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Madhuri Mukund Chitnis-vs-Mukund Martand Chitnis on 29 September, 1988

Bombay High Court Madhuri Mukund Chitnis-vs-Mukund Martand Chitnis on 29 September, 1988
Equivalent citations:I (1990) DMC 352
Author: A Tated
Bench: A Tated

JUDGMENT

A.D. Tated, J.

1. This petition is directed against the judgment and order dated 29th May 1986 passed by the learned Additional Sessions Judge, Pune, in Criminal Revision Application No. 204 of 1986 whereby he allowed the revision against the order dated 13th March 1986 whereby the learned Judicial Magistrate, First Class, Court No. 4, Pune, dismissed the application filed by Respondent No. 1 Mukund Martand Chitnis for discharge under Section 245(2), Criminal Procedure Code.

2. The facts leading to the present petition, shortly stated, are that the Petitioner Smt. Madhuri Chitnis and respondent No. 1 Mukund Chitnis were married on 15th July 1983. Immediately thereafter their relationship got strained and the petitioner had to leave the house of her husband on 6th August 1983 and since then she is not residing with her husband. On 31st October 1983 Respondent No. 1 filed Complaint Case No. 494 of 1983 against the Petitioner and her near relations for the offences punishable under Sections 420, 378 read with Section 34, Indian Penal Code. In that case Respondent No. 1 alleged that the Petitioner was married and had a child and while the marriage was subsisting, she by suppressing those facts, got into marriage alliance with Respondent No. 1 and thereby she committed the offence of cheating punishable under Section 420, Indian Penal Code. He further alleged that while leaving the family she carried with her some ornaments and cash and thereby committed the offence punishable under Section 378, Indian Penal Code. (It should rather be Section 380) On the same day i.e. 31st October 1983 on the eve of Diwali festival he got a search warrant issued by the Magistrate under Section 93, Criminal Procedure Code and seized complainant’s Mangalsutra wedding ring, ear-rings, gold bangles, one laff etc. from her person. The learned Judicial Magistrate issued process for the offence punishable under Section 420, Indian Penal Code and did not issue process for the offence punishable under Section 380, Indian Penal Code. Respondent No. 1 filed criminal writ petition No. 94 of 1984 under Article 227 of the Constitution of India read with Sections 398 and 401, Criminal Procedure Code on 24th February 1984 in this Court against the order passed by the learned Magistrate returning the ornaments to the Petitioner and rejecting his application for return of those ornaments to him. In this criminal writ petition No. 94 of 1984 Respondent No. 1 repeated the same allegation regarding bigamy, child from first marriage, theft etc. made by him in the complaint before the Magistrate, before this Court also. That writ petition was dismissed by this Court on 6th April 1984. . Therefore Respondent No. 1 filed Criminal Revision Application No. 160 of 1984 under Section 397, Criminal Procedure Code before the Sessions Court, Pune on 11th May 1984. In this Revision Application No. 160 of 1984 he again repeated the charges of theft, bigamy etc. against the Petitioner. That Criminal Revision Application was dismissed by the Sessions Court on 2nd April 1985. Criminal Case No. 494 of 1983 was dismissed on 31st July 1987 and the Petitioner and other accused were discharged. The petitioner in her complaint alleged that during her stay from 15th July 1983 to 5th August 1983 at the house of Respondent as his wife, Respondent No. 1 demanded dowry in the sum of Rs. 10,000/- and neither she nor the members of her family could meet that demand. As she and her relations could not satisfy the demand of her husband for dowry, he started harassing her by instituting false criminal proceedings against her in order to coerce her to accept his unlawful demand. Ultimately she had to file an application for divorce and in his written statement filed in the marriage petition on 4th March 1985 Respondent No. 1 repeated the same defamatory allegations and also his demand for the return of Streedhan belonging to the Petitioner. She had claimed divorce on the ground of cruelty. By order dated 17th October 1985 her petition for divorce was allowed. The Petitioner alleged in her complaint that her husband. Respondent No. 1, harassed her by making false allegations and by instituting various criminal proceedings against her on false allegations during the whole period from 15-7-1983 till 17-10-1985 while the marriage was subsisting and thereby he committed an offence punishable under Section 498A, Indian Penal Code.

