Tuesday, 5 January 2016

When High court can quash prosecution against family members of Husband under S 498A of IPC?

In the instant case, as we have already seen that there
are specific allegations against husband Shrikant and his
father Sudama Prasad who lived together in the matrimonial
home of the complainant along with her. Thus, the power
under section 482 of the Code of Criminal Procedure cannot
be used to stifle their prosecution. However, so far as
remaining applicants/accused persons are concerned, none of
them lived together with the husband and father-in-law in the
matrimonial home of the complainant. Moreover, there are no
specific and credible allegations with necessary particulars,against them. Only omnibus allegations shorn of even basic
details, have been leveled; therefore, in the opinion of this
Court, they should not be made to undergo the rigmarole of a
criminal trial. Allowing trial to proceed against the aforesaid
relatives would be travesty of justice and abuse of process of
law. As such, exercise of extra-ordinary powers of the High
Court reserved under section 482 of the Code of Criminal
Procedure, is called for.
MCRC-2112-2015

Dated;10-12-2015
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Miscellaneous Criminal Case No.2112/2015
 Shrikant Tamrakar and others
Vs.
State of Madhya Pradesh and another

Present:- Hon'ble Shri Justice C.V. Sirpurkar



1. This miscellaneous criminal case has been instituted on an
application under section 482 of the Code of Criminal
Procedure filed on behalf of applicants/accused persons in
Crime No.32/2015 registered by P.S. City Kotwali,
Chhindwara, under section 498-A read with section 34 of the
Indian Penal Code and section 3/4 of the Dowry Prohibition
Act, 1961.
2. The facts giving rise to this miscellaneous criminal case
may briefly be stated thus: Complainant Harshna Paigwar
filed a written report with the police to the effect that she was
married to applicant/accused No.1 Shrikant
Paigwar/Tamrakar by Hindu Rites in a Group Marriage
Ceremony under the Chief Minister's Scheme at Chhindwara,
on 06-06-2014. In the marriage, her mother spent about
Rs.4,00,000/- and gave gold and silver ornaments and household
items to the complainant. In addition thereto, she had
also given Rs.2,00,000/- in cash and clothes at the time of
engagement ceremony. Applicants/accused Sudama Prasad
Tamrakar is father, Amarlal Tamrakar is father's brother-inlaw,
Uma Tamrakar is father's sister, Anoop Tamrakar isbrother-in-law, Eshwari Tamrakar is sister, Sachin
Chandravanshi is brother-in-law and Jaishri Chandravanshi is
sister of applicant No.1 Shrikant Tamrakar. Applicant No.9
Krishna Tamrakar is not in relation with applicant No.1
Shrikant Tamrakar. When the complainant went to
matrimonial home at Chhindwara, from her maternal home at
Chichli, Gadarwara, her two sisters-in-law Eshwari and Jaishri
and their husbands Anoop and Sachin as also her father-inlaw's
sister Uma and her husband Amarlal Tamrakar as well
as Krishna Tamrakar started saying that her mother had
given nothing in dowry. She ought to have given at least
Rs.5,00,000/-. Krishna Tamrakar said that at Chhindwara
people evem spent 10,00,000/- in marriages. The aforesaid
relatives of her husband started taunting and mentally
harassing her. Sudama, her father-in-law also mentally
harassed her for dowry. Her husband Shrikant called his
friends, to consume liquor in her matrimonial home. Shrikant
told the complainant to do everything she does with him, with
his friends as well. Her husband and father-in-law pressurized
her to ask her mother on telephone to give a shop in dowry.
Her husband and her father-in-law also forcibly administered
intoxicating tablets and on one occasion, an injection to her.
Once her husband and father-in-law tried to pour kerosene on
her; whereon she ran away to her neighbours' place and
called her mother on telephone. Thereafter her mother came
and took her to her maternal home. Her husband and fatherin-law
say that they would take her to her maternal home only
after her mother would make arrangement for more dowry.
The FIR was lodged on 14-01-2015. After investigation,charge-sheet was filed in the Court on 26-09-2015.
3. The applicants have prayed for quashing the first
information report and the proceedings arising therefrom on
the ground that applicant No.1 Shrikant married complainant
Harshna in Group Marriage Ceremony under the Chief
Minister's Scheme. The family of applicant Shrikant lived
below poverty line. The complainant lived at her matrimonial
home with applicant Shrikant only after a brief period of
10-12 days. Thereafter, her mother took her to her
matrimonial home leveling false allegations against applicant
Shrikant and other family members. Since, the complainant
refused to live with applicant No.1 Shrikant, he served a
notice dated 25-08-2014 upon her through his advocate by
registered post but the complainant did not pay any heed to
the aforesaid notice. Consequently applicant No.1 Shrikant
Tamrakar filed an application under section 9 of the Hindu
Marriage Act in the Court of Principal Judge, Family Court,
Chhindwara on 18-11-2014, for restitution of conjugal rights
which has been registered as Hindu Marriage Petition
