Tag Archives: 498a

No 498a based on hearsay evidence. Husband acquitted by Supreme court even after wife’s death

No 498a conviction based on hearsay evidence as the exceptions to Sec 32 Indian Evidence act are NOT acceptable for trying cases / crimes under ipc 498a. Also prosecution has failed to prove case beyond reasonable doubt. Hence Husband acquitted even after wife committed suicide.

///It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

In view of our finding that there is no legal evidence to connect the accused with the commission of the offence under Section 498A of the Indian Penal Code, this appeal is allowed by setting aside the impugned judgment of the High Court as also of trial court. Giving him the benefit of doubt, the appellant is acquitted of the charge under Section 498A of the Indian Penal Code. His bail bond stands discharged.
/////

Supreme Court of India

Gananath Pattnaik vs State Of Orissa on 6 February, 2002

Author: Sethi

Bench: R.P. Sethi, Bisheshwar Prasad Singh

CASE NO.: Appeal (crl.) 1 of 1995


PETITIONER: GANANATH PATTNAIK

Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 06/02/2002

BENCH: R.P. Sethi & Bisheshwar Prasad Singh


JUDGMENT:

SETHI,J.

The appellant was charged for the commission of offences punishable under Sections 304B and 498A of the Indian Penal Code for allegedly subjecting his wife to cruelty and causing the dowry death. After trial, the appellant was acquitted of the charge framed against him under Section 304B but convicted under Section 498A of the Indian Penal Code and sentenced to three years rigorous imprisonment. The appeal filed by the appellant against his conviction and sentence under Section 498A IPC was dismissed vide the judgment impugned in this appeal.

The facts of the case are that the appellant’s marriage with Rashmirekha was solemnised on 4.3.1984. A male child was born to the parties on 9.5.1985. Rashmirekha, the wife of the appellant died by hanging herself in the bathroom regarding which the appellant is stated to have lodged a written report to the Police Station Sahid Nagar and he informed the family members of the deceased. PW1, the father of the deceased thereafter lodged an FIR alleging therein that his daughter was murdered by the appellant and his family members. During the investigation it transpired that the deceased had committed suicide on account of dowry demands, allegedly made by the appellant and his family members. It was further revealed that the deceased had been subjected to ill-treatment, harassment and cruelty. The appellant was alleged to be having illicit connection with his brother’s wife. The accused totally denied the occurrence. In his statement, recorded under Section 313 of the Code of Criminal Procedure, he admitted that the deceased was his wife but asserted that he was having very cordial relations with her. There was no demand of dowry either by him or his brother or his family members. According to him the deceased had committed suicide which is not related to either cruelty or harassment or demand of dowry.

Upon analysis of the prosecution evidence, the trial court concluded that, “in absence of any acceptable evidence to establish the foundational fact, the accused cannot be held guilty for the offence under Section 304B of IPC”. The trial court, however, found the appellant guilty for the offence under Section 498A IPC by finding: “In this case there is evidence that the accused has given purshes to the deceased in presence of PW4. He has taken away the child from her as stated by PW5. There is also evidence that the deceased was not allowed to sit on the scooter by the accused and he was frequently staying absent in the house. He also failed to explain his position in relation to his sister-in-law Bijayalaxmi to the deceased for which there was an impression that he had illicit relationship with Bijayalaxmi. I find the evidence of the witnesses on this score is consistent. Taking away the child and the further ill treatment of the accused to the deceased as indicated above amounts to cruelty in as much as by the said conduct of the accused, it could be much possible that the deceased Rasmirekha could be driven to commit suicide.”

The aforesaid findings were confirmed by the High Court vide the order impugned.

It is conceded before us that no appeal or revision has been filed against the judgment of the trial court by which the appellant was acquitted of the charge framed against him under Section 304B of the Indian Penal Code.

We do not agree with the argument of the learned counsel for the appellant that even on proof of the aforesaid circumstances, as noticed by the trial court, no case was made out against the appellant as, according to him, those facts even proved do not constitute cruelty for the purposes of attracting the provisions of Section 498A of the Indian Penal Code. Cruelty for the purposes of aforesaid section has been defined under the Explanation of the Section to mean:

“(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 here 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.”

The concept of cruelty and its effect varies from individual to individual also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.

Learned counsel for the appellant then submitted that the findings returned by the trial court regarding the cruelty within the meaning of Section 498A of the Indian Penal Code are not based on any legal evidence.

