A woman files a fake 498a case. During police panchayat she agrees to live separately with her husband IF a separate household is established. She also states that all her Jewellery is with her parents. Later the couple start living together and again trouble crop up. She changes her stand and files yet another fake dowry case. The second case is inquired into and in the inquiry report dated 01.04.2013 by the District Social Welfare Officer clearly states that the dispute is purely a matrimonial dispute and there is no material to infer that the accused had demanded dowry. However police file final report on many accused who move to the HC for quash.
Honble HC quashes the case and also clearly decries the misuse of 498a !! The Honble HC quotes both Sushil Kumar and Arnesh Kumar case (SC cases !! )
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HON’BLE MR.JUSTICE P.N.PRAKASH
Crl.O.P.(MD) No.14279 of 2013
1. Kaleel Ahamed Sahib
2. Basaria Begum
3. Mariyam Kani
4. Syed Mohammed … Petitioners/A1 to A4
1. The State Rep. by
The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.
(Crime No.6 of 2013) …1st respondent/complainant
2. Thameema … 2nd respondent/Defacto complainant
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records relating to the C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi and quash the same as illegal.
For Petitioners :
Mr.N.Syed Mohamed (4th petitioner / Party-in-Person)
Mr.A.Prasanna Rajadurai (Amicus Curiae)
For R1 :
Mr.S.Prabha, Govt. Advocate (Crl.Side)
For R2 :
Mr.Ayyanar Premkumar, For Mr.D.S.Haroon Rashee, Addl. Public Prosecutor
O R D E R
- This petition has been filed to call for the records relating to the C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi and quash the same as illegal.
- Initially, this quash petition was filed by the petitioners through their counsel M/s.Ajmal Associates and during the pendency of the quash petition, the petitioners have revoked the vakalath given to M/s.Ajmal Associates and Syed Mohammed / 4th petitioner herein appeared in person with authorization from other petitioners.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
- During the course of hearing, this Court observed that Syed Mohammed / 4th petitioner herein requires legal assistance and therefore, this Court requested Mr.A.Prasanna Rajadurai, Advocate to appear pro bono for the petitioners and adjourned the case to today.
- This Court heard Mr.A.Prasanna Rajadurai, Advocate, Mr.Syed Mohamed / Party-in-person, Mr.Ayyanar Premkumar, learned counsel for the defacto complainant and Mrs.S.Prabha, learned Government Advocate (Crl.Side) for the State and reserved orders.
- It is seen that Thameema / 2nd respondent (defacto complainant) got married to Kaleel Ahamed Sahib / 1st petitioner (A1) on 10.05.2009 and their marriage ran into rough weather. Thameema lodged a complaint sometime in January, 2012 before the Sub-Inspector of Police, All Women Police Station, Madurai Town, alleging the acts of cruelty against her husband and in-laws. The Police called both parties for enquiry. During enquiry, the couple agreed to reunite and establish a separate household. Thameema gave a letter dated 01.02.2012 to the Sub-Inspector of Police, All Women Police Station, Madurai Town, wherein she has stated that she is willing to join her husband and that the jewellery, which was given to her during marriage are in the custody of her parents. She withdrew the complaint given by her. Thereafter, again some dispute arose between the couple on account of which Thameema lodged a fresh complaint on 07.07.2012 before the Sub-Inspector of Police, All Women Police Station, Madurai Town. Since the Police did not take any action, she filed a petition in Crl.O.P.(MD) No.9676 of 2012 under Section 482 Cr.P.C. before this Court for a direction to the Police to register an FIR on her complaint. Pursuant to the order passed by this Court, the Sub-Inspector of Police, All Women Police Station, Madurai Town, registered a case in Crime No.8 of 2012 on 18.08.2012 under Section 498(A) IPC and Section 4 of Dowry Prohibition Act against her husband and in-laws.
- Subsequently, for lack of territorial jurisdiction, the FIR was transferred to the file of All Women Police Station, Sivakasi, where the case was re-registered as Crime No.6 of 2013. The Sivakasi Police referred the matter to the District Social Welfare Officer for enquiry. The enquiry report dated 01.04.2013 by the District Social Welfare Officer clearly states that the dispute is purely a matrimonial dispute and there is no material to infer that the accused had demanded dowry. However, the respondent police filed a final report in C.C.No.137 of 2013 before the learned Judicial Magistrate, Sivakasi against all the four petitioners for offences under Sections 498(A) and Section 4 of Dowry Prohibition Act.
