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Vivek Gupta And Ors vs State Of Bihar And Anr on 5 April, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17273 of 2015
Arising Out of Case No.-1554 Year-2014 Thana- PATNA COMPLAINT CASE District-
Patna

1. Vivek Gupta son of Jai Prakash Gupta

2. Jai Prakash Gupta, son of Late Vishwanath Gupta @ Bishwanath Prasad,

3. Mira Devi @ Meera Gupta, wife of Jai Prakash Gupta, All resident of
Mohalla- Sahebganj, Sonar Patti, P.S.- Chapra Town, District- Saran
… … Petitioner/s
Versus

1. The State Of Bihar

2. Chanda Gupta, wife of Vivek Gupta, resident of Mohalla- Sahebganj, Sonar
Patti, P.S.- Chapra Town, District- Saran, presently residing at- daughter of
Shri Arvind Kumar, resident of Mohalla Sabji Bazar, P.O. and P.S.-
Khusrupur, District- Patna.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. D. K. Sinha, Sr. Advocate with
Mr. Abhinav Raj, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 05-04-2019

Heard learned counsel for the petitioners and learned

A.P.P. for the State.

2. Despite opposite party no. 2 having entered

appearance and counter affidavit also filed on her behalf and

further name of learned counsel printed in the cause list, nobody

appeared when the matter was taken up and heard.

3. The petitioners have moved the Court under Section

482 of the Code of Criminal Procedure, 1973 for the following

relief:

” That this application is directed for quashing
of Order taking cognizance dated 18/03/15
Patna High Court CR. MISC. No.17273 of 2015 dt.05-04-2019
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against the petitioners under section 498(A) of
the Indian Penal Code in connection with
Complaint Case No. 1554/2014, passed by
Learned Judicial Magistrate 1st Class, Patna
City.”

4. The allegation against the petitioners and two others

in the complaint filed by the opposite party no. 2, who is the wife

of petitioner no. 1, is of torture, demand of dowry, assault and also

taking away the minor son of the opposite party no. 2 from her

custody. After enquiry, the Court has taken cognizance only

against the present three petitioners by order dated 18.03.2015.

5. Learned counsel for the petitioners submitted that

even from the plain reading of the complaint, it is apparent that no

criminal offence is made out against the petitioners. It was

submitted that the complaint itself discloses that Rs. 8,00,000/-

was being asked for doing business by the accused which itself

would not constitute an offence under Section 498A of the Indian

Penal Code. For such proposition, learned counsel relied upon

decisions of the Hon’ble Supreme Court in Appasaheb v. State of

Maharashtra reported as (2007) 9 Supreme Court Cases 721,

the relevant being at paragraphs no. 10, 11 and 12 and State of

Karnataka v. Dattaraj reported as (2016) 12 Supreme Court

Cases 331, the relevant being at paragraphs no. 19, 20 and 21.

Learned counsel submitted that the demand for emergency
Patna High Court CR. MISC. No.17273 of 2015 dt.05-04-2019
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expenses, household expenses and purchasing manure could not be

said to be a demand for dowry as has been held by the Hon’ble

Court in Appasaheb (supra) and that the demand for dowry has to

be in close proximity from the date of allegation as has been held

in Dattaraj (supra).

6. Learned A.P.P. submitted that the Court, upon

conducting enquiry and relying upon the materials before it, has

proceeded to take cognizance which cannot be said to be bad in

law. It was further submitted that the fact that out of five accused,

only against three accused, cognizance has been taken, itself goes

to show that there has been proper application of judicial mind by

the Court concerned.

7. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

does not find any merit in the present application.

8. The allegation against the petitioners of demand of

Rs. 8,00,000/- dowry has been supported by the witnesses during

enquiry. Reliance of learned counsel for the petitioners on the

judgment of the Hon’ble Supreme Court in Appasaheb (supra)

does not appear to be of any help to them, for the reason, that in

the said case, the conviction of the person was under Section 304-

B read with Section 34 of the Indian Penal Code. In that context,
Patna High Court CR. MISC. No.17273 of 2015 dt.05-04-2019
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the Hon’ble Court had observed that the demand made by the

accused-appellant to meet urgent domestic expenses and

purchasing manure could not be said to a demand for dowry.

However, at paragraph no. 11, of the said judgment, which has also

been relied upon by learned counsel for the petitioners, it has been

observed as under:

” 11. In view of the aforesaid definition of the word
“dowry” any property or valuable security should be
given or agreed to be given either directly or indirectly
at or before or any time after the marriage and in
connection with the marriage of the said parties.
Therefore, the giving or taking of property or valuable
security must have some connection with the marriage
of the parties and a correlation between the giving or
taking of property or valuable security with the
marriage of the parties is essential……”

9. From the aforesaid, it is clear that the Hon’ble Court

has also accepted that giving or taking of property or valuable

security must have some connection with the marriage of the

parties and a correlation between the giving or taking of property

or valuable security with the marriage of the parties. In the present

case, undoubtedly, the allegation is that the demand of Rs.

8,00,000/- was made and threat was that the opposite party no. 2

would not be kept in the matrimonial home and further that her

husband would re-marry. Thus, clearly there is a direct nexus

between the demand of dowry and marriage.
Patna High Court CR. MISC. No.17273 of 2015 dt.05-04-2019
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10. Similarly, in Dattaraj (supra), at paragraph no. 19,

the Hon’ble Court has held as under:

“19. Insofar as the demand of Rs.20,000/- for the
purchase of agricultural land is concerned, it is
apparent that the same was allegedly made when
Dattaraj was in Dubai. The said demand was allegedly
made by Ningesh (respondent-accused ), the father of
Dattaraj, when he had gone to leave Savita at her
maternal home. Dattaraj is stated to have returned to
India from Dubai eight to ten months, after the above
demand. A female child was born to Savita about a year
after the return of Dattaraj to India. After the birth of
the female child, Savita had remained in her maternal
house, for about four to five months. Therefore, even if
the above oral allegation is accepted as correct, it was
a demand made about two years before the occurrence.
The same was too remote to the occurrence, and
therefore, would not satisfy the requirement of “soon
before her death” contemplated under Section 304-B(1)
of the Penal Code.”

11. From the aforesaid also, the Court has not negated

that the demand of Rs. 20,000/- for purchase of agricultural land

would not come under the demand of dowry. What has been held

is that the death had occurred after two years of the allegation for

such demand of money which was too remote to the occurrence

and therefore would not satisfy the requirement of “soon before

her death” contemplated under Section 304- B (1) of the Indian

Penal Code. Thus, the same is also of no use to the petitioners in

the present case.

Patna High Court CR. MISC. No.17273 of 2015 dt.05-04-2019
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12. On the contrary, the Court finds that the petitioners

having taken away the minor son from the opposite party no. 2, by

itself is sufficient to constitute cruelty, as taking away a minor son

from her mother is nothing short of cruelty.

13. For reasons aforesaid, the application stands

dismissed.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR
U
T

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