Quashing of FIR u/s 498a-Dowry Cases India

Quashing of FIR under section 498a IPC by Supreme Court of India

“There is no allegation that there is any such conduct on the part of the

appellant which could be said to be amounting to cruelty of such a nature as is

likely to cause the Respondent No. 2 to commit suicide or to cause any injury

to her life. The ingredient to constitute an offence under explanation (a) of

Section 498A IPC are not at all mentioned either in FIR or in charge sheet and

in absence thereof, no case is made out. Therefore, explanation (a) as found

in Section 498A IPC is clearly not attracted in the present case.”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 249 OF 2004

Shakson Belthissor …. Appellant

Versus

State of Kerala & Anr. …. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order dated 28.10.2002

passed by the Kerala High Court rejecting the petition filed by the

appellant herein praying for quashing of the first information report (for

short `the FIR’) and the charge sheet filed against him.

2. The Respondent No. 2 (Valsa) got married with the appellant on

23.10.1997. Even otherwise they are related to each other, the Respondent No. 2 being the daughter of the appellant’s maternal uncle and paternal

aunt. Incidentally, the aforesaid marriage was the second marriage of

Respondent No. 2 as she was earlier married to one Mr. Varghese, who

died in the year 1995. Through the said marriage the Respondent No. 2

has two sons. However, it was the first marriage of the appellant. Out of

the wedlock between the appellant and Respondent No. 2, there is no

issue.

3. The appellant was working at the relevant time at Saudi Arabia. The

appellant got married to Respondent No. 2 when he came on leave for four

months. However, after the marriage there appears to be some dispute

between the parties. On 21.04.2002, Respondent No. 2 filed an FIR in the

Kottayam Police Station, District Kollam, Kerala alleging that the

appellant married her when he came on leave for 4 months and that after

the marriage he stayed in the house of the complainant – wife and that

after expiry of the period of leave, her husband – the appellant returned to

the Gulf. It was also alleged by Respondent No. 2 in the said FIR that

thereafter, for 2-3 months, the appellant used to send money for the

expenses in the house, talked to her over phone and also sent letters from

Saudi Arabia and also behaved with her very affectionately. It was also

alleged that the parents of Respondent No. 2 at the time of marriage had

given Rs. 5 lakhs and that the said money was utilized by the family of the

appellant for purchasing a house at Nediyazhikam and also a property at

Mukkam where they are residing. It was also alleged that thereafter they

started spreading wrong information regarding the conduct of the

Respondent No. 2 in the locality and also misled the appellant about her.

On believing his family members, the appellant also stopped sending

money from Saudi Arabia for her expenses and also stopped sending

letters to her. It was also alleged by the Respondent No. 2 in the said FIR

that when she called him on telephone, the appellant behaved without

affection towards her and disconnected the phone due to which she

became mentally weak. It was also alleged that subsequently whenever

the appellant came on leave, he never used to come to the house of

Respondent No. 2 and stayed in the house of his younger brother and when

Respondent No. 2 herself went to that house, she was turned out from that

house. It was also alleged that due to such treatment meted out to her, she

has been suffering both mentally and physically.

4. On the basis of the said FIR a criminal case was registered and on

completion of the investigation made by the police, a charge sheet was

submitted by the police alleging, inter alia, that in the investigation it is

established that it is only the appellant, who has committed the offence. It

was also stated in the said charge sheet that investigation as per Section

498A of the Indian Penal Code (in short “the IPC”) is being continued

after dropping the provision of Section 34 IPC since it was revealed that

no offence was committed by any of the family members of the appellant

under Section 34 IPC. It was also stated in the charge sheet that since the

appellant has been in Gulf, arrest could not be made and therefore police

requested the court to issue a warrant of arrest for production of the

accused-appellant.

5. Both the FIR and the charge sheet, which were submitted by the police,

became the bone of contention so far as the appellant is concerned, and

therefore, he filed a Criminal Miscellaneous Case No. 9376 of 2002 under

Section 482 of the Criminal Procedure Code (in short “the CrPC) before

the High Court of Kerala at Ernakulam praying for quashing of both the

FIR as also the charge sheet on the ground that no case for prosecution

under Section 498 A IPC is made out against him. The High Court,

however, without issuing any notice on the said petition rejected the

petition holding that by no stretch of imagination it can be said that the

FIR and the charge sheet do not disclose the commission of the offence

alleged against the appellant.