- Mr.A.Prasanna Rajadurai, learned counsel appearing for the petitioners submitted that the same allegations were made by the defacto complainant in the 1st complaint that was filed before the All Women Police Station, Madurai and during enquiry, she has categorically stated that she is ready to live with her husband in a separate household. She has also stated that her jewellery are with her parents. Thereafter, when the 1st petitioner pronounced Triple Talaq before Ramanathapuram District Shariath Council in Case No.41 of 2012 on 15.09.2012, the defacto complainant has revived her previous complaint, resulting in the Police filing the impugned final report.
- On the contrary, Mr.Ayyanar Premkumar, learned counsel for the defacto complainant submitted that there are sufficient materials for the trial to proceed against the accused and this is not a fit case to quash the prosecution.
- Learned Government Advocate (Crl.Side) also supported the stand of the defacto complainant.
- This Court gave its anxious consideration to the rival submissions and perused the final report and accompanying documents.
- From the records, it is apparent that the defacto complainant gave a complaint, in which she has stated that she is being taunted by her in-laws in the joint family. She withdrew the complaint on 01.02.2012 by accepting to live in a separate household with her husband. She has also stated that the jewels given to her are with her parents. Thereafter, she has changed her stand, perhaps because, her husband had pronounced triple talaq.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
- Be that as it may, the allegations in the final report as against parents-in-law and sister-in-law are indeed very vague. Even according to the final report, Mariyam Kani (A3) was married to one Mohammed Sindhasha and is living separately in No.170, Sakkarai Vava Street, Sivakasi, but whereas the other accused are living in No.19, Periyapillai Rowther Street, Sivakasi.
- The Supreme Court in Sushil Kumar Sharma vs. Union of India and Others [W.P.(civil) 141 of 2005] decided on 19.07.2005, has observed as follows: “……But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work…..”
- In yet another judgment in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 3 MLJ (Crl) 353 (SC), the Supreme Court has expressed its view as under: “……..There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the 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 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, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested….”
- On a careful reading of the final report and the statements, this Court is of the view that the prosecution as against Basaria Begum (A2), Mariyam Kani (A3) and Syed Mohammed (A4) is only abuse of process of law and there are materials for the prosecution to proceed against Kaleel Ahamed Sahib (A1).
- In the result, this Criminal Original Petition is partly allowed and the proceedings in C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi as against Basaria Begum (A2), Mariyam Kani (A3) and Syed Mohammed (A4) alone are quashed.
- This petition as against Kaleel Ahamed Sahib (A1) stands dismissed. Consequently, connected miscellaneous petitions are closed.
- The Judicial Magistrate, Sivakasi.
- The Inspector of Police, All Women Police Station, Sivakasi, Virudhunagar District.
- The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..
Allahabad High Court
Lalit Bhatia Son Of Sri J.N. … vs State Of Uttar Pradesh And Sri … on 27 May, 2005
Author: P Srivastava
Bench: P Srivastava
JUDGMENT Poonam Srivastava, J.
- Heard Sri Sharad Malviya, learned counsel for the applicants, Sri Akhilesh Srivastava and Sri Dharmendra Singhal, Advocates, for the contesting opposite party and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed invoking inherent powers for quashing the complaint case No. 27 of 2000-Pritam Dass v. Lalit Bhatia and Ors., pending before the Judicial Magistrate-II, Aligarh.
