is concerned, I find that the allegation has been made only against
the accused No.3 i.e. petitioner No.3 that the ornaments, on her
command, were entrusted to her and later on were refused to be
handed over to respondent No.2 by petitioner No.3accused
No.3.
No allegation regarding entrustment of the ornaments to accused
No.3 on her demand and also on the demand of remaining accused
has been made. Entrustment of the property and refusal to part
with property are essential ingredients of the offence punishable
under Section 406, as held in the case of Onkar Nath Mishra and
others vs. State (NCT OF DELHI) and another, decided by the
Supreme Court of India, on 14.12.2007 in Case No. Apeal (Crl)
1716 of 2007 relied upon by the petitioner No.1. Since, these
essential ingredients of the offence punishable under Section 406
have not been prima facie made out against the accused Nos.1 and
2 i.e. petitioner Nos.1 and 2, the order of issuance of process
against them for the said offence cannot be said to be legal and
proper and as such it deserves to be quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.272 OF 2014
Shri Shridhar Bandaru,
...VERSUS...
State of Maharashtra,
CORAM
: S.B. SHUKRE, J.
DATE : 19 th JANUARY, 2015 .
Citation;2015 ALLMR(CRI)2161
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent.
4. The petitioner No.1 has argued inperson
on behalf of
himself and the remaining petitioners. I have also heard Mr. A.K.
Bangadkar, learned Additional Public Prosecutor for the
respondent No.1, who states that appropriate order may be passed
in the matter and Mr. S.S. Murthy, learned counsel for respondent
No.2.
5. By this petition, the petitioners have challenged
issuance of process by the Court of Judicial Magistrate, First Class,
Court No.6, Nagpur against all the petitioners for the offences
punishable under Sections 498A
and 406 read with Section 34 of
the Indian Penal Code and also offences punishable under
Sections 3 and 4 of the Dowry Prohibition Act, 1961 in a complaint
case being Regular Criminal Case No.1020/2013.
6. According to the petitioner No.1, no prima facie case is
made out as can be seen from the allegations made in the
complaint dated 22.3.2013, whereas, according to the learned
counsel for the respondent No.2complainant,
the allegations made
in the complaint, when read as they are, would show that
prima facie case has been made out for the offences in respect of
which process has been issued by the Judicial Magistrate, First
Class, against the petitioners.
7. It is well settled law that at the stage of quashing of the
proceedings or considering the legality or otherwise of the order of
issuance of process, what the Court has to see is whether or not the
allegations, taken at their face value, are sufficient to constitute the
offences alleged against the accused persons. The law has been
laid down in the case of State of Haryana and others vs. Ch.
Bhajan Lal and others, reported in AIR 1992 SC 604 which has
been reiterated in the case of Sundar Babu & amp; and others vs.
State of Tamil Nadu, decided by the Supreme Court of India, on
19th February, 2009, in Criminal Appeal No.773/2003.
8. The petitioner No.1, was at pains to explain as to how
all the allegations in the complaint dated 22nd March, 2013 and
also the verification statement dated 3rd May 2013 of respondent
No.2 and also the deposition of her father, Krishnamurty, dated 3rd
May, 2013 do not make out any offences punishable under
Sections 498A,
406 read with Section 34 of the Indian Penal Code
and also under Sections 3 and 4 of the Dowry Prohibition Act,
1961. Upon consideration of the same, I am of the view that the
allegations made against the petitioners as regards the offences
relating to illtreatment
and harassment as contemplated under
Section 498A
of the Indian Penal Code as well as demand of
dowry as contemplated under Section 2(a) and 2(b) read with
Sections 3 and 4 of the Dowry Prohibition Act, 1961 are made out.
In paragraphs 1,2 and 3 of the complaint, there are specific
averments made about demand of amount of Rs.1,00,000/for
performance of the marriage and also towards one way travelling
expenses from Bhopal to Nagpur. There is also an allegation about
demand of some valuable articles. There are also allegations made
in subsequent paragraphs that as the respondent No.2 did not meet
these demands, she was subjected to cruelty. According to the
petitioner No.1, no specific roles have been mentioned in the
complaint. However, upon considering the complaint in its
entirety, I do not find it to be so. Specific roles have been assigned
to each of the petitioners and, therefore, it cannot be said that
prima facie no offences covered by Section 498A
of the Indian
Penal Code and also by Sections 3 and 4 of the Dowry Prohibition
Act, 1961 are made out. However, this does not seem to be the
case as regards allegations relating to commission of offence of
criminal breach of trust, which can be seen from the discussion
made in these subsequent paragraph.
