Delhi District Court
(3) Smt. Sumitra Devi Dhawan vs The State on 2 March, 2010
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IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE:01/SOUTH
PATIALA HOUSE COURTS, NEW DELHI
Criminal Revision No. 284/2009
Date of Institution: 14/10/2009
(1) Smt. Darshna @ Prabha
W/o Sh. Prempal Maini
R/o H.No. B-28, Sharda Puri
Ramesh Nagar, New Delhi
(2) Smt. Raj Naini Dhawan
W/o Sh. Nageen Chand Dhawan
R/o H.No. Y-30, Subhash Park
Uttam Nagar, New Delhi
(3) Smt. Sumitra Devi Dhawan
W/o Sh. Ram Prakash Dhawan
R/o H.No. WZ-37, Mukhram Park
Tilak Nagar, New Delhi ..........Petitioners
Vs.
The State ..........Respondent
Criminal Revision No. 298/2009
Date of Institution: 02/12/2009
Sh. K.D. Kapoor
S/o Late Sh. H.D. Kapoor
R/o N-14/8, DLF, Phase-II
Gurgaon, Haryana ..........Petitioner
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Vs.
The State ..........Respondent
Criminal Revision No. 299/2009
Date of Institution: 04/12/2009
Smt. Parveen Kapoor
W/o Kanwal Dass Kapoor
C/o Sh. Sunil Sharma
DDA Flats (CSPU) No.31-33
Sarv Priya Vihar
New Delhi-110016 ..........Petitioner
Vs.
(1) The State
(2) Sh. K.D. Kapoor
S/o Late Sh. H.D. Kapoor
R/o N-14/8, DLF, Phase-II
Gurgaon, Haryana
(3) Smt. Poonam Kapoor
D/o Sh. Surender Kumar
W/o Sh. Kanwal Dass Kapoor
R/o H.No. H-14/8, DLF Phase-II
Gurgaon, Haryana
(4) Smt. Darshna @ Prabha
W/o Sh. Prempal Maini
R/o H.No. 28, Sharda Puri
Ramesh Nagar, New Delhi
(5) Smt. Raj Naini Dhawan
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W/o Sh. Nagira Chand Dhawan
R/o H.No. Y-30, Subhash Park
Uttam Nagar, New Delhi
(6) Smt. Sumitra Devi Dhawan
W/o Sh. Ram Prakash Dhawan
R/o H.No. WZ-37, Muktiram Park
Tilak Nagar, New Delhi
(7) Sh. Prem Pal Maini
S/o Late Sh. Bal Ram
R/o H.No. 28, Sharda Puri
Ramesh Nagar, New Delhi
(8) Sh. Nageen Chand
S/o Sh. Heera Lal
R/o H.No. Y-30, Subhash Park
Uttam Nagar, New Delhi
(9) Sh. Ram Prakash Dhawan
S/o Late Sh.Heera Lal Dhawan
R/o H.No. WZ-37, Muktiram Park
Tilak Nagar, New Delhi ..........Respondents
Date when common arguments were
heard in three revision petitions : 31/01/2010
Date of common Order : 02/03/2010
ORDER
By this common order, I shall decide the three revision petitions referred above as common question of facts and substantially common questions of law are involved in these three revision petitions arising out of common impugned order page 4 of 14 dated 2/9/2009 on the point of charge passed by learned trial court. The arguments on both sides in these revision petitions are also addressed jointly as the learned counsel for the parties are common in these three revision petitions. I am dictating this common order in criminal revision No. 284/2009 and the other two revision petitions shall be disposed of accordingly.
