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Tuesday, May 20, 2014

Quashing of FIR and Criminal Case - Sec.498 A, 506 I.P.C. - Love marriage -when earlier complaint was closed as civil disputes pending, no criminal case be registered on the same set of facts by adding criminal intimidation - living separately since April,2011- Restitution conjugal right filed - Pending a complaint in mahila Police station - complaint closed due to compromise - Restitution of conjugal rights also withdrawn - but a case under sec.498A,506 I.P.C.-High court refused to quash Apex court held that when the ealier complaint was closed as civil disputes pending It has to be seen that admittedly the second respondent has been living separately since April, 2011. Thereafter, she had lodged a complaint on 07.09.2011 before the very same police station. The same was duly enquired into and it was closed stating that the dispute is actually between the families which are to be otherwise settled in legal proceedings. If there are such differences between families which are to be settled in legal proceedings, how such differences would constitute and give rise to a successful prosecution under Sections 498A or 506 IPC or under Section 4 of the Dowry Prohibition Act, 1961, is the crucial question. The second respondent has been living separately since April, 2011 and hence, there is no question of any beating by the appellants as alleged by her. The relationship having got strained ever since April, 2011, even application for restitution of conjugal rights having been withdrawn on 16.04.2012 as the second respondent was not interested to live together, it is difficult to believe that there is still a demand for dowry on 30.04.2012 coupled with criminal intimidation. The allegations are vague and bereft of the details as to the place and the time of the incident. - allowed the appeal and quashed the case = Swapnil and Others … Appellant (s) Versus State of Madhya Pradesh … Respondent (s)= 2014(May. Part ) http://judis.nic.in/supremecourt/filename=41529

 Quashing of FIR and Criminal Case - Sec.498 A, 506 I.P.C. - Love marriage -when earlier complaint was closed as civil disputes pending, no criminal case be registered on the same set of facts by adding criminal intimidation  -  living separately since April,2011- Restitution conjugal right filed - Pending a complaint in mahila Police station - complaint closed due to compromise - Restitution of conjugal rights also withdrawn - but a case under sec.498A,506 I.P.C.-High court refused to quash  Apex court held that when the ealier complaint was closed as civil disputes pending It has to be seen that  admittedly  the  second  respondent  has  been living separately since April, 2011.  Thereafter,  she  had  lodged  a complaint on 07.09.2011 before the very same police station. The  same was duly enquired into and it was closed stating that the  dispute  is actually between the families which are to  be  otherwise  settled  in legal proceedings. If there  are  such  differences  between  families which are to be settled in legal  proceedings,  how  such  differences would constitute and give  rise  to  a  successful  prosecution  under Sections 498A or 506 IPC or under Section 4 of the  Dowry  Prohibition Act, 1961, is the crucial question. The second respondent has been living separately since April,  2011 and hence, there is no question  of  any  beating  by  the  appellants  as alleged by her.  The relationship having got strained ever since April, 2011, even application for restitution of conjugal rights having  been withdrawn on 16.04.2012 as the second respondent was not interested to live together,  it is difficult to believe that there is still a demand for dowry  on  30.04.2012  coupled  with  criminal  intimidation.  The allegations are vague and bereft of the details as to  the  place  and the time of the incident.  - allowed the appeal and quashed the case =

High Court declined  to  exercise  its  jurisdiction  under
      Section 482 of the  Code  of  Criminal  Procedure,  1973  (hereinafter
      referred to as ‘Cr.PC’)  for  quashing  the  proceedings  and  charges
      framed against the appellants under Section 498A, 506 Part II  of  the
      Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’)  and
      Section 4 of the Dowry Prohibition Act, 1961. The appellants 2  and  3
      are his father and mother respectively. The Respondent No.  2  is  the
      wife of the first appellant.=
It is seen from Annexure-P3-application filed by  the
      first appellant on 14.07.2011 under Section 9 of  the  Hindu  Marriage
      Act, 1955 seeking restitution  of  conjugal  rights  that  the  second
      respondent had left the matrimonial house on 23.04.2011 and thereafter
      she had not gone back. On 23.05.2011, a lawyer notice  had  also  been
      served on the second  respondent  which  was  replied  on  02.06.2011.
      During the pendency of the proceedings  for  restitution  of  conjugal
      rights, the second  respondent,  on  07.09.2011,  lodged  a  complaint
      before Mahila Thana, Indore Police Station raising allegations against
      the appellants, the maternal uncle, maternal aunt and  the  sister  of
      the first appellant.=
Annexure-P5 is the Record of Proceedings dated 12.12.2011 when parties
      were called before Mahila Police Station. The same is extracted below:
      “Sir,
      In connection with enquiry of reference application both  the  parties
      appeared in women police station and statement of both  were  recorded
      which are enclosed with  enquiry.  Applicant  told  that  her  husband
      Swapnil does not do any work/business and other members  of    in-laws
      house by putting demand of dowry cause physical and mental harassment.
      Let family counseling be done with husband so that domestic  life  may
      remain peaceful.


