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Wednesday, February 19, 2014

Sec. 482 of Cr.P.C. - to quash complaint filed under sec.498 A and 406 of I.P.C - Cruelty may be mental - absence of physical cruelty in pleadings does not mean there is no cruelty against the complaint - Mental cruelty was established prima faice - as far as sec. 406 - the allegations are enough to attracts the fiduciary status of accused and their custody of her sridhana - No grounds to quash - accused petition was dismissed by the Apex court - Curative petition by wife - not maintainable for execution of maintenance order simply because the husband is at foreign country as sec. 125 (3) and sec. 145 of cr.p.c provided vast remedies to execute the maintenance order - a family court can transfer the case to the nearest J.F.C.M to execute the maintenance order if necessary - Apex court dismissed the curative petition too = BHASKAR LAL SHARMA & ANR. ... APPELLANT (S) VERSUS MONICA AND ORS. ... RESPONDENT (S) = 2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41229

 Sec. 482 of Cr.P.C. - to quash complaint filed under sec.498 A and 406 of I.P.C - Cruelty may be mental - absence of physical cruelty in pleadings does not mean there is no cruelty against the complaint - Mental cruelty was established prima faice - as far as sec. 406 - the allegations are enough to attracts the fiduciary status of accused and their custody of her sridhana - No grounds to quash - accused petition was dismissed by the Apex court - Curative petition by wife - not maintainable for execution of maintenance order simply because the husband is at foreign country as sec. 125 (3) and sec. 145 of cr.p.c  provided vast remedies to execute the maintenance order - a family court can transfer the case to the nearest J.F.C.M to execute the maintenance order if necessary - Apex court dismissed the curative petition too =
No Grounds to Quash the complaint =
whether  on
the allegations made in the complaint petition filed  by  the  respondent  a
prima facie case of commission of offences under Sections 498A  and  406  of
the Penal Code is made out against the appellants. 
 We disagree.  ‘Cruelty’ as defined in the Explanation to Section  498A
of the Penal Code has a twofold meaning.  The contentions of Shri Sharan  do
not deal with the  Explanation  (a)  and  is  exclusively  confined  to  the
meaning dealt with by Explanation (b).  Having given our anxious consideration to the  averments  made in the complaint petition, we are of the view that the  statements  made  in
the relevant paragraphs of the complaint can  be  understood  as  containing
allegations  of  mental  cruelty  to  the   complainant.    The   complaint,
therefore, cannot be rejected at the threshold.
Insofar as the  offence  under  Section  406  of  the  Penal  Code  is
concerned, it is clear from the averments made in paragraphs 16, 18, 24  and
29 of the complaint petition that it has been alleged  that  the  appellants
were entrusted or had exercised dominion over the property belonging to  the
respondent and further that  the  appellants  had  unlawfully  retained  the
same.  
The  statements  made  in  para  6  of  the  complaint  also  alleges
retention of cash and other gifts received by the respondent-complainant  at
the time of her marriage to the accused-appellant No. 2.   
In  the  face  of
the said averments made in the complaint petition, it cannot  be  said  that
the complaint filed by the respondent is shorn of the necessary  allegations
to prima facie sustain the case of commission of the offence  under  Section
406 by the appellants.

12.   In view of the above, we unhesitatingly come to  the  conclusion  that
the complaint petition registered  as  Complaint  No.  287/1A   (Monica  Vs.
Vikas Sharma and Others) presently pending  in  the  Court  of  Metropolitan
Magistrate, Patiala House, New Delhi cannot be interdicted  but  has  to  be
finally concluded by the learned Trial Court.  
We,  therefore,  dismiss  the appeals filed by the accused .

