Delhi District Court
State vs . Sudhir Jain on 14 July, 2011
1
IN THE COURT OF MS. SUNAINA SHARMA : METROPOLITAN MAGISTRATE :
MAHILA COURT (E) : KARKARDOOMA COURTS : DELHI
FIR NO.:346/2005
U/S 498-A/406/34 IPC
STATE VS. SUDHIR JAIN
ORDER:
1. Vide this order, I shall decide the point of charge on which I have heard arguments from both sides and have perused the record.
2. Brief facts of the case are that the complainant Neelam Jain was married to accused Manish Jain on 24.4.2000. On 17.6.2001 complainant filed a complaint to Suprintendent of Police Nagercoil, in connection with the dowry related harassment and mis appropriation of her dowry articles. In her complaint she arrayed her husband Manish Jain, mother in law Vidhya Jain, Sanjay Jain (brother in law/Nandoi), Alka Jain (Sister in law/Nanad), Sushil Kumar Jain (brother in law/Nandoi), Suman Jain (sister in law/Nanad) Virender Jain (brother in law/Nandoi), Sushma Jain (Sister in law/Nanad), Sanjeev Kumar (brother in law/Jeth), Anu Jain (Sister in law/Jethani), Sudhir Jain (Chacha Sasur) and Sashi Jain (Chachiya Saas). On the aforesaid complaint of the complainant, an FIR was lodged at P.S. Nagercoil which was subsequently transferred to Delhi by the order of Hon'ble Supreme Court. FIR lodged at P.S. Shakarpur is also based on same complaint dated 17.6.2001. In the said complaint, complainant has alleged that in the beginning of her marriage, her relations with her husband were cordial and affectionate but soon after they returned from their honeymoon, her in laws i.e. her husband's late father , mother, her husband's brother and his wife, her sister in laws and their husbands started harassing her and subjected her to cruelty by giving her beatings for not bringing sufficient dowry as per their demands. She alleged that all her in laws neglected and deserted her and ultimately shunted her out from her matrimonial house on 18.5.2005 in wearing clothes FIR No. 346/2005 State Vs Sudhir Jain 2 and took away all her jewellery and cash. As per the said complaint her husband and other in laws never bothered to know about her whereabouts after rendering her homeless and all her jewellery, clothes and other items which were given to her at the time of her marriage kept lying in custody of her husband and other family members and same were never returned back to her despite her repeated demands and the same were even converted to their own use by the accused persons.
3. Before discussing respective contentions raised from both sides,it is to be observed that at the stage of charge only a prima facie case is required to be made out and evidence is not to be meticulously judged Reliance is placed upon Union Of India V/s Prafful Kumar Samoul AIR 1997 Supreme Court 366 and Kanti Badhura Shah & Ors. V/s state of West Bengal 2001.AV(Supreme Court), where following principles have been laid down, by Hon'ble Supreme Court:
1. That the judge while considering the question of framing the charge under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
2. Where the material placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing charge and proceeding with the trial.
3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
FIR No. 346/2005 State Vs Sudhir Jain 3
4. That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experinced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial.
4. Keeping in view the above mentioned principles, Ld. APP read out the entire complaint of the complainant and statement of witnesses recorded during the investigation. Ld. APP has vehemently argued that the material on record if read in entirety clearly makes out a case U/s 498-A/406/34 IPC against all the accused persons. He further argued that at this stage, trial court is not required to appreciate evidence meticulously and material placed before the court is only to be looked into to find out whether there are sufficient grounds to proceed against accused and not to ascertain whether material is sufficient for conviction.
5. Ld. APP further submitted that in her supplementary statement recorded on 17.6.2006, complainant has raised specific allegations regarding demand of dowry and consequent harassment at the hands of all the accused persons and hence the charge is liable to be framed against all the accused U/s 498-A IPC.
6. Ld. Defence counsel has placed reliance on the judgment in State of Karnataka Vs. Muthiswamy (1977) 2 SCC 699 (Three Bench,) wherein it was held that as framing of charge effects a person's liberty substantially, need for proper consideration of material warranting such order was emphasized.
