Monday, December 17, 2007

SC: 498-A/406 charges quashed

http://judis.nic.in/supremecourt/qrydisp.aspx?filename=30059
CASE NO.:Appeal (crl.) 1716 of 2007
PETITIONER:ONKAR NATH MISHRA & ORS.
RESPONDENT:STATE (NCT OF DELHI) & ANR.
DATE OF JUDGMENT: 14/12/2007
BENCH:ASHOK BHAN & D.K. JAIN
JUDGMENT:J U D G M E N T[Arising out of S.L.P. (Criminal) No. 2516 of 2007)
D.K. JAIN, J.:
Leave granted.2. This appeal by the three accused arises out of the order dated 5.3.2007, passed by the High Court of Delhi, dismissing the Criminal Revision Petition No. 92 of 1998 filed by them. In the said petition, a prayer was made by the appellants to quash the charge sheet and the consequential proceedings arising out of First Information Report (F.I.R) No. 155 of 1995, instituted in the court of Metropolitan Magistrate, New Delhi. Appellants No. 1, 2 and 3 are respectively the father-in-law, sister-in-law and the husband of the complainant. 3. A few facts, leading to the present proceedings and necessary to dispose of the appeal are: The marriage between the complainant and appellant No. 3 was solemnized at New Delhi on 5.12.1993. After the marriage, the complainant was residing at her matrimonial home in Delhi. It appears that there was some matrimonial discord between the complainant and her husband, appellant No. 3, which resulted in filing of a complaint by the complainant on 17.5.1994 in the Crime against Women (CAW for short) Cell, Delhi, inter alia, alleging that she was harassed by her husband and in-laws. However, the matter was compromised on 26.6.1994 and as agreed, on 3.7.1994, the complainant joined her husband at Bijnore (U.P.), where he was posted. However, she returned back to her parental home in Delhi in mid-August 1994, as she was expecting a child. 4. On 8.11.1994, she lodged another complaint in CAW Cell. The said complaint was the foundation for registration of F.I.R. No. 155 of 1995, alleging commission of offences by the appellants under Sections 498A, 406/34 of the Indian Penal Code (I.P.C., for short). For the sake of ready reference, the same is extracted below:I, Neetu, d/o R.P. Dixit W/o Ashutosh Misra wish to inform you that as per compromise in the Cell on 22.6.1994 with my husband I went to Bijnore on 3.7.1994 on the suggestion of my husband I came to Delhi along with my parents on 12.8.1994 for delivery. I gave birth to a son on 4.9.1994. My husband came to hospital on 5.9.1994 and requested me to come to Bijnore after 40 days. He gave me no money for expenditure. When I left Bijnore he gave me only Rs.1/- only. I did not receive any phone from him till 7th November, 1994. Then I phoned him and told him that he was required to go to Cell on 28.10.1994. He told me that he has no time to go to Cell and to bring me to Bijnore. You can come to Bijnore if you apologize to my father. Keep him happy, obey my sister and talk to your father to give you Rs.50,000/- and VCR to bring with you. Then I can come to bring you. If you come here alone with the child, we will give you good beatings. My husband came to Rajouri Garden every Saturday  Sunday in September  October and on Dushera & Diwali. This can be verified from neighbour Hira Lal and Smt. Nirmala Sharma, President Mahilla Jagriti Samiti. Almost 2 weeks ago, Hira Lal informed me that my husband took away all my belongings with him at 4 A.M.In view of above facts, I think these three persons are conspiring. Therefore, I request that my case may be re-opened and my father-in-law, husband and sister-in-law may be punished.(emphasis supplied)
5. As noted above, on the basis of the said report, an F.I.R. was registered on 4.4.1995, wherein date and hours of occurrence was mentioned as 5.12.1993 to 12.8.1994. Before the registration of the F.I.R., another statement of the complainant was recorded wherein she alleged misbehaviour on the part of her father-in-law, appellant No. 1. In the said statement, she stated that, my father-in-law and sister-in-law clearly warned him that till the time I will not bring Rs.50,000/- cash and V.C.R. they will not keep me. She also alleged that when she asked for return of the Stridhan, they refused to return the same with fraudulent intentions. After investigation by the CAW Cell, the charge-sheet was filed on 15.7.1995. In the charge-sheet, it has been recorded that despite issue of notice under Section 160 Cr.P.C. to the complainant and her father by the ASI, neither the complainant nor her father turned up to take back her Stridhan , which was alleged to be with the appellants. It has been noted that the complainant does not want to take back her Stridhan. 6. At the time of framing of charge, the Metropolitan Magistrate came to the conclusion that no case under Section 406 had been made out against any of the accused and further case under Section 498A was also not made out against the father-in-law and sister-in-law, being appellants No. 1 and 2. Accordingly, he discharged all the appellants for offences under Section 406 I.P.C. and appellants No. 1 and 2 for offences under Section 498A I.P.C. 7. Against the said order, the State preferred Revision Petition to the Sessions Court. Vide order dated 24.1.1998, the Additional Sessions Judge came to the conclusion that a prima facie case under Sections 498A and 406 I.P.C. was made out against all the appellants. Accordingly, he directed the trial court to proceed with the case against all the appellants under Sections 498A/406/34 I.P.C. and frame the charges accordingly. 8. Being aggrieved, the appellants filed a Criminal Revision Petition before the High Court. As noted above, the said Revision Petition was dismissed. It is this order of the High Court, which is questioned in this appeal. 9. Appellant No. 1, appearing in person, argued the case on behalf of all the appellants. It was vehemently contended that the Additional Sessions Judge as well as the High Court have failed to appreciate that the first complaint dated 8.11.1994 lodged by the complainant on the CAW Cell, which was the foundation for the registration of F.I.R. No. 155 of 1995, did not contain any allegation of demand of dowry or harassment by appellants No. 1 and 2. It was submitted that even if the allegations in the statement of the complainant dated 4.4.1995 are taken at their face value, yet the appellants cannot be connected with offences under Sections 406 or 498A I.P.C., particularly when admittedly after 3.7.1994, when she joined her husband at Bijnore, she had never lived with appellants No. 1 and 2. It is asserted that the said statement was an after thought, made after almost 8 months of the alleged occurrence. 10. Learned counsel appearing on behalf of the complainant and the State supported the view taken by the High Court. 11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 12. In State of Karnataka Vs. L. Muniswamy , a three judge Bench of this Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a persons liberty substantially, need for proper consideration of material warranting such order was emphasized. 13. Then again in State of Maharashtra and others Vs. Som Nath Thapa and others , a three judge Bench of this Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245 (1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus:if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.
14. In a later decision in State of M.P. Vs. Mohanlal Soni , this Court, referring to several previous decisions held that the crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.15. Having noted the broad guidelines to be kept in view while deciding whether or not a charge against the accused is to be framed, we may advert to the facts of the present case to decide whether on the basis of the material placed before the trial court, it can reasonably be held that a case for framing charges against the appellants under Sections 498A and 406 I.P.C. exists. However, before undertaking this exercise it would be apposite to briefly note the essential ingredients of Sections 406 and 498A I.P.C. 16. According to Section 405 I.P.C., the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. (See: The Superintendent & remembrancer of Legal Affairs, West Bengal Vs. S.K. Roy )17. The term cruelty, which has been made punishable under Section 498A I.P.C. has been defined in the Explanation appended to the said Section, to mean: (i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or (ii) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, the consequences of cruelty, which are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand are required to be established in order to bring home an offence under Section 498A I.P.C. 18. In the present case, from a plain reading of the complaint filed by the complainant on 8.11.1994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the Stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 I.P.C. It is manifestly clear from the afore-extracted complaint as also the relevant portion of the charge-sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. Furthermore, it is also noted in the charge-sheet itself that the complainant had refused to take articles back when this offer was made to her by the Investigating Officer. Therefore, in our opinion, the very pre-requisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 I.P.C. was made out. 19. As regards the applicability of Section 498A I.P.C., in the complaint dated 8.11.1994 there is not even a whisper of a wilful conduct of appellants No. 1 and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498A read with Explanation thereto. The complaint refers to the talk the complainant purports to have had with her husband, appellant No. 3, who is alleged to have told her to come to Bijnore if she apologizes to his father; keeps him happy; obeys his sister and talks to her father (complainants) to give her Rs. 50,000/- and V.C.R. and brings these articles to Bijnore. We are convinced that the allegation of misbehaviour on the part of appellant Nos.1 and 2 and the demand of Rs. 50,000/- and V.C.R. by them made by the complainant in her subsequent statement, dated 4.4.1995, was an after thought and not bona fide. Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.20. Consequently, we allow the appeal partly; quash the charge framed against all the appellants under Section 406 I.P.C.; quash the charge framed against appellant Nos. 1 and 2 under Section 498A I.P.C. and dismiss the appeal of appellant No. 3 against framing of charge under Section 498A I.P.C. Needless to add that the trial court shall now proceed with the trial untrammeled by any observation made by the Additional Sessions Judge and upheld by the High Court in the impugned order or by us in this judgment.