The facts giving rise to the dispute is that Lalit Bhatia, applicant No. 1 was married with Smt. Mamta Rani, daughter of opposite party No. 2 on 17.5.1989 according to Hindu Rites. The wife came to her marital house and has performed all her marital obligations. One son Karan Bhatia was born in the year 1991 from the wedlock of applicant No. 1 and Smt. Mamta Rani. Till 31.8.1997 the husband and wife lived happily with a son born out from their wedlock. The applicant Lalit Bhatia was running a factory of Cosmetics at Delhi which was dang good business till the year 1995 but thereafter the factory suffered huge loss, as a consequence, the business was shut down. At this point of time on account of interference by parents and other family members, relations between Smt. Mamta Rani and applicant No. 1 became sour and she left her matrimonial house on 27.8.1997 Thereafter it is submitted on behalf of the applicants that continuous efforts were made on the part of the applicants to bring back Smt. Mamta Rani to her marital home. On one or two occasions she did come back but just for a short period and thereafter she left her in-laws house on one pretext or the other. The other side of the story is that after closer of the factory, the in-laws started making demand for dowry i.e. after 8 years of marriage and since the complainant was unable to fulfill the demand of Rs. one lac, it led to the institution of the criminal proceedings. The applicants had already given an information to the Station House Officer, Police Station Sarswati Vihar, Delhi on 1.9.1997 informing threats extended to the applicants by father i.e. opposite party No. 2 and his daughter Smt. Mamta Rani that they will ensure that the entire family members are implicated in criminal cases. This information is annexed as Annexure-1 to the affidavit. A notice sent by Smt. Mamta Rani to the applicant No. 1 was received on 18.1.1998 and he was called upon to take her back otherwise necessary consequences will ensue. Proceedings for divorce was initiated on 31.3.1998 and divorce petition No. 257 of 1998 was instituted in the court of Civil Judge (Senior Division), Aligarh, under Section 13 of the Hindu Marriage Act. A copy of the divorce petition has been annexed as Annexure-2 to the affidavit, to demonstrate that false and frivolous allegations were levelled against all the family members of the applicants to make out a ground for divorce. Finally, the instant criminal complaint was filed by the opposite party No. 2 on 5.5.1998, a copy of which has been annexed as Annexure-3 to the affidavit. The Statements under Sections 200 and 202 Cr.P.C. were recorded, which are also part of the record as Annexures-4, 5, 6, 7 and 8 to the affidavit. Learned Judicial Magistrate-II, Aligarh summoned the applicants under Sections 498A and 506 I.P.C. vide order dated 4.7.1998. The applicants appeared before the Judicial Magistrate and filed a review petition for reviewing the summoning order, which was also rejected. So far the order dated 7.4.2000 is concerned, there is no illegality in the said order, since the Criminal Procedure Code do not contemplate any power to review the summoning order. In the present application, I am only concerned with the original summoning order dated 4.7.1998 and also the prayer for quashing of the complaint. An application for maintenance was also moved under Section 125 Cr.P.C. by Smt. Mamta Rani which was dismissed in default. Counter affidavit has been filed on behalf of the contesting opposite party denying all the averments made in the affidavit filed in support of this application. Rejoinder affidavit has also been filed. Subsequently a supplementary affidavit has been filed on behalf of the applicants with a view to bring on record the original summoning order, which could not be annexed with the application and also the final judgment and decree dated 23.3,2002 passed by the 1st Additional Civil Judge (Senior Division), Aligarh in Matrimonial Petition No. 257 of 1998. It has been argued on behalf of the applicants that the complaint filed under Sections 498A, 323, 504, 506 I.P.C. read with Section 3/4 Dowry Prohibition Act is only a frivolous complaint with a view to cause harassment to the applicants and though it has been stated in the complaint that the wife was beaten by in-laws, there is no injury report on record as no injuries were examined, which goes to show falsity of the entire allegations. It has also been argued that the filing of the complaint is only a result to the threat extended earlier regarding which, information was given to the police by the mother-in-law Smt. Kanta Bhatia (applicant No. 3) on 1.9.1997. It has also been argued that prior to the lodging of the complaint, the divorce petition was instituted on the ground of cruelty on 31.3.1998 i.e. 2 1/2 months before the criminal complaint was filed. Counsel for the applicants has also placed the findings recorded by the learned 1st Additional Civil Judge (Senior Division), Aligarh in his judgment dated 23.3.2002 in the divorce petition. The part of the judgment, on which emphasis has been laid by counsel for the applicants, is that the complainant Pritam Dass, opposite party No. 2 was examined as PW-2 in the divorce petition and he has admitted that at no point of time any dowry was demanded directly from him, he came to know about it only through his daughter Smt. Mamta Rani. He has further admitted in his statement that there was no demand of dowry either at the time of wedding or before the wedding whatever gifts were given in the marriage, was the sweet will of the family members of the bride. The divorce petition, which was instituted by the wife Smt. Mamta Rani, was dismissed holding that in fact she was never subjected to any cruelty, on the contrary, the husband was subjected to cruelty at the hands of the wife and in the circumstances, the divorce petition was dismissed/Notices were issued in this application to the opposite party No. 2 and an interim order was granted. The applicants were directed to pay compensation of Rs. 2,000/- per month through a bank draft to Smt. Mamta Rani. Nothing has come in the counter affidavit that the payment in pursuance to the order dated 8.1.2003 is not being made. It is, therefore, presumed that since the interim order is continuing, the condition imposed is being complied with till date.
