Khuman Chand v. State of Rajasthan — 1998 DIGILAW 35 (RAJ)

Honble SINGH, J. – Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for non-petitioner no. 2. (2). The facts which are relevant for the disposal of this petition may be summarised as below :– The petitioner Khuman Chand filed a complaint in the court of learned Judicial Magistrate, No. 1, Bikaner on 3rd February, 1988 against 15 persons alleging the commission of the offences punishable u/Ss. 307, 406, 420, 342, 323, 427, 147, 148 read with 149 IPC and u/S. 3 read with 4 of the Dowry Prohibition Act, 1961. In his complaint Khuman Chand alleged that he settled the marriage of his daughter with Narendra Kumar (non-petitioner no. 3). The engagement took place on 17th Janu- ary, 1988. At the time of engagement following sums were paid to persons men- tioned below :– 1. Rs. 1101/- to Shri Punam Chand, the grand father of Narendra Kumar. 2. Rs. 401/- to Shri Singi Ji, Maternal uncle of Narendra Kumar. 3. Rs. 201/- to Narendra Kumar. 4. Rs. 251/- to Punam Chand by Jatan Lal 5. Rs. 101/- to Narendra Kumar by Jatan Lal. 6. Amounts of Rs. 21/-, 51/- and Rs. 11/- were also paid by Shanti Lal, Sagar Mal and Hanuman Mal at the time of engagement. (3). Besides giving above mentioned amounts to persons named above, Rs. 400/- were spent on purchasing sweets and Rs. 490/- was spent for puchase of fruits. Rs. 925/- were paid for arranging the band and one golden ring bearing the inscription ``Narendra was also given to Narendra Kumar. It was also alleged in the complaint filed by Khuman Chand that it was agreed at the time of settlement of marriage that complainant would spend as much amount as his purse would allow. The date of marriage was fixed on 6th February, 1988. According to allegations made in the complaint, on 20th January, 1988 Punam Chand, went to the house of the complainant and demanded a sum of Rs. 50,000/- as a consideration for marriage. The complainant refused to meet the demand and as a consequence the proposal for the marriage of his sister was withdrawn. (4). On 26th January, 1988 at about 8 a.m. Gauri Shanker was sent by the complainant to the house of Vijay Singh Chhajer with the direction that whatever was given at the time of engagement be taken back. The complainant refused to meet the demand and as a consequence the proposal for the marriage of his sister was withdrawn. (4). On 26th January, 1988 at about 8 a.m. Gauri Shanker was sent by the complainant to the house of Vijay Singh Chhajer with the direction that whatever was given at the time of engagement be taken back. Gauri Shanker returned after sometime and he told that Punam Chand, Vijay Singh and Narendra Kumar had asked to send Khuman Chand. The complainant, thereafter, went to the house of Vijay Singh with a view to take back whatever he had given at the time of engagement. It is alleged that when the complainant attempted to enter the house, the accused-persons accompanied by 10 to 15 other persons went there and tried to catch the complainant, but the complainant escaped in his jeep. He was attackedand in consequence Kiran Chand (one of the accused) was received injuries. There- after, the complainant was taken by the accused persons to their house. When the information about the incident reached the sons of the complainant, they also reached the spot. They were also caught by the accused-persons. After some time, the police officer reached the spot and the complainant and accused-persons were taken to the Police Station. (5). It was alleged in the complaint that Vimal Chand lodged the F.I.R. No. 11/988 at Police Station, Ganga Sahar against the complainant alleging the commission of offence u/S. 307 IPC. (6). The complaint filed by Khuman Chand was sent to the police for investigation u/S. 156(3) Cr.P.C. On the basis of that complaint, the police registered the F.I.R. No. 17/88 in respect of offences u/Ss. 307, 406, 420, 342, 323, 427, 147, 148, 149 IPC and 3/4 of the Dowry Prohibition Act, 1961. (7). After completing investigation the police submitted a final report u/S 173 (2) Cr.P.C. The complainant submitted a protest petition. After hearing the arguments, the learned Judicial Magistrate, No. 1, Bikaner took cognizance of the offen- ces u/Ss. 406 IPC and 3/4 of the Dowry Prohibition Act, 1961 against three persons, namely, Punam Chand, Vijay Singh and Narendra Kumar and directed the issue bailable warrants to enforce their appearance. (8). Feeling aggrieved by the order dated 1st February, 1989 passed by the learned Judicial Magistrate No. 1, Bikaner, the accused filed a revision petition in the Court of Sessions Judge, Bikaner. (8). Feeling aggrieved by the order dated 1st February, 1989 passed by the learned Judicial Magistrate No. 1, Bikaner, the accused filed a revision petition in the Court of Sessions Judge, Bikaner. The revision Petition No. 20/92 