Allahabad High Court
Madeena vs State Of U.P. And 5 Others on 9 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:61981 Court No. - 77 Case :- CRIMINAL REVISION No. - 1815 of 2023 Revisionist :- Madeena Opposite Party :- State Of U.P. And 5 Others Counsel for Revisionist :- Mani Shanker Pandey,Rama Nand Shukla Counsel for Opposite Party :- G.A.,Manu Sharma,Shiv Shankar Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. M.S. Pandey, Advocate, assisted by Mr. Rama Nand Shukla, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Manu Sharma along with Mr. Shiv Shankar Singh, the learned counsel representing opposite parties 2 to 6/prospective accused.
2. Perused the record.
3. This criminal revision has been filed challenging the judgment and order dated 04.01.2023 passed by Additional Sessions Judge/FTC, Chitrakoot in Sessions Trial No. 263 of 2021 (State Vs. Mohd. Ilias) arising out of Case Crime No. 103 of 2021, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Rajapur, District-Chitrakoot, whereby the application dated 24.08.2022 filed by the prosecution under Section 319 Cr.P.C. (Paper 12-Kha) has been rejected by Court below.
4. Record shows that in respect of an incident, which is alleged to have occurred on 23.05.2021, a prompt FIR dated 23.05.2021 was lodged by first informant-Mohd. Harun (father of deceased) and was registered as Case Crime No. 103 of 2021, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Rajapur, District-Chitrakoot. In the aforesaid FIR, 6 persons namely (1) Ilias, (2) Gayas, (3) Raila, (4) Bibi, (5) Safiya and (6) Safeena have been nominated as named accused.
5. The gravamen of the allegations made in the FIR is to the effect that marriage of Gulpasa Begum (daughter of first informant) was solemnized with Mohd. Ilias about two years ago. At the time of marriage of the daughter of first informant, sufficient amount of goods and dowry were given. However, the in-laws of the daughter of first informant were dissatisfied with the same. Consequently, demand of additional dowry was made. As demand of additional dowry was not fulfilled, physical and mental cruelty was committed upon the daughter of first informant. Ultimately, the daughter of first informant was put to death by hanging her on 23.05.2021.
6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Investigating Officer first undertook the preliminaries i.e. visiting the place of occurrence, recovering the dead body of deceased, the inquest proceedings of the body of deceased, post mortem of the body of deceased and preparation of site plan. After aforesaid preliminary proceedings had been undertaken by the Investigating Officer, he proceeded to examine the first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only one of the named accused i.e. Ilias (Husband of deceased) is established in the crime in question. He, accordingly, submitted the police report dated 03.07.2021 (charge sheet), in terms of Section 173(2) Cr.P.C., whereby named accused Ilias has been charge sheeted under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, whereas the other named accused were exculpated.
7. Upon submission of aforementioned police report, cognizance was taken upon same by concerned Magistrate. However, as offence complained of is exclusively triable by the Court of Sessions, concerned Magistrate, consequently, committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 263 of 2021 (State Vs. Mohd. Ilias) arising out of Case Crime No. 103 of 2021, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Rajapur, District-Chitrakoot came to be registered in the Court of Additional Sessions Judge/FTC, Chitrakoot.
8. The concerned Sessions Judge framed charges against the charge sheeted accused, who denied the same and pleaded innocence. Consequently, the trial procedure commenced.
9. The prosectuion in discharge of it's burden to bring home, the charges so framed adduced two witnesses up to this stage i.e. PW-1 Mohd. Harun (father of deceased) and PW-2 Madeena (mother of deceased). After the statement-in-chief/examination-in-chief of aforementioned witnesses were recorded, prosecution filed an application dated 24.08.2022 under Section 319 Cr.P.C. alleging therein that since the complicity of named but not charge sheeted accused is also established in the crime in question as per the depositions of aforementioned witnesses, therefore, they be also summoned by Court below to face trial in the Sessions Trial referred to above.
