Delhi District Court
Sh. S.K. Shahi vs State (Government Of Nct Of Delhi) on 3 November, 2007
1 Criminal Revision No. 100/06 & 101/06
IN THE COURT OF SH. DINESH DAYAL
ADDITIONAL SESSIONS JUDGE,
KARKARDOOMA COURTS, DELHI
Case I.D. Number 02402R0201942006 &
02402R021832006
Crl. Revision No. 100/06 & 101/06
Revision received on 12.04.06 and 20.04.06
Arguments heard on 24.10.07
Date of Order 03/11/07
IN THE MATTER OF
Sh. S.K. Shahi
S/o Late Ram Dewan Shahi
R/o A-36, Sun Set Height,
59, Pali Hills Bandra, Mumbai
...Petitioner in Criminal
Revision No. 100/06
Versus
State (Government of NCT Of Delhi)
...Respondent in Criminal
Revision No. 100/06
AND
1. The State
2. Ms. Reema Shahi (Complainant)
W/o Sh. Rajesh Kumar Shahi
D/o Sh. S.P. Singh
2 Criminal Revision No. 100/06 & 101/06
R/o D3 Takshila Apartments, I.P Extension,
Delhi
Petitioners in Criminal
Revision No. 101/06
Versus
1. Rajesh Kumar Shahi
S/o Late Ram Dewan Shahi
R/o 346, Sector 19, Koperkharane,
Navi Mumbai
2. Karunesh Shahi
S/o Late Ram Dewan Shahi
R/o Ahiya Colony M-43, Muzaffarpur, Bihar
3. Rekha Shahi
W/o Karunesh Shahi
R/o Ahiya Colony M-43, Muzaffarpur, Bihar
4. Smt. Ram Pukari
W/o Late Ram Dewan Shahi
R/o Village Meena Shahi, Minapur,
Muzaffarpur, Bihar.
5. Smt. Shanti Kumari
W/o Ram Bhaij
R/o Mohalla Avash Colony
M.P. Lines, Muzaffarpur, Bihar.
6. Sarvesh Shahi
S/o Late Ram Dewan Shahi
R/o A-36, Sun Set Height,
59, Pali Hills Bandra, Mumbai
7. Anjana Kumar Shahi
W/o Sarvesh Shahi
R/o A-36, Sun Set Height,
59, Pali Hills Bandra, Mumbai
...Respondents in
Criminal Revision No.
101/06
3 Criminal Revision No. 100/06 & 101/06
ORDER
1. This order will dispose of two revision petitions filed against the order dated 20.03.06 passed by the Learned Metropolitan Magistrate.
2 By the impugned order, the Learned Metropolitan Magistrate has ordered framing of charges under section 498A IPC against accused Rajesh Kumar Shahi and S.K. Shahi. The Learned Metropolitan Magistrate has declined to frame any charges under section 406 IPC against any of the accused persons and has also discharged accused Karunesh Shahi, Smt. Rekha Shahi, Smt. Ram Pukari, Smt. Shanti Kumari and Smt. Anjana Shahi under section 498A IPC.
3. Briefly the facts of the case are that complainant Reema Shahi was married to accused Rajesh Kumar Shahi on 15.02.94.
4. On 26.04.2000 Complainant Smt. Reema Shahi filed a 4 Criminal Revision No. 100/06 & 101/06 complaint under section 498A IPC read with section 406 IPC with the DCP, Crime Against Women Cell, Nanak Pura, New Delhi . In her complaint Smt. Reema Shahi arrayed her husband Rajesh Kumar Shahi, mother of the husband Smt. Ram Pukari Devi, elder brothers of the husband Karunesh Kumar Shahi and Sarvesh Kumar Shahi, sister of the husband Smt. Shanti, Smt. Rekha w/o Karunesh Kumar Shahi, Smt. Anjana w/o Sarvesh Kumar Shahi, Sh. Samresh Kumar S/o Shanti Devi and Sh. Amresh Kumar S/o Shanti Devi as accused persons.
5. After the investigation a charge sheet was filed against all the accused persons except Sh. Samresh Kumar and Sh. Amresh Kumar , both sons of Smt. Shanti Devi under section 498A/406 IPC.
6. Complainant Smt. Reema Shahi in her complaint has alleged that the accused persons subjected her to immense indignity, disrespect , humiliation, maltreatment, mental and physical cruelty with sole motive to fulfill their evil and illegal demands for 5 Criminal Revision No. 100/06 & 101/06 dowry. The demands not having been fully satisfied, all the accused persons forced her to leave the matrimonial home. The aforesaid persons misappropriated her entire Istridhan. The aforesaid persons are in possession of her entire Istridhan and belongings. The details of which are annexed with complaint.
