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Kamlesh Negi & Anr. Vs. State of Rajasthan & Anr.

Judgement

 

Court:Rajasthan High Court

Bench: JUSTICE Sandeep Mehta

Kamlesh Negi & Anr. Vs. State Of Rajasthan & Anr. On 04 March 2013

Law Point:
Indian Penal Code, 1860 — Sections 498A, 406 — Cruelty — Criminal Breach of Trust — Cognizance of Offence — Quashing of — Last alleged act of cruelty upon complainant, which might remotely be covered under definition of cruelty as per Section 498A, IPC could be said to be committed by accused in the year 1994 — No allegation of complainant that she entrusted any of her dowry articles or Stridhan to accused so as to justify invocation of offence under Section 406, IPC against accused — Order passed by Judicial Magistrate taking cognizance against petitioner cannot be sustained and quashed.

 

 

JUDGEMENT

 

1. The instant misc. petition has been filed by the petitioners challenging the order dated 29.10.2009 passed by the learned Judicial Magistrate No. 2, Jodhpur in Case No. 19/09 whereby the learned Magistrate has taken cognizance against the petitioners for the offences under Sections 498A and 406 of the I.P.C.

2. The facts of the case are that the petitioner No. 1 Kamlesh Negi and Smt. Hema Negi respondent No. 2 herein were married on 14.4.1994 at Noida. After the marriage, the complainant stayed for some time with the accused at the Government residence of the accused No. 4 namely Jagmohan Singh Negi. The complainant has alleged that she was never taken to the ancestral home of the accused at Kanpur. She further alleged that the total dominance in the house was that of Jagmohan and Smt. Kamla the uncle and aunt of the petitioner No. 1. The complainant further alleged that despite the fact that her horoscope did not match with the petitioner Kamlesh, the accused No. 3 Kamla Negi fraudulently got the horoscope matched with the petitioner Kamlesh, the accused No. 3 Kamla Negi fraudulently got the horoscope matched because the accused No. 1 was unemployed at that time. The accused party were eager to marry the accused No. 1 Kamlesh Negi with the complainant as they had a greedy eye on the wealth of the complainant’s father. The complainant alleged that even before the marriage, the accused pressurized her parents that they should cooperate with Kamlesh Negi for establishing a gas agency and a petrol pump. The complainant further alleged that the auspicious day recommended for the marriage was 13th April, 1994 but, as the birthday of the petitioner No. 2 Smt. Kamla fell on 14th April, the marriage was shifted to the said date. The complainant further alleged that after her marriage with the petitioner No. 1 Kamlesh, she was treated with extreme cruelty by her husband on the instigation of her uncle-in-law, aunt-in-law and mother-in-law. All the accused used to harass her on count of demand of dowry and used to taunt her frequently. She was asked to bring a sum of Rs. 5 lacs from her father so that gas agency and petrol pump could be set up for the accused Kamlesh. The complainant alleged that ultimately when the harassment exceeded all the limits, she called her father over phone and requested him to come down to her matrimonial home. Her parents came to Noida and tried for a settlement but the accused did not pay any heed to their efforts and instead, continued the harassment of the complainant. The complainant further alleged that all through the period, she remained with her husband, he never took for any outing but rather, used to take the petitioner No. 2 Smt. Kamla out with him. She further alleged that her aunt-in-law Smt. Kamla herein did not desire that the complainant should bear a child and the uncle-in-law Sh. Jagmohan also cooperated in the said evil design of Smt. Kamla. The complainant also alleged in her complaint that her father retired as a Chief Engineer from the ONGC at Jodhpur and that he spent a sum of Rs. 15 lacs in the marriage and showered the house of the accused with gifts and dowry articles. Ultimately she has alleged that after 4-5 months of the marriage, i.e. in September 1994 the cruelty of the accused exceeded all limits and the complainant was assaulted in relation to the demand of Rs. 3 lacs and when the complainant did not accede to the illegal demands of the accused, she was turned out of the house in the clothes, which she was wearing. The complainant reached the house of her sister, who lives at Delhi and told her of the misfortune, which had befallen her. The complainant’s parents and other relatives tried to make the accused understand but they did not relent to the requests. The complainant further alleged that after being turned out of the matrimonial home, she was living at her father’s house. She was forced to file an application for maintenance in the Family Court, Jodhpur in 1996 on which the accused came to Jodhpur and agreed to take the complainant back in matrimony only if she consented to stay in the house as a servant and did not interfere in the relations of the accused Kamlesh and Smt. Kamla and further on the demand of Rs. 3 lacs’ dowry being met.