FIR No. 346/2005 State Vs Sudhir Jain 4
7. Having noted the broad guidelines to be kept in view while deciding whether or not a charge against accused is to be framed or not, we may advert to the facts of present case to decide whether on the basis of the material on record, it can reasonably be held that a case for framing charges against accused U/s 498-A/406 IPC exists. However, before undertaking this exercise, it would be appropriate to briefly note the essential ingredients of offence U/s 406 and 498-A IPC.
8. Cruelty for the purpose of Section 498-A IPC has been defined under explanation of section as:
"(a) any willful conduct which is of such nature as 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 coerce her or any person related to her to meet any unlawful demand for any property or any property or valuable security or is on account of failure by her or any person related to her to meet such demand".
9. For constituting an offence U/s 406 IPC, the three ingredients namely
(i) entrustment or dominion over the articles (ii) demand for return of goods entrusted and (iii) refusal to return or misappropriation of goods have to be fulfilled.
10. Ld. Defence counsel further argued that even as per the complainant, she stayed in her matrimonial home only for a short period i.e. w.e.f. 24.4.2000 till8.5.2000. He further argued that during said period of 15 days, she had also visited Kanyakumari with her husband for honeymoon. He further argued that as per complainant herself, prior to her honeymoon everything went smooth and her relations in her matrimonial home were cordial and affectionate. He further argued that the allegations regarding demand of dowry and harassment against the accused persons are unspecific, undetailed and vague in nature and so they are not sufficient to make out a prima facie case U/s 498-A IPC. He further argued that due to temperamental differences, the couple could not adjust with each other and FIR No. 346/2005 State Vs Sudhir Jain 5 in her urge to take revenge from her husband, complainant implicated his entire family including those who were living at distant places. He argued that all the sister in laws were living with their husbands in their matrimonial homes at different places and their addresses were mentioned in the complaint dated 17.6.2001, by the complainant herself. He further argued that even Sh. Sudhir Jain and Smt. Sashi Jain, who are uncle and aunt of complainant's husband were also residing at separate address of Azad Nagar,Delhi. He further submitted that one of the sister in law namely Sushma Jain and her husband Vijay Jain (since deceased) were residing at Saharanpur (UP) whereas, the other sisters in law Anu Jain and her husband Sanjeev Jain, Sushma Jain and her husband Sushil Jain were residing at Delhi at different places. He further argued that even qua offence U/s 406 IPC, the complainant has failed to disclose as to what articles were entrusted to whom or misappropriated by whom.
11. Ld. Defence counsel has raised one more contention that the cognizance in this case is also barred by limitation as the last cause of action in respect of the alleged offences arose on 8.5.2000 when she was allegedly thrown out of her matrimonial home whereas, cognizance in this case was taken in April 2008 i.e. much after expiry of three years from the last cause of action.
12. In this regard Ld. APP rebutted the arguments by submitting that earlier the case was registered at Nagercoil Police Station and it was subsequently transferred to P.S. Krishna Nagar. He further submitted that the said order of transfer of FIR from Nagercoil P.S. to P.S. Krishna Nagar was set aside by Hon'ble Madras High Court. He further submitted that the said order of Hon'ble High Court was later on set aside by Hon'ble Supreme Court vide order dated 23.9.2004 wherein, it was observed that Nagercoil Police Station was justified to send the complaint to Delhi Police and Delhi Police was directed to proceed with the present complaint in accordance with law.
13. It is further stated that due to the transfer of the complaint from one place to another place, the investigation got delayed which led to delay in filing of the charge sheet. He further, submitted that as per Section 470 (1) FIR No. 346/2005 State Vs Sudhir Jain 6 Cr.P.C. the period during which any person has been prosecuting with due deligent another prosecution whether in a court of first instance or in a court of appeal or revision, against the offender needs to be excluded for computing the limitation period prescribed in Section 468 Cr.P.C. He further argued that in this case complainant in good faith was prosecuting the case is Nagercoil and due to defect of jurisdiction, the FIR was got transferred from Nagercoil to Delhi and therefore, the period from June 2001 till 2004 is liable to be excluded for computation of limitation period. But, even after excluding said period there appears to be delay of one year in taking cognizance in this case. In this regard Ld. APP has placed reliance upon judgment of Hon'ble Supreme Court titled as Sanappareddy Maheedhar Sheshagri & Another Vs Staet of Andhra Pradesh wherein, the Hon'ble Apex Court laid down that , " offence of cruelty is an continuing offence and affects the society at large and therefore, in cases involving matrimonial offences the court should not adopt narrow and pedantic approach and should, in the interest of justice, liberally excise power under section 473 for extending the period of limitation".