6. Being aggrieved by the said order passed by the learned Single Judge of

the High Court, the present appeal was filed on which notice was issued

and further proceedings before the trial court were stayed by this Court.

7. Now, the appeal is listed before us for hearing and we heard the learned

counsels appearing for the parties. In order to fairly appreciate the

contents of the submissions made by the counsel appearing for the parties,

it is necessary to extract relevant portion of the FIR and the charge sheet.

8. The relevant part of the FIR is as under:

“……On last 23rd October, 1997, Shakson Belthissor of Nediyazhikam House, Mukkam, Mayyanad married me

at the Iyyathu Church at Kollam in accordance with the religious rites and custom. Husband is called by the name Raju. Husband has been working in Saudi Arabia as Business Executive. He married me at the time when he came on leave for 4 months. After the marriage, after wedded life had been in my house. On expiry of the period of leave, husband returned to Gulf. Thereafter, for 2-3 months, it was used to send money for the expenses in the house, to talk over phone, to send letters and to behave with very affection towards me. At the time of the marriage, my parents had given Rs. 5 lakhs as dowry. Using that amount with the consent of husband, Jose Major (younger brother of husband), wife Jessilet Manoj, their mother Jain Franco purchased Nediyazhikam house and property at Mukkam and resided therein. Thereafter, they spread in the locality unnecessary matters regarding me and informed husband and misled him. Husband, who believed their words, later stopped sending money for my expenses or sending letters. When I called him over phone, he would behave without affection towards

me and cut off the phone. Due to this behaviour from the part of husband and the aforesaid relatives, I was mentally weakened. While being so, husband came back on leave. Without coming to my house, went to the house of the younger brother. Learning about it, I went to there. Then, the younger brother, wife and wife’s mother closed the door of the house after sending me out. From that event and onwards, I had been suffering from physical and mental torturing…”

Relevant part of the charge sheet is as under:

“… While leading family life in Vivek Bhawan having number 11 in Ward VII along the west side of the Panchayath Road going from Cheriyil Pullichira Post Office Junction towards Devalakuzhi and other places, the accused spent off some amount from the Rs 5 lakhs which had been given as dowry at the time of marriage and after buying property with the balance amount he left for Gulf, and thereafter without giving for the

maintenance of the witness No. 1 or looking after the family affairs, the witness No. 1 was tortured through letters and over phone and when he came on leave, he spread unnecessary matter about the witness No. 1 and tortured mentally and thus committed the offence under the above provision – regarding.”

Report

“…..On getting it revealed during the investigation of the case that only the accused No. 1 has committed the offence, report has been submitted before the Court for reducing the number from 2 to 4 regarding the

identification of the full name and address of the accused No. 1.

Report has been submitted before the Court

regarding continuation of the investigation as per Section 498A IPC after reducing Section 34 IPC, since it was

revealed that no offence was committed under Section 34 IPC.

Since the accused in this case has been in Gulf, arrest could not be made and the Hon’ble Court may be pleased to issue warrant to arrest and produce the accused.”

9. The scope and power of quashing a first information report and charge

sheet under Section 482 of the CrPC is well settled. The said power is

exercised by the court to prevent abuse of the process of law and court but

such a power could be exercised only when the complaint filed by the

complainant or the charge sheet filed by the police did not disclose any

offence or when the said complaint is found to be frivolous, vexatious or

oppressive. A number of decisions have been rendered by this Court on the

aforesaid issue wherein the law relating to quashing of a complaint has

been succinctly laid down.

10.In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it

was held that the Magistrate while issuing process against the accused

should satisfy himself as to whether the allegations made in the complaint,

if proved, would ultimately end in the conviction of the accused. It was

held that the order of Magistrate for issuing process against the accused

could be quashed under the following circumstances: (SCC p. 741, para 5)

“(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”

11. In the case of Drugs Inspector v. Dr. B.K. Krishna [1981 (2) SCC

454] it was held by this Court that in a quashing proceeding, the High Court

has to see whether the allegations made in the complaint petition, if proved,

make out a prima facie offence and that the accused has prima facie

committed the offence. In the said decision this Court refused the prayer for

quashing of the complaint on the ground that there were sufficient allegations

in the complaint to make out a case that the accused persons were responsible

for the management and conduct of the firm and, therefore, the extent of their

liability could be and should be established during trial.

12. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi [1983

(1) SCC 1] it was held that when on the allegation made in the complaint, a

clear case was made out against all the respondents (accused persons), the

High Court ought not to have quashed the proceedings on the ground that the

complaint did not disclose any offence. In Municipal Corporation of Delhi

(supra), this Court observed as follows in para 8:

“8. Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Smt Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 where the scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC para 5, p. 741 : SCC (Cri) pp. 511-12]

Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence, which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.”

13. In State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335, a

question came up for consideration as to whether quashing of the FIR filed

against the respondent Bhajan Lal for the offences under Sections 161 and

165 IPC and Section 5(2) of the Prevention of Corruption Act was proper

and legal. Reversing the order passed by the High Court, this Court

explained the circumstances under which such power could be exercised.

Apart from reiterating the earlier norms laid down by this Court, it was

further explained that such power could be exercised 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. It observed as

follows in para 102:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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.”

14. However, in paragraph 108 of the said judgment, this Court referred to

and relied upon it earlier judgment in Sheonandan Paswan vs. State of

Bihar; AIR SC 877 wherein it has been held as under:

“It is a well established proposition of law that a criminal prosecution, it otherwise justifiable and based upon adequate

evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.”

Thus, in such circumstances, the issue of malafice becomes irrelevant.

15. The above decision was followed by this Court in Pepsi Foods Ltd.

and Anr. Vs. Special Judicial Magistrate and Others [1998 (5) SCC 749].

In paragraph 28 of the said judgment this Court held thus :

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

16. Further, this Court observed in S. W. Palanikar v. State of Bihar

[2002 (1) SCC 241] that every breach of trust may not result in a penal

offence of criminal breach of trust unless there is evidence of a mental act of

fraudulent misappropriation. It observed as follows:

“8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.

9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 on facts of that case, has expressed thus: (SCC p. 177, para 15)

15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time

when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”

(emphasis supplied)

17. This Court in the case of Indian Oil Corpn. v. NEPC India

Ltd.,(2006) 6 SCC 736, at page 747 has observed as under :

“12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few– Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque.. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is

found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”

18. This Court has recently in R. Kalyani v. Janak C. Mehta and

Others, (2009) 1 SCC 516, observed as follows:

“15. Propositions of law which emerge from the said decisions are:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.”

19. The same view has been taken by this Court in Chunduru Siva Ram

Krishna & Anr. v. Peddi Ravindra Babu & Anr., SLP (Crl.) No. 2991 of

2007; and V. V. S. Rama Sharma & Ors. v. State of U.P. & Ors., SLP

(Crl.) No. 1529 of 2007.

20. It was fairly agreed at bar that the aforesaid FIR was filed by

Respondent No. 2 with the intention of making out a prima facie case of

offence under Section 498A of the Indian Penal Code. The charge sheet,

which was filed by the police was under Section 498A of the Indian Penal

Code. As to whether or not in the FIR filed and in the charge sheet a case of

Section 498A IPC is made out or not is an issue, which is required to be

answered in this appeal. Section 498A of the IPC reads as follows:

“498A. 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 purpose of this section, “cruelty” means-

(a) Any willful 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 meet such demand”.

21. In the light of the aforesaid language used in the Section, the provision

would be applicable only to such a case where the husband or the relative of

the husband of a woman subjects the said woman to cruelty. When the

ingredients of the aforesaid Section are present in a particular case, in that

event the person concerned against whom the offence is alleged would be

tried in accordance with law in a trial instituted against him and if found guilty

the accused would be punished with imprisonment for a term which may

extend to three years and shall also be liable to fine. The said section contains

an explanation, which defines “cruelty” as understood under Section 498A

IPC. In order to understand the meaning of the expression `cruelty’ as

envisaged under Section 498A, there must be such a conduct on the part of the

husband or relatives of the husband of woman which is of such a nature as to

cause the woman to commit suicide or to cause grave injury or danger to life,

limb or health whether mental or physical of the woman.