      Non applicant told in his statement that my domestic  life  could  not
      run peacefully due to intervention of members  of  parental  house  of
      Kirti.


      Family counseling of both parties was done. There are  certain  family
      differences between both the  parties  hence  both  the  parties  were
      suggested to rehabilitate their domestic life by court proceeding.


      Report is submitted in your goodself.”


   4. The first appellant on 16.04.2012 withdrew the application filed under
      Section 9 of the Hindu Marriage Act,  1955,  since  according  to  the
      first appellant the second  respondent  was  not  inclined  to  resume
      cohabitation. =

 The first appellant and second respondent had in fact solemnized their
      marriage at Arya Samaj Mandir on 16.06.2007 privately,  as  they  were
      stated to be in love with each other for sometime. 
Thereafter only, in
      the presence  of  the  family  members,  marriage  was  solemnized  on
      24.06.2009.

  10. It has to be seen that  admittedly  the  second  respondent  has  been
      living separately since April, 2011.  
Thereafter,  she  had  lodged  a
      complaint on 07.09.2011 before the very same police station. 
The  same
      was duly enquired into and it was closed stating that the  dispute  is
      actually between the families which are to  be  otherwise  settled  in
      legal proceedings. 
If there  are  such  differences  between  families
      which are to be settled in legal  proceedings,  how  such  differences
      would constitute and give  rise  to  a  successful  prosecution  under
      Sections 498A or 506 IPC or under Section 4 of the  Dowry  Prohibition
      Act, 1961, is the crucial question.

  11. The second respondent has been living separately since April,  2011and
      hence, there is no question  of  any  beating  by  the  appellants  as
      alleged by her. 
The relationship having got strained ever since April,
      2011, even application for restitution of conjugal rights having  been
      withdrawn on 16.04.2012 as the second respondent was not interested to
      live together, 
it is difficult to believe that there is still a demand
      for dowry  on  30.04.2012  coupled  with  criminal  intimidation.  
The
      allegations are vague and bereft of the details as to  the  place  and
      the time of the incident.  
We had called for the records and have gone
      through the same. 
The materials before the learned Judicial Magistrate
      First Class, Indore are not sufficient to form an opinion  that  there
      is ground for presuming that the accused appellants have committed the
      offence under the charged Sections. 
The Additional Sessions Court  and
      the High Court missed  these  crucial  points  while  considering  the
      petition filed by the appellants under Section 397 and Section 482  of
      the Cr.PC respectively. 
The veiled object behind the lame  prosecution
      is apparently to harass the appellants. 
We are,  hence,  of  the  view
      that the impugned  prosecution  is  wholly  unfounded.  
Therefore,  to
      secure the ends of justice and for preventing abuse of the process  of
      the criminal court, the charges  framed  by  the  Judicial  Magistrate
      First Class, Indore in Criminal Case No. 10245  of  2012  against  the
      accused appellants are quashed. 
The accused appellants are discharged.
      However, we make it clear that  nothing  contained  in  this  judgment
      shall have a bearing on any proceedings between the parties  regarding
      their  matrimonial  disputes  before  the  Family  Court,  since   our
      observations are only for the purpose of this judgment.

  12. The appeal is allowed as above.

 2014(May. Part ) http://judis.nic.in/supremecourt/filename=41529

     SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH                 

  IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


             CRIMINAL APPEAL NO.        1144             OF 2014
              [Arising out of S.L.P. (Criminal) No. 8965/2013]

Swapnil and Others                                 … Appellant (s)

                                   Versus

State of Madhya Pradesh                            … Respondent (s)


                               J U D G M E N T


KURIAN, J.:



      Leave granted.