3. The accused Kamlesh filed a divorce petition in the Court at Ghaziabad in the year 1999. In pursuance to the summons issued by the Court, the complainant went to Ghaziabad and tried to persuade the accused for taking her back into matrimony. The accused, however, repelled all her efforts and instead forced the complainant to accede to the application for a divorce. The complainant however, resisted these attempts of the accused. Since, the attempts of the accused to force the complainant into agreeing to a divorce did not succeed, the accused did not appear for persuading the divorce application numerous dates on which, the Court dismissed the application. Thereafter, the accused did not appear in the Court on 5 dates upon which the Court dismissed his divorce application. The complainant further alleged in her complaint that the accused Kamla got the petitioner No. 1 married with a girl named Kiran, who was resident of Pauri Garhwal and that a child has also been born from the said wedding. The complainant further alleged that the accused by entering into a second marriage has committed a serious offence of bigamy and that her Stridhan was also not returned and thus, the accused should be prosecuted for the offences set out in the complaint.

4. The learned Trial Court proceeded on the complaint by recording the statement of the complainant under Section 200 of the Cr.P.C. The complainant in her statement repeated all the allegations which were levelled in the complaint, but significantly enough, she remained silent about the incident of the year 1996, which has been referred to in para 5 of the complaint. She has only stated that she filed an application in the Family Court, Jodhpur for maintenance wherein, the Court awarded a sum of Rs. 500 per month as maintenance to her. She has made one addition in her statement and has alleged that on 18.10.2008 Kamlesh, her uncle-in-law, aunt-in-law came to Jodhpur to attend the date of hearing in the Family Court and thereafter they came to her father’s house and quarreled with her and tried to force her to sign the divorce papers to which she refused. She has made no allegation that the accused made any demand of dowry from her or her father when they came down to Jodhpur. After the complainant was examined under Section 200, Cr.P.C., the learned Magistrate forwarded the complaint to the Police for enquiry under Section 202, Cr.P.C. whereupon certain statements were recorded by the inquiry officer and the report of enquiry was filed in the Court. The learned Magistrate by the order dated 29.10.2009 proceeded to take cognizance against the petitioners and summoned them for the offences under Sections 498A, 406 and 323, I.P.C. The petitioners have now approached this Court by way of the instant misc. petition assailing the order taking cognizance.

5. Ms. R.K. Singhal, learned Counsel for the petitioner submitted that ex facie the allegations levelled by the complainant in her complaint are unworthy of credence. He contended that none of the alleged acts in relation where to the complaint has been filed constitute any offence under Section 498A or 406, I.P.C. He urged that the complainant has not alleged that she had entrusted any of her dowry articles to the accused so as to make the accused liable for the offence under Section 406, I.P.C. He further contended that admittedly the complainant is living separately from the accused since; the year 1994 and the complaint has been filed after nearly 15 years i.e. in the year 2009. He thus prayed that the order taking cognizance deserved to be quashed as the proceedings are time barred and as also on the ground that the Court at Jodhpur had no jurisdiction to try the case.

