In the court of Additional Session Judge04, District Shahdara, (Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma Courts, Delhi CNR No.DLSH010051402018 date of institution : 02.08.2018 Crl. Revision No.37/18 decision reserved on : 05.09.2018 I.D. No.188/18 date of decision : 14.09.2018 In the matter of State ...State/Petitioner Versus 1. Vipin s/o Sh. Vijay Kumar r/o C35, East Krishna Nagar, Delhi51 2. Vandana Rastogi w/o Sh. Arun Rastogi r/o 10119, Gali No.01, West Gorakh Park, Shahdara, Delhi 3. Arun Rastogi s/o Sh. Mahendra Kumar r/o 10119, Gali No.01, West Gorakh Park, Shahdara, Delhi ...Respondents
J U D G M E N T [On revision petition arising out of order dated 09.07.2018 by the court of Ms. Chhavi Kapoor, M.M. (Mahila CourtI) Shahdara (in brief the trial court) while discharging/respondents Vipin (dever), Vandana Rastogi (Nand) and Arun Rastogi (Nandoi of complainant)]
1. Complainant Ms Bhawna Arora lodged an FIR No. 506 of 26.06.2014 against her husband Yashwant Kumar, in laws Sh. Vijay Kumar and Smt. Veena as well as against Vipin, Vandana Rastogi and Arun Rastogi (respondents herein) and the trial court by order dated 09.07.2018 directed to frame charge u/s 498A/406/34 IPC against Yashwant Kumar, Sh. Vijay Kumar and Smt. Veena besides charge u/s Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 1 of 8 4 of the Dowry Prohibition Act against Yashwant Kumar but the trial court discharged other/respondents namely Vipin, Vandana Rastogi and Arun Rastogi. The petitioner/State is feeling aggrieved by order dated 09.07.2018 of their discharge, that is why the revision petition has been filed.
2.1 (Plea in revision petition) – The petitioner assails the impugned order by narrating brief facts, the reasons assigned by the trial court for discharge and grounds for revision. There was marriage between complainant Bhawana Arora and Yashwant Kumar on 19.04.2013, because of harassment from first day of marriage for dowry demand by Yashwant Kumar and his other relatives visavis cruelty to the complainant, a report was lodged before Crime Against Women Cell on 19.11.2013, consequently after inquiry, an FIR was registered against all the said six persons under the provision of section 498A/406/34 IPCand section 4 of the Dowry Prohibition Act.
There is same set of facts and circumstances against all of them but the trial court discharged the three respondents and ordered for charge against three others. The respondents were discharged solely on the ground that dates and time of commissions of offence are not mentioned against the respondents or no specific incident of physical violence against the complainant visavis the respondent no.2 and her husband respondent no.3 are living separately or that the allegations raised are confining to taunts and instigation to other family members.
2.2 Whereas the complainant had filed detailed complaint dated 19.11.2013, its paragraph 2 and 3 clearly mentioned episode of Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 2 of 8 harassment and of 05.05.2013 against respondent No.2 and 3 and also against respondent No.1; the allegations in paragraph No. 4 are also against respondent No.1 and others and paragraph No. 11 of the complaint is containing allegations against respondent No.2, respondent No.1, which suffice in themselves the facts of cruelty and harassment towards the complainant. Therefore, the impugned order is not based on material on record and when there are clear allegations against the respondents, they ought not to have been discharged. The said order is liable to be set aside and directions be given for framing of charge against them.
2.3 (Oral submissions) – Sh. Vineet Kumar, Ld. Addl. P.P. for the State has been to the contents of complaint, particularly paragraph No. 2, 3, 4, 5, 9 and 11 to demonstrate that from the very beginning after marriage the complainant was being harassed for want of bringing dowry and complainant was also beaten by the respondents and others. These paragraphs clearly show that the respondents are involved in harassing the complainant and also causing cruelty to her. In case the respondent No.2 and 3 are married, or they are living in a nearby area but they were fully involved in harassing the complainant and it is also mentioned in the complaint that they were visiting and harassing her. Thus, the order is liable to be set aside.
3.1 (Plea of respondent no.1, 2 and 3) – Sh. Ajay Kumar Bansal, Advocate for respondent No.1 to 3 has reservations that despite reading those paragraphs of the complaint, it is apparent that the impugned order dated 09.07.2018 is after taking cognizance of the circumstances Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 3 of 8 appearing in the complaint that there are no specific allegations against them, the allegations are general and vague in nature and for want of allegations allegations, the respondents should not be put to trauma of trial and by reading the complaint on the face of it, no case of section 498A or 406 IPC or of other law is made out. There is no flaw in the discharging of respondents and there is nothing in the said order dated 09.07.2018 to perverse it. The respondents were in Haridwar on 05.05.2013, appropriate material was provided to the IO, however, he withheld it and it has not been placed on record, had that record been part of the police report, there would have been more substantive record. IO was supposed to place them on record for fair investigation.
