Name Remove and 498A FIR Quash

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 8074 of 2011

For Approval and Signature: HONOURABLE MS.JUSTICE HARSHA DEVANI

Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

SUDHABEN
W/O RAKESHKUMAR GUPTA & 2 – Applicant(s)

Versus

STATE OF GUJARAT & 2 – Respondent(s)

Appearance :

MR KAMAL M SOJITRA for Applicant(s) : 1 – 3.
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
RULE NOT RECD BACK for Respondent(s) : 2, MS
SM AHUJA for Respondent(s) : 3, MS JAGTAP MEENA ANIL for Respondent(s) : 3,

CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI

Date : 01/05/2012

ORAL JUDGMENT

By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicants – original accused No.2 to 4 seek quashing of the first information report registered vide Chandkheda Police Station I – C. R. No.54/2011 for the offences punishable under sections 406, 420, 498A, 323, 506(2), 292-A and 114 of the Indian Penal Code and sections 3 and 7 of the Dowry Prohibition Act.

The third respondent, who is the daughter in-law of the applicants No.1 and 2 and sister-in-law of the applicant No.3, lodged the above referred first information report against the applicants herein as well as against her husband Amitkumar Rakeshkumar Gupta alleging commission of above referred offences.

Mr.Kamal Sojitra, learned advocate for the applicants invited attention to the averments made in the first information report to submit that the only allegations made against the applicants herein are to the effect that after their marriage, the first informant had gone with her husband the house of her in-laws at Raipur; they had asked her to handover her ornaments, but, she had not given the same; however, her father-in-law and mother-in-law and sister-in-law had told her that now that she was married and would be staying with them, she should hand over her ornaments to them and accordingly, gained her confidence and she was induced to handover her ornaments to them. That on the same day, her husband, mother-in-law, father-in-law and sister-in-law had told her that her mother had not given anything by way of dowry and that she was a beggar and had taunted her. It was submitted that except the aforesaid allegations, there are no allegations against the present applicants. The learned advocate laid emphasis upon the fact that the first informant had got married to the son of the applicants No.1 and 2 herein on 18.2.2011, and on the next day of the marriage, that is, 19.2.2011, she along with her husband and sister-in-law had gone to Calcutta by air and from there, on the next day morning, they had taken a train to Raipur. That on the very same day, that is, 20.2.2011, they had left Raipur for Calcutta where her husband was serving. It was submitted that the applicants No.1 and 2 herein had not even attended the marriage of their son, and that the first informant and their son had come to Raipur to take their blessings. It was submitted that allegations levelled against them were in respect of the short span of time, viz., only a few hours, that the first informant had stayed with them, under the circumstances, even if the allegations levelled in the first information report are taken to be true and correct, no offence as alleged, can be stated to have been made out.

In support of his submissions, the learned advocate has placed reliance upon the decision of the Supreme Court in the case of Preeti Gupta and another v. State of Jharkhand and another, AIR 2010 SC 3363 and more particularly, paragraphs 33 to 35 thereof. Mr. Sojitra, learned advocate has further invited attention to the averments made in the first information report and more particularly as regards the conduct of the first informant in respect of the proceedings against her husband, namely, the son of the applicants No.1 and 2, as well as the conduct of the Investigating Officer. However, considering the fact that the husband of the first informant is not an applicant before this court, it is not necessary to delve into the said submissions.

On the other hand, Ms. Sunita Ahuja, learned advocate for the respondent No.3 – first informant invited attention to the written complaint given by the first informant to the concerned police officer at Chandkheda Police Station, which is in Hindi, to point out that the first informant had given a detailed complaint to the police, however, they had registered the first information report without referring to all the allegations made by her in the complaint. It was further submitted that when the first informant had gone to Raipur to seek the blessings of her in-laws, they had taken away her ornaments and that they had also taunted her about not bringing sufficient dowry and that her mother was a beggar. Referring to the provisions of section 498A of the Indian Penal Code, it was submitted that the present case falls within the purview of clause (a) of the definition of “cruelty” as envisaged in the explanation to section 498A, namely, “cruelty” means, (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. It was submitted that the manner in which the first informant was taunted caused grave mental injury to her and accordingly, the provisions of clause (a) of explanation to section 498A IPC are clearly satisfied.

