Criminal Writ Petition No.272 of 2014

19th January, 2015.

Respondent Counsel: Mr. A.K. BANGADKAR, APP, Mr. S.S. MURTHY

Cases Cited:
State of Haryana and others Vs. Ch. Bhajan Lal and others, 2013 ALL SCR (O.C.C.) 1=AIR 1992 SC 604 [Para 7]
Sundar Babu & amp; and others Vs. State of Tamil Nadu, Cri.Appl./773/2003, Dt.19/2/2009 [Para 7]
Onkar Nath Mishra and others Vs. State (NCT Of Delhi) and another, 2008 ALL MR (Cri) 1360 (S.C.)=Appeal (Crl)/1716/2007, Dt.14/12/2007 [Para 9]
Neelu Chopra and another Vs. Bharti, 2010 ALL MR (Cri) 658 (S.C.)=Cri.Appl./949/2003, Dt.7/10/2009 [Para 10]
Smt. Neera Singh Vs. The State (Govt. Of Nct of Delhi), Dt.23/2/2007 [Para 11]
State of Karnataka by represented by Harohally Police Station Vs. Babu s/o. Basappa an others, Dt.5/2/2013 [Para 12]
State of A.P. Vs. M. Madhusudhan Rao, 2009 ALL MR (Cri) 547 (S.C.)=Cri.Apl./1697/2008, Dt.24/10/2008 [Para 13]
Bhaskar Lal Sharma and another Vs. Monica, 2010 ALL SCR 1407=Cri.Apl./1325-1326/2009, Dt.27/7/2009 [Para 14]
Sunita Kumari Kashyap Vs. State of Bihar and another, 2011 ALL MR (Cri) 1648 (S.C.)=AIR 2011 SC 1674 [Para 15]

JUDGMENT

JUDGMENT :- Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by consent.

4. The petitioner No.1 has argued in person on behalf of himself and the remaining petitioners. I have also heard Mr. A.K. Bangadkar, learned Additional Public Prosecutor for the respondent No.1, who states that appropriate order may be passed in the matter and Mr. S.S. Murthy, learned counsel for respondent No.2.

5. By this petition, the petitioners have challenged issuance of process by the Court of Judicial Magistrate, First Class, Court No.6, Nagpur against all the petitioners for the offences punishable under Sections 498-A and 406 read with Section 34 of the Indian Penal Code and also offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961 in a complaint case being Regular Criminal Case No.1020/2013.

6. According to the petitioner No.1, no prima facie case is made out as can be seen from the allegations made in the complaint dated 22.3.2013, whereas, according to the learned counsel for the respondent No.2-complainant, the allegations made in the complaint, when read as they are, would show that prima facie case has been made out for the offences in respect of which process has been issued by the Judicial Magistrate, First Class, against the petitioners.

7. It is well settled law that at the stage of quashing of the proceedings or considering the legality or otherwise of the order of issuance of process, what the Court has to see is whether or not the allegations, taken at their face value, are sufficient to constitute the offences alleged against the accused persons. The law has been laid down in the case of State of Haryana and others vs. Ch. Bhajan Lal and others, reported in AIR 1992 SC 604 : [2013 ALL SCR (O.C.C.) 1] which has been reiterated in the case of Sundar Babu & amp; and others vs. State of Tamil Nadu, decided by the Supreme Court of India, on 19th February, 2009, in Criminal Appeal No.773/2003.

8. The petitioner No.1, was at pains to explain as to how all the allegations in the complaint dated 22nd March, 2013 and also the verification statement dated 3rd May 2013 of respondent No.2 and also the deposition of her father, Krishnamurty, dated 3rd May, 2013 do not make out any offences punishable under Sections 498-A, 406 read with Section 34 of the Indian Penal Code and also under Sections 3 and 4 of the Dowry Prohibition Act, 1961. Upon consideration of the same, I am of the view that the allegations made against the petitioners as regards the offences relating to illtreatment and harassment as contemplated under Section 498-A of the Indian Penal Code as well as demand of dowry as contemplated under Section 2(a) and 2(b) read with Sections 3 and 4 of the Dowry Prohibition Act, 1961 are made out. In paragraphs 1, 2 and 3 of the complaint, there are specific averments made about demand of amount of Rs.1,00,000/- for performance of the marriage and also towards one way travelling expenses from Bhopal to Nagpur. There is also an allegation about demand of some valuable articles. There are also allegations made in subsequent paragraphs that as the respondent No.2 did not meet these demands, she was subjected to cruelty. According to the petitioner No.1, no specific roles have been mentioned in the complaint. However, upon considering the complaint in its entirety, I do not find it to be so. Specific roles have been assigned to each of the petitioners and, therefore, it cannot be said that prima facie no offences covered by Section 498-A of the Indian Penal Code and also by Sections 3 and 4 of the Dowry Prohibition Act, 1961 are made out. However, this does not seem to be the case as regards allegations relating to commission of offence of criminal breach of trust, which can be seen from the discussion made in these subsequent paragraph.