The brief facts giving rise to the present three revision petitions are that one of the petitioners in revision petitions namely Praveen Kapoor lodged a complaint with the police alleging several offences committed by eight accused persons, namely, Darshna, Prem Pal Maini, Smt. Poonam, Kanwal Dass Kapoor, Nageen Chand, Smt. Raj Naini Dhawan, Ram Prakash Dhawan and Smt. Sumitra Devi Dhawan. These eight accused persons were challaned for the offences under sections 498A/494/506/327/420 IPC but the learned trial court held the prima facie case for framing charges against the following four accused persons for the following offences as given in the table below is made out:
Name & No. of Accused Charges under IPC 1. Smt. Dharshna @ Prabha (sister) Section 120B IPC 1. Kanwal Dass Kapoor (husband) Sections 498A/494/120B IPC 6. Smt. Raj Naini Dhawan (sister) Section 120B IPC 8. Smt. Sumitra Devi (sister) Section 120B IPC
The other accused persons who are brothers in law of the complainant and one Poonam the alleged second wife of husband of the complainant were page 5 of 14 discharged by impugned order. It is also pertinent to note that the mother Kamlesh and father Surinder Kumar of respondent Poonam, the alleged second wife of KD Kapoor, were also summoned by order dated 4/11/2004 by the learned trial court but on revision petition being filed by them in Criminal Revision No. 115/2006 the learned Sessions Court set aside the order of the trial court dated 4/11/2000 for summoning the parents of respondent Poonam. The petitioner Praveen Kapoor the aggrieved wife and complainant has challenged the impugned order for framing charges against these four accused persons who were discharged and also charge under section 498A IPC etc. against the sisters of the husband of the complainant.
It is argued on behalf of aggrieved wife Praveen Kapoor that the learned trial court has ignored the material brought on record by the prosecution in the complaint, in the statement witnesses recorded by investigating officer and other documentary evidence. This material shows there is sufficient ground for proceeding against all the accused persons or to be presumed that they have committed offences alleged to raise grave suspicion against them. Therefore, all the accused persons are liable to be charged under sections 498A/494/120B/406/420/506 IPC. Reliance is placed upon the following authorities:
1. State of Bihar vs. Ramesh Singh (1977) 4 Supreme Court Cases 39.
2. Kallu Mal Gupta vs. State 82 (1999) Delhi Law Times 609.
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3. Rajbir Singh vs. State of UP & Anr. (2006) 4 Supreme Court Cases 51.
4. Pawan Kumar & Others vs. State of Haryana (1998) 3 Supreme Court Cases 309.
It is argued on behalf of the accused K.D. Kapoor and other accused persons shown in the challan that the offence under section 494 IPC is not made out as complainant or any other witness has not alleged about alleged second marriage that in valid marriage by performing all the ceremonies including saptapadi. In support of the argument reliance is placed upon the authorities:
1. Smt. Laxmi Devi vs. Satya Narayan & Ors. Supreme Court of India Criminal Appeal No.314 of 1981 Decided on 09.08.1994.
2. Bhaurao Shankar Lokhande & Anr. vs. The State of Maharashtra & Anr. AIR 1965 Supreme Court 1564 (V 52 C 265).
3. Natari Parvati vs. State of A.P. & Ors. 2004 (4) Crimes 300 Andhra Pradesh High Court.
A technical point is also raised. It is argued that as per section 198 CrPC only aggrieved wife can file complaint before the court of learned Metropolitan Magistrate who can take cognizance of the offence under section 494 IPC. It is argued that taking cognizance of this offence on the police challan is not legally permissible as per section 198 CrPC so accused K.D. Kapoor is also entitled to be discharged on this technical ground alone. The sisters of K.D. Kapoor are also entitled to discharge under section 120B IPC on this ground.
page 7 of 14 It is argued that the alleged second wife Poonam cannot be said to have demanded any dowry or harass the aggrieved first wife nor it is her second marriage. Therefore, she cannot be charged with any offence and was rightly discharged by learned trial court . It is argued that accused K.D. Kapoor is entitled to discharge for the offence under section 494 IPC and his sisters are also entitled to be discharged for the offence under section 120 B IPC. It is argued that brothers-in-law of the accused KD Kapoor were rightly discharged by the learned trial court by impugned order. At the most the charge under section 498 A IPC is made out against accused K.D. Kapoor and all other accused persons are either rightly discharged by the learned trial court or should have been discharged. Reliance is police upon the authority Savitri Devi versus Ramesh Chand and others 104 (2003) DLT 824.
