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498A Quashing under Section 482 on Jurisdiction, Malafide and Vexatious case

Allahabad High Court

Criminal Misc. Application No. 1660 of 2006

JUDGMENT Vinod Prasad, J.

1. Roop Rekha, daughter of Ram Lal, resident of Purebhan Singh, police station Hussainganj, district Fatehpur, was married to applicant No. l Ganga Sagar son of Lala resident of Bhairampur, police station Kotwali, district Fatehpur on 24.5.2001 according to the Hindu customs and rights. In the marriage her father Ram Lal had given dowry of Rs. 40,000/- cash, Kishan Vikash Patra of Rs. 20000/-, a sovereign, sewing machine, golden chain, utensils, Almirah, bed etc. However, the husband his parents and other relatives of Roop Rekha not being satisfied with the said dowry started demanding a motorcycle before Bidai ceremony of Roop Rekha. Anyhow, Bidai took place and Roop Rekha went to her in-laws house but there she was tortured for the said demand of motorcycle by her husband Ganga Sagar at the instigation of her father-in-law Lala, elder brother Jaber and his wife Sunita. Ganga Sagar was also alleged to be having an illicit relation with Sunita and therefore, he remained totally unconcerned with Roop Rekha. The demand of motorcycle was repeated before Khichari by the husband which was intimated by Roop Rekha to her parents. On receiving the said information, parents and brother of Roop Rekha reached in-laws house but they were subjected to ignoring and Roop Rekha was turned out of her in-laws house with them, and since then now she is living in her parental house. Her report was denied to be registered by the police hence Roop Rekha dispatched a letter to Superintendent of Police, Fatehpur on 3.12.2004 but that too was of no avail. Failed in her attempt to get the F.I.R. lodged Roop Rekha on 8.12.2004 laid a complaint in the court of Judicial Magistrate, Fatehpur as complaint case No. 1081 of 2004, Roop Rekha v. Ganga Sagar and Ors. for offences under Sections 498A, 506 I.P.C. and 3/4 Dowry Prohibition Act. Complainant, Roop Rekha examined herself under Section 200 Cr.P.C. and her witnesses Ram Lal, her father, and Balwant son of Raghunath under Section 202 Cr.P.C. The learned Magistrate finding a prima facie case summoned husband Ganga Sagar, Lala (father-in-law), Jaber (Jeth) and Sunita (Jethani) for offences under Sections 498A, 506 I.P.C. and 3/4 Dowry Prohibition Act vide his order dated 1.6.2005. Aggrieved by the summoning order, the accused persons Ganga Sagar, Lala, Jaber and Sunita invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. through this application for quashing of the aforesaid complaint laid by Roop Rekha respondent No. 2. At the stage of admission itself this application under Section 482 Cr.P.C. was dismissed in respect of husband and father-in-law. However a counter affidavit was called for in respect of Jaber (Jeth) and Smt. Sunita (Jethani) from respondent No. 2 Roop Rekha as well as from A.G.A. Respondent No. 2 filed a counter affidavit along with stay vacation application. In her counter affidavit she more or less made the same allegations as that of complaint. The learned Counsel for the applicants did not file any rejoinder affidavit and argued the matter finally on the merits.

2. I have heard Sri Pulak Ganguly, learned Counsel for the applicants and Sri D.S. Pandey and Sri D.K. Tiwari, learned Counsel for the respondent No. 2 as well as learned A.G.A.

3. It is contended by learned Counsel for the applicants that so far as the two applicants Jaber and his wife Sunita Jeth and Jethani are concerned they had never made any demand of dowry. He submitted that in the complaint a demand of motorcycle is alleged to have been made which was of no use for Smt. Sunita and her husband Jaber. He contended that a general allegation without any specification has been levelled against the aforesaid two applicants only for the purposes of harassment. He further submitted that Smt. Sunita was not only subjected to harassment by respondent No. 2 but even her character and chastity was also scandalized by leveling allegation of illicit relation with Ganga Sagar her devar. He also contended that under Section 200 Cr.P.C. it is stated by respondent No. 2 that the demand of motorcycle was made only by her husband and it was her husband who had tortured her. He also argued that in her statement under Section 200 Cr.P.C. complainant had admitted that she had not lodged any other case against her husband and is presently living in her parental house since one and a half years. She had further stated that if her husband will take her back and keep her well she is ready to go with her husband. Learned Counsel for the applicants also contended that in the said statement respondent No. 2 does not level any charge against the present applicants and so far as her witnesses are concerned their evidences are hearsay and cannot be relied upon to summon the two applicants.

