Delhi District Court
) Sh. Shiv Kumar vs State (Nct Of Delhi) on 17 December, 2018
Crl. Revision No. 256/2018
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Revision No. 256/2018
CNR No.DLWT010075912018
In re:
1) Sh. Shiv Kumar,
S/o Sh. Surjeet Kumar
2) Sh. Surjeet Kumar,
S/o Late Sh. Tunna Ram
3) Ms. Anita,
W/o Sh. Surjeet Kumar
4) Sh. Adarsh Kumar,
S/o Sh. Surjeet Kumar,
All R/o C516, J.J. Colony,
Madi Pur, Delhi ........Petitioners
Versus
State (NCT of Delhi). ........ Respondent
Date of filing of revision petition : 23.08.2018
Date of pronouncement of judgment : 17.12.2018
JUDGMENT:
1. This revision petition under section 397 CrPC is directed against the orders dated 26.07.2018 and 02.08.2018 passed by the Ld. MM (Mahila Court01), West in State case arising out of FIR No. 835/2015 registered at P.S. Punjabi Bagh whereby charges Shiv Kumar & Anr. v. State Page No. 1/15 Crl. Revision No. 256/2018 for the commission of offences punishable under Section 498A/506/509/34 IPC were framed against all the petitioners and for the offence punishable under Section 406 IPC was framed against the petitioner no.1 only.
2. Brief background relevant for the disposal of the revision petition is that the above mentioned FIR was registered against the petitioners on 11.08.2015 on the basis of the complaint lodged by the complainant Komal. Petitioner no.1 is the husband, petitioners no. 2 & 3 are the parents in law and petitioner no.4 is the brother in law (dever) of the complainant. After the completion of investigation, charge sheet was filed against the petitioners. On 14.05.2016, Ld. MM took cognizance of the offences and summoned all the petitioners.
3. Opining that there is sufficient material on record against the petitioners, Ld. MM ordered on 26.07.2018 for framing of charges for the offences under Section 498A/506/509/34 IPC against all the petitioners and for the offence under Section 406 IPC against the petitioner no.1/husband only. Charges were accordingly framed against the petitioners on 02.08.2018.
Aggrieved therefrom, the petitioners are before this court.
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4. I have heard the counsel for the petitioners as well as APP for the State. Trial court record has also been perused.
5. The counsel for the petitioners has assailed the impugned order by contending that the trial court has framed the charges against the petitioners in a routine manner without evaluating the material on record and considering the settled legal principles as laid down by the Superior Courts. He submitted that while framing charge for the offence under Section 498A IPC against the petitioners, the trial court failed to appreciate that there is no allegation of unlawful demand for any property or valuable security against the petitioners except the petitioner no.2/mother in law and that even the allegations against the petitioner no.2 are general and vague in nature without disclosing any specific date and time of alleged demand. He argued that the trial court not only ignored the settled proposition of law that mere taunts for brining insufficient dowry or harassment of a woman without having any nexus with demand of dowry would not attract the penal provision of Section 498A IPC but also over looked the fact that the complainant has falsely roped in all the family members to fulfil personal vendetta due to marital discord with the petitioner no.1/husband. In support of his arguments, the counsel for the petitioners placed reliance upon Shiv Kumar & Anr. v. State Page No. 3/15 Crl. Revision No. 256/2018 following judgments:
(i) Neeraj Singh v. State, 138 (2007) DLT 152;
(ii) Sanjeev Kumar Aggarwal & Ors. v. State & Anr., II (2009) DMC
457;
(iii) Order dated 17.10.2012 passed by Hon'ble Supreme Court in Crl.
Appeal No. 1674/2012 titled as Geeta Mehrota & Anr. v. State of UP & Anr.;
(iv) Order dated 13.08.2010 passed by Hon'ble Supreme Court in Crl.
Appeal No. 1512/2010 titled as Preeti Gupta & Anr. v. State of Jharkhand;
(v) Order dated 07.10.2009 passed by Hon'ble Supreme Court in Crl.
Appeal No. 949/2003 titled as Neelu Chopra & Anr. v. Bharti;
(vi) Raj Pal Singh v. State of Haryana, II (2000) DMC 572; and
(vii) Order dated 21.08.2018 passed by Hon'ble Supreme Court in Crl.
Appeal No. 1045/2018 titled as K. Subba Rao & Ors. v State of Telangana & Ors.
Based on the above submissions, it has been urged that the petitioners deserve to be discharged of the offence under Section 498A IPC.
6. On the other hand, Ld. APP for State submitted that there are specific allegations of demand of dowry and harassment in connection with it against all the petitioners and that based upon Shiv Kumar & Anr. v. State Page No. 4/15 Crl. Revision No. 256/2018 the proper appreciation of facts and circumstances of the case as well as the material on record, the trial court rightly framed charge for the offence under Section 498A IPC against the petitioners.
