Delhi District Court
Harish Kumar Vashisth vs The State (Nct Of Delhi) on 7 May, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 76 of 2018
CNR NO. DLSE01-000760-2018
IN THE MATTER OF:
1. Harish Kumar Vashisth
S/o Sh. Murari Lal Vashisth,
R/o House No. 74, Gali No.2,
Bharat Colony Neharpar, Sector-87,
Faridabad, Haryana.
2. Murari Lal Vashisth
3. Sheela Devi
Both R/o House No. 1961, Gali No. E-55,
Molarband Extension, Badarpur, New Delhi.
.......Revisionists
Versus
1. The State (NCT of Delhi)
2. Ritu Bhardwaj
W/o Sh. Harish Vashisth
R/o H.No. 1779, Gali No. B-54,
Molarband Extension,
Badarpur, New Delhi.
........Respondents
Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
Crl Rev. No. 77 of 2018 Murari Lal Vashisth & Ors. vs. State & Anr. Page No. 1 of 15
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:45:25 +0530
Instituted on : 31.01.2018
Reserved on : 30.04.2022
Pronounced on : 07.05.2022
AND IN
REVISION PETITION NO. 77 of 2018
CNR NO. DLSE01-000759-2018
IN THE MATTER OF:
1. Murari Lal Vashisth
2. Lalit Kumar Vashisth
3. Praveen Kumar Vashisth
All R/o House No. 1961,
Gali No. E-55, Molarband Extension,
Badarpur, New Delhi.
.......Revisionists
Versus
1. The State (NCT of Delhi)
2. Ritu Bhardwaj
W/o Sh. Harish Vashisth
R/o H.No. 1779, Gali No. B-54,
Molarband Extension,
Badarpur, New Delhi.
........Respondents
Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
Crl Rev. No. 77 of 2018 Murari Lal Vashisth & Ors. vs. State & Anr. Page No. 2 of 15
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:45:36 +0530
Instituted on : 31.01.2018
Reserved on : 30.04.2022
Pronounced on : 07.05.2022
JUDGMENT
1. Vide this common judgment, I shall dispose of instant two revision petitions filed on behalf of revisionists challenging the common order dated 11.12.2017 passed by Ld. Metropolitan Magistrate (Mahila Court), South East District, in case bearing CC No. 1852/2017, FIR No. 111/2016, Police Station Badarpur, titled as 'State vs. Harish Kumar Vashisth & Ors.', whereby it directed for framing of charges against revisionists as under:-
(a) Murari Lal Vashisth - for offence u/s 498A/406/34 IPC;
(b) Praveen Kumar Vashisth - for offence u/s 498A/34 IPC;
(c) Lalit Kumar Vashisth - for offence u/s 498A/34 IPC;
(d) Sheela - for offence u/s 406/34 IPC;
(e) Harish Kumar Vashisth - for offence u/s 323/406/34 IPC.
2. Brief facts, as per prosecution version, may be taken note of:
A complaint was filed by the complainant against all the revisionists i.e. her husband Harish Kumar Vashisht, father-in-law Murari Lal Vashisth, mother-in-law Sheela Devi and brothers-in-law Lalit Kumar Vashisth and Parveen Kumar Vashisth, alleging that she was subjected to domestic violence for demand of dowry by revisionists. It was alleged that at the time of marriage, revisionists took a sum of Rs.8 lacs as dowry for various household articles viz. sofa, fridge, washing machine, air Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:45:44 +0530
conditioner and four wheeler. It was further alleged by complainant that the vehicle is still in possession of revisionists Lalit Kumar Vashisth and Praveen Kumar Vashisth and the cupboard containing her jeweleries, clothes and cash are in custody of revisionists Sheela Devi and Murari Lal Vashisth. It was alleged that on asking, lame excuses have been made by Sheela Devi averring that the key of the cupboard is missing or the same is lying in the bank locker.
3. It was further alleged that at the instance of other family members, revisionist Harish Kumar Vashisth threatened her that he will shift abroad. On these allegations, instant FIR under section 498A/406/506/34 IPC was registered against revisionists and matter was investigated.
4. Ld. Trial Court vide impugned order found sufficient material to frame charges against the revisionists i.e. Murari Lal Vashisth (father-in-law) for offence u/s 498A/406/34 IPC, Praveen Kumar Vashisth and Lalit Kumar Vashisth (brothers-in-law) for offence u/s 498A/34 IPC, Sheela (mother-in-law) for offence u/s 406/34 IPC and Harish Kumar Vashisth (husband) for offence u/s 323/406/34 IPC.