7. The complainant alleged that she was married to Sh. Rajesh Kumar Shahi on 15.02.94 at Delhi according to Hindu rites and ceremonies. Prior to the marriage, an engagement ceremony was also performed at the native place of her husband i.e. Shahi Minapur. Her family spared no efforts to please her husband and his family members and did everything that they possibly could do financially as well as physically, to make the marriage function a grand affair. Prior to the marriage, her in laws had assured that they had no demand whatsoever, but suddenly at the time of engagement ceremony, her in laws started insisting that they should be given 51 gold sovereigns, silver utensils, one refrigerator and clothes for at least 90 members of the family, which according to 6 Criminal Revision No. 100/06 & 101/06 them was customary and essential in their family. Under the circumstances, her father was forced to give the aforesaid clothes and gifts to her in laws and members of their family. Her father had given every single household item at the time of marriage but inspite of that her husband and his family members were not happy.
8. On 16.02.94 her father hosted a lunch, which her brother in law Sh. S.K. Shahi did not attend as he was angry with her father for not giving Maruti Esteem Car in the marriage. During the said function her brother in law Sh. Karunesh Kumar Shahi demanded monetary help from her father, to construct a house in Muzaffarpur. Right from the inception of marriage, the behaviour of her husband was extremely rude towards her. On the first night after marriage i.e. 15.02.94 she and her husband stayed at Hotel Samrat. The behaviour of her husband was very abnormal with her. For no rhyme or reason, her husband assaulted her and broke her necklace. When she bent to pick the broken pieces, her husband pulled her by her hairs. When she cried in pain, he threw her on the 7 Criminal Revision No. 100/06 & 101/06 bed and started punching her by saying that the marriage was not as per the expectations of his family. On 16.2.94, she alongwith her husband came to spend the night at her parental house. On that night also her husband manhandled her . He kept on inquiring about her father's income and assets and when she did not respond he started beating her by pulling her hairs, twisting her arms and punching on thighs.
9. On 17.02.94, she and her husband were to leave for honeymoon they had to go for honeymoon for Kathmandu via Patna, However at the last moment her husband told her that on the way they will drop at Patna and then go to his native village. He asked her to carry all the jewellery, clothes etc. saying that it was customary in his family to show the dowry articles to the relatives. When they reached Patna Airport , her sister in law Mrs. Shanti and her daughter Ms. Bhawna came to receive them. On the way they asked her husband about the details of dowry given by her father . Upon being told that her father had not given much cash, her sister-
8 Criminal Revision No. 100/06 & 101/06 in-law started taunting her. They went to Muzaffarpur, at the house of her brother in law Karunesh Shahi. Her sister in law Mrs. Rekha Shahi asked her if her father had sent gold jewellery for her as well as gift which according to her was customary in their family. She told that her father had already sent expensive clothes for all the members of the family. On this, her husband and the said sister in law started shouting at her and abused her father by calling him a bagger. Her sister in law told that the suitable grooms like her husband should have got at least 80-90 lacs in cash apart from other things. In the evening they left for the native place of her husband i.e. Shahi Meena Pur. On the way , her sister in law Mrs. Shanti, her husband and his niece did not speak to her at all through out the way and they kept on taunting her by mentioning names of the people who were offering huge amount of cash in dowry for marrying their daughters with her husband. When she reached her in law house they started taunting her about bringing inadequate dowry and not bringing articles of their choice. They expressed anger for not bringing Maruti Esteem Car and sufficient 9 Criminal Revision No. 100/06 & 101/06 cash.
10. On 18.02.94, the above mentioned persons took all her jewellery on the pretext of showing the same to their relatives. They told her that as she was going to Kathmandu it shall be safe if all the jewellery and expensive clothes are left in their custody. Under these circumstances she entrusted all his jewellery and some expensive clothes to the said persons. The said articles and jewellery are still in the custody of the abovesaid persons as the same were never returned to her.
11. The complainant thereafter describes the harassment and atrocities committed by her husband during the honeymoon.
12. They reached Bombay on 01.03.94. Complainant further alleges that she was shocked to see that her husband who claimed to be a high flying businessman lived in a dingy sublet house which belongs to his peon's uncle . The said flat was also shared by his 10 Criminal Revision No. 100/06 & 101/06 two nephews. On 03.03.94, her husband took her to Goa . While on the way they went to her brother in law Sh. S.K. Shahi's home. Her brother in law S.K. Shahi and his wife Smt. Anjana Shahi kept on taunting her about the inadequate dowry and criticized about the preparations made for marriage function.
