High Court of Punjab and Haryana, Chandigarh
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Divya @ Babli & Ors v. State of Haryana & another - CRM-24923-M-2004  RD-P&H 7139 (14 September 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Misc. No.24923-M of 2004.
Date of decision : 26.7.2006.
Divya @ Babli & others
State of Haryana & another
Coram: Hon'ble Mr. Justice Virender Singh Present : Mr. Pritam Saini, Advocate, for the petitioners.
Mr. Sunil Katyal, DAG, Haryana.
Mr. Sudeep Verma, Advocate, for respondent No.2.
Veena respondent No.2 filed a complaint against the present seven petitioners as well as her husband Sanjay Kumar (non-petitioner) under Sections 498-A/406 IPC before the concerned Ilaqa Magistrate (A.C.J.M.), Panipat with a request that the same be sent under Section 156 (3) of Cr.P.C. to the concerned police station for registration of the case alleging therein that she got married to Sanjay on 28th of June, 1999
at Samalkha, District Panipat and in the marriage her parents had spent about Rs.2.00 lacs. She also alleges that certain dowry articles (as Crl. Misc. No.24923-M of 2004 2
shown in the annexure were entrusted to her in-laws. It is her case that her in-laws had played a fraud upon her by concealing the fact that Sanjay Kumar was earlier married and the said marriage was broken after litigation. She stayed in her matrimonial home for about 16 months i.e. 28.6.1999 to 18.11.2000 and during this period her in-laws misbehaved with her physically and mentally. Petitioner No.3 who is son of real brother of mother of Sanjay (Mama) and Daya Kishan petitioner No.4 who is member panchayat used to instigate the other family members of her in-laws to maltreat her with regard to bringing insufficient dowry. At one stage a sum of Rs.27,000/- was given to petitioner No.1 for purchase of scooter but the same was not purchased.
Ultimately, on 18.11.2000 she was turned out of the matrimonial home.
It is then alleged that despite the intervention of brotherhood, her in-laws had refused to hand over the dowry articles. Rather frivolous and false allegations were levelled against the complainant. On these allegations the complainant is primarily seeking conviction of the present petitioners and her husband Sanjay.
On the direction of the concerned Court (Ilaqa Magistrate), FIR No.253 dated 2nd
of September, 2002 was registered against the petitioners under Sections 498-A/406 IPC.
The petitioners herein are seeking quashing of the said FIR and all subsequent proceedings arising therefrom qua them.
Crl. Misc. No.24923-M of 2004 3
Pursuant to notice, both the respondents filed their respective replies.
The order dated July 22, 2004 reflects that personal appearance of the petitioners was exempted and they were permitted to appear before the trial Court through their counsel.
I have heard learned counsel for both the sides and perused the record.
Mr. Saini learned counsel for the petitioners submits that in fact respondent No.2 and Sanjay Kumar had solemnized Kareva ceremony on 26.6.1999 in a very simple manner as both were divorcees and no dowry article was given or accepted at the time of marriage. He then submits that respondent No.2 stayed in the house of her in-laws for about 1½ year without any bickering. Thereafter, at one stage it was detected that she was suffering from some gynecological problem for which she could not conceive and this resulted in differences between husband and wife. Ultimately the matter went to a Panchayat of respectables. Panchayat was convened in a temple on 7.7.2002 wherein it was amicably settled that the father of respondent No.2 would get her daughter (respondent No.1) treated for her gynecological problem. A date was also fixed by the Panchayat i.e. 12.7.2002. The father of respondent No.2 had attended the Panchayat on 7.7.2002 whereas on 12th of July, 2002 he was absent. Mr. Saini states that although he has not attached the writing of the meeting held on the aforesaid two dates and Crl. Misc. No.24923-M of 2004 4
even respondent No.2 in her reply has admitted the factum of convening of Panchayat at least on one date i.e. 12.7.2002 and therefore, he prays that in the interest of justice, the petitioners may be allowed to place on record the writing of the aforesaid two Panchayats to arrive at the just conclusion of the case. He has produced the said writing today in the Court (be tagged at its proper place).
