Allahabad High Court
Rajeev And Ors. vs Ram Kishan Jaiswal And Anr. on 9 November, 1992
Equivalent citations: I(1993)DMC233
JUDGMENT B.P. Singh, J.
1. The facts leading to this application for revision may briefly be stated as follows : Ram Kishan Jaiswal, opposite party No. 1, is resident of Chanakyapuri, Meerut Cantt. Ram Kishan Jaiswal's daughter, Kumari Seema, (aged about 19 yearn) was engaged to applicant No. 1, Rajeev Jaiswal, on 20-11-89 through a common relative Pradeep. A sum of rupees 12 thousand was spent in the engagement ceremony. The Sagai ceremony was performed on 24-11-1989 and a sum of rupees 1 lakh 50 thousand was spent on that occasion. Prior to the Sagai ceremony it was agreed between Ram Kishan Jaiswal and Mool Chand Jaiswal (father of Rajeev Jaiswal) that a sum of rupees 1 lakh would be paid by Ram Kishan Jaiswal for the purchase of Maruti Van. This sum of rupees 1 lakh was in fact paid by Ram Kishan Jaiswal, the Maruti Van was purchased and was shown at the Sagai ceremony.
2. The marriage of Seema and Rajeev was performed on 30-11-1989. Ever since the marriage, the in-laws of Seema started harassing her for the insufficiency of dowry. On 14-4-1990 Mool Chand Jaiswal demanded a sum of rupees 2 lakhs from Ram Kishan Jaiswal. Ram Kishan Jaiswal requested that he would try to arrange for the money. On 15-4-1990, Rajeev, Seema and Sanjeev came to Meerut and the two brothers i.e. Rajeev and Sanjeev gave out that they would leave Seema unless the sum of rupees 2 lakhs was paid. On 8-5-1990 Seema rang from Delhi and informed her father that she was being maltreated for not bringing the full amount of rupees 2 lakhs as only a sum of rupees 50 thousand and was paid to Rajeev and Sanjeev on 5-5-1990. On 13-S-1990 Seema again rang and informed that her in-laws wanted rupees 1 lakh 50 thousand on that very day.
3. At about 9 P M. on the same day Ram Kishan Jaiswal received a phone from Pradeep intimating that Seema wan in a precarious condition and he was to reach Delhi. Ram Kishan Jaiswal alongwith his wife, Krishna Devi, immediately left for Delhi and on reaching Fatehpuri they found that Seema was lying dead in the house of her father-in-law. The case of the applicants-revisionists is that Seema died on 13-5-90 as a result of asphyxia caused by hanging at the residence of the husband at Lahori Gate, Delhi. The police, accompanied by the Sub-Divisional Magistrate, Kotwali. Delhi, came there and the inquest proceedings were conducted by the S.D.M. in the presence of the parents of the deceased. At that time both the parents of the deceased-Seema told the S.D.M. that the deceased had committed suicide and they had no grievance whatsoever, against any of the revisionists and that no demand of dowry was ever made by Seema's in-laws. Certain articles of Seema were taken in custody by the police. After the post-mortem examination of the dead body, the same was handed over to the applicants and the cremation was done in the presence of the parents and other relatives of the deceased.
4. On 29-5-1990 the parents of the deceased entered into an agreement with Mool Chand Jaiswal and other that no proceedings of civil criminal nature would be initiated against the applicants. The agreement was reduced in writing and was signed by the notery.
5. On 15-6-1990 Ram Kishan Jaiswal gave an application to the Women Cell, Delhi in which allegations were made to the effect that his daughter was harassed and tortured and the dowry was demanded by the applicants. On the basis of this application a case under Sections 498-A, 304-B/34 I.P.C. was registered at Crime No. 189 of 1980 in Police Station Lahori Gate, Delhi. Apprehending their arrest, the applicants got anticipatory bails from the Delhi High Court. A report was also called by the High Court from the Delhi Police regarding the manner and circumstance in which Seema had died and also regarding the settlement which was arrived at between the parties.
