Court: Madhya Pradesh High Court
Bench: JUSTICE G.S. Ahluwalia
Radha & Ors. Vs. State Of M.P. & Ors. On 12 January 2017
Law Point:
Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860 — Sections 498A, 406, 506-II — Quashing of order taking cognizance — Cruelty — Criminal breach of trust — Criminal intimidation — Merely bald allegations made out against relatives of husband without there being any specific overt act on their part — Sending those persons to ordeal of trial will not be proper — Prima facie evidence against applicant No. 1 — Trial Court did not commit any mistake in taking cognizance against her — Order taking cognizance against applicant No. 1 by Magistrate maintained.
JUDGEMENT
This petition under Section 482 of Cr.P.C. has been filed against the order dated 6.5.2015 passed by Judicial Magistrate, First Class, Gwalior in unregistered Criminal Complaint Case No. /2015 by which the Court has taken cognizance against the applicants.
1. The necessary facts for the disposal of this application are that the respondent No. 2 had filed a criminal complaint against the applicants alleging that the applicant No.1 is her mother-in-law, applicant No.2 is her younger brother-in-law, applicant No.3 is her sister-in-law, applicant No.4 is the husband of sister-in-law and applicant No. 5 and 6 are maternal uncle-in-law. It was alleged that after the marriage when she came to her matrimonial house then for the first 15 to 20 days except her husband, the behaviour of all other members of her in-laws family was good. When she enquired from her husband as to what is the cause of his annoyance then he replied that he is a Sales Tax Practitioner and considering his status, her father should have been given a car. He further replied that as he was not willing to marry her and he has married her only under the pressure of his family members, therefore, she should live with her in-laws. The complainant also came to know about the illicit relations of her husband with some other lady and when she informed this fact to the applicants then they said either she should bring a car from her father or should learn to live in present situation. Thereafter, the applicants and other co- accused persons started beating her. They were also not giving food to her and were restraining her from talking to her family members. The applicants and other co-accused persons also used to extend threat to kill. As the applicants and other co-accused persons were planning to kill her, therefore, she gave an information to her parents. As the applicants and other co-accused persons were behaving with cruelty and, therefore, she went to her parents’ house. Accordingly, it was alleged that the act of the applicants and other co-accused persons amounts to an offence punishable under Sections 498-A, 406, 506 Part-II of IPC. The complainant had made a police complaint but the police registered an offence against her husband and father-in-law and since no action was taken against the present applicants, therefore, the complaint was filed.
2. The complainant in support of her complaint, examined herself and her witnesses Dhaniram, Shyam Sunder and Kishan Lal and the copies of the complaint to the different authorities were also filed. The copy of the charge sheet filed against her husband and the father-in-law was also filed.
3. The Trial Magistrate by order dated 6.5.2015 took cognizance against the applicants for offences under Sections 498-A and 506 Part-II of IPC. Being aggrieved by the order of the Trial Magistrate, the applicants have filed the present petition under Section 482 of Cr.P.C.
4. The Counsel for the applicants submitted that as the police had already filed the charge sheet against the husband and father-in-law, therefore, the Trial Magistrate should have stayed the proceedings under Section 210 of Cr.P.C. It was further submitted that even otherwise the material available on record does not suggest the commission of offence by the applicants for offences punishable under Sections 498-A, 506 Part-II of IPC. Even the distant relatives have been made accused without their being any specific overt act on their part. Omnibus and vague allegations have been made by the respondent No. 2 against the applicants.