14. Considering the fact that complainant has raised allegations involving the matrimonial offences, I am of the view that the power given under Section 473 Cr.P.C., has to be liberally exercised and the real culprit should not gain advantage on technical ground of delay. Reliance is placed on K. Venugopalan Vs. State of Kerala 2003 (2) RCR Crl. 128.
15. Perusal of the complaint dated 17.6.2001 shows that the complainant had stayed in her matrimonial home only for a short span of 15 days i.e. after her marriage on 24.4.2000 till 8.5.2000 when she was allegedly ousted from her matrimonial home by the accused persons. In said complaint, complainant has come out with a very vague and omnibus allegation that after she returned back from her honeymoon, all the accused persons including her mother in law, sister in laws namely Sushma Jain, Suman Jain, her chachiya Saas Shashi Jain, started harassing her and subjected her to beatings for not bringing sufficient dowry and she was deserted and neglected and was later on driven out of the house in wearing clothes. In FIR No. 346/2005 State Vs Sudhir Jain 7 said complaint, complainant failed to attribute any specific reason for the said alleged harassment nor she has been able to disclose as to why she was thrown out of the house. Rather the allegations reveal that she was allegedly beaten up as the demands of her in laws were not fulfilled but there appears to be no allegation that any unlawful demand was raised from her. She alleged that she was ultimately driven out of the house on 8.5.2000. She failed to give details as to on which date, month or occasion she was subjected to alleged act of beatings, nor she attributed any specific role to the accused persons in giving her alleged beatings.
16. In her supplementary statement U/s 161 Cr.P.C. which was recorded in January 2006, the complainant appears to have improved her version to a large extent. As per the said complaint immediately after she reached her matrimonial home after her marriage, her in laws instead of welcoming her started raising demand of Rs. 5 lacs and on that account a quarrel took place. All the accused i.e her husband, father in law, mother in law, Jeth Sanjeev Jain, husband's uncle Sudhir Jain, brother in law Virender Jain, Sushil Jain, Sanjay Jain started abusing her parents and brothers and also started taunting her by saying that " KIS KANGLE GHAR KI BETI BIHA KAR LE AAYE" upon which her husband commented by saying that "LET ME TAKE HER TO HONEYMOON THEREAFTER SHE WILL BE COMPELLED TO BRING RS. 5 LACS FROM HER PARENTS" . Further as per said supplementary statement, her husband, father in law, mother in law Jethani, chachiya saas Sashi Jain, chacha sasur Sudhir Jain, sister in laws namely Sushma Jain, Suman Jain, Alka Jain and Jethani Anu Jain took her entire jewellery in their possession by saying that the same is not required to be taken alongwith her for her honeymoon. And upon their asking, she handed over her entire istridhan/jewellery to her husband, father in law and mother in law. Further she alleged that after she came back from her honeymoon, her husband threatened her that if she wanted to live happily with him she had to bring Rs. 5 lacs from her father. Next day complainant came to her parental home with her brother and narrated the whole story to her parents, but her parents were not in a position to fulfill their demands therefore, she had to FIR No. 346/2005 State Vs Sudhir Jain 8 come back empty handed with her husband and as soon as she reached her matrimonial home, her mother in law pushed her by holding her hair for not bringing cash as demanded by them. Thereafter, her husband dragged her to bed room where she was beaten up by her husband, sisters in law Sushma Jain and Suman Jain with fists and blows and they also started abusing her parents and also tried to strangulate her. She further alleged that on the next day she found that her sister in laws Sushma Jain, Suman Jain, Alka Jain and her jethani Anu Jain were wearing her jewellery which were given to her by her parents and when she enquired about said jewellery, they got annoyed and started abusing her parents. Thereafter, she was again subjected to beatings by her husband, mother in law, father in law, sister in laws, jeth and jethani. She further alleged that during the 15 days of her stay in her matrimonial house she was subjected to constant physical and mental torture to the extent that she even thought of committing suicide and on 8.5.2000 she was turned out of her matrimonial house by her husband and other in laws in wearing clothes with a demand to get Rs. 5 lacs from her father.