I have heard the learned counsel for parties in the three revision petitions and have gone through the written arguments filed on behalf of the petitioner wife Praveen Kapoor and have gone through the authorities cited from both sides, trial court record and relevant provisions of law.
I first take up the question as to the bar under section 198 CrPC for the offence under section 494 IPC. It is true that as per section 198 CrPC so far is relevant for the offence under section 494 IPC the complaint can be made by aggrieved wife, her father, mother, brother, sister, son or daughter etc. The page 8 of 14 cognizance of offence by the magistrate is barred unless the complaint is filed by an aggrieved person. Another question though not raised is the offence under section 494 IPC is a non-cognizable offence and the police cannot investigate a non-cognizable offence without permission of the magistrate. Therefore, it is to be seen whether in the light of section 198 CrPC the offence under section 494 IPC being also non-cognizable offence, was the learned trial court authorised to take cognizance of the offence under section 494 IPC.
The section 155 (4) CrPC comes to the rescue of the prosecution according to which when a case relates to two or more offences of which at least one is cognizable offence, the case is to be taken as cognizable case notwithstanding that other offences are non-cognizable. In such a situation a non-cognizable offence can also be treated as cognizable (See State of Orissa v Sharad Chandra Sahu AIR 1997 SC 1, 1996 Cri LR 786 (SC)). Therefore, when the police has investigated the offences punishable under Sections 498A, 109, 494 and 120B IPC, taking cognizance by the Additional Chief Judicial Magistrate of the offences including the offence under Section 494 IPC, on the basis of the police report was found not without jurisdiction {See Suresh Kumar and Ors v State of Rajasthan and Ors 1998 Cr LJ 601 (Raj)}. The Supreme Court in Praveen Chandra Mody v State of Andhra Pradesh AIR 1965 SC 1186, (1965) (2) Cri page 9 of 14 LJ 250 has held that while investigating a cognizable offence and presenting a charge sheet for it, the police are not debarred from investigating any non- cognizable offence arising out of the same facts and including them in the charge sheet. The court was thus clearly in error in quashing the charge under Section 494 IPC, on the ground that the trial court could not take cognizance of that offence unless a complaint was filed personally by the wife or any other near relation contemplated by cl (c) of the proviso to Section 198 (1) Cr.PC. Hence, I hold that the cognizance of the offences under section 494/120B IPC was rightly taken by learned Metropolitan Magistrate, more so, when the complaint to the police is made by the aggrieved wife herself which led to police investigation of the case on which the cognizance is taken by the learned trial court.
As regards the arguments of learned counsel for petitioner/accused K.D. Kapoor that the ceremonies for a valid marriage are not alleged nor any incriminating material is present on the record to justify charge under section 494 IPC against accused K.D. Kapoor. The Lakshmi Devi's case (supra)Natari Parvati 's case (supra) and Bhaurao Shankar Lokhande's case (supra) are not applicable at the stage of framing charge and do not help the petitioner/accused K.D. Kapoor for the simple reason that in the complaint dated 13/10/2000 made by the aggrieved wife to the Additional Commissioner of Police (CAW, Cell) it is alleged that the accused and K.D. Kapoor has made confession to her regarding page 10 of 14 the second marriage and it is also alleged that the alleged second wife Poonam informed the complainant that the date of birth of her sons and are also stated that her marriage with accused K.D. Kapoor was performed according to Hindu marriage rites and ceremonies, secretly in her own home in the presence of her husbands three sisters and brother-in-law, his late mother, her own present and some of her relations. Therefore, prima facie the case for the offence under section 494 IPC against petitioner/accused K.D. Kapoor is certainly made out and learned trial court rightly charged him for the offence under section 494 IPC. However, I am of the view that prima facie case for the offence under section 120B IPC is also made out against the alleged second wife Poonam for committing the conspiracy for offence under section 494 IPC along with accused K.D. Kapoor and his three sisters. To that extent the impugned order is improper as the charge under section 120B IPC should also have been against accused Poonam also notwithstanding the fact that it was her first marriage with accused K.D. Kapoor she cannot be held liable or charged with the offences under section 498 A IPC and other offences alleged.