9. So far as the offence relating to criminal breach of trust is concerned, I find that the allegation has been made only against the accused No.3 i.e. petitioner No.3 that the ornaments, on her command, were entrusted to her and later on were refused to be handed over to respondent No.2 by petitioner No.3-accused No.3. No allegation regarding entrustment of the ornaments to accused No.3 on her demand and also on the demand of remaining accused has been made. Entrustment of the property and refusal to part with property are essential ingredients of the offence punishable under Section 406, as held in the case of Onkar Nath Mishra and others vs. State (NCT OF DELHI) and another, decided by the Supreme Court of India, on 14.12.2007 in Case No. Apeal (Crl) 1716 of 2007 : [2008 ALL MR (Cri) 1360 (S.C.)] relied upon by the petitioner No.1. Since, these essential ingredients of the offence punishable under Section 406 have not been prima facie made out against the accused Nos.1 and 2 i.e. petitioner Nos.1 and 2, the order of issuance of process against them for the said offence cannot be said to be legal and proper and as such it deserves to be quashed and set aside.

10. It has also been submitted by petitioner No.1 that mere mention of Section is not enough and specific roles must be attributed to each of the accused persons so as to enable the Court to determine as to whether or not the alleged offences are prima facie made and for this purpose, the petitioner No.1 has placed his reliance upon the case of Neelu Chopra and another vs. Bharti, decided by the Supreme Court of India, on 7th October, 2009, in Criminal Appeal No.949 of 2003 : [2010 ALL MR (Cri) 658 (S.C.)]. I have already found as to how the complaint as made against the petitioners specifically refers to various acts performed by all the petitioners, which prima facie, fall within the concept of cruelty and dowry as contemplated under Section 498-A of the Indian Penal Code and Section 2 of the Dowry Prohibition Act, 1961, by relying upon this law only.

11. The petitioner No.1 has further submitted, relying upon the case of Smt. Neera Singh vs. The State (Govt. Of Nct of Delhi), decided by the Delhi High Court on 23rd February, 2007, that there is a difference between taunting a person for not bringing the dowry and subjecting that person to cruelty because of failure of respondent No.2 to bring the dowry and that there must be something more which can be said to be in the nature of the woman being subjected to cruelty. Upon perusal of the complaint and also the depositions of two witnesses, including the complainant-respondent No.2 recorded before issuance of process, I find that the allegations do prima facie indicate meeting out of cruelty by the petitioners to respondent No.2 because of her alleged failure to meet the demand of dowry. Therefore, the case of Smt. Neera Singh, at this stage, would be of no assistance to the petitioners.

12. The petitioner No.1 has further submitted that it is one of the allegations of respondent No.2 that the amount of Rs.1,00,000/- allegedly demanded from her by the petitioners was for the performance of marriage and it has been held in the case of State of Karnataka by represented by Harohally Police Station vs. Babu s/o. Basappa an others, decided by the High Court of Karnataka at Bangalore, dated 5th February, 2013, that any demand for payment of something to meet the marriage expenses would not amount to dowry. There can be no dispute about this principle of law, but as seen from the averment made in paragraphs 1, 2, 3, 4 and also the allegations appearing in subsequent paragraphs, I find that the money was not demanded only for meeting expenses of the marriage but was also in connection with the purposes of the marriage, as defined under Section 2 of the Dowry Prohibition Act, 1961. Therefore, the facts of the instant case are different from the facts of the case of Babu Basappa and as such, the case of Babu Basappa would be of no help to the petitioners at this stage.

