A person who is not relative does not come within purview of Section 498A - In order to be published under Section 498A IPC a person must be either husband or relative of husband

A person who is not relative does not come within purview of Section 498A - In order to be published under Section 498A IPC a person must be either husband or relative of husband

PUNJAB AND HARYANA HIGH COURT

Before :- K.S. Kumaran, J.
Criminal Misc. No. 17797-M of 1996


Anil Kumar Versus State of Punjab, D/d. 14.2.1997


For the Petitioners :- Mr. P.P.S. Duggal, Advocate.
For the Respondent :- Mr. Rajesh Girdhar, AAG, Punjab.

A. Indian Penal Code, Section 498A - Dowry Prohibition Act, Section 2 - Harassment to bride on account of dowry - Offence of cruelty under Section 498A made out - For purpose of Section 498A, definition of dowry as given under Section 2 of Dowry Prohibition Act is not applicable, 1996(3) R.C.R. (Crl.) 153 distinguished.
[Paras 8 and 9]

B. Indian Penal Code, Section 498A, Criminal Procedure Code, 1973, Section 482 - Cruelty - FIR under Sections 498A and 406 IPC - Allegations in the FIR did not make out a case - Charge-sheet, however, submitted by the Police in court - Proceedings not be quashed by High Court in exercise of its power under Section 482 Cr.P.C. when charge sheet had been submitted in the Court - It should be left to trial court to decide - Accused to urge the points before trial court. 1994(3) R.C.R. (Crl.) 123 (SC).
[Para 17]

C. Indian Penal Code, Section 498A - Criminal Procedure Code, 1973, Section 482 - Harassment to bride on account of dowry - Complaint against husband and his friend (Petitioner) - A person who is not relative does not come within purview of Section 498A - In order to be published under Section 498A IPC a person must be either husband or relative of husband - Proceedings, however, not quashed under Section 482 Cr.P.C. as chargesheet had already been filed in the court. 1994(2) R.C.R. 298 (SC) relied.
[Para 16]

D. Indian Penal Code, Sections 406 and 498A - Dowry articles - Misappropriation of - FIR under Sections 406 and 498 IPC against petitioner and others - Petitioner 90 years old, blind and could hardly walk - No ground to quash the FIR on this account under Section 482 Cr.P.C. - High Court will not critically analyse the allegations in the complaint to come to conclusion that the allegations are true or false - It is for trial court to evaluate the evidence and come to a conclusion.
[Para 13]
E. Criminal Procedure Code, 1973, Section 482 - Indian Penal Code, Section 498A - No offence made out from allegations made in the FIR - Charge put up before Court - Proceedings should not be quashed when charge had been submitted - It is for trial Court to evaluate and come to its own conclusion.
[Para 13]


Cases referred :

L.V. Jadhav v. Shankarrao Abasaheb Pawar, 1983(2) R.C.R. 400.
S. Gopal Reddy v. State of Andhra Pradesh, 1996(3) R.C.R. 153.
Minakshi Bala v. Sudhir Kumar, 1994(3) R.C.R. 123.
Swami Dhirendra Brahamchari v. Shailendar Bhushan, 1994(2) R.C.R. 298.
State of Bihar v. P.P. Sharma, AIR 1991 S.C. 1261.

JUDGMENT


K.S. Kumaran, J. - Petitioners (1) Anil Kumar son of Banwari Lal and (2) Kaushalya Devi, widow of Jai Kishan, have approached this Court under Section 482 Cr.P.C. for quashing the F.I.R. No. 110 dated 11.8.1996 under Sections 406, 498A and 34 I.P.C., registered by Police Station City, Abohar. The said F.I.R. was registered on the basis of the complaint given by the wife against her husband, the grandmother of the husband (the 2nd petitioner herein), certain other relations of her husband, and Anil Kumar (the Ist petitioner herein, who is only a friend of her husband).

2. The material allegations in the F.I.R. are as follows :-
The marriage between the complainant/wife and Amit Kumar was performed on 26.2.1994. After saptpadi and before departure of the doli, father of the complainant and other relatives gave sufficient amount of golden ornaments, furniture, clothes, beds, coolers, pots, T.V. and other articles. Rupees two lacs were given in cash for purchase of Maruti Car, which the accused have purchased after marriage. The articles were packed in different boxes and entrusted to the accused (the complainant has stated in detail the articles entrusted to the various accused). Bed sheets for summer and winter were handed over to Kaushalya Devi wife of Jai Kishan. The various articles were given to different persons as per the direction of Subhash Chander and Smt. Pushpa Rani (father-in-law and mother-in-law of the complainant).

