Delhi High Court
Sukhbir Jain And Anr. vs State on 26 May, 1992
Equivalent citations: II (1992) DMC 259
Author: S Jain
Bench: S Jain

JUDGMENT S.C. Jain, J.

1. Both the petitions Crl. M. (M) 802/91 Sukhbir Jain and Another\State and Crl. M. (M) 803/91 Sushil Jain v. State have arisen out of the same order passed by Shri. J.D. Kapoor, Addl. Sessions Judge on 28.2.1991 and I, therefore, dispose of both these petitions by this common order.

2. This case speaks about how marital discords in a joint family act like a wild dragnet in which not only young unmarried teenaged girls studying in school but also married daughters who visit their parents periodically and that too after long interval become the victims of criminal prosecution merely on the platitudinous statement of the so called bride and unfortunate result is in innumerable broken homes.

3. Smt. Sobha Jain was married with Sushil Kumar Jain on 26.11.1983. As per the complaint made by her on 9.5.89 at police station Hazrat Nizzamuddin, for a few months her marital life pulled on well. There after she was harassed and forced to bring more dowry. In order to make her marital life smooth and happy, her parents paid Rs. 10,000/- on two occasions. A demand of a bungalow in South Delhi was also made but her parents could not fulfilll that demand as it was beyond their reach. She was subjected to maltreatment and cruelty. In March, 1987 she was turned out from her marital house. With the intervention of the relatives and other respectable known to both the parties she was taken back in December, 1987. For 2-3 months there was no cause of grievance. During this period she became pregnant and again a demand of a house or cash of Rs. 15 lakhs in lieu thereof was made. On her telling that the demand could not be met she was turned out from the house after giving beatings in May, 1988. In October, 1988, she gave birth to a female child and on the intervention of relations and friends known to both the parties, she was again taken back along with the child. After staying there for few months she returned back to her parents house alleging harassment and cruelty and lodged a criminal complaint before the police of non-return of dowry articles and Istridhan as well as the cruelty perpetrated by her husband and other members of the family who included her parents-in-law, the married sister-in-law, brothers-in-law and two unmarried young sisters-in-law. Challan was filed against as many as seven members of the famliy, namely, the husband, parents-in-law, married sister-in-law Kauslaya Devi, brother-in-law Satish; unmarried sisters-in-law Kumari Sushma and Nisha for the offences punishable Under Section 498A and Section 406 IPC.

4. The concerned Metropolitan Magistrate before whom the challan was filed did not filed any case even on prima facie grounds against Kumari Nisha and Kumari Sushma, the unmarried teenaged sisters-in-law either under Section 406 or Section 498A IPC and they were ordered to be discharged.

No case Under Section 406 IPC was also found against the other five accused. However, they were ordered to be proceed with Under Section 498A IPC.

5. On revision the learned Addl. Sessions Judge quashed the charge against the other two accused i.e. married brother-in-law Satish and married sister-in-law Kaushalaya. However, Shri Sushil Jain-husband was ordered to be proceeded with for the offence punishable underSection 406 and 498A IPC. The parents-in-law namely Sukhbir Singh and Smt. Mundri Devi were ordered to be proceeded with for offences punishable Under Section 498A IPC.

6. Aggrieved, Shri Sushil Jain filed petition Crl. M (M) 803/91 and Shri Sukhbir Jain and Smt. Mundri Devi filed the petition Crl. M (M) 802/91 for quashing the proceedings against them.

7. The limits of the jurisdiction of the High Court Under Section 482 of the Code of Criminal Procedure was considered by the Hon’ble Supreme Court in various cases and in the case of Madhorao Jiwaji Rao Scindia and Another v. Sambhajirao Chandrojirao Agree and Othersetc., . The Court held :

“Under Section 482 Cr.P.C, the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverter allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of the case also quash the proceeding even though it may be at a preliminary stage.”

8. Keeping in view the settled legal position it is to be seen, in the present circumstances of the case, whether the uncontroverter allegations, as made, prima facie establish the offence against the petitioners and whether it is expedient and in the interest of justice to permit the prosecution to continue.

