Smt. Savita vs The State Of Madhya Pradesh Thr on 24 November, 2017

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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

(SB : SHEEL NAGU, J.)
M.Cr.C. No. 4325/2017
Raju @ Nagendra Singh Chauhan Anr.
Vs.
The State of M.P. Anr.

M.Cr.C. No. 7317/2017
Smt. Savita Anr.
Vs.
The State of M.P.
__
For petitioners
Shri A.R. Shivhare, Advocate for the petitioners in both petitions.
For Respondents
Shri Dilip Singh Tomar, Public Prosecutor for the respondent
No.1/State in both petitions.
Shri Awadesh Singh Bhadoriya, Advocate for the respondent No.2
in both petitions.
_
ORDER

( 24 .11. 2017)

1. This order shall govern the disposal of M.Cr.C. No.
4325/2017 and so also M.Cr.C. No. 7317/2017.

2. In M.Cr.C. No. 4325/17, petitioners seek quashment of
FIR and the consequential proceedings lodged against
petitioner No.1/ Raju @ Nagendra Singh Chauhan and
petitioner No.2- Smt. Sunita Singh Kushwah who are Nand and
Nandoi of the prosecutrix while in M.Cr.C. No. 7317/17,
petitioners seek quashment of FIR and the consequential
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

proceedings lodged against petitioner No.1 Smt. Savita and
petitioner No. 2 Pramod Singh who are Jeth and Jethani of the
prosecutrix.

3. Learned counsel for the rival parties are heard on the
question of admission.

4. Brief facts giving rise to the present petitions are that the
prosecutrix got married to Subodh Rajawat on 30.04.2012 at
Gwalior. It is alleged by the prosecutrix that two lakh rupees
were gifted by her parents at the marriage alongwith one
motorcycle and golden chain weighing 35 grams and two rings.
After the prosecutrix started her marital life, she came to know
that her husband is impotent. The prosecutrix alleges that she
was asked by the relatives of the husband not to disclose this
fact to anybody otherwise she would be subjected to physical
beating. The prosecutrix further alleges that she used to be
taunted by her (mother-in-law) Smt. Munni Devi, Pramod Singh
(Jeth), Snt, Savita (Jethani), Smt. Sunita Singh Kushwah (Nand)
and Raju @ Nagendra Singh Chauhan (Nandoi) that her
parents have given less dowry and on this issue, she was
physically assaulted. The prosecutrix did not disclose this fact to
her parents or anyone else due to fear of disrepute. This
prosecutrix also alleges that whenever Raju @ Nagendra Singh
Chauhan (Nandoi) and Smt. Sunita Singh Kushwah (Nand)
used to come down to Gwalior, they used to instigate the other
relatives of the husband to subject the prosecutrix to cruelty.
When the instance of cruelty crossed unbearable limit,
prosecutrix informed her parents. The parents of the prosecutrix
came down to matrimonial home to resolve the issue but they
were told by the relatives of the husband that if they did not give
another five lakh rupees as dowry, the prosecutrix will be
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

continued to be subjected to cruelty. The prosecutrix also
alleges that the thought of committing suicide crossed her mind
on several occasions. The prosecutrix lastly states that she was
driven out of the matrimonial home and asked to returned only
when her father pays five lakh rupees as dowry.

5. The above said instances were translated into written
complaint made by the prosecutrix which let to registration of
offence u/S. 498-A of IPC and 34 of Dowry Prohibition Act as
Crime No. 213/16 at Police Station Gole Ka Mandir, Gwalior
District Gwalior. During the investigation, the statements of
witnesses i.e. prosecutrix herself, Smt. Maya (mother of the
prosecutrix), Smt. Nisha @ Sonu (sister of the prosecutrix) were
recorded which were in the same lines as the allegations in the
FIR.

6. Learned counsel for the petitioners in both the cases has
relied upon the decisions of Apex court in the case of Preeti
Gupta and Another Vs. State of Jharkhand and Another
reported in (2010) 7 SCC 667 to contend that the allegations in
the FIR and as well as in the charge-sheet are non-specific and
therefore, vague which cannot be used for taking cognizance or
framing charge or conducting the trial against the petitioners.

7. The principal offence is punishable u/S. 498-A of IPC
which for ready reference and convenience reproduced below:-

“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 willful 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
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

(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.”

8. The plain reading of section 498-A of IPC discloses that
the heart and soul of the provisions is infliction of cruelty to a
woman by her husband and his relatives. The term cruelty has
been elaborated in the “explanation” mentioned supra which is
part of the statutory provision of section 498-A of IPC. The basic
ingredients necessary for constituting cruelty contemplated u/S.
498-A of IPC is a willful conduct of such nature which is likely to
drive the prosecutrix to commit suicide or to cause grave injury
or danger of life, limb or health of the prosecutrix. The
explanation further clarifies that the grave injury contemplated
therein can be mental and as well as physical in nature. The
explanation also provides that expression “cruelty” would also
include harassment meted out to the prosecutrix with a view to
coerce her or any of her relative 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.

9. The above said provision has been incorporated in the
penal code w.e.f. 25/12/83 to tackle malady of mental and
physical cruelty inflicted upon the wife by her husband and his
relatives within or without the walls of her matrimonial home.
Since such instances in the society had become rampant, the
legislature stepped in and introduce the provision of Section
498-A of IPC which if proved, attracts punishment for a term
which may extend to three years with fine. This court in it’s
attempt of analyzing section 498-A of IPC is supported by the
decision of Apex Court in the case of Neelu Chopra and
Another Vs. Bharti reported in (2009) 10 SCC 184. The
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

relevant portion of which is reproduced below:-

“9. In order to lodge a proper compliant, 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.