9. So far as the offence relating to criminal breach of trust
is concerned, I find that the allegation has been made only against
the accused No.3 i.e. petitioner No.3 that the ornaments, on her
command, were entrusted to her and later on were refused to be
handed over to respondent No.2 by petitioner No.3accused
No.3.
No allegation regarding entrustment of the ornaments to accused
No.3 on her demand and also on the demand of remaining accused
has been made. Entrustment of the property and refusal to part
with property are essential ingredients of the offence punishable
under Section 406, as held in the case of Onkar Nath Mishra and
others vs. State (NCT OF DELHI) and another, decided by the
Supreme Court of India, on 14.12.2007 in Case No. Apeal (Crl)
1716 of 2007 relied upon by the petitioner No.1. Since, these
essential ingredients of the offence punishable under Section 406
have not been prima facie made out against the accused Nos.1 and
2 i.e. petitioner Nos.1 and 2, the order of issuance of process
against them for the said offence cannot be said to be legal and
proper and as such it deserves to be quashed and set aside.
10. It has also been submitted by petitioner No.1 that mere
mention of Section is not enough and specific roles must be
attributed to each of the accused persons so as to enable the Court
to determine as to whether or not the alleged offences are
prima facie made and for this purpose, the petitioner No.1 has
placed his reliance upon the case of Neelu Chopra and another
vs. Bharti, decided by the Supreme Court of India, on 7th October,
2009, in Criminal Appeal No.949 of 2003. I have already found as
to how the complaint as made against the petitioners specifically
refers to various acts performed by all the petitioners, which prima
facie, fall within the concept of cruelty and dowry as contemplated
under Section 498A
of the Indian Penal Code and Section 2 of the
Dowry Prohibition Act, 1961, by relying upon this law only.
11. The petitioner No.1 has further submitted, relying upon
the case of Smt. Neera Singh vs. The State (Govt. Of Nct of
Delhi), decided by the Delhi High Court on 23rd February, 2007,
that there is a difference between taunting a person for not
bringing the dowry and subjecting that person to cruelty because of
failure of respondent No.2 to bring the dowry and that there must
be something more which can be said to be in the nature of the
woman being subjected to cruelty. Upon perusal of the complaint
and also the depositions of two witnesses, including the
complainantrespondent
No.2 recorded before issuance of process,
I find that the allegations do prima facie indicate meeting out of
cruelty by the petitioners to respondent No.2 because of her
alleged failure to meet the demand of dowry. Therefore, the case
of Smt. Neera Singh, at this stage, would be of no assistance to the
petitioners.
12. The petitioner No.1 has further submitted that it is one
of the allegations of respondent No.2 that the amount of
Rs.1,00,000/allegedly
demanded from her by the petitioners was
for the performance of marriage and it has been held in the case of
State of Karnataka by represented by Harohally Police Station
vs. Babu s/o. Basappa an others, decided by the High Court of
Karnataka at Bangalore, dated 5th February, 2013, that any
demand for payment of something to meet the marriage expenses
would not amount to dowry. There can be no dispute about this
principle of law, but as seen from the averment made in
paragraphs 1,2,3,4 and also the allegations appearing in
subsequent paragraphs, I find that the money was not demanded
only for meeting expenses of the marriage but was also in
connection with the purposes of the marriage, as defined under
Section 2 of the Dowry Prohibition Act, 1961. Therefore, the facts
of the instant case are different from the facts of the case of Babu
Basappa and as such, the case of Babu Basappa would be of no help
to the petitioners at this stage.