To hold that the accused had once given pushes to the deceased which drove her to commit suicide are based upon the alleged testimony of PW4 who is the mother of the deceased. We have minutely read the statement of the aforesaid witness and do not find any mention of her having seen the accused pushing the deceased which, in turn, could be held to be “cruelty” driving her to commit suicide.

Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 PW5 had stated:

“Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of scooter and twin one.”

and added:

“On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused now-a-days. She further complained before us that the accused is taking away the child from and her, and that her mother in-law has come and some conspiracy is going against her (the deceased). She further told that “MATE AU BANCHEI DEBENAHIN”.

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the Hearsay Rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.

Another finding for recording the guilt of the accused is that once the deceased was not allowed to sit on the scooter by the accused and that he was frequently staying absent from his house. Learned counsel, appearing for the respondent, fairly conceded that no witness has stated to that effect and we feel that such a finding is not based upon any legal evidence.

The alleged relationship of the appellant with his sister-in-law is stated to be another circumstance which led the deceased to commit the suicide. Again there is no evidence on the record to hold that the deceased had conceived the apprehension of the appellant having illicit relations with his sister-in-law which led her to end the life. Learned counsel for the appellant has taken us through letters Exhibit A to F, stated to have been written by the deceased as admitted by PW4. In one of the letters the deceased is shown to have written to her mother stating:

Please informed me when the result of Tutu shall be declared and also send the new address of Bada Bhai in the letter have told you have occasion not to spread bad rumour against the sister-in-law (wife of Kailash Patnaik) and not to discuss about her with anybody; can these discussions will at all lead to a better understanding, rather it will create more misunderstanding and aggravating the situation and which is already in vogue. I came to know that you are telling to others that she is not providing me proper food, allowing me to wear good cloth and giving ill-treatment. I want to know who has given you these false information about her and as I remember, have never discuss about this to you; it is wrong to presume that she is misbehaving me; but you have been getting wrong information about her from others. When it comes her knowledge that that you have made discussion against her it creates rift and misunderstanding in our family; further I would like to bring your notice this is to report to her by those you discuss about her. Further why are you discussing with others regarding my stay; whether it is at village-home or at Bhubaneshwar. I have made number of fervent appeals to you not to make any bad discussion against her but you are not heeding to my advise and continuing same against her. By doing this, you are isolating me from rest of the family members.”

(EMPHASIS SUPPLIED) In view of the aforesaid letter it could not be held that the deceased had conceived an apprehension about the relationship of the appellant with his sister-in-law.

It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

In view of our finding that there is no legal evidence to connect the accused with the commission of the offence under Section 498A of the Indian Penal Code, this appeal is allowed by setting aside the impugned judgment of the High Court as also of trial court. Giving him the benefit of doubt, the appellant is acquitted of the charge under Section 498A of the Indian Penal Code. His bail bond stands discharged.

……………………….J. (R.P. Sethi)

……………………….J. (Bisheshwar Prasad Singh)

February 6, 2002

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employment. GUJARAT HC

Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employement. GUJARAT HC

/// the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal./////

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 2236 of 2019


SHARAD JIVANLAL KURANI
Versus
UNION OF INDIA


Appearance:
MR PH PATHAK(665) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5


CORAM: Hon’ble MR.JUSTICE S.R.BRAHMBHATT
and
Hon’ble MR.JUSTICE A.G.URAIZEE

Date : 06/02/2019

ORAL ORDER

(PER : Hon’ble MR.JUSTICE S.R.BRAHMBHATT)

Heard Shri P. H. Pathak, learned counsel appearing for the petitioner.

Petitioner, who happened to be an applicant in original application being Original Application No.490 of 2012 with M.A. No.79 of 2013 has taken out this petition under Articles 226 and 227 of the Constitution of India assailing the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench dated 31.08.2016, whereby the tribunal has rejected the prayer of backwages for the period from dismissal to the acquittal and reinstatement.

2. The facts in brief, could be gathered from the decision and the memo of petition, deserves to be set-out as under, for appreciating the controversy.

