Argument for DISCHARGE u/s 239

IN THE COURT OF SH. XYZ, JUDICIAL MAGISTRATE FIRST CLASS, XYZ

Argument

  1. The allegations, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence under IPC 498-A or make out a case against the accused.

Section 498A reads as follows:

“498A: Husband or relative of husband of a woman subjecting her to cruelty- 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.

Explanation – For the purpose of this section ‘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; 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.”

   There is NO Injury reported by wife/complainant, So, No ‘physical’ cruelty.

The vagueness of mental cruelty is cleared by the Supreme Court of India by lying the following definition of “mental cruelty” in V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710:

“the parties cannot reasonably be expected to live together”. The situation must be such that the wronged party cannot reasonably be asked to put with such conduct and continue to live with the other party.”

Also, cruelty is defined in Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326 and Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

>> However, the wife/complainant wants to live with the husband/accused. She has filed a case u/s 9 for Restitution of Conjugal Rights.

  •  
    • Both Parties are willing to LIVE together, so, there is NO CRUELTY.

Where there was allegation by wife against her husband but such allegations were not supported by any reliable evidence. Wife was prepared to live with her Husband. The accused was entitled for benefit of doubt. Lawrence Vs State of Kerala, 2002 Cri LJ 3458 (Ker.)

Supreme Court in Ajay Mitra Vs State of M.P. and others reported in 2003 (3) KCCR 2043 held that the FIR which does not allege or disclose essential requirement of a penal provision are prima facie satisfied , cannot form the foundation or constitute the starting point of lawfull investigation.

And, In the case of Ashok Chaturvedi and other Vs Shitul H Chanchani and another reported in ( 1998) 7 S.C.C. 698 it was held that allowing the criminal proceeding to continue even when the allegation of the complaint petition do not make out any offence would be tantamount to abuse of the process of the court.

  1. Prosecution has blindly “denied” all the paragraphs of application for discharge u/s239, whereas applicant/husband has attached wife/ complainant’s own admittance/statements and prosecution’s own documents as a part of application from Annexure R1 to Annexure R 16
    • Prosecution has denied the Affidavit submitted in the Punjab and Haryana High Court by the Jagmohan Singh, DSP on behalf of SSP, patiala and State of Punjab.
      •  
        • How can Prosecution deny their own affidavit filed in HIGH COURT ??
    • Prosecution has denied all the para, even their own complaints and its contradictions,

For example, in the charge-sheet in line 33 of Page 2 reads as “Mr.SoAndso. left Zirakpur on 14-10-2005 for Gujarat and asked me that I can go to my parental house at Patiala and can live with my parents for about 10 days

Contrary to above para, line 13 of page 2 (back side) reads as “he asked me that why I have not returned to Zirakpur, on this I asked that I am waiting for him as he while going to Gujarat in October 2005 asked me that until and unless he do not return back from to Zirakpur and not reached Patiala, I need not come to Zirakpur of my own

  •  
    •  
      •  
        • Can wife/complainant’s version/statement be relied upon?
        • Is wife/complainant speaking truth?
        • Is wife/complainant approached the Court with Clean hands?
    • In para 20, prosecution have even denied the Powers of the Hon’ble Court.
  1. Prosecution has admitted in para 2 that investigation was carried out by Women Cell, Patiala
    • Women Cell report clearly states that “she (complainant) is determined to teach a lesson to her husband and his family by leveling serious allegations
    • Women cell investigation concluded that “No action is required by Police, so, the complaint to be filed
  1. Wife /Complainant has not approached the court with clean hands, all bills all fake, prepared with an intension to procure the conviction.

How can anyone taunt for bring inferior/cheap articles, when the ‘claimed’ articles don’t have any existence???

  1. Complainant/wife claims that the Bills of Gift articles are not Fake. If the bills are assumed to be true, It is pertinent to note that these bills are of LG brand products

      Is there any brand better than LG ?

      How can anyone taunt for a LG product? Is LG inferior brand???

As such “”Taunting is not Cruelty”” in Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100

  1. Complainant/wife has filed petition for “Restitution of Conjugal Rights” under section 9 of HMA.
  • How can complainant/wife live with a Criminal? This itself shows that complaint u/s 498a was filed to fulfill the uterious motives.
  • Complainant has admitted that there were frequent picnic tours, more than 8 destinations have been admitted by complainant for her total stay of about 10 months.

So, the allegations doesn’t fall under the preview of mental or physical cruelty because “The mental cruelty can broadly be defined as  
that conduct which inflicts upon the other party such mental pain  
and suffering as would make it not possible for that party to live with the other”

  1. NO SPECIFIC ALLEGATIONS, even the allegations of Demand of dowry etc. is not quantified/ specified in the complaint. All allegations are VAGUE.
  • In Krishan Jeet Singh Vs State of Haryana, II (2003) DMC 127 (P&H) it was held thatWhere there is no specific allegations in complaint, charge could not be proved” also in Hon’ble HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE (GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge”.
  1. Hon’ble Court shall refer to a leading decision of SC court reported in State of Haryana Vs. Bhajan Lal [1992 Suppl. {1} SCC 335] in which SC court pointed out certain category of cases by way of illustrations wherein the inherent power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The same are as follows :-
    • Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
    • Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
    • Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
    • Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
    • Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
    • Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
    • Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
  2. In the case of Pepsi Food Limited and another Vs Special Judicial Magistrate and others reported in AIR 1998 S.C 128 it was held that Summoning and Accussed in a criminal case is serious matter .Criminal Law cannot be set into Motion as matter of course .
  3. in the case of Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB ) made an observation that “the court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse of the beneficial provision intended to save the women from unscrupulous husbands . It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women