13. The petitioner No.1 has further submitted that there has
been a delay of more than an year in filing of the complaint in this
case by the respondent No.2 and no proper explanation for the
delay appearing in this case has been given by her and, therefore,
prima facie, the allegations made against the petitioners can be
said to be product of afterthought and part of some design to
wreck personal vendetta against the petitioners. For this
submission, he places his reliance upon the case of State of A.P.
vs. M. Madhusudhan Rao, decided by the Supreme Court of India,
on 24th October, 2008, in Apeal No. of 2008 (Arising out of S.L.P.
(Criminal) No.3426 of 2007), I do not think that the petitioners,
at this stage, could draw any help from the said case for the reason
that in this case, there was no explanation about the delay
occurred in filing of the complaint, whereas, from the facts and
circumstances mentioned in the present complaint prima facie the
explanation for the delay in filing of the complaint can be seen to
be arising therefrom.
14. The petitioner No.1 has also referred to the case of
Bhaskar Lal Sharma and another vs. Monica, decided by the
Supreme Court of India, on 27th July 2009, in Criminal Appeal
Nosof
2009 (Arising out of Special Leave Petition (Crl.) Nos.
4126 of 2008), to support his argument as to how the Email
correspondence between the parties would falsify the allegations. I
must say that the allegations in this case are not based upon only
what has taken place by way of communication between the
husband and wife, but also on the acts which, prima facie suggest,
as being in the nature of illtreatment
and harassment within the
meaning of cruelty as contemplated under Section 498A
of the
Indian Penal Code. Therefore, the said case of Bhaskar Lal Sharma,
at this stage, would not help the petitioners.
15. The petitioner No.1 has also challenged issuance of
process on the ground of lack of territorial jurisdiction of the Court
of Judicial Magistrate, First Class, Nagpur contending that the
allegations, taken at their face value, would show that all the acts
necessary to prosecute the offences of cruelty and demand of
dowry had taken place at Bhopal and not at Nagpur. Learned
counsel for the respondent No.2, however, disagrees. Placing his
reliance upon the case of Sunita Kumari Kashyap vs. State of
Bihar and another, reported in AIR 2011 SC 1674, he submits
that when the allegations are read in their entirety, an inference
would arise that the offences of cruelty as well as illegal demand of
dowry have been continuously committed not only at Bhopal, but
also at Nagpur.
16. Upon perusal of the complaint and also the depositions
of two witnesses, I find that there is a substance in the argument of
learned counsel for the respondent No.2 and no merit in the
argument of the petitioner No.1. An amount of Rs.25,000/,
which
was a part of demand of dowry, has been alleged to be paid at
Nagpur and, therefore, demand of dowry can be, prima facie, seen
to have been partly fulfilled at Nagpur. The respondent No.2 had
been compelled to leave her matrimonial house, as alleged by her,
because of afore stated cruel treatment and live at her parental
house at Nagpur. This act has been seen in the case of Sunita
Kumari as an act which made the offence of cruelty as continuing
one. Besides, there are other allegations of continuation of cruelty
even at Nagpur. Therefore, at this stage, it cannot be said that
Nagpur Court has lost its territorial jurisdiction over the matter.
17. The petitioner No.1 has also submitted that the
allegation that the amount of Rs.10,000/was
demanded by the
petitioner for mother in law of the complainant i.e. petitioner No.3
is so ridiculous and absurd as no reasonable person would think it
to be true. He submits that there is no custom prevailing in his
family to make such a demand for the mother in law of the bride.
In my humble opinion, this argument falls within the realm of
defence of the accused and, therefore, would have to be considered
appropriately after after detailed evidence is available and not at
this stage.
18. In the result, I find that this petition can be allowed
only in respect of challenge made to order of issuance of process to
petitioner Nos.1 and 2 for an offence under Section 406 of Indian
Penal Code and it deserves to be dismissed as regards other
challenges.
19. Accordingly, Criminal Writ Petition is partly allowed.
20. The order under challenge, insofar as it relates to
issuance of process against petitioner Nos.1 and 2 for an offence
punishable under Section 406 read with section 34 of the Indian
Penal Code, is hereby quashed and set aside.
21. Rest of the impugned order dated 21.1.2014 is hereby
confirmed.
22. Rule is made partly absolute in the above terms and is
discharged in respect of remaining challenges.
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