Relying upon Ramesh Singh's case (supra), Rajbir Singh's case (supra) and Kallu Mal Gupta's case (supra) it is rightly argued by learned counsel for aggrieved wife Praveen Kapoor that the court has to see that there are sufficient grounds for proceeding against the accused or perusing that the accused had page 11 of 14 committed an offence, at the stage of charge, and also the fact that the material produced before the trial court should have raised grave suspicion. But at the same time the observations of our Hon'ble High Court in Savitri Devi's case (supra) relied upon on behalf of accused persons have also to be noticed wherein it is held that there is a growing tendency amongst the woman which is further perpetuated by their parents and relatives to roping each and every relative-including miners and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sister-in-laws, unmarried brothers, married uncles and in some cases grandparent or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under section 498A/406 IPC whether there are vague, unspecified or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon the woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of police and agencies like crime against woman cell to hound them with the threat of arrest making them run here and there and force them to hide at their friend or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. It was also observed that it is rightly said sometimes the remedies are worse than the perils or disease. It was also held that often innocent persons are also trapped or brought in with ulterior motives and page 12 of 14 therefore this places and arduous duty on the court to separate such individuals from offenders. Hence the courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinised the circumstances with utmost care.
In Kans Raj versus state of Punjab and others 2000 II A.D. (Cr.) SC 481 it was held that for the fault of the husband , the in-laws or other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt act attributed to the persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths.
Therefore, when the learned trial court has analysed the facts and circumstances of the case to arrive at the conclusion whether prima facie case for the offences against all the accused persons is made out or not, but for the irregularity in appreciating that accused Poonam should also have been charged under section 120B IPC the learned trial court has meticulously followed the above dictates of Kans Raj's case (supra and Savitri Devi's case (supra) by discharging the three brother-in-law's and the sisters of accused K.D. Kapoor of several offences alleged against them in the challan. By appreciating the fact that the allegations demand of dowry were made for the first time after about 15 years of marriage between K.D. Kapoor and the aggrieved wife Praveen Kapoor and the page 13 of 14 allegations of demand of dowry harassment or cruelty against other accused persons were not convincing except against accused K.D. Kapoor to charge him alone under section 498A IPC, it is rightly discharged the accused persons under section 406 IPC, 506 IPC 406 IPC by, 327 IPC by giving cogent reasons. The learned trial court has rightly charged accused K.D. Kapoor for the offences under section 494/498A/120B IPC and his three sisters for the offence under section 120 B IPC. It appears to have rightly discharged the other accused persons for the alleged offences except accused Poonam who should also have been charged under section 120B IPC along with three sisters of accused K.D. Kapoor.
In the light of the of the above discussion the learned trial court committed the material irregularity by not charging respondent/ accused Poonam for the offence under section 120B IPC and to that effect the impugned order dated 02.09.2009 by learned trial court is set-aside. The revision petition filed by petitioner Praveen Kapoor is ,therefore, partially allowed to the effect. Findings of learned trial court in all other respects need confirmation and do not require any interference in the revision petitions by Sessions Court. Therefore, the revision petition CR No. 298/2009 filed by KD Kapoor and the revision petition CR No. 284/2009 filed by Darshna Prabha are dismissed. The common order be sent to the server (www delhidistrictcourts.nic.in). The copy of the order be placed in the other two revision petition which are also disposed of accordingly by this, order.
page 14 of 14 The trial court record be returned along with the copy of this order. The parties shall appear before learned trial court on 10.3.2010. The file of the revision petitions be consigned to the record room.
Announced in the open court on
2nd day of March, 2010 (S. K. SARVARIA)
Additional Sessions Judge:01/South
Patiala House Court, New Delhi