Mr. Verma appearing for respondent No.2 after perusing the reply states that may be the respondent wife has admitted the factum of convening of Panchayat on 12.7.2002 but with regard to convening of first Panchayat on 7.7.2002, she does not aver in her reply and, therefore, the aforesaid documents on which counsel for the petitioner wants to rely now in order to strengthen his case may not be considered.
Mr. Saini while strengthening his case further states that father of respondent No.2 was posted in Intelligence Bureau and wielded influence. He had been threatening the petitioners side of false implication and ultimately knitted a wider net to implicate all the members of in-laws of his daughter.
Learned counsel submits that petitioner No.1 is married sister of Sanjay (the husband) and got married in 1986, thirteen years prior to the marriage of respondent No.2. She is staying in a different State and the allegation levelled against her is that she was given Rs.27,000/- for purchasing a scooter but the same was not purchased.
Petitioner No.2 is unmarried sister-in-law. She is still unmarried though Crl. Misc. No.24923-M of 2004 5
is of a marriageable age. Because of the pendency of the present case against her, her parents are not marrying her. He then submits that after the registration of the case she was lifted away by the police in her night dress and was badly tortured by the police. Other accused were also tortured. A representation was made by Bale Ram petitioner No.6 in this regard. Rajbir petitioner is Mama's son of Sanjay (son of real brother of petitioner No.7 Smt. Shakuntla Devi). Daya Kishan is resident of Najabgarh and a member panchayat. Rajbir and Daya Kishan have been involved on the allegations that they used to instigate other members of the petitioners herein. Rajiv Kumar is elder brother of Sanjay and he too has been involved with general allegations. The learned counsel then contends that even Bale Ram and Smt. Shakuntla, petitioners No.6 & 7, who are parents-in-law of respondent No.2 have no nexus with the commission of the alleged offence and they are also being dragged in unnecessarily. They are aged persons and do not not keep good health.
In support of his contentions, he relies upon a judgment of this Court rendered in Shinder Pal @ Kakke vs. State of Haryana, 2004 (2) R.C.R. (Criminal) 398 and Rajinder Mohan Kashyap vs.
Om Parkash Sharma, 2005 (1) R.C.R. (Criminal) 274, Mr. Saini then submits that it has become a tendency in matrimonial disputes to implicate all the family members, some times even the distant relatives on vague allegations for certain oblique motive.
The learned counsel while relying upon a judgment of this Crl. Misc. No.24923-M of 2004 6
Court rendered in Harjinder Kaur and others vs. State of Punjab, 2004 (4) R.C.R. (Criminal) 332 lastly contends that may be the challan against the petitioners has since been filed by the prosecution agency, yet there is no absolute bar to entertain the petition under Section 482 as each case is to be examined on its own facts and in the case in hand, the father of respondent No.2 being in Police Department could comfortably manage the investigation in his favour and that appears to be the reason that the prosecution Agency has filed challan against everybody named in the complaint without verifying the facts.
On the basis of the aforesaid submissions Mr. Saini prays for quashing of the FIR and the subsequent proceedings arising therefrom qua the present petitioners.
While controverting the submissions advanced by Mr. Saini, Mr. Verma states that this is not the stage for quashing of the proceedings against the petitioners as the challan against all has already been filed by the prosecution agency, therefore, all the pleas taken herein by the petitioners can very well be agitated at the relevant stage before the trial Court.
On merits, Mr. Verma contends that the petitioners have no cause as there are specific allegations against each of them and the plea projected by the petitioners with regard to gynecological problem of respondent No.2 is neither here nor there. Rather the complainant side was insulted before the Panchayat by the petitioners side on one day i.e.
Crl. Misc. No.24923-M of 2004 7
7.7.2002 and therefore, the Panchayat convened was not able to resolve the dispute. He then contends that the dowry articles have not been returned till date and, therefore, the petitioners have no escape from the liability. Prima facie also Sections 498-A/406 IPC are attracted qua all the petitioners and therefore, they are not entitled to the relief sought herein.
Mr. Verma lastly contends that Rajiv Kumar (Petitioner No.5), the elder brother of Sanjay (Jeth) of respondent No.2 has shown the same address where his parents (petitioners No.6 and 7) are staying and therefore, petitioners No.5 to 7 at least cannot make out a case in their favour. Sanjay (husband) along with his wife (complainant) were also staying in the said house. The aforesaid three petitioners are very well connected with every incident that happened in the matrimonial home.