22. When we examine the facts of the present case particularly the FIR and

the charge sheet we find that there is no such allegation either in the FIR or in

the charge sheet making out a prima facie case as narrated under explanation

(a). There is no allegation that there is any such conduct on the part of the

appellant which could be said to be amounting to cruelty of such a nature as is

likely to cause the Respondent No. 2 to commit suicide or to cause any injury

to her life. The ingredient to constitute an offence under explanation (a) of

Section 498A IPC are not at all mentioned either in FIR or in charge sheet and

in absence thereof, no case is made out. Therefore, explanation (a) as found

in Section 498A IPC is clearly not attracted in the present case.

23. We, therefore, now proceed to examine as to whether the case would

fall under explanation (b) of Section 498A of IPC constituting cruelty of the

nature as mentioned in explanation (b). In order to constitute cruelty under

the said provision there has to be 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 a case is to be made out to the effect that there

is a failure by her or any person related to her to meet such demand. When

the allegation made in the FIR and charge sheet is examined in the present

case in the light of the aforesaid provision, we find that no prima facie case

even under the aforesaid provision is made out to attract a case of cruelty.

24. The marriage between the appellant and Respondent No. 2 was

performed on 23.10.1997 when it is alleged that Rs. 5 lakhs was given by the

parents of Respondent No. 2 to the family of appellant as dowry. The FIR

was filed in the month of April, 2002 and in the said FIR there is no allegation

that subsequent thereto any harassment was made by the appellant with a view

to coercing her or any person related to Respondent No. 2 to meet any

unlawful demand or any property.

25. In that view of the matter neither explanation (a) nor explanation (b) of

Section 498 A of IPC is attracted in the present case. It is crystal clear that

neither in the FIR nor in the charge sheet there is any ingredient of Section

498A IPC, which could prima facie constitute a case of cruelty as defined in

that Section.

26. It is thus established that on a reading of the FIR as also the charge

sheet filed against the appellant no case under Section 498A is made out on

the face of the record, and therefore, both the FIR as also the charge sheet are

liable to be quashed in exercise of the powers under Section 482 of the CrPC.

Clearly, the High Court failed to appreciate the facts in proper perspective,

and therefore, committed an error on the face of the record.

27. We, therefore, allow this appeal and quash the proceedings initiated

against the appellant under Section 498A of the IPC.

28. The appeal is allowed to the aforesaid extent.

…………………………J.

(Dr. Mukundakam Sharma)

………………………….J.

(Dr. B.S. Chauhan)

New Delhi,

July 6, 2009

Hon”ble High Court Held That:

it is a rarest of rare case, where the Court
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.

IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(Crl.) No. 957/2003
Reserved on: 22.08.2007
12.09.2007
Date of Decision: 12.09.2007
Kanchan Gulati and Anr.
…….Petitioners
Through : Mr. S.S.Gandhi,
Sr.Advocate
with Mr. Vishal Gosain, Advocate
versus
The State and Ors. ………
Respondents
Through : Ms. Mukta Gupta, Advocate for
State
Mr. Rahul Goyal, Advocate for R-4
CORAM:
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2.To be referred to the Reporter or not? Yes.
3.Whether the judgment should be reported Yes.
in the Digest?
JUDGMENT
This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant). 2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs.2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs.1,46,000/- and an amount of Rs.4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.
3. On 06.5.1997 her husband filed a divorce petition in the Circuit
Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the
decree of the Trial Court. The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.
4. Quashing of this FIR has been prayed for by the petitioners. It
is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back the articles, lodged this FIR.
5. The complainant has not disputed about her contesting divorce
petition and filing an appeal before the US Court. The orders of the US Court
have been placed on record. The decree passed by the USA Court has not been
challenged. The order of the US Court shows that the complainant had taken up
all grounds like withholding her property, dowry etc. by her husband. The US
Court directed the parties to exchange articles and passed following order:
A. That the bonds of matrimony now existing between the petitioner,
ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.
B. That the marital home located at 1258 S. Pleasant Hill Gate,
Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.
C. That each party shall receive his or her own vehicles and each shall
execute any documents necessary to transfer the title of the vehicle to the other.
D. That each party shall receive his or her own personal property
currently in his or her possession. That the Husband shall receive the
following personal property as his sole property which shall be delivered to him
by the Wife on March 21, 1999:
Sharp TV
Bed (with frame, and box spring)
Sharp Microwave
Small fridge
Cooking Utensils and accessories
Spices
Square side table (brown, wood)
3 Chairs ( wood frame and brown leather seat)
Dining Table and Chairs
2 Chairs (steel frame, leather seat)
Glass top tables
Comforter from aunt
Utensils, spices and other stuff from my relatives.
E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.
F. That the Husband shall receive his stock options as his sole property.
G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.
H. That each party is barred from any maintenance from the other.
I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife’s interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.
J. That the parties shall exchange their dowry items within 60 days of the
entry of this Judgment for Dissolution of marriage. The Wife shall give to the
Husband all the items on the attached list:
One gold chain with pendant
One gold ?krishna murti? pendant with diamonds.
One diamond ring
one pair of big earrings (mina wale)
2 pair of earrings
one gold ring ( given on Kwar-dhoti)
one pair of silver paizeb
one long mangal-sutra (mina wala)
Bangles
One (1) Golden Challa (sister-in-law)
The Husband shall give to the Wife all items on the attached list:
One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings)
One Sitarami Necklace (Necklace only)
One Gold Chain given to me
One Gold and Diamond engagement ring
One Gold wedding band
One Gold coin (guenea)
One Double gold chain given to my mother
One Gold chain given to my sister-in-law
Two gold rings (1 for my father, 1 for my brother)
Two silver trays (rectangular)
One silver tray (circular)
One silver small bowl (katori)
One wedding saree
One luggage carrier (foldable cart)
Check book for bank account in Anuja’s name
6. The appellate order passed by the appeal court would show that
appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfilling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.
7. Quashing of FIR in exercise of writ jurisdiction is a discretion
of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.
8. I consider that it is a rarest of rare case, where the Court
should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.
SHIV NARAYAN DHINGRA,J.
September 12, 2007