10. Above-mentioned application under Section 319 Cr.P.C. filed by prosecution does not appear to have been opposed by the charge sheeted accused. Consequently, Court below proceeded to examined the veracity of the allegations made in the application under Section 319 Cr.P.C. filed by the prosecution in the light of depositions of PW-1 and PW-2.
11. Court below upon evaluation and examination of the allegations made in the application under Section 319 Cr.P.C. in the light of the deposiions of the 2 prosecution witnesses noted above and examined up to this stage, came to the conclusion that no good ground has been made out to summon the prospective accused. Accordingly, Court below, by means of order impugned dated 04.01.2023, rejected the aforementioned application under Section 319 Cr.P.C..
12. Thus feeling aggrieved by the order dated 04.01.2023, revisionist, who is the first informant, has now approached this Court by means of present criminal revision.
13. Learned counsel for revisionist contends that the prosecution in support of its case, adduced two prosecution witnesses of fact up to this srtage i.e. PW-1 Mohd. Harun (Father of deceased) and PW-2 Madeena (Mother of deceased). Their depositions before Court below have been brought on record as Annexures 3 and 4 to the affidavit filed in support of the stay application appended along with memo of revision. With reference to the depositions of aforesaid two prosecution witnesses examined up to this stage, the learned counsel for revisionist contends that the complicity of prospective accused is clearly made out in the crime in question. Consequently, in view of above, the prospective accused were liable to be summoned by this Court. Since the criminality committed by the charge sheeted accused as well as the prospective accused is joint and common, therefore, the same is interlinked and inter-twined. Therefore, the same is incapable of separation or segregation. On the above conspectus, he, therefore, contends that the distinction drawn by Court below in the order impugned is unsustainable in law. Consequently, the order impugned is liable to be set aside by this Court.
14. Present case is a case of dowry death and the occurrence giving rise to present criminal proceedings has occurred at the marital home of the daughter of first informant. Consequently, the prosecution cannot produce an eye witness of the occurrence in question. Therefore, what is sought to be urged before the Court is that an adverse inference can be drawn regarding the complicity of prospective accused in the crime in question, in the light of the attending circumstances. Reliance is placed upon Sections 106 and 113-B of the Evidence Act and on basis thereof, the learned counsel for revisionist contends that since the prospective accused are inmates of the house in which, the incident occurred and also closely related to the husband of deceased, therefore, burden is upon them to not only explain the matter of occurrence but also their innocence. The said burden can be discharged by the prospective accused only when they are summoned by Court below to face trial. Court below while passing the order impugned has clearly ignored aforesaid aspect of the matter, which has vitiated the order impugned.
15. Per contra, the learned A.G.A. for State and the learned counsel representing opposite parties 2 to 6/prospective accused have vehemently opposed the present criminal revision. They submit that the order impugned in present criminal revision is perfectly just and legal and therefore, not liable to be interfered with by this Court. It is then contended that up to this stage, no such material has emerged on record even as per the statement s of the prosecution witnesses examined up to this stage, on the basis of which, any specific role of the present revisionist in the crime in question could be culled out. He, therefore, contends that on the basis of vague and undefined allegations made by the 2 prosecution witnesses examined up to this stage in their depositions before Court below cannot amount to sufficient material to summon the prospective accused. As such, no illegality has been committed by Court below in passing the order impugned. Consequently, the revision is liable to be dismissed by this Court.
16. Having heard the learned counsel for revisionist, the learned A.G.A.for State, the learned counsel representing opposite parties 2 to 6/prospective accused and upon perusal of record, this Court finds that the primary question to be considered by this Court in present criminal revision is- (A) What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As an ancillary issue, the Court will also have to consider;- (B) Whether the order impugned passed by Court below is inconsonance with the parameters laid down by Court for exercising of it's jurisdiction in terms of Section 319 Cr.P.C.
17. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh.
(xx). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxi). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (5 Judges), Paragraphs 7, 37, 38 and 41.