Learned State counsel adopts the arguments advanced by learned counsel for respondent No.2.
The conceded position before me is that charge has not been framed by the trial court till date.
After hearing rival contentions of either side and going through the records minutely, I am of the view that the complainant has no case against Divya @ Babli, Ms. Meenakshi, Rajbir Singh and Daya Kishan (Petitioners No.1 to 4) and the instant petition qua them deserves to be allowed. While arriving at this conclusion, I have not only Crl. Misc. No.24923-M of 2004 8
appreciated the totality of the facts and circumstances of the case in hand but also kept in consideration that the things have taken a reverse trend now-a-days and women are abusing beneficial provision of Section 498- A IPC by implicating all the family members of her in-laws. It is quite often noticed by the Courts that the cases of this type create some what formidable hurdle in reconciliation efforts and gives rise to lot of bickerings between the two families and the efforts to be made by the Court are being buried. In some judgments a suggestion is also given to the Law Commission and the Parliament that if Section 498-A IPC has to continue on the statute book in the same form, it should be made a non- cognizable and a bailable offence so that the provisions are not misused to harass innocent people.
I am quite conscious of the settled legal position that generally the proceedings should not be quashed when the challan is filed by the prosecution agency and thereafter the exercise should be left to the trial Court to proceed with the case in accordance with law from the stage of consideration on charge. But at the same time there is no hard and fast rule that the proceedings cannot be quashed after the filing of the challan. It depends upon the facts of each case. It is, however, the duty of the Court to see that the streamline of justice is kept clean. In Harjinder Kaur's case (supra), the same issue had cropped up and this Court while relying upon certain judgments of Apex Court and of this Court held that there is no bar to entertain the petition under Section 482 Crl. Misc. No.24923-M of 2004 9
Cr.P.C. even after filing of the challan or even after framing of the charge. I am appreciating the case in hand from that angle qua certain accused booked in this case.
I have seen the complaint very minutely once again.
Although either side has not placed on record the challan for its perusal but in my considered view the prosecution should go by what is alleged in the basic complaint (Annexure P-1). It has come on record that the complainant is M.A. Pass and her husband Sanjay (non-petitioner) is employed in the Electricity Supply Board, New Delhi and was earning about Rs.10,000/- per month. A bare perusal of the complaint indicates that it has been drafted with certain oblique reasons so that all the family members of in-laws of the complainant are taken in. Rajbir, who is maternal uncle's (Mama's) son of Sanjay Kumar (husband) is also not spared. Daya Kishan, a member Panchayat is also implicated in this case with the allegation that the complainant was being harassed at the behest of aforesaid persons (Rajbir and Daya Kishan). In para 2 of the complaint it is stated that several dowry articles including Istridhan was given to the respondents exclusively as well as jointly. I am surprised as to how Rajbir and Daya Kishan petitioners can be said to have any nexus with the entrustment of dowry articles. Similarly, the other two petitioners, namely, Babli who is also known as Divya (petitioner No.1) and Meenakshi who is also known as Soni alias Manisha have been arrayed as accused with the general allegations of demand of dowry, Crl. Misc. No.24923-M of 2004 10
entrustment of dowry articles and the harassment at their hands. Divya @ Babli petitioner is a married sister-in-law (real sister of husband) who was married way back in 1986 and is residing at a different place. She cannot even be remotely connected with both the offences as alleged viz 498-A/406 IPC. Meenakshi @ Soni @ Manisha (petitioner No.2) is unmarried sister-in-law. Mr. Saini states that she is still unmarried as the parents have not arranged her marriage on account of the pendency of the criminal proceedings against her. In my considered view, her involvement in the instant case is an outcome of usual hatred in the mind of the complainant side after the matrimonial discord. This rather goes to strengthen my observation that a tendency has developed for roping in all the relations in dowry cases.
I may state here that I have not given any weightage to the writing of the Panchayat produced by Mr. Saini during the course of arguments to which Mr. Verma, learned counsel for the respondent/ complainant has otherwise raised objection and am deciding the case keeping in view the very case set up by the complainant herself . It is clear from the reply filed by the respondent that a Panchayat was convened with regard to resolving the dispute between husband and wife and there is a reference to a fact that respondent/complainant was to be treated for some gynecological problems.
