Delhi MM Court : Middle East NRI’s discharge from 498A After his family’s discharge – Good Fight

Summary

  • This is a classic case of 498A & combo IPC discharge against Middle East based NRI & his family members
  • Learned trial court while framing charges considered the plea of his mother & sister (or MIL or SIL) and discharged them from 498A/406 but framed charges against husband
  • Aggrieved by this husband has filed revision appeal in district court which was allowed and framing charge against husband was set aside. Further appeal court has directed trial court to hear the discharge appeal in once again.
  • Read how NRI has demonstrated strong fighting spirit and fought a case with solid grounds and hence how Learned Trial court has to finally discharge him from 498A
  • Though It was a long battle / fight but entire family is finally free / discharged without long trial.

 

Metropolitan Magistrate Court – Delhi

State … Petitioner

Vs

Bharat Pratap Respondent

FIR No. 105/09
PS: Nanakpura
16.09.2016

Present Ld. Substitute APP for the State.
Accused in person.

In the present case vide order dated 06.09.2013, Ld. Predecessor court had discharged accused Gita (MIL) and Anjali (SIL) but had framed charge for the offence u/s 498A/406 against accused Bharat (husband). This order was challenged in revision by accused Bharat whereby Ld. ASJ had set aside the said order qua accused Bharat and had directed that the matter be heard afresh on the point of charge.

Arguments have been heard afresh.
Matter is listed on order on charge.

Complainant Sanyukta states that she got married to accused Bharat on 25.10.2001. It is alleged that after the marriage complainant was taken to a rented house in Gurgaon where Gita took charge of her valuables. Complainant spent three days there when she was insulted by her in-laws saying that she belonged to an inferior family. Bharat told complainant’s brother that he did not have money to purchase air tickets to Dubai for both of them and therefore, complainant’s brother bought the air tickets. The couple left for Dubai where Bharat misbehaved with her and returned in February, 2002 for a family wedding. The couple again left for Dubai where she was pressurized by Bharat and the father in law to take up a job. They started complaining about the dowry given in marriage and complainant’s brother was compelled to give cheque of Rs. 10 Lakhs. After the birth of the son ofcomplainant, Gita came to Dubai where she alongwith Bharat continued to harass the complainant by insulting her and not permitting her to keep in contact with her family. In the Diwali of the year 2003 the couple visited the in-laws house in India where she was turned out by Anjali.

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The couple lived at the parental house of complainant for two days and then, returned to Gurgaon and then to Dubai. In January, 2004 the couple came to India to celebrate their child’s first birthday. In the year 2004 complainant bought an apartment in Dubai for which she took a loan. However, Bharat started insisting that the money be given to him. In the year 2005, Bharat visited India with the child and also visited the parents of complainant. In this visit he insulted and misbehaved with complainant’s father. In 2005 the couple purchased a villa in Dubai on the insistence of Bharat for which complainant paid all the installments. Bharat also forced complainant to purchase two properties in Canada. In the year 2007 Bharat sold these two properties in Canada and deposited the entire money in his account. Complainant alleges that Bharat often gave her beatings under the influence of liquor. On 05.04.2009 complainant returned to India with the children. When Bharat was in India, he threatened complainant that he will slit her brother’s throat since complainant was not joining him at Gurgaon. Since that day complainant is living in the parental house where she has received threatening messages from accused Bharat. It is alleged that all the istridhan articles are in the possession of in-laws.

In her statement u/s 161 Cr. P.C, complainant reiterated the allegation made in the complaint. Her brother Sh. Mahavir Singh stated in his statement that Bharat had told him that he did not have money for purchasing air tickets and therefore, he purchased air tickets for the couple. Heard. Perused.

Ld. Defence counsel has raised three fold arguments in support of discharge of accused.

It is argued that the present charge sheet is time barred since it was filed on 24.05.2012 while complainant had left Dubai on 05.04.2009. It is argued that no application for condonation of delay was filed and hence, accused is liable to be discharged.

I am unable to agree with this submission of Ld. Counsel. The Commissioner of Police had issued Standing Order 330/2007 pursuant to the directions of Hon’ble Delhi High Court in the case of Chander Bhan Vs State cited at 151 (2008) DLT 691 that no case u/s 498A/406 IPC should be registered without approval of DCP/Addl. DCP. It is now mandatory that before registration of FIR in such cases, all possible efforts should be made for reconciliation before FIR is registered.

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In the present case both the parties were called to CWC, Nanakpura but Bharat did not join enquiry from Dubai. He was informed through e-mails but he never responded. In the meantime, the other in-laws joined enquiry and one admitted list of istridhan articles was also prepared. It is seen from the file that till atleast July 2009 these proceedings were going on. Therefore, this period akin to situation provided u/s 470(3) Cr.PC, has to be excluded in
computing the period of limitation. Therefore, there was no requirement of any application for
condonation of delay in the present case.

The next argument raised by Ld. Defence counsel is that all the allegations pertain to Dubai and the present case could not have been instituted in Delhi. The third argument raised by Ld. Defence counsel is that the ingredients of the offences u/s 498A/406 IPC are not made out against accused Bharat.

A number of judgments have also been relied upon by Ld. Defence counsel. I have perused the judgments. In the present case complainant’s parental house is in Delhi, her in-laws house is in Gurgaon and she lived mostly at Dubai and Canada after marriage. All the allegations of cruelty (within the meaning of Section 498A IPC) by accused Bharat pertain to the period when the couple was residing at Dubai. The only allegation that pertain to Delhi are that
Bharat misbehaved with her father and that he threatened complainant that he will slit her brother’s throat. Both these harassments are unconnected with any unlawful demand for property and therefore, not cruelty within the meaning of Section 498A IPC. They are also not of the nature as explained in Explanation (a) to Section 498A IPC. At the most, if it is presumed that the demand for air tickets was made in Delhi, then also the said demand is not
covered u/s 498A IPC since there is not a whisper of any sort of harassment for meeting this demand. Rather, as it appears from the statement of Sh. Mahavir Singh, it appears to be a simple financial help by brother of complainant.
In fact, there is no allegation of any demand or cruelty or criminal misappropriation by accused Bharat in the in-laws house at Gurgaon also. All the allegations pertain to either Dubai or Canada. Therefore, u/s 188 Cr.PC the offences could not have been inquired into or tried in India except with the previous sanction of the Central Government.

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Merely because complainant started residing in Delhi after leaving Dubai does not mean that the jurisdiction of Delhi courts can be entertained. This issue is no longer res integra. Hon’ble Supreme Court of India has decided the issue of jurisdiction in cases u/s 498A IPC in the case of Y. Abraham Ajith and ors vs State Nct Of Delhi & Anr. on 2 May, 2013. It was observed:

“…A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied. …”
(Emphasis supplied)

This judgment was relied on by Hon’ble Apex Court in the case of Amarendu Jyoti & Ors. vs State of Chhatisgarh & Ors. decided on 04.08.2014 wherein it was held that:

“…We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent no. 2 “continued unabated” on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone.”

As such, there are insufficient grounds to frame charge for the offence u/s 498A/406 IPC against accused Bharat. He is directed to furnish personal bond in the sum of Rs. 25,000/- with one surety of like amount u/s 437A Cr.PC on17.09.2016.
Metropolitan Magistrate Mahila Court – delhi
16.09.2016

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