5. For the sake of convenience, the relevant portion of the impugned order passed by Trial Court is reproduced as under:-
"Perusal of record shows that there is a specific allegation of payment of Rs.8 lakh as dowry in the complaint of complainant against the accused Murari Lal, Parveen Kumar and Lalit Kumar. It is further alleged in the Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:45:52 +0530
said complaint that the accused persons ensured that the vehicle purchased out of the said Rs.8 lakh in the name of one of the abovesaid accused persons. The abovesaid allegation is sufficient to prima facie show exchange of dowry and thus charge U/s 498A/34 IPC is made out against the abovesaid accused persons.
Record further shows that complainant has consistently made the allegation of her dowry articles being in the custody of accused Sheela Devi and that same has never been returned to her. Record also shows that complainant has specifically alleged that accused Murari Lal has also refused to return the dowry articles to complainant. Furthermore, in proceedings before CAW Cell, there is a list of dowry articles in which it is admitted by accused Harish that there are certain articles which have been consumed and that accused Harish is willing to return the same only when CAW cell proceedings shall began. Thus, Prima facie case is made out for the offence u/s 406/34 IPC against above said accused persons namely Murari Lal Vashisth, Harish Kumar and Smt. Sheela Devi.
Complainant has made consistently allegation of beatings given by accused Harish to her during the subsistence of their marriage. Although no medical document has been placed on record, but lack of medical document itself is not sufficient to discharge accused Harish when there are consistent allegation of beatings. Thus, Prima facie case is made out for the offence u/s 323 IPC against accused Harish.
In the entire charge-sheet, there is not a single allegation of dowry demand by accused Harish, Sheela Devi and Rashmi and Ruby. Without allegation of dowry demand, there is no material on record to frame charge U/s 498A IPC against the said accused persons. Furthermore, complainant has not made any specific allegation against accused Lalit and Parveen regarding their role in entrustment of dowry articles or refusal to return on demand. She has made vague allegations, without referring to any specific date or time or person about misappropriation against all the summoned accused persons. It is well established that for framing of charge, specific allegation is necessary. Thus, in view of vague Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:00 +0530
allegation, accused Praveen, Lalit, Rashmi and Ruby are discharged U/s 406 IPC.
Although the present charge-sheet has been filed U/s 506 IPC, but there is no specific allegation of threat or alarm caused to complainant by such threat and thus no case U/s 506 IPC is made out against any accused persons.
In view of the abovesad discussion charge has been framed against accused persons accordingly and explained to them in vernacular. The accused have pleaded not guilty and claimed trial.
Put up for PE on 28.02.2017. Complainant be summoned for PE."
6. The revisionists are aggrieved with the impugned order and have assailed the same on various grounds which can be summarized as under:-
(i) That Ld. Trial Court has passed the impugned order in a mechanical manner and same is liable to be set-aside;
(ii) That Ld. Trial Court failed to appreciate that the allegations levelled by the respondent No.2 against the revisionists are general and vague in nature so as to cause harassment and undue pressure upon them;
(iii) That Ld. Trial Court failed to appreciate that during the proceedings before CAW Cell on 10.04.2016, the revisionist No.1 i.e. husband was ready and willing to handover the gift articles to the respondent No.2 but she did not turn up intentionally;
(iv) That Ld. Trial Court failed to appreciate that it is a general and vague complaint that the ornaments/clothes were given in the custody of the revisionists and they were not returned;
Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
Crl Rev. No. 77 of 2018 Murari Lal Vashisth & Ors. vs. State & Anr. Page No. 6 of 15
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:08 +0530
(v) That Ld. Trial Court failed to appreciate that the basic ingredients of section 406 IPC as well as section 498A IPC are not attributed in the present case against the revisionists;
(vi) That Ld. Trial Court failed to appreciate that section 323 IPC is also not made out in the instant matter as there is no MLC of complainant/respondent No.2 on record.