No.418/2014. As a counter blast to the said application, the
complainant filed present first information report on
15-01-2015, wherein false allegations have been leveled not
only against applicant Shrikant and father Sudama Prasad but
also against Krishna Tamrakar, who is not related to
applicant Shrikant as also other relatives, who lived in other
towns separate from applicant Shrikant on omnibus
allegations. Therefore, it has been prayed that the first
information report and the criminal proceedings arising
therefrom be quashed.4. A notice was directed to be issued against the complainant
(respondent No.2 Harshna); however, a perusal of the Court
order dated 06-08-2015 reveals that no one had appeared on
behalf of the respondent No.2 even after due service upon
her. Thus, complainant was not represented before the Court
at the time of arguments.
5. On due consideration of the contentions of learned counsel
for the applicants and respondent No.1/State as also after
perusal of the case diary, this Court is of the view that this
application under section 482 of the Code of Criminal
Procedure must succeed in part.
6. It is admitted that charge sheet in the matter has been
filed. However, it has been held by the Apex Court in the case
of Satish Mehra Vs. State (NCT of Delhi) and another,
AIR 2013 SC 506 that the power to interdict a proceeding
either at the threshold or at an intermediate stage of the trial
is inherent in a High Court on the broad principle that in case
the allegations made in the FIR or the criminal complaint, as
the case may be, prima facie do not disclose a triable offence,
there can be no reason as to why the accused should be made
to suffer the agony of legal proceeding. Thus, such power
would be available for exercise not only at the threshold of a
criminal proceeding but also at a relatively advanced stage
thereof, namely, after framing of charge against the accused.
Thus, the High Court can certainly exercise power under
section 482 of the Code of Criminal Procedure after filing of
the charge sheet or even after framing of charge.
7. It has also been held by the Supreme Court in the case of
Harshendra Kumar D. Vs. Rebatilata Koley AIR 2011 SC1090 that uncontroverted documents or material of
unimpeachable or sterling character may be considered while
exercising jurisdiction under section 482 of the Code of
Criminal Procedure. The same view has been taken by the
Supreme Court in the cases of State of Orissa vs. Devendra
Nath Padhi, 2005(1) SCC 568, Rukmani vs. Vijaya, AIR
2009 SC 1013 and Rajiv Thapar vs. Madan Lal Kapoor,
AIR 2013 SC (supp.) 1056.
8. Reverting back to the facts and circumstances of the case
at hand, it is found that there is nothing on record to suggest
that applicant Krishna Tamrakar (accused No.7) is, in any
manner related to husband Shrikant Paigwar. Thus, the
observation alleged to have been made by him that some
people at Chhindwara spent even Rs.10,00,000/- in marriage,
is inconsequential and does not make him liable to be
implicated in a case under section 498-A of the Indian Penal
Code.
9. So far as accused persons other than Shrikant, Sudama
and Krishna are concerned, Amarlal Tamrakar is brother-inlaw
of Sudama Prasad. Uma Tamrakar is Amarlal's wife and
Sudama Prasad's sister. Anoop Kumar is Eshwari's husband
and Shrikant's brother-in-law. Likewise, Sachin is husband of
Jaishri and brother-in-law of Shrikant. Eshwari and Jaishri are
married sisters of Shrikant. Sister Eshwari and her husband
Anoop Jasathi lived at Cheechli, Tahsil Gadarwara, District
Narsinghpur. Other sister Jaishri and her husband Sachin
lived at House No.43 Patwari Colony, Khargaon. Sudama's
sister Uma Tamrakar and her husband Amarlal lived at
Bhairoganj Seoni. Krishna Tamrakar lived separately fromShrikant and his father Sudama, at Chhota Talab,
Chhindwara. Only Shrikant and his father lived together at 23
Nice Chowk Chhindwara. Aforesaid addresses of the
applicants have been recorded after investigation, in the
charge sheet. Thus, it is admitted position that apart from
Shrikant and Sudama no one else has ever resided with the
complainant in the same house at Chhindwara.
10. In the first information report, which was recorded on the
basis of a written report, specific allegations have been made
against husband Shrikant and his father Sudama Prasad
regarding harassment and cruelty for dowry; however, the
allegations against the remaining applicants are omnibus in
nature and no time and date of the incidents have been given.
Moreover, in her statement recorded under section 161 of the
Code of Criminal Procedure on 25-01-2015, complainant
Harshna has simply stated at the end, probably by way of
after-thought that other accused persons had said that more
money ought to have been given in the marriage and
applicants could deserved a better girl. In the end, a general
statement was made that all persons had beaten her for
dowry. However, no specific role in this regard has been
ascribed to any of them nor time and date of the assault has
been given. In any case, complainant is said to have stayed in
her matrimonial home for not more than 10 or 12 days.
11. It may be noted in this regard that the Supreme Court in
the case of Arnesh Kumar Vs. State of Bihar, 2014(8)