13. The petitioner No.1 has further submitted that there has been a delay of more than an year in filing of the complaint in this case by the respondent No.2 and no proper explanation for the delay appearing in this case has been given by her and, therefore, prima facie, the allegations made against the petitioners can be said to be product of afterthought and part of some design to wreck personal vendetta against the petitioners. For this submission, he places his reliance upon the case of State of A.P. vs. M. Madhusudhan Rao, decided by the Supreme Court of India, on 24th October, 2008, in Criminal Appeal No.1697 of 2008 (Arising out of S.L.P. (Criminal) No.3426 of 2007) : [2009 ALL MR (Cri) 547 (S.C.)], I do not think that the petitioners, at this stage, could draw any help from the said case for the reason that in this case, there was no explanation about the delay occurred in filing of the complaint, whereas, from the facts and circumstances mentioned in the present complaint prima facie the explanation for the delay in filing of the complaint can be seen to be arising therefrom.

14. The petitioner No.1 has also referred to the case of Bhaskar Lal Sharma and another vs. Monica, decided by the Supreme Court of India, on 27th July 2009, in Criminal Appeal Nos.1325-1326 of 2009 (Arising out of Special Leave Petition (Crl.) Nos. 4126 of 2008) : [2010 ALL SCR 1407], to support his argument as to how the Email correspondence between the parties would falsify the allegations. I must say that the allegations in this case are not based upon only what has taken place by way of communication between the husband and wife, but also on the acts which, prima facie suggest, as being in the nature of illtreatment and harassment within the meaning of cruelty as contemplated under Section 498-A of the Indian Penal Code. Therefore, the said case of Bhaskar Lal Sharma, at this stage, would not help the petitioners.

15. The petitioner No.1 has also challenged issuance of process on the ground of lack of territorial jurisdiction of the Court of Judicial Magistrate, First Class, Nagpur contending that the allegations, taken at their face value, would show that all the acts necessary to prosecute the offences of cruelty and demand of dowry had taken place at Bhopal and not at Nagpur. Learned counsel for the respondent No.2, however, disagrees. Placing his reliance upon the case of Sunita Kumari Kashyap vs. State of Bihar and another, reported in AIR 2011 SC 1674 : [2011 ALL MR (Cri) 1648 (S.C.)], he submits that when the allegations are read in their entirety, an inference would arise that the offences of cruelty as well as illegal demand of dowry have been continuously committed not only at Bhopal, but also at Nagpur.

16. Upon perusal of the complaint and also the depositions of two witnesses, I find that there is a substance in the argument of learned counsel for the respondent No.2 and no merit in the argument of the petitioner No.1. An amount of Rs.25,000/-, which was a part of demand of dowry, has been alleged to be paid at Nagpur and, therefore, demand of dowry can be, prima facie, seen to have been partly fulfilled at Nagpur. The respondent No.2 had been compelled to leave her matrimonial house, as alleged by her, because of afore stated cruel treatment and live at her parental house at Nagpur. This act has been seen in the case of Sunita Kumari as an act which made the offence of cruelty as continuing one. Besides, there are other allegations of continuation of cruelty even at Nagpur. Therefore, at this stage, it cannot be said that Nagpur Court has lost its territorial jurisdiction over the matter.

17. The petitioner No.1 has also submitted that the allegation that the amount of Rs.10,000/- was demanded by the petitioner for mother in law of the complainant i.e. petitioner No.3 is so ridiculous and absurd as no reasonable person would think it to be true. He submits that there is no custom prevailing in his family to make such a demand for the mother in law of the bride. In my humble opinion, this argument falls within the realm of defence of the accused and, therefore, would have to be considered appropriately after after detailed evidence is available and not at this stage.

18. In the result, I find that this petition can be allowed only in respect of challenge made to order of issuance of process to petitioner Nos.1 and 2 for an offence under Section 406 of Indian Penal Code and it deserves to be dismissed as regards other challenges.

19. Accordingly, Criminal Writ Petition is partly allowed.

20. The order under challenge, insofar as it relates to issuance of process against petitioner Nos.1 and 2 for an offence punishable under Section 406 read with section 34 of the Indian Penal Code, is hereby quashed and set aside.

21. Rest of the impugned order dated 21.1.2014 is hereby confirmed.

22. Rule is made partly absolute in the above terms and is discharged in respect of remaining challenges.

Petition partly allowed.