9. Regarding offence Under Section 406 IPC to specific allegation has been made as to which item was entrusted to whom and when she demanded back those articles and from whom and he/she refused. To constitute an offence Under Section 406 IPC it is essential that there must be a clear and specific allegation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly misappropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be sufficient to prima facie make out a cognizable offence Under Section 406 IPC. The allegations made by the complainant show that there are no clear, distinct and specific allegations regarding entrustment to the petitioners, dishonest misappropriation by them or conversion to their own use and refusal by them to return back the articles. The most vital and essential ingredients of the offence Under Section 406 IPC are missing and as such no prima facie case against the petitioners Under Section 406 IPC is spelt out from the allegations made in the complaint. The concerned Metropolitan Magistrate has rightly held it so but the learned Addl. Sessions Judge has misinterpreted the provisions Section 406 IPC and the allegations made in the complainant while ordering that Sushil Jain petitioner be also proceeded with Under Section 406 IPC. No conviction can be made Under Section 406 IPC on the basis of vague and general allegations made in the complaint.

10. Regarding the offence Under Section 498A IPC the allegations made by the complainant will show that the alleged harassment and cruelty to which she was subjected can be specifically bifurcated into two parts. First part of the alleged cruelty started within 2-3 months of the marriage on 26.11.83 and it lasted for about 2-21/2 years. The complaint was lodged on 9.5.89. The office Under Section 498A IPC being punishable with maximum imprisonment of three years, the provisions of Section 468(2)(c) Cr.P.C. would be applicable and only those acts which were committed within 3 years of the date of complaint can be taken note of and therefore the allegations made by the complainant regarding her harassment and physical torture by the petitioners during the initial period after the marriage are completely barred by limitation and cannot be taken cognizance of. Besides this, as per the allegations in the complaint, she again started living with the petitioners in the matrimonial home in December, 1987 meaning thereby the acts of cruelty, if any arc deemed to have been condoned by her own conduct.

11. Now coming to the second period of the alleged harassment and cruel treatment, it starts from the period 2-21/2 months after December, 1987 and it continued till May, 1988 when she was turned out of the house and thereafter in the month of October, 1988 she again started living at her matrimonial home. It is alleged in the complaint that during this period she became pregnant and her name was not got registered in any hospital nor she was got medically checked up by doctors and a demand of a Kothi or Rs. 15 lakhs in lieu thereof was again made. It is pertinent to note here that these petitioners have not been specifically named as the persons who subjected her to cruelty. In the absence of any specific allegation of cruelty against these petitioners they cannot be allowed to be proceeded with for an offence punishable Under Section 498A IPC. As per the allegations made in the complaint in October, 1988 she gave birth to a female child at the house of her parents and thereafter on the intervention of the common friends and relatives she was again taken back to the matrimonial home. Had there been a demand of a Kothi or Rs. 15 lakh in lieu thereof, the petitioners would not have taken back the complainant to the matrimonial home without their demand being fulfillled. It seems that there was some other marital incompatibility or discord or usual quarrels that took place in the family. No case Under Section 498A IPC is made out against the petitioners on the basis of the allegations made in the complaint.

12. There are some special facts in this case which cannot be lost sight of in arriving at the conclusion that the complaint has been filed just to ruin the family of the petitioners. The Court cannot be utilised for any obliaue purpose. Record shows that almost all the members of the family of the petitioners including the married daughters and young unmarried teenaged daughters studying in school were named as accused compelling them to appear in the Court and to face trial. Not only this, the unmarried teenaged school going daughters, namely Nisha and Sushma were got sent to jail and their bail applications were strongly opposed resulting that they had to remain in jail for some time for no fault of theirs. What can be more shocking that this fact that the poor teenaged school going girls who had not seen the light of the day were got sent to jail at the instance of the complainant-the so called Bhabhi. The Metropolitan Magistrate later on found these teenaged girls to be innocent.

13. Keeping in view  the  increasing crime  against married   women, legislature in its wisdom passed various statutes  and also made    amendments in various existing statutes to the benefit  of the married women but in many of the cases these beneficial provisions are being misused just to  satisfy their feeling of revenge.   This is one of those cases.
 

14. For the foregoing reasons, no case either Under Section  406 or
Under Section 498A IPC is spelt out from the  allegations made in the complaint.  I allow both these petitions Crl. M (M) 802/91 and Crl. M (M) 803/91
and quash the proceedings under FIR No. 193/89 Under Section 406 and 498A IPC P.S. Hazarat  Nizzamuddin,  New  Delhi  against the petitioners Sukhbir Jain, Mundri  Devi   and   Sushi   Jain   pending   before   the   Metropolitan Magistrate, Patiala House New  Delhi.  The bail bonds stand discharged.

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