In Rajinder Mohan Kashyap's case (supra) relied upon by Mr. Saini, this Court while quashing the proceedings qua some of the Crl. Misc. No.24923-M of 2004 11
family members of in-laws of the wife has also observed that it has become a tendency in matrimonial disputes to implicate all the family members, even some time the distant relations, on the vague allegations.
In the said judgment this Court has relied upon a judgment of Hon'ble Supreme Court rendered in M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997 (4) RCR (Crl) 761 (SC) in which their Lordships have observed as under:-
".......Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused."
Another judgment rendered in Shinder Pal @ Kakke's case (supra) relied by Mr. Saini, this Court while relying upon a judgment of Apex Court rendered in Kans Raj v. State of Punjab and others, AIR 2000 Supreme Court 2324 wherein their Lordships have observed that a tendency has developed for roping in all the relations in dowry cases which ultimately weakens the case of the prosecution even against the real accused.
Crl. Misc. No.24923-M of 2004 12
My view is also fortified by the latest judgment of Hon'ble Supreme Court rendered in Ramesh Kumar and others vs. State of Tamil Nadu, 2005 (2) R.C.R. (Criminal) 68 in which their Lordships while quashing the proceeding against sister-in-law who was staying at a different place observed that there were bald allegations to rope in as many relations of the husband.
Another latest judgment of Apex Court rendered in Sushil Kumar Sharma vs. Union of India and others, 2005 (3) R.C.R.
(Criminal) 745 where issue of striking down Section 498-A IPC had sprouted, their Lordships observed that in such type of cases the "action" and not the "section" may be vulnerable and the Court by upholding the provisions of law may still set aside the action, order or decision and grant appropriate relief to the persons aggrieved. Their Lordships while dealing with the dowry menace, however, observed in para 17 as under:- " The object of the provision is prevention of the dowry menace. But as he has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy (ignominy ?) suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta Crl. Misc. No.24923-M of 2004 13
or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin's weapon. If cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the Courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth.
This is too wide available and generalized statement.
Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the Courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the Courts have to act on circumstantial evidence. While dealing with such cases, the law laid down Crl. Misc. No.24923-M of 2004 14
relating to circumstantial evidence has to be kept in view." Taking into consideration the totality of facts and circumstances of the instant case and following the rationale of the judgment rendered in Sushil Kumar Sharma's case (supra), in my considered view, the instant petition qua petitioners Divya @ Babli, Ms.
Meenakshi, Rajbir Singh and Daya Kishan (Petitioners No.1 to 4) deserves to be allowed. Ordered accordingly.
I, however, find substance in the arguments advanced by learned counsel for the respondent/complainant that Rajiv Kumar, Bale Ram and his wife Smt. Shakuntla Devi (Petitioners No.5 to 7) were residing at House No.RZ/4 Naya Bazar, Najabgarh, New Delhi-43 as is clear from the title of the petition. Sanjay, the husband and his wife (complainant) were also staying in the same house and, therefore, it can be safely inferred that these three petitioners along with Sanjay were having bickerings with respondent/complainant. The allegations against them cannot be appreciated that deeply at this stage so as to lend any advantage to them with regard to the relief sought herein. This exercise, in my view, is to be left to the concerned trial Court. Therefore, in my firm view Rajiv Kumar, Bale Ram and Smt. Shakuntla Devi (Petitioners No.5 to 7) have no case for quashing of the FIR qua them and consequently the instant petition against them merits dismissal. Ordered accordingly.
The net result is that the instant petition is partly allowed Crl. Misc. No.24923-M of 2004 15
and FIR No.253 dated 2.9.2002, under Sections 498-A/406 IPC registered at Police Station Samalkha and all further proceedings arising therefrom qua petitioners No.1 to 4 are hereby quashed. However, petitioners No.5 to 7 shall face the trial. At the same time, the personal appearance of Smt. Shakuntla Devi wife of Bale Ram (Petitioner No.7) only shall remain exempted before the trial Court and not of petitioners No.5 and 6 (Rajiv and Bhalle Ram) as already ordered by this Court at one stage. The said relief is, therefore, withdrawn qua them.
( Virender Singh )
July 26, 2006
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