Delhi District Court
(1) Smt. Jaya Gupta vs The State (Nct Of Delhi) on 27 March, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL.
SESSIONS JUDGE-03:NW:ROHINI:DELHI
Crl Revision NO. 38/09
(1) Smt. Jaya Gupta
w/o Sh. Vinay Gupta
r/o Unit 11A, Tower-1,
Hol Sing Court, South Horizons Aptel,
Chau, Hongkong Petitioner/Revisionist no. 1
(2) Sh. Ghanshyam Das Gupta
s/o late Sh. Jagdish Prasad,
r/o 8PC Parasmanal 92/1B,
Maulana Abdul Kalam Azad Sarani,
Kolkata, West Bengal Petitioner/Revisionist no. 2
(3) Smt. Sushila Devi
w/o Sh. Ghanshyam Das Gupta
r/o 8PC Parasmanal 92/1B,
Maulana Abdul Kalam Azad Sarani,
Kolkata, West Bengal Petitioner/Revisionist no. 3
Versus
The State (NCT of Delhi)
Crl Revision NO. 41/09
1. Sh. Arun Kumar Gupta
s/o Sh. Johri Lal Gupta,
r/o E-413, New Arohi Aptts.
Plot no. 13, Sector-12,
Dwarka, New Delhi. Petitioner/Revisionist no. 1
Crl. R. No. 38/09 & 41/09 Page 1 of 12
2. Smt. Kumud Gutpa
w/o Sh. Arun Kumar Gupta
r/o E-413, New Arohi Apptts.
Plot no. 13, Sector-12,
Dwarka, New Delhi. Petitioner/Revisionist no. 1
Versus
The State (NCT of Delhi)
ORDER
1. Vide this common order I propose to decide two revisions filed against order dated 25-08-2009 passed by Smt. Smita Garg, Ld. MM in case FIR no. 747/02 u/s 498A/406/34 IPC of PS Shalimar Bagh in case titled State Vs. Jaideep Gupta etc. The criminal revision no. 38/09 has been filed by Smt. Jaya Gupta, Ghanshyam Das Gupta and Smt. Sushila Devi and Criminal revision no. 41/09 has been filed by Arun Kumar Gupta and Smt. Kumud Gupta.
2. Smt. Jaya Gupta is the sister-in-law and Sh.
Ghanshyam Das Gupta and Smt. Sushila Devi are father-in-law and mother-in-law of the complainant. Smt. Kumud Gupta is also sister-in-law of complainant and Sh. Arun Kumar Gupta is the husband of Smt. Kumud Gupta. Ld. MM vide her impugned order directed the framing of charge u/s 406/34 IPC against Crl. R. No. 38/09 & 41/09 Page 2 of 12 Jaideep (husband of complainant) and Smt. Sushila Devi and u/s 498A/34 IPC against all the six accused including five accused who are revisionists before this Court. The husband of the complainant did not prefer revision.
3. Complainant Smt. Kanta Gupta got married with one Jaideep Gupta on 01-07-1990. She filed the complaint in CAW Cell on 20-09-2002 pursuant to which an FIR was registered u/s 498A/406 IPC against the husband of complainant and the revisionists. The main argument of Ld. counsels of accused is that complaint dated 20-09-2002 is a counter-blast to the divorce petition filed by her husband in 2002. It is submitted that complainant filed the complaint only after the receipt of summons in the divorce case on 26-08-2002. It is also argued that allegations against the accused especially against Nanads are vague. During the course of arguments, Sh. Pradeep Rana, advocate filed certain letters allegedly written by complainant to Kumud Gupta and Arun Kumar Gupta. It is argued that in none of these letters the complainant had made any allegation of dowry demand. It has been stated that actual cause of dispute is matrimonial discord between the complainant and her husband which has been given the colour of dowry harassment. It is also argued that cognizance of the offence has been taken by the Trial Judge without considering the fact that complaint was time Crl. R. No. 38/09 & 41/09 Page 3 of 12 barred. It has been submitted that not only the cognizance is bad in law but there is also insufficient material to constitute grave suspicion warranting the framing of charges.
4. As per allegations made in the complaint, the complainant was compelled to leave the matrimonial home on 11-06-2000 due to acts of cruelty committed by the accused. On 26-05-2002 she was abused and threatened by her husband on the occasion of marriage of cousin at Delhi. In Venka Radhamanohari (Smt.) Vs. Venka Venkata Reddy, 1993 AIR SCW 3595 (1993) 3 SCC 4 it was held by Hon'ble Supreme Court that u/s 468 Cr. P. C. the limitation for the offence u/s 406/498A IPC is three years. U/s 469 Cr. P. C., the limitation shall commence on the date of offence. It was held by Hon'ble Supreme Court that provisions of section 468 Cr. P. C., which puts a bar of limitation on prosecution, cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of family, to the complainant. It was further held that it is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before the Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public.