   2. The appellant is aggrieved by the order dated 02.09.2013 passed by the
      High Court of Madhya Pradesh Bench at Indore.   As  per  the  impugned
      order, the High Court declined  to  exercise  its  jurisdiction  under
      Section 482 of the  Code  of  Criminal  Procedure,  1973  (hereinafter
      referred to as ‘Cr.PC’)  for  quashing  the  proceedings  and  charges
      framed against the appellants under Section 498A, 506 Part II  of  the
      Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’)  and
      Section 4 of the Dowry Prohibition Act, 1961. The appellants 2  and  3
      are his father and mother respectively. The Respondent No.  2  is  the
      wife of the first appellant. She lodged a complaint with Mahila Thana,
      Indore Police Station on which  FIR  No.  50  dated  02.05.2012  under
      Section 498A, 506 and 34 of IPC was registered. It was alleged in  the
      complaint that the marriage between the  first  appellant  and  second
      respondent was performed on 24.06.2009 and after  two  months  of  the
      marriage, the appellants and the sister of the first appellant started
      demanding dowry. It is seen from Annexure-P3-application filed by  the
      first appellant on 14.07.2011 under Section 9 of  the  Hindu  Marriage
      Act, 1955 seeking restitution  of  conjugal  rights  that  the  second
      respondent had left the matrimonial house on 23.04.2011 and thereafter
      she had not gone back. On 23.05.2011, a lawyer notice  had  also  been
      served on the second  respondent  which  was  replied  on  02.06.2011.
      During the pendency of the proceedings  for  restitution  of  conjugal
      rights, the second  respondent,  on  07.09.2011,  lodged  a  complaint
      before Mahila Thana, Indore Police Station raising allegations against
      the appellants, the maternal uncle, maternal aunt and  the  sister  of
      the first appellant. Paragraph 4 of the complaint  –Annexure-P4  reads
      as follows:
      “4.   The accused persons yesterday on 06.09.2011 having common intent
      collectively came to my parental house and  while  hurling  abuses  as
      Madarchod, Bahanchod etc. said that if you want life of  your  mother,
      father, brother and sister then you come within one  month  with  Rs.1
      lac cash balance 5 tola gold, Wagner Car which is purchased after your
      marriage and money for Maruti car otherwise your mother-father, sister
      and brother will be kidnapped and  they  will  be  killed.  They  gave
      threat to take over possession on my house and said  that  what  wrong
      you have caused to us by sending copies in  police  in  reply  of  our
      notice, you do not know us yet. When your mother, father, brother  and
      sisters would be sent behind jail in false allegations then see  govt.
      job of your father will be loosed and you would start begging on  road
      and gave threat that do not dare to go in police,  nobody  would  give
      evidence against us in  colony  because  we  have  approach  with  big
      leaders and officers and gundas elements. If you  go  in  police  then
      proceeding will be done against you not against us.”



   3. Annexure-P5 is the Record of Proceedings dated 12.12.2011 when parties
      were called before Mahila Police Station. The same is extracted below:
      “Sir,
      In connection with enquiry of reference application both  the  parties
      appeared in women police station and statement of both  were  recorded
      which are enclosed with  enquiry.  Applicant  told  that  her  husband
      Swapnil does not do any work/business and other members  of    in-laws
      house by putting demand of dowry cause physical and mental harassment.
      Let family counseling be done with husband so that domestic  life  may
      remain peaceful.


      Non applicant told in his statement that my domestic  life  could  not
      run peacefully due to intervention of members  of  parental  house  of
      Kirti.


      Family counseling of both parties was done. There are  certain  family
      differences between both the  parties  hence  both  the  parties  were
      suggested to rehabilitate their domestic life by court proceeding.


      Report is submitted in your goodself.”


   4. The first appellant on 16.04.2012 withdrew the application filed under
      Section 9 of the Hindu Marriage Act,  1955,  since  according  to  the
      first appellant the second  respondent  was  not  inclined  to  resume
      cohabitation.  It  was  thereafter,  the  complaint  dated  02.05.2012
      leading  to  the  impugned  prosecution  was  filed  by   the   second
      respondent. She also  filed  a  complaint  under  Section  12  of  the
      Protection of Women from Domestic Violence Act, 2005 on 17.05.2012. It
      seems another application under Section 125 of Cr.PC was also filed by
      her.

   5. The gist of the complaint dated 02.05.2012 reads as follows:
      “… On 30.04.2012 they said if you do not fulfill our  demand  then  we
      would kill you, thus my husband, father in  law,  mother  in  law  and
      sister in law gave threat for life on the issue of demand of  10  tola
      gold, maruti car and 1 lac rupees cash in dowry and have subjected  me
      on physical and mental  harassment  now  I  have  been  harassed  from
      cruelty of members of in laws house and I do not want  to  enter  into
      any compromise rather I want legal proceeding. …”






   6. The learned Judicial Magistrate First Class Magistrate, Indore  framed
      the following charges:
      “I, Sarmesh Singh Judicial Magistrate First Class Indore hereby  frame
      following charge against you Anil S/o Ramdas R/o 73 Laxmipuri  Colony,
      Indore:

      1.    You being husband of complainant Kirti subjected her  to  mental
           and  physical  torture  and  harassment   from   24.06.2009   to
           30.04.2012 in 73 Laxmipuri Colony Indore, making illegal  demand
           of Rs.1,00,000/-, car and 10 tola gold as dowry and  by  beating
           her caused cruelty?