17. Admittedly all the sister in laws/Nanad's of the complainant were already married prior to her marriage with accused no.1 and were living in their matrimonial homes at different places. In her entire complaint dated 17.6.2001, the complainant has nowhere disclosed as to on what date, month or occasion the said sisters in law had the occasion to visit her in her matrimonial home. Even in her statement U/s 161 Cr.P.C. wherein she has come up with entirely different story, the complainant has nowhere disclosed as on what occasion the said sister in laws, who were admittedly living separately had come to visit her in her matrimonial home. The complainant has raised vague and general allegations by alleging that all her in laws raised demand of Rs. 5 lacs and they all subjected her to beating by fists and blows.
18. It is pertinent to observe that marriages may break for numerous reasons. Sometime they break for lack of harmony between two families or for temperamental differences between the husband and wife and sometime FIR No. 346/2005 State Vs Sudhir Jain 9 due to huge gap between financial and social status of two families. But now a day, there is a tendency to convert each case of broken marriage into a case of dowry related harassment. The tendency of complainant to implicate entire family of husband has been put too much deprication by the Hon'ble Supreme Court as well as our own High Court in various judicial pronouncement. Reliance placed Chander Kanta Lamba & Ors. Vs. State & Ors. Crl. Rev.P. No. 267/2008 wherein, Hon'ble Delhi High Court has observed that:-
"whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or even legal advise to make all kinds of wild and reckless allegations against the entire family of the husband."
19. In the aforesaid case also the complainant had implicated all the four married sisters in law for the charges U/s 498-A IPC. It was further observed in said judgment that :
"the court has to be very sensitive and it should not get swayed by emotions which the complainant may be suffering from with a view to put persons or relatives who are totally unconnected with the incident to the facing of the trial in itself in present times is a great deal of punishment especially in the light of the fact that the same continues endlessly for year together on account of heavy load on the learned MM."
20. Taking note of the common tendency of complainant to implicate the entire family of their husband in case of dowry related harassment, Hon'ble Supreme Court in judgment titled Preeti Gupta & Another Vs. State of FIR No. 346/2005 State Vs Sudhir Jain 10 Jharkhand & Anr. AIR 210 SC 3363 has recommended for suitable changes in the existing law. In said judgment it was held that :
"It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bonafide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times even after the conclusion of criminal trial, it is difficult to ascertain the real truth.
The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection. Experience FIR No. 346/2005 State Vs Sudhir Jain 11 reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties.
The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law."
21. Even in the case in hand, it appears that complainant's actual grievances are against her husband and the persons living in her matrimonial home i.e. her father in law, mother in law, Jeth and Jethani but in her zeal to harass the husband and parents she has implicated the entire family even including distant relatives. It seems highly improbable that accused Sudhir Jain and Shashi Jain (uncle and aunty of complainant's husband), brother in law Virender Jain and his wife Smt. Sushma Jain, brother in law Sushil Jain and his wife Smt. Suman Jain who are happily married and are living separately at different places would have been present in the matrimonial house of the complainant on the very same date and would have simultaneously subjected her to beatings in furtherance of their alleged unlawful demands to be fulfilled by the complainant. Even otherwise said accused persons could not be said to be the beneficiaries of said unlawful demands which the complainant was allegedly asked to fulfill. In view of said facts and circumstances, I am of the opinion that no prima facie case for the offence U/s 498-A is made out against any of the said accused. Qua accused Manish Jain (husband), Smt. Vidhya Jain ( Mother in law ), Sanjeev FIR No. 346/2005 State Vs Sudhir Jain 12 Jain (Jeth) and Anu Jain (Jethani) who were living in the same house with the complainant and her husband, the allegations in the original complaint though are unspecific but considering the fact that they all were residing with complainant, the possibility of complainant being subjected to harassment at their hands on account of dowry cannot be ruled out outrightly. Furthermore, the complainant has come out with detailed allegations against said accused in her supplementary statement, though the story put forward therein is completely different, but in my view prosecution should get an opportunity to clarify said contradiction in complainant's versions recorded at two different times by leading evidence.