13. Thereafter, the complainant again describes the behaviour of her husband. Thereafter, the complainant alleges that on 01.10.94 she went to meet her sister in law at the house of S.K. Shahi in Chembur. Both Mrs. Shanti and Anjana started misbehaving with her and calling her bad names. They instigated her husband to be firm with her so that she could bring money from her father. Her sister in law Mrs. Shanti once requested her father to use his influence to get her a teacher's award at national level.
14. Complainant again describes the behaviour of her husband and how she had to come to her parents house on several occasions. She alleges that on the first marriage anniversary ie.
11 Criminal Revision No. 100/06 & 101/06 15.02.95 . after the party was over her husband started beating her mercilessly saying that she was talking to everyone openly during the party which he did not like.
15. She alleges that in the last week of August 1995 her husband asked her to sell her plot at Vasundra and bring money from her father and sister. His brother Karunesh Kumar Shahi and sister Smt. Shanti kept on calling him and instigating to pressure her to bring money from her father. She told him that it was not possible for her father to fulfill his demand on which her husband got infuriated and beat her mercilessly .
16. On 24.12.95, she and her husband went to Sh. S.K. Shahi's home for his daughter's birthday party. Her brother in law S.K. Shahi asked her as to why she was not bringing money from father. When she did not reply to his question , he got infuriated and started beating her mercilessly alongwith her husband and sister in law Mrs. Anjana. After returning home , upon instigation of 12 Criminal Revision No. 100/06 & 101/06 his brother she was beaten by her husband and thrown out of the house. After virtually bagging from her husband she was allowed to come in.
17. She has alleged that in June 97, her husband went to Singapore for job. Her sister in law and brother in law and some friends helped him to find a job. She reached Singapore on 16.07.98 alongwith a maid Urmila Gudial .
18. The complainant further describes the atrocities committed by her husband at Singapore and states in her complaint that she came back to India because she could not bear the pain and agony any further. She told her parents about her pathetic condition and her father decided not to send her back to her matrimonial home. Her father also refused to succumb to pressure of her husband and in laws and demanded all her Istridhan and other belongings from them , upon which her husband and in laws told that they would not return even a single thing. She has alleged 13 Criminal Revision No. 100/06 & 101/06 that her husband contacted several times over phone asking certain amount of money from her parents and told her that in case his demands are not met, he would liquidate her and her family through underworld, as his brother S.K. Shahi has links in Dubai with the underworld. She has also alleged that the aforesaid persons are now bent upon to grab her immovable properties at U.P and Mumbai , so much so that a collusive suit for partition has been filed in Muzaffarpur by Sh. Karunesh Kumar Shahi, who is a practicing lawyer at Muzaffarpur. In the said suit, her property at Navi Mumbai has been included despite the fact that the same is exclusively owned by her having been purchased by her own funds.
19. It is further alleged that in the first week of March, her brother in law Sh. Karunesh Kumar Shahi called her over telephone and asked her to hand over the possession of her property to them. Upon her refusal to do so, he told her that Muzaffarpur is his stronghold and as and when she will go there to attend the above mentioned case, he will get her eliminated. He also threatened that 14 Criminal Revision No. 100/06 & 101/06 he will get her whole family eliminated by hiring underworld people with whom he has close connections and even make them enter and live in her house in Navi Mumbai. She further alleged that her husband has been regularly calling her and threatening with dire consequences in case she does not return back to Singapore after selling her properties.
20. Criminal Revision No. 100/06 has been filed by Sh. S.K. Shahi against the order of the Learned Metropolitan Magistrate directing framing of charges under section 498A of Indian Penal Code against him.
21. Criminal Revision No. 101/06 has been filed by the State and Smt. Reema Shahi against the discharge of all the accused persons under section 406 IPC and the discharge of the remaining accused persons under section 498A IPC.
22. I have heard the Learned Additional P.P for the State 15 Criminal Revision No. 100/06 & 101/06 along with Learned Counsel for the complainant and Learned Senior Counsel appearing on behalf of accused persons.
23. Both the parties have relied on the judgments in the case of Union of India Vs. Prafulla Kumar Samal & Another reported as (1979) 3 SCC 4 and State of Maharashtra Etc Etc Vs. Som Nath Thapa Etc. Etc. reported as JT 1996 (4) SC 615 in order to show the principle which have to be borne in mind at the time of framing of the charges. In the case of Union of India Vs. Prafulla Kumar Samal & Another (supra) in paragraph ten the Hon'ble Supreme Court has observed that
10. Thus, on a consideration of the authorities mentioned above, the following principles emerges:
(1) that the Judge while considering the question of framing the charge 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. (2) Where the materials placed before the Court 16 Criminal Revision No. 100/06 & 101/06 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.
