Judgment - Section 498A - Quashing

Court: Allahabad High Court

Bench: JUSTICE Vinod Prasad

RUBI & ORS. Vs. STATE OF U.P. & ANR. On 16 March 2007

Law Point:
Cruelty, Dowry Demand — Summoning of younger members of family, unjustified. At stage of summoning it is not law that even younger members of family be also summoned to stand trial along with elders even though no specific allegation made against them and their complicity in crime prima facie mala fide and purposive — Levelling general allegations against all family members including unmarried younger girls and boys without specification is practice to be curbed because it will amount to great injustice to ask unmarried younger daughters and brothers to stand trial only because of their relationship with husband.

JUDGEMENT

1. The conglomeration of a dozen of revisionists in this revision consists of a pair of families of two sibling brothers namely Sarfuddin (Revisionist No. 6) and Riazuddin (Revisionist No. 7) both sons of Sirazuddin. Munni Begum and Smt. Maina Begum, revisionist Nos. 4 and 8 are their wives and Rubi (No. 1), Shammo ( No. 5), Bantu (No. 9), Jafruddin @ Fauzi ( No. 11) and Faquddin ( No. 12) are the children of revisionist Nos. 6 and 4 while Batto (No. 2), Shaira ( No. 3) and Shanu ( No. 10) are the issues of revisionist Nos. 7 and 8. Jointly the two families have challenged their summoning order dated 24.10.2005 passed by ACJM, 1st, Agra, in case No. 2451 of 2005, Wahabuddin v. Sharfuddin for offences under Sections 498A and Section 4, D.P. Act relating to Police Station Lohamandi, District Agra in this revision with the prayer to quash the same, the subsequent prayer being that the proceeding of the aforesaid case pending in the lower Court be stayed pendente lite.

2. The narration of facts indicates that an application under Section 156(3), Cr.P.C was filed by informant respondent No. 2 Wahajuddin @ Wajid Hussain and it seems that the order for investigation was passed by the concerned Magistrate on the said application which resulted into registration of FIR of crime number 115 of 2004 under Sections 498A, 323, 504, 506, IPC and Sections 3/4, D.P. Act at Police Station Lohamandi, District Agra on 15.5.2004. The allegations levelled in the FIR were that the two daughters of the informant namely Kausar Jahan and Kuresh Jahan were married to the two brothers Faqruddin and Jafruddin @ Fauzi, revisionist Nos. 11 and 12, on 20.2.2004 at 38/127 Motikunj, Lohamandi, District Agra. The informant had spent Rs. 3 lakh each in those marriages and had given a lot of dowry including Hero Honda Motor Cycle, Fridge, Colour TV, Washing Machine, Cooler, etc. besides gold and silver ornaments but the family members of in-laws’ house started demanding a Maruti car also in the marriage and because of non-fulfilment of the said demand started torturing the two brides. The two wives made a complaint to the informant regarding the said torture which included physical assault also. Informant along with Iqbal, Jamaluddin, Mohd. Hanif and others tried to pacify the family members of the in-laws’ house on which the two wives were brought back to the in- laws’ house. On 6.5.2004 the accused demanded money from the brother of wives on the pretext of defending the grooms in criminal cases pending against them under Gangsters’ Act and Prevention of Cow Slaughter Act. On inability being shown by the brother to fulfil money demand the two wives were beaten by shoes in front of the brother. With other allegations it is averred that on 8.5.2004 the two sister brides were assaulted and were left near Usha Devi hospital by the accused. The informant picked them up and got them hospitalised and medically examined. The injury reports of the two wives, filed cumulatively, along with the counter affidavit as Annexure CA 3 indicates that the two wives sustained injuries. The police after registration of the FIR investigated the matter and after due investigation submitted final report No. 37 of 2004 on 8.7.2004 in the Court. The informant Wahajuddin @ Wajid Hussain was noticed by the Trial Magistrate who filed a protest petition against the acceptance of the final report on 4.5.2005. From the impugned order it transpires that the Magistrate, on the said protest petition recorded the statement of the informant and also examined Kaushal Jahan CW 1, Kuresh Jahan CW 2 and Mehrajuddin CW 3. After recording the said statements the Magistrate found prima facie case being disclosed against the revisionists and, consequently, by passing the impugned order dated 24.10.2005 the Magistrate A.C.J.M. I, Agra summoned the revisionists for offences under Section 498A, I.P.C. and Section 4 D.P. Act and fixed 20.11.2005 for their appearances, which order is under challenge in the present revision.

