Delhi District Court
In Re vs ) State (Nct Of Delhi) on 14 August, 2018
Crl. Revision No. 54/2018
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Revision No. 54/2018
CNR No. DLWT010012122018
In re:
Sh. Dheeraj Vashist,
S/o Sh. Jagat Mohan Sharma
R/o 210 F MIG Green Flat,
Rajouri Garden, New Delhi110027 .........Revisionist
Versus
1) State (NCT of Delhi)
2) Smt. Indu Vashist
D/o Sh. K.D. Sharma,
R/o 161C, MIG Red Flats,
SFS DDA Flats, Rajouri Garden,
New Delhi ........ Respondents
Date of filing of revision petition : 07.02.2018
Date on which arguments were heard : 04.08.2018
Date of pronouncement of judgment : 14.08.2018
JUDGMENT:
1. This revision petition impugns the order dated 10.11.2017 passed Dheeraj Vashist v. State Page No. 1/ 12 Crl. Revision No. 54/2018 by the Ld. MM (Mahila Court04), West in State case arising out of FIR No. 693/2013 under Section 498A/406/34 IPC registered at P.S. Rajouri Garden whereby the charge for the offences punishable under Section 498A/406/34 IPC was directed to be framed against the revisionist.
2. Brief facts relevant for the disposal of the revision petition are that the above mentioned FIR was registered against the revisionist and his parents on the complaint lodged by his wife Smt. Indu Vashist on 12.02.2014. After the completion of investigation, police filed the charge sheet against them. On 23.02.2016, the trial court took the cognizance of the offences and summoned the revisionist as well as his parents (i.e. co accused persons).
3. While passing the impugned order, the trial court found prima facie case for framing charges for the offences under Section 498A/34 IPC against the revisionist and his parents and for the offence under Section 406 IPC against the revisionist only. The charges as per the impugned order were framed on 09.01.2018. Aggrieved with the order on charge against him, the revisionist has approached this court.
Dheeraj Vashist v. State Page No. 2/ 12 Crl. Revision No. 54/20184. The impugned order has been assailed by the counsel for the revisionist on the ground that the same is a cryptic order passed by the trial court without giving any reasons and considering the submissions advanced on behalf of the revisionist. He argued that the trial court not only failed to appreciate that the allegations of cruelty levelled by the complainant are general and vague in nature which are not sufficient to attract Section 498A IPC but also overlooked the fact that the said allegations are false and frivolous and had been disbelieved by the Family Court while passing the judgment dated 22.07.2017 in Guardianship Petition No. 136/14 between the parties. He submitted that infact, the revisionist is a victim and he has been falsely implicated by the respondent no.2/wife, who indulged in extra marital affairs and left the matrimonial house on 29.10.2013 without caring for the minor girl child. He submitted that at the time of leaving the matrimonial house, the respondent no.2 had taken away all her belongings and jewellery and that information in this regard was duly given to the police by the revisionist on 01.12.2013. He argued that for the failure of the complainant to disclose either the date and detail of the articles allegedly entrusted to the revisionist or the date of refusal to return the same on demand, the offence under Section 406 IPC is also not made out against the revisionist. On the basis of the Dheeraj Vashist v. State Page No. 3/ 12 Crl. Revision No. 54/2018 above submissions, it has been sought that the order dated 10.11.2017 be set aside and the revisionist be discharged of the offences under Section 498A/406/34 IPC.
5. On the other hand, Ld. APP for State, assisted by the counsel for the respondent no.2/complainant, submitted that there are specific allegations of harassment in connection with the demand of dowry as well as misappropriation of istridhan against the revisionist and that based upon the proper appreciation of facts and circumstances of the case, the trial court rightly ordered for framing of charges against him. It was argued that besides the fact that the judgment dated 22.07.2017 in Guardianship Petition has been challenged before the Hon'ble High Court of Delhi by the respondent no.2/complainant, there is no illegality or infirmity in the impugned order and therefore, the revision petition is liable to be dismissed.
6. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go into the probative value of the material on Dheeraj Vashist v. State Page No. 4/ 12 Crl. Revision No. 54/2018 record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. Even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of commission of that offence.
In Union of India v. Prafulla Kumar Samal AIR 1979 SC 366, the Hon'ble Apex Court laid down the following principles to be kept in mind while considering the aspect of charge:
(i) That the Judge while considering the question of framing the charges 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;
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;
(iii) 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; and Dheeraj Vashist v. State Page No. 5/ 12 Crl. Revision No. 54/2018
(iv) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court can not act merely as a PostOffice or a mouth piece 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 weigh the evidence as if he was conducting a trial.
7. Before going into the factual aspect of the case, it would be appropriate to note the essential ingredients of Sections 498A & 406 IPC.
According to Section 405 IPC, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person to do so. Thus in the commission of offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The Dheeraj Vashist v. State Page No. 6/ 12 Crl. Revision No. 54/2018 second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
Section 498A IPC prescribes punishment for subjecting a woman to cruelty by her husband or relative of husband. The term 'cruelty' has been defined in the Explanation appended to the said Section, to mean: (i) 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 health whether mental or physical of the woman; or (ii) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, the consequences of cruelty, which are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand are required to be established in order to bring home an offence under Section 498A IPC.