Saturday, December 15, 2007

IPC 306 Quash Petiton rejected

http://judis.nic.in/supremecourt/qrydisp.aspx?filename=29935

CASE NO.:Appeal (crl.) 1643 of 2007
PETITIONER:Didigam Bikshapathi & Anr
RESPONDENT:State of A.P.
DATE OF JUDGMENT: 29/11/2007
BENCH:Dr. ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:J U D G M E N T
CRIMINAL APPEAL NO. 1643 OF 2007(Arising out of S.L.P. (Crl.) No. 2205 of 2006)

Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Andhra Pradesh High Court, dismissing the petition filed by the appellants under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Prayer was to quash the proceedings in SC No.498 of 2001 on the file of VII Additional Metropolitan Sessions Judge, Hyderabad, initiated against them for commission of offence punishable under Section 306 of the Indian Penal Code, 1860 (in short 'IPC').
3. Accusations which led to the institution of the proceedings are essentially are as follows:
Budida Krishnamurthy (hereinafter referred to as the 'deceased') had close friendship with the appellant (A1). About four years back he appointed deceased and others as field officers in his finance firm namely; Uma Hire Purchase and Finance. While so, the appellant no.1 joined as a partner in Kanaka Mahalaxmi Real Estate Ventures run by Mekala Ravi and Mekala Venu. The deceased and two other field officers namely; Budida Laxmaiah (L.W.7) and Thandra Mallaiah (L.W.8) sold about 15 plots in that group to Kommaipalli villagers and collected various amounts from them and handed over the same to the appellant no.1. As he did not pay the money to the Kanaka Mahalaxmi Real Estate Ventures, the other partners did not register the plots in favour of the persons, who paid the money to the deceased. Since the deceased demanded for registration of the plots in favour of the prospective purchasers, he (appellant no.1) escaped with his family from Jangaon and was staying at his in-laws house. The deceased went there and demanded registration of the plots, but the appellants abused him in filthy language and the accused neither registered the plots nor returned the amount. Due to the mental harassment and unable to bear the pressure from the purchasers of the plots, the deceased committed suicide by falling under an un-known train in the night of 17.4.2001 leaving a suicide note narrating the reasons for his committing suicide.
4. Before the High Court the stand was that the ingredients necessary to constitute offence under Section 306 IPC are absent. There is no element of abetment. The High Court did not accept the contention taking note of the statement made in the suicide note. The High Court felt that this was not a fit case where the jurisdiction under Section 482 of the Code is to be exercised.
5. In support of the appeal learned counsel for the appellant submitted that there was no question of abetment. Merely because the person committed suicide having been insulted and humiliated due to the comments or utterances made by the accused, that does not constitute an offence punishable under Section 306 IPC. Therefore, the High Court ought to have quashed the proceedings. Strong reliance was placed on a decision of this Court in Netai Dutta v. State of West Bengal (2005 AIR SCW 1326). Further it was submitted that there was only a vague reference to appellant no.2 wife of appellant no.1, and on that score, the appeal deserves to be allowed so far as she is concerned.
6. In response, learned counsel for the respondent submitted that the suicide note clearly refers to various acts of the appellants due to which the unfortunate step of committing suicide was taken by the victim and in any event it is not a fit case where jurisdiction under Section 482 is to be exercised.
7. Section 482 does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court, to allow any action which would result in injustice and prevent promotion of justice, fn 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 court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.8. In R.P. Kapur v. State of Punjab AIR 1960 SC 866 this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.9. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.(5) Where the allegations made in the FIR or "complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code. or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code. or Act concerned, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."10. As noted above, the powers possessed by the High Court under Section 482 of the Code. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.( See State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 and Minu Kumari v. State of Bihar AIR 2006 SC 1937)
11. The suicide note clearly refers to the background in which the victim took the extreme step of taking away his own life by committing suicide. It is not a case where there is no reference to any act by the accused. In Netai Dutta's case (supra) para 6 it was observed as follows:
"6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag."
12. In the instant case the suicide note clearly refers to the acts of the accused-appellant and the roles played by them. Therefore, the High Court rightly rejected the prayer of exercise of power under Section 482 of the Code. We make it clear that any observation made by the High Court and by us while dismissing of the present appeal shall be construed to be determinative factor in the trial.

SC Citations 498-A Judgements

Supreme Court Judgments on IPC-498a
1 Satyajit Banerjee and others v. State of West Bengal and others (SUPREME COURT OF INDIA)
Date of Judgment : 23/11/2004
Indian Penal Code, ss. 498A, 306 - Trial Court acquitted accused but High Court set aside acquittal and directed a de novo trial - Whether High Court right in directing examination of additional witnesses under s. 311 in revision?; whether direction of High Court to trial court to record further evidence and take a 'fresh decision from stage one' is without jurisdiction? - Held, direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence - Even if a retrial is directed in exercise of revisional powers by High Court, evidence already recorded at initial trial cannot be erased or wiped out from record of case - Trial Judge has to decide case on basis of evidence already on record and additional evidence which would be recorded on retrial - Clarified and reiterate that trial Judge, after retrial, shall take a decision on basis of entire evidence on record and strictly in accordance with law....


2 Ruchi Agarwal v. Amit Kumar Agrawal and Others (SUPREME COURT OF INDIA)
Date of Judgment : 5/11/2004
Quashing of criminal complaint - Alleging offences under ss. 498A, 323 and 506 IPC, and ss. 3 and 4 of Dowry Prohibition Act - Quashing on ground of lack of territorial jurisdiction - Whether quashing of criminal complaint sustainable? - Held, that appellant having received relief she wanted without contest on basis of terms of compromise, cannot now accept argument of appellant - Conduct of appellant indicates that criminal complaint from which this appeal arises was filed by wife only to harass respondents - It would be an abuse of process of court if criminal proceedings from which this appeal arises is allowed to continue....



3 Rajkumar v. State of Madhya Pradesh (SUPREME COURT OF INDIA)
Date of Judgment : 14/9/2004
Indian Penal Code. 1860, s.302 - duty of the prosecution to establish that the accused had or necessarily would have remained at the house around the time when the attack took place - barring the evidence of PW8 who claimed to have seen the accused at 9.00 a.m. at his house, there is no other evidence to establish the presence of the accused in the house proximate to the time of occurrence - vital link in this behalf is missing in the case - no motive has been proved or seriously suggested for inflicting fatal injuries on the pregnant wife whom the accused married a year back - in a case based on circumstantial evidence, this factor also should be kept in view - no reason to set aside findings of trial court - appeal allowed....



4 Y. Abraham Ajith and others v. Inspector of Police, Chennai and another (SUPREME COURT OF INDIA)
Date of Judgment : 17/8/2004
Code of Criminal Procedure, 1973, s. 482 - Prayer for quashing proceedings - Single Judge of the Madras High Court rejected prayer - Whether judgment of Single Judge sustainable? - Held, in factual scenario disclosed by complainant in complaint petition, inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, concerned magistrate had no jurisdiction to deal with matter - Proceedings are quashed....


5 Sushil Kumar v. State of Haryana (SUPREME COURT OF INDIA)
Date of Judgment : 10/8/2004
Indian Penal Code, ss. 304B, 498A - Conviction - Appeal against conviction - Whether conviction sustainable? - Held in absence of any evidence to show that victim was subjected to cruelty or harassment soon before death, no offence under s. 304B is made out - Absolutely no evidence of coercion, conviction under s. 498A becomes unwarranted - Convictions and sentences of appellant set aside...


6 Sakatar Singh and Others v. State of Haryana (SUPREME COURT OF INDIA)
Date of Judgment : 13/4/2004
IPC, ss.306, 498A r/w s.34 - Prosecution has not established allegation of demand - Based on erroneous inferences drawn on unproved facts and placing reliance on statements of interested witnesses trial court came to a wrong conclusion as to guilt of accused persons - High Court failed to notice its legal responsibility of discussing evidence independently and recording its findings on basis of such independent assessment of its own, because it is first court of appeal on facts - Appeal allowed...


7 The State of Andhra Pradesh v. Raj Gopal Asawa and Another (SUPREME COURT OF INDIA)
Date of Judgment : 17/3/2004
IPC, 1860, ss. 304 B and 498 A and IEA, 1872, s. 113 B - conjoint reading shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment - prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances' - _expression 'soon before' is very relevant - prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates -'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence - hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act - held on facts that in view of the death occurring within the very few months of the marriage, and the evidence of PWs 2, 3, 4 and 6 that shortly before the deceased committed suicide, demand of dowry was made, the plea in untenable. The accusations clearly stand established so far as A-1, respondent no.1 is concerned. So far as accused A-3 is concerned, there is no evidence that he ever made any demand of dowry -- custodial sentence of 7 years would meet the end of justice for respondent no.1 - appeal partly allowed....



8 Hans Raj v. State of Haryana (SUPREME COURT OF INDIA)
Date of Judgment : 26/2/2004
[A] Advocates & Judges - judgments of the learned Additional Sessions Judge and the High Court - constrained to observe that the High Court while disposing of the appeal did not even apply its mind to the facts of the case - disturbing feature noticed by us is that the High Court merely repeated paragraphs after paragraphs from the judgment of the learned Additional Sessions Judge as if those conclusions were its own, reached on an appreciation of the evidence on record - many of the paragraphs are word from word borrowed from the judgment of the learned Additional Sessions Judge without acknowledging that fact - practice deprecated. [B] Deceased committing suicide within seven years of marriage - held, under Section 113-A of the Indian Evidence Act - prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty - even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband - section gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case - allegation is of cruelty, nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498-A I.P.C. to be considered - no automatic presumption that the suicide had been abetted by her husband - held on facts, offence under s.306 not made out - conviction under s.498A ordered....


9 Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of Andhra Pradesh (SUPREME COURT OF INDIA)
Date of Judgment : 24/2/2004
Two dying declarations - if the first is accepted all other evidence led by the prosecution would not help the prosecution to establish a case under section 304B IPC because of the fact that even a married woman harassed by demand for dowry may meet with an accident and suffer a death which is unrelated to such harassment - it is for the defence to satisfy the court that irrespective of the prosecution case in regard to the dowry demand and harassment, the death of the deceased has not occurred because of that and the same resulted from a cause totally alien to such dowry demand or harassment - deceased died within 3 years of her marriage - presumption under section 113B of the Evidence Act is available to the prosecution, - first dying declaration accepted - presumption stands rebutted - unless the prosecution is able to establish that the cause of death was not accidental by evidence other than the dying declarations, the prosecution case under section 304B IPC as against the appellants must fail - on facts convicted under s.498A, IPC....


10 Rishi Anand and another v. Government of N.C.T. of Delhi and others (SUPREME COURT OF INDIA)
Date of Judgment : 20/3/2002
The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., ought to have quashed the criminal proceedings against the appellant as there were no allegations, much less of specific nature, even to remotely connect the appellant with the alleged offence under Section 406 IPC.


11 Baburam v. State of Madhya Pradesh (SUPREME COURT OF INDIA)
Date of Judgment : 29/1/2002
It is extremely dangerous to rely upon the prosecution evidence to base a conviction against the appellant when the prosecution has failed to establish the case against the appellant beyond all reasonable doubt and when there is no motive whatsoever for the appellant to have caused the death or abetted the suicide of the deceased because she failed to bring in sufficient dowry....


12 Satvir Singh and otherswith Tejinder Pal Kaur v. State of Punjab and another (SUPREME COURT OF INDIA)
Date of Judgment : 27/9/2001
Under Section 304 B, it is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, but it should have happened .