Another Judgment:Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2122 OF 2009
(Arising out of SLP(Crl.) No. 5910/2006)
Pashaura Singh …Appellant
Versus
State of Punjab & Anr. …Respondents
JUDGEMENT
R.M. Lodha, J.
Leave granted.
2. In this appeal by special leave, the appellant has
challenged the order dated May 24, 2006 passed by the High
Court of Punjab and Haryana. By the said order, the petition
filed by the appellant under Section 482 of Code of Criminal
Procedure for quashing F.I.R. No. 9 dated January 21, 2002
registered at Police Station Sehna under Sections 498-A, 494,
506/34, IPC has been dismissed.
3. Kamaljeet Kaur is a landed immigrant of Canada.
On May 7, 1997, she married Pashaura Singh Sidhu –
appellant – at village Ghall Kalan, District Moga, Punjab. She
left for Canada on May 15, 1997. She sponsored her husband
and, accordingly, Pashaura Singh went to Canada in 1998.
They stayed together for few months and then relations
between them became strained. Kamaljeet, thereafter, started
living separately in Ontario. Pashaura Singh applied for
divorce and dissolution of marriage before the Supreme Court
of British Columbia and a divorce judgment was passed in his
favour and their marriage stood dissolved with effect from
February 8, 2001. After the dissolution of marriage, Pashaura
Singh came to India and remarried on January 2, 2002.
Pashaura Singh went back to Canada with his newly wedded
wife and both of them have been residing there.
4. On January 21, 2002, Kamaljeet’s brother Balwant
Singh lodged a first information report being F.I.R. No. 9 at
Police Station Sehna against Pashaura Singh, Hakam Singh
(father of Pashaura Singh), Randhir Singh (brother of Pashaura
Singh), Charanjit Kaur (wife of Randhir Singh) and Harbans
Kaur (mother of Pashaura Singh) alleging therein that on May
7, 1997 he performed his sister Kamaljeet Kaur’s marriage with
2
Pashaura Singh; that at the time of marriage, according to his
status, he gave rupees four lacs in cash, gold jewelry, utensils,
almirah, fifty-one suits, five bags etc. but the accused started
harassing his sister Kamaljeet Kaur and threatened to kill her if
she did not bring car, electronic items etc. and that he has now
come to know that Pashaura Singh has entered into second
marriage in the first week of January, 2002. A case under
Sections 498-A, 494, 506/34, IPC was registered against the
accused persons and it appears that the police submitted
challan against them in the court of Judicial Magistrate First
Class, Barnala.
5. Randhir Singh, Charanjit Kaur (Rajinder Kaur),
Hakam Singh and Harbans Kaur filed a petition under Section
482 of the Code of Criminal Procedure for quashing the F.I.R.
No. 9 and criminal prosecution against them. Vide order dated
April 29, 2004, the High Court allowed the petition and quashed
F.I.R. No. 9 dated January 21, 2002 registered against them
and all subsequent proceedings.
6. Pashaura Singh by a separate petition under
Section 482 of the Code prayed for quashing F.I.R. No. 9/2002
3
and the subsequent criminal proceedings against him but, as
noticed above, the High Court by its order dated May 24, 2006
dismissed his petition. The High Court in its cryptic order, while
dismissing the petition, observed that Pashaura Singh has
married second time on January 2, 2002 while he was already
married with Kamaljeet Kaur and the aforesaid marriage has
not been dissolved.
7. Having heard the learned Counsel for the parties
and upon careful perusal of the materials placed before us, in
our judgment, the order of High Court cannot be sustained for
more than one reason. In the first place, the High Court gravely
erred in observing that Pashaura Singh married second time on
January 2, 2002 while he was already married with Kamaljeet
Kaur and the aforesaid marriage has not been dissolved. The
certificate of divorce dated February 26, 2001 issued by the
New Westminster Registry, Supreme Court of British Columbia
shows that the marriage of Pashaura Singh and Kamaljeet Kaur
stood dissolved on February 8, 2001. As a matter of fact, this
fact is noticed in the order dated April 29, 2004 whereby the
High Court quashed F.I.R. No. 9 and the subsequent criminal
4
proceedings against the family members of Pashaura Singh. In
the affidavit filed by Gurmail Singh, Deputy Superintendent of
Police in response to the petition filed by the appellant under
Section 482 before the High Court, it has been admitted that
during investigation on March 14, 2002 Hakam Singh had
produced photocopy of divorce certificate purporting to have
been issued by the Supreme Court of British Columbia. The
observation of the High Court, thus, that Pashaura Singh
married second time, although his marriage has not been
dissolved, is ex-facie contrary to record.
8. Section 494, IPC, inter-alia, requires the following
ingredients to be satisfied, namely, (i) the accused must have
contracted first marriage; (ii) he must have married again; (iii)
the first marriage must be subsisting and (iv) the spouse must
be living. Insofar as present case is concerned the appellant’s
marriage with Kamaljeet Kaur was not subsisting on January 2,
2002 when he is said to have married second time. Pertinently
before the High Court, along with reply, the complainant
Balwant Singh annexed copy of an affidavit filed by Kamaljeet
Kaur which states that she was not aware of the divorce
5
proceedings filed by her husband Pashaura Singh. However,
from this affidavit, it is apparent that her husband has obtained
a divorce judgment. There is nothing in the affidavit that divorce
judgment has been stayed or set aside. On the face of the
allegations made in the first information report, therefore,
ingredients of the offence under Section 494, IPC are not
satisfied.
9. Insofar as offence under Section 498-A is
concerned, the High Court in its earlier order dated April 29,
2004 in the petition filed by the family members, observed thus:
“I have perused the First Information Report
registered against the petitioners.
The only allegation against the petitioner is that they
started harassing Kamaljeet Kaur Gill for not bringing more
dowry. No demand of dowry has been made by the
petitioners, nor is there any specific entrustment, as alleged
in the First Information Report of dowry articles to the
petitioners. Parties have divorced each other, as per the
order of the Supreme Court of British Columbia (Annexure
P-1). Order is dated February 25, 2001. It is after this divorce
that Pishora Singh got married in India on January 2, 2002.”
10. Moreover, in the affidavit of Kamaljeet Kaur referred
to hereinabove, there is not a word about demand of dowry or
harassment on account of dowry by the appellant.
6
11. We have no hesitation in holding that the first
information report lodged by Balwant Singh is manifestly
attended with malafides and actuated with ulterior motive. The
prosecution of the appellant is not at all legitimate, rather it is
frivolous, vexatious, unwarranted and abuse of process. The
appellant has made out a case for quashing the first information
report and all subsequent proceedings pursuant thereto.
12. For the reasons indicated above, appeal is allowed
and order dated May 24, 2006 passed by the High court of
Punjab and Haryana is set aside. Resultantly, F.I.R. No. 9
dated January 21, 2002 registered at Police Station Sehna and
all subsequent proceedings pursuant thereto stand quashed
and set aside.
13. The pending applications stand disposed of.
……………………J
(Tarun Chatterjee)
…….……………..J
(R. M. Lodha