(vii) That the impugned order is against the settled principles of law;
7. Ld. Counsel for revisionists argued on the line of grounds as taken in instant revision petitions. Ld. Counsel vehemently argued that the Ld. Trial Court erred in law in passing the impugned order against the revisionists. It was further argued that complainant has not come with clean hands and has concealed material facts. It was argued that complainant is intentionally harassing the revisionists with a feeling vengeance. It was further argued that the alleged offences under section 498A/406 IPC are not made out against the revisionists in the absence of specific material on record. On the strength of these arguments, revisionists pray for setting aside of the impugned order. Ld counsel for revisionists has relied upon following judgments in support of his contentions :-
a) Shahkon Belthissor Vs State of Kerala, 2009 (14) SCC 466;
b) Onkar Nath Mishra Vs State of NCT of Delhi, 2008 (2) SCC 561;
c) Neelu Chopra Vs Bharti, 2009 (10) SCC 184;
d) Raj Kumar Khanna Vs State, 2002 (1) JCC 327;
e) Anu Gill Vs State, 2001 (92) DLT 179;
f) Sukhbir Jain Vs State, II (1992) DMC 259
8. Per contra, Ld. Counsel for complainant/respondent no.2 Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:15 +0530
argued that there is no infirmity in the impugned order as the same has been passed keeping in view the facts and material available on record and therefore the instant petitions are liable to be dismissed. Ld counsel for complainant has relied upon following judgments in support of his contentions :-
a) Onkar Nath Mishra & Ors Vs State (NCT of Delhi), Appeal (Crl) No.1716/2007, decided on 14.12.2007,
b) Gaurav Thapar Vs State NCT of Delhi, Crl MC No.3761/2012.
9. I have heard rival contentions and perused the record.
10. Since the statutory provision of section 498A IPC has an important bearing in the present matter, therefore, same is being reproduced hereinbelow for the sake of convenience :-
" Section 498A in The Indian Penal Code :-
498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun- ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
11. If the allegations made by respondent/complainant are tested upon the touchstone of aforesaid statutory principles, I am of the considered view that no charge under section 498A IPC could have been framed in the instant case. In my opinion, even if all the allegations of Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:23 +0530
complainant are taken true on its face value, then also the case of complainant at best is that a sum of Rs.8 lacs were taken by revisionists from her father at the time of marriage. Therefore, admittedly the demand for dowry, if any was made prior to solemnization of marriage meaning thereby the status of revisionist Harish Kumar Vashsith and complainant/respondent Ritu Bhardwaj was not that of husband and wife at the relevant time. However, the statutory provisions of section 498A IPC are very much clear as same are attracted only in case the cruelty (as defined under said provision) is committed by husband or by any of his family members. All the other allegations as made by complainant/respondent in the complaint do not come within the ambit of cruelty as defined under section 498A IPC and therefore, I am of the considered view that Ld Trial Court fell into grave error while framing charges against the revisionists Murari Lal Vashisth, Praveen Kumar Vashisth and Lalit Kumar Vashisth for said offence and the order of Ld Trial Court on that count is liable to be set aside having been suffering from jurisdictional error.
12. Now coming to the impugned order whereby charges were directed to be framed against the revisionists Murari Lal Vashisth, Sheela and Harish Kumar Vashisth for offence under section 406 IPC: In support of said charge, Ld Trial Court relied upon following statement of complainant :-
" aur meri almari jisme ghena (sona chandi), kapade, cash hai weh saas sasur ke kabze mein hai. Mere baar baar mangne par gehno ke baare mein kabhie kehte chabi nahi mil rahi aur kabhie kehte hai bank locker mein hai aur kehte hai tujhe much pe vishwas nahi hai tu Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:32 +0530
hamare yahan rahegi ya nahi rahegi."
13. As rightly pointed out by Ld counsel for revisionists, only vague and general allegations have been made by respondent/complainant against revisionists Murari Lal Vashisth, Sheela and Harish Kumar Vashisth in support of said charges. In my considered view, the facts as alleged by complainant/respondent do not reveal that at any point of time, the respondent made entrustment (of her jewellery, clothes and cash) to the said revisionists or same were later on misappropriated by the latter with dishonest intention. The necessary ingredients of section 406 IPC are conspicuously missing in the instant case. The factual matrix herein is squarely covered in the judgment titled Onkar Nath Mishra (supra). In the said case, the allegations against the accused (being the father-in-law) were that he refused to return the stridhan despite request of complainant. The Hon'ble Apex Court while quashing the charge for offence under section 406 IPC inter alia observed as follow :-
" 18. In the present case, from a plain reading of the complaint filed by the complainant on 8.11.1994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the Stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 I.P.C. It is manifestly clear from the afore- extracted complaint as also the relevant portion of the charge- sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. Furthermore, it is also noted in the charge-sheet itself that the complainant had refused to take articles back when this offer was made to her by the Investigating Officer. Therefore, in our opinion, the very pre- requisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 I.P.C. was made out. "
Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:41 +0530
14. Further, even if it is assumed that there was an entrustment, then also, I am of the considered view that only general and vague allegations have been made without elaborating upon the date, time and place when the stridhan was handed over. The details of said stridhan i.e. the number or the weight of jewellery articles, the amount of cash etc is also conspicuously missing in the instant case. Therefore, in such an eventuality, it would be unsafe to hold that a grave suspicion arises against the said revisionists so as to charge them for offence under section 406 IPC.
