of that, quarrel took place between the applicant No. 1 and the respondent No. 1 and since one and a half years, she is residing in her parental house on her own will. Now, she is willing to live with the applicant No. 1 on the condition that he will have to reside with her in a rented house separately from her in-laws. This statement shows that there was no quarrel regarding demand of dowry. Apart from it, the respondent No. l was living with the applicant No. l separately without any reasonable cause, therefore, he filed a civil suit for restitution of conjugal rights which was decreed against the respondent No. 1 vide order dated 11.10.2010 in Civil Suit No. 13-A/09 passed by Civil Judge, Class II, Chhatarpur.
4. In the aforesaid circumstances, prima facie it is clear that the Respondent No. l has filed complaint against the applicants maliciously, without any ground, just to take revenge. Hence, the impugned orders are not sustainable.
5. Learned Counsel for the applicants has placed reliance upon the judgment of the Apex Court in Bhaskar Lal Sharma & Another v. Monica, II (2009) DMC 256 (SC)=VI (2009) SLT 100=161 (2009) DLT 739 (SC)=(2009) 10 SCC 604, in which the Apex Court considering the judgment of the Apex Court in Sushil Kumar Sharma v. Union of India, II (2005) DMC 325 (SC)=V (2005) SLT 438=II (2005) CCR 43 (SC)=(2005) 6 SCC 281, it is held that:
“10. The object for which Section 498A, IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘CrPC’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.
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19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of ‘wolf’ is made too often as a prank, assistance and protection may not be available when the actual ‘wolf’ appears. There is no question of the investigating agency and Courts casually dealing with the allegations. They cannot follow any strait-jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the Courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the Courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the Courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
6. Further reliance has been placed upon the judgment of the Apex Court in Preeti Gupta v. State of Jharkhand, II (2010) DMC 387 (SC)=VI (2010) SLT 7=(2010) 7 SCC 667, wherein it is held that:
32. It is a matter of common experience that most of these complaints under Section 498A, 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 is also a matter of serious concern.
7. Learned Counsel for the applicant further placed reliance on the judgment of Geeta Mehrotra and Another v. State of Uttar Pradesh, III (2012) DMC 482 (SC)=VIII (2012) SLT 152=IV (2012) DLT (CRL.) 626 (SC)=IV (2012) CCR 405 (SC)=(2012)10 SCC 741, in which it is held:
20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
8. In the case of National Bank of Oman v. Barakara Abdul Aziz & Another reported in IV (2013) SLT 114=(2013) 2 SCC 4881, the Apex Court has held:
9. The duty of a Magistrate receiving a complaint is set out in Section 202, Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a Criminal Court. The scope of inquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202, Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The. scope of inquiry under Section 202, Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:
(i)
on the materials placed by the complainant before the Court;
(ii)
for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and
(iii)
for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
9. Learned Counsel appearing on behalf of the respondent No. 1 and learned Govt. Advocate contended that the impugned orders are just and proper and does not require any interference and the objection raised by the applicants are to be considered at the time of trial, hence the petition be dismissed.
10. Having considered the contentions of the learned Counsel for the parties and on perusal of record and considering the aforesaid case laws, in view of this Court, impugned orders are not sustainable, as the proceedings taken place before the Parivar Paramarsh Kendra and the statement given by the respondent No. 1 categorically shows that the applicants have neither demanded dowry nor tortured her for demand of dowry. The cause of quarrel between the applicants and the respondent No. l was residing of the applicant No. l in his joint family and the respondent No. l does not want to reside with him in the joint family and on account of non-fulfilment of aforesaid desire, she filed complaint against the applicants stating incorrect facts regarding demand of dowry and harassment.
11. In the aforesaid circumstances, it is apparent that respondent No. l has misused the process of the Court, The Hon. Apex Court in the case of Zandu Pharmaceutical Works Ltd. v. Mohd. SharafuI Hague, VI (2004) SLT 513=IV (2009) CCR 220 (SC)=(2005) 1 SCC 122, has held:
“8…. It would be an abuse of process of 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 the 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.”
12. In view of the aforesaid discussions, this petition is allowed. The impugned orders dated 15.3.2013 passed by the I Additional Sessions Judge, Damoh in Cr. Revision No. 97/2011 arising out of order dated 8.8.2011 passed by C.J.M., Damoh in Criminal Case No. 1898/11 are set aside and the proceeding of the aforesaid criminal case is set aside.
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