FIR u/s 498a ipc Quashed against relative of Husband

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1745 OF 2010

(@ SPECIAL LEAVE PETITION(CRL.) No.4758 of 2009) SUNITA JHA … APPELLANT Vs.

STATE OF JHARKHAND & ANR. … RESPONDENTS J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This Appeal is directed against the judgment and order dated 29th April, 2009, passed by a learned Single Judge of the Jharkhand High Court in Criminal Revision No.410 of 2007 dismissing the same and affirming the order of the Trial Court rejecting the prayer of the Appellant for being discharged from the case.

3. One Asha Rani Pal, the Respondent No.2 herein, filed a complaint case against her husband, Mukund Chandra Pandit, and the Appellant herein, being Complaint Case No.404 of 2005, before the Sub-Divisional Judicial Magistrate, Dumka, Jharkhand, under Section 498A IPC. The learned Magistrate by his order dated 6th February, 2006, took cognizance against the Appellant and other accused and issued process for the accused to appear before him on 5th April, 2006. Pursuant to the said order, the Appellant appeared before the learned Magistrate on 10th July, 2006, when the prosecution examined two witnesses, namely, PW.1 Kanhai Pal, father of the Respondent No.2 and PW.2 Mukti Pal. No further evidence was led by the complainant/Respondent No.2 and on 13th November, 2006, the learned Magistrate closed the pre-charge evidence and posted the case for arguments on framing of charge.

4. On 9th March, 2007, the Appellant filed an application for discharge, inter alia, on the ground that the complainant had not been examined as a witness in the case. During the arguments on the said application, it was contended that the Appellant could not be made an accused under Section 498A IPC since she was not a relative of Mukund Chandra Pandit and that the allegations made against her did not make out a case of cruelty under the aforesaid Section. However, by his order dated 9th March, 2007, the learned Magistrate rejected the Appellant’s application for discharge on the ground that there was prima facie evidence for framing of charge against the accused, including the Appellant, under Section 498A IPC.

5. Aggrieved by the said order, the Appellant moved the Jharkhand High Court at Ranchi by way of Criminal Revision No.410 of 2007. As indicated hereinabove, a learned Single Judge of the High Court by his order dated 29th April, 2009, dismissed the Revision Application on the ground that since the Appellant was living with the accused husband of the complainant, she must be deemed to have become a family member of Mukund Chandra Pandit for the purpose of Section 498A IPC.

6. The case of the Appellant before us is that the High Court erred in law in holding that the Appellant became a member of the family of Mukund Chandra Pandit merely because she was living with him in his house allegedly as his wife. Mr. Gaurav Agrawal, Advocate, appearing for the Appellant, contended that Section 498A IPC was very clear as to who could be charged under the said Section. For the sake of convenience, the said Section is reproduced hereinbelow :- “498A. 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 purpose of this section, “cruelty” means-

(a) Any willful 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. It will be seen from the aforesaid provisions that it is either the husband or the relative of a husband of a woman who subjects her to cruelty, who could be charged under the said Section. Such provision could not apply to a person who was not a relation of the husband when the alleged offence is said to have been committed. It was contended that the Appellant was in no way related to the husband and was not his wife as held by the High Court so as to bring her within the ambit of Section 498A IPC and the charge framed against her was, accordingly, invalid and liable to be quashed. Reliance was placed by Mr. Agrawal on the decision of this Court in U. Suvetha v. State [(2009) 6 SCC 757], wherein the aforesaid question was directly in issue. This Court took up for consideration the question as to the persons who could be charged under Section 498A IPC having particular regard to the phrase “relative of the husband” occurring in the said Section. This Court categorically held that neither a girlfriend nor a concubine is a relative of the husband within the meaning of Section 498A IPC, since they were not connected by blood or marriage to the husband.

