Delhi District Court
Shri Sanjeev Goyal vs State (Nct Of Delhi) on 12 August, 2011
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL
SESSIONS JUDGE-II, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
Criminal Revision No. 82/11
Date of Institution : 04.06.2011
Date of Arguments : 05.08.2011
Date of Order : 12.08.2011
Shri Sanjeev Goyal
.......Revisionist
Versus
State (NCT of Delhi)
......Respondent
ORDER
This order will dispose off a revision against order dated 04.03.2011 passed by Ms. Sunena Sharma, Ld. MM, KKD Courts, Delhi.
2. I have heard arguments on revision and perused file and trial court record.
3. The facts in brief of the present case, necessary for disposal of present case, are that marriage between revisionist and Smt. Rashmi D/o Dr. S.P. Gupta R/o 3047, Aditya Colony, Narmada Road, Jabalpur, M.P. was solemnized on 18.02.2011 at Delhi according to Hindu rites and C.R. No.82/11 Sanjeev Goel vs. State Page 1 of 9 ceremonies. Smt. Rashmi/complainant stayed in her matrimonial home for about one and half months and thereafter she went to her parental house in April, 2001 and returned back to her matrimonial home on 14.05.2001. Smt. Rashmi insisted to continue her job as a Principal in a School at Jabalpur and she wanted that revisionist should shift there. The revisionist did not agree for her proposal. Smt. Rashmi threatened him to make his life miserable. Since June, 2001, she started misbehaving with him and his family members and she did not do any household work and also stopped cohabiting with him. In the month of October, 2001, she left her matrimonial home with her father when she was having pregnancy of four months. Despite all the facts, revisionist assured her that all facilities and comforts will be provided to her but she did not agree. On 28.01.2002, a female baby was born to Smt. Rashmi at Jabalpur but the family members and revisionist were not informed immediately. In the month of February, 2002, her younger sister Ms. Shubha informed them about child's birth. Sh. Rajesh Goyal, eldest brother of revisionist, his bhabhi Archana Goyal and their son visited the complainant in the house of his uncle Sh. P.K. Gupta at Jabalpur. Revisionist did not go to Jabalpur as he was strictly told by the complainant through her sister that he should not come to Jabalpur. All efforts of revisionist failed to bring her back in the matrimonial house. She filed a complaint u/s 125 Cr.P.C. against revisionist and the court ordered for interim C.R. No.82/11 Sanjeev Goel vs. State Page 2 of 9 maintenance of Rs. 1500/- for her and her child. Revisionist filed suit u/s 13 of HMA for dissolution of marriage on the ground of desertion and that suit was decreed by the court of Sh. Arvind Kumar, Ld. ADJ, Karkardooma Court, Delhi on 24.02.2009. In order to take revenge for not acceding to her request for shifting to Jabalpur, she filed a complaint case against revisionist and his family members namely Savitri Goyal-mother in law, Rakesh Goyal-eldest brother, Anshu Goyal-bhabi and Neeraj-brother of his Bhabi on 17.06.2005 U/s 498A/34 IPC, and U/s 3 & 4 of Dowry Act at Jabalpur police station but it was sent to Delhi on 25.04.2006 and this case is pending before Ms. Sunena Sharma, Ld. MM, Mahila Court, Karkardooma Courts, Delhi. Ld. MM discharged all the family members excluding revisionist vide order dated 04.03.2011. Having aggrieved of this order, the revisionist filed present revision.
4. The impugned order has been assailed on the ground that provisions of section 498A IPC are applicable only in cases where there is acute cruelty or harassment on the part of husband and his family members to the extent that he drive the woman to commit suicide or grave injury or danger to life, limb or health, and that are not applicable in the present case. Ld. MM has failed to appreciate the vague allegations of complainant. Ld. MM has failed to appreciate that the complainant stayed in her matrimonial house for a C.R. No.82/11 Sanjeev Goel vs. State Page 3 of 9 period for not more than six and half months. The FIR was lodged after a lapse of about four years on 17.06.2005. Charge has been framed against the revisionist without examining the vital witness Smt. Neetu Srivastava to whom the complainant had stated to have met in Delhi and spoken about her harassment. Complainant has leveled false allegation of demand of Rs.2,50,000/- by revisionist on the function of Kunwar Kalewa Ceremony. It has been prayed that impugned order may be set aside.
5. It has been argued on behalf of revisionist that offence was admittedly taken place during five and half month after the marriage on 08.02.2001 during which the complainant Smt. Rashmi resided with the revisionist but she lodged the complaint on 17.06.2005. There is a bar for taking cognizance in such a case after three years from date of incident. Therefore, complaint/FIR in a case U/s 498A IPC should have been lodged within three years from the date of commission of offence. This complaint has been filed after expiry of period of limitation as provided Section 468 Cr.P.C.