3. The accused had taken all the articles at the time of departure of the doli. These articles were given for the use of the petitioner as her Stri Dhan. These articles were not handed over to the complainant. Whenever the complainant demanded new clothes and ornaments, the accused replied that these were worn at the time of marriage and did not give the same to the complainant. Immediately after the marriage, accused 1 to 7 started teasing the complainant on the ground that she had brought less dowry. All the accused started demanding rupees two lacs for opening new clinic. Anil Kumar son of Banwari Lal who is a close friend of Amit Kumar (husband), whose house is at a short distance from the house of Amit Kumar, exhorted the accused, and all the accused 1 to 8 started demanding the amount. All the accused teased and tortured and kept her hungry for many times. In February, 1995, the complainant was sent away from the house after beating. The accused refused to hand over the articles given in the marriage. The T.V. has been given to Kaushalya Devi (accused No. 7) which she is using. The accused were demanding more dowry. They are destroying the articles given in marriage and are putting off the return of the articles.

4. The petitioners have alleged in this petition that as per the allegation in the complaint, bed-sheets were given to the second petitioner (Kaushalya Devi) while nothing was handed over to the first petitioner. The petitioners have also urged that it has not been mentioned in the complaint that these articles were given as consideration for the marriage. The petitioners have further alleged that the first petitioner is only a friend and he will not fall within the ambit of Section 498-A of I.P.C. and there is no allegation that he was entrusted with any of the dowry articles. According to the petitioners, the second petitioner Kaushalya Devi is the grandmother of the complainant's husband, who is not only more than 90 years, but is also blind who can walk only with support, and that her name has been dragged just to harass her.

5. Even though opportunity was given, no reply has been filed by the respondents and I have heard the counsel for the petitioners as well as the counsel for the State.

6. I will first deal with the case of the first petitioner - Anil Kumar son of Banwari Lal. Even in the F.I.R., it has been stated that he is a close friend of Amit Kumar, the husband of the complainant. The contention of the petitioners is that the first petitioner could not be punished under Section 498-A, even if the allegations found in the complaint are taken to be true for the sake of argument. Section 498-A I.P.C. reads as follows :-
498-A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. - For the purposes of this section, "cruelty" means -
    (a) 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
    (b) 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."
7. From a reading of Section 498-A, I find that a person, in order to be punished under Section 498-A I.P.C. must be either the husband or the relative of the husband of the woman complaining of cruelty. Anil Kumar being admittedly a close friend only, cannot be punished under Section 498-A I.P.C.

8. Another contention put forward by the learned counsel for the petitioners is that dowry should have been demanded as consideration for the marriage, whereas there is no allegation in the complaint that dowry was demanded as consideration for the marriage. In this connection, he relied upon a decision of the Hon'ble Supreme Court in L.V. Jadhav v. Shankarrao Abasaheb Pawar and others, 1983(2) R.C.R. 400. But that case arose under the Dowry Prohibition Act, 1961 where 'dowry' has been defined under Section 2 as property or valuable security given or agreed to be given as consideration for the marriage. But Section 498-A does not speak of 'dowry' in terms of Section 2 of the Dowry Prohibition Act. Section 498-A I.P.C. provides for the punishment of the husband or his relative for cruelty. 'Cruelty' as per explanation (b) to Section 498A I.P.C. is harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or harassment on account of failure by her or any other person related to her to meet such demand. Section 498-A I.P.C. does not say that harassment with a view to coerce the person to meet the demand for dowry or on account of failure to pay dowry is cruelty. Harassment in order to get any property or valuable security or on account of failure by the woman or her relative to meet such a demand is cruelty punishable under Section 498-A I.P.C. and it need not be dowry as consideration for the marriage as defined under Section 2 of the Dowry Prohibition Act. Therefore, this decision of the Hon'ble Supreme Court has no application to the facts of this case.

9. Similarly, the other decision relied upon by the learned counsel for the petitioners in S. Gopal Reddy v. State of Andhra Pradesh, 1996(3) R.C.R. 153 also does not apply to the facts of this case for the same reason that the case before the Hon'ble Supreme Court arose under the Dowry Prohibition Act and not under Section 498-A I.P.C.

10. But, in view of what I have stated above, it is clear that no case is made out for proceeding against the first petitioner - Anil Kumar under Section 498-A I.P.C.

11. So far as Section 406 I.P.C. is concerned, the complaint nowhere mentions that any article was entrusted to Anil Kumar - the first petitioner. Therefore, no case is made out against him under this Section also.