13 G. Raj Mallaiah and Another v. State of Andhra Pradesh (SUPREME COURT OF INDIA)
Date of Judgment : 27/4/1995
JUDGMENT: J U D G M E N T S. Rajendra Babu, J. Leave granted. The appellants were chargesheeted for offences arising under Section 304 I.P.C. and Sect ion 3 and 4 of the Dowry Prohibition Act read with section 498A, I.P.C. The allegation made in ...

14 CASE NO.:Appeal (civil) 877 of 2007 DATE OF JUDGMENT: 21/02/2007

PETITIONER:Smt. Mayadevi Vs. RESPONDENT:Jagdish Prasad

JUDGMENT:J U D G M E N T (Arising out of SLP (C) NO. 3686 OF 2006)

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the 'Act').

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent-husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.
[quote] the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the husband to falsely implicate him in a case of dowry demand and to kill the children and to put the blame on the respondent-husband and his family members.[quote]

HIGH COURT ALLAHABAD LUCKNOW BENCH 498-A QUASHED

http://ipc498a.files.wordpress.com/2007/10/lucknow-498a-quash-judgechideswoman.pdf

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH,
LUCKNOW
Writ Petition MB 528 of 2005
Dharm Raj Yadav and others : petitioners
State of U.P. and others : Respondents
Dr. L. P. Misra, learned counsel for the petitioners
Mr. Janardan Singh, learned Additional Government Advocate &
Mr. B. M. Sahai, learned counsel for the complainant
Hon'ble Bhanwar Singh, J., Hon'ble J. M. Paliwal, J.
Dated:10/01/2006
Judgment:
This writ petition has been filed by Sanjeev Kumar Yadav, an Officer of Indian Revenue Service,
posted as Assistant Income-tax Commissioner, Moradabad and his eleven family members. All these
petitioners have challenged the First Information Report of 11th January, 2005, whereupon a case
was registered as Case Crime No.14 of 2005 under Sections 497/498-A/323/504 and 506 read with
511 I.P.C. and 3/4 Dowry Prohibition Act. This F.I.R. was sought to be quashed on the ground of
being per se illegal, malafide and based on concocted facts. During the pendency of petition, chargesheet
dated February 21, 2005 had been filed in a hurried manner as alleged and since mala fide has
been attributed to the Investigating Officer as also the first informant and the latter's father, it is also
sought to be quashed alongwith the criminal proceedings initiated thereupon. After that, another
charge-sheet dated October 25, 2005 has also been filed against all the petitioners. The main dispute
subsists between the husband, namely, Sanjeev Kumar Yadav, the petitioner No.6 and his wife Smt.
Deepti Yadav, the informant.
Shortly stated the facts giving rise to this petition are as follows:-
The complainant Smt. Deepti Yadav, D/o Shri Heera Lal Yadav was married to Shri Sanjeev Kumar
Yadav on 9th December, 1999. Sanjeev Kumar Yadav was then an Officer of Provincial Civil Service
(now he is a member of the Central Civil Service and posted as Assistant Income-tax Commissioner,
Moradabad). After her marriage, she stayed with her husband at the latter's native village. As usual,
the family members and the relatives of Smt. Deepti offered various gifts on the occasion of marriage.
The grandmother of the informant, Smt. Sechna Devi had gifted a Maruti Zen Car. A Marshal Jeep
was offered by Deepti's father but it was retained in his own name in all the relevant documents. The
case of the informant is that her father was compelled by her husband to gift two drafts - one for
Rs.75,000/- and the other for Rs.45,000/- in the name of Rajiv Kumar Yadav (brother of Sanjeev
Kumar Yadav) and two more drafts of Rs.50,000/- and Rs.1 lac in the name of her husband. All these
drafts were encashed by the drawees. The father of the girl also gifted various household items, like, a
Hero Honda Generator set, colour T.V. and other costly items of day-to-day use valued at Rs.4 lacs.
The relatives of the girl also offered as presents various jewellary items to the family members of her
husband. Despite huge expenditures incurred by her father, her husband and his parents were not
happy with the gift/dowry items. As a matter of fact, Sanjeev Kumar Yadav and his family members
had an oblique eye on the ancestral property of her father. They were all greedy persons and used to
pass sarcastic remarks against her father and maligned him as a miser. They were not happy even
though a cash of Rs.15 lacs and garments worth Rs.2 lacs had been offered by her father on the
occasions of 'lagan' and 'tilak' ceremonies. With this greed in his mind, Sanjeev Kumar Yadav
stopped coming to her when she was living at her parents' house in Lucknow and when she
conceived, Sanjeev Kumar Yadav pressed her for abortion. However, she did not agree and in due
course delivered a baby son on 17th December, 2000. In spite of the fact that due intimation was
sent to Sanjeev Kumar Yadav, he did not come to see her and her newly born child. The petitioner
did not keep the informant in her matrimonial home for long and since she was asked to stay with
her parents she came to Lucknow. In the meantime, Sanjeev Kumar Yadav who was preparing for the
Central Civil Service competition started demanding a sum of Rs.5 lacs so as to incur expenditure for
his study etc. The informant's father, despite economical constraints, but keeping in view a concept
of happy life for his daughter, paid the said sum as demanded. But this too was considered to be
inadequate and Sanjeev Kumar Yadav continued to cause her mental and physical harassment. When
the informant's parents contacted her husband's relatives in village Tadwa (Pilkichha) to find out the
cause of Sanjeev Kumar Yadav's indifferent attitude towards the informant, they came to know that
Sanjeev and his family members had expected a dowry of Rupees One crore and a palatial house in
Mahanagar, Lucknow.
The efforts for reconciliation taken recourse to in July, 2001 proved futile. The F.I.R. further
discloses that the greed of Sanjeev Kumar Yadav acquired disproportionate dimensions, when he got
selected in Indian Revenue Service (I.R.S.). He and his family members taking advantage of this
development started demanding a dowry of Rs.10 lacs and a well-equipped and furnished house in
Lucknow. However, such demand was not fulfilled by the informant's father. As a consequence,
Sanjeev Kumar Yadav refused to take her with him to the place of posting, i.e. Moradabad. Being
compelled in the said circumstances, the informant's father took her to that place on August 21,
2004 and she started living with her husband but barely four days after Sanjeev Kumar Yadav
assaulted her and made an abortive attempt to administer her acid. The informant fell seriously sick.
Sanjeev Kumar Yadav brought her to her parents' house in Vishwas Khand on 27th August, 2004
and since then he had not taken care of her. The informant was also beaten when she was living with
him in district Sultanpur, where he was posted as Deputy Collector.
The informant has also accused Sajeev Kumar Yadav for having illicit relationship with one Neelam
Srivastava, Assistant Consolidation Officer, posted at Varanasi. The other family members of Sanjeev
Kumar Yadav were also accused of antagonizing the informant by making taunts and jeering remarks.
All the gift items given by the informant's father including the Martial Jeep had been grabbed over by
the accused-persons.
In such circumstances of strained and bitter relationship, she apprehended a risk to her life and
therefore preferred to stay with her parents at Lucknow. Her husband-petitioner also when under
training at Lal Bahadur Shastri National Academy of Administration, Mussorie declared himself as
unmarried with a view to invite offers for his marriage.
In view of the above averments, the informant alleged that the accused persons have committed
offences under Sections 3/4/6 Dowry Prohibition Act and under Sections 323/307/504/511/506/520
and 498-A I.P.C. It was also mentioned in the report that there was a conspiracy among all the
accused persons including Sanjeev Kumar to harass and victimize the informant and eliminate her
and thereby they committed all the offences under above Sections read with Section 120-B I.P.C.
The petitioners have denied all the above allegations in their petition. According to them, Sanjeev
Kumar had filed a case (Suit No.248 of 2004) on September 3, 2004 for judicial separation against
his wife Deepti, the informant, under Section 10 of the Hindu Marriages Act. The said suit is
pending in the court of Civil Judge (Senior Division), Jaunpur. As a matter of fact, it was in
retaliation of the said proceeding that the informant lodged a false and fabricated F.I.R. on 11th
January, 2005 with the Gomti Nagar Police Station. As regards Zen Car and the demand drafts in
the name of Sanjeev Kumar and his brother Rajiv Kumar, the petitioners have stated that they are the
self-motivated gifts and not the dowry, as no one would take dowry in the form of demand drafts.
Delivery of Martial Jeep has been denied and so was rejected the story of subsequent demand for Rs.5
lacs and Rs.10 lacs. Payment of such amounts has been termed to be a white lie. If initially some
amount was paid by demand drafts why Rs.15 lacs were not paid by way of the same mode,
particularly when relationship between the husband and wife had become strained. The F.I.R.
allegations regarding the informant being assaulted at Sultanpur and Moradabad have also been
termed to be baseless and the theory of administering acid to Deepti was also said to be a strangeful
incident and more strange was the omission in not getting an F.I.R. lodged. Although the coercive
method attributed to Sanjeev Kumar Yadav forcing Deepti to inhale or consume acid being serious in
nature could prove fatal to her life, yet she did not lodge any report or made any complaint which
omission proves hollowness of the said allegation. It is also alleged further that Deepti's father is a
Junior Engineer in Public Works Department. He was not expected to have given huge sums of
Rs.20 lacs or so in cash alongwith a Zen Car. The petitioners have expressed their dismay as they
could not know the intelligible source of the said Engineer having amassed so much of wealth.
Sanjeev Kumar Yadav had disclosed in his petition for dissolution of marriage long before the First
Information Report had been lodged that Smt. Deepti and her parents exerted their undue pressure
upon him to desert his parents and family and stop supporting them but he did not agree to their
suggestion; as a consequence, he was threatened by Deepti and her parents of a serious action like
false case of demand of dowry being concocted against him and his family. It appears that in this
background, the case for dowry has been fabricated to wreak vengeance against Sanjeev Kumar and
his family members. It has also been alleged that one dozen persons of Sanjeev Kumar including
himself have been named as accused of dowry demand and victimization. No one of Sanjeev Kumar
Yadav's family has been left from being framed in this case and this very fact shows the dimensions of
vengeance that Deepti and her father had taken recourse to.
The allegation of illicit relationship with Km. Neelam Srivastava has been termed to be baseless. As
regards the manipulations being conducted by the informant and her father in collusion with the
police, it has been submitted that the Investigating Officer filed a false affidavit on 23rd February,
2005 stating that charge-sheet against all the accused persons had been filed and it was on the basis of
this misleading and false statement that the present writ petition was sought to be dismissed.
The Senior Superintendent of Police, Lucknow transferred the investigation of this case on March 1,
2005 to Shri Brij Kishore Singh, Station Incharge, Hazaratganj. On the face of this development,
submission of the charge-sheet having been submitted a week before i.e. February 23, 2005 seems to
be not only false but also a misleading statement given with a view to play fraud upon the Court. The
investigation conducted by the erstwhile Investigating Officer Shri K.K. Sharma prior to 1st March,