7. Before going into the factual aspect of the case, it would be appropriate to advert to Section 498A IPC, which reads as under: "498A. Husband or relative of husband of a woman subjecting her to crueltyWhoever, 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 wilful 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
(b) 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. The above Explanation brings to fore that 'cruelty' as contemplated under Section 498A IPC, has two aspects. While clause (a) refers to the wilful conduct of the husband or his Shiv Kumar & Anr. v. State Page No. 5/15 Crl. Revision No. 256/2018 relatives towards the woman, clause (b) is relatable to harassment for demand of any property or valuable security. Hence, even though the harassment of a woman has no nexus with the demand of any property/dowry, it may still fall within the ambit of Section 498A IPC in view of clause (a) if the same is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health, whether mental or physical.
8. At this junture, it would also be relevant to refer to the guidelines laid down by the Hon'ble Apex Court to be kept in mind at the stage of framing of charge. 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 Shiv Kumar & Anr. v. State Page No. 6/15 Crl. Revision No. 256/2018 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
(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.
9. Upon testing the First Information Report, statements recorded 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 petitioners have committed the offence under Section 498A of Indian Penal Code. At this stage, the case of the prosecution can not be thrown out by disbelieving the averments or the allegations in the complaint lodged by the complainant with CAW Cell. In her complaint, the complainant has alleged that after some days of the marriage, which was solemnized on 11.12.2013, the petitioners started ill treating and using abusive language against her; that the petitioners no. 2 & 3 (i.e. the parents in law) used to give beatings to her and that they also Shiv Kumar & Anr. v. State Page No. 7/15 Crl. Revision No. 256/2018 used to instigate petitioner no. 1/husband against her upon which the petitioner no.1/husband used to beat her and threaten to kill her; that a child was born to the complainant on 16.10.2014 in a govt. hospital but on the very next day, the petitioners brought the complainant back to the house and gave beatings to her; that the petitioners asked the complainant to bring the money spent by them on the delivery and thus her parents sent a sum of Rs. 20,000/ in cash to the petitioners; that the petitioner no.2 made demand of gifts on the birth of child and threatened to kill the complainant if the demand was not met; that when her parents visited her matrimonial home with the articles, the petitioners no. 2 & 3 misbehaved with them and turned the complainant out of the matrimonial home after giving beatings to her. In her complaint, the complainant has mentioned and narrated the specific incidents. Marriage of the complainant was solemnized with the petitioner no.1 on 11.12.2013 and the complaint with CAW Cell was lodged by her on 13.04.2015 i.e. within one and half year of the marriage. It is not in dispute that after the marriage, the complainant had resided in the same house with the petitioners. In view of the allegations against the petitioners and the facts and circumstances of the case, the trial court rightly formed the opinion that prima facie case was made out for framing charge Shiv Kumar & Anr. v. State Page No. 8/15 Crl. Revision No. 256/2018 for the commission of offence under Section 498A IPC against the petitioners.
10. I have gone through the judgments relied upon by the counsel for the petitioners. There can be no dispute with regard to the proposition of law laid down in the said judgments but it needs little emphasis that the facts of the two cases can not be pari materia. In the judgments relied upon by the petitioners, the married sister in law or other relatives of the husband had been discharged either because the allegations against them were found to be vague and unspecific or they were residing separately from the matrimonial house of the complainant. However, in the case on hand, there are specific allegations regarding cruelty and harassment for demand of dowry against the petitioners and therefore, the judgments relied upon by the petitioners render no help to them.
11. Qua the charge for the offence under Section 406 IPC against the petitioner no.1/husband, the counsel for the petitioners has submitted that while passing the impugned order, the trial court not only overlooked the fact that the petitioner no.1/husband had given an admitted list of istridhan articles on 01.10.2015 and had offered to return the articles during the course of Shiv Kumar & Anr. v. State Page No. 9/15 Crl. Revision No. 256/2018 investigation but also that the complainant had herself refused to take back the istridhan articles in respect of which her statement recorded on 15.12.2015 is available on record. He placed reliance on Onkar Nath Mishra v. State reported as 2008 (2) SCC 561 to contend that where the complainant refuses to take back the istridhan articles upon an offer being made by the husband, offence under Section 406 IPC is not made out. He argued that since the complainant had also failed to furnish the details of the articles allegedly entrusted with the petitioner no.1, the trial court clearly erred in framing charge for the offence under Section 406 IPC against him.
12. 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 Shiv Kumar & Anr. v. State Page No. 10/15 Crl. Revision No. 256/2018 which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
13. In the case on hand, before being turned out, the complainant was residing in the matrimonial home with the petitioner no.1. The complainant has alleged that her istridhan articles were not returned by the petitioner no.1. Offer to return the istridhan articles, as per the admitted list, was made by the petitioner no.1 after the lodging of the complaint with CAW Cell by the complainant on 13.04.2015. Though the petitioner no.1 had offered to return the istridhan articles, however, there was a difference in the list of articles of the complainant and the admitted list given by the petitioner no.1. Further, a perusal of the statement of the complainant recorded on 15.12.2015 shows that instead of refusing to receive the same as submitted by the counsel for the petitioners, she had merely stated that she would receive the articles before the court. In view of the above material on record, the opinion of the trial court that charge for the offence under Section 406 IPC is made out against the petitioner no.1/husband only can not be faulted with.