was disposed of by the learned Special Judge, S.C. & S.T. (Prevention of Atrocities Act) Cases-cum Additional Sessions Judge, Bikaner vide order dated 16th March, 1994. The learned Additional Sessions Judge held that the offence u/S. 3/4 of the Dowry Prohibition Act, 1961 appeared to have been committed by only one accused, namely Punam Chand, who had already expired. The learned Additional Sessions Judge did not find sufficient ground to proceed against the accused Narendra Kumar and Vijay Singh for the offence u/S. 3/4 of the Dowry Prohibition Act. Regarding the offence u/S. 406 IPC, the learned Additional Sessions Judge came to the conclusion that whatever was given by the complainant party at the time of engagement was by way of gifts and therefore, there was no entrustment of any property and the offence u/S. 406 IPC was also not made out. As a consequence of the findings arrived by the learned Additional Sessions Judge, the revision petition was allowed and the order dated 1st February, 1989 passed by the learned Judicial Magistrate No. 1, Bikaner was quashed and set aside. (9). Feeling aggrieved by the above mentioned order dated 16th March, 1994 passed by the learned Additional Sessions Judge, the complainant has filed this petition u/S. 482 Cr.P.C. with a view to revive his complaint and initiate the proceedings against the non-petitioners no. 2 and 3 against whom process had been issued by the learned Judical Magistrate No.1, Bikaner for the offences mentioned above. (10). I have heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the non-petitioner No. 2. As regards the offence u/S. 3/4 of the Dowry Prohibition Act, complaint itself shows that when the marriage was settled, no demand of any dowry was made by Narendra Kumar or his relatives and it was agreed between the parties that the complainant would spent as much amount as his pocket would allow. The demand of dowry is alleged to have been made by Punam Chand on 20th January, 1988 when he alone went to the house of the complainant and asked him to give Rs. 50,000/- as a consideration for marriage. The demand of dowry is alleged to have been made by Punam Chand on 20th January, 1988 when he alone went to the house of the complainant and asked him to give Rs. 50,000/- as a consideration for marriage. At that time Punam Chand was not accompanied by any other person. There is no allegation that any other accused made any demand of dowry at any time. In these circumstances the conclusion drawn by the learned Additional Sessions Judge that demand of dowry was made by Punam Chand alone appears to be just and proper. So far as the accused Vijay Singh and Narendra Kumar are concerned, there is no evidence to show that at any time the demand of any dowry, expressly or by implication was made by them. The observations made by the learned Additional Sessions Judge in this behalf do not appear to be unreasonable or perverse. Punam Chand is dead, and therefore, he cannot be prosecuted for the offence u/S. 3/4 of the Dowry Prohibition Act and accused Vijay Singh and Narendra Kumar do not appear to have committed any offence u/S. 3/4 of the Dowry Prohibition Act. (11). Regarding the offence u/S. 406 IPC, the learned Additional Sessions Judge has observed that whatever was given at the time of engagement was by wayof gifts and did not amount to entrustment for the purpose of Section 406 IPC. During the hearing, the learned counsel for the petitioner has conceded that at the time of engagement, Tilak and marriage some items (including money) are customarily given by way of gifts to the bridegroom and his relatives and they do not fall in the category of goods entrusted to the bridegroom and his party. (12). I have carefully considered the reasons given by the learned Additional Sessions Judge. It is an admitted fact that ours is a civilised society and in our society human relations play a very important part. These human relations are important for various kinds of interactions among the human beings and but for these human relations, it will be impossible for the society to exist and maintain its institutions, strength and stablity. One of the basic characteristics of these human relation-ship is mutually, which involves appropriate interaction by both the parties to a relation-ship. These human relations are important for various kinds of interactions among the human beings and but for these human relations, it will be impossible for the society to exist and maintain its institutions, strength and stablity. One of the basic characteristics of these human relation-ship is mutually, which involves appropriate interaction by both the parties to a relation-ship. These relation-ships necessarily involve mutual trust; regard for each other, trustworthiness, faith in each other, because without them the human relations cannot come into existence, nor