(xxii). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxiii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxiv). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxv) Yashonandan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxvi) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxvii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174
18. With the aid of above, this Court now proceeds to examine the veracity of impugned judgment and order dated 04.01.2023 passed by Additional Sessions Judge/FTC, Chitrakoot in Sessions Trial No. 263 of 2021 (State Vs. Mohd. Ilias) arising out of Case Crime No. 103 of 2021, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Rajapur, District-Chitrakoot, whereby revisionist has been summoned under Section 319 Cr.P.C. to face trial in above-mentioned sessions trial.
19. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
20. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench's Judgment in Dharam Pal (Supra).
21. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
22. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
23. The nature of satisfaction required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction.
24. A prospective accused cannot be summoned under Section 319 Cr.P.C. to face trial merely on the basis of his complicity in the crime in question but only when strong and cogent evidence has emerged against him vide S. Mohammed Ispahani (supra).
25. The power under Section 319 Cr.P.C. is an extra ordinary power which should be exercised sparingly. Courts should exercise their jurisdiction not in a "casual and cavalier" fashion but diligently vide S. Mohammed Ispahani (Supra).
26. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
27. The trial Court is competent to exercise it's power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation, which suggests otherwise, the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record.
28. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra)).
29. An accused who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
30. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's (Supra) case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameter regarding the exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
31. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
32. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
33. Even if, no protest protest petition was filed by the first informant against the police report submitted in terms of Section 173(2) Cr.P.C. i.e. charge sheet for summoning the non charge sheeted accused yet a prospective accused can be summoned by Court on an application under Section 319 Cr.P.C. and there will be no estoppel against the same vide Rajesh and Others (Supra).
34. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him vide Yashodhan Singh and Others (Supra).
35. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of PW-1, Mohd. Harun (father of the deceased/first informant) and PW-2, Madeena, (mother of the deceased/revisionist) could have been summoned by court below? As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner.?"
36. Admittedly, the prospective accused were named in the FIR but were exculpated by the Investigating Officer in the police report submitted in terms of Section 173(2) Cr.P.C. It is only after the statement-in-chief/examination-in-chief of PW-1 and PW-2 was recorded that prosecution filed an application under Section 319 Cr.P.C. with the prayer that since the complicity of the prospective accused in the crime in question is also established as per the depositions of PW-1 and PW-2, therefore, they be also summoned to face trial in aforementioned Sessions Trial. By virtue to the law laid down by the Apex Court in the Five Judges Bench judgment in Hardeep Singh (Supra), a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness. As such, Court below has not committed any illegality in deciding the application under Section 319 Cr.P.C. filed by the prosecution on the basis of the depositions of PW-1 and PW-2 as recorded before Court below.
36. The next issue which is required to be considered by this Court is, whether a satisfaction is required to be recorded by the Court considering the application under Section 319 Cr.P.C. filed by the prosecution and in case, any such satisfaction is required then what will be the degree of such satisfaction to be recorded by Court below for summoning a prospective accused? The issue is no longer res-integra and stands concluded. The Apex Court in the case of Hardeep Singh (Surpa), has dealt with this very issue and after a detailed deliberation concluded as follows in paragraph 106 of the report:-
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
38. When the order impugned is examined in the light of above, it cannot be said that as per the depositions of PW-1 and PW-2, such material had emerged before Court below on the basis of which, the same degree of satisfaction could have been recorded, as is required to be recorded by virtue of the observations made in the Five Judges Bench judgment in Hardeep Singh (Supra) for summoning a prospective accused. As such, it cannot be said that Court below has acted arbitrarily in recording it's satisfaction adverse to the revisionist.