6. On 21-8-1990 Ram Kishan Jaiswal gave an application in the Court of Sri J.P.S. Malik, Metropolitan Magistrate, Delhi praying for the return of the articles which were taken by the police in custody at the time of inquest proceedings. Again on 27-8-1990 Ram Kishan Jaiswal moved an application in the Court of J.P.S. Malik, Metropolitan Magistrate, Delhi alleging that the articles mentioned in Annexures A, B and C to the said application be returned to him under Section 6 of the Dowry Prohibition Act. The applicants filed reply to the laid application of Ram Kishan Jaiswal. The Metropolitan Magistrate, Delhi, after hearing both the parties, released the articles in favour of Ram Kishan Jaiswal which were found upon the body of Seema. This order of the Metropolitan Magistrate Delhi was challenged by the applicants in Delhi High Court under Section 482 Cr. P.C. and Delhi High Court was pleased to grant a stay order in the case.
7. On 4-9-1990 Ram Kishan Jaiswal again gave an application in the Court of J.M.S. Malik, Metropolitan Magistrate, Delhi which he levelled as complaint under Section 6 of the Dowry Prohibition Act read with Sections 406 and 120-B/34 I.P.C., read with Section 156(3) Cr P C This complaint dated 4-9-1990 was the carbon copy of the earlier application dated 27-8-1990. On 16-9-1990 Ram Kishan Jaiswal again applied in the Court of S.D.M., P.S. Lahori Gate, Delhi claiming the articles which were given by him to his daughter.
8. Failing in his attempt .to send the applicants to jail in Delhi a complaint under Section 498-A. 406/304-B I.P.C. and in the alternative under Section 406, 498-A, 302 I.P.C. was filed by Ram Kishan Jaiswal in the Court of Additional Chief Judicial Magistrate, Meerut.
9. The learned Additional Chief Judicial Magistrate, Meerut recorded the statements under Sections 200 and 202 Cr. P.C. and after hearing She complainant's counsel came to the conclusion that a case under Section 406 I.P.C. and under Section 6 of the Dowry Prohibition Act was made out against the applicants. Consequently, vide his order dated 23-11-1990 the learned Additional Chief Judicial Magistrate, Meerut passed an order summoning the applicants for the said offences fixing 20-12-1990 for the appearance.
10. It is against this order dated 20-12'I990 that the applicants have come in revision. Opposite Party No. 1 has put in appearance through counsel. Counter and rejoinder affidavits have bean exchanged. I have heard Sri Gopal Chaturvedi, learned counsel for the applicants and Sri K K. Shangloo, learned counsel for opposite party No. 1 as well as learned A.G.A,
11. In his counter affidavit Ram Kishan Jaiswal has challenged the validity of the agreement dated 29-5-1990 and has repudiated the alleged statements which were said to have been made by him and his wife before the S.D.M. Delhi at the time of inquest proceedings. He has claimed that he and his wife were under an acute mental shock and depression an their daughter had died Just after about 5 months of her marriage and the alleged statements did not reflect their true feelings. The dead body of Seema was handed over to him and not the applicants. The alleged agreement was never entered into by Ram Kishan Jaiswal and the agreement read over by the applicants was a forged and fictitious document. He has refuted the allegations made by the applicants and has reiterated that Seema wan tortured for the insufficient dowry and that Seema did not commit suicide bat was killed by her in-laws by poisoning. In the rejoinder affidavits of N.P Jaiswal the applicants have reiterated what was earlier said in their behalf.
12. Learned counsel for the applicants has challenged the summoning order mainly on the following grounds. Firstly, that on the allegations made in the complaint and in the statements recorded under Sections 200 and 202 Cr.P.C., no offence under Section 6 of the Dowry Prohibition Act was made out. Secondly, that the subject matter of the complaint was already the subject matter of the investigation in Crime No. 189 of 1990, P.S. Lahori Gate under Section 304-B I.P.C. read with Sections 403, 406 and 120-B/34 I.P.C. and Section 6 of the Dowry Prohibition Act; thirdly the complainant has already moved an application before the S.D.M., P.S. Lahori Gate, Delhi under Section 156(3) Cr.P.C. praying therein that a case under Section 6 of the Dowry Prohibition Act read with Sections 403. 406, 120-B/34 I.P.C. be registered against the applicants and be investigated and fourthly, that the articles mentioned in the annexures of the complaint cannot be returned in a criminal proceeding.