2005 was a farce and even the statements of the witnesses were noted by him without actually
examining them under Section 161 Cr.P.C. Shri K.K. Sharma again misconducted himself by
extending his blind favour to the informant by submitting second charge-sheet dated 25th October,
2005 although he was no longer an Investigating Officer. As a matter of fact, Shri Brij Kishore Singh
who was seized of the investigation, was appointed as Investigating Officer by transfer from Shri K.
K. Sharma by the Senior Superintendent of Police, Lucknow vide his order of March 1, 2005. Thus
both the charge-sheets are manipulated, manufactured and submitted in hurried haste - both times to
mislead the Court with a view to fetch dismissal order of the present writ petition, under the usual
course of practice. The charge-sheets and the criminal proceedings have also been challenged by the
petitioner as a fraudulent act and since manipulations and interpolations are crystal clear on the part
of the local police and the informant, the petitioners should not be subjected to hazardous effect of
criminal proceedings in pursuance of such illegal acts. Even the learned Additional Chief Judicial
Magistrate-II has proceeded to take cognizance without applying his mind, just like putting a rubber
stamp on it. It has also been submitted on behalf of the petitioners that these circumstances - full of
manipulations and interpolations - as narrated above, led to cancellation of the bail of Sanjeev Kumar
Yadav and vacation of the stay order issued earlier by this Court.
It is in the above mentioned background that the petitioners have prayed for a Writ in the nature of
Certiorari quashing the F.I.R. (Annexure 1), both the charge-sheets of 21st February, 2005 and 25th
October, 2005 as also the criminal proceedings pending in the Court of II Additional Chief Judicial
Magistrate, Lucknow.
Mr. Brij Mohan Sahai, learned Counsel appearing on behalf of the opposite party No.5 Deepti Yadav
has argued that this petition has become infructuous following the submission of the charge-sheets
against the petitioners.
Dr. L.P. Mishra, learned Counsel for the petitioners however insisted for hearing of the arguments on
the ground that as the entire investigation and submission of the charge-sheets as also the criminal
proceedings are based on mala fide of the informant, her father and connivance of the Investigating
Officer, this petition deserves to be heard on merit including the objection of Mr. Brij Mohan Sahai.
As counter-affidavit of Smt. Deepti Yadav has been filed on 26th November, 2005, this Court with
the consent of Dr. L.P. Mishra, learned Counsel for the Petitioners and Mr. Brij Mohan Sahai,
learned Counsel for the informant as also Mr. Janardan Singh, learned Additional Government
Advocate proceeded to hear the detailed arguments on merits of the case for final decision.
Whereas the sum and substance of the petitioners' case is that they had been victimized by Deepti
Yadav's version, as recited in her counter-affidavits dated 26th November, 2005 and 4th August,
2005, the informant's contention is that the averments made by her in her report are true and it was
she who was meted out with maltreatment, not only at the hands of her husband but all other family
members of her husband. She was subjected to dowry demand and when she could not meet the
demand of a palatial house at Lucknow and a sum of Rs.10 lacs, she was turned out of her
matrimonial home by her husband. Also she was assaulted and forced to consume/inhale acid during
her stay with Sanjeev Kumar Yadav at Moradabad. Further, she denied in her counter-affidavit that
the First Information Report had been lodged as a sequel to the suit for dissolution of marriage. She
has not yet been served with any notice of the said proceeding.The petition is also sought to be
dismissed on the ground that the petitioner No.6 Sanjeev Kumar Yadav has not yet surrendered
following cancellation of his bail granted to him by the Station Officer, Police Station Gomti Nagar.
It was solely on this basis of Sajeev Kumar Yadav being still absconding that the stay order granted by
this Court had been subsequently vacated on September 9, 2005. The informant has also
controverted the petitioners' allegation that the Court was in any way or manner misled by the
Investigation Officer Shri K. K. Sharma. Shri Sanjeev Kumar Yadav being an absconder does not
deserve to be granted any relief. The petition should be dismissed on this ground alone.
We have heard Dr. L.P. Misra, learned Counsel for the Petitioners, Mr. Janardan Singh, learned
Additional Government Advocate and Mr. Brij Mohan Sahai, learned Counsel for the opposite party
No.5 Deepti Yadav and perused the record.
The first contention pressed into service by Mr. Brij Mohan Sahai, learned Counsel for the informant
is that this petition has become infructuous as the charge-sheets have been submitted against the
petitioner and the Additional Chief Judicial Magistrate II, Lucknow has taken cognizance of the case.
In this Case, Mr. Sahai relied upon a decision of the Apex Court in 'State of Bihar and another v.
P.P. Sharma and another [1991 Cr.L.J. 1438]' and with reference to the findings and observations of
the Apex Court contended that if a Magistrate or Special Judge is seized of the matter, extraordinary
jurisdiction under Articles 226 and 227 of the Constitution should not be exercised.
A careful reading of this case would reveal that the Managing Director of BISCOMAUN an
institution in the Cooperative Sector lodged a report with the police regarding fraudulent
transactions for purchase of 'Suraj Brand N.P.K.' and it transpired that a conspiracy was hatched for
wrongful gain to M/s. Rajasthan Fertilizers Pvt. Ltd. The erstwhile Chairman and some officers were
accused of such fraudulent transactions resulting in wrongful loss to the aforesaid institution as well
as the farmers of the State of Bihar. It was in the background of this case that the Apex Court did not
approve of the High Court's Order regarding quashing of the complaint and proceedings and held in
particular that there was no material to show that the F.I.R. was based on malice or there was any
enmity between the accused and the informant. The question of mala fide exercise of power assumes
significance only when the criminal prosecution is initiated on extraneous considerations and for an
unauthorized purpose. It was also held that the dominant purpose of registering the case against the
accused was to have an investigation done into the allegations contained in the F.I.R. and in the
event of there being sufficient material in support of the allegations to present the charge-sheet before
the Court. The allegations of mala fide were not found of any consequence. Obviously thus, the facts
of the said case were entirely different from the one in hand. In the present case, the wife of Sanjeev
Kumar Yadav hasaccused him of dowry demand and further use of provocative and abusive language
and coercive method to force her to consume acid have been alleged. The relationship between the
two is admittedly strained. During their six years of marriage, they have stayed together for a few
months as would be discussed subsequently. Malice has been attributed to the informant in getting
the F.I.R. lodged and it has pertinently and significantly been alleged by the petitioners that the
Lucknow Court of Criminal Law, i.e. the Second Additional Chief Judicial Magistrate is not
competent on account of lack of territorial jurisdiction over the areas in which the alleged offences of
forcing informant to consume acid, dowry demand and assault had taken place. We would delve
upon the territorial issue in detail, but prior to that, we consider it necessary to deal with the basic
question of law as raised by the learned counsel for the informant that with the submission of chargesheet,
this Court has become functus officio to proceed with the writ petition initially filed under
Article 226 of the Constitution.
This core issue has been answered by this Court in 'Atique Ahmad and another v. State of U.P. and
others [2001 (2) JIC 764 (All)]'. Exactly similar point of law was raised in this case. Rejecting the
argument that the jurisdiction of the High Court of judicial review stands ousted no sooner a chargesheet
has been submitted by the police, the Court held that this Constitutional Court can take into
account the subsequent events in order to do complete justice between the parties and to avoid
multiplicity of litigations.
In this case, the High Court also made a reference to the Apex Court's decision in 'State of Haryana
and another v. Bhajan Lal and others [1992 Supp (1) SCC 335]' and categorically referred to the
guidelines framed by the Apex Court in the said case which for better understanding may be
recapitulated as below:-
" (1) Where the allegations made in the First Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety do not prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence, justifying an investigation by police officers under
Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155
(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of
the proceedings and/or where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge."
Learned Counsel for both the parties have relied upon Bhajan Lal's case (supra) with reference to the
aforesaid guidelines. We would deal with these guidelines while delving upon the allegation of malice
and spite attributed to the informant in getting the First Information Report lodged whereupon
charge-sheets have been submitted and criminal proceedings drawn.
But before that, we may refer to the Pepsi Foods famous case on the point of jurisdiction of this
Court to proceed to decide the writ petition on merit after charge-sheets having been submitted.
The Hon'ble Supreme Court in the abovereferred decision titled as
'Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others [(1998)5 SCC 749]' held that
the High Court can exercise its power of judicial review in criminal matters. Under Article 227, the
power of superintendence by the High Court is not only of administrative nature but is also of
judicial nature.
Pointing out at the powers of the High Court under Article 226 and 227 of the Constitution and
Section 482 Cr.P.C. the Hon'ble Supreme Court held as follows :-
"Nomenclature under which petition is filed is not quite relevant and that does not debar the court
from exercising its jurisdiction which otherwise it possesses unless there is special procedure
prescribed which procedure is mandatory.
If in a case like the present one the court finds that the appellants could not invoke its jurisdiction
under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482
of the Code.
It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some
time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for
correcting some grave errors that might be committed by the subordinate courts.
The present petition though filed in the High Court as one under Articles 226 and 227 could well be
treated under Article 227 of the Constitution."
From the above observations of the Apex Court, it is crystal clear that if a petition has been filed
under Article 226 of the Constitution, it can be treated to be as under Article 227 of the Constitution
and Section 482 Cr.P.C. for providing immediate relief available under the said Section of the Code.
Section 482 Cr.P.C. deals with the abuse of process of law and the Hon'ble Supreme Court held that
the High Court should not shy away in exercising its jurisdiction.
In the penultimate para of the decision, the Hon'ble Supreme Court has observed as follows :-
"It is no comfortable thought for the appellants to be told that they could appear before the court
which is at a far off place in Ghazipur in the State of Uttar Pradesh, seek their release on bail and
then to either move an application under Section 245 (2) of the Code or to face trial when the
complaint and the preliminary evidence recorded makes out no case against them.
It is certainly one of those cases where there is an abuse of the process of the law and the courts and
