The present petition, under Section 482, Cr.P.C., has been received from Hon'ble Bombay High Court under the orders of the Apex Court dated 19.09.2012 for disposal.
By means of this petition, the petitioner has prayed for quashing of the proceedings of Case No.2793 of 2011 arising out of FIR No.46 of 2011, under Sections 498A, 323, 506 IPC and Sections 3 and 4 of D.P. Act, Police Station Alambagh, District Lucknow pending before learned Additional Judicial Magistrate-IV, Lucknow.
Brief facts for deciding this petition are that a first information report has been lodged by opposite party no.3 Mrs. Kiran alleging therein that she was married according to Hindu rites and rituals to Deepak Gupta resident of Maharashtra, on 31.01.2008 at Lucknow. In the said marriage, sufficient dowry has been given to her in-laws i.e. Freeze (Refrigerator), LCD TV, Washing Machine, Double Bed, Sofa Set, Cupboard, Dining Set, costly cloths of about 2,00,000/-, Swift Maruti Car of Rs.5,50,000/-, cash Rs.1,51,000/-and ornaments of Rs.1,50,000/-. The in-laws are moneyed person having good wholesale business of fruits under the name and style M/S Ramavtar & Sons at J.B., 486, APMC Fruit Market, Vashi, Navi Mumbai. In February, 2009 she came to her parental house. The in-laws after that made additional demand of Rs.15,00,000/-. On 27.11.2010 the in-laws informed that if the said demand is not fulfilled, she shall not be taken back and her husband will marry again. She also stated that after marriage her father-in-law Sri Ram Avatar Gupta,husband Deepak Gupta , mother-in-law Smt. Urmila Gupta, brother-in-law Jitendra Gupta, sister in law (Nand) Smt.Sunita Devi, Devar Dipesh Gupta, Devar Nilesh Gupta and the present petitioner Rajiv Kaplipdev Gupta , Bhanja of the father-in-law of opposite party no.3, started harassing and torturing her and threatened to kill her if demand of dowry is not fulfilled.
On the basis of the aforesaid FIR, the investigation was carried out and the police submitted charge-sheet against the accused persons including the petitioner on the basis of statements recorded during investigation . After filing of the charge-sheet, the trial court has taken cognizance against the present petitioner too. Aggrieved by the same and consequent proceedings , the present petition has been filed.
Heard Sri Rajiv, petitioner-in-person and learned A.G.A. for the State. None appeared on behalf of opposite party no.3 though the counter affidavit on behalf of opposite party no.3 has been filed.
It has been contended by the petitioner that he is named in the first information report but he was implicated as an accused for the reason that he is working as an advocate in a case filed by the husband of opposite party no.3 . He is not related in any manner by blood, marriage or adoption to the husband of the deceased and as such, he does not come within the meaning of word 'relative of husband' used under Section 498-A IPC. In support of his contention, the petitioner relied upon the judgement of the Apex Court in the case of U. Suvetha Vs. State by Inspector of Police and another; (2009) 6 SCC 757.
It has been further submitted that the Apex Court in the cases of Geeta Mehrotra and another Vs. State of Uttar Pradesh and another; (2012) 10 SCC 741, Preeti Gupta and another Vs. State of Jharkhand and another, (2010) 7 SCC 667 and in Pashaura Singh Vs. State of Punjab and another, (2010) 11 SCC, 749 has held that in absence of any specific allegation and role, the prosecution against family members of in-laws should be struck down. It was further urged that unless there is specific allegation levelled against the accused persons in cases under Section 498-A IPC, the involvement of whole family members of the husband and his relatives cannot be allowed.
The petitioner further contended that from the material available on record, it is established that the present petitioner is not related to the in-law's family of the opposite party no.3 and being an advocate contesting the case of the husband of opposite party no.3, has been implicated in this case to pressurise the petitioner to leave the case of her husband. It has also been contended that he is residing separately as is evident from the allegations made in the first information report itself. The allegations of causing cruelty in the first information report is common to all though there is no occasion for him to visit the house of the husband of opposite party no.3. The allegations levelled against the petitioner is that he is influencing the husband of the opposite party no.3 to give divorce to her. It has further been contended that in view of law laid down in Geeta Mehrotra's case (Supra), the proceedings initiated against him maliciously with ulterior motive to harass him and the same are abuse of the process of the court.
Counter affidavit has been filed by the opposite party no.3 alleging therein that the petitioner has already left his wife in 2008 and is now insisting her husband to give divorce to her. He is an influential person and maintaining good relations with the family members of her husband and frequently visit her matrimonial home. It has also been contended in paragraphs 3, 7, 9 and 10 of the counter affidavit that the petitioner is instrumental in filing the petition for divorce on behalf of her husband. It has been further contended in the counter affidavit that the present petition is bad for non joinder of all other co-accused and as such is liable to be dismissed.