(3) 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.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece 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.
24. In the case of State of Maharashtra Etc Etc Vs. Som 17 Criminal Revision No. 100/06 & 101/06 Nath Thapa Etc. Etc.(supra) , the Hon'ble Supreme Court slightly modified the principles laid down in the aforesaid judgment and observed in paragraph 33 that :-
"The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage".
25. The judgment in the case of State of Maharashtra Etc Etc Vs. Som Nath Thapa Etc. Etc. (supra) being the judgment of three judges bench holds the field till today and thus if on the basis of material on the record , a court could come to the conclusion that 18 Criminal Revision No. 100/06 & 101/06 commission of the offence is a probable consequence, charges have to be framed against the accused.
26. Keeping in view the above principles, the Learned Counsel for the complainant read out to me the entire complaint of Smt. Reema Shahi and also the statements of various witnesses recorded during investigation. Learned Counsel for the complainant vehemently argued that the complaint of Smt. Reema Shahi clearly made out a case under section 498A IPC and 406 IPC against all the accused persons. She argued that it is not expected of Trial court , at this stage to appreciate evidence meticulously - at the stage of framing of charge, material placed before the Court is only to be looked to find out whether there are sufficient grounds to proceed against the accused and not whether the material is sufficient for conviction. Reliance has been placed on the judgment in the case of Sunil Dutt Sharma & Others Vs. State and Another reported as 2006 (1) C.C. Cases (HC) 33.
27. Reliance has also been placed on the judgment of the 19 Criminal Revision No. 100/06 & 101/06 Hon'ble Supreme Court in the case of Arun Vyas and another Vs. Anita Vyas reported as AIR 1999 Supreme Court 2071 wherein it was held that cruelty is a continuing offence and a new starting point of limitation starts on the last act of cruelty.
28. It has also been argued on behalf of complainant that offence punishable under section 498A IPC are of a continuous nature. Where there are allegations of continuous harassment, there can be no bar in initiating the criminal proceedings under section 498A IPC. Reliance has been placed on the judgment of the Kerala High Court in the case of Kunjupilla and Others Vs. Shylaja and Another reported as 2001 MLC 344.
29. It has been argued on behalf of the complainant that the complaint filed by Smt. Reema Shahi categorically states that all her jewellery and expensive and heavy clothes were taken by the accused persons on 18.02.94 and have not been returned to the 20 Criminal Revision No. 100/06 & 101/06 complainant Smt. Reema Shahi inspite of her demands and inspite of the demands of her father. The record shows that the complainant had also demanded her jewellery and heavy clothes etc. from the accused before the Crime Against Women Cell, Nanak Pura. The Learned Counsel for the complainant has argued that the complainant in her complaint has specifically mentioned the role of each accused persons regarding harassment to the complainant on account of dowry. The complainant has categorically shown that Sh. S.K. Shahi had shown his displeasure by not attending the lunch hosted by her father on 16.02.94 as Maruti Esteem Car was not given in the marriage. Sh. Karunesh Kumar Shahi had demanded money from the father of the complainant for constructing his house in Muzaffarpur. Mrs. Shanti had taunted her when her husband had told her that much dowry had not been given in the marriage. Smt. Rekha Shahi had asked to complainant Smt. Reema Shahi why her father had not sent gold jewellery and gifts for her. Smt. Anjana Shahi kept on taunting her about the inadequate dowry and criticized about the preparations made for 21 Criminal Revision No. 100/06 & 101/06 marriage function. The accused persons kept on instigating her husband to treat her harshly and forced her to get money from her father. Learned Counsel for the complainant has pointed out that there are specific allegations that in August 1995 Sh. Rajesh Kumar Shahi, husband of the complainant had asked her to sell her plot at Vasundhara and bring money from her father and sister. Sh. Karunesh Kumar Shahi and Smt. Shanti kept on calling her husband and instigated him to put pressure on her to bring money from her father. There are specific allegations that on 24.12.95 she and her husband went to the house of Sh. S.K. Shahi for his daughter birthday party. There Sh. S.K. Shahi asked her as to why she was not bringing money from her father. And when she did not reply to his question, he got infuriated and started beating her mercilessly along with her husband and sister in law Mrs. Anjana.