the High Court should not have shied away in exercising their jurisdiction. Provisions of Articles 226
and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to
frustrate it. In our view the High Court should not have adopted such a rigid approach which
certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this
was a case where the High Court should have exercised it. "
From the above principles of law laid down by the Hon'ble Supreme Court, it is established that if it
is required in the interest of justice to invoke the jurisdiction of this Court, the Court will do so
under its plenary power irrespective of the fact as to whether the provisions of Article 226 or 227 of
the Constitution or of Section 482 Cr.P.C. are invoked. Power of the Court to discharge the accused
at the stage of framing of charge or existence of remedy of appeal and revision is not a bar to invoke
the jurisdiction of the High Court under Article 227 of the Constitution or under Section 482
Cr.P.C.
We are, therefore, inclined to hold that the contention of Mr. Brij Mohan Sahai, learned Counsel for
Deepti Yadav that this Court will stop exercising jurisdiction under Article 227 of the Constitution
nor will it proceed to hear this case on merit simply because the charge-sheets have been submitted in
the Magisterial Court is without any substance.
The said objection is rejected in view of the Hon'ble Supreme Court's decision in Pepsi Foods Ltd.
(supra).
As a consequence, we treat this petition under Article 227 of the Constitution of India and also a
petition under Section 482 Cr.P.C.
We may now refer to the guidelines laid down in Bhajan Lal's case (supra) which have been for
convenience reproduced above. Guidelines no.5 and 7 as determined in the said case are of greater
significance for us to be referred to. Guideline no.5 postulates that the F.I.R. and criminal
proceedings can be interfered with where the allegations made in the F.I.R. or complaint are so
absurd and inherently improbable on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against the accused and similarly guideline
no.7 provides that the High Court can interfere with where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to private and personal
grudge. Relying upon the guideline no.5 of the aforesaid citation, Dr. L.P. Misra, learned Counsel
for the petitioners referred to the recitals of the First Information Report to the effect that Sanjeev
Kumar Yadav had forced the informant to consume/inhale acid during her stay with him at
Moradabad and contended that the said charge is absolutely baseless and imaginary and it goes to the
extent of absurdity, as though such a dastardly attempt was made by the petitioner no.6 in between
21.8.2004 and 27.8.2004, yet neither the complainant, namely, Deepti Yadav nor her parents took
any action for nearly six months.
It would be relevant to quote the said absurd accusation which is as follows:-
"Jh latho dqekj ;kno tc izkfFkZuh dks eqjknkckn] tgka ij lgk;d vk;dj vk;qDr ds in ij rSukr Fks] ugha
ys x;s rc izkfFkZuh ds firk Hkh eq>s fnukad 21-8-2004 dks ogka ysdj x;s A blds pkj fnuds ckn gh Jh
latho dqekj us eq>s ekjk&ihVk vkSj rstkc Mkdyj fiykus dh ps"Vk dh A izkfFkZuh xaHkhj :Ik ls
chekj gks x;h rks esjs ifr Jh latho dqekj us fnukad 27-8-04 dks tcjnLrh esjs firkth ds ?kj y[ku_ fo'okl
[k.M NksM- dj okil dkuiqj pys x;s A rc ls vkt rd esjs ifr Jh laatho dqwekj us dksbZ Hkh esjk ;k esjs
csVs dk gky pky ugha fy;k A"
The above allegations are so absurd and imaginary that had there been an iota of truth in such
allegations, the informant who is a well-educated person would not have tolerated such a grave
misconduct on the part of her husband and certainly she would have lodged a report in Moradabad
itself and if not there, she should have informed the police of Lucknow or the higher authorities of
the petitioner no.6 at Moradabad. The silence on her part further shows that it is a cock and bull
story manufactured by the informant with a view to wreak vengeance with her husband. Such an
incident could be taken to be end of the already strained and bitter relationship. If she was doused
with acid, she must have suffered burn injuries on her person. Medical examination of her injuries
would have proved the occurrence. It is not, that she escaped the attempt but she suffered grievous
setback and fell seriously sick. No explanation about the omission has been offered. We therefore
hold that it was all a bunkum and a manufactured story so as to wreak vengeance upon the petitioner
Sanjeev Kumar Yadav.
Before we proceed to discuss the other allegations of the complaint, it would be most relevant for us
to make a reference to the Hon'ble Supreme Court's decision in 'Y. Abraam Ajith and others v.
Inspector of Police, Chennai and others [2004 SCC (Cri) 2134]' - a decision which deals with the
place of jurisdiction vis-.-vis the offences alleged to have been committed. Incidentally, it was also a
case of strained relationship between the husband and wife. All the alleged offences were committed
according to the complainant at Nagarcoil but the wife filed the complaint at Chennai Court. The
Hon'ble Supreme Court held that no part of cause of action arose in Chennai and therefore, the
Magistrate concerned had no jurisdiction to deal with the matter. Accordingly, the proceedings were
quashed.
In the case in hand also, the alleged offences of an attempt to force the informant to consume acid
and of causing assault to her had taken place at Moradabad. Although it is not clear as to whether the
attempt of administering acid was foiled by the informant nor it is clear what injuries she suffered
during the assault, yet even if there was some substance in it, in such matter with above allegations
only the police of Moradabad District or the Magisterial Court of competent jurisdiction established
there were competent to take cognizance of such accusations and deal with them in accordance with
law. The F.I.R. in question has been lodged with the police of Gomti Nagar Police Station,
Lucknow. Certainly, we would hold that neither the police at Lucknow nor the Court of Second
Additional Chief Judicial Magistrate, Lucknow would be competent to take cognizance of the
offences which were alleged to have been committed at Moradabad. The F.I.R. does not disclose that
either of the two such offences had taken place at Lucknow. Even the allegation of dowry demand
was not made at Lucknow.
We therefore hold that the Lucknow Court of Second Additional Chief Judicial Magistrate is not
competent to take cognizance of the offences alleged to have been committed at Moradabad. In this
context, it would also be relevant to note that the provisions of Section 178 Cr.P.C. which deals with
the place of enquiry or trial, do not cover the issue of cognizance being taken by the Lucknow
Magisterial Court as none of the offences was committed partly at Lucknow and it is also clear that
none of the offences was continuing one.
The provisions of Section 178 Cr.P.C. for convenience may be quoted as below:-
"Place of inquiry or trial –
(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one,
or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a
Court having jurisdiction over any of such local areas."
A perusal of the First Information Report, as said above, does not disclose commission of offence
either in part or in full or in continuation at Lucknow. The proper and ordinary venue for the trial of
a case crime of the area is the jurisdiction in which, on the evidence, the facts occur, and which are
alleged to constitute the crime. Deepti Yadav in her eleven pages long F.I.R. has not stated even at a
single place that Sanjeev Kumar Yadav or any members of his family either demanded dowry at
Lucknow or assaulted the informant here or did any other offence within the territorial jurisdiction of
the Lucknow Magisterial Court. It appears from the consolidated facts recited in the F.I.R. that
Deepti Yadav stayed with her husband at Moradabad for short period of seven days only in August,
2004 and prior to that she either stayed with him at Sultanpur or in his native village home at Tadwa
(Pilkichha) or at Gorakhpur. The occurrence of an attempt to administer acid allegedly took place
only at Moradabad where she was also assaulted. In Sultanpur, where her husband was posted earlier,
she was beaten once but she did not lodge any report either at the concerned police station at
Sultanpur nor she complained to any higher authority of her husband. Also she did not write a letter
to her parents about this inhuman treatment. Except Moradabad and Sultanpur, there is no other
place where she might have been maltreated or assaulted. Out of the four places in picture, i.e.,
Tadwa, Gorakhpur, Sultanpur and Moradabad, she stayed for sometime in the native village of her
husband, namely, Tadwa (Pilkichha), District Jaunpur and Gorakhpur. The F.I.R. is absolutely silent
of any occurrence of assault or 'marpeet' at Tadwa or Gorakhpur. As said above, only two instances
of 'marpeet' – one at Sultanpur and the other at Moradabad, have been quoted, but no such incident
was referred to the duration of her stay at the remaining two places. The long silence on her part after
the two occurrences at Moradabad and Sultanpur clearly shows that they are concocted,
manufactured with malice and ill-will in order to wreak vengeance with her husband, namely,
Sanjeev Kumar Yadav and the most significant conclusion which would emerge is that not a single
instance constituting an offence has taken place at Lucknow. We would therefore hold that by no
stretch of reasoning the Court of Second Additional Chief Judicial Magistrate is competent to take
cognizance of the matter. Therefore, in the result, the criminal proceedings initiated against the
petitioners including Deepti's husband are liable to be quashed on the ground of lack of jurisdiction
alone.
In other words, it may be observed that the allegations regarding 'marpeet' and attempt to administer
acid are inherently improbable besides being absurd and therefore the F.I.R. and the criminal
proceedings including charge-sheets deserve to be quashed.
The guideline No.7 as referred in Bhajan Lal's case (supra) provides that if a criminal proceeding is
manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge, such criminal proceedings can be quashed. In this context, a reference to the
allegations of the F.I.R. on the basis of which the entire investigation and the criminal proceedings
are based would reveal that on occasions more than one, the dowry demand was made. Precisely, the
various instances of the alleged dowry/gifts can be quoted in seriatim, as follows:-
(1) Gift of a Maruti Zen Car and a Mahindra Marshal Jeep at the time of marriage;
(2) Two sums of Rs.75,000/- and Rs.45,000/- given to Rajiv Kumar Yadav, the younger brother of
Sanjeev Kumar Yadav by virtue of bank drafts;
(3) Two sums of Rs.1 lac and Rs.50,000/- in the name of Sanjeev Kumar Yadav by way of bank
drafts;
(4) The gift of valuable items of domestic use valued at Rs.4 lacs;
(5) Golden ornaments weighing from 45 to 55 'tolas' gifted to Sanjeev Kumar's relatives by the
friends and relatives of Deepti Yadav;
(6) A cash dowry of Rs.15 lacs and valuable items worth Rs.2 lacs given by the informant's father on
two occasions of 'lagan' and 'tilak';
(7) Rs.5 lacs demanded by Sanjeev Kumar at the time of his preparing for Indian Civil Service. The
demand was allegedly met by the informant's father;
(8) A demand of house in Lucknow with Rs.10 lacs in cash;
(9) Reiteration of the demand of Rs.10 lacs by Motilal, the uncle of Sanjeev Kumar
We will not scrutinize the above allegations of demand with a view to hold a trial here, while sitting
in the jurisdiction under Article 226 and 227 of the Constitution of India as the same is not
permissible but certainly we can make an analysis of these allegations with a view to come to a
conclusion upon the petitioners' argument, that the entire criminal proceeding is manifestly attended
with mala fide. To be specific and explicit in the scope of our discussion, we would like to mention
that the contention of the learned Counsel for the petitioners is that the F.I.R. and the consequential