Curative petition  filed by wife =

The order passed under Section 125 of the  Code  granting  maintenance
to the writ petitioner appears to have attained finality in  law.   Such  an
order can be executed by following the  provisions  of  sub-Section  (3)  of
Section 125 of the Code. 
The scope and ambit of the said provision  of  the
Code has recently been dealt with in Poongodi and Another  Vs.  Thangavel[1]
wherein reference has been made to several earlier decisions on  the  issue.
When the enforcement and execution of an order passed  under  a  statute  is
contemplated by the statute itself, normally, an aggrieved litigant  has  to
take recourse to the  remedy  provided  under  the  statute.   In  fact  the
petitioner has  initiated  a  proceeding  for  execution  of  the  order  of
maintenance granted in her favour. 
The fact  that  the  husband  (respondent
herein) against whom the order of maintenance is  required  to  be  enforced
lives outside the territory of India, in our considered view,  cannot  be  a
reasonable basis for invoking the extraordinary remedy under Article  32  of
the Constitution inasmuch as the provisions of the  Code  i.e.  Section  105
makes elaborate provisions  for  service  of  summons  in  case  the  person
summoned  by  the  court   resides   outside   the   territory   of   India.
  In view of the remedy that is available to  the  petitioner
under the Code and having regard to the fact that resort to such remedy  has
already been made, we decline to invoke our jurisdiction  under  Article  32
of the Constitution in facts of the present case.  Instead,  we  direct  the
Family Court No. 2, Saket, New Delhi to pass  appropriate  final  orders  in
Petition No.M-298/2011 as expeditiously as possible.  
We would also like  to
make it clear that in the event it is found so necessary the learned  Family
Court may transfer the case to the competent criminal court  whereafter  the
concerned criminal court will make all endeavour to bring the proceeding  to
a early conclusion.

2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41229             P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL  NOS.435-436 OF 2014
             Special Leave Petition (Crl) Nos.4125-4126 OF 2008


BHASKAR LAL SHARMA & ANR.               ...    APPELLANT (S)

                                   VERSUS

MONICA AND ORS.                   ...  RESPONDENT (S)

                                    With
                    WRIT PETITION (CRL.) No. 101 OF 2013


                               J U D G M E N T


RANJAN GOGOI, J.

1.    As ordered earlier, both the cases were heard together and  are  being
disposed of by this common Order.

SLP (Crl.) No. 4125-4126/2008

2.    Leave granted.


3.    The essential facts may be noticed at the outset.


      The respondent, herein, Monica, had filed a complaint  under  Sections
498A, 406 read with  Section  34  of  the  Indian  Penal  Code  (hereinafter
referred to as the “Penal  Code”)  against  the  appellants  and  one  Vikas
Sharma (respondent No.2).
The appellants are the father  and  mother-in-law
of the respondent-Monica whereas the subsequently impleaded  respondent  No.
2 is her husband.

      On 21.3.2005 the learned Metropolitan Magistrate, Patiala  House,  New
Delhi took cognizance of the offences  alleged  by  the  respondent  in  the
complaint petition which was numbered as 287/1A and issued  summons  to  the
appellants and the  second  respondent  herein.
Aggrieved,  the  appellants
moved the High Court of Delhi under Section 482  of  the  Code  of  Criminal
Procedure Code, 1973 (hereinafter referred to as the  “Code”)  for  quashing
the complaint.  By  judgment  and  order  dated  21.1.2008  the  High  Court
dismissed the application filed by the appellants.  
Against the  said  order
the appellants moved this Court by means of  two  special  leave  petitions.
By order dated 27.07.2009 leave was granted and the  appeals  registered  as
Criminal Appeal Nos. 1325-1326 of  2009  were  disposed  of  by  this  Court
holding that while no offence under Section 498A of the Penal Code was  made
out against either of the appellants, the  offence  under  Section  406,  as
alleged, was prima facie made out against the appellant No. 2 alone.

4.    Aggrieved by the said judgment and  order  dated  27.07.2009  of  this
Court, the respondent filed Review Petition Nos. 384-385 of 2009 which  were
dismissed  by  this  Court  by  order  dated  01.09.2009.  
Thereafter,  the
National Commission for Women as well as respondent herself  filed  Curative
Petition (Crl.) Nos. 24-25 of 2010 and Curative Petition (Crl.) No. D  10575
of 2010 respectively which  were  allowed  by  this  Court  by  order  dated
14.03.2013.
It is pursuant to the aforesaid order dated  14.03.2013  passed
in the Curative Petitions that the present appeals were re-heard by us.

5.    In the order dated 14.03.2013 passed in the Curative Petitions it  has
been observed that,
      “As far as the question regarding making out of a case  under  Section
      498A I.P.C. is concerned, it has to be kept in mind that  the  appeals
      were against the initial order summoning the accused to  stand  trial.
      Accordingly, it was too early a stage, in our view, to take a stand as
      to whether any of the allegations had been established or not.”




6.    However, as in the very same order dated 14.03.2013 it was made  clear
that “the observations made in  this  order  is  for  the  purposes  of  the
hearing of the curative petitions and should not, in any way, prejudice  the
outcome of the appeals, when they are heard afresh”, we  have  proceeded  to
re-hear the appeals on its own merit.