5. Per contra, the Counsel for the respondent No. 2 submitted that there is sufficient material available on record to show that the applicants have committed offences punishable under Sections 498-A and 506 Part-II of IPC. The meticulous appreciation at the stage of taking cognizance is not permissible and, therefore, the Trial Magistrate after considering the facts and circumstances of the case did not commit any illegality in taking cognizance against the applicants. In support of his submissions, the Counsel for the respondent No. 2 has relied upon the judgment of Supreme Court passed in the case of Taramani Parakh v. State of M.P. & Ors., reported in I (2015) DMC 764 (SC)=III (2015) DLT (CRL.) 280 (SC)=III (2015) SLT 161=2015 CrLJ 2031 and submitted that the petition filed by the applicants under Section 482 of Cr.P.C. is liable to be dismissed. It is further submitted by the Counsel for the respondent No. 2 that the order taking cognizance against the applicants is a revisable order and the applicants have approached this Court directly by filing a petition under Section 482 of Cr.P.C., therefore, the petition be dismissed on the ground of non-filing of criminal revision before the Sessions Court.
6. Heard the learned Counsel for the parties. The contention raised by the Counsel for the applicants that the Trial Magistrate should have stayed the proceedings under Section 210 of Cr.P.C. although appears to be very attractive but on deeper scrutiny of the facts and circumstances of the case, the said submission is found to be misconceived. Section 210 of Cr.P.C. reads as under:
“210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.—(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall enquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”
7. Section 210 of Cr.P.C. would apply in a case where during the pendency of a complaint, if the fact is brought to the knowledge of the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him then the Magistrate shall stay the proceedings of such inquiry or trial. The facts of the present case are different. In the present case the police has already filed a charge sheet on the similar allegations against the husband and father-in-law of the respondent No. 2. It is the allegation of the respondent No. 2 that as the police has not filed the charge sheet against the applicants, therefore, complaint is being filed. Once the investigation is already over and the police has filed the charge sheet against some of the accused persons and has chosen not to file charge sheet against the other persons then under these circumstances, the provisions of Section 210 of Cr.P.C. would not apply and the only remedy available to the complainant is to file a criminal complaint against those persons who have not been charge-sheeted by the police. Accordingly, submission made by the Counsel for the applicants with regard to non-compliance of provision of Section 210 of Cr.P.C. is rejected as misconceived.
8. The next contention of the Counsel for the applicants is that if the entire case which has been alleged against the applicants are considered in proper perspective then it would be clear that there is no prima facie and sufficient material available on record to take cognizance against the applicants. It is submitted by the Counsel for the applicants that the applicant Nos. 5 and 6 are distant relatives. They are the maternal uncle-in-law of the respondent No. 2. They have nothing to do with the family affairs of the complainant and her in-laws. No specific overt act has been assigned against these two persons. The respondent No. 5 and 6 have been implicated merely because they happened to be a maternal uncle-in-law of the respondent No. 2. It is further submitted that there is increasing tendency of over implicating the distant relative in order to put pressure upon the family members of the in-laws of the respondents. Similarly it is submitted that the applicant Nos. 2 to 4 have been made an accused as they happened to be close relatives of husband.
9. To buttress his contention, the Counsel for the applicants relied upon a judgment of Supreme Court passed in the case of Kans Raj v. State of Punjab & Ors. reported in I (2000) DMC 645 (SC)=IV (2000) SLT 162=II (2000) CCR 156 (SC)=AIR 2000 SC 2324.
10. On the contrary it is submitted by the Counsel for the respondent No. 2 that in view of the judgment passed by the Supreme Court in the case of Taramani Parakh (supra) as there are sufficient allegations against the applicants, therefore, the submissions made by the Counsel for the applicants are liable to be rejected out rightly.
11. The Counsel for the applicants along with this petition has filed a copy of the complaint. However, the statements of the witnesses recorded under Sections 200 and 202 of Cr.P.C. have not been placed on record.