criminal proceedings pending in the Court of Additional Chief Judicial Magistrate-II, Lucknow is
maliciously instituted by Deepti Yadav with ulterior motive for wreaking vengeance on the
petitioners and with a view to spite her husband Sanjeev Kumar Yadav due to private and personal
grudge. We, therefore, proceed to make an analysis of the allegations of the complaint in order to
examine the merit of the above argument.
At the very outset, it may be observed that the eleven long pages First Information Report which had
resulted in launch of criminal proceedings against the petitioners is so well-worded and neatly woven
that it does not leave any room for doubt that it is a well-deliberated draft by a legal expert. In fact, it
needed to be quoted as a whole, but we do not consider it appropriate to do that because of lengthy
versions. However, we will do that wherever we find it necessary to refer to the important parts
thereof. If we look at the second page of the First Information Report (Annexure 1), it appears to
indicate that the father of Deepti was enchanted by the P.C.S. Service cadre of Shri Sanjeev Kumar
Yadav and their marriage was solemnized on 9th December, 1999 in Vishwas Khand, Gomti Nagar,
Lucknow. It is relevant from the territorial jurisdiction point of view that in the entire First
Information Report, it is not mentioned that either Sanjeev Kumar Yadav or his family members
made any specific demand of dowry either in cash or in kind at Lucknow at the time of marriage or
even thereafter. The third page of Annexure 1 further very specifically and with all modesty on the
part of informant says that the informant's family members and relations according to their
capabilities offered numerous gifts including a Maruti Zen Car given on behalf of the informant's
grandmother Smt. Sechna Devi and a Mahendra Marshal Jeep by the informant's father. What is of
primary importance to note is that both these vehicles were the gift items as it is candidly clear from
the recitations in the First Information Report which can be quoted as below:-
It is not disputed that the Mahendra Marshal Jeep is still in the name of the informant's father and
the petitioners have denied their custody over it, although the allegation of the informant was that
the said Jeep was being operated by her husband's father as a taxi. In other words, it is a property of
the informant's father. The gift of Maruti Zen Car by the informant's grandmother is admittedly a
gift and cannot be said to be a dowry item on demand. Had it been a demanded dowry, there was no
question of its being given by the informant's grandmother and a candid admission on the part of the
informant that her grandmother Sechna Devi gave it as a gift rules out the allegations that these
vehicles were given on demand as dowry items. Not only the above quote of the First Information
Report lends assurance to this conclusion but towards the end of the long drawn First Information
Report also the above admissions on the part of the informant have been repeated. The last few lines
at page 9 of Annexure 1 may be quoted as below:-
It is thus clear that both the vehicles/ornaments and valuable items of household utility and garments
given at the time of marriage were all gift items. It would be a matter of debate as to whether these
items offered as gifts to Sanjeev Kumar Yadav and his family members or relations would fall within
the ambit of 'STRIDHAN' as a question, to invoke provisions of Section 6 of the Dowry Prohibition
Act, would arise as to whether any list of such items was drawn as required by Section 3 of the Act.
The answer being negative rules out the alleged claim. Moreover, in case of some items being
permitted to be used will also have an impact of implied consent. The allegation of the Marshal Jeep
being run as a taxi by the family members of Sanjeev Kumar Yadav has been categorically denied and
the fact that the said Jeep is still in the name of the informant's father clearly points to the conclusion
that Heera Lal alone is the registered owner of the said vehicle and he can, therefore, claim his
custody over it.
As regards the household items of utility, such as Hero Honda Generator, Colour T.V. and other
items of decoration valued at Rs.4 lacs, it may be mentioned that the informant has not asserted in its
First Information Report that these items of four lacs were demanded by the petitioners or anyone
else on their side much less Sanjeev Kumar Yadav. The allegation that Maruti Zen was purchased in
the name of Dharm Raj prior to marriage under compelling circumstances stands thwarted on the
face of the informant's allegation, in the earlier part of her report, that this was a gift item offered by
Smt. Sechna Devi.
A gift cannot be a dowry as the dictionary meaning of gift is as follows :-
"a thing given willingly to someone without payment"
The position would however be different, if a gift is demanded at the time of marriage or prior or
after the solemnization of marriage.
Contrary to the above, the term dowry appears to indicate as a property or money brought by a bride
to her husband on their marriage.
Precisely, Section 2 defines dowry as follows :-
"Definition of 'dowry'- In this Act, 'dowry' means any property or valuable security given or agreed
to be given either directly or indirectly –
(a) by one party to a marriage to the other party to the marriage ; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage
or to any other person; at or before or any time after the marriage in connection with the marriage of
the said parties, but does not include dower or mahr in the case of persons to whom the Muslim
Personal Law (Shariat) applies."
Section 3 of the Act postulates as follows :-
"Penalty for giving or taking dowry - If any person, after the commencement of this Act, gives or
takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term
which shall not be less than five years, and with fine which shall not be less than fifteen thousand
rupees or the amount of the value of such dowry whichever is more.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment,
impose a sentence of imprisonment for a term of less than five years.
(2) Nothing in Sub-section (1) shall apply to, or in relation to
(a) presents which are given at the time of a marriage to the bridge (without any demand having been
made in that behalf) : Provided that such presents are entered in a list maintained in accordance with
the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having
been made in that behalf) : Provided that such presents are entered in a list maintained in accordance
with the rules made under this Act: Provided further that where such presents are made by or on
behalf of the bride or any person related to the bride, such presents are of a customary nature and the
value thereof is not excessive having regard to the financial status of the person by whom, or on
whose behalf, such presents are given.
The above quoted provisions of sections penalize dowry excluding the presents, i.e. gifts which are
given at the time of marriage either to the bride or to the bridegroom - of course, such presents have
to be entered in a list and they should also be customary in nature. The financial status of the giver
will also be of primary importance and learned Counsel for the petitioners asked for a probe into the
financial status of the informant's father who is a Government Servant. But we would not like to
enter into that arena.
In the case in hand, the informant's father has not prepared any list of such items and as has been
stated by the informant's husband, he is employed as a Junior Engineer in the Public Works
Department U.P. who will certainly not be in a position to offer gifts and cash amounting to 30-40
lacs of rupees. All sums seems to be fantastic. The gift items like ornaments, colour T.V., Hero
Honda Generator and valuable items of decoration are all customary. Although a vehicle is also
acquiring these days the status of a customary gift item at the time of marriage, yet we will not enter
into that debate here for the simple reason that the informant has herself termed both the vehicles
and all dowry items as the gift items. Section 4 of the Dowry Prohibition Act provides for penalty
only if there is a demand for dowry. If gift items, though technically may fall in the category of
dowry, are offered without demand, there is no offence.
Therefore, these gift items will not be called as demanded dowry in view of the provisions of the
Section 3(b) of the Dowry Prohibition Act. As regards the cash, it may be observed that the
informant's father had allegedly given a sum of Rs.15 lacs at the time of 'tilak' and Rs.5 lacs at the
time when Sanjeev Kumar Yadav was preparing for the Central Civil Services. Being conscious of the
fact that this Court must not weigh the evidence so as to find out the veracity over the factual
allegations, yet since we are convinced from careful perusal of the First Information Report that the
entire story is a cock and bull story as regards dowry demand, we are giving the reasonings pertaining
to allegations based on spite and vengeance which is sought to be wreaked upon Sanjeev Kumar and
his family members at the hands of the informant and her father. Peeping from that angle into the
allegations of the First Information Report, we would express our dismay that Sanjeev Kumar Yadav
allegedly was paid Rs.1 lac and Rs.50,000/- by way of drafts prior to marriage but the same mode of
payment was not observed by Shri Heera Lal, the informant's father while handing over a hefty sum
of Rs.15 lacs - which perhaps may not be his entire savings of his salaried service unless there is some
other source of income.
Not only this, but he again gave Rs.5 lacs without any bank draft or cheque and this amount was
given at the time, when Sanjeev Kumar had allegedly stopped visiting his wife and a small kid living
at Lucknow in desertion. Similarly, the demand of Rs.10 lacs in 2004 appears to be a fabricated story
just to express her spite and retaliate of Sanjeev's act having lost his interest in the informant. It is
astonishing that the informant and her kid had never been looked after the informant delivered the
child, yet a simple demand of Rs.5 lacs had been very promptly carried out by the informant's father,
when he was preparing for the Central Civil Services competitive examination. Sanjeev Kumar Yadav
allegedly got the informant sent to her parents' house at Vishwas Khand, Lucknow, yet her father was
benevolent enough to give a huge sum of Rs.5 lacs to his son-in-law and we would note with further
surprise that this entire amount had been borrowed by the informant's father from his well-wishers
(not relatives) with a view to buy peace and pleasure for his daughter and paid to her husband.
Neither bank cheque nor draft was used as a mode of payment, although a sum of Rs.15 lacs was paid
by draft before marriage. When the informant's father tried to ascertain the reason of Sanjeev Kumar
Yadav being indifferent to his wife, he came to learn that Sanjeev had become greedy after being
selected in the Central Civil Services and his greed has acquired dimensions to the extent that he
wanted to contract another marriage and earn Rs.1 crore as dowry. In this context, a reference was
also made to his conduct that he had shown himself to be 'single' in Lal Bahadur Shastri National
Academy's record, but Sanjeev Kumar controverted such an allegation by filing a Certificate-cumletter
indicating therein his status as 'married'. The letter of Shri J.B. Saini, Administrative Officer
(Establishment) dated 7th February, 2005 enclosed as Annexure No.SA1 to the Supplementary
Affidavit dated 1st December, 2005 of Sanjeev Kumar clearly recites that in the Descriptive Roll of
Academy Sanjeev is recorded as 'married'. Maybe that somewhere advertently or inadvertently he
might have written himself single but that does not falsify Mr. Saini's letter certifying Sanjeev Kumar
Yadav as 'married'.
The common experience shows that most of the cases of differences and dissensions between married
