Delhi District Court
1/8 State vs . Dharambir Bhardwaj Etc. on 4 February, 2013
1/8 State Vs. Dharambir Bhardwaj etc.
IN THE COURT OF MS. RACHNA TIWARI LAKHANPAL: MM
(MAHILA COURTS): ROHINI: DELHI.
State Vs. Dharambir Bhardwaj etc.
FIR No. 487/05
PS - S.P. Badli
04.02.2013
Present: Ld. APP for the State.
None for the accused persons.
1. Vide this order, I would take my decision for framing of charge.
2. I have carefully heard arguments on behalf of the parties and
also perused the record.
3. Ld. Defence Counsel has argued that in the present case charge
cannot be framed and all the accused persons are liable to be discharged as
there was no valid marriage and the same has been declared as null and
void. Even otherwise, the allegations made against the accused persons are
general in nature. No specific allegation has been made against the
accused persons. Therefore, prima facie there is no evidence against the
accused persons warranting section 498A & 406 IPC.
4. It is well settled that at the stage of framing the charge, the Court
has to prima facie consider whether there is sufficient ground for proceeding
against the accused. The court is not required to marshal the evidence and
record a finding that the materials collected by the prosecuting agency are
Contd.......
2/8 State Vs. Dharambir Bhardwaj etc.
sufficient or not for convicting the accused. If the Court is satisfied that a
prima facie case is made out for proceeding further, then a charge has to be
framed.
5. For better appreciation of facts Section 498A IPC is reproduced
as under:-
"Section 498A IPC provides as under;
498A. Husband or relative of husband of a woman subjecting
her to cruelty:
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 purpose of this section, "cruelty" means-
(a) any willful 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 heath (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
un-lawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
her such demand. "
6. The word 'harassment' in ordinary sense means to torment a
person subjecting him or her through constant interference or intimidation. If
such fermentation is done with a view to coerce any person and in this case,
the wife to do any unlawful act and in this case to meet the unlawful
Contd.......
3/8 State Vs. Dharambir Bhardwaj etc.
demand of property or valuable security, it amounts to "harassment" as
contemplated by S.498A. Word 'Coercion' means persuading or compelling
a person to do something by using force or threats. Thus to constitute
offence following ingredients/tests are essential:
(i) Woman should be tormented i.e. tortured either physically
or mentally through constant interference or intimidation.
(ii) Such act should be with a view to pursuade or
compel her to do something which she is legally or
otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel
or force her or her relatives to fulfill unlawful demands
for any property or valuable security.
7. In the instant case, admittedly a decree for nullity of marriage has
been passed by Sh. Pankaj Gupta, the then Ld. ADJ, Rohini Courts, Delhi,
vide order dated 07.08.2009. I have perused the judgment. In that
judgment, marriage of the complainant has been declared as null and void
on the ground of Section 12 of HMA as the marriage could not be
consummated owing to the impotence of the respondent i.e. accused
Dharambir Bhardwaj herein. The petition u/s 12 of HMA was filed by the complainant herein in the Family Courts. Considering the facts and circumstances of the judgment, I am of the view that accused cannot take advantage of his own wrong. In the present case, at the time when the complaint was filed, marriage was still in subsistence. The marriage has been declared void owing to the impotence of accused Dharambir Bhardwaj. This has not been declared as void abinitio. There is a difference between marriage which has been declared as void abinitio or marriage which has Contd.......
4/8 State Vs. Dharambir Bhardwaj etc. been declared null and void u/s 12 of HMA. U/s 12 of HMA, as mentioned in the judgment, factum of marriage was admitted by the accused himself and solemnization of marriage was proved in that judgment. Hence, I am of the view that because of this judgment, accused persons cannot take advantage in this case and cannot plead their discharge on the ground that marriage has been declared null and void by Family Courts on account of impotence and hence no offence is made out against the accused persons. Therefore, in view of the above discussion, I am of the considered opinion that offence u/s 406/498A IPC is maintainable against the accused persons.
8. However, on merits, it has been argued by the Ld. Defence Counsel that there are general allegations against other accused persons except accused/husband Dharambir Bhardwaj.
9. I have perused the record. In the instant case, there are specific allegations against accused Dharambir Bhardwaj (husband). Other accused persons are Sant Kumar (father in law), Radha Rani (mother in law), Nalin, Ravi and Sumit (brothers in law). As far as accused Radha Rani (mother in law) is concerned, there are specific allegations against her. There is specific mentioning of incident of beatings with specific role of the accused Radha Rani. There is specific mentioning of demand of geyser by this accused Radha Rani. Hence, prima facie offence u/s 498A IPC is made out against accused Radha Rani also. However, as far as other accused persons namely Sant Kumar (father in law), Nalin, Ravi and Sumit (brothers in law) are concerned, there are general and vague allegations against them. It has been generally alleged that accused persons used to pass Contd.......
