Kusum Sawai v. State & Anr

1. The present revision petition is filed to impugn the order dated 04.07.2017 whereby the respondent no. 2 was discharged for the offence punishable under section 498A IPC in FIR bearing no.0157/2014 registered at P.S. Nanak Pura passed by the court of Ms. Richa Gosain Solanki, MM-01, Mahila Court, South-West District, Dwarka Courts, Delhi.

2. The present FIR bearing no.0157/2014 dated 28.11.2014 was got registered at P.S. Crime (Women) Cell under section 498A IPC on the basis of complaint dated 21.04.2014 made by the petitioner before DCP, Crime Against Women Cell wherein the petitioner stated that she got married with the respondent no. 2 on 18.06.1998 and out of their marriage, two children were born. The conduct of the respondent no. 2 was not normal towards the petitioner who used to abuse and beat the petitioner. The petitioner also got registered FIR under section 323 IPC on the basis of incident happened on 24.12.2013 for which, MLC was also prepared. The petitioner in the FIR, stated that despite registration of FIR under section 323 IPC, the respondent no. 2 continued to quarrel with her and the concerned local police officials has not taken any action against the respondent no. 2. The petitioner prayed for registration of FIR under section 498A IPC. During the investigation, the supplementary statement of the petitioner was also recorded under section 161 Cr.P.C. on 12.02.2015 wherein the petitioner repeated the contents of the complaint made before the DCP, Crime Against Women Cell dated 21.04.2014 on the basis of which, FIR was got registered. The petitioner in the supplementary statement also stated that the respondent no. 2 asked the petitioner to bring Rs.20 lacs for raising the construction of another floor. After conclusion of investigation, the charge-sheet was filed under section 498A IPC.

3. The court of Ms. Richa Gosain Solanki, MM-01, Mahila Court, South-West District, Dwarka Courts, Delhi vide order dated 04.07.2017, observed that the petitioner herself admitted that the respondent no. 2 was living separately since December, 2013. The petitioner was living in the house owned by the respondent no. 2 and the respondent no. 2 was not living in the said house. The trial court observed that there was no occasion for the respondent no. 2 to raise any dowry demands.

4. The Chapter XIX of the Code deals with trial of warrant cases by Magistrate. Section 239 deals with situation when the accused shall be discharged. Section 240 deals with framing of charge in warrant trial. Sections 239 and 240 deal as under:-

239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

5. The purpose of framing a charge is to intimate the accused about the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial as observed in V.C. Shukla V State through C.B.I., 1980 Supp SCC 92. The prosecution is required to establish a prima facie before a charge can be framed. The Supreme Court in Union of India V Prafulla Kumar Samal & another, (1979) 3 SCC 4 considered scope of inquiry at the stage of framing of charge as per section 227 of the Code in Sessions criminal trial and observed as under:- (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

6. The Supreme Court in Onkar Nath Mishra & others V State (NCT of Delhi) & another, Appeal (Crl.)1716 of 2007 decided on 14th December, 2007 regarding framing of charge observed as under:- It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 6.[1] The Supreme Court Dipakbhai Jagdish Chandra Patel V State of Gujarat, (2019) 16 SCC 547 discussed law relating to the framing of charge and discharge and observed as under:-

15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows: 4…..Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial…. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.

23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. 6.[2] The Supreme Court in Asim Shariff V National Investigation Agency, (2019) 7 SCC 148 expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. The Supreme Court in State of Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. The Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool Magrey & Others, Criminal Appeal No. 001041 of 2022 (Arising Out of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th July, 2022 observed as under:- Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See: Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

7. Section 498A IPC deals with provision when husband or his relative subjected a woman to cruelty for dowry demands. The consequences of cruelty as per mandate of section 498A IPC are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand and are required to be established in order to bring home an offence under Section 498A IPC. Section 498A IPC reads as under:- 498A. 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 purpose 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.

8. In relation to offence punishable under section 498A, the Supreme Court in Sushil Kumar Sharma V Union of India and others, (2018) 10 SCC 443 observed as under:- Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work. 8.[1] The Supreme Court in Kahkashan Kausar @ Sonam & others V State of Bihar & others, Criminal Appeal No 195 of 2022 decided on 08th February, 2022 observed that section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. The Supreme Court in Arnesh Kumar V State of Bihar and another, (2014) 8 SCC 273 observed as under:-

4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested11.[1] The Supreme Court in Kahkashan Kausar @ Sonam & others V State of Bihar & others, Criminal Appeal No 195 of 2022 decided on 08th February, 2022 observed that section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. The Supreme Court in Arnesh Kumar V State of Bihar and another, (2014) 8 SCC 273 observed as under:-

4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested. 8.[2] The Supreme Court in Preeti Gupta & another V State of Jharkhand & another, (2010) 7 SCC 667 observed that it is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations and large number of such complaints which are not even bona fide and are filed with oblique motive. However rapid increase in genuine cases of dowry harassment is also a matter of serious concern. It was further observed that at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant and such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. The Supreme Court cast a duty on courts that 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. The Supreme Court in Geeta Mehrotra & another V State of UP & another, (2012) 10 SCC 741 after referring G.V. Rao V L.H.V. Prasad &others, (2000) 3 SCC 693 observed that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation. The Supreme Court in Kahkashan Kausar @ Sonam & others V State of Bihar & others quashed FIR for offence punishable under section 498A IPC besides other offences on ground that the contents of the FIR revealed that general allegations are levelled against the appellants and no specific and distinct allegations have been made against either of the appellants and no specific role is attributed to any of the appellant. It was also observed that the allegations are general and omnibus and can at best be said to have been made out on account of small skirmishes.

9. This Court in judgment titled as Hemlata V State & Others in CRL.M.C. 6030/2019 decided on 07.08.2023 held that that the general allegations which are not specific in nature regarding harassment caused to a wife for dowry demands cannot be basis of framing of charge for offence punishable under section 498A IPC. The husband and his other family members cannot subject to prosecution on basis of general allegations regarding dowry demands