8. Upon testing the First Information Report, statements recorded Dheeraj Vashist v. State Page No. 7/ 12 Crl. Revision No. 54/2018 under Section 161 CrPC and other material on record on the touchstone of the principles laid down by the Superior Courts, there can be no doubt that there exist the grounds to presume that the revisionist has committed the offences under Section 498A/406/34 of Indian Penal Code. At this stage, the case of the prosecution can not be thrown out by disbelieving the allegations levelled by the complainant. From a bare reading of the complaint lodged by the complainant, which is the foundation of the case, it is seen that there are clear and specific accusations against the revisionist. Some of the specific incidents narrated by the complainant are that after the roka ceremony (on 02.04.2001) and till the marriage (on 09.12.2001), her parents and brothers had given various expensive and branded gifts to her husband and in laws but they were not satisfied with the same and rather used to complain; that after the marriage, she was not welcomed in the matrimonial home and rather her parents in law took away all her jewellery, gifts, envelops containing the money received by her; that on the honeymoon trip to Manali, her husband indulged in excessive drinking during the entire trip; that from the beginning of the marriage, her husband and in laws used to harass, humiliate and torture her on various issues including for not bringing huge cash and car in the marriage; that whenever she objected to the Dheeraj Vashist v. State Page No. 8/ 12 Crl. Revision No. 54/2018 cruel attitude of her husband and in laws, she used to be given beatings by them jointly and severally; that the total cash of Rs. 3 lac received by her during the marriage ceremonies was invested by her husband at the post office under the monthly income scheme and the interest amount of Rs. 2000/ per month was also taken away forcibly by her husband; that in March, 2002, she was thrown out of the matrimonial home and was taken back after 15 days by her husband; that in September, 2002, when she demanded money for purchasing some personal things from her husband, she was pushed in the stair case by him as a result of which she sustained injuries; that her husband always doubted her character and used to make false accusations compelling her to change her job frequently; that on the birth of the girl child on 03.02.2004, she was cursed for delivering a girl child; that after shifting to a separate new flat in November, 2007, her husband continued to scold and beat her especially when her inlaws visited them; that on the insistence of her husband, her father gifted a Maruti 800 car in February, 2009; that on 31.10.2010, she found her husband in a compromising condition with a girl in the house; that on 19.10.2013, on the insistence of her husband, her father gave money for purchase of washing machine, refrigerator etc.; that on 26.10.2013, her in laws visited her matrimonial house and Dheeraj Vashist v. State Page No. 9/ 12 Crl. Revision No. 54/2018 asked her to bring Rs. 5 lac as Diwali Gift from her brothers and on her refusal to do so, they gave beatings to her; that on the provocation of her in laws, her husband also gave beatings to her with kicks and belt causing grievous injury to her; that she was confined in a room for three days without food and medicine and it was only on 30.10.2013 that she was able to come out of the house; and that when her parents tried to talk to her husband and in laws, they misbehaved with her parents and leveled false allegations against her.
A perusal of the trial court record shows that in support of the allegation qua the incident dated 26.10.2013, copy of medical dated 30.10.2013 of the complainant has also been made part of the charge sheet. Needless to say, the genuineness of the allegations leveled by the complainant and her medical record can be tested only during the course of trial. Though the counsel for the revisionist has vehemently relied upon the judgment dated 22.07.2017 passed by the Family Court in Guardianship Petition to seek discharge, however, a perusal thereof shows that the court had refrained from giving any categorical finding on the alleged adulterous relations of the respondent no.2/ complainant. Even though the incident qua the confinement of the respondent no.2 for a period of three days Dheeraj Vashist v. State Page No. 10/ 12 Crl. Revision No. 54/2018 i.e. 26.10.2013 to 29.10.2013 was disbelieved but no observation qua the medical document dated 30.10.2013 was returned. Infact, the allegations of cruelty and harassment for demand of dowry were not even the subject matter before the Family Court. Even otherwise, the said judgment has not attained finality and is under challenge before the Hon'ble High Court of Delhi.
In view of the above specific allegations and the documents on record, the trial court rightly formed the opinion that prima facie case was made out for framing charge for the commission of offence under Section 498A IPC against the revisionist.
9. As far as the charge for the offence under Section 406 IPC is concerned, it is pertinent to observe that the complainant has specifically alleged that the cash of Rs. 3 lac, which was received by her during the marriage ceremonies, was invested in monthly income scheme of Post Office by the revisionist and that after the completion of tenure of investment, the entire amount was retained by him. Apart therefrom, it is not in dispute that the complainant was residing with the revisionist in the matrimonial home and that she left the matrimonial home on 30.10.2013. Though the counsel for the revisionist has Dheeraj Vashist v. State Page No. 11/ 12 Crl. Revision No. 54/2018 contended that at that time, the complainant had taken away all her belongings and istridhan articles, however, it is a matter of record that during the course of investigation, recovery of some of the istridhan articles as per seizure memo dated 11.04.2015 was effected at the instance of the revisionist. Considering the same, at the stage of charge, it can be safely assumed that the revisionist was having dominion or control over the istridhan articles of the complainant and that he had failed to return the same. Hence, the trial court was justified in opining that the charge for the offence under Section 406 IPC is made out against the revisionist.
10. In the light of above discussion, I find no infirmity or illegality in the order dated 10.11.2017 passed by the Ld. MM. The revision petition is without merits and is, accordingly, dismissed.
File of revision petition be consigned to record room.
Digitally signed SMITA by SMITA GARG Date: GARG 2018.08.16 17:16:33 +0530 Announced in the open court (Smita Garg) on 14.08.2018 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi. Dheeraj Vashist v. State Page No. 12/ 12