10. 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.

11. 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 jewellery. 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.

12. This is apart from the fact that despite service of notice, the
complainant neither appeared before this court nor engaged any counsel
to represent her. Under the circumstances we are of the opinion that the
judgment of the High Court deserves to be set aside. It is, accordingly,
set aside and the order of the learned Magistrate taking cognizance is
quashed. The complaint is quashed under Section 482 Cr.P.C.”

10. After introduction of above said section 498-A of IPC in
the statue books, the wives were protected against the
matrimonial cruelty to a considerable extent. However, as time
passed and the social fabric of the society advanced and
changed from a conservative to more individualistic and
commercial character, the instances of misuse of section 498-A
of IPC emerged where the said provision also started to be used
an arm twisting tactics against the husband and his relatives by
the wife and her parents. The said change in the social set up
brought to the fore cases of attempts by the disgruntled women
to camouflage themselves as prosecutrix and use the provision
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

of section 498-A IPC as a weapon to wreck vengeance against
her husband and his relatives. This change in the attitude of the
victim was noticed by the Apex Court in one of it’s recent
decisions in the case of Monju Roy Vs. State of West Bengal
Ors. reported in (2016) 2 SCC (Cri) 340. The relevant portion
of which is reproduced below:-

“8. While we do not find any ground to interfere with the view taken
by the courts below that the deceased was subjected to
harassment on account of non-fulfillment of dowry demand, we do
find merit in the submission that possibility of naming all the family
members by way of exaggeration is not ruled out. In Kans Raj, this
Court observed :

“5………A tendency has, however, developed for roping in all
relations of the in-laws of the deceased wives in the matters of
dowry deaths which, if not discouraged, is likely to affect the case
of the prosecution even against the real culprits. In their over
enthusiasm and anxiety to seek conviction for maximum people,
the parents of the deceased have been found to be making efforts
for involving other relations which ultimately weaken the case of
the prosecution even against the real accused as appears to have
happened in the instant case.”

The Court has, thus, to be careful in summoning distant relatives
without there being specific material. Only the husband, his parents
or at best close family members may be expected to demand
dowry or to harass the wife but not distant relations, unless there is
tangible material to support allegations made against such distant
relations. Mere naming of distant relations is not enough to
summon them in absence of any specific role and material to
support such role.

13. Accordingly, we allow this appeal, set aside the conviction and
sentence of the appellants under Section 304B IPC without
interfering with conviction and sentence under other heads. Since
the appellants are said to have already undergone the sentence
awarded for other charges which may be verified, they may be
released from custody forthwith unless required in any other case. ”

11. The least that is required for constitution of an offence to
enable the court to take cognizance and frame charge is that
the basic ingredients prescribed under the relevant statue
defining the said offences are satisfied by the allegations made
in the FIR and the supportive material in the charge-sheet.

12. Testing the factual matrix in the present two cases on the
anvil of discussion made above, it is seen from the FIR dated
6/4/16 Annexure A-1 that the allegation of cruelty is made in a
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

very vague and non-specific manner which is evident from use
of the following expressions in the complaint of the prosecutrix:-

1- cgqr tqYe k,A
2- esjh dbZ ckj csjgeh ls ekjihV dhA
3- ges’kk rkus nsrs FksA
4- uun csch rFkk uUnksbZ jktw tc Hkh Xokfy;j vkrs Fks esjs

lklllqj ,oa vU; llqjkytuksa dks esjs fo:) HkM+dkrs FksA
In the above said allegations, there is total absence of
description of the kind of cruelty inflicted, specific instances of
cruelty (mental and/or physical) and whether any complaint in
that regard was made in the last about 3-4 years.

13. Another relevant factor in both these cases, which weighs
in the mind of the court, is that both the petitioners in M.Cr.C.
No. 7317/17 were not residing in the matrimonial home as both
being posted as constables in the police since 2009 while
petitioners in M.Cr.C. No. 4325/17 were residing at Indore since
last more than 6 years. The factum of residence has been
established by the petitioners by filing relevant documents i.e.
voter I.D. Card issued by election commission Indore, ration
card and Adhar card.

14. The Apex Court in various of it’s pronouncements has
held that the criminal prosecution can not be sustained if the
same is based on non-specific and vague allegations which do
not constitute the offence of cruelty.

15. Testing the factual matrix attending the instant case on the
anvil of law laid down by the Apex Court and the discussion
made above, this court has no hesitation to hold that the
allegations made in the FIR and the charge-sheet fall
desperately short of the basic minimum requirement of
constituting an offence punishable u/S. 498-A of IPC and
therefore, the prosecution launched based upon the impugned
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M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

FIR cannot be sustained.

16. Consequently, both the petitions (M.Cr.C. No. 4325/2017
and M.Cr.C. No. 7317/2017) are allowed and as a necessary
consequence FIR dated 6/4/16 bearing crime No. 213/16
registered at Police Station Gole Ka Mandir District Gwalior and
all it’s consequential proceedings so far as it relates to the
offence punishable u/S. 498-A of IPC stand quashed.

17. Except the offence punishable u/S. 498-A of IPC, if the
petitioners are facing prosecution in connection which other
offence, then the same would proceed in accordance with law.

(Sheel Nagu)
Judge
24/11/2017

ojha

YOGEN Digitally signed by YOGENDRA
OJHA
DN: cIN, oHIGH COURT OF M.P.

BENCH GWALIOR, ouSTENO,

DRA
postalCode474011, stMadhya
Pradesh,
2.5.4.20559b9fc5699c450ae591f1
82bb528390a8686891308b8147f58

OJHA
a14e663c2cf97, cnYOGENDRA
OJHA
Date: 2017.11.25 15:52:13 -08’00’

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