Crl. R. No. 38/09 & 41/09 Page 4 of 12It was further held in the said authority that Court while administering the question of limitation for an offence u/s 498A IPC, should judge that question in the light of section 473 Cr. P. C. which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether it is necessary to do so in the interests of justice. It was further held by Hon'ble Supreme Court in the said authority as under:
"Even in respect of allegation regarding an offence u/s 498-A of the Penal Code, it appears that the attention of the High Court was not drawn to Section 473 of the Code. In view of the allegation that the complainant was being subjected to cruelty by the respondent, the High Court should have held that it was in the interests of justice to take cognizance even of the offence u/s 498-A ignoring the bar of Section 468 Cr. P. C."
5. Similarly, in the case of Arun Vyas & Anr. Vs. Anita Vyas 1999 Cril. L J. 3479 it was held by their Lordship of Hon'ble Supreme Court that essence of the offence in Section 498-A IPC is cruelty as defined in the explanation appended to that Section. It is a continuing offence and on each occasion on which the respondent was subjected to cruelty, she would have a new starting point of limitation. It was further held in the said authority that Section 473 Cr. P. C. extends the period of limitation in two parts. The second part has two limbs. The first limb confers power on every competent court to take cognizance of an offence after the period of limitation if it is satisfied on the Crl. R. No. 38/09 & 41/09 Page 5 of 12 facts and in the circumstances of the case that delay has been properly explained and the second limb empowers said court to take cognizance of an offence if it is satisfied, on the facts and in the circumstances of the case that it is necessary to do so in the interest of justice. It was further held in the said authority that interest of justice demands that court should protect the oppressed and punish the oppressor/offender. In complaints u/s 498-A, the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally section 473 Cr. P. C. in favour of a wife who is subjected to cruelty if on the facts and in the circumstances of the case it is necessary to do so in the interests of justice. It was further held in the said authority that when the conduct of the accused is such that applying rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the Court may take cognizance of an offence after the expiry of period of limitation in the interest of justice.
6. Applying the aforesaid principles of law, the Hon'ble High Court of Punjab and Haryana in Hussan Lal and Another Vs. State of Punjab and Anr. 2002 Crl. L. J. 2436 refused to quash the summoning order passed by Ld. Magistrate on the ground of limitation. As per the allegations contained in the complaint, the Crl. R. No. 38/09 & 41/09 Page 6 of 12 last act of cruelty was committed on 26-05-2002 when complainant was abused and threatened and her husband refused to return her jewellery articles. The contention of Ld. counsel of accused Kumud Gupta and Jaya Gupta is that qua them the period of limitation commences from June 1999 when they visited the matrimonial home of complainant in vacations and gave beatings to the complainant. If June 1999 is taken to be the date of commencement of limitation period, obviously the complaint dated 20-09-2002 having been filed approximately four months after the completion of three years from the date of cognizance of limitation is time barred. But the Ld. MM while relying on the principles of law laid down in case of Arun Vyas Vs. Anita Vyas condoned the delay in filing the chargesheet by construing liberally the provisions of 473 Cr. P. C. which in my opinion is the right approach in view of the law laid down by Hon'ble Supreme Court.
7. Ld. Metropolitan Magistrate in her order culled out the following allegations against the accused persons:-
(i) That on 05-07-1990, the complainant and her husband left for Bangalore for their Honeymoon and during the said trip, the husband kept on complaining that the dowry given in the marriage was insufficient.
(ii) that on 20-05-1991, the brother of the complainant along with Crl. R. No. 38/09 & 41/09 Page 7 of 12 his wife visited her matrimonial home. After their departure, the mother-in-law and father-in-law gave beatings to the complainant and locked her in a room expressing their displeasure over the complaint made by her to her brother and sister-in-law;
(iii) that in the month of November 1996, a meeting was organized between the husband and father of the complainant at Alwar. After the said meeting, the husband and accused Arun Gupta visited the parented house of the complainant at Delhi and accused Arun Gupta raised a demand of Rs. 2 lakhs from her father and stated that the payment thereof would put an end to the complaints of insufficient dowry and that the complainant would be able to live properly in her matrimonial home. Her father expressed his inability to pay Rs. 2 lakhs, however a sum of Rs. One lakh in cash was paid by him to the husband in presence of accused Arun Gupta.