couples result only in dowry demand by the husband and by all his family members.
The provisions of the Act are being callously misused by the wives and their parents with different
kinds of stories. The disputes, though pending in the Courts for decisions, still give rise to the
complaints and F.I.Rs of the wives' victimization of dowry demand. So long the status of the
husband is enchanting, as was the case in hand with the informant's own allegation that her father
was mesmerized with the status of Sanjeev Kumar - presents and gifts comprising colour T.V.,
generator sets, maruti cars or even that of better brand, houses, cash - are offered to grab over the
bridegroom. He is forced to be attracted of all allurements of huge cash and numerous gifts of
household utility, but with the disruption of ties between the husband and wife or slight dissensions
on account of their colliding temperaments, strained relationship of the wife with her parents-in-law,
difference in the culture of the two families of wife and husband, distances of the education between
the two including the difference of mental levels, and extra-marital relationship of either of the two
spouses - everything is channelized into a dowry tunnel and the wife is said to be victimized of the
dowry demand.
Draft a qualitative and capturing or a pathetic story of dowry victimization and harass the husband'
has become the routine of warring couples. As said above, the husband and wife relationship may
become strained on not one but on various issues as enumerated above, the allegation of demand of
dowry is the eventual result in ninety nine percent of the hundred cases.
Having regard to all these aspects of the matter, we would like to record a finding that the allegation
of demand of Rs.10 lacs is a fabricated story of the informant and her father with a view to teach a
lesson to the husband, namely, Sanjeev Kumar Yadav, who if arrested will immediately be placed
under suspension and with a view to force to realize him as to how then the miserable life of an
officer of Indian Revenue Service will commence in and out of jail.
The sole purpose of a novel like story evolved by the informant and recited in her First Information
Report is to take a revenge with him by getting him sent to jail and further placing him in sufferings
with his eventual suspension. The Courts are to protect the valuable rights of not only a wife if she is
victimized and maltreated with dowry demand but also a harassed husband who is also equal in the
eyes of law and if a concocted attempt as the one in hand is made to place the husband in an
awkward situation, certainly the Court must come to the rescue of such a husband in humiliation. If
the dispute between the husband and wife hinges or surrounds elsewhere, the provisions of the
Dowry Prohibition Act must not be misused. In the case in hand, as is the allegation of the
informant, infidelity seems to be the crux of the differences between her and her husband. She alleged
that her husband Sanjeev Kumar Yadav had developed illicit relationship with Km. Neelam
Srivastava and as she has now gathered information, he was all adamant to marry her. The informant
was aggrieved of the alleged love affair going on between her husband and Neelam Srivastava and it
was in the same sequence of events that the informant alleged about the frequent visits of Sanjeev
Kumar Yadav to Jaunpur where Neelam Srivastava was conveniently available. Neelam Srivastava is
unmarried and posted as Assistant Consolidation Officer at Varanasi and she has her house in
Jaunpur. The allegation of Sanjeev's proposal to marry her is in clear conflict with the informant's
allegation that he had desired to marry someone and acquired a dowry of Rs.1 crore. An Assistant
Consolidation Officer cannot fetch him that fantastic amount nor she would be able to provide a
palatial house in Lucknow. Sanjeev Kumar Yadav has denied the informant's allegation of infidelity
attributed to him vis-.-vis Km. Neelam Srivastava and said that she is a pious girl.
We are not concerned as to what is the status of Ms. Neelam Srivastava nor we are concerned as to
what is her relationship with the informant's husband. What we are concerned with is that the
ground of infidelity against a husband must not be misused with an accusation of dowry demand. If
Sanjeev Kumar is guilty of the offence of extra-martial relationship, he should be penalized, but in
accordance with law. She must file a complaint in the Court of competent jurisdiction alleging a
charge of adultery and the law will take its own course. But she cannot be permitted to misutilize and
abuse the provisions of the Dowry Prohibition Act and harass her husband by getting him arrested
and suspended from his service. True that if the dowry demand is made by him he would be liable for
a severe penalty but the informant was not expected to imagine and fabricate a fantastic story of
giving dowry in the shape of presents and gifts worth Rs.30-35 lacs without demand at the time of
marriage and after the differences broke between the two, then accuse him of making demand for
more dowry and get, the entire family comprising dozens of persons including young and unmarried
sisters, husbands of the married sisters sent to jail. The informant in her First Information Report
expected the human values and courtesies to be expected of Sanjeev Kumar Yadav, but on her own
part every such human value went in oblivion when the two unmarried sisters Jaya and Usha, cousin
Santosh were framed in this case and got them arrested by police. It is unbelievable on the face of the
First Information Report that the unmarried sisters of Sanjeev Kumar Yadav and husbands of his
married sisters living away would exert their pressure for dowry demand. Sri Yadav right from very
beginning was nicely placed initially in U.P. Provincial Services and then in Central Civil Service. He
and his parents would well be said to press for dowry and harass the informant when she failed to
fulfil it. The husbands of the married sisters, brothers-in-law, uncle and cousin might not have been
invited to associate.
As has also been argued before this Court and pleaded in the petition and also recited in the regular
Civil Suit seeking a decree for judicial separation, the informant wanted her husband not to give even
the slightest part of his salary to his parents -a cherished desire of every wife. A perusal of para 7 of
the plaint of the Regular Suit (Annexure 2) reveals that the informant herself started misbehaving
with all members of the plaintiff's family and also threatened to get all of them falsely implicated in
the case of dowry demand. It seems to be obvious that she implemented her threats of getting Sanjeev
Kumar and his family members framed in a case of dowry demand by getting the F.I.R. in question
lodged. It was pleaded further by Sanjeev Kumar Yadav in his plaint that while leaving his place in
and around October, 2001, the informant carried the entire jewellary and all her garments and while
leaving, threatened everyone in the family to snap her ties with all of them and thereafter she never
came back to stay with him. As said earlier, the suit for judicial separation was filed on 3rd
September, 2004, i.e. about five months before the F.I.R. was lodged. The petitioners' contention is
that the F.I.R. was nothing but a retaliatory action of the informant after she came to learn about the
said suit being instituted. In this way, the petitioners' contention that the informant swung into
action with a view to take revenge by fabricating a cock and bull but attractive story, appears to be
sustainable.
Mr. B.M. Sahai, learned Counsel for the informant further pressed into service his argument that
since an alternative remedy of filing a petition under Section 482 Cr.P.C. for challenging the
criminal proceedings pending in the Court of Additional Chief Judicial Magistrate-II, Lucknow is
available to the petitioners, this writ petition should be dismissed. In support of his contention,
learned Counsel relied upon various citations. The first such decision of the Apex Court is in 'Basant
Kumar v. Eagle Rolling Mills [AIR 1964 Supreme Court 1260]'. It was held in this case that when a
different forum of Industrial Tribunal could be approached by the appellant whose medical benefits
were curtailed, a petition under Article 226 of the Constitution would not be maintainable.
This citation is not attracted towards the facts of the present case, where the petition for quashing of
the F.I.R. was legally maintainable under Article 226 of the Constitution. During the pendency of
the petition, charge-sheets were filed and the cognizance had been taken.
The Hon'ble Supreme Court in Pepsi Food's case (supra) has held that in such a circumstance, the
petition can be treated as one under Article 227 or even Section 482 Cr.P.C. and the alternative
remedy of filing an appeal or a revision will not operate as a bar to decide a petition originally filed
under Article 226 of the Constitution. On the basis of the principle of law laid down in the decision
by the Hon'ble Apex Court, the citations reported in 1993 JIC 151, AIR 1993 SC 892, 1999 (1) JIC
883 (All.), 2001 (1) JIC 597 (Alld.) are not applicable to the facts and circumstances of the present
case. It was held in the famous case of Rupan Delol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC
194] that a prima facie case was made out against the writ petitioner Shri Gill and there was sufficient
evidence to proceed with, therefore, the FIR lodged by Mrs. Bajaj and the complaint filed by her
husband were liable to be proceeded with further by the trial Court. The respondent in that case by
slapping on the back of the informant was stated to have committed an offence of outraging her
modesty. We do not find even an iota of similarity between the two cases and therefore, we hold that
the said decision is of no avail to the informant.
The citation 'State of Bihar v. Rajendra Agrawalla [1996 JIC 363 (SC)]' is also distinguishable from
the facts of the present case. As in that case, a petition under Section 482 Cr.P.C. was filed by the
petitioner who was a Sub-Inspector of Police. The High Court quashed the criminal proceedings but
the Hon'ble Supreme Court held that there was sufficient evidence to constitute commission of an
offence under Section 414 I.P.C. It was also held in that case that a criminal proceeding can be
interfered with by the High Court under Section 482 Cr.P.C. only if it is shown that the complaint
together with the other material collected during investigation taken at their face value do not
constitute the offences alleged. In that case, there was recovery of huge stock of pieces of the track
trolley used in BCCL and since the respondents could not show any document to prove their
ownership, it was held that they were rightly challaned by the police. In the case in hand, the facts are
not as categorical. Neither there was any recovery nor the demand of dowry is believable.
Learned Counsel for the informant then referred to a citation of this Court Devi Sahai and others v.
State of U.P. and others [2001 (1) JIC 597 (All)] and contended with reference to it that an
application under Section 482 Cr.P.C. for quashing of the F.I.R. pending investigation is not
maintainable. In that case, 482 Cr.P.C. petition was filed for quashing of the F.I.R. on the ground
that the F.I.R. was totally false and concocted and had been lodged to wreak vengeance on account of
election enmity. We could not appreciate as to how this could have helped the informant because the
petitioners of the case in hand filed a writ petition under Article 226 of the Constitution and not a
482 Cr.P.C. petition. It is however different that with the development of the charge-sheets having
been submitted, this petition has been treated to be as one under Article 227 and under Section 482
Cr.P.C. in view of the Apex Court's decision in Pepsi Food's case (supra).
Learned Counsel for the informant then relied upon the citation 'Sadhana Lodh v. National
Insurance Company and and another [2003 (3) SCC 524]'. With reference to this decision, it has