13. Coming to the first contention of learned counsel for the applicants, emphasis was laid by Sri G S. Chaturvedi that all the articles mentioned in the three lists were not given as a consideration for marriage and as such these articles were not covered by the definition of the dowry as was given in the Dowry Prohibition Act, 1961. The above contention has no force. Section 2 of the Dowry Prohibition Act defines the dowry as under : -
"2. Definition of "dowry"-In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (every time after the marriage) in connection with the marriage of the said partial, but does not include doer or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
14. The above section clearly lays down that dowry means any property or valuable security given either directly or indirectly by the parents of either party to a marriage to either party of the marriage or any other person et or before every time after marriage in connection with the marriage of the laid parties. Thus this definition of dowry nowhere contemplates that the properly or valuable security must be given in consideration for the marriage before it can attract the definition of dowry. The law, as it stands today, simply provides that any property given by the parents of the girl to the bridegroom from his family members at or before every time after the marriage in connection with the marriage of the said parties shall be covered by the term dowry as given in the Dowry Prohibition Act. The case of the complainant Ram Kishan Jaiswal is that the articles mentioned in the three lists were given in connection with the marriage of Seema with Rajeev Jaiswal. Thus these articles are covered by the term dowry. Section 6 of the Dowry Prohibition Act provides that where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman within three months of the date of the marriage if the dowry was received before or at the time of the Marriage. Section 6(2) makes it an offence punishable by a term of imprisonment which may not be less than six months and which may extend to two years if the said parson fails to transfer any such dowry to the woman concerned. Section 6(3) of the Dowry Act provides that if the woman, who is entitled to any property under Sub-section (1) dies before receiving it, the property in question shall be transferred to her parents in case she has not left behind any children. In the present case it is not the cue of the applicants that Seema has left any child behind her. After seema's death the articles which were given in her dowry by her parents were to be transferred by Rajeev and his family members to Seema's parents. It is not the case of the applicant that they had done 80, Thus the first contention of the applicants' counsel is not of any help to them.
15. Coming to the second contention of the learned counsel for the applicants I may point out that Case Crime No. 189 of 1990 of P.S. Lahori Gate, Delhi does not deal with the subject matter of the present complaint which has been filed by Ram Kishan Jaiswal in the Courts at Meerut. In Crime No. 189 of 1990 the subject matter of investigation is the death of Smt. Seema. The question of return of the articles or of the offence under Sections 6(2) of the Dowry Prohibition Act is not involved. The investigation in Crime No. 189 of 1990 cannot in any way affect the present complaint which is pending in the Court of Additional Chief Judicial Magistrate, Meerut.
16. Regarding the third contention it is true that Ram Kishan Jaiswal did move an application in the Court of Sri J.P.S. Malik, Metropolitan Magistrate, Delhi which he levelled as complaint under Section 6 of the Dowry Prohibition Act read with Sections 406 and 120-B/34 I.P.C., read with Section 156(3) Cr.P.C. It is also true that all the three lists which are part of the present complaint were annexed to this application dated 4-9-1990, If the Metropolitan Magistrate, Delhi had taken cognizance upon the application dated 4-9-1990 moved by Ram Kishan Jaiswal, the contention of the learned counsel for the applicants would have had force and the present complaint would not have been maintainable in the Meerut Courts but the copy of the order sheet of the Court of Sri J.M.S. Malik, Metropolitan Magistrate, Delhi in the matter of Ram Kishan Jaiswal v. Rejeev Jaiswal and others (complaint under Section 6 of the Dowry Prohibition Act read with Section 406/120-B/34 I.P.C., read with Section 156(3) Cr.P.C.) shows the this complaint was dismissed as withdrawn on 20-3-1991 before the learned Metropolitan Magistrate could take cognizance of the offences mentioned in the complaint in question. Neither the statement of the complaint under Section 200 Cr.P.C. nor the statement of the witness under Section 202 Cr.P.C. were recorded. The Magistrate had not applied his mind to the assertions made in the complaint as no evidence was adduced in support thereof. The complaint was simply dismissed as withdrawn. Where only a complaint has been filed in the Court of a Magistrate and when no statement under Section 200 Cr.P.C. and 202 Cr.P.C. has been recorded by the Magistrate in support of the assertions made in the complaint, it cannot be said that the Magistrate has taken cognizance of the matter. Thus this contention has also no force.
17. Coming to the last contention I may point out that a complainant may have both remedies i.e. civil as well ai criminal, available to him. In the present case the complainant has a right to approach the criminal Courts with the allegation that offence under Section 406 I.P.C. and Section 6 of the Dowry Prohibition Act have been committed by the applicants. Whether he succeeds in proving these offences will be determined at the trial. The right to file a suit for the return of articles which a complainant can rightly claim, ii no bar to a criminal prosecution if the complainant so desires.
In this view of the matter the present application for revision has no force and is hereby dismissed.