6. It has also been argued on behalf of revisionist that Ld. MM has violated the principle of natural justice as accused/revisionist was not afforded an opportunity of being heard. His counsel was not present on 04.03.2011 when the impugned order was passed without hearing revisionist or his C.R. No.82/11 Sanjeev Goel vs. State Page 4 of 9 counsel.
7. It has also been argued on behalf of revisionist that evidence on record was similar against all the accused persons but Ld. M.M. has discharged other accused persons and framed the charge only against revisionist without pointing out the difference of evidence against him.
8. It has also been argued on behalf of revisionist that there was no evidence on record to attract the provisions of section 498A IPC in the present case. Therefore, there was no justification for Ld. MM to frame charge against accused/revisionist.
9. In support of his arguments, Ld. counsel for revisionist has relied on a case Sudhir Kapur & Ors. Vs. State & Anr. Crl. M.C. No. 799/2009 , Hon'ble High Court of Delhi has held that:
A failed marriage is not a crime, however, the provisions of Section 498A are being used to convert failed marriage into a crime and the people are using this as tool to extract as much monetary benefit as possible.
10. In case of Smt. Prem Lata Soni Vs. State of U.P. & Anr. 2010(2) Criminal Court Cases 807, Hon'ble Allahabad High Court has held that:
"In para 22 of Maju Ram Kalita case(supra) the Apex Court has held:C.R. No.82/11 Sanjeev Goel vs. State Page 5 of 9
"Cruelty" for the purpose of Section 498-A, IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to derive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or atleast in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty."
At this stage the case in hand requires to be examined taking into consideration the ratio and the legal provisions as stated above.
6. While giving details of facts it has been mentioned by opposite party No. 2 that she was subjected to physical and mental torture upto 1994 when she left her nuptial home finally and went to Banda to live with her younger sister. The date of the FIR containing the allegation of cruelty lodged with the Banda police is 18.02.2000 i.e. it was lodged after a lapse of some six years. More so, there is no allegation that the mental and physical torture was in continuance by the revisionist as there is no complaint against her to this effect between 1994 till this date.
In Tara Dutt's case(Supra) the Apex Court has stated that the language of sub-section 3 of Section 468 Cr.P.C. is in respect of the offence charged and not in respect of offence finally proved. This clearly means that while calculating the period of limitation that date on which the offence is charged has significance and only this date is to considered while computing the limitation."
11. In case of Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. AIR 2010 SC 3363, Supreme Court held that:
22. In State of Haryana & others V. Bhajan Lal & Others, 1992 C.R. No.82/11 Sanjeev Goel vs. State Page 6 of 9 Supp(1) SCC 335 : (AIR 1992 SC 604 : 1992 AIR SCW 237), this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure( for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down the precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to mayriad kinds of cases wherein such power should be exercised:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently 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.
(6) Where there is an express legal bar engrafted in any C.R. No.82/11 Sanjeev Goel vs. State Page 7 of 9 of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
***
24. This court in Zandu Pharmaceutical Works Ltd. and others Vs. Mohd. Sharaful Haque & another(2005) 1 SCC 122:(AIR 2005 SC 9: 2004 AIR SCW 6185) observed thus:
It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
12. I have considered the arguments addressed by Ld. Counsel for revisionist and perused the trial court record and impugned order. Perusal of the impugned order has established that it was passed without hearing arguments of Ld. Counsel for accused/revisionist. There was no occasion before Ld. MM to consider the arguments which were submitted before this court particularly at the point of limitation and applicability of rulings mentioned in this order.C.R. No.82/11 Sanjeev Goel vs. State Page 8 of 9
Therefore, the impugned order is not beyond any inaccuracy and impropriety. Consequently, impugned order is set aside and matter is remanded back to Ld. M.M. with a direction that Ld. M.M. will afford an opportunity to Ld. Counsel for accused/revisionist to address arguments on the point of limitation and applicability of principles of law laid down in a case Sudhir Kapur & Ors. Vs. State & Anr., (supra), Smt. Prem Lata Soni Vs. State of U.P. & Anr., (supra), Preeti Gupta & Anr. Vs. State of Jharkhand & Anr., (supra), on the facts of present case and then pass an order on charge in accordance with law.
13. Accused/revisionist is directed to appear before Ms. Sunena Sharma, Ld. MM on date fixed before trial court i.e. 29.08.2011 for further orders.
14. Trial court record be returned with copy of this order.
Revision file be consigned to Record Room.
Announced in the Open Court Dated:12.08.2011 (DR. T.R. NAVAL) Additional Sessions Judge-02, East, Karkardooma Courts, Delhi C.R. No.82/11 Sanjeev Goel vs. State Page 9 of 9