SCC 273, observed that:
“4. There is a phenomenal increase in matrimonial disputes
in recent years. The institution of marriage is greatly revered
in this country. Section 498-A IPC was introduced with
avowed object to combat the menace of harassment to awoman at the hands of her husband and his relatives. The fact
that Section 498-A IPC is a cognizable and non-bailable
offence has lent it a dubious place of pride amongst the
provisions that are used as weapons rather than shield by
disgruntled wives. The simplest way to harass is to get the
husband and his relatives arrested under this provision. In a
quite number of cases, bedridden grandfathers and
grandmothers of the husbands, their sisters living abroad for
decades are arrested.
12. It has been observed by the Supreme Court in Preeti
Gupta v. State of Jharkhand , AIR 2010 SC 3363 that:
“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.”
“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 theappellants to undergo the rigmarole of a criminal trial. In the
interest of justice, we deem it appropriate to quash the
complaint against the appellants.”
13. Likewise, in the case of Neelu Chopra & anr. v. Bharti,
AIR 2009 SC(Supp) 2950, Supreme Court held as follows:
“It does not show as to which accused has committed what
offence and what is the exact role played by these appellants
in the commission of offence. There could be said something
against Rajesh, as the allegations are made against him more
precisely but he is no more and has already expired. Under
such circumstances, it would be an abuse of process of law to
allow the prosecution to continue against the aged parents of
Rajesh, the present appellants herein on the basis of vague
and general complaint which is silent about the precise acts
of the appellants.”
14. A three judge bench of Supreme Court in the case of
Kans Raj vs. State of Punjab, AIR 2000 SC 2324 observed
that:
“For the fault of the husband, the in-laws or the other
relations cannot, in all cases, be held to be involved in the
demand of dowry. In cases where such accusation are made,
the overt acts attributed to persons other than husband are
required to be proved beyond reasonable doubt. By mere
conjectures and implications such relations cannot be held
guilty for the offence relating to dowry deaths. A tendency
has, however, developed for roping in all relations of the inlaws
of the deceased wives in the matters of dowry deathswhich, if not discouraged, is likely to affect the case of the
prosecution even against the real culprits. In their over
enthusiasm and anxiety to seek conviction for maximum
people, the parents of the deceased have been found to be
making efforts for involving other relations which ultimately
weaken the case of the prosecution even against the real
accused as appears to have happened in the instant case.”
15. It may be seen from the aforesaid judgments that the
Supreme Court has expressed its concerned with regard to
false implication of husband and his relatives in the cases
under section 498-A of the Indian Penal Code by disgruntled
wives. It has also been held that the tendency of falsely
implicating even those relatives of husband, who lived
separately and in different cities is also growing. It has been
held that if there are no specific and credible allegations
against, with necessary particulars against the relatives of the
husband, they should not be made to suffer the ignominy of a
criminal trial.
16. In the instant case, as we have already seen that there
are specific allegations against husband Shrikant and his
father Sudama Prasad who lived together in the matrimonial
home of the complainant along with her. Thus, the power
under section 482 of the Code of Criminal Procedure cannot
be used to stifle their prosecution. However, so far as
remaining applicants/accused persons are concerned, none of
them lived together with the husband and father-in-law in the
matrimonial home of the complainant. Moreover, there are no
specific and credible allegations with necessary particulars,against them. Only omnibus allegations shorn of even basic
details, have been leveled; therefore, in the opinion of this
Court, they should not be made to undergo the rigmarole of a
criminal trial. Allowing trial to proceed against the aforesaid
relatives would be travesty of justice and abuse of process of
law. As such, exercise of extra-ordinary powers of the High
Court reserved under section 482 of the Code of Criminal
Procedure, is called for.
17. Consequently, this application under section 482 of the
Code of Criminal Procedure is allowed in part.
18. The first information report registered by P.S. City
Kotwali, Chhindwara, in Crime No.32/2015 under section
498-A read with section 34 of the Indian Penal Code and
section 3/4 of the Dowry Prohibition Act and the criminal
proceedings arising therefrom pending in the Court of
Judicial Magistrate First Class, Chhindwara, so far as they
relate to applicants Eshwari, Anoop, Jaishri, Sachin, Uma,
Amarlal and Krishna are quashed. The trial arising from
aforesaid first information report against husband Shrikant
and father-in-law Sudama Prasad, shall continue in
accordance with law.
(C V SIRPURKAR)
JUDGE
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