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Inviting attention to the complaint given in Hindi, it was pointed out that prior to the marriage, the applicants herein had demanded dowry from her mother and as such, the provisions of section 3 of the Dowry Prohibition Act are clearly satisfied in the present case. Insofar as sections 406, 420-A, 506(1), 323 and 292-A IPC are concerned, the learned advocate for the first informant was not in a position to point out as to how the said sections would be attracted qua the present applicants. It was, accordingly, urged that the first information report does disclose a cognizable offence qua the applicants herein and that there is no warrant for exercise of powers under section 482 of the Code at this stage.

As noted hereinabove, the applicants are alleged to have committed the offences punishable under sections 406, 420, 498A, 323, 506(1), 292-A and 114 IPC and sections 3 and 7 of the Dowry Prohibition Act.

A perusal of the allegations made in the first information report shows that insofar as sections 3 and 7 of the Dowry Prohibition Act are concerned, in the third paragraph of the first information report it has been stated that the applicants No.1 and 2 herein had come to the place of the first informant on 3.7.2010 whereupon, they had told the mother of the first informant that she would be required to make all arrangements as per the customs of the community and that they would give their reply as regards the marriage within a period of one week. From the allegations made in the first information report, it appears that thereafter, the applicants herein did not give any reply one way or the other in respect of their willingness as regards marriage between their son and the first informant. It appears that thereafter, Amitkumar Gupta, that is, the son of the applicants No.1 and 2 had communicated with the first informant off and on over telephone and told her that a date should be fixed for the marriage after 16.2.2011. Subsequently, he and his sister, that is, applicant No.3 herein had come to Ahmedabad on 17.2.2011, and on 18.2.2011, the first informant and Amitkumar had got married in accordance with Hindu rites and rituals. The marriage also came to be registered. Thus, except for the applicant No.3, the applicants No.1 and 2, namely, the mother in-law and father in-law of the first informant had not attended the wedding. Thereafter, on the next day of the marriage, the first informant, her husband and the applicant No.3 had left for Calcutta and on the next day thereafter, they had gone to Raipur to seek the blessings of the applicants No.1 and 2. The allegations made against the applicants No.1, 2 and 3 have been noted hereinabove, namely, upon the arrival of the first informant and her husband at Raipur, she was asked to give her ornaments to the applicants, however, she had refused to do so, whereupon the applicants by gaining her confidence had induced her to handover the ornaments to them. Insofar as the allegation of cruelty is concerned, the same is to the effect that they had taunted her that her mother had not given her anything by way of dowry and that her mother was a beggar.

What is required to be examined is as to whether the aforesaid conduct on the part of the applicants would amount to commission of the offences alleged. The contention raised on behalf of the first informant that the above referred conduct of the applicants herein would constitute an offence under section 498A IPC has to be tested in the light of the said statutory provision. Section 498A IPC bears heading “Husband or relative of husband of a woman subjecting her to cruelty”, and postulates that, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The explanation thereto defines “cruelty” 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 her 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.

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What is now required to be seen is as to whether the ingredients of above offence are made out from the allegations made in the first information report. As noted hereinabove, the first informant had stayed with the applicants herein for the duration of a few hours during which period the allegation against them is that they had induced her to give her ornaments to them and that they had taunted her by saying that her mother had not given sufficient dowry and that she was a beggar.

In the light of the provisions of section 498A IPC, for the purpose of constituting an offence under the said section, cruelty, whether mental or physical, should be 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. It is settled legal position that while exercising powers under section 482 of the Code, the allegations made in the first information report have to be accepted as true. Therefore, proceeding on the footing that the allegations made in the first information report are true and correct, even then considering the duration of the stay of the first informant with the applicants (viz. a few hours), in the opinion of this court, the allegations made in the first information report, namely, taunting the first informant for not bringing sufficient dowry and telling her that her mother is a beggar, cannot be said to be of such a nature as can be stated to cause grave injury or danger to life, limb or health (whether mental or physical) of the first informant so as to fall within the ambit of clause (a) of the Explanation to section 498A IPC. Insofar as clause (b) of the said Explanation is concerned, there is nothing in the entire first information report to indicate that the applicants had harassed the first informant with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. Under the circumstances, the ingredients of section 498A IPC are clearly not spelt out from the allegations made in the first information report.