15. Similarly, while ordering for framing of charge against revisionist Harish Kumar Vashisht for offence under section 406 IPC, Ld Trial Court relied upon the proceedings dated 10.04.2016 conducted before CAW Cell wherein it was mentioned that revisionist had admitted that certain articles (stridhan/dowry articles) have been consumed and he is willing to return the same once the CAW proceedings begin. However, in my considered view, Ld Trial Court fell into grave error while relying upon those proceedings for framing charges against revisionist Harish Kumar Vashisth for offence under section 406 IPC as it is clear that the said proceedings (dated 10.04.2016) were in the nature of a confessional statement made to concerned SHO and therefore, same were hit by section 25 Indian Evidence Act and could not have and rather ought not to have been relied upon by Ld Trial Court.
16. The complainant/respondent did not make any specific allegations against the revisionist Harish Kumar Vashisht for offence Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:51 +0530
under section 406 IPC and therefore, in the absence of any material on record, no charge under section 406 IPC could have been framed against said revisionist on the basis of his inadmissible statement made to a police official.
17. In my view, only vague and general allegations have been made by complainant in support of offences under section 498A/406 IPC and no specific role in furtherance of said general allegations have been attributed upon the revisionists. This simply leads to a situation where the specific role played by any of said revisionists cannot be ascertained in the furtherance of the offence. The allegations are general and omnibus and do not give rise to any grave suspicion against any of the said revisionists. Reliance is placed upon judgment of Hon'ble Apex Court in Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar & Ors, 2022 SCC Online SC 162 (Crl. Appeal No. 195/2022 decided on 08.02.2022).
18. Though it can be argued that on the basis of statement of complainant, a suspicion arises against the revisionists, however it is a settled law that mere suspicion shall not suffice for framing charge against any accused and the test is that of 'grave suspicion'. Reliance is placed upon judgment of Hon'ble Apex Court in the matter of Union of India vs. Prafulla Kumar Samal and Ors. , AIR 1979 SC 366, wherein it was held that the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:46:59 +0530
accused is made out or not. It has been further held that where the materials placed before the Court disclosed a 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. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to discharge the accused. It is a settled law that the presumption howsoever strong cannot take place of proof. Relevant portion of the afore-mentioned judgment is reproduced hereinunder:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(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 Judge cannot act merely as a Post Office or a mouth-
piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:47:06 +0530
19. If the present case is tested upon the touchstone of settled principles of law, I am of the considered view that no grave suspicion arises against revisionists Murari Lal Vashisth, Praveen Kumar Vashisth, Lalit Kumar Vashisth, Sheela and Harish Kumar Vashisth so as to charge them for offence under section 498A/406 IPC. Therefore, in my considered view, the impugned order to the extent whereby charges were framed against concerned revisionists for said offences is liable to be set aside. Directed accordingly.
20. However, as far as charge under section 323 IPC is concerned, it is evident from record that specific allegations have been made against revisionist Harish Kumar Vashisht by the complainant that former assaulted her. The contention of Ld counsel for revisionists that in the absence of MLC, no charges can be framed is without any merit as there is no rule of law or prudence that the medical examination of complainant is necessary for attracting offence under section 323 IPC and in my view, the assertions of complainant would suffice for raising grave suspicion against the revisionist Harish Kumar Vashisth. Therefore, it is held that there is no infirmity in the impugned order to the extent whereby charge framed for offence under section 323 IPC against revisionist Harish Kumar Vashisth.
21. With these observations, present petition stands partly allowed. The impugned order thereby framing charges against revisionists Murari Lal Vashisht, Praveen Kumar Vashisth, Lalit Kumar Vashisth, Sheela and Harish Kumar Vashisth for offence u/s Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.07
12:47:14 +0530
498A/406 IPC stands set aside. Accordingly, they stand discharged in the instant case for offence under section 498A/406 IPC. All the revisionists (except Harish Kumar Vashisht) are directed to furnish personal bond in the sum of Rs.20,000/- with one surety of like amount in terms of section 437A Cr.PC to the satisfaction of Ld Trial Court.
22. TCR be sent back to the Ld. Trial court along with copy of judgment.
23. The signed original copy of the judgment be placed in Crl Rev No. 76/2018 and digital signed copy be placed in Crl Rev No.77/2018.
24. Both the revision files be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.05.07 12:47:26 +0530 Announced in the open (ANUJ AGRAWAL) Court on 07th May 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev No. 76 of 2018 Harish Kumar Vashisth Ors. vs. State & Anr. Crl Rev. No. 77 of 2018 Murari Lal Vashisth & Ors. vs. State & Anr. Page No. 15 of 15