12. Next, I will deal with the case of the second petitioner - Kaushalya Devi. As pointed out already, the allegations in the complaint are that bed- sheets for summer and winter were handed over to her. It has also been alleged that when the complainant demanded back the articles, it was replied that the T.V. has been given to Kaushalya Devi, which she is using. It has also been alleged in the complaint that the accused stated that the articles will not be returned to her.

13. But the learned counsel for the petitioners contended that the second petitioner Kaushalya Devi is living separately and that she is more than 90 years old, apart from being blind and unable to walk without support of another person. Learned counsel for the petitioners contended that it has become the order of the day to falsely implicate all the members of the family of the husband in such cases. But, this Court in exercise of its power under Section 482 Cr.P.C. cannot quash the complaint on the ground that Kaushalya Devi is aged more than 90 years or that she is blind or on the basis that she could not have been entrusted with anything in view of these factors. This Court will not critically analyse the allegations in the complaint to come to conclusion that the allegations are true or false or unbelievable. It is for the trial Court to evaluate the evidence produced with regard to these allegations and come to a conclusion. This Court, at this stage, in the exercise of its powers under Section 482 Cr.P.C. will not take upon itself this task of the trial Court to examine the allegations and quash the proceedings. So, prima facie there are grounds for proceeding against the second petitioner - Kaushalya Devi under Section 406 I.P.C.

14. So far as cruelty is concerned, in the complaint, it has been stated that immediately after the marriage, accused No. 1 to 7 (Kaushalya Devi being the 7th accused) started teasing her on the ground that she had brought less dowry. It has also been alleged that after some time, the accused started demanding Rs. 2 lacs or opening new clinic, that the accused 1 to 8 tortured and kept her hungry for many times, and that in February, 1995, she was sent out of the house after beating. These allegations show that there are prima facie grounds to proceed against the second petitioner - Kaushalya Devi under Section 498-A I.P.C. As pointed out already, it is not necessary for me to critically analyse these allegations or to find out whether these allegations are true or false, by holding that the second petitioner - Kaushalya Devi is either old or blind.

15. Therefore, the petition in so far as it relates to Kaushalya Devi, has to fail.

16. Of course, I have found that the allegations in the complaint against the first petitioner Anil Kumar do not disclose any case for proceeding against him either under Section 406 or 498-A I.P.C. But the learned counsel appearing for the State contends that the police have filed the charge-sheet on 7.11.1996 and, therefore, this Court should not quash the F.I.R. He relied upon the decision of the Hon'ble Supreme Court in Minakshi Bala v. Sudhir Kumar, 1994(3) R.C.R. 123; a decision of, the High Court of Delhi in Swami Dhirendra Brahamchari v. Shailendar Bhushan, 1994(2) R.C.R. 298; a decision of the Hon'ble Supreme Court in State of Bihar and another v. P.P. Sharma and another, AIR 1991 S.C. 1261, in support of his contention that after the presentation of the challan, the High Court should not, in the exercise of its jurisdiction under Section 482 Cr.P.C., quash the F.I.R. and the further proceedings. These decisions do support the contention of the learned counsel for the State. But in Minakshi Bala's case (supra), the Hon'ble Supreme Court has held that once the charges are framed the High Court in exercise of its powers under Section 482 Cr.P.C., is not justified in quashing the F.I.R. and the further proceedings except in rare cases where forensic exigencies and formidable compulsions justify such a course.

17. But, in this case, it cannot be stated that there are such formidable compulsions or forensic exigencies. This Court, on a reading of the complaint, has only come to the conclusion that there are no grounds for proceeding against the first petitioner either under Section 406 or 498-A I.P.C. But once the chargesheet is filed before the concerned Court, this Court will not exercise its power under Section 482 Cr.P.C. to quash the F.I.R. on this ground, but leave it to the trial Court to go through the records, hear arguments of both the sides, frame a charge if a case is made out and proceed further with the case, or if no case is made out, to discharge the accused. Simply because this Court finds that no case is made out, it cannot be stated to be a formidable compulsion enabling this Court to quash the proceedings under Section 482 Cr.P.C., after the filing of the charge-sheet. Therefore, I refrain from exercising the power under Section 482 in these circumstances.

18. These observations will hold good with regard to the second petitioner- Kaushalya Devi also. Of course, I have also found that the allegations in the complaint forming the basis of the F.I.R. disclose grounds for proceeding against her. This will be an additional ground for not exercising the power of this Court under Section 482 Cr.P.C.

19. Therefore, this petition has to fail. Accordingly, this petition is dismissed.
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