they can be perpetuated with benefit to both the parties. These human relationships are necessarily limited in number and in respect of the degree of interaction, and therefore, before entering into these relationships, people carefully consider whether the other person with whom relationship is to be developed is fit for the proposed relation-ship or not. In other words, before a human relation-ship can be consciously brought into existence by deliberate act on the part of parties, a conscious and deliberate propose of selection takes place, in which the parties to the proposed relation-ship make a scrutiny of each other with a view to find out whether the proposed relation-ship should or should not be established. This necessarily requires that the person intending to be party to a proposed relation-ship must be eligible for such relation-ship. It is for the purpose of showing the eligibility for a proposed human relation-ship that certain customary norms of human conduct are to be voluntarily obeyed so that the proposed relation-ship may be consciously brought in to existence by the act of both the parties. In customary manner, many forms of interactions are prevalent in various communities for the purpose of convincing the parties to the proposed re- lation-ship that they are fit for the proposed relation-ship. Capability to be courteous, be respectful to the other party to the relation-ship is universally recognised as a necessary condition of eligibility and people in customary manner try to prove that they are eligible for the proposed relation-ship. Some gifts in cash or in kind are therefore, customarily given in certain communities as well as in certain fami- lies. Gifts which are customarily given at the time of engagement, Tilak or marriage must therefore, be regarded as gifts according to customs prevalent in the concerned communities or families for the purpose of creating human relation-ships with the members of that family. Gifts which are customarily given at the time of engagement, Tilak or marriage must therefore, be regarded as gifts according to customs prevalent in the concerned communities or families for the purpose of creating human relation-ships with the members of that family. These gifts cannot be regarded as entrustment, nor they can be regarded as dowries. These gifts are not intended to be considera- tion for marriage. (13). Viewed in the above light, the finding of the learned Additional Sessions Judge that various amounts, which were given by the complainant and his relatives to Narendra Kumar, his maternal uncle, and grand father and the amounts, which were spent on sweets and fruits and the amount which was spent for arranging the band, did not amount to entrustment for the purpose of Section 406 IPC does not appear to be perverse or unreasonable. (14). I am conscious of the fact that the evil of dowry must be eradicated for the good of the society and that those who indulged in it, must be punished according to law. But, it cannot be ignored that marriage is one of those indispen- sable institutions of every civilised society, without which no society can hope to survive for long and that, marriage leads to creation of a human relation-ship which is a relation ship of the most sacred and durable nature and the object of the society should be to create and preserve this relation-ship, rather than dig its grave. (15). Our concept of justice is such that one who administers justice can nei- ther be more liberal to any one than what the law permits, nor he can be more strict towards anyone than what the law allows. Being more liberal in favour of a party does amount to encroaching on the right of the other party. Being more strict than what the law permits also amounts to encroachment on the legal rights of the person, who is proceeded against. The preservation of the society, therefore, demands that justice should be done keeping in view the balance between the rival contentions so that the important institutions and values of the society may not be destroyed. I am afraid. The preservation of the society, therefore, demands that justice should be done keeping in view the balance between the rival contentions so that the important institutions and values of the society may not be destroyed. I am afraid. If every voluntary gift whether of money or goods or of food of any kind, is regarded as a entrustment or as a dowry, the very customary human inter-action which is essential for creating the human relation- ship will end and in place of entering into relation-ship people would avoid them and grave injustice would be caused to the people. (16). For the reasons mentioned above, I do not find any infirmity in the findings arrived at by the learned Additional Sessions Judge. This petition, has no force. It deserves to be dismissed and is hereby dismissed.