30. Learned Counsel for the complainant has also read out to me the statements of Sh. S.P. Singh , father of complainant and Sh. Shiv Kumar , Secretary of Sh. S.P. Singh to show that accused 22 Criminal Revision No. 100/06 & 101/06 Rajesh Kumar Shahi had insisted that she should carry all her jewellery and expensive and heavy clothes with her when they were going for honeymoon as they had to stop at Shahi Minapur and dowry articles had to be shown to the family members. She has referred to the statement of Ms. Pamela Raj a friend of the complainant and Ms. Poornima Rai sister of the complainant to show how her sister had to bring the jewellery from the house because the complainant had failed to take it with her while going to the Airport. Statement of Urmila Gudial , a maid servant who was taken by the complainant along with to Singapore was read to show the atrocities and harassment committed by the husband of complainant Sh. Rajesh Kumar Shahi at Singapore.
31. Learned Senior Counsel appearing for the accused persons has also relied on the judgment in the case of Union of India Vs. Prafulla Kumar Samal & Another reported as (1979) 3 SCC 4 and State of Maharashtra Etc Etc Vs. Som Nath Thapa Etc. Etc. reported as JT 1996 (4) SC 615 in order to show the 23 Criminal Revision No. 100/06 & 101/06 principle which have to be borne in mind at the time of framing of the charges. He has further argued that the court should apply its judicial mind for considering whether or not there is ground for presuming the commission of offence by the accused. Reliance has been placed on the judgment in the case of Century Spinning and Manufacturing Co. Ltd and Others Vs. State of Maharashtra reported as (1972) 3 SCC 282. The Learned Senior Counsel appearing on behalf of accused persons has argued that offence under section 498A can be made by a continuous act on the part of the accused. Stray incidents of taunting cannot constitute the offence of cruelty as defined in section 498IPC. Reliance has been placed in the judgment of Delhi High Court in the case of Savitri Devi Vs. Ramesh Chand and Others reported as 104 (2003) Delhi Law Times 824. In this case it was held that the ingredients of cruelty as contemplated under section 498A IPC are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage 24 Criminal Revision No. 100/06 & 101/06 i.e Divorce . In constituting 'cruelty' contemplated by Section 498A IPC the acts or conduct should be either such that may cause danger to life, limb or health or cause 'grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be 'willful' i.e. intentional. So to invoke provisions of Section 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life , limb or physical or mental health. It involves series of systematic , persistent and willful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with marital life.
32. Reliance has also been placed on the recent judgment of 25 Criminal Revision No. 100/06 & 101/06 the Delhi High Court dated 09.10.2007 in Criminal Writ Petition 1217/2007 in the case of Harvinder Singh Khurana and Others Vs. The State (NCT Of Delhi) and Another . It has been argued that the complainant had not made any complaint against any of the accused persons during the six years prior to the filing of the complaint. Suddenly she has involved the entire family of the husband . In the cited case the complainant had filed a petition under the Hindu Marriage Act but had never made any complaint against any of the family members of her husband. Suddenly in her complaint under section 498A, there was a talk of dowry demand and harassment by the husband and his family members and the dispute between the husband and wife. The court found that the allegations could not be believed specially in view of the fact that the couple had been living separately since 1994.
33. Learned Senior Counsel for the accused persons has argued that the complainant and her husband Rajesh Kumar Shahi have never lived with the other members of the family. Immediately 26 Criminal Revision No. 100/06 & 101/06 after the marriage when they went to Mumbai they lived in a house which has been described by the complainant as a dingy apartment belonging to the uncle of the peon. At that time two nephews whose names were listed as accused persons in the complaint lived with the couple, but no charge sheet was filed against both of them and the matter of their involvement has never been agitated by the parties. Thereafter parties shifted to a house which belonged to Sh. S.K. Shahi in Chembur , then the parties shifted to a house in Koperkharane , Navi Mumbai and thereafter they went to Singapore from where the complainant returned to her parental house in the absence of the respondent Sh. Rajesh Kumar Shahi when Rajesh Kumar Shahi had gone to Indonesia . There was thus no occasion for the involvement of the other accused persons in the harassment of the complainant. It has also been argued that the allegations made by the complainant against Sh. S.K. Shahi and other accused persons relate to the period immediately after the marriage and there are no specific allegations against these accused persons for any incident which may have occurred after 1995. Learned Senior 27 Criminal Revision No. 100/06 & 101/06 Counsel appearing for the accused persons has pointed out that section 498A IPC is punishable with a maximum punishment of three years imprisonment and under section 468 Cr.PC. there is a bar to taking cognizance of the offence which is punishable with imprisonment for three years , after three years have elapsed from the date of the alleged incident. Learned Senior Counsel for the accused persons has argued that the two cases cited on behalf of complainant relates to the cases where there was continuous harassment and the Court came to the conclusion that in such cases, the offence is a continuing offence and the bar of the limitation does not apply.