3.2 Moreover, the law has been laid down in various cases that there should be specific allegations, which should fulfill the requirement of harassment or cruelty defined in section 498A IPC as well as specific facts with regard to cruelty or harassment or entrust of property, all of them are lacking in the complainant/record and there is nothing against the respondents. Ld. Counsel relies upon :
(I) Savitri Devi Vs. Ramesh Chand & Ors. 2003 (3) Crimes 100 (paragraph 16 & 18) : (Para. 16) For the purpose of section 498A IPCwhich is peculiar to Indian families victim spouse is always the ‘wife’ and guilty is the husband and his relativesnear or distant, living together or separately. Ingredients of ‘cruelty’ as contemplated under section 498AIPC are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage i.e. divorce. In constituting ‘cruelty’ contemplated by Section 498A, IPC the acts or conduct should be either such that may cause danger to life, limb or health or cause ‘grave’ injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be “willful” i.e. intentional. So to invoke provisions of Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 4 of 8 section 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb of physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and willful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with martial life.
(Para.18) to constitute ‘harassment’ following ingredients are essential : (i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation; (ii) Such act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force of threats; (iii) Intention to subject the woman should be compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
(II) Bobbili Ramakrishna Raju Yadav & ors. Vs. State of Andhra Pradesh 2016 (1) Crimes 142 (SC) : while dealing with the petition u/s 482 Cr.P.C. in respect of allegations of dowry death, it was held that giving of dowry and traditional presents at or about time of wedding does not in any way raise presumption that such property was thereby entrusted and put under dominion of parents in law of bride or other close relations so to attract ingredients of section 6 of Dowry Prohibition Act. It was also observed that there are no specific allegations against parents and sisters of appellanthusband that dowry articles were entrusted to them and that they have not returned dowry amount and articles to deceased, there were no specific allegations of entrustment of dowry amount and articles to parents and sisters of appellant husband. It was also held that those allegations made in complaint were not constituting an offence u/s 6 of the Dowry Prohibition Act against parents and sisters of appellanthusband and there was no sufficient ground for proceeding against parents and sisters of appellanthusband, consequently, the said order was set aside in respect of parents and sisters of appellanthusband.
Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 5 of 8 (III) Nitya Dharmananda alise K. Lenin & Anr. Vs. Sri Gopal Sheelum Reddy also known as Nithya Bhaktananda & Anr. Cril. Appeal No.2114 of 2017 held that defence has right to invoke section 91 Cr.P.C. even at the stage of charge. (Ld. Counsel for respondents wants to emphasize the plea of alibi also that the respondents were in Haridwar on 05.05.2013).
(IV) K. Subba Rao & Ors. Vs. The State of Telangana Rep. By its Secretary Department of Home and Ors. Crl. Appeal No.1045 of 2018 : (Para. 5) The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.
(V) Appasaheb & Anr. Vs. State of Maharashtra, 2007 (1) Crimes 110 (SC) : A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand of dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing of manure. Since an essential ingredient of Section 304B IPC viz. Demand for dowry is not established, the conviction of the appellant cannot be sustained.
It is concluded that the revision is without merit and it is liable to be dismissed.
4. (Findings with reasoning) The contentions of both the sides are considered and assessed, keeping in view the facts on record, the rival submissions, provisions of law (of section 498A/406 IPC, sec.4 of the Dowry Prohibition Act and sections 239 & 240 Cr.P.C. of trial of warrants cases by Magistrate) and case law presented. At the time of framing of charge the court has to take a prima facie view that the Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 6 of 8 material on record makes commission of offence, that too by particular offenders and that test if no of proof of ingredients of offence, since it is test to be applied after trial.
By taking stock of all such facts, features and law; the petition is dismissed, while confirming the trial court order, for the following reasons:
(i) there is nothing perverse to disturb the conclusion drawn by the trial court,
(ii) the order of framing of charge against others (other than respondents) are not exclusively based on paragraphs 2, 3, 4 and 11 of the complainant but as appearing from the impugned order, the other paragraphs were against them,
(iii) the chargesheet after investigation was filed u/s 498A/406 IPCand u/s 4 of the Dowry Prohibition Act, it was not for offences of hurt but in complaint facts referred were of abuses or threat, that too in general allegations, by applying the ratio of Savitri Devi case (supra) to the facts of this case, the findings of trial court are confirmed;
(iv) the allegations against others cannot be read for respondents vis a vis it is also the case of complainant that respondent no.2 (married woman) or no.3 had visited their parent/inlaws, since they are living separately and
(v) there are no allegations of section 4 of the Dowry Prohibition Act in respect of demand of dowry as consideration of marriage or of 498A Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 7 of 8IPC or of entrust of Istridhan to respondents or what was entrusted or when it was refused by them to make out case of criminal breach of trust, which is also specified in the revision petition.
5. Accordingly, revision petition is disposed off, however, while disposing the issue raised in the revision petition, it will not construe any opinion on the merits of case of others, since evidence is yet to be recorded. TCR be sent back by annexing copy of this judgment forthwith.
Announced in open court today Friday, Bhadra 23, Saka 1940 (Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 14.09.2018 Digitally signed by INDERJEET SINGH Location:
INDERJEET Shahdara District, SINGH Karkardooma Courts Date: 2018.09.14 17:02:50 +0530 Crl. Revision No.37/18 State Vs. Vipin & Ors. Page 8 of 8