4. Learned A.G.A. and learned Counsel for the respondent No. 2 contrary submitted that a bare reading of the complaint indicates that the complainant Roop Rekha was tortured because of motorcycle demand and therefore offence is disclosed from the complaint and the present application deserves to be dismissed being without any merit.

5. I have gone through the record of the case and have looked into the allegations made in the complaint and statements under Sections 200 and 202 Cr.P.C. appended along with an affidavit by the applicants in this application.

6. A perusal of the complaint indicates that in the complaint the complainant made a general allegation so far as the two applicants Jaber and his wife Sunita who are Jeth and Jethani are concerned. There is no specific allegation against them. In the complaint she had stated that she was tortured and harassed because of a motorcycle. She had further mentioned in the complaint the she is living in her parental house since last one and a half years. However, in her statement under Section 200 Cr.P.C. no allegation against the applicant has been alleged. Her whole statement under Section 200 Cr.P.C. is conspicuously silent so far as demand of dowry by the present two applicants Jaber and Sunita are concerned and she has levelled the allegations against her husband Ganga Sagar only. She has stated that her husband is a farmer and it was he who had demanded the motorcycle. From the perusal of her statement under Section 202 Cr.P.C. and of her witness Ram Lalunder Section 202 Cr.P.C. it is amply clear that Ram Lal was told regarding the demand of dowry by complainant Roop Rekha. He and the other witness Balwant have also not stated anything regarding the demand of dowry by the applicants and they narrated the incident as was told to them by the complainant. The statement of Balwant P.W.2 indicates that his whole statement is based on hearsay which is inadmissible and cannot be utilized for summoning anybody for committing any offence.

7. In this view of the matter, it is very difficult to hold that the two applicants Jaber and his wife Smt. Sunita were guilty of offences under Sections 498A, 506 I.P.C. and 3/4 Dowry Prohibition Act. It is been held by the Apex Court in case reported in 2005 (52) ACC page 45 S.C. Ramesh and Ors. v. State of Tamil Nadu as follows;

Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none of the alleged offences, viz., sections 498A, 406 of the I.P.C. and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant’s husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e., between March and October, 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of informant by her sister-in-law (appellant) were alleged but they did not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant to wash W. C. and she used to abuse her and used to pass remarks such as “even if you have got much jewellary, you are our slave.” It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do any thing to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security….

Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramasivamy.

8. It has been laid down by the Apex Court in B.S. Joshi and Ors. v. State of Haryana and Anr. as under:

In State of Karnataka v. L Muniswamy considering the scope of inherent power of quashing under Section 482 , this Court held that in the exercise of this wholesome power, the High Court is entitled to quash the proceedings if it comes to the conclusion that the ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision, which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction….Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the “negative”. It would however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bonafides.

9. The aforesaid judgment of the Apex Court applies full force on the fats of present case and therefore, I am constrain to observe and so far as present two applicants Jaber and his wife Smt. Sunita who Jeth and Jethani of respondent No. 2 are concerned their prosecution is wholly malafide and vexatious which deserves to be quashed.

10. In view of what has been held earlier, this application is allowed in respect of the present two applicants Jaber (jeth) and Sunita (Jethani) and the complaint of case No. 1018 of 2004, Roop Rekha v. Ganga Sagar, under Sections 498A, 506 I.P.C. and 3/4 Dowry Prohibition Act, police station Hussainganj, distict Fatehur pending before Judicial Magistrate, Fatehpur is quashed in their respect.

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