6. Learned Public Prosecutor has vehemently opposed the submissions advanced by the learned Counsel for the petitioners.

7. None has appeared to contest the case on behalf of the complainant respondent No. 2 despite service.

8. Heard and considered the arguments advanced at the bar and perused the order impugned.

9. From a perusal of the documents of complaint, which have been filed on record and the admitted allegations of the complaint, it is not in dispute that the complainant and the accused are living separately since the year 1994. The complainant’s marriage with the accused No. 1 was solemnised at Noida. The accused and the complainant had no occasion to interact at Jodhpur. In the complainant’s testimony by way of her statements recorded under Section 200 of the Cr.P.C., she has not stated about any such act of cruelty committed on her by the accused upon her at Jodhpur which could make them liable to fact trial for the offences under Sections 498A/406, I.P.C. at Jodhpur. The complainant has not alleged in her complaint that any of her dowry articles were entrusted to any of the petitioners. The only incident in relation whereto the accused have been hauled up in the criminal proceedings at Jodhpur is alleged to be the incident of 18.10.2008 wherein, the accused are alleged to have come to Jodhpur on the date fixed by the Family Court. The highest case of the complainant in relation to the said incident is that the accused came to her father’s house and pressurised her to sign the divorce papers after quarrelling with her. This act of the accused per se cannot be said to be constituting any offence under Section 498A of the I.P.C.

10. The Hon’ble Apex Court in the case of Shakson Belthissor v. State of Kerala & Anr., reported in II (2009) DMC 412 (SC)=II (2009) DLT (Crl.) 654 (SC)=III (2009) CCR 359 (SC)=AIR 2010 SC (Suppl.) 864, considered the concept of cruelty as defined in Section 498A and observed as under:

“It was fairly agreed at bar that the aforesaid FIR was filed by Respondent No. 2 with the intention of making out a prima facie case of offence under Section 498A of the Indian Penal Code. The charge-sheet, which was filed by the police was under Section 498A of the Indian Penal Code. As to whether or not in the FIR filed and in the charge-sheet a case of Section 498A, IPC reads as follows—

“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 punished 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 meet such demand.”

21. In the light of the aforesaid language used in the section, the provision would be applicable only to such a case where the husband or the relative of the husband of a woman subjects the said woman to cruelty. When the ingredients of the aforesaid section are present in a particular case, in that event the person concerned against whom the offence is alleged would be tried in accordance with law in a trial instituted against him and if found guilty the accused would be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The said section contains an explanation, which defines ‘cruelty’ as understood under Section 498A, IPC. In order to understand the meaning of the expression ‘cruelty’ as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.

22. When we examine the facts of the present case particularly the FIR and the charge-sheet we find that there is no such allegation either in the FIR or in the charge-sheet making out a prima facie case as narrated under Explanation (a). There is no allegation that there is any such conduct on the part of the appellant which could be said to be amounting to cruelty of such a nature as is likely to cause the Respondent No. 2 to commit suicide or to cause any injury to her life. The ingredient to constitute an offence under Explanation (a) of Section 498A, IPC are not at all mentioned either in FIR or in charge-sheet and in absence thereof, no case is made out. Therefore, Explanation (a) as found in Section 498A, IPC is clearly not attracted in the present case.

23. We, therefore, now proceed to examine as to whether the case would fall under Explanation (b) of Section 498A of IPC constituting cruelty of the nature as mentioned in Explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge-sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty.

24. The marriage between the appellant and Respondent No. 2 was performed on 23.10.1997 when it is alleged that Rs. 5 lakh was given by the parents of Respondent No. 2 to the family of appellant as dowry. The FIR was filed in the month of April, 2002 and in the said FIR there is no allegation that subsequent thereto any harassment was made by the appellant with a view to coercing her or any person related to Respondent No. 2 to meet any unlawful demand or any property.

25. In that view of the matter neither Explanation (a) nor Explanation (b) of Section 498A of IPC is attracted in the present case. It is crystal clear that neither in the FIR nor in the charge-sheet there is any ingredient of Section 498A, IPC, which could prima facie constitute a case of cruelty as defined in that section.

26. It is thus established that on a reading of the FIR as also the charge-sheet filed against the appellant no case under Section 498A is made out on the face of the record and therefore, both the FIR as also the charge-sheet are liable to be quashed in exercise of the powers under Section 482 of the Cr.P.C. Clearly, the High Court failed to appreciate the facts in proper perspective, and therefore, committed an error on the face of the record.”

11. Examining the facts of the case at hand in the light of the interpretation of the term ‘cruelty’ by the Hon’ble Apex Court in the aforesaid judgment, this Court is of the view that none of the acts of the accused at Jodhpur as mentioned in the complaint and the statements recorded in support thereof, falls within the definition of cruelty as defined in Section 498A of the I.P.C.