The State has also filed counter affidavit wherein the Investigating Officer has stated that in the statement of the opposite party no.3 recorded under Section 161, Cr.P.C., the evidence against the petitioner is that he used to provoke the husband of opposite party no.3 to leave his wife and all family members follow the advice of petitioner and on his advice her husband and other family members are actively involved in harassing the opposite party no.3. It has been contended by learned A.G.A. that it cannot be said that there is no specific allegations against the petitioner.
The petitioner has also filed rejoinder affidavit denying the allegations levelled against the petitioner. .
I have considered the submissions of petitioner and learned AGA in the light of material available on record and the judgments relied upon by the parties.
The matter shall be tested on the touch stone of the aforesaid authorities in the light of facts and circumstances of the case in hand.
Whether the term "relative of husband of a woman" within the meaning of Section 498-A and 304-B of the Penal Code should be given an extended meaning, is the question involved herein.
Section 498-A of the Penal Code reads as under:
"498-A. 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 purposes 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."
Section 304-B of the Penal Code reads as under:
"304-B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
"The increasing number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the working of the Dowry Prohibition Act, 1961. Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore, proposed to amend the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married woman by their in-laws."
In the absence of any statutory definition of the term "relative" or "relative of husband of a woman" in the Indian Penal Code, the same must be assigned a meaning as is commonly understood as held in by Hon'ble Supreme Court in Appasaheb v. State of Maharashtra (2007) 9 SCC 721,: (SCC pp. 726-27, para 11) "11. In view of the aforesaid definition of the word ''dowry' any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See - Union of India v. Garware Nylons Ltd. (1996) 10 SCC 413=AIR 1996 SC 3509 and Chemical and Fibres of India Ltd. v. Union of India (1997)2 SCC 664 =AIR 1997 SC 558 "
Furthermore, Section 498-A is a penal one. It, thus, deserves strict construction. Ordinarily, save and except where a contextual meaning is required to be given to a statute, a penal provision is required to be construed strictly. The Apex Court in T. Ashok Pai v. CI T(2007) 7 SCC 162, held as under: (SCC p. 168, para 17) "17. It is now a well-settled principle of law that the more stringent is the law, more strict construction thereof would be necessary. (See P.N. Krishna Lal v. Govt. of Kerala 1995 Supp(2) SCC187.and See also Noor Aga v. State of Punjab 2008) 16 SCC 417.)"
The Apex Court in Noor Aga v. State of Punjab, (2008) 16 SCC 417, at page 440 , observed :
"33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
34. The Act contains draconian provisions. It must, however, be borne in mind that the Act was enacted having regard to the mandate contained in the International Convention on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional.
35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.
36. A fundamental right is not absolute in terms."
A three-Judge Bench of The Apex Court, in Shivcharan Lal Verma v. State of M.P. (2007) 15 SCC 369, while interpreting Section 498-A of the Penal Code, in a case where the prosecution alleged that during the life time of the first wife Kalindi, the appellant married for the second time with Mohini, but after marriage both Kalindi and Shiv Charan tortured Mohini as a result thereof, she ultimately committed suicide by burning herself, opined:
".. One, whether the prosecution under Section 498-A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr Khanduja, learned counsel for the appellant so far as conviction under Section 498-A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498-A IPC."
A two-Judge Bench of Hon'ble Supreme Court, however, in Reema Aggarwal v. Anupam (2004) 3 SCC 199, while construing the expression "husband" opined that the word should not be given a restricted meaning to include those, who had married for the second time strictly in accordance with law, stating: (SCC p. 210, para 18) "18. ... If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The First Exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to ''any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction'. It would be appropriate to construe the expression ''husband' to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions--Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B IPC. Such an interpretation, known and recognised as purposive construction has to come into play in a case of this nature. The absence of a definition of ''husband' to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as ''husband' is no ground to exclude them from the purview of Section 304-B or 498-A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions."
The decision in Shivcharan Lal Verma(Supra) is of 3 Judges Bench of Supreme Court and the decision in Reema Aggarwal (Supra) is of two Judges Bench of Supreme Court. Moreover the decision in Shivcharan Lal Verma(Supra) is a decision rendered after the decision of Reema Aggarwal(Supra).Therefore the decision in Shivcharan Lal Verma(Supra) being of 3 Judges will clearly take precedence over the decision in Reema Aggarwal (Supra) Applying the principles laid down in various decisions referred to above, I have no doubt in my mind that wider meaning to term "relative of husband of a woman" could not be given. In the absence of any statutory definition, the term "relative" must be assigned a meaning as is commonly understood. Ordinarily it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of aforesaid person. Therefore, a relartive who is not related to blood, marriage or adoption with husband of woman cannot be included in term 'relative of husband of woman'. Similar view has been taken by the Apex Court in U. Suvetha v. State, (2009) 6 SCC 757, at page 759 after considering several judgements of Hon'ble Supreme Court and of High Courts.
