Kerala High Court
Revision vs By Advs.Sri.R.Padmakumar on 25 July, 2017
        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

              THE HONOURABLE MR. JUSTICE SUNIL THOMAS

     FRIDAY, THE 15TH DAY OF DECEMBER 2017/24TH AGRAHAYANA, 1939

                   Crl.Rev.Pet.No. 924 of 2017 ()
                   -------------------------------


(AGAINST THE ORDER/JUDGMENT IN CMP 5072/2017 of J.M.F.C. - II,
MAVELIKKARA DATED 25-07-2017)

REVISION PETITIONER(S)/PETITIONER:
---------------------------------

            TEENA ALEX,
            AGED 35, D/O. ALEX DANIEL, KADAMBASERRY,
           KOTTACKATTUSSERY, THAMARAKULAM.


            BY ADVS.SRI.R.PADMAKUMAR
                    SRI.P.ARAVIND


RESPONDENT(S)/RESPONDENTS:
--------------------------

          1. STATE OF KERALA
            REPRESENTED BY ITS PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31.

          2. JOBY @ JOSEPH,
            AGED 39, S/O. JOSEPH, NEDUMTHADATHIL VEEDU,
             VANNAPURAM MURI, VANNAPURAM VILLAGE, IDUKKI.

          3. ALPHONSA
            AGED 65, MOTHER OF JOBY @ JOSEPH, NEDUMTHADATHIL VEEDU,
           VANNAPURAM MURI, VANNAPURAM VILLAGE, IDUKKI.

          4. SIBIL JOSE
            AGED 37, BROTHER OF JOBY @ JOSEPH, NEDUMTHADATHIL VEEDU,
            VANNAPURAM MURI, VANNAPURAM VILLAGE, IDUKKI.


            R2 -R 4  BY ADV. SRI.S.RAJEEV
            R2 -R 4  BY ADV. SRI.K.K.DHEERENDRAKRISHNAN
            R2 -R 4  BY ADV. SRI.V.VINAY
            R2 -R 4  BY ADV. SRI.D.FEROZE
            R BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR


       THIS CRIMINAL REVISION PETITION  HAVING BEEN FINALLY HEARD
ON  12-12-2017, THE COURT ON 15/12/2017 PASSED THE FOLLOWING:



                        SUNIL THOMAS, J.
                      - - - - - - - - - - - - - - - - - -
                     Crl.R.P.No.924 of 2017
                       - - - - - - - - - - - - - - - - - -
            Dated this the 15th day of December, 2017

                                O R D E R

The revision petitioner was married to the second respondent herein. The third respondent is the mother of the second respondent and the 4th respondent is the brother of the second respondent. After the marriage, matrimonial relationship got strained, leading to several matrimonial proceedings. The revision petitioner filed CMP No.5072/2017 arraying respondents 2 to 4 as accused and alleging that, at the time of fixing her marriage, the first accused and the father of the first accused, who has since deceased, had demanded dowry of 50 sovereigns of gold and Rs.2,00,000/-. The parents of the revision petitioner agreed to pay Rs.2,00,000/- and 40 sovereigns of gold. On the date of the engagement, the father of the revision petitioner entrusted Rs.2,00,000/- to the father of the first accused and at the time of marriage, 40 sovereigns of gold ornaments were worn by the revision petitioner. After the marriage, the first accused, in collusion with accused Nos. 2 and 3, allegedly misappropriated the  gold ornaments. Ultimately she had to initiate judicial proceedings for recovery of the gold ornaments and money. Alleging that the accused had committed offences punishable under sections 3,4 and 6 of the Dowry Prohibition Act read with section 34 IPC, the revision petitioner laid the above complaint.

2. As a part of section 202 Cr.P.C.enquiry, the statement of the revision petitioner and two other witnesses were recorded. The learned Magistrate, on an evaluation of the oral testimonies of the above two witnesses, concluded that, regarding the dowry allegedly claimed, there were divergent versions and hence, it was unbelievable. Further, stating that the revision petitioner failed to prove the prima facie case of demand for dowry and that the petitioner was bent upon to harass the accused persons, dismissed the complaint. This is under challenge in this revision.

3. Heard both sides and examined the records.

4. The court below had concluded that, the evidence tendered by the three witnesses were inconsistent, regarding the alleged demand for dowry. It was further held that, though the incident allegedly happened in 2003 and the parties have been living separately since 19/8/2016, the complaint was laid only in 2017. By that time, the matrimonial tie up between the revision petitioner and the second respondent herein had irretrievably broken. Hence the court below concluded that the application was filed to harass the accused person, which could not be permitted.