22. Considering the aforesaid specific allegations, a prima facie case for the offence u/s 498A IPC is made out against said four persons namely Manish Jain (husband), Smt. Vidhya Jain ( Mother in law ), Sanjeev Jain (Jeth) and Anu Jain (Jethani).
23. Qua the offence under section 406 IPC complainant has failed to narrate as to what was entrusted to whom or was misappropriated by whom.
It is a settled proposition of law that for making out a case U/s 406 IPC all the essential ingredients such as entrustment or dominion over the articles, demand for return of goods entrusted and refusal to return or misappropriation of goods on the part of the accused persons have to be fulfilled. However in view of judgment of Hon'ble Supreme Court in the judgment tilted Reshmi Kumar Vs Mahesh Kumar Bhoda 1197 (2) SCC 397 presumption of entrustment in favour of husband and his parents exists in law.
24. In Bhai Sher Jang Singh Vs. Virender Kaur 1976 Cr. L.J. 493, P&H High Court, it was observed as follows:-
"It might be that some of the articles which are presented to her are for the use of both the spouses but the ornaments and things of the like nature are certainly meant for her and her alone.
When she makes an allegation in the complaint that either her husband or her parents in law FIR No. 346/2005 State Vs Sudhir Jain 13 converted to their own use the comments forming the part of her stridhan which she had entrusted to them, the Court has to give legal effect to such allegation and to assume that such ornaments had been made the subject matter of criminal breach of trust. It is settled law that even in a criminal complaint the complainant is under no obligation to plead the legal effect of the allegations made. All that is required is that the facts constituting a complaint should be specifically mentioned so that the Court may be able to perform its duty of punishing the accused under the appropriate provision of law if such allegations are made out. Furthermore, in a case like this a complaint cannot be quashed without giving the aggrieved wife an opportunity of proving that the ornaments had been given to her at the time of her marriage for her use only".
25. In view of the aforesaid discussion, accused Sanjay Jain (brother in law/Nandoi), Alka Jain (Sister in law/Nanad), Sushil Kumar Jain (brother in law/Nandoi), Suman Jain (sister in law/Nanad) Virender Jain (brother in law/Nandoi), Sushma Jain (Sister in law/Nanad), Sudhir Jain (Chacha Sasur) and Sashi Jain (Chachiya Saas) are discharged for both the offences punishable U/s 498-A/406 IPC.
26. For want of specific allegations, accused Sanjeev Kumar (brother in law/Jeth) and Anu Jain (Sister in law/Jethani), deserves to be discharged for the offence punishable U/s 406 IPC. Both the said accused are accordingly discharged for the offence punishable U/s 406 IPC.
Put up for framing of charge on 17.9.2011.
Announced in the Open Court (Sunena Sharma) On this 14th day of July, 2011. Metropolitan Magistrate/Mahila Court (E) FIR No. 346/2005 State Vs Sudhir Jain 14 FIR NO.:346/2005 U/S 498-A/406/34 IPC P.S. Shakarpur 14.7.2011.
Present: Ld. APP for State.
Vide my separate detailed order dictated and announced in the open court accused Sanjay Jain (brother in law/Nandoi), Alka Jain (Sister in law/Nanad), Sushil Kumar Jain (brother in law/Nandoi), Suman Jain (sister in law/Nanad) Virender Jain (brother in law/Nandoi), Sushma Jain (Sister in law/Nanad), Sudhir Jain (Chacha Sasur) and Sashi Jain (Chachiya Saas) are discharged for both the offences punishable U/s 498-A/406 IPC.
For want of specific allegations, accused Sanjeev Kumar (brother in law/Jeth) and Anu Jain (Sister in law/Jethani), are discharged for the offence punishable U/s 406 IPC and accused Manish Jain is charged for the said offence. A prima facie case for the offence u/s 498A IPC is made out against four accused namely Manish Jain (husband), Smt. Vidhya Jain ( Mother in law ), Sanjeev Jain (Jeth) and Anu Jain (Jethani).
Put up for framing of charge on 17.9.2011.
FIR No. 346/2005 State Vs Sudhir Jain