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No sufficient material for Framing of charge for the offences u/s 498A/406 IPC

IN THE COURT OF SH. ASHUTOSH KUMAR,
SPECIAL JUDGE ­02 (P.C.ACT), CBI, NORTH­WEST DISTRICT,
ROHINI COURT, DELHI

In the matter of CR No. 171/17

State
Through Chief Prosecutor, Delhi………Revisionist

Vs

Aditya Juneja
S/o Sh. N.K. Juneja,
R/o B­2/44, Sewak Park,Delhi
&
3203, 2nd Floor,
Gyan Shakti Apartments,
Dwarka, Delhi………….Respondent

Date of Institution : 19.09.2017
Date of reserving the order : 07.12.2017
Date of order : 07.12.2017

AND
In the matter of CA No. 126/17

Shalu Pruthi
D/o Sh. Subash Pruthi
R/o 3375B, Mahendra Park,
Rani Bagh, Delhi­110034. ……..Appellant

Vs

Aditya Juneja
S/o Sh. N.K. Juneja,
R/o B­2/44, First Floor,
Sewak Park, Uttam Nagar, New Delhi­110059

CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 1 of 18
Also at:
R/o 3203, Gyan Shakti Apartments,
Plot No.7, Sector­6,Dwarka, New Delhi­75…………Respondent

Date of Institution : 25.10.2017
Date of reserving the order : 07.12.2017
Date of order : 07.12.2017

Present: Sh. Ashok Kumar, learned APP for the
State/revisionist in CR No. 171/17.
Sh. K. Kaushik and Sh. R.S. Goswami, Advocates for respondent­husband (accused discharged vide impugned order) in both the petitions.
Father of original complainant­wife in person along with Sh. Sanjeev Uniyal, Advocate in both the petitions.

Remaining arguments heard.
Perused the record including the TCR.

ORDER
1. Vide this order, I shall dispose of Criminal Revision petition No.171/17 filed by State and Criminal Appeal No. 126/17 (treated as revision petition on the request of learned counsel for appellant) filed by original complainant­wife against the impugned order dated 31/07/2017 passed by Ms. Susheel Bala Dagar,MM(Mahila Court), North­West, Rohini Courts, Delhi, CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 2 of 18 in case FIR no. 69/15 of PS Rani Bagh, whereby the accused­ husband was discharged for the offences u/s 498A/406 IPC.

2. The facts necessary for disposal of the petitions are that the marriage between the parties took place on 14/07/2013. The husband filed a petition for divorce on 19/11/2013, the statement of original complainant­wife was recorded before learned Family Judge on 09/01/2014 and the complaint in question was made by original complainant­wife to CAW Cell on 17/02/2014.

3. The relevant part of the complaint of complainant qua the allegations for the offences u/s 498A/406 IPC is as under:­ “After marriage, they started torturing me physically and mentally, making demands for a big car, cash and other household items such as dining table, fridge, sofa etc. I am a central Government teacher at K.V. Sainik Vihar and during my stay in my sasural used to wake up at 5.00 a.m. daily balancing my personal as well as professional life but still they were not satisfied. My husband and my in­laws family were never satisfied even after my father has spent 32 lakhs (approximately) on the wedding. My parents have taken loans from relatives and friends to spend as much as they could on the wedding because my father­in­law has asked my father to organize the wedding with great pomp and show. My parents bestowed my husband and my in­laws with cash, gold and other gifts on various ceremonies such as Roka ceremony, Shagun Ceremony, Ring Ceremony and the Wedding Ceremony.

CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 3 of 18 In total, 350 gms of gold was gifted to my husband and my in­laws family. This included some gold (1. Husband’s Diamond ring 2. Mother­in­law’s gold set 3. Father­in­law’s ring 4. My gold set which was purchased in the name of my husband Aditya Juneja from TANISHQ shop because he said 10 percent discount on making charges would be given to him because he is an N.D.P.L. employee but the payment was done by my parents in cash. In addition to this, various other items were also given such as Sony T.V., air conditioner, laptop, almirah, double bed, clothes and lot of other items. All the jewellery was taken by my in­laws within 3 days of my marriage and kept by them with themselves. Even after so much was spent on marriage, they were not satisfied and demanded for big car and more dowry after the marriage. I was regularly tortured and beaten for dowry and other petty issues by the boy and his family. Boy and his family regularly threatened me “Agar hamari demands puri nahi hui to hum tera raat ko gala daba denge”. My sister­in­law interfered a lot in my day to day chores. She used to taunt me and insult me a lot on petty issues. Due to constant torture at my in­laws house, I lost 6 kgs weight within three months of marriage. I used to cry whenever I was at my maternal home. I visited Vaishno Devi and Amritsar with my husband and my in­laws family in October and was beaten by the boy on the trip and I received a serious injury on my foot. When we came back from the trip, I was in a serious pain but I was not taken to a doctor and was forced to do household work and scolded too. Due to constant physical and mental torture, I got into depression. My parents and brother visited my sasural on 20th October and I was forced to leave the house along with them with only 2 pairs of clothes. After that I CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 4 of 18 was never allowed to enter the house again. They refused to take me into the house when my parents asked them to have me there. My family constantly tried to contact them for having me back there but they never obliged. They visited our house on 2 nd November and my family asked them to take me with them but they said that until their demands are not met they will not take me with them. All my essential documents have been lying at my in­laws place but I was not allowed to take them even on repeated requests. My husband taped my voice whenever I used to have a conversation with him on phone because he never intended to have me back there. I was not even allowed to enter the apartments by the security guard on 8th December when I tried to get back there and felt insulted. I visited the office of my husband (N.D. P.L. Inderpuri) many times to reconcile with him but he insulted me every time. My husband and in­laws family stopped attending calls from me or my family. My husband filed a divorce petition within 4 months of marriage even when a divorce petition cannot be filed within 1 year of marriage. Next date of hearing in the court is 2nd April 2014.

Hence it is my honest request to take appropriate stringent action as per constitution of India against 1. Aditya Juneja (Husband) 2. Narinder Kumar Juneja (father­in­law) 3. Renu Juneja (mother­in­law) 4. Akanksha Juneja (sister­in­law) because they constantly tortured and harassed me physcially and mentally”.

4. The relevant portion of the impugned order dated 31/07/2017 of learned Trial Court is reproduced below:­ “The allegations of complainant are that her marriage CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 5 of 18 was solemnized with the accused on 14.017.2013. After marriage they started torturing her making demand of a big car, cash and other household articles like dining table, fridge, sofa etc. It is alleged that the father of the complainant spent Rs.32 lakh approximately after taking loan from relatives and friends on the wedding but her husband and in laws were not satisfied. It is alleged that all the jewellery was taken by her in laws within three days of marriage and kept with them. It is alleged that complainant was regularly tortured, beaten for dowry and other petty issues by the boy and his family who regularly threatened her saying that in case their demands are not fulfilled they will press her throat in the night. Sister­in­law used to taunt her on petty issues. She stated that she was beaten by the boy on the Vaisno Devi trip and she received injury on foot. On 20.10.2013 her parents and brother visited her matrimonial house and she was forced to leave with them. It is alleged that despite contacting them they stated that until their demands are met, they will not take her back. It is alleged that her husband tape recorded her conversation with him on phone as he does not intend to take her back. She was not even to allow to enter the apartments by the security guards on 8 th December and felt insulted. She visited the officer of her husband of NDPL Inderpuri many times to reconcile the matter but he insulted every time. Thereafter, her husband filed a divorce petition. On these allegations FIR was got registered and investigation was carried out.

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The IO has reported that no bills of the istridhan articles were produced by the complainant despite notice u/s 91 Cr.P.C. The complainant has not even given any anser to the said CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 6 of 18 notice regarding the istridhan articles of the marriage. It is also stated by the investigating agency that the complainant is suffering from mental disease since the year 2003 and she is under treatment. After marriage she could not take her medicine. The investigating agency has placed on record the statement of the complainant dated 09.01.2014 on oath before the court of Ms. Seema Maini, ld. Judge Family Courts, Rohini in HMA case No. 543/13, New No. 109/14 Aditya Juneja v. Shalu Paruthi. The istridhan articles have already been handed over to the complainant as per the admitted list. It is reported by the investigating agency that no bills of the disputed articles were produced by the complainant.

As regards the allegations for the offences u/s 406 IPC in Annu Gill v. State V AD (Delhi) 411 it has been held that no constitute offence u/s 406 IPC there must be clear and specific allegation that accused was entrusted with some property or domain over it, by the complainant, that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return the articles when the same were demanded by the complainant.