5/8 State Vs. Dharambir Bhardwaj etc. remarks against the complainant and instead of stopping the accused persons, accused Radha Rani used to join hands along with them and started passing derogatory remarks against the complainant, her brother and mother. They used to taunt that the parents of the complainant are "Kangley". It has been further alleged that all the accused persons started beating the complainant on minor issues. She was allowed to take one cup of tea in the morning and one chapatti in the dinner and upon asking for more than one chapatti, accused Dharambir, Sant Kumar and Radha Rani used to beat the complainant. It has been further alleged that accused Sant Kumar used to abuse the complainant even after getting Rs.10,000/- and used to hit and knock the door of the bedroom after consuming liquor and used to shout abuses. These all are general and vague allegations. There are not at all specific allegations of demand of dowry with specific mentioning of date or occasion. No specific incident of beatings has been mentioned. There is no mentioning of any role of accused persons in the beatings, as alleged. Upon these general and vague allegations, applicability of Section 498A IPC cannot be attracted.
10. The complainant has further alleged an incident of 18.03.2005, where she mentioned that accused Ravi and Nalin tried to outrage her modesty. This is further bald allegation. No specification of role of accused persons have been mentioned. The complainant has not alleged as to in what manner they outraged the modesty of the complainant. It has not been mentioned that how they tried to overpower the complainant. Furthermore, it is the case of the complainant that she spent the whole night in fear and at about 4 a.m in the morning she came out of her room and telephoned her Contd.......
6/8 State Vs. Dharambir Bhardwaj etc. brother, who came there at about 7 a.m. She asked her brother to take her back as she was frightened and she could not became normal for quiet few days and thereafter she narrated her mother of the mishappening. Whereas, in her statement u/s 161 Cr.PC, she mentioned that one day i.e. On 19.03.2005, her brother came at her matrimonial home in the morning and she demanded all her articles back in front of her brother from all the accused persons but they did not return the dowry articles. She did not mention that her brother had come upon the call of the complainant. She did not mention the incident of outraging modesty. Instead, she was mentioning in the statement u/s 161 Cr.PC about harassment due to dowry demand because of which she had to leave the house in front of her brother, whereas in her original complaint she had mentioned that she was frightened because of incident of outraging modesty and could not become normal for quiet a few days and thereafter narrated the mishappening to her mother. Further, in her statement u/s 161 Cr.PC. complainant has tried to improve her case by levelling allegations of maruti car and one flat by the accused persons and further beatings upon refusal to meet such demand by the complainant. She has not mentioned at all about this demand in the original complaint which was duly typed complaint. When the complainant had filed duly typed written and well thought complaint before CAW Cell, it is apparent that to rope in all other relatives, she has added further allegations in statement u/s 161 Cr.PC which cannot be considered for the framing of charge against the accused persons in my considered opinion. Even otherwise, in the statement u/s 161 Cr.PC also, she has not mentioned the time period of demanding such dowry demand of maruti car and one flat. She has not mentioned specific date of beatings and role of all the accused Contd.......
7/8 State Vs. Dharambir Bhardwaj etc. persons. In whole of her original complaint, she was mentioning demand of geyser whereas altogether new demand has been mentioned in statement u/s 161 Cr.PC about maruti car and one flat. Therefore, in my view, prima facie no offence is made out in view of such improvements in statement u/s 161 Cr.PC against the above said accused persons. Upon the basis of complaint, there are general allegations against accused Sant Kumar, Nalin, Ravi and Sumit. Hence, they are discharged of the offence u/s 498A IPC.
11. However, as far as Charge U/s 406 IPC is concerned, Section 405 IPC is reproduced as under:-
Section 405 Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffer any other person so to do, commits "criminal breach of trust".
12. As far as offence under section 406 IPC is concerned it has not been specifically alleged by the complainant that on which specific date and occasion which accused person was entrusted with dowry articles and Istridhan. She has failed to mention any specific demand of return of dowry articles. Hence, in absence of any specific entrustment prima facie no offence under section 406 IPC is made out against the accused persons.
The bald assertion made in the complaint would not be sufficient to constitute offence U/s 406 IPC. It seems to be improbable that dowry articles were given to the other accused persons together. No list of dowry Contd.......
8/8 State Vs. Dharambir Bhardwaj etc. articles prepared at the time of marriage has been filed. Therefore all the accused persons are discharged U/s 406 IPC as no case is made out against them as contemplated in the above said section. However, accused Dharambir Bhardwaj being the husband falls within domain of an obvious implied entrustment without any specific need of formal entrustment. Hence, prima facie charge is made out against accused Dharambir Bhardwaj U/s 406 IPC.
13. Now to come up on 03.06.2013 for framing of charge. Charge under section 498A/34 IPC be framed against accused/husband Dharambir Bhardwaj and Smt. Radha Rani (mother in law) and charge u/s 406 IPC be framed against accused Dharambir Bhardwaj only. Other accused persons namely Sant Kumar, Nalin, Ravi and Sumit are discharged.
(RACHNA T. LAKHANPAL) MM/ROHINI/DELHI.
04.02.2013 Contd.......