3. I have heard Mr. Imran Ullah, Mr. R.P. Dwivedi and Mr. Hitash Pachuri appearing for the respective sides as well as the learned A.G.A. for opposition and have perused the impugned order.

4. Learned Counsel for the revisionists contended that in this case the whole family of two brothers have been implicated falsely because of ulterior motives. He contended that from the array of the parties it is crystal clear that three of the revisionists Kumari Rubi, Kumari Batto and Kumari Shairra are the unmarried girls. So far as other revisionists are concerned Shammo is the devar and so are Bantoo and Shanu. Learned Counsel for the revisionists contended that the implication of all the family members is nothing but indicative of the fact that the F.I.R. was filed with malicious intention. Learned Counsel further contended that the police investigated the matter and had rightly submitted the final report. He further contended that no dowry demand was ever made and in fact the wives Kausar Jahan and Kuresh Jahan had left the house of the revisionists on their own accord. Learned Counsel for the revisionists contended that Kausar Jahan and Kuresh Jahan were married two brothers Faqruddin and Jafruddin @ Fauzi, revisionist Nos. 11 and 12 in this revision and because of inter se dispute between husbands and wives false case has been instituted. Learned Counsel contended that so far as the unmarried girls and devars are concerned there is no specific allegation against them either in the F.I.R. Nor in the statements. He submitted that under Section 161, Cr.P.C. Kuresh Jahan one of the wires had stated before the Investigation Officer that no demand of dowry was made and she had sustained injuries because she had slipped. He submitted that the said statement is appended as annexure No. 3 to the affidavit filed in support of this revision. Learned Counsel contended that there had been a compromise between Wahajuddin @ Wajid Hussain, Kausar Jahan and Kuresh Jahan as the first party and Sarfuddin, Faqrruddin, Jafuddin as the second party that both the husbands and wives will seek divorce from each other and the cases instituted against the husbands and in-laws being Crime Number 115 of 2004, under Sections 498A, 323, 504, 506, I.P.C. shall be withdrawn on the basis of the compromise. Learned Counsel further submitted that from the perusal of the said compromise it is clear that all the articles given in the marriage were returned to the respective sides. He submitted that though the said compromise (Annexure No. 5) is denied but with a tongue and cheek. Learned Counsel for the revisionists submitted that the protest petition was filed only for the purposes of harassment and in fact two contradictory applications were filed in respect of the final report. In one application (Annexure No. 7 to the affidavit) it was mentioned that the final report be accepted and the other is for rejecting the final report. On the first application Trial Magistrate has ordered that it is in the interest of justice to hear the respective wives as well vide his order dated 22.11.2004. He contended that subsequent thereto just to squeeze money, another application was filed with the prayer that the final report be rejected. He concludingly submitted that the prosecution of the revisionists is vexatious, mala fide and has been launched with ulterior motives and therefore it should be quashed and the revision should be allowed.

5. Learned Counsel for the informant on the contrary contended that there is no illegality in the summoning order and all the revisionists were rightly summoned by the Trial Court. Learned Counsel for the respondent informant along with the learned A.G.A. further submitted that at the stage of summoning disputed questions of fact cannot be critically appreciated and, therefore, the revision should be dismissed. They further contended that at the stage of summoning only the prosecution allegations are to be looked into without any addition or substraction and since there are allegations of demand of dowry and torture, therefore summoning order under Sections 498A, I.P.C. and Section 4, D.P. Act is fully justified and the instant revision being meritless deserves to be dismissed.