As regards the provisions of sections 3 and 7 of the Dowry Prohibition Act, there is not even a whisper in the first information report as regards any demand for dowry having been made. The only allegation being that she was taunted for not bringing sufficient dowry cannot be equated with a demand for dowry so as to attract the provisions of the said Act. Insofar as section 406 IPC is concerned, on the allegations made in the first information report, there is nothing which is indicative of commission of the offence of breach of trust. There is no averment to the effect that the first informant had entrusted anything to the applicants and that they had misappropriated or failed to return the same to her so as to constitute an offence of criminal breach of trust. As regards the offence under section 420 IPC an offence of cheating cannot be said to have been made out unless the first informant shows that the accused had fraudulent or dishonest intention at the time of making promise or representation and that the accused had failed to keep such promise. Thus, the basic requirement to constitute and offence of cheating is false representation whereby the person concerned was induced to do or refrain from doing an act, which in the facts of the present case is singularly missing. In the entire first information report there is not even a whisper as regards any representation or inducement on the part of the applicants so as to fall within the ambit of section 420 IPC and subsequent failure to keep the promise made. Insofar as the allegations under section 323 IPC are concerned, the same are levelled only against the husband of the first informant. Similar is the case with the provisions of section 506(1) and 292-A IPC. Under the circumstances, on the allegations made in the first information report, it is not possible to state that any of the offences alleged against the applicants herein, are made out in the facts of the present case. The first information report, therefore, cannot be sustained qua the present applicants.

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The Supreme Court in the case of Preeti Gupta v. State of Jharkhand (supra), has held that the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. 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.

In the facts of the present case, a major part of the offences are alleged to have been committed at Calcutta and partly in Ahmedabad. However, all these allegations are levelled against the accused No.1 husband. Insofar as the applicants herein are concerned, the only allegations levelled against them are in respect of the short span of a few hours that the first informant had stayed with them when she came to Raipur with her husband to seek the blessings of her in-laws after their marriage. From the facts as emerging from the record, it appears that initially the applicants No.1 and 2 had met the first informant’s mother for arranging the marriage. However, it appears that the applicants were not interested in the proposal and did not carry it any further. Nonetheless their son married by the first informant. The applicants No.1 and 2 did not attend the marriage and subsequent thereto have spent only a few hours with the first informant when they came to visit them at Raipur. Taking into consideration the pragmatic realities, evidently the offence alleged cannot be said to be constituted qua the present applicants. Launching of a criminal prosecution is a serious affair which has serious consequences insofar as the accused are concerned. In the present case, the applicant No.3 who is the sister-in-law of the first informant appears to be an unmarried sister of marriageable age. Once criminal prosecution is initiated, it is common knowledge that without considering the nature of the allegations, viz. the gravity thereof, all accused are mechanically arrested. Once a person is arrested, the same is in the nature of a stigma which adheres lifelong thereby marring future prospects of the person, more so, when she is a girl of marriageable age. From the allegations made in the first information report, as noted earlier, it is apparent that the same are not grave or serious in nature so as to constitute the offences alleged. If in respect of a few hours spent with the in-laws, criminal prosecutions are launched, parents would shudder at the thought of getting their sons married or if married against their wishes, even permitting them to seek their blessings. Under the circumstances, the applicants are justified in invoking the inherent jurisdiction of this court under section 482 of the Code.

For the foregoing reasons, the application succeeds and is, accordingly, allowed. The first information report registered vide Chandkheda Police Station I-C. R. No.54/2011 is hereby quashed and set aside qua the present applicants. Rule is made absolute accordingly.

[HARSHA DEVANI, J.]

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