      We would also like to observe, at this  stage,  that  in  the  present
appeals the only question that would require to be  decided  is
 whether  on
the allegations made in the complaint petition filed  by  the  respondent  a
prima facie case of commission of offences under Sections 498A  and  406  of
the Penal Code is made out against the appellants. 
We will not be  concerned
with such allegations made against the second respondent who,  though  named
as accused No. 1 in the complaint, had chosen not to question the same.  
In
fact, the said accused has  been  brought  on  the  record  of  the  present
proceedings as respondent No. 2 on the basis of an application filed by  the
respondent Monica claiming that the addition of her husband as a  respondent
is necessary for  the  purposes  of  facilitating  a  reconciliation  which,
however, did not materialise though was attempted.

7.    We have read and considered the statements  made  by  the  complainant
(respondent  herein)  in  the  complaint  petition,  particularly  those  in
paragraphs 16, 17, 18, 19, 24 and 29  thereof.   The  said  paragraphs  have
also been noticed by the High Court  in  its  order  dated  21.01.2008.  
A
detailed recital of the manner in  which  the  present  appellants  and  the
respondent No. 2 had allegedly ill-treated the respondent-complainant  after
her marriage and had withheld different items of her stridhan  property  has
been set out by the respondent-complainant in the  aforesaid  paragraphs  of
her complaint.

8.    Shri Amarendra Sharan, learned senior counsel for the  appellants  has
urged that the statements/averments made in the complaint petition, even  if
taken to be correct, do not make out any offence against any of the  accused
appellants either under Sections 498A or 406 of the Penal Code, as  alleged.
 Shri Sharan has laid stress on the fact that there is no  averment  in  the
complaint petition with regard to any demand for dowry  by  the  appellants;
or of any ill-treatment of the respondent by the  appellants  or  commission
of any act in  connection  with  any  such  demand  which  could  amount  to
‘cruelty’ within the meaning of Section 498A  IPC.
Shri  Sharan  has  also
urged that no  where  in  the  complaint  petition  entrustment  within  the
meaning of Section 405 of the  Penal  Code  has  been  alleged  against  the
appellants so as to even prima facie make  the  appellants  liable  for  the
offence under Section 406 of the Penal Code.

9.    We disagree.  ‘Cruelty’ as defined in the Explanation to Section  498A
of the Penal Code has a twofold meaning.  The contentions of Shri Sharan  do
not deal with the  Explanation  (a)  and  is  exclusively  confined  to  the
meaning dealt with by Explanation (b).
Under Explanation (a) conduct  which
is likely to cause injury or danger to  life,  limb  or  health  (mental  or
physical) would come within the meaning of the expression “cruelty”.   While
instances of physical torture would be plainly evident from  the  pleadings,
conduct which has caused or is likely to cause mental injury  would  be  far
more subtle.
Having given our anxious consideration to the  averments  made
in the complaint petition, we are of the view that the  statements  made  in
the relevant paragraphs of the complaint can  be  understood  as  containing
allegations  of  mental  cruelty  to  the   complainant.    The   complaint,
therefore, cannot be rejected at the threshold.

10.   The facts, as alleged, therefore will have to be proved which only  be
done in the course of a regular trial.  It is wholly unnecessary for  us  to
embark upon a discourse as regards the scope and ambit of the Court’s  power
to quash a criminal proceeding.  Appreciation, even in a summary manner,  of
the averments made in a complaint petition or FIR would not  be  permissible
at the stage of quashing and the facts stated will have to  be  accepted  as
they appear on the very face of it.  This is the core test that  has  to  be
applied  before  summoning  the  accused.   Once  the  aforesaid  stage   is
overcome,   the   facts   alleged    have    to    be    proved    by    the
complainant/prosecution  on  the  basis  of  legal  evidence  in  order   to
establish the penal liability of the person charged with the offence.

11.   Insofar as the  offence  under  Section  406  of  the  Penal  Code  is
concerned, it is clear from the averments made in paragraphs 16, 18, 24  and
29 of the complaint petition that it has been alleged  that  the  appellants
were entrusted or had exercised dominion over the property belonging to  the
respondent and further that  the  appellants  had  unlawfully  retained  the
same.  
The  statements  made  in  para  6  of  the  complaint  also  alleges
retention of cash and other gifts received by the respondent-complainant  at
the time of her marriage to the accused-appellant No. 2.   
In  the  face  of
the said averments made in the complaint petition, it cannot  be  said  that
the complaint filed by the respondent is shorn of the necessary  allegations
to prima facie sustain the case of commission of the offence  under  Section
406 by the appellants.

