Section 498A – Vague complaint quashed

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.

561-A No. 324 OF 2012

Manav Mishra and ors……Petitioners
State of J&K & anr……..Respondent

Mr. G.S.Thakur, Advocate
Ms. Z.S.Watali, Dy.AG.Ms. Surinder Kour, Sr. Advocate with Ms.Vandana Sharma, Advocate

Mr. Justice J. P. Singh
Date: 31.12.2012
:J U D G M E N T :

J U D G M E N T Petitioner No.1-Manav Mishra and respondent No.2- Aditi were married according to Hindu religious rites on December 01, 2008. They started living in their matrimonial home at D-16, Lajpat Nagar-I, 3rd Floor Delhi but with some matrimonial disputes which ultimately led to respondent No.2s coming back to Jammu on January 23, 2010. She thereafter filed a Complaint with the learned Special Mobile Magistrate Passenger Tax, Shops and Establishment Act, Jammu on June 11, 2011 impleading Manav Sharma- her husband, Sham Sunder Mishra-her father-in-law, Sharda Mishra-her mother-in-law, Mohit Mishra, Gourva Mishra and Aman Mishra-her brothers-inlaw, accusing them of harassment, maltreatment and cruelty.

Although the cruel treatment including physical assault is stated to have been given to Aditi at Delhi, however, it is indicated in paragraph No.8 of the Complaint, that even at Jammu the behaviour of the persons named hereinabove was cruel and they had reiterated their demand for cash, plot, shops and WagonR car even at Jammu.

The statement made by Aditi in support of her Complaint before the learned Magistrate on 11.07.2011, however, does not refer to any such cruel treatment or reiteration of demand for cash, plot, shops and WagonR at Jammu. It is alleged that all the accused beat her on January 24, 2010 and forcibly turned her out from the matrimonial home threatening that she may not come without dowry. She thereafter came back to her paternal house without making any complaint against the accused because she apprehended threat to her life. Learned Magistrate before whom respondent No.2 filed complaint postponed issuance of process directing inquiry into the Complaint by Station House Officer, Police Station Peer Mitha, Jammu. The Police found the petitioners involved in commission of offences punishable under Sections 498-A/34 RPC.

On the basis of the statement of the complainant and the inquiry conducted by Station House officer, Police Station Peer Mitha, Jammu, process was issued against the petitioners.

Aggrieved by the process issued against them by the learned Magistrate, the petitioners have approached this Court seeking quashing of respondents Complaint and the process issued thereon.

According to the petitioners, the marriage between Manav Mishra and Aditi was without any dowry but Aditis mother would pressurize petitioner-Manav Mishra to separate from his parents threatening dire consequences in case her instructions for having separate home with her daughter were not carried out.

Aditis mother is stated to have come to Delhi on January 23, 2010 to get her daughter back home and, accordingly, they came to Jammu along with all the household articles gold and silver ornaments for which petitioner No.1 is stated to have lodged Complaint with Incharge Police Station, Lajpat Nagar, New Delhi on 08.02.2010. Efforts made by petitioner No.1 to have reconciliation however failed despite there being an exparte decree for restitution of conjugal rights, which the petitioners had obtained from a Family Court at New Delhi.

READ  Void Marriage, No 498A

Aditi is accused of having filed Complaint at Jammu to drag and harass petitioner No.1 and his family members in uncalled for litigation. It is pleaded that there being no specific allegation against the petitioners that may constitute an offence in terms of Section 498-A RPC, the Complaint was liable to be quashed.

The offence alleged by the respondent to have taken place at Delhi, Courts at Jammu are stated to have no jurisdiction to entertain the Complaint. Heard learned counsel for the parties and perused the material on records.

Provisions of Section 498-A RPC are often misused by one or the other spouse to settle their matrimonial disputes abusing the process of criminal Courts to pressurize and harass not only the other spouse but also his/her relations. The Complaint filed by Aditi, respondent No.2, who is stated to be a practicing Advocate, is one of such Complaints.

The Complaint made by Mrs. Aditi, neither indicates the date/dates, month or year when she is stated to have been beaten or for that matter harassed or treated with cruelty and tortured. The role played by each one of the petitioners in causing her cruelty and harassment is also not indicated in the Complaint. Mere statement in the Complaint that all the accused had treated her with cruelty may not be sufficient enough, in law, for a Criminal court to issue process against someone without any specific act or omission attributed to him/her either individually or collectively with others that may amount to his/her committing any act or omission punishable under law. Magistrates are required to satisfy themselves and that too after going through the statement on oath, if any of the complainant and the witnesses, as also the result of investigation of inquiry, if any, under Section 202 Cr.P.C., before considering as to whether issuance of process was warranted, and, if so, against whom. As issuance of process on a complaint, results in personal appearance of the person(s) accused of the offence, on each and every date of hearing during trial, unless exempted therefrom until it would amount to curtailing his/her right to Personal Liberty to move freely.