After hearing the counsel for the respective parties, I proceed to examine whether the complaint filed against the applicants can be quashed in exercise of inherent powers or not. The object of introducing Section 498A in the Indian Penal Code was to prevent a woman from being tortured or harassed by her husband or by her relatives with a view to extract dowry but at the same time it is relevant to examine that what is the meaning of cruelty against a married woman by the husband or his relatives to attract the offence and bring the family members and the husband within the purview of Section 498A and the consequent punishment. In the case of Sarla Prabhakar Vaghmare v. State of Maharashtra, 1990 Criminal Law Journal, 407, it has been held that in any event, the willful act or conduct ought to be a proximate cause in order to bring home the charge under Section 498A I.P.C., an event some times back can not be termed to be a factum, taken note in the matter of charge under Section 498A I.P.C. Legislative intend is clear enough to indicate any particular reference to Explanation (b) that there shall have to be a series of act in order to be harassment within the meaning of the said Explanation. In the present case, the complaint has been lodged on 5.5.1998 but in paragraph 3 of the complaint without mentioning any date, the allegation of dowry has been levelled against the applicants. In paragraph 6 again the allegation is that on 24.4.1998, the applicants came to his house and made demand of Rs. one lac from his family members. The complainant has stated in the complaint that the threat and demand was extended to him on the date when the family members have visited his house to take back their daughter-in-law. The same allegations have been repeated in the statements under Sections 200 and 202 Cr.P.C. but there is no injury report on record Besides the fact, the allegation in the divorce petition, which has been filed as Annexure-2 to the affidavit, spells out an entire different story. The judgment, which has been brought on record by means of supplementary affidavit in the divorce petition contains the evidence of the complainant, which was examined as PW-2 in the divorce proceeding. The denial before the divorce court was given on oath and court has come to a conclusion that there was no demand of dowry and wife was never subjected to any kind of harassment for demand of dowry. In view of the various categories laid down in the case of State of Haryana and Ors. v. Chaudhary Bhutan Lal 1991 (28) A.C.C., 111 (S.C.), the Apex Court has held that in the event, on the basis of admitted documents available on record, if the court prima facie comes to a conclusion that there are no chances of conviction, first information report, charge sheet or complaint as the case may be, can be quashed. In the case of R.P. Kapoor v. State of Punjab A.I.R. 1960 S.C. page 866. the Apex Court had carved out three specific categories where the criminal proceedings could be quashed. The three categories are enumerated below:-
(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged Absence of the requisite sanction may, for instance, furnish cases under this category.
(ii) Where the allegations in the First Information Report of the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
The facts and the evidence in the instant case is clearly covered under the third category’. There is no question of any enquiry or recording any evidence on the face of clear admission of the complaint in the divorce case.
I have gone through the entire records as well as supplementary affidavit and I feel that this is one of those cases in which the complaint has been filed only with a view to cause harassment to the husband and his family members. In fact it is gross misuse of the provisions of Section 498A I.P.C. which certainly pricks the judicial conscience and can not be left to stand. In the circumstances, I am in agreement with the argument advanced by counsel for the applicants that the continuation of the proceedings on the basis of complaint impugned in this application, is nothing short of an abuse of the process of the court and is liable to be quashed in exercise of inherent powers. I therefore, come to a conclusion that the complaint instituted by the opposite party No. 2 is frivolous one and is quashed The interim order directing for payment of Rs. 2000/- to Smt. Mamta Rani by the applicants is also discharged. The application is accordingly, allowed.