In the judgment of Preeti Gupta's case (Supra), the Apex Court in paragraphs no.28,29 and 30 held as under :-
"28. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.
29. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband's relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.
30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society."
In view of the aforesaid observations made by the Apex Court it is the duty of each and every court to examine the matrimonial matter in criminal side cautiously and with full care. The reason for this has also been given in paras 32, 33, 34, 35, 36 of the aforesaid judgment, which are reproduced herein below:
"32. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
35.The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
Almost similar view has also been taken in paragraph 24 of Geeta Mehrotra's case (Supra)SCC at page 750.
"---,yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498-A IPC and Sections 3/4 of the Dowry Prohibition Act against the appellants who are the sister and brother of the complainant's husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them."
In the case in hand it is not in dispute that the petitioner is an advocate by profession and representing the case of the husband of opposite party no.3 in a matrimonial suit for divorce, which has been filed against the opposite party no.3. It is also not denied that the petitioner is living separately with the family members of the husband and the husband of the opposite party no.3. It is also not denied that the petitioner is not directly related to the family members of the husband. He is the son of the sister of father-in-law of opposite party no.3. He is not related by blood or adoption to the husband of opposite party no.3. The allegation against the petitioner regarding instigation is not mentioned in the first information report and only general allegations which have been levelled against other accused including the husband, father-in-law, mother-in-law, brother-in-law, married sisters and Devars, are also levelled against the petitioner without referring any specific incident and its date, time and place. The demand of dowry, leaving the opposite party no.2 to her parental home and talks on phone on 27.10.2010 were all attributed either to the husband or the family members of the husband and not to the petitioner. There is no allegation against the petitioner that he demanded dowry for himself or how he will be benefited with such dowry or even caused physical cruelty upon her. More over no admissible evidence or material has been brought before this Court either by the investigating officer or by opposite party no.3 with regard to alleged instigation of petitioner except mere statement of opposite party no.3 which seems to have been based on its own presumption. On the basis of material available in the police report against the petitioner the necessary ingredients of any of the offence for which the petitioner has been summoned i.e., for the offence under section 498A,323 and 506 IPC or under Section 3/4 of DP Act, are not made out .The appellant herein had not been summoned for abatement of crime or for any criminal conspiracy. In view of contradictory version regarding role of the petitioner as alleged in FIR and in statement under section 161 CrPC no prima facie case is made out against the petitioner .
In view of above fact and circumstances of this case and also keeping in view the ratio propounded in the cases cited herein above, I am of the firm view that the present proceedings against the petitioner Rajiv Kapildev Gupta, who is an advocate by profession and contesting the case of the husband of opposite party no.3 as an advocate, a resident of Mumbai Maharastra living separately with husband of opposite party no.3, not related by blood or marriage or adoption with husband of opposite party no.3, and against whom no prima facie case is made out for want of ingredients under Section 498A, 323, 506 IPC and Section ¾ DP Act, are abuse of the process of the court and the criminal proceeding is manifestly attended with mala fide and maliciously instituted with an oblique motive to harass and pressurise the petitioner not to conduct the case of husband of O.P. No.3. More over, continuance of the proceedings against the petitioner would not serve the ends of Justice.
Therefore, it is a fit case in which this Court must exercise it jurisdiction under section 482 CrPC by quashing all proceedings against the petitioner Rajiv Kapildev Gupta in Criminal Case no. 2793 of 2011 arising out of charge sheet related to FIR No.46 of of 2011,under section 498A,323,506 IPC and ¾ DP Act,Police station Alambagh, District Lucknow pending in the court of Additional Judicial Magistrate-IV, Lucknow.
So far as the question of non joinder of other co-accused is concerned, I find no substance in this plea as the opposite party no.3 being victim / informant has been given opportunity of being heard.
Consequently, this petition is allowed. The entire proceedings initiated against the petitioner Rajiv Kapildev Gupta in Case No.2793 of 2011 arising out of FIR No.46 of 2011, under Sections 498A, 323, 506 IPC and Sections 3 and 4 of D.P. Act, Police Station Alambagh, District Lucknow pending before Additional Judicial Magistrate-IV, Lucknow are quashed.
However, this order will not effect in any manner the proceedings pending against the other accused persons.
Dated:17.11.2014 akverma