6. I have considered the submissions made by the rival sides and have perused the record of this criminal revision. From the allegations levelled it is clear that the dispute is between two couples who are real sisters on the one side and two real brothers on the other. The array of the parties and the allegations can be conveniently fragmented in respect of accused persons in-so-far as torture and demand of dowry is concerned, because to implicate all the family members in such matters is not uncommon. Therefore, the revisionists can be bracketed into two broad categories. One group consists of two husbands, their parents, uncles and aunts, the other group consists of unmarried daughters and younger brothers (devars). From the allegations levelled in the F.I.R. the demand was alleged to be of a Maruti car. It is not understandable that a Maruti car will be demanded even by the unmarried sister and younger brother and for that they will assault the two wives who are the real sisters. The allegation which has been levelled in the F.I.R., the protest petition, as well as in the statements clearly indicate that nothing specific has been alleged regarding the unmarried sisters and the younger brothers (devars) but for cursory allegations of a general nature. The trial Magistrate, while summoning all the accused persons under Section 204, Cr.P.C. has not examined the allegations from the point of view as to whether the allegations in respect of unmarried sisters and devars can be said to be correct or not. At the stage of summoning it is not the law that even younger members of the family be also summoned to stand the trial along with the elders even though no specific allegation is made against them and their complicity in the crime prima facie seems to be mala fide and purposive. Law is not static. The allegations levelled has to be judged from a pragmatic point of view. Levelling general allegations against all the family members including the unmarried younger girls and boys without specification is a practice which is to be curbed because it will amount to great injustice to ask the unmarried younger daughters and unmarried younger brothers to stand the trial only because of their relationship with the husband. From the impugned order also it is not clear as to why unmarried daughters and younger brothers have been summoned by the Trial Court. The practice of implicating all the members in such dispute which are in the nature of a family fued is not uncommon. Implication of all the family members irrespective of their age generates feeling of bickering in two families and even poison the minds of innocent children. The harassment of the younger ones by an unscrupulous relative should not be permitted. The Apex Court has also gone into some detail on similar aspect of the matter in case reported in I (2005) DMC 554 (SC)=II (2005) SLT 734=2005 All.CC 45, Ramesh and Others v. State of Tamilnadu. On the facts of that case it has been observed by the Apex Court in paragraph 6 of the aforesaid judgment as follows:

“Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant-Gowri Ramaswami. Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none of the alleged offences, under Sections 498A, 406 of the I.P.C and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant’s husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e., between March and October, 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of informant by her sister-in-law (appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant to wash W.C. and she used to abuse her and used to pass remarks such as “even if you have got much jewellery, you are our slave”. It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in-law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeals stands allowed.

7. In the instant case from the material on record nothing is elicited so far as the revisionists Km. Rubi, Km. Batto, Km. Shairra, Shammo, Bantoo and Shanu who are minor and unmarried are concerned. These names are mentioned in a casual way and from the compromise it transpires that they have nothing to do with demand of dowry and they are being harassed only to seek vengeance from them as they are relatives of husbands.

8. I am of the opinion that nobody should be harassed merely because he is a relative of the husband. Section 498A, I.P.C. has been enacted to protect the wife from the harassment by her husband and her relatives but this does not mean that even unmarried children should also be dragged into the litigation to spoil their life and ruin their carrier. I am not at all satisfied from the material on record that it could have been said with certainty that the unmarried girls and devars also were demanding a car. In the counter affidavit also nothing has been brought on record which can show that the unmarried younger ones had also played a role in committing offences under Section 498A, I.P.C. and Section 4, D.P. Act. What has been stated in the counter affidavit is specific in respect of husband, their parents, uncle and aunt.

9. From the discussions made above, I am of the view that so far as revisionist No. l Kumari Rubi, revisionist No. 2 Kumari Batto, revisionist No. 3 Kumari Shairra, revisionist No. 5 Shammo, revisionist No. 9 Bantoo and revisionist No. 10 Shanu are concerned there was no sufficient reason for summoning them and their prosecution is vexatious, mala fide and purposive and hence impugned order in their respect is quashed.

10. However, impugned order is maintained so far as other revisionists who are the two husbands, father-in-law, uncle-in-law, mother-in-law and aunt-in-law are concerned and, therefore, this revision is dismissed in respect of revisionist No. 4 Munni Begum, revisionist No. 6 Sarfuddin, revisionist No. 7 Sirajuddin, revisionist No. 11 Jafruddin @ Fauzi and revisionist No. 12 Faqruddin. The stay order granted by this Court in their respect dated 12.1.2006 stands vacated.

11. With the aforesaid order this revision stands allowed in part.

A copy of this order be sent to the Trial Court for its intimation and further action.

Revision partly allowed.

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