2.1 The petitioner was working as T. S. Clerk with Gujarat Telecom Circle of the Indian Post and Telegraphs Department from 01.01.1983. Later on, he was promoted as Sr. TOA (G) and was working with Telecom District, Rajkot. The Bharat Sanchar Nigam Limited (BSNL) came into existence w.e.f. 01.10.2000 and under an order dated 18.01.2002, the petitioner was absorbed in BSNL w.e.f. 01.10.2000. The petitioner had to face criminal prosecution u/s. 498A and 304B read with Section 114 of the Indian Penal Code in Sessions Case No.138 of 1991. The Sessions Court has acquitted the petitioner vide order dated 22.01.1997. Such acquittal order dated 22.01.1997 was challenged by the State Government, in Criminal Appeal No.335 of 1997. The High Court of Gujarat on 06.05.2004 allowed the said Criminal Appeal No.335 of 1997 and order of acquittal dated 22.01.1997 in Sessions Case No.138 of 1991 was set aside and acquittal was converted into conviction, punishable under Sections 498A and 306 of the Indian Penal Code and sentence of 5 years rigorous imprisonment and fine of Rs.3000/-, in default whereof further rigorous imprisonment of 6 months was awarded. Being aggrieved, the order of the High Court rendered on 06.05.2004 in Criminal Appeal No.335 of 1997 was assailed in Special Leave to Appeal (Criminal) No.3154 of 2004. Main contention of the petitioner is that on account of his conviction in the Criminal Appeal, he came to be dismissed from C/SCA/2236/2019 ORDER services vide order dated 26.09.2006 i.e. after some time of conviction by the High Court and the petitioner was through out enjoying the bail and he was not in custody. The appeal in the Hon’ble Supreme Court being Criminal Appeal No.810 of 2004 was allowed and trial Court’s order was restored. The petitioner has filed Original Application for seeking appropriate relief and reinstatement. The department had reinstated the petitioner on 12.08.2011. The tribunal has rendered the decision on 31.08.2016, whereby, the petitioner was not granted the backwages from the date of dismissal, till the date of reinstatement based upon the fact that the Hon’ble Supreme Court in its decision cited in the judgment, which are reproduced as under, held that the respondent cannot be saddled with liability to make payment for the period, when the petitioner did not discharge his duties.

So the said order was assailed in this petition under Articles 226 and 227 of the Constitution of India.;

(1) “In the case of Ranchhodji Chaturji thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. reported in (1996) 11 SCC 603 the Hon’ble Supreme Court considered whether back wages would be paid to the employees for the period between the date of dismissal and the date of reinstatement. The Hon’ble Supreme Court held thus; “The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is : Whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages.”

(2) In case of Union of Inida & Ors. vs. Jaipal Singh reported in (2004) 1 SCC 121, the Hon’ble Supreme Court after expressing the agreement with the view in Ranchhodji (supra) observed thus; “…….If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service , since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny backwages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages are liable to be and is hereby set aside . The respondent will be entitled to backwages from the date of acquittal and except for the purpose of denying the respondent actual payment of backwages, that period also will be counted as period of service, without any break.””

4. Learned counsel for the petitioner has contended that the factum of restoration of service of the petitioner ought to have been appreciated by the tribunal. He has further contended that petitioner was not permitted to serve the department. Therefore, when he was available to discharge his duty, the dismissal order itself was not justified, as it was passed after one and half years of the order of conviction. The Hon’ble Supreme Court has also not said that the conviction and dismissal based thereupon would not entail the order of back-wages even after reinstatement in all cases. The facts and circumstances of the case have to be examined and appropriate relief is required to be granted.

This Court is of the view that the petition requires to be dismissed as the judgment and order passed by the tribunal does not call for any interference for the following reasons;

4.1 The Hon’ble Supreme Court’s judgments relied upon by the tribunal and extract of which were cited herein above, indicates the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal.

Therefore, in our view, the tribunal’s reasonings cannot be said to be suffers from any infirmity, so as to call for any interference. As a result thereof, the petition fails and hereby dismissed.

(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J)

DRASHTI K. SHUKLA

Allowing trial to proceed against innocent relatives, outsiders is a travesty of justice & abuse of law. 498a cocktail quashed

////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.

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.
/////

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

Dr.Anuvad Shrivastava, counsel for the applicant.
Shri Amit Pandey, Panel Lawyer for the respondent/State.

ORDER

(10-12-2015)

  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 house- hold 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-in- law, Uma Tamrakar is father’s sister, Anoop Tamrakar is brother-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-in- law’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 father- in-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 SC 1090 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-in- law 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 from Shrikant 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: “… 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 a woman 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.â? â??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.â?
  13. Likewise, in the case of Neelu Chopra & anr. v. Bharti, AIR 2009 SC(Supp) 2950, Supreme Court held as follows: â??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.â?
  14. A three judge bench of Supreme Court in the case of Kans Raj vs. State of Punjab, AIR 2000 SC 2324 observed that: â??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 in- laws of the deceased wives in the matters of dowry deaths which, 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.â?
  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

Don’t rope in relatives in #Fake498a & other #Fake criminal cases! #498a & conspiracy 2 #kidnap kid filed on maternal uncles #quashed

//// 4. A perusal of the charge sheet and the supplementary charge sheet discloses the fact that the Appellants are not the immediate family members of the third Respondent/husband. They are the maternal uncles of the third Respondent. Except the bald statement that they supported the third Respondent who was harassing the second Respondent for dowry and that they conspired with the third Respondent for taking away his child to the U.S.A., nothing else indicating their involvement in the crime was mentioned. The Appellants approached the High Court when the investigation was pending. The charge sheet and the supplementary charge sheet were filed after disposal of the case by the High Court.