The complainant has nowhere stated to have entrusted any property or her istridhan articles to the accused persons. No date is mentioned on which she ever raised any demand of her stridhan articles from the accused. It is not the case that the accused persons ever refused to hand over the stridhan/other articles to the complainant. Moreover no bills of the alleged istridhan articles have been produced by the complainant. Hence, there is lack of sufficient material for framing of charge for the offence u/s 406 IPC against the accused.

CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 7 of 18 The complainant has stated that there was taunting by the accused but no date is mentioned on which she was taunted upon. In AIR 1996 SC 67 it has been held that taunting for bringing insufficient dowry is distinct from demand of dowry. Though taunting for insufficient dowry is also uncivilized act but does not come in the purview of Section 498A IPC and hence not sufficient to constitute offence u/s 498A IPC. Moreover, no date is mentioned on which accused allegedly slapped the complainant. In the present case there are no specific allegations of demand of dowry. It is not clear which car and how much cash was demanded. No date is mentioned when any such alleged demand was raised by the accused. There are no specific date mentioned on which cruelty was committed by accused and the allegations regarding threats being extended are vague in nature. There is not even a single allegation of any continuous cruelty. Hence, no charge for the offence u/s 498A IPC is made out against the accused.

In the case titled as Smt. Neera Singh v. State, Criminal M.C. No. 7262/2006 of Delhi High Court it was observed that “vague allegations as made in complaint by the petitioner against every member of the family of the husband cannot be accepted by any court at their face value and allegation have to be scrutinized carefully by the court before framing of charges.” General allegations are not sufficient to procure section 498A IPC in Surajmal Barithia v. State of West Bengal 11 (2003) DMC 127 (P&H).

There are allegations that accused husband tried to suffocate the complainant on 28th July. It is not clear by the complainant has not reported the alleged incident earlier. She has CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 8 of 18 even failed to report the same in the complaint. It is only when Section 91 Cr.P.C notice was given that for the first time such submissions have come forth which seems to be an after thought. No physical injuries are reported, no MLC is on record of beatings. There are no specific dates or incidents of willful conduct of such nature as is likely to drive the complainant to commit suicide or to cause grave injury or danger to her life, limb or health mentioned by the complainant. There is no date mentioned by the complainant on which she was coerced or harassed to meet any unlawful demand for any property or valuable security. Each and every harassment is not cruelty which can be covered under the ambit of section 498A IPC. Hence, the allegations mentioned in the charge­sheet do not attract Section 498A IPC.

In Union of India v. Prafful Kumar 1979 AIR SC 366 it has been held that : “the judge while considering the question of framing the charges has undoubted power to sift and weight the evidence for the limited purpose of finding out whether or not a Prima facie case against the accused has been made out. Where the materials placed before the court disclosed grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial. The test to determine a Prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him raises some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.”

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CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 9 of 18

5. Learned APP for the State and learned counsel for original complainant­wife have submitted that at the stage of charge, meticulous examination of the evidence is not required and it is to be seen whether prima facie case is made out or not. They have further submitted that marriage of the original complainant was solemnized three months prior to her leaving the matrimonial home and that specific allegations of cruelty and harassment for dowry and dishonest misappropriation of stridhan articles of the original complainant were levelled in the complaint but learned Trial Court erred in discharging the accused on the ground that specific dates of offence of demand of dowry and beatings have not been mentioned although the same were not required due to short span of time period spent by original complainant at the matrimonial home. They had further submitted that during inquiry at CAW Cell, in reply to notice u/s 91 Cr.P.C. and her supplementary statement recorded u/s 161 Cr.P.C., original complainant has categorically stated that accused­husband extended beatings to her, committed cruelty upon her for the demand of dowry, specifically a big car and threatened her. In support of his arguments, learned APP for the State has relied upon judgment of Hon’ble Supreme Court in the case of “K. Leela Beni Vs State” 2010 (2) C.C. Cases (SC) 113 to submit that allegations made in the first information report (complaint in this case) have to be accepted as true and allegations made in the FIR and material collected during the course of investigation are required to be considered at the stage of charge, whereas truthfulness or otherwise of the allegation is not fit to be gone into as it is always a matter of trial.

CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 10 of 18

6. Learned counsels for respondent­husband have relied upon following judgments:­

i) ‘Ajay Pal & Ors. V State’ 2017 [2] JCC 1154 of Hon’ble High Court of Delhi.

ii) ‘Shakson Belthissor V. State of Kerala & Anr.’ 2009 [3] JCC 2233 of Hon’ble Supreme Court of India.

iii) ‘Sukhbir Jain & Anr. V. State’ 1994(1) C.C. Cases 609 (HC) of Hon’ble High Court of Delhi.

iv) ‘Binod Kumar & Ors. V. State of Bihar & Anr.’ 2015 [1] JCC 664 of Hon’ble Supreme Court of India.

v) ‘Lakhwinder Singh V. State of Punjab’ 2000 CRI. L.J. 4751 of Hon’ble Punjab & Haryana High Court.

vi) ‘Bhaskar Lal Sharma & Anr. V. Monica’ 2009 [3] JCC 2453 of Hon’ble Supreme Court of India.

vii) ‘Union of India (UOI) Vs. Prafulla Kumar Samal and Anr’, Criminal Appeal No. 194 of 1977 (Date of Judgment 06/11/1978)(equivalent citation AIR 1979 SC 366).

7. As regards the other allegations of cruelty and harassment for dowry demand etc. (beyond her original complaint dated 17/02/2014) levelled by original complainant­ wife in her subsequent statements to the police including in her reply to notice u/s 91 Cr.P.C , since no such averments were made by the complainant in her first statement to the police, CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 11 of 18 therefore subsequent plea to fill­up the lacuna cannot be permitted in view of law laid down in the case of ‘Smt. Deepa Bajwa Vs State & Anr.’ {115 (2004) Delhi Law Times 202}.

8. In view of the reason given in the preceding para on the basis of case law relied upon, this Court has to examine as to whether from the allegations made in the original complaint dated 17/02/2014 only, learned Trial Court was justifiable in discharging the accused­husband for the offences u/s 498A/406 IPC.

9. In the case of ‘Sanjeev Kumar Aggarwal & Ors. Vs State & Anr.’ {2007 (4) JCC 3074}, it was held in para No. 10 to 16 that:­ “10. Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.

11. Explanation (b) to Section 498­A provides that cruelty means 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.

12. Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 12 of 18 related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the section.

13. In the decision reported as Smt. Sarla Prabhakar Waghmare v. State of Maharashtra & Ors. 1990 (2) RCR 18, the Bombay High Court had observed that it is not every harassment or every type of cruelty that would attract Section 498­A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.

14. Similar view was taken by the Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. Stated of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 wherein it was observed that offence under Section 498­A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry.

15. While interpreting the provisions of Section 304­B, 498­A, 306 and 324 IPC in the decision reported as State of H.P. V. Nikku Ram & Ors. 1995 (6) SCC 219 the supreme court observed that harassment to constitute cruelty under explanation 9b) to Section 498­A must CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 13 of 18 have nexus with the demand of dowry and if this is missing the case will fall beyond the scope of Section 498­ A IPC.

16. It is thus clear from the reading of Section 498­A IPC and afore noted judicial pronouncements that pre­condition for attracting the provisions of Explanation

(b) to Section 498­A is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the women without any nexus with the demand then such a cruelty will not be covered under explanation (b) to Section 498­A IPC. It may be a cruelty within the scope of Hindu Marriage4 Act, 1955 as held by the Supreme Court in the decision reported as Shobha Rani v. Madhukar Reddy AIR 1998 SC 121. In said case, it was observed that cruelty under Section 498­A IPC is distinct from the cruelty under Hindu Marriage Act, 1955”.

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10. Thus for making out charge for the offences u/s 498A/406 IPC, there should be allegations of beating and harassment to force the bride to commit suicide or to fulfill illegal dowry demand. Perusal of the original complaint reveals that no date, time or place of alleged commission of offence u/s 498A IPC have been mentioned in the complaint. Complaint also does not disclose as to what words were used in committing mental cruelty, how the alleged beatings were given, the mode and manner of the same and who specifically committed mental and physical cruelty towards her. Admittedly, there is no MLC of the CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 14 of 18 complainant pertaining to her alleged beatings etc. Even no complaint in this regard was made to police or to any other authority immediately after the incident or thereafter prior to filing the complaint in question. The complaint in question was made after filing of divorce petition by the husband and appearance of the original complainant­wife before the concerned Family Court on 09/01/2014, when she admitted that she was under depression prior to her marriage and after marriage depression relapsed due to non­taking of medicine by her as a result of her fault. Page no. 108 of the charge­sheet filed by the investigating agency is copy of medical­cum­fitness certificate dated 12/05/2009 (prior to marriage of complainant), wherein she has been reported to be suffering from bipolar disease.