12. In the complaint which was filed by the respondent No. 2, it is alleged that when she came to her matrimonial home after the marriage she found that her husband is always remaining annoyed with her but the behaviour of the other in- laws was good towards her. She enquired from her husband about the annoyance then he replied that since he is a Sales Tax Practitioner and considering his status, her father should have been given a car. He further replied that as he was not willing to marry her and he has married her only under the pressure of his family members, therefore, she should live with her in-laws. After sometime while she was coming back to her parents house she received a call from one Rachna @ Richika who enquired that whether her husband has made physical relations with her or not? When the complainant replied to that girl that how she is concerned about that, then she replied that she should talk with her husband and at that time she heard the noise of some quarrel on the mobile and thereafter the said mobile fell down. The complainant after reaching to her parents house tried to contact her husband for twice or thrice but he did not reply. When she had a talk with her husband on the mobile of her father-in-law then her husband informed that he has lost his mobile. He further stated that when she would come back to her matrimonial house then he would have a talk. He also refused to meet her at some outside place. After 2-3 days when she came back to her matrimonial house then her husband informed her that his friends were joking with her. When the complainant/respondent No. 2 enquired from the respondent No. 3 about the girl friend of her husband then she too refused and said that her brother has no girl friend. After 2 or 3 days of Holi festival the respondent No. 2 received a call from one Rachna who started abusing her. When the respondent No. 2 informed the applicant No. 3 then she said that she would talk to her. Indecent messages were also sent by Rachna and when she enquired from her husband about this fact then he said that he has a relation with Rachna and respondent No. 2 will have to tolerate the same. He further stated that in case, a car is given by her father then he will break his relationship with Rachna. When the respondent No. 2 disclosed the fact and the messages to the applicants and her father-in-law then all of them admitted that the husband of the respondent No. 2 has relations with Rachna and they advised that she should maintain silence and if in case she informs the parents then she would be turned out of her matrimonial house immediately. Thereafter, her father-in-law deleted all the messages from the mobile. For next 10 to 15 days she remained in her matrimonial house but she did not inform her parents because she was afraid. She was forced to talk to her parents in front of her mother-in-law and father-in- law so that she may not inform anything to her parents. It is further alleged that her in-laws were pressurizing her to ask for a car from her father and they were torturing physically and mentally. She was not allowed to close the door of her bedroom and she was not allowed to put the curtains of the door. Whenever she tried to serve food to her husband the applicant No. 1/mother-in-law used to snatch the plate from her and she used to serve her son personally. Food was also not given to her timely and whenever she objected to it, all of them used to beat her and they were saying that she should bring a car from her father and only then she can reside in her matrimonial house. As the respondent No. 2 had accepted her fate, therefore, she did not inform her parents about all these incidents. It is further alleged that when she was in her parents house to celebrate the Rakhi festival, said Rachna called her sister on telephone and insisted that either she should separate the respondent No. 2 from her husband or the respondent No. 2 should learn how to live as a servant and she also started using abusive language. At that time, the respondent No. 2 informed about the conduct of the applicants to her parents, Chand Khan and Kishan Lal who were present there. Thereafter, she came to her matrimonial house along with her father, brother and Chand Khan and had a talk with her parents-in-law and maternal uncle-in-law who assured that they are trying to correct Anil, the husband of the respondent No. 2. They also stated that if a car is given then they would ensure that her husband breaks his relations with Rachna. When her father and brother expressed their inability to give the car then the behaviour of the applicants became cruel towards the respondent No. 2. Both maternal uncle-in-laws were instigating the other applicants as a result of which the respondent No. 2 was beaten and was harassed. Whenever, she said anything to her husband then he too used to beat her. She was beaten even on the day of Karwa Chauth. Her mother-in-law used to say that she has killed her brother- in-law by administering poisoning and, therefore, she would also kill her on the day of Gyaras. The applicants were talking to each other with regard to the respondent No. 2. She heard that they were making a conspiracy to kill her by keeping the gas stove opened so that she may die. As the respondent No. 2 got afraid, therefore, she called her brother who took her back to her parents house. All the ornaments, money and the clothes have been kept by the applicants. At present she is residing in her parents house. It is further alleged that after she left her matrimonial house a phone call was made by her father-in-law requesting her father to have a talk with him. Thereafter her father Kishan Lal and Chand Khan along with other relatives went to her matrimonial house. After returning back they informed that her in-laws have imposed a condition that she would not be allowed to keep a mobile with her and secondly a car should be given. On 2.4.2013 she made a written report to Mahila Police Station where her husband was called. On the assurance given by the police personnel she went to her matrimonial house along with her husband. As her in-laws were annoyed, therefore, all of them put pressure on her to withdraw her report and said that they would convince her husband and she should bring a car from her father. Eight days thereafter, again she went to Police Station and informed the entire incident to the SHO. At that time about 25 Advocates came to the Police Station and started pressuring the SHO not to register the report. Thereafter, the SHO by pressuring the respondent No. 2 compelled her to make a written report only against the husband and father-in-law and assured that the names of the applicants will be added subsequently. Thereafter, on several occasions, she went to the police station but the applicants were not made an accused. Subsequently, she made several complaints to several authorities but as no action was taken against the applicants, therefore, the complaint was filed.