14. The counsel for the petitioners has further contended that the Shiv Kumar & Anr. v. State Page No. 11/15 Crl. Revision No. 256/2018 trial court also fell in error in framing charge for the offence under Section 506 IPC against the petitioners in the absence of any allegation of criminal intimidation against the petitioners no. 2 to 4. He argued that mere expression of any words without any intention to cause alarm is not sufficient to attract Section 506 IPC and therefore, charge for the offence under Section 506 IPC could not have been framed against the petitioners. In this regard, he placed reliance on Manik Taneja v. State of Karnataka.
15. Offence of criminal intimidation has been defined in Section 503 IPC. A bare reading of the said provision shows that there must be an act of threatening another person of causing an injury to the person, reputation, or property of the person threatened or to the person in whom the threatened person is interested and that the threat must be with the intent to cause alarm to the person threatened or to cause that person to do or omit from doing any act which he is not legally bound to do or omit to do. In the present case, the complainant has specifically alleged in her complaint that the petitioners no. 2 & 3 (parents in law) used to give beatings to her and instigate the petitioner no.1/husband against her whereupon he also used to beat and threaten to kill her. Since the complainant was residing in the Shiv Kumar & Anr. v. State Page No. 12/15 Crl. Revision No. 256/2018 matrimonial home with the petitioners, there can be no doubt that the words/threats used by the petitioners coupled with their conduct of giving beatings were sufficient to cause alarm to her. Intention of the petitioners, being the mental element, has to be gathered from the facts and attending circumstances. At the stage of considering the aspect of charge, the above allegations are sufficient to make out a prima facie case for offence under Section 506 IPC.
16. As far as the charge for the offence under Section 509 IPC is concerned, the counsel for the petitioners has submitted that in the absence of any evidence or allegation indicating that any statement/imputations/gestures were made by the petitioners with the intention to insult the modesty of the complainant, the trial court erred in framing charge for the offence under Section 509 IPC against the petitioners. He placed reliance on Rupan Deol Bajaj v. K.P. S Gill, AIR 1996 SC 309 to contend that the ultimate test for ascertaining whether the modesty has been outraged is, in the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. He contended that since the complainant has failed to disclose the details of the verbal abuses or the foul words used against her by the petitioners, there was nothing on Shiv Kumar & Anr. v. State Page No. 13/15 Crl. Revision No. 256/2018 record to show that the words allegedly used by the petitioners were capable of shocking the sense of her decency and therefore, the petitioners ought to have been discharged of the said offence.
The complainant has specifically alleged that the petitioners used to hurl abuses on her. The very fact that she has complained against the same indicates that the said abuses had the effect of shocking the sense of her decency. Even though the exact words allegedly used by the petitioners have not been disclosed in the complaint, it needs little emphasis that the same can be elicited during the course of trial. Considering the same, no illegality or infirmity is found in the impugned order on this score.
17. The counsel for the petitioners has lastly contended that the impugned orders can not be sustained against the petitioner no.4 (i.e. the brother in law) as he was a minor at the time of commission of the alleged offences and that despite the plea of juvenility raised by him, the trial court proceeded to frame charges against him without conducting any inquiry. Alongwith the revision petition, the copy of Matriculation Certificate of the petitioner no.4 has been produced on record. As per the said document, the date of birth of the petitioner no.4 is 14.04.1997.
Shiv Kumar & Anr. v. State Page No. 14/15 Crl. Revision No. 256/2018 The marriage of the complainant with the petitioner no.1 was solemnized on 11.12.2013. She had left the matrimonial home in December, 2014. In view thereof, once the plea of juvenility had been raised by the petitioner no.4, the trial court ought to have conducted an inquiry into it and the said plea could not have been brushed aside by observing that during the investigation, it had not come on record that the petitioner no. 4 was a minor at the time of commission of the alleged offence. Hence, the impugned orders cannot be sustained qua the petitioner no. 4 and deserve to be set aside.
18. For the foregoing reasons, no infirmity or illegality is found in the orders dated 26.07.2018 and 02.08.2018 passed by the Ld. MM against the petitioners no. 1 to 3. However, the impugned orders are set aside against the petitioner no.4. Ld. MM is directed to decide the aspect of charges against the petitioner no. 4 after conducting an inquiry into the plea of juvenility raised by him.
With the above direction, the revision petition stands disposed of. File of revision petition be consigned to record room.
Digitally signed SMITA by SMITA
GARG
GARG Date:
2018.12.18
16:21:06 +0530
Announced in the open court (Smita Garg)
on 17.12.2018 Addl. Sessions JudgeFTC, (West)
Tis Hazari Courts, Delhi.
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