34. Learned Senior Counsel appearing on behalf of accused persons has relied on the judgment in the case of Sukhbir Jain and Another Vs. State reported as 1994 (1) CC Cases 609 (HC), in which the High Court of Delhi held that the offence under section 498A IPC being punishable with maximum imprisonment of three years the provisions of section 468 (2) (c) Cr.PC would be 28 Criminal Revision No. 100/06 & 101/06 applicable and only those acts which were committed within three years of the date of complaint can be taken note of and therefore the allegations made by the complainant regarding her harassment and physical torture by the petitioners during the initial period of the marriage are completely barred by limitation and cannot be taken cognizance of.
35 With respect to the offence under section 406 IPC, Learned Senior Counsel appearing for the accused persons has argued that the complainant has failed to prove the entrustment of the property to the accused persons. Hence no case under section 406 IPC can be made out.
36. Learned Senior Counsel appearing on behalf of accused persons has relied on the judgment in the case of Jaswinder Kaur and Others Vs. Harjinder Kaur reported as 1994 (1) CC Cases 166 (HC) and has argued that where the allegations made in the first information report or the complaint are so absurd and inherently 29 Criminal Revision No. 100/06 & 101/06 improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. No charges should be framed . Reliance has also been placed on the judgment in the case of Raj Kumar Khanna Vs. State (NCT of Delhi) and Others reported as 2002 (1) JCC 327, Krishan Lal and Others Vs. State of Haryana and Another (P&H) reported as 1990 (3) Recent Criminal Reports 183, Ujjagar Singh Vs. State of Punjab reported as III (1995) CCR 247, State of Punjab Vs. Srawan Singh reported as AIR 1981 SC 1054, Shakuntala Vs. State of Delhi reported as 139 (2007) DLT 178, Ashok Chaturvedi and Others Vs. Shitul H. Chandani and Another reported as (1998) 7 SCC 698, State of Karnataka Vs. L. Muni Swami and others reported as (1977) 2 SCC 699, and Thakur Ram and Others Vs. State of Bihar reported as AIR 1966 SC 911.
37. There are no specific allegations against the accused 30 Criminal Revision No. 100/06 & 101/06 Smt. Ram Pukari Devi, mother of the husband of the complainant in the complaint dated 26.04.2000 except for the fact that she has been listed as accused number two in that complaint. Learned Counsel for the complainant has argued that the jewellery and expensive clothes of the complainant Smt. Reema Shahi was entrusted to the mother in law besides other persons of the family of her husband on 18.02.94.
38. The allegations against the accused Karunesh Kumar Shahi can be found in paragraph (u) of the complaint wherein it is alleged that in August 1995 her husband asked her to sell her plot at Vasundra and bring money from her father and sister. His brother Karunesh Kumar Shahi and sister Smt. Shanti kept on calling him and instigating to pressure her to bring money from her father. Besides this, the allegations against accused Karunesh Kumar Shahi are that a collusive suit for partition has been filed in Muzaffarpur by Sh. Karunesh Kumar Shahi. In the said suit, her property at Navi Mumbai has been included despite the fact that the 31 Criminal Revision No. 100/06 & 101/06 same is exclusively owned by her having been purchased by her own funds. It is alleged that in the first week of March, her brother in law Sh. Karunesh Kumar Shahi called her over telephone and asked her to hand over the possession of her property to them. Upon her refusal to do so, he told her that Muzaffarpur is his stronghold and as and when she will go there to attend the above mentioned case, he will get her eliminated. He also threatened that he will get her whole family eliminated by hiring underworld people with whom he has close connections and even make them enter and live in her house in Navi Mumbai.
39. So far as accused Smt. Shanti is concerned , the Learned Senior Counsel appearing on behalf of accused persons has pointed out that the complainant has no interaction with her. Complainant Smt. Reema Shahi does not even know the name of the husband of accused Smt. Shanti . It is clear from the complaint that the complainant has also not been able to give the name of the husband of accused Smt. Shanti Devi. She does not even know 32 Criminal Revision No. 100/06 & 101/06 the residential address of accused Smt. Shanti Devi as she has mentioned the address of Smt. Shanti Devi as that of Village Shahi Minapur, P.O Shahi Minapur via Aurai, Muzaffarpur, Bihar , which is in fact the residence of the parents of Smt. Shanti Devi. Shanti Devi is a married lady. She was having children, who were named as accused number eight and nine in the complaint and even the addresses given for these children of Smt. Shanti Devi were of Mumbai, where they had stayed with the complainant Smt. Reema Shahi.
40. A perusal of the complaint also shows that the allegations against the accused Smt. Rekha Shahi and Smt. Anjana Shahi also pertains to the period immediately after the marriage and the last allegation against these accused persons relates to 24.12.95.