13. From the plain reading of the complaint, it appears that against the applicant Nos. 2 to 6 no specific allegation or overt act is alleged by the respondent No. 2. Undisputedly, the applicant No. 3 is a married woman residing separately along with the applicant No. 4. Similarly, the applicant No. 2 is younger bother-in-law of the respondent No. 2 and the applicant Nos. 5 and 6 are the maternal uncle-in-law of the respondent No. 2. If the entire allegations are considered as they have been alleged in the complaint then it would be clear that no overt act or specific allegation has been made and only omnibus and vague allegations have been made against these persons alleging that she was beaten on certain occasions. The Supreme Court in the case of Kans Raj v. State of Punjab & Ors. (supra), has held as under:
“5. We agree with the learned Counsel for the respondents 3 to 5 that his clients, namely, Ramesh Kumar, brother of the husband, Ram Pyari, mother of the husband and Bharti sister-in-law of the husband-accused cannot be alleged to be involved in the commission of the crime and were rightly acquitted by the High Court. There is no evidence produced by the appellant worth the name against the aforesaid respondents. Even PW Nos.5 and 6 have not brought on record any incriminating circumstance attributable to the aforesaid accused which could be made the basis for their conviction. Ram Kishan, PW-5 in his deposition before the Court had stated that “after the marriage Rakesh Kumar, accused raised a demand of Rs. 15,000 for a scooter and refrigerator. We fulfilled that demand by giving Rs. 20,000 to him for scooter and refrigerator…..Rakesh Kumar used to threaten Sunita that she would be done to death because of having inadequate dowry. On 21st September, 1988 Sunita had come to my younger brother Tarsem in connection with a ceremony concerning his son. She also visited us as the house of Tarsem Kumar is close to our house. She stayed with us for the night. We gave her customary present i.e. clothes etc. and cash amount of Rs. 500 . She apprehended danger to her life in the house of her in-laws and was not willing to go there”. He has not referred to any demand of dowry or harassment by the respondents except Rakesh Kumar. Tarsem Kumar, the other brother of the deceased at whose residence she had gone on 21st September, 1988 has not been produced as a witness in the case. Kans Raj PW6, the father of the deceased stated before the Trial Court that Sunit Kumari had told him that she was being taunted by her mother- in-law Ram Piari, accused Ramesh Chander and his wife Bharti accused besides her husband Rakesh Kumar. The details of the alleged taunting have not been spelt out. The only thing stated is that the accused used to tell the deceased that she being the daughter of BJP leader, who used to boast about his financial position had brought inadequate dowry. He further stated that various sums of money and the colour TV was given to Rakesh Kumar on his demand. Amar Nath and Janak Raj, President and General Secretary of Mahajan Sabha respecively and one Kundan Lal Gaba were taken by him to the residence of the accused persons. The deceased was alleged to have been taunted again in presence of the aforesaid witnesses. However, none of the aforesaid witnesses supported the case of the prosecution. In the light of the evidence in the case we find substance in the submission of the learned Counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No. 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
14. The Supreme Court in the case of Monju Roy & Ors. v. State of West Bengal reported in II (2015) DMC 327 (SC)=IV (2015) SLT=586=IV (2015) DLT (CRL.) 5 (SC)=(2015) 13 SCC 693 has held as under:
“8. While we do not find any ground to interfere with the view taken by the Courts below that the deceased was subjected to harassment on account of non-fulfilment of dowry demand, we do find merit in the submission that possibility of naming all the family members by way of exaggeration is not ruled out. In Kans Raj (2000) 5 SCC 207, this Court observed: (SCC p.215, para 5) “5…..A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case”.