11. In the case of ‘Shakson Belthissor Vs State of Kerala & Anr.’ 2009 [3] JCC 2233 relied upon by the learned counsel for respondent­husband, it was held that:­ “In order to understand the meaning of the expression “cruelty” as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.”

12. Further, in the case of ‘Ajay Pal & Ors.’ 2017[2] JCC 1154 relied upon by husband, it was held that allegations levelled against the appellant (therein) are not credible in nature as they miserably fall short of the basic details such as the day, date, time CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 15 of 18 or any definite or particular incident of any harassment towards demand of dowry with respect to the deceased and thus fail to attract the scope of Section 498A IPC.

13. Learned Trial Court has rightly held on the basis of case law reported in AIR 1996 SC 67 that mere taunting for bringing insufficient dowry is distinct from demand of dowry and hence the same is not sufficient to constitute offence u/s 498A IPC. Learned Trial Court has further rightly observed that there are no specific allegations of demand of dowry as it is not clear which car and how much cash was demanded and no date with respect to the same is mentioned. It was further correctly observed that no specific date was mentioned on which alleged cruelty was committed and allegations regarding threats being extended are vague in nature. It is further borne out from the record that there is not even a single allegation of any continuous cruelty. It was further rightly opined that there are no specific dates or incidents of willful conduct of such nature as is likely to drive the original complainant to commit suicide or to cause grave injury or danger to her life, limb or health and that each and every harassment is not cruelty which can be covered under the ambit of Section 498A IPC. Learned Trial Court has further rightly relied upon the case law mentioned in the impugned order to the effect that general allegations are not sufficient to procure Section 498A IPC. Learned Trial Court has further rightly observed that the allegations against husband of having trying to suffocate the original complainant on 28th July is an afterthought since the said incident was not reported earlier and even in the CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 16 of 18 complaint and the same surfaced only in reply to notice u/s 91 Cr.P.C.

14. As regards the allegations qua offence u/s 406 IPC, the admitted stridhan articles were returned to complainant as per admitted list and it has been reported by the investigating agency that no bills of disputed articles were produced by the complainant. Learned Trial Court has rightly relied upon the case law in the matter ‘Annu Gill V. State’ 2001 V AD (Delhi) 411, wherein it was held that to constitute offence u/s 406 IPC, there must be clear and specific allegation that accused was entrusted with some property or domain over it by the complainant and the accused has dishonestly misappropriated or converted the same to his own use or that the accused has refused to return the articles when the same were demanded by the complainant. The complainant has nowhere specifically stated to have entrusted any property or her stridhan articles to the husband. Even no date is mentioned on which she ever raised any demand for return of her stridhan articles. It is not the case of the complainant that husband ever refused to hand over the stridhan/other articles to complainant.

15. For framing of charge, there has to be a prima facie case or existence of grave suspicion against the accused. It is not that on slightest suspicion, a charge has to be framed against the accused. It is true that meticulous examination of material produced on record is not needed at the stage of charge but Court has the power to sift and weigh the evidence for the limited CR No. 171/17 State V Aditya Juneja & CA No. 126/17 Shalu Puruthi V Aditya Juneja 17 of 18 purpose of finding out whether or not a prima facie case is made out against the accused.

16. In view of the aforesaid discussion and case laws relied upon, it is clear that there is no sufficient material for framing of charge for the offences u/s 498A/406 IPC against the husband as the charge cannot be framed on slightest suspicion. Hence, the impugned order suffers from no infirmity or illegality. Accordingly, the revision petitions are dismissed. A signed copy of the order be kept in both the petitions.

17. Copy of this order along with TCR be sent back to Ld. Trial Court.

18. Both the petitions be consigned to Record Room after due compliance.

Announced in the Open Court (Ashutosh Kumar)
on 07.12.2017 Special Judge­02 (P.C. ACT), CBI
Distt. N/W, Rohini Courts, Delhi

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