..The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. ……////

SC_of_India_-_Retch

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1045 of 2018
(Arising out of SLP (Crl.) No.3286 of 2016)

K. SUBBA RAO & ORS. …. Appellant(s)

Versus

THE STATE OF TELANGANA REP. BY ITS SECRETARY, DEPARTMENT OF HOME AND ORS. ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

  1. 1. Respondent No.2 submitted a complaint to the Chandanagar Police Station, Cyberabad, District Hyderabad on 20.12.2015 alleging harassment by her husband and his family members including the Appellants who are the maternal uncles of her husband. She also complained of the kidnapping of her son by the husband. On the basis of the said complaint, an FIR was registered under Sections 498 A of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’) at Chandanagar Police Station, Cyberabad, District Hyderabad on the same day. The Appellants filed a petition under Section 482 Cr. P.C. for quashing the proceedings in the crime registered pursuant to the complaint of Respondent No.2. The High Court dismissed the said petition by its judgment dated 22.01.2016. The Station House Officer, Chandanagar Police Station, Cyberabad was directed not to arrest the Appellants till the completion of the investigation. Aggrieved by the judgment of the High Court by which the petition under Section 482 Cr. P.C. filed by the Appellants was dismissed, they have filed the present appeal. https://bit.ly/2Mnll7H
  2. 2. A charge sheet was filed on 12.03.2017 under Sections 498A, 120 B, 420, 365 IPC after completion of the investigation in Crime No.477 of 2015, Chandanagar Police Station, Cyberabad. The Appellants are shown as A-4 to A- 6. As per the charge sheet, Respondent Nos.2 and 3 married on 08.12.2008 and were mostly residing in the United States of America. There was a marital discord between them. The allegations against the Appellants are that they were supporting the third Respondent/husband who was physically and mentally torturing the second Respondent. The Appellants also conspired with the third Respondent who kidnapped the child from the custody of the second Respondent and took him away to the U.S.A.
  3. 3. During the course of hearing, we enquired with the learned Counsel for the State of Telengana whether a supplementary charge sheet was being filed against the Appellants. He produced a copy of the supplementary charge sheet dated 20.12.2017.
  4. 4. A perusal of the charge sheet and the supplementary charge sheet discloses the fact that the Appellants are not the immediate family members of the third Respondent/husband. They are the maternal uncles of the third Respondent. Except the bald statement that they supported the third Respondent who was harassing the second Respondent for dowry and that they conspired with the third Respondent for taking away his child to the U.S.A., nothing else indicating their involvement in the crime was mentioned. The Appellants approached the High Court when the investigation was pending. The charge sheet and the supplementary charge sheet were filed after disposal of the case by the High Court. https://bit.ly/2Mnll7H
  5. 5. Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. See State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. See Kans Raj v. State of Punjab & Ors. (2000) 5 SCC 207 and Kailash Chandra Agrawal and Anr. v. State of Uttar Pradesh & Ors. (2014) 16 SCC 551.
  6. 6. The counsel for the second Respondent submitted that certain documents belonging to the second Respondent were seized from the Appellants which would show their active involvement in the kidnapping of her child. On an overall consideration of the contents of the charge sheet, supplementary charge sheet and the submissions made on behalf of the Respondent No.2, we are of the opinion that a prima facie case has not been made out against the Appellants for proceeding against them under Sections 498 A, 120 B, 420 and 365 IPC.
  7. 7. For the aforementioned reasons, we quash the proceedings qua the Appellants in Crime No.477 of 2015, dated 20.12.2015 under Sections 498 A, 120 B, 420, 365 IPC registered at Chandanagar Police Station, Cyberabad before the Court of IX, Metropolitan Magistrate, Kukatpally at Miyapur, Cyberabad, Commissionerate.
  8. 8. The appeal is accordingly allowed.

……………………………….J. [S.A. BOBDE]

……………………………….J. [L. NAGESWARA RAO]

New Delhi,
August 21, 2018.