12. Resultantly, this Court is of the opinion that from the admitted allegations of the prosecution, (a) none of the acts of the accused can be said to be constituting any offence under Section 406 of the I.P.C.; (b) the offences if any which might have been committed by the accused were committed in the year 1994 and that too at Noida, (c) the last alleged act of cruelty upon the complainant, which might remotely be covered under the definition of cruelty as per Section 498A, I.P.C. could be said to have been committed by the accused in the year 1994, (d) there is no allegation of the complainant that she entrusted any of her dowry articles or Stridhan to the accused so as to justify the invocation of the offence under Section 406, I.P.C. against the accused.

13. The offences under Sections 498A and 406, I.P.C. for which cognizance has been taken are punishable with an imprisonment of 3 years and as such, the limitation for taking cognizance for such offences would be 3 years as per Section 468 of the Cr.P.C.

14. The Hon’ble Apex Court in the case of Arun Vyas v. Anita Vyas, reported in II (1999) DMC 247 (SC)=V (1999) SLT 184=AIR 1999 SC 2071, held that the last act on which the wife is subjected to cruelty would be the starting point of limitation for taking cognizance for the offence under Section 498A of the IPC. The Hon’ble Apex Court observed as below:

“The essence of the offence in Section 498A 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. The last act of cruelty was committed against the respondent, within the meaning of the explanation, on October 13, 1988 when, on the allegation made by the respondent in the complaint to Additional Chief Judicial Magistrate, she was forced to leave the matrimonial home. Having regard to the provisions of Sections 469 and 472 the period of limitation commenced for offences under Sections 406 and 498A from October 13, 1988 and ended on October 12, 1991. But the charge-sheet was filed on December 22, 1995, therefore, it was clearly barred by limitation under Section 468(2)(c), Cr.P.C.”

15. In the aforesaid judgment, the Hon’ble Apex Court has held that the Court should protect the oppressed woman and the endeavour of the Court should be to punish the offender and therefore, in appropriate cases, in cases of delayed complaints, it should construe liberally the provisions of Section 473, Cr.P.C. in favour of a wife. Even if the said observations are considered then too, this Court is not satisfied that a delay of more than 15 years can be condoned in this case by way of exercising the powers under Section 473, Cr.P.C. The Hon’ble Apex Court in the case of Kishan Singh (dead) through L.Rs. v. Gurpal Singh, reported in III (2010) CCR 442 (SC)=III (2010) DLT (Crl.) 763 (SC)=VI (2010) SLT 320=AIR 2010 SC 3624, considered the question of delay occasioned in filing of the complaint and held as below:

“21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant’s case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal [vide Sahib Singh v. State of Haryana, AIR 1997 SC 3247].

22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the Court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and prosecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the Court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case (vide Chandrapal Singh & Ors. v. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604 : (1992 AIR SCW 237); G. Sagar Suri & Anr. v. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. & Ors., (2008) 12 SCC 531).”

16. The Hon’ble Apex Court in the case of Y. Abraham Ajith & Ors., v. Inspector of Police, Chennai & Anr., reported in II (2004) DMC 371 (SC)=V (2004) SLT 152=III (2004) CCR 130 (SC)=AIR 2004 SC 4286, and Manish Ratan & Ors. v. State of M.P. & Anr., reported in I (2007) DMC 41 (SC)=I (2007) CCR 8 (SC)=IX (2006) SLT 203=(2007) 1 SCC 262, has held that a prosecution for the offences under Sections 498A, IPC and 406, IPC can only be permitted at the place or in the Court. In the territorial jurisdiction whereof the offence was committed. As has been discussed above, in the present matter, no offence of cruelty as defined under Section 498A, IPC or breach of trust was committed by the accused at Jodhpur and thus, the Court at Jodhpur has no jurisdiction to try the case.

17. The upshot of the above discussion is that the misc. petition succeeds and is allowed. The order dated 29.10.2009 passed by the learned Judicial Magistrate No. 2, Jodhpur taking cognizance against the petitioners cannot be sustained and is quashed.

 

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