39. Even though, the law with regard to the summoning of a prospective accused was crystallized by the Five Judges Bench judgment in the case of Hardeep Singh (Supra) and formulated the same in paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6 of the report yet the parameters with regard to the exercise of jurisdiction under Section 319 Cr.P.C. were subsequently, made more stringent but in favour of accused by the subsequent Benches of the Supreme Court in Brijendra Singh Vs. State of Rajsthan, (2017) 7 SCC 706 and S Mohammad Ishpahani Vs. Yogendra Chandak (2017) 16 SCC 22. On a conjoint reading of the aforementioned judgments, the Court upon consideration of the law laid down in Hardeep Singh (Supra) has gone steps further and limited the scope with regard to exercise of jurisdiction under Section 319 Cr.P.C. by formulating (a) a prospective accused can be summoned on the statement-in-chief of one prosecution witness (b) however, in a case, where an accused is named in the F.I.R. but exculpated by the Investigating Officer in the police report, then Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as the said material is a relevant material (c) before summoning a prospective accused on the basis of the deposition of prosecution witness, the Court must draw a parallel in between the statement of such witness recorded under Section 161 Cr. P. C. and his deposition before Court below to find out whether something new has emerged in the deposition of the prosecution witness? Then what was stated by him in his statement under Section 161 Cr.P.C., (d) the prospective accused cannot be summoned merely on the basis of his complicity in the crime in question, (e) the power under Section 319 Cr. P. C. is an extraordinary power and should be exercised sparingly and not in a routine manner, (f) the Courts should exercise their jurisdiction diligently and not in a "casual and cavalier" fashion, (g) it is only when strong and cogent evidence has emerged against a prospective accused, which is much more than mere complicity of a prospective accused in the crime in question can he be summoned under Section 319 Cr.P.C.
40. When the order impugned is examined in the light of above, there can be no hesitation to conclude that except for the mere complicity of the prospective accused in the crime in question, nothing more which may be strong and cogent has emerged. As such, no illegality has been committed by Court below in passing the order impugned.
41. There is another aspect of the matter. The Apex Court in the case of Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, has observed that it is a growing tendency to name the family members and distant relatives in matrimonial disputes under Section 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act. Considering the above, the Court expressed it's anxiety in paragraphs 13 to 21 of the report, which reads as under: Paragraph 18 of the report is much relevant in the present case.-
"13. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr.5, it was also observed:-
"4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested."
14. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it has also been observed:-
"32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
15. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:-
"21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"12....There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts."
The view taken by the judges in this matter was that the courts would not encourage such disputes."
16. Recently, in K. Subba Rao v. The State of Telangana 8, it was also observed that:-
"6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."
17. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.
18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.
19. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17.
20. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.
21. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged"
42. Court below upon perusal of record has returned a categorical finding that as per the depositions of the two prosecution witnesses, examined up to this stage i.e. PW-1 Mohd. Harun and PW-2 Madeena, no such material has emerged on the basis of which, the degree of satisfaction as required to be recorded in terms of paragraph 106 of the judgment in Hardeep Singh (Supra), can be recorded. Furthermore, from the perusal of statements of PW-1 and PW-2, this Court finds that the prosecution has even failed to discharge it's primary burden with regard to the complicity of accused in the crime in question, as per the observations made in the case of Kahkashan Kausar @ Sonam (Supra). Except for vague and bald allegation that the complicity of all the named accused in the crime in question exists, the said allegation could be established by material particulars. Consequently, by reason of above, the submission urged by the learned counsel for revisionist with reference to Sections 106 and 113-B of Evidence Act is misconceived. Except for the mere complicity of the prospective accused in the crime in question, no such strong and cogent evidence has emerged on record to establish something more than the mere complicity of the prospective accused in the crime in question. As such, the test laid down by the Apex Court in Brijendra Singh (Supra) and S Mohammad Ishpahani (Supra) is not satisfied in the facts and circumstances of the case. Consequently, the Court below has neither committed a jurisdictional error in passing the order impugned nor has it exercised it's jurisdiction with material irregularity so as to warrant interference by this Court in exercise of jurisdiction under Section 401 Cr.P.C.
43. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.
44. It is, accordingly, dismissed.
45. However, considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 9.4.2024 Vinay