3. The learned Judicial Magistrate recorded verification of the Petitioner on 15th October 1985 and on 23rd October 1985 he issued process against Respondent No. 1 for the offence under Section 498A, Indian Penal Code. Respondent No. 1 on 23rd January 1986 applied for his discharge under Section 245(2), Criminal Procedure Code. The learned Judicial Magistrate after obtaining the say of the Petitioner and after hearing both the parties rejected the Respondent No. 1’s application for discharge by his order dated 13th March 1986. Feeling aggrieved Respondent No. 1 preferred criminal revision application No. 204 of 1986 in the Court of the learned Sessions Judge, Pane. The learned Additional Sessions Judge by his order dated 29th May 1986 allowed the revision and the order of the learned Magistrate was set aside and Respondent No. 1 (accused) was discharged under Section 245(2), Criminal Procedure Code. Feeling aggrieved, the Petitioner has filed this petition in this Court for setting aside the order passed by the learned Additional Sessions Judge, Pune, in criminal revision application No. 204 of 1986.

4. The petitioner personally argued her case. She submits that the learned Additional Sessions Judge was not right in allowing the revision and setting aside the order passed by the Judicial Magistrate rejecting Respondent No. 1’s application for discharge under Section 245(2), Criminal Procedure Code. The learned Public Prosecutor Mr. Gangakhedkar, who appears for the State, supports the contention of the Petitioner that the learned Additional Sessions Judge was not right in setting aside the order of the learned Judicial Magistrate in exercise of the revisional powers.

5. I have gone through the complaint filed by the Petitioner for offence under Section 498-A, the order passed by the learned Judicial Magistrate rejecting Respondent No. 1’s application for his discharge under Section 245(2), Criminal Procedure Code and also the judgment and order of the learned Additional Sessions Judge in criminal revision application No. 204 of 1986.

6. The learned Judicial Magistrate, on going through the complaint and the verification recorded by him on 15th October, 1985, issued process against Respondent No. 1 for offence under Section 498-A, Indian Penal Code. He also on hearing the parties rejected the application filed by respondent No. 1 for his discharge under Section 245(2), Criminal Procedure Code. Section 399(1), Criminal Procedure Code provides that the Sessions Judge may exercise all or any of the powers which may be exercised by The High Court under Sub-section (1) of Section 401. The High Court’s powers of revision are found in Section 401(1), Criminal Procedure Code. The powers of revision are found in Section 397, Criminal Procedure Code. Section 397 reads thus :–

“397(1). The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation–All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by a person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

7. In the present case the learned Judicial Magistrate had issued process against Respondent No. 1 for offence under Section 498A, Criminal Procedure Code on considering the averments in the complaint and the verification thereof by examining the complainant on oath. When an application for discharge under Section 245(2), Criminal Procedure Code was made by Respondent No. 1, there was no other material on record and, therefore, the learned Judicial Magistrate, First Class, Pune, was perfectly right in rejecting the application of respondent No. 1. On reading the complaint and the verification it cannot be said that the learned Judicial Magistrate was wrong in issuing the process under Section 498A, Indian Penal Code, against Respondent No. 1. Section 498A which has been inserted in the Indian Penal Code by Criminal Law, 2nd Amendment Act of 1983 and which came into force from 25th December 1983 reads thus :–

“498A. 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 purposes 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.”

8. The meaning of word “harass” in the Webster’s Dictionary reads thus :–

“To subject someone to continuous vexatious attacks, questions, demands or other unpleasantness.”

9. The petitioner alleged in her complaint that after her marriage with respondent No. 1, Respondent No. 1 demanded dowry in the sum of Rs. 10,000/- and as her relations could not meet the demand he started illtreating her and she was ultimately driven out of her marital house on 6th August 1983. Thereafter Respondent No. 1 filed criminal case No. 494 of 1983 against her and also obtained search warrant and got her Streedhan property like Mangalsutra, wedding rings etc. seized from her person on the eve of Diwali festival. In Criminal Case No. 494 of 1983 Respondent No. 1 made a scurrilous attack on the character, chastity and integrity of the Petitioner. It is true that criminal case No. 494 of 1983 was filed by Respondent No. 1 on 31st October 1983 i.e. before Section 498A, Indian Penal Code came into force; but on that account it cannot be said that the averments made by Respondent No. 1 in the complaint in that case cannot be taken into consideration. Scurrilous attack by Respondent No. 1 on the character, integrity and chastity of the Petitioner did not stop with the filing of the complaint-case No. 494 of 1983. They were repeated in the subsequent complaint, writ petitions and criminal applications and right upto 4th March 1985 when Respondent No. 1 filed his written statement to the divorce petition filed by the Petitioner. Similar contention that the harassment before Section 498A came into force should not be taken into consideration and the repetition of the same allegation after Section 498A came into force should not be taken into consideration while considering whether any offence under Section 498, Indian Penal Code was committed was raised in Inder Raj Malik and Ors. v. Mrs. Sunita Malik, 1986 Criminal Law Journal 1510 and His Lordship of the Delhi High Court rejected the contention. The relevant portion from the judgment at page 1513 reads thus :—