Judgments

  • It is the duty of the court, even at the stage of framing the charge to consider whether there was sufficient material to go into trial. In other words, whether the evidence collected by the prosecution ,if rebutted, warrant any conviction. In doing so, the court can also consider the material on record in State of assam Vs. Achit Ranjan Dey, 1989 Cri LJ 1117 at 1118 (Gau), Sessions Judge Vs. I R redid, 1972 Cri LJ 1485, Abdul Aziz Vs. State of Mysore, 1975 Cri LJ 335 (kant)
  • State of Karnataka Vs. L. Muniswamy , a three judge Bench of SC Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a persons liberty substantially, need for proper consideration of material warranting such order was emphasized.
  • When offences not prima facia made out against accused person framing of charge not proper in Imtiaz Ahmed Vs State of m.P. , 1997 Cri LJ 1844 (MP)
  • Allegations has to be specific in Krishan Jeet singh Vs. State of Haryana, 11 (2003) DMC 127 (P & H)
  • General allegations are not sufficient to procure 498-A in Surajmal Barithia V. State of west Bengal 11 (2003) DMC 546 (Cal) (DB)
  • Vague allegations are not acceptable in sher Singh V. state of Punjab 11 (2003) DMC 192 (P & H)
  • Bhajan Lal Bhatia & ors. Vs. Sarita Neelam 2005 Vol I HLR 59
  • Where evidence on record neither disclosed that there was cruelty on part o the accused which was of such a nature as was likely to drive victim to commit suicide or cause grave injury or danger to her life or limb or mental or physical health nor showed that she was harassed by accused with regard to any demand for additional dowry, section 498-A could not be attracted in such circumstances in Bomma Ilaiach Vs. State of U.P. , 2003 Cri LJ 2439 (AP)
  • Where there is no specific allegations in complaint, charge could not be proved in Krishan Jeet Singh Vs State of Haryana, II (2003) DMC 127 (P&H)
  • Conviction not sustainable in the absence of evidence of ‘torture’ or “harassment” in Benumadhab Padhi Mohapatra Vs State, 2004 (13) AIC 253 (ori.)
  • Taunting is not Cruelty in Savitri Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100
  • Dr. Sant Singh Vs. State of Punjab, 11 (2003) DMC 232 (P & H)
  • Where there was allegation by wife against her husband but such allegations were not supported by any reliable evidence. Wife was prepared to live with her Husband. The accused was entitled for benefit of dobut. Lawrence Vs State of Kerala, 2002 Cri LJ 3458 (Ker.)
  • State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335,
  • Janata Dal Vs. H.S.Chowdhary, (1992) 4 SCC 305,
  • State of Bihar Vs. P.P. Sharma, (1992)Supp. 1 SCC 222,
  • Roopan Deol Bajaj Vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194,
  • State of U.P. Vs. O.P.Sharma, 1996(1) ALD (Crl.) 823 (SC) = (1996) 7 SCC 705
  • State of Maharashtra Vs. Ishwar Piraji Kalpatri, 1996(1) ALD (Crol.) 139 (SC) =(1996) 1 SCC 542
  • Kumar Bhada, (1997 Rashmi Kumar Vs. Maheswh) 2 SCC 397
  • Rajesh Bajaj Vs. State NCT of Delhi, 1999 (1) ALD (Crl.) 760 (SC) = (1999(3) SCC 259
  • Satvinder Kaur Vs. State (Govt. of NCT of Delhi), (1999)8 SCC 728,
  • Jagdish Ram Vs. State of Rajasthan, 2004(1) ALD (Crl.) 672 (SC) = (2004) 4 SCC 432,
  • A.V. Mohan Rao Vs. M. Kishan Rao, (2002) 6 SCC 174,
  • State of Karnataka Vs. M. Devendrappa, 2002(1) ALD (Crl.) 412 (SC) = 2002(3) SCC 89
  • State of Orissa Vs. Saroj Kumar Sahoo, (2005)13 SCC 540
  • Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005 JT 2005 (6) SC 266 it was held that by misuse of the 498A provision a new LEGAL TERRORISM can be unleashed.
  • HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE (GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge”.
  • In R.P. Kapur. vs. State of Punjab (AIR 1960 SC 866), SC Court summarized some categories of cases where inherent power can and should be exercised to quash proceedings.
    1.  
      1. Where it manifestly appears that there is a legal bar against the institution or continuance, e.g. want of sanction;
      2. Where the allegation in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
      3. Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
  • Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. [1988 [1] SCC 692], SC Court has reiterated the same principle and laid down that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence.
  • Pratibha Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC 370
  • State of Bihar Vs. Murad Ali Khan & Ors. [1988 [4] SCC 655]  

3 thoughts on “Argument for DISCHARGE u/s 239

  1. please clarify the difference between quashing and discharge and whether jmfc has power for quashing u/s 239 if jmfc has power to quashing under application of quashing u/s 239,porvide me judgement at email id.

    thanking you.

    your sincer
    vimal suroliya.

    // All courts do not have Power to quash other than HC or SC, discharge can happend in any court depend on case, For judgment post request here http://forum.mynation.net — eDitor

  2. Sir
    Nalin Dave
    Age:- 65 Years
    Retired Got.Service
    My sister in Law’s Son’s wife F.I.R. aginst family.
    i am not living with them
    second she complained 498A aginst me.
    My sister in law’s son marrage in
    May 2009. and she gone to her parents house August 2009.
    That Time I was in U.S.A.
    I had not attend her marrage.
    my Question:-
    A.At the time of marrgae i was in
    U.S.A.
    B.After marrgae i was also in U.S.A.

    i was not in India…………….
    so how can she complaine aginst me
    498A ?
    i have a evidence…………….

    can i aply for discharge my case ?
    can she appeal ? after discharge my case ?
    nalin

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