8. The other question which fell for determination was if a husband was living with another woman besides his wife, whether the same would amount to “cruelty” within the meaning of Section 498A. It was held that if such other woman was not connected to the husband by blood or marriage, the same would not attract the provisions of Section 498A I.P.C., although it could be an act of cruelty for the purpose of judicial separation or dissolution of marriage under the marriage laws, but could not be stretched to amount to “cruelty” under Section 498A IPC.

9. While construing the provisions of Section 498A IPC in the given circumstances, this Court observed that Section 498A being a penal provision deserved strict construction and by no stretch of imagination would a girlfriend or even a concubine be a “relative”, which status could be conferred either by blood connection or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.

10. Mr. Agrawal urged that the High Court had misconstrued the provisions of Section 498A vis- `-vis the Appellant in relation to the said Section and the impugned order of the High Court was, therefore, liable to be set aside along with the order of the learned Sub-Divisional Judicial Magistrate rejecting the Appellant’s prayer for discharge from the complaint case filed by Asha Rani Pal.

11. An attempt was made on behalf of the complainant, Asha Rani Pal, to justify the order passed by the learned Magistrate as also the High Court on the ground that the Appellant must be deemed to have acquired the status of wife of Mukund Chandra Pandit by her conduct and the fact that they had been living together as husband and wife.

12. We have considered the submissions made on behalf of the Appellant and the complainant wife. It may be indicated that the husband Mukund Chandra Pandit has not been made a party to these proceedings. However, having regard to the view which we are taking, his presence is not necessary for disposing of the present appeal.

13. Section 498A IPC, as extracted hereinabove, is clear and unambiguous that only the husband or his relative could be proceeded against under the said Section for subjecting the wife to “cruelty”, which has been specially 1

defined in the said Section in the explanation thereto. The question as to who would be a relative of the husband for the purpose of Section 498A has been considered in detail in U. Suvetha’s case (supra). We are entirely in agreement with the views expressed in the said case and we agree with the submissions made on behalf of the Appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit’s family. The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the Appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U. Suvetha’s case (supra), the same would enable the Respondent No.2 to proceed against her husband under Section 498A I.P.C. and also against the Appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C.

14. The Appeal, therefore, succeeds and is allowed. The judgment of the learned Single Judge of the Jharkhand High Court impugned in this Appeal is set aside and the cognizance taken against the Appellant on 6th February, 2006, by the learned Sub-Divisional Judicial Magistrate, Dumka, under Section 498A IPC, is hereby quashed. …………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

Finding of Judgment:Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.
Supreme Court of India

Bench: G Singhvi, A K Ganguly

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1512 OF 2010

(Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus

State of Jharkhand & Another ….Respondents JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.

3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:

The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.

4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.

5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.

6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.

7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.

8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offence could be made out against them.

9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:

“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”

10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.

11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.

12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.

13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their re- settlement may not be impossible.

14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?

15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (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.

16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

17. 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. The 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 but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they 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 proceedings at any stage.

18. This court had occasion to examine the legal position in a large number of cases. 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 of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their 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.

19. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.

20. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551, a three-Judge Bench of this court held as under:- “…..In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”

21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:

“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

22. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:

“(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.

(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.

(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.”

23. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.

24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-

“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-

“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”

26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-

“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.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.

……………………………J.

(Dalveer Bhandari)

……………………………J.

(K.S. Radhakrishnan)

New Delhi;

Bench: G Singhvi, A K Ganguly

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1512 OF 2010

(Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus

State of Jharkhand & Another ….Respondents JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their 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.

21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:

24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-

……………………………J.

(Dalveer Bhandari)

……………………………J.

(K.S. Radhakrishnan)

New Delhi;

August 13, 2010

—Dowry Cases u/s 498a IPC India

Quashing of FIR u/s 498a-Dowry Cases India

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