“It is also contended that Section 498A, Indian Penal Code was inserted by way of Criminal Law (Second Amendment) Act, 1983, which came into force on 25th December, 1983. It is therefore correct that anything done before 25th December 1983 cannot constitute an offence punishable under Section 498A, Indian Penal Code. But the allegations of the complaint are that she was being continuously threatened that her son would be taken away unless she met the demands of the accused by way of compelling her parents to sell their property in Hauz Quazi. Prima facie such threats come within the purview of Section 486A, Indian Penal Code, which says that when the husband or relative of a 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 word ‘cruelty’ is defined in the Explanation which, inter alia, says that harassment of a woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security is cruelty. In the present case, as the allegations of the complainant are, she was harassed to meet the demands of the accused even by compelling her parents to sell their immovable property. That cruelty, as alleged by the complainant, was committed even uptil December, 1984 which was the date after coming into force of the Criminal Law (Second Amendment) Act, 1983.”

10. In the present case also cruelty which commenced immediately after marriage in July 1983 continued till divorce on 17th October, 1985. In the written statement filed in the divorce petition on 4th March 1985 Respondent No. 1, as stated earlier, repeated his demand for the Streedhan property belonging to the petitioner and also made a false and defamatory statement which he had made in criminal case No, 494 of 1983.

11. Their Lordships of the Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors., have considered the revisional powers of the High Court for setting aside the process issued by the Magistrate under Section 204, Indian Penal Code. At page 1950 of the report. Their Lordships laid down the law thus :–

“…It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is very limited one.”

At page 1951 Their Lordships observed thus :–

” . . .It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion,, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code.”

12. Thereafter their Lordships have set out four cases in which the order of the Magistrate issuing process against the accused can be quashed. The Sessions Judge who is exercising revisional powers under Sections 397 and 399 of the Criminal Procedure Code has only to address himself to the correctness, legality or propriety of the order passed by the learned Magistrate. He cannot examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused and cannot substitute his own discretion for that of the Magistrate. The process issued by the Magistrate can only be quashed by him if the Petitioner makes out any of the four grounds indicated by Their Lordships in the case of Smt. Nagawwa. After the Magistrate issued process in this case and before Respondent No. 1 filed an application for discharge under Section 245(2), Criminal Procedure Code the evidence of the complainant’s witnesses was not recorded. There was nothing on record except the complaint and the verification of the complainant on the basis of which the Magistrate had issued process. On the basis of the same record, after hearing Respondent No. 1 he had rejected his application for discharge under Section 245(2). The learned Additional Sessions Judge taking the averments made in the complaint and the verification of the complainant could not reach the conclusion that no prima facie case for the offence under Section 498A was made out and the learned Judicial Magistrate was wrong in issuing the process. If that could not be done, he could not have also set aside the order of the learned Judicial Magistrate rejecting Respondent No. 1’s application for discharge under Section 245(2) because there was nothing on record except the complaint and the verification of the complaint. I have already mentioned above that it can be gathered from the complaint and the verification that Respondent No. 1 continued his vexatious attack on the character, integrity and chastity of the complainant even after Section 498A, Indian Penal Code came into force on 25th December, 1983. He also continued to make demand for the Streedhan property belonging to the complainant and as late as 4th March 1985 in his written statement filed in the divorce petition he repeated the defamatory allegations and also his demand for the return of the Streedhan ornaments. Therefore, it could not be said that the learned Judicial Magistrate was wrong in rejecting Respondent No. 1’s application for discharge under Section 245(2), Criminal Procedure Code.

13. Learned Counsel for Respondent No. 1 contended that the allegations which have been objected to by the Petitioner were made by Respondent No. 1 in the proceedings he instituted in various Courts and on the basis of the alleged defamatory statements in those proceedings it could not be held that it amounted to harassment of the Petitioner within the meaning of the term used in Section 498A, Indian Penal Code. I am unable to agree with the learned Counsel. Harassment by instituting Court proceedings on false and defamatory averments and repeating those in various Courts and in various proceedings is the worst type of harassment by the husband of the wife and if such harassment is for meeting an unlawful demand for any property it falls within the provisions of Section 498A read with Explanation (b), Indian Penal Code. 14. In the result, I find that the learned Additional Sessions Judge was not right in setting aside the order of the learned Judicial Magistrate dated 13th March 1986 whereby he rejected Respondent No. 1’s application for discharge under Section 245(2), Criminal Procedure Code in the revisional jurisdiction. Hence the judgment and order dated 29th May 1986 passed by the learned Additional Sessions Judge are hereby set aside and the order passed by the learned Judicial Magistrate dated 13th March 1986 is restored. Rule is made absolute. Record and proceedings shall be immediately sent to the trial Court and the trial Court shall proceed with the case as expeditiously as possible. Writ shall be issued immediately.

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