      2.    You on 30.04.2012 with intention to intimidate complainant Kirti
           gave threat to cause her death,  as  such  by  intimidating  her
           caused criminal intimidation?

      3.    You being husband of complainant Kirit  put  illegal  demand  of
           Rs.1,00,000/-,  car  and  10  tola  gold  as  dowry  on  various
           intervals from 24.06.2009 to 30.04.2012 from  complainant  Kirti
           and her relatives?

      By doing such you have committed offence  which  is  punishable  under
      section 498A, 506 Part-2, IPC and section 4 of Dowry Prohibition  Act,
      which is in my cognizance. I by this report order that you be tried in
      above mentioned crimes.”



   7. The appellants filed Criminal Revision  No.  85  of  2013  before  the
      Sessions Court which was dismissed by Order dated  14.03.2013  by  the
      Additional Sessions Judge, Indore. It is significant to note that even
      according to the learned Additional Sessions  Judge  “it  is  possible
      that accused Swapnil was taking care of his wife…”.

   8. If  the  intervening  developments  referred  to  above  and  the  two
      complaints are analysed carefully, it can be seen that except for  the
      improvement with regard to the alleged intimidation on 30.04.2012, the
      allegations in the earlier complaint dated 07.09.2011 are exactly  the
      same. As a matter of fact, there was  an  allegation  with  regard  to
      criminal intimidation in the complaint dated 07.09.2011  as  well,  as
      can be seen from the extracted portion of the complaint.  However,  in
      the complaint  dated  02.05.2012,  there  is  a  grave  allegation  on
      intimidation to kill, made on 30.04.2012.

   9. The first appellant and second respondent had in fact solemnized their
      marriage at Arya Samaj Mandir on 16.06.2007 privately,  as  they  were
      stated to be in love with each other for sometime. Thereafter only, in
      the presence  of  the  family  members,  marriage  was  solemnized  on
      24.06.2009.

  10. It has to be seen that  admittedly  the  second  respondent  has  been
      living separately since April, 2011.  Thereafter,  she  had  lodged  a
      complaint on 07.09.2011 before the very same police station. The  same
      was duly enquired into and it was closed stating that the  dispute  is
      actually between the families which are to  be  otherwise  settled  in
      legal proceedings. If there  are  such  differences  between  families
      which are to be settled in legal  proceedings,  how  such  differences
      would constitute and give  rise  to  a  successful  prosecution  under
      Sections 498A or 506 IPC or under Section 4 of the  Dowry  Prohibition
      Act, 1961, is the crucial question.

  11. The second respondent has been living separately since April,  2011and
      hence, there is no question  of  any  beating  by  the  appellants  as
      alleged by her. The relationship having got strained ever since April,
      2011, even application for restitution of conjugal rights having  been
      withdrawn on 16.04.2012 as the second respondent was not interested to
      live together, it is difficult to believe that there is still a demand
      for dowry  on  30.04.2012  coupled  with  criminal  intimidation.  The
      allegations are vague and bereft of the details as to  the  place  and
      the time of the incident.  We had called for the records and have gone
      through the same. The materials before the learned Judicial Magistrate
      First Class, Indore are not sufficient to form an opinion  that  there
      is ground for presuming that the accused appellants have committed the
      offence under the charged Sections. The Additional Sessions Court  and
      the High Court missed  these  crucial  points  while  considering  the
      petition filed by the appellants under Section 397 and Section 482  of
      the Cr.PC respectively. The veiled object behind the lame  prosecution
      is apparently to harass the appellants. We are,  hence,  of  the  view
      that the impugned  prosecution  is  wholly  unfounded.  Therefore,  to
      secure the ends of justice and for preventing abuse of the process  of
      the criminal court, the charges  framed  by  the  Judicial  Magistrate
      First Class, Indore in Criminal Case No. 10245  of  2012  against  the
      accused appellants are quashed. The accused appellants are discharged.
      However, we make it clear that  nothing  contained  in  this  judgment
      shall have a bearing on any proceedings between the parties  regarding
      their  matrimonial  disputes  before  the  Family  Court,  since   our
      observations are only for the purpose of this judgment.

  12. The appeal is allowed as above.




                                                    ………..…………………….…..…………J.
                                 (SUDHANSU JYOTI MUKHOPADHAYA)


                                                     …………………..…………………………J.
                                         (KURIAN JOSEPH)
New Delhi;
May 9, 2014.
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                                                                  REPORTABLE


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