12.   In view of the above, we unhesitatingly come to  the  conclusion  that
the complaint petition registered  as  Complaint  No.  287/1A   (Monica  Vs.
Vikas Sharma and Others) presently pending  in  the  Court  of  Metropolitan
Magistrate, Patiala House, New Delhi cannot be interdicted  but  has  to  be
finally concluded by the learned Trial Court.  
We,  therefore,  dismiss  the
appeals filed by the accused and in view of the time that  has  elapsed,  we
direct that the trial be completed expeditiously and in any  case  within  a
period of one year from the date of receipt of a copy of this order  by  the
learned Trial Court.

Writ Petition (Crl.) No. 101/2013

13.   Monica, the respondent in the Criminal  Appeals  dealt  with  by  this
order,  has  instituted  this  writ  petition  under  Article  32   of   the
Constitution seeking the following reliefs :
      “(A)  To serve notice to the Respondent No.1 Sh. Vikas Sharma  through
           his mother Smt. Vimla Sharma who is  being  represented  by  ld.
           Counsel/AOR Shri Sumit Attri in SLP(Crl.) No. 4125-4126/2008.


      (B)   To tag the instant writ  petition  with  SLP  (Crl.)  No.  4125-
           4126/2008 entitled Bhaskar Lal Sharma &  Anr.  Versus  Monica  &
           Ors.


      (C)   To direct the Respondent No.1 to immediately pay the maintenance
           arrears to the tune of Rs.55,65,000(Sept 2004-June 2013  to  the
           petitioner-wife alongwith 50% penalty amount of Rs. 27,82,500.


      D)    To direct the Respondent No.1 to pay Rs. 93,500 per month to the
           petitioner from July 2013 onwards.”



14.   It appears that by an order dated 03.07.2007 passed under Section  125
of the Code by the  learned  A.C.M.M.,  New  Delhi  in  Complaint  Case  No.
176/1/1006 maintenance has been granted to the writ petitioner at  the  rate
of Rs. 50,000/- per month with effect from 4.9.2004.  An  application  dated
30.11.2011 had been filed by the writ petitioner  before  the  Family  Court
No. 2, Saket, New Delhi for payment of the arrears of  maintenance  as  also
the current monthly maintenance.  The said  petition  numbered  as  Petition
No.      M-298/2011 is presently pending.

15.   The order passed under Section 125 of the  Code  granting  maintenance
to the writ petitioner appears to have attained finality in  law.   Such  an
order can be executed by following the  provisions  of  sub-Section  (3)  of
Section 125 of the Code.
The scope and ambit of the said provision  of  the
Code has recently been dealt with in Poongodi and Another  Vs.  Thangavel[1]
wherein reference has been made to several earlier decisions on  the  issue.
When the enforcement and execution of an order passed  under  a  statute  is
contemplated by the statute itself, normally, an aggrieved litigant  has  to
take recourse to the  remedy  provided  under  the  statute.   In  fact  the
petitioner has  initiated  a  proceeding  for  execution  of  the  order  of
maintenance granted in her favour. 
The fact  that  the  husband  (respondent
herein) against whom the order of maintenance is  required  to  be  enforced
lives outside the territory of India, in our considered view,  cannot  be  a
reasonable basis for invoking the extraordinary remedy under Article  32  of
the Constitution inasmuch as the provisions of the  Code  i.e.  Section  105
makes elaborate provisions  for  service  of  summons  in  case  the  person
summoned  by  the  court   resides   outside   the   territory   of   India.
Comprehensive guidelines have been laid down  by  the  Government  of  India
with regard  to  service  of  summons/notices/judicial  process  on  persons
residing abroad.
In view of the remedy that is available to  the  petitioner
under the Code and having regard to the fact that resort to such remedy  has
already been made, we decline to invoke our jurisdiction  under  Article  32
of the Constitution in facts of the present case.  Instead,  we  direct  the
Family Court No. 2, Saket, New Delhi to pass  appropriate  final  orders  in
Petition No.M-298/2011 as expeditiously as possible.  
We would also like  to
make it clear that in the event it is found so necessary the learned  Family
Court may transfer the case to the competent criminal court  whereafter  the
concerned criminal court will make all endeavour to bring the proceeding  to
a early conclusion.

16.   We, therefore, dispose of the writ petition in the above terms.


                                       ..…………………………CJI.
                                        [P. SATHASIVAM]



                                        ........………………………J.
                                        [RANJAN GOGOI]




                                                       …..........……………………J.
                                        [SHIVA KIRTI SINGH]
NEW DELHI,
FEBRUARY 18, 2014.
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[1]    (2013) 10 SCC 618

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