(iv) that after settlement of marriage of accused Jaya Gupta, the father-in-law of the complainant made several telephonic calls to her father in respect of demand of Rs. 2 lakhs which was paid by her father in cash to her father in law on 18-04-1998;
(v) that in the month of June 1999, accused Kumud Gupta and Jaya Gupta visited the matrimonial home of the complainant in vacations. During the said period, on one day the husband and both the sisters in law gave beatings to the complainant and dragged her with her hair;Crl. R. No. 38/09 & 41/09 Page 8 of 12
(vi) that on 10-06-2000 the husband gave severe beatings to the complainant with belt resulting in blue marks on her body. On the next day, the complainant was again beaten by her husband and was ousted from the matrimonial home along with the minor child.;
(vii) On 26-05-2002 on the occasion of marriage of the cousin sister of the husband of the complainant in Mahavir Vatika in Delhi, the husband of the complainant threatened her that she would not be spared if she ever visited Calcutta.
8. Ld. counsels of accused have relied on the various judgements including that of Bhaskar Lal Sharma & Anr. Vs. Monica (2009) 10 SCC 604. There is no dispute with regard to proposition of law laid down in the authorities cited by the Ld. defence counsels. Ld. defence counsel for Arun Gupta has argued that even if the averments made in the complaint are to be accepted, the only allegation against the accused Arun Gupta is that he had made demand of Rs. 2 lakhs from the father of complainant telling him that payment thereafter would put an end to the complaints of insufficient dowry and she would be able to leave peacefully in her matrimonial home and as per allegations, an amount of Rs. One lakh was paid to the husband of the complainant and not to accused Arun Gupta. It is thus submitted that Arun Gupta had not made any dowry demand for himself nor Crl. R. No. 38/09 & 41/09 Page 9 of 12 gained anything and therefore no charge is made out u/s 498-A IPC against him. The essential ingredient of Section 498-A IPC are:
(1) A woman must be married;
(2) She must be subjected to cruelty;
(3) Cruelty must be of the nature of:
(a) any willful conduct as was likely to drive such woman:
(i) to commit suicide; (ii) cause grave injury or danger to her life, limb, either mental or physical;
(b) harassment of such woman, (1) with a view to coerce here to meet unlawful demand of property or valuable security, (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand, (C) Woman was subjected to such cruelty by: (1) husband of that woman, or (2) any relative of the husband.
9. For the consideration of offence u/s 498-A IPC, the aforesaid ingredients must be held to be existed. There is nothing in Section 498-A IPC which requires that person making unlawful demand is not liable unless he makes such a demand for his own benefit. In my view, there is specific allegations against accused Arun Gupta regarding demand of Rs. 2 lakhs. If the complaint is read as a whole, it may be noticed that there are specific instances of harassment caused by revisionists to the Crl. R. No. 38/09 & 41/09 Page 10 of 12 complainant and the purpose of harassment was to coerce the complainant to meet unlawful demand of property.
10. There are also allegations in the complaint that all the jewellery articles except the articles of daily use, were kept by Smt. Sushila Devi, mother in law and nanad Smt. Kumud Gupta. There are also allegations that all the jewellery articles of the complainant have been kept in two lockers, one maintained in the name of mother in law at Alwar and the other maintained in the joint name of mother in law and her husband in Calcutta. She has also alleged that her husband and mother in law refused to return her jewellery and other articles despite demands. The allegations in the complaint prima facie constitute offence U/s 498-A IPC against all the revisionists and u/s 406/34 IPC against mother-in-law/revisionist herein and husband of complainant. At the stage of charge, Magistrate has to take only prima facie view of the matter against the accused. The letters relied upon by the accused in their defence cannot be gone into at this stage. On the basis of evidence culled out from the complaint by Ld. MM, I am unable to hold that that there are no ground for holding that charge was groundless. I, therefore, find no impropriety or illegality in the order passed by Ld. Metropolitan Magistrate which calls for any interference. There is no merit in the revision petition filed by the revisionist. Both the revisions are Crl. R. No. 38/09 & 41/09 Page 11 of 12 accordingly dismissed. One copy of the order be kept in both the revision files. Trial court record be sent back with copy of this order. The revision files be consigned to Record Room.
( RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI: DELHI ANNOUNCED IN THE OPEN COURT ON 27-03-2010.
Crl. R. No. 38/09 & 41/09 Page 12 of 12