The Magistrates authorized to take cognizance and issue process are, therefore, required to be cautious while issuing process, in that, process may be warranted only, if a prima facie offence appears to have been committed and the Magistrate was empowered to hold trial therefor. The vague statement of the complainant-respondent No.2 that as and when she and petitioners visited Jammu, the behaviour of petitioners remained cruel and they demanded cash, plot and especially WagonR Car, appearing in the Complaint without any details of the cruel treatment, would not justify issuance of process particularly when the complainant had not referred to any of these allegations in her statement on oath before the learned Magistrate or before Police. Even during the inquiry before Police there was no such material, on the basis whereof, the petitioners be said to have made demands at Jammu.

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Learned counsel for the respondent-complainant was repeatedly asked to point out any statement made by any witness during the course of inquiry before the Magistrate, who had indicated about petitioners visit to Jammu when they threatened respondent No.2 or made demand of dowry, as indicated in paragraph No.8 of the Complaint, but she was unable to refer to any such statement or material.

There was, therefore, absolutely no material before the learned Magistrate on the basis whereof the petitioners could be proceeded against for any of their acts/omission punishable under law for the time being in force in State, to have been committed within his jurisdiction. The alleged act of cruelty stated by the complainant and her witnesses to have taken place at Delhi, could not be taken cognizance of by the learned Magistrate and that too on a vague Complaint.

I am fortified in taking the above view by the law laid down by Honble Supreme Court of India in Neelu Chopra and anr. v. Bharti reported as AIR 2009 SC(Supp) 2950, where while dealing with similar Complaint with vague allegations, it was held as follows:-

4.We have seen the complaint very carefully. From a bare reading of the complaint it is apparent that the problem started barely after six months of the marriage. In paragraph 3 of the complaint, it is stated that all the accused came to complainants parents house at Gidderbaha and asked her parents to give the complainant more gold and other articles as dowry otherwise they would leave the complainant there and Rajesh would be married second time. In paragraph 4, the complaint is against Rajesh in the sense that the accused Rajesh asked the complainant to hand over the ornaments and clothes to his parents lest they are lost in the way. On reaching to Delhi when the ornament were asked back by the complainant, they were not returned back. When we see the complaint as a whole it is basically against the accused Rajesh. All the allegations are against Rajesh. There is undoubtedly some reference to the present appellants, but what strikes us is that there are no particulars given as to date on which the ornaments were handed over, as to the exact number of ornaments or their description and as to the date when the ornaments were asked back and were refused. Even the weight of the ornaments is not mentioned in the complaint and it is a general and vague complaint that the ornaments were sometime given in the custody of the appellants and they were not returned. What strikes us more is that even in paragraph 10 of the complaint where the complainant says that she asked for her clothes and ornaments which were given to the accused and they refused to give these back, the date is significantly absent. It seems from the order taking cognizance that the learned Magistrate has mentioned about the version of the complainant is supported by Bhagwati and Dharampal to the fact that the ornaments were entrusted to Krishan Saroop and Rajesh while clothes were entrusted to Rakhi and they refused to hand over the same. Even their statements could not be better than the vague complaint. Even about the clothes, the date on which they were handed over to Rakhee who happens to be the daughter of the present appellants and the other details are very significantly absent. It was also the version of the complainant that she was beaten in support of which she has filed a certificate from AIIMS hospital, New Delhi. However, in the complaint, it is not seen as to on which date she was beaten and by whom. It is significant to note that the matter against the Rakhee, the 4th original accused has already been dropped as she was in fact not even the resident of the same house.

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5. In order to lodge a proper complaint, mere mention of the Sections and the language of those Sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. 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.

6. The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the appellants. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A, IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh. For all what has been said above, the process issued against the petitioners on respondent No.2s Complaint is found to be an abuse of the process of Court. Proceedings initiated on respondent No.2s Complaint are, accordingly, quashed, allowing this Petition with costs of Rs.10,000/- (Rupees Ten Thousand) .

( J. P. Singh ) Judge JAMMU:

Sunita.

31.12.2012

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