41. In the case of Savitri Devi Vs. Ramesh Chand and Others (supra) it was held that the word 'harassment' in ordinary sense means to torment a person subjecting him or her through 33 Criminal Revision No. 100/06 & 101/06 constant interference or intimidation. If such tormentation is done with a view to coerce any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to 'harassment' as contemplated by Section 498A IPC. Word 'Coercion' means pursuading or compelling a person to do something by using force or threats . Thus to constitute "harassment" following ingredients are essential:
(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation.
(ii) Such Act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable
34 Criminal Revision No. 100/06 & 101/06 security.
42. This shows that in order to constitute harassment the tormentation of the woman should be continuous.
43. In the case of Kunjupilla and Others Vs. Shylaja and Another (supra) the Kerala High Court found that there were no bar of limitation in section 498A because there was allegations of continuous ill-treatment of the woman by the accused. Similarly in the case of Arun Vyas and another Vs. Anita Vyas (supra) it was found that cruelty was a continuous offence. There was a new starting point of limitation which starts when the last act of cruelty was committed. In this case it was further held that the complaint cannot be dismissed without considering the provisions of Section 473 Cr.PC empowering the court to take cognizance of offence after the period of limitation if it is satisfied on facts and circumstances that it is necessary so to do in the interest of justice. The substance of all the judgments is therefore that the limitation would apply even in the cases under section 498A IPC. However , in view of the 35 Criminal Revision No. 100/06 & 101/06 provisions under section 473 Cr.PC , the court can take cognizance of an offence under section 498A IPC if the circumstances of the case so warrant.
44. In the instant case the allegations made by the complainant Smt. Reema Shahi clearly show that the complainant and her husband had never lived with any of the accused persons. They had visited Shahi Minapur or Muzaffarpur rarely , in fact complaint talks about only one visit to these places. They had a very little interaction with the accused living at Shahi Minapur and Muzaffarpur. The complainant Smt. Reema Shahi seems to have had little or no interaction with accused Smt. Shanit Devi except on the occasion of her visit to Shahi Minapur, immediately after her marriage or when accused Smt. Shanti Devi once visited Mumbai. I find, that the Learned Metropolitan Magistrate has taken a correct view of the case by holding that no offence under section 498A IPC is made out against accused Karunesh Kumar Shahi, Smt. Rekha Shahi, Smt. Ram Pukari Devi, Smt. Shanti Kumari and Smt. Anjana 36 Criminal Revision No. 100/06 & 101/06 Shahi.
45. The allegations against the accused Sh. S.K. Shahi, which appear to have prompted the Learned Metropolitan Magistrate to order framing of the charges are contained in paragraph (v) of the complaint. In this part of the complaint , it is alleged that on 24.12.95, complainant and her husband went to Sh. S.K. Shahi's home for his daughter's birthday party. Her brother in law S.K. Shahi asked her as to why she was not bringing money from father. When she did not reply to his question , he got infuriated and started beating her mercilessly alongwith her husband and sister in law Mrs. Anjana.
46. These allegations pertain to a period more than three years before the filing of the complaint and no cognizance could be taken on the basis of these allegations. The other allegations against accused Sh. S.K. Shahi are to the effect that accused Rajesh Kumar Shahi has been telling the complainant that accused 37 Criminal Revision No. 100/06 & 101/06 Sh. S.K. Shahi has links with the underworld in Dubai and he would get her eliminated. These allegations do not constitute any offence committed by accused Sh. S.K. Shahi. In fact paragraph (x) of the complaint suggests that the husband of the complainant Sh. Rajesh Kumar Shahi had developed some differences with his brother Sh. S.K. Shahi in the end of year 1996 and for this reason he had sent the complainant to Singapore to look for a job for him. Thereafter husband of the complainant had gone to Singapore in June 1997 and she joined him on 16th July 1998. There is no allegations of harassment of the complainant by accused Sh. S.K. Shahi thereafter. While in Singapore the relations between the husband and wife deteriorated to the extent that the complainant left the matrimonial home and came back to India in the absence of her husband. There was thus no occasion for accused Sh. S.K. Shahi to torment or harass the complainant Smt. Reema Shahi for dowry while she and her husband were in Singapore. I, find that there are no sufficient grounds for framing charges under section 498A IPC against accused Sh. S.K. Shahi also. The revision bearing number 38 Criminal Revision No. 100/06 & 101/06 100/06 filed by Sh. S.K. Shahi is thus liable to be accepted.