The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in the absence of any specific role and material to support such role.
11. The Court has to adopt a pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in in golden scales. At the same time, omnibus allegation against all family members particularly against the brothers and sisters and other relatives do not stand on the same footing as husband and parents. In such case, apart from general allegation of demand of dowry, the Court has to be satisfied that harassment was also caused by all the named members.”
15. The Supreme Court in the case of Geeta Mehrotra & Anr. v. State of U.P. & Ors. reported in III (2012) DMC 482 (SC)=VIII (2012) SLT 152=IV (2012) DLT (CRL.) 626 (SC)=IV (2012) CCR 405 (SC)=(2012) 10 SCC 741, has held as under:
“17. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482, Cr.P.C, the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz.: (Ramesh case (2005) 3 SCC 507, para 4)
‘(i) that the allegations are frivolous and without any basis;
(ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the Court at Trichy and, therefore, the learned Magistrate lacked territorial jurisdiction to take cognizance of the offence and
(iii) taking cognizance of the alleged offences at [that] stage [was] barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C.’
Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
18. Their Lordships of the Supreme Court in Ramesh case had been pleased to hold that the bald allegations made against the sister-in-law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the Magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Sections 498-A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister-in-law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.”
16. Thus it is clear that merely bald allegations have been made against the relatives of the husband without there being any specific overt act on their part and sending those persons to the ordeal of trial will not be proper. So far as the judgment of the Supreme Court passed in the case of Taramani Parakh (supra) is concerned, the allegations in that case were against the husband and father-in-law and mother-in-law. The question that whether any distant relative or the married sister of the husband against whom no specific overt act has been alleged and merely bald and vague allegations have been made then whether they should be compelled to face the ordeal of trial or whether the proceedings should be allowed to continue against them was not in question. Thus, the judgment passed in the case of Taramani Parakh (supra) being distinguishable in the facts and circumstances of the case has no application in the present case of applicants Nos. 2 to 6.
17. So far as the case of the applicant No. 1 is concerned, there is specific allegation against her that she was not allowing the respondent No. 2/complainant to serve food to her husband. Furthermore, in view of the judgment passed in the case of Taramani Parak (supra), this Court is of the view that there is prima facie evidence against the applicant No. 1 and, therefore, the Trial Court did not commit any mistake in taking cognizance against her.
18. It is next contended by the Counsel for the respondent No. 2 that as the order under challenge is a revisable order and, therefore, this petition under Section 482 of Cr.P.C. is not maintainable. It is well-established principle of law that the petition under Section 482 of Cr.P.C. cannot be dismissed merely on the ground that the order under challenge is revisable. Furthermore, when this Court has come to a conclusion that in absence of any allegation with regard to any specific overt act on the part of the applicant Nos. 2 to 6, the order taking cognizance against the applicant Nos. 2 to 6 is bad and, therefore, under these circumstances it would not be appropriate for this Court to dismiss this petition only on the ground that order under challenge is revisable and no revision before the Sessions Court has been filed by the applicants. Accordingly, under the facts and circumstances of the case, the submissions made by the respondent No. 2 for dismissal of this petition on the ground of non-existing the remedy of criminal revision is rejected.
19. Consequently, this petition is partly allowed. The order taking cognizance against the applicant No. 1 by the Magistrate is hereby maintained. The order taking cognizance against the applicant Nos. 2 to 6 is hereby quashed.
The petition is accordingly disposed of. No order as to costs.
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