been submitted that where an alternative remedy of filing appeal is available, interference under
Articles 226 and 227 is not permissible. In that case, in a motor accident claim, an award of Rs.3.5
lac as compensation was pronounced. The aggrieved insurer filed a petition under Articles 226 and
227 of the Constitution which was allowed by the High Court and the amount of award was
reduced. The Hon'ble Supreme Court held that since an alternative remedy of filing an appeal was
available to the insurer, filing of a petition under Articles 226 and 227 of the Constitution or
interference in any manner was not permissible under law. Obviously, the facts of the case are entirely
different from the one before us, therefore, the citation is not attracted towards this case.
For the reason that in the decision Ram Lal Yadava v. State of U.P. and others [1989 ACC 181], the
petition was filed under Section 482 Cr.P.C. to stay the arrest of an accused during investigation, the
said decision of this Court does not help in any manner. It was precisely held by this Court in that
case that during investigation arrest of an accused cannot be stayed under Section 482 Cr.P.C. by the
High Court while exercising its inherent power. Any repetition is unpleasant but since relevant
decisions are not being referred to, we have to observe again and again that the petition in hand was
initially filed under Article 226 of the Constitution and for the reasons disclosed earlier and in view
of the principle of law laid down in the case of Pepsi Foods Ltd. (supra), we have treated it to have
also been filed under Article 227 of the Constitution and Section 482 Cr.P.C. It is however
significant to note that in this very decision (Ram Lal's case), a full bench comprising seven Hon'ble
Judges clearly postulated in para 22 of the Judgment that if the High Court is convinced that the
power of arrest by a police officer will be exercised wrongly or mala fide in violation of Section
41(1)(a) Cr.P.C. the High Court can also issue a writ of Mandamus under Article 226 of the
Constitution restraining the police officer from misusing the power and it is for this principle of law
ruled by the Full Bench that Dr. L.P. Misra learned Counsel for the Petitioners too cited this decision
and placed reliance thereupon. Dr. L.P. Misra further submitted with reference to a decision in
Common Cause, a Registered Society v. Union of India and others [1999 Vol.VI SCC 667] that
powers of a High Court under Article 226 and the Hon'ble Supreme Court under Article 32 are
plenary in nature and in exercise of such plenary powers, Court can rectify even its own mistakes.
Although there is no case in hand of rectifying an error, yet emphasis has been laid by the learned
Counsel that under Article 226 a High Court can exercise plenary power to do complete justice.
Dr. L.P. Misra then contended with reference to another decision of the Apex Court in Secretary,
O.N.G.C. Ltd. And another v. V.U. Warrier [(2005) 5 SCC 245] that jurisdiction of the High
Court under Article 226 is equitable and discretionary and it can exercise this power to reach
injustice wherever it is found.
The sum and substance of the discussions made above is that the facts of this case being peculiar with
the developments during investigation are such that this Court would consider it equitable to
interfere and quash the entire criminal proceedings pending against the petitioners.
Learned Counsel for the informant vehemently argued that since Sanjeev Kumar Yadav did not
surrender before the Court following cancellation of his bail, no discretionary relief should be
extended to him.
In this context, it may be significant to note that when after his arrest, he was brought to Gomti
Nagar Police Station, the Station House Officer released him on bail on the ground of his illness and
all other petitioners arrested from Jaunpur were sent to jail.
The bail of Sanjeev Kumar Yadav was cancelled on technical ground that since he was on transit
remand, he could not have been released on bail.
Subsequently, this Court vide its Order of 28th July, 2005 stayed his arrest on the merit of his plea
that the F.I.R. on the face of it carried a concocted version. However, on September 9, 2005 the said
interim order was vacated. He then moved an application soon thereafter for modification of the
order which was finally heard alongwith the writ petition. It may be relevant to observe that Sanjeev
Kumar Yadav approached this Court for redressal of his grievance and since right from very inception
of his having filed this petition, his case was that he has been falsely framed in this case by the
informant after concocting a case of dowry demand out of sheer vengeance, he was justified in his
right to seek a modification of the order by bringing before the Court all the relevant facts and
circumstances.
Every citizen has a right to approach this Court not once but many a times and the facts and
circumstances on the basis of which a prayer for modification of the vacation order was made would
all be very relevant and significant to be looked into. Once it has come to the notice of the Court that
indeed his stand about the First Information Report being based on retaliatory measure is acceptable,
he cannot be penalized merely because he moved an application for modification of the vacation
order instead of surrendering himself before the Court for going to jail.
Learned Counsel for the petitioners has also assailed the charge-sheets - one submitted on February
21, 2005 and the other on October 25, 2005 (perhaps the same charge-sheet submitted twice). The
fact regarding submission of the charge-sheet on 21.2.2005 is falsified by the Order dated 1st March,
2005 by the Senior Superintendent of Police, Lucknow whereby he had transferred the investigation
of this case from S.I. Shri K.K. Sharma to S.I. Shri Brij Kishore Singh. The very fact that the
investigation was transferred from Shri K.K. Sharma to Shri Brij Kishore Singh on 1st March, 2005
prima facie proves that there was some manipulation somewhere in Shri K.K. Sharma's statement
and conduct of his having submitted charge-sheet on 21st February, 2005.
Deepti Yadav filed a copy of the charge-sheet alongwith her supplementary affidavit dated 2nd
December, 2005. A perusal of this charge-sheet appears to indicate that it was signed by Shri K.K.
Sharma on some date in February, 2005 but the figures of the date were interpolated and in their
place, 21.2.2005 was substituted. Cognizance of this charge-sheet had been taken on October 25,
2005. The charge-sheet dated 21.2.2005 with changed figures of date has been termed to be of
25.10.2005 by Deepti Yadav in her supplementary affidavit of December 2, 2005. Virtually, it seems
to be the same charge-sheet submitted twice. The Presiding Officer in his Order dated 25th October,
2005 says it had been received on 25th October, 2005. There is manipulation in the figures of the
date underneath the signature of the Second Additional Chief Judicial Magistrate also. In the figures
of '10' meant for the month of October, figure '3' is clearly visible within the circle of '0' which
clearly indicates that the Investigating Officer has committed some significant errors in changing the
date under his signatures. The Presiding Officer also seems to have towed the same line and did some
alienation in the figures of date underneath his signature. Further, the Investigating Officer appears
to have added Section 307 I.P.C. possibly by replacing the letters I.P.C. The interpolations are clearly
visible in the head-line of the charge-sheet as well as in his brief note spreading over columns 5 to 9
in the charge-sheet. A copy of the order is enclosed with the charge-sheet and a perusal of the said
order dated 25.10.2005 appears to indicate that cognizance was taken by the learned Second
Additional Chief Judicial Magistrate. From bare perusal, it appears that the learned Second
Additional Chief Judicial Magistrate has not applied his mind while taking cognizance of the matter.
It is simply recited in the order at the relevant place that the F.I.R. has been perused, which is enough
for taking cognizance, therefore, cognizance is taken.
Precisely, the order may be quoted as below:-
It is apparent from perusal of the aforesaid order that the learned Second Additional Chief Judicial
Magistrate has not examined the facts and evidence of the case. Mere recital about the perusal of the
charge-sheet does not indicate about sufficient reasoning for taking cognizance. It is not mentioned
that the documentary evidence including the F.I.R. or the statements of the witnesses or any other
piece of evidence was or was not perused by the learned Second Additional Chief Judicial Magistrate.
The Order has been passed in a mechanical manner without applying mind to the facts of the case
and evidence submitted in support of the charge-sheet. Had the Presiding Officer scrutinized the
F.I.R. even, he would have learnt that no offence had taken place in the territorial jurisdiction of
Lucknow-district. Apart above, it has also not been explained on behalf of the informant that as to
how the Senior Superintendent of Police ordered for transfer of the investigation when charge-sheet
has already been submitted and as to why the Senior Superintendent of Police disclosed before the
Court in Criminal Misc. Case No. 1026 of 2005 that no charge-sheet had been filed till 1st March,
2005, i.e. the date on which the investigation was transferred from Shri K.K. Sharma to Shri Brij
Kishore Singh.
From these manipulations also mala fide on the part of the Investigating Officer stands proved.
In view of the above discussed manipulations and non-application of mind by the learned Second
Additional Chief Judicial Magistrate, the criminal proceedings stand vitiated and deserve to be
quashed.
For the reasons disclosed above, our conclusions may in brief be recapitulated below :-
The Writ Petition filed initially under Article 226 of the Constitution of India is treated to be as the
one under Article 227 of the Constitution of India and Section 482 Cr.P.C. in view of the Apex
Court's decision in Pepsi Food's case (supra).
The First Information Report was filed by Deepti Yadav with a view to wreak vengeance upon her
husband Shri Sanjeev Kumar Yadav and his family members.
The First Information Report came into being as a retaliatory move to teach him and his family
members a lesson of filing a suit for judicial separation on September 3, 2004.
The First Information Report was a sequel to the informant's suspicion of infidelity against her
husband.
The presents and gifts offered at the time of marriage to Sanjeev Kumar and his family members were
gifts offered by the informant's parents, grandmother and other relatives on their own. Such presents
and gifts do not fall within the category of 'dowry demanded'.
It is falsified that either Sanjeev Kumar or any other member of his family demanded any dowry.
The Investigating Officer acted in a mala fide way and manipulated things to mislead the Court of
the II Additional Chief Judicial Magistrate as also this Court by making manipulations in the chargesheet
as discussed above.
Learned Additional Chief Judicial Magistrate-II has without application of mind proceeded to take
cognizance of the offences and thereby committed a serious illegality.
The above Magisterial Court at Lucknow has no territorial jurisdiction to deal with the offences
alleged to have been committed in Tadwa (Pilkichha), District Jaunpur, Sultanpur, Gorakhpur and
Moradabad.
The First Information Report is a well-drafted document based on spite and animosity.
In view of the foregoing conclusions, we are of the decisive view that the First Information Report
(Annexure 1) as well as the criminal proceedings pending against the petitioners in the Court of
Additional Chief Judicial Magistrate-II, Lucknow are liable to be quashed.
Accordingly, the writ petition is allowed and the First Information Report as also the criminal
proceedings including the charge-sheet(s) dated 21st February, 2005/25th October, 2005 are hereby
quashed.
A writ of Certiorari is issued accordingly.
January 10, 2006