47. The purpose of making a case under section 406 IPC appears to be to cause maximum humiliation to the family members of her husband. In complaint filed by the complainant there are no specific allegations of entrustment of any specific property to any of the accused persons. I had repeatedly asked the Learned Counsel for the complainant to point out the portions where entrustment is alleged in the complaint. Learned Counsel for the complainant read out to me paragraph (e) and (f) of the complaint and also the statements of Sh. S.P. Singh , father of complainant , Sh. Shiv Kumar , Secretary of Sh. S.P. Singh , Ms. Pamela Raj a friend of the complainant and Ms. Poornima Rai sister of the complainant . This was in order to show that the complainant was compelled by her husband Sh. Rajesh Kumar Shahi to take all her jewellery and expensive clothes to Shahi Minapur while they were going for their honeymoon to Kathmandu . This was done on the pretext that the dowry articles like jewellery and expensive and heavy clothes have 39 Criminal Revision No. 100/06 & 101/06 to be shown to all the members of the family. Besides these allegations , there was no allegation whatsoever which could point out the entrustment by the complainant. However, the record shows that the complainant got searches conducted not only at Shahi Minapur at the parental house of her husband but also at Muzaffarpur at the house of Karunesh Kumar Shahi, brother of her husband at Chembur and Pali Hill in the house belonging to Sh. S.K. Shahi and at Koperkharane Navi Mumbai where the complainant had lived just before going to Singapore. For this purpose the complainant wrote letters to the Investigating Officer making various allegations so that search was conducted at different places. Some furniture and household articles were found at House No. 346 Koperkarane, Sector 19, Navi Mumbai. Nothing belonging to the complainant was recovered from Flat No. C-2, Jeevan Bahar, 21st Road, Chembur, Mumbai. Nothing belonging to complainant was recovered from House bearing No. A-30 Sunset Heights, 59 Pali Hills, Bandra West. Nothing belonging to complainant was recovered from the parental house of the accused 40 Criminal Revision No. 100/06 & 101/06 at Shahi Minapur. Nothing belonging to complainant was recovered from the house of Sh. Karunesh Kumar Shahi at Muzaffarpur.
48. Let us now have a look at the allegations contained in paragraph (e) and (f) of the complaint. In these paragraphs , the complainant alleges that when they were leaving for their honeymoon at Kathmandu , her husband Rajesh Kumar Shahi insisted her to take all her jewellery and expensive clothes etc. saying that it was customary in his family to show the dowry articles like jewellery and expensive clothes to the relatives. The statement of witnesses shows that the complainant had not carried these items while leaving the home and her sister brought these articles to the Airport at the insistence of accused Rajesh Kumar Shahi. The further averment made in paragraph (e) of the complaint shows taunts made by Smt. Rekha Shahi. Thereafter the complainant alleges that all the persons mentioned above took all her jewellery and expensive clothes on the pretext of showing them to the relatives. The relatives of her husband also told her that it will not 41 Criminal Revision No. 100/06 & 101/06 be safe to carry jewellery and expensive clothes to Kathmandu . Thus, there is no specific allegation of the specific items which were entrusted by the complainant . There is no specific allegation made by the complainant about entrustment of specific item to any specific person. Even the statements of the complainant recorded during investigation do not reveal what were the exact items were there with her and to whom were these items were entrusted. Only general and vague allegations of entrustment of the jewellery or the property to accused persons cannot constitute an offence under section 406 IPC. In the case of Sukhbir Jain and Another Vs. State (supra), it was observed that regarding offence under section 406 IPC , no specific allegation has been made as to which item was entrusted to whom and when she demanded back those articles and from whom and he/she refused. To constitute an offence under section 406 IPC it is essential that there must be a clear and specific allegation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly misappropriated the same or 42 Criminal Revision No. 100/06 & 101/06 converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be sufficient to prima facie make out a cognizable offence under section 406 IPC.
49. The allegations made by the complainant in this case show that there are no clear, specific, and distinct allegations regarding entrustment to the accused, dishonest misappropriation by them or conversion to their own use and refusal by them to return back the articles. The most vital and essential ingredients of the offence under section 406 IPC are missing and as such no prima facie case under section 406 IPC is made out against the accused persons . I find, that the concerned Learned Metropolitan Magistrate has rightly hold that no case under section 406 IPC is made out against any of the accused persons.
43 Criminal Revision No. 100/06 & 101/06
50. In view of the above discussions , I find that the revision petition filed by the State is liable to be dismissed.
51. I , therefore, accept the revision petition bearing No. 100/06 filed by Sh. S.K. Shahi and quash the charges ordered to be framed against him. The revision petition filed by the State being Criminal Revision No. 101/06 is dismissed.
52. Trial Court Record be returned back with the copy of this order. Revision files be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 03rd Day of November, 2007 (DINESH DAYAL) ADDITIONAL SESSIONS JUDGE, KARKARDOOMA COURTS, DELHI