5. The court below had extracted the version of PW1 touching upon the demand for dowry. It was stated that, PW2, who is the father of the revision petitioner, had stated that it was the deceased father of the first accused, who had made the demand for dowry. Dowry was demanded in prosecution of common intention of himself and all the other accused. However, the court below noted that, PW3, the neighbour, had yet another version that the demand was made by the 2nd accused and the father of the first accused. This led the court below to conclude that the versions were inconsistent.

6. This has to be appreciated in the background of the actual version in the complaint, which was reiterated by PW1. In the complaint it was stated that, in the course of marriage ceremony, after discussing with the second accused and the father of the second accused, the second accused offered to solemnize the marriage and demanded dowry which was agreed by the remaining accused. Hence, it was stated that, the demand involved all the three accused and the father of the first accused. Substantially, PW1 has deposed in accordance with the above. It is not as if any specified person alone had demanded the dowry. In the above circumstances, the version in the complaint that the second accused made the demand for dowry for and on behalf of the accused was substantially spoken by the other witnesses, though in different versions.

7. It is pertinent to note that this mode of analysis of deposition at that stage was considered in detail by the Supreme Court in Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose and another(AIR 1963 Supreme Court 1430). It was held that an enquiry under section 202 Cr.P.C.can in no sense, be characterized as a trial and section 202 Cr.P.C.states that for determining the question whether any process was to be issued or not, what the Magistrate has to be satisfied whether there were sufficient grounds for proceeding. The object of the enquiry was to ascertain the truth or falsehood of the complaint.

8. In a subsequent decision in Sonu Gupta v. Deepak Gupta and Others (2015) 3 Supreme Court Cases 424), the three Bench of the Supreme Court held that, at the stage of cognizance and summoning , the Magistrate was required to apply its judicial mind only with a view to taking cognizance of the offence. At that stage, the Magistrate was not required to consider the defence version or materials or arguments, nor was he required to evaluate the merits of the materials or evidence of the complainant. In the light of the above judicial pronouncements, the meticulous evaluation of the evidence done by the court below, at any rate, appears to be legally not sustainable.

9. Opposing the application, learned counsel for the contesting respondents vehemently contended that, it was a clear case of abuse of the process of the court and the court below had  kept in mind the principles laid down by the Supreme Court in Preeti Gupta and Another v. State of Jharkhand And Another (2010) 7 Supreme Court Cases 667) , wherein, in a proceeding under section 498A Cr.P.C, it was held that the allegations will have to be scrutinised with great care and circumspection, since the possibility of all the relatives being put in a false case was likely to be there. The contention was that, Dowry Prohibition Act is a special statute with sufficient safeguards to ensure that the Act is not misused and even the Kerala Dowry Prohibition Rules 1992 provides for detailed procedure for lodging a complaint and that the matter is to be investigated by a higher official in the rank of Dy.S.P. It was held that the conduct of directly moving the learned Magistrate with a complaint itself was sufficient to show the malafides. It was further contended that, normally cognizance was to be taken on the basis of the complaint laid to the competent authority under the Act and Rules. It was also contended that, even though the marriage took place in the year 2003, the very fact that the petitioner moved after 14 years itself, showed the absolute lack of bona fides.

10. Definitely, the delay is a very significant factor. It cannot be forgotten that the revision petitioner got married and they were living together. The possibility of the parties not having precipitated the alleged claim of dowry, even if it had existed, during the subsistence of the matrimonial relationship cannot be  completely ruled out. The parties raising allegations when relation gets strained, also cannot be completely ruled out. Of course, the delay is very long and will have to be explained by the revision petitioner to the satisfaction of the trial court.

11. Regarding the contention of the learned counsel for the respondents that the cognizance has to be taken on the basis of a written complaint by the competent authority, it does not preclude the Magistrate from initiating action on its own information and even at the instance of the defacto complainant. This was dealt with in Sheena Ponnachan v. State of Kerala and Others (2016 (3) KHC 934) by this Court.

12. Having regard to the above facts, it appears that the findings of the court below touching upon the merits as mentioned above virtually overshadowed the contentions regarding the delay as well as the necessity of taking cognizance by the court below. Since, I am not satisfied with the manner in which the court below meticulously considered the evidence, I feel that the matter requires reconsideration. Hence, the impugned order is liable to be set aside and the matter is remitted to the court below to consider afresh whether any prima facie case is made out in the light of the judicial pronouncements referred above. The court will be free to pass appropriate orders in accordance with law.

13. The Revision Petition is allowed. The impugned order is set aside and the matter is remitted to the court below to consider  afresh on the basis of the materials already on record and to proceed thereafter in accordance with law.

Sd/-

SUNIL THOMAS Judge dpk /true copy/ PS to Judge.

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