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2006 DIGILAW 629 (KAR)

K. U. MARIAMBI v. P. A. ABDUL KHADER

2006-08-01

K.RAMANNA

body2006
K. RAMANNA, J, J. ( 1 ) THIS revision petition is filed by the wife of the respondent under Section 397 r/w 401 Cr. P. C. to set aside the order dated 9/3/2004 passed by the J. M. F. C. Madikeri, in P. C. No. 170/2003 and to direct the said Court to take cognizance of the case. ( 2 ) BRIEF facts of the case are that the marriage of the petitioner was performed with respondent on 11-12-1988 at Bavali village, edapala Post, Madikeri Taluk, Kodagu Dist. On account of the alleged harassment, she filed a Private Complaint No. 170/2003 for an offence punishable under Section 498 (A) and 506 IPC r/w Sec. 3, 4 and 5 of dowry Prohibition Act. The learned Magistrate referred the matter under Section 156 (3) of Cr. P. C. for investigation. After investigation 'b' report came to be filed by the Investigating Officer which has been challenged by the revision petitioner before the Magistrate stating that it is a false report. After recording the evidence, the Court below held that the Court cannot come to a conclusion that the respondent has committed an offence and the amount if any received by the respondent is only a financial help. Even if he has agreed to repay the same, it will not become dowry and therefore, he dismissed the private complaint filed on the ground that there is no prima facie case to take cognizance and dismissed the same. Therefore, assailing the said order, the petitioner has come up with this revision petition mainly on the ground that the offence alleged under Section 506 (2) is a grievous offence and when there is a sufficient allegation made in the complaint filed by herd under Section 200 Cr. P. C. before the Magistrate that it is a case of dowry, instead of taking cognizance and recording the sworn statement, the Magistrate referred the matter for investigation under section 156 (3), which is illegal and therefore, procedure adopted by the Court below is barred by provisions of Section 198 (A) of Cr. P. C. and no summons have been issued to the witnesses of the petitioner. Hence, this revision petition. ( 3 ) HEARD the arguments of the Learned Counsel for the revision petitioner and the learned counsel for the respondent. P. C. and no summons have been issued to the witnesses of the petitioner. Hence, this revision petition. ( 3 ) HEARD the arguments of the Learned Counsel for the revision petitioner and the learned counsel for the respondent. ( 4 ) DURING the course of arguments, learned counsel for the revision petitioner submitted that the petitioner is none other than the legally wedded wife of respondent and their marriage took place on 11-12-1988 according to the custom prevailing in their community and at the time of marriage, gold jewelry, utensils and cash was given to the respondent in the form of dowry. Since the ill-treatment meted out to her by the respondent increased day by day to bring dowry from her parents house and since the petitioner could not tolerate the mental and physical torture meted out to her, she filed a Private complaint in PC. No. 170/2003 for the aforesaid offences. But there is no hard and fast rule that the private complaint should be referred to investigation under Section 156 (3) of Cr. P. C. Incase of dowry harassment, the Court can refer the sworn statement by taking cognizance and ought to have issued process to the respondent and instead of that, he referred the matter, which is incorrect and illegal. Even before the investigating officer, the respondent agreed to refund the jewelry and other household articles worth Rs. 1,80,101/- and issued 6 cheques for Rs. 30,000/- each payable within 1 years. Therefore 'b' report came to be filed. It is argued that when once the respondent has agreed to refund the dowry and the gold ornaments and other household articles which amounts to dowry, the trial court ought to have recorded the sworn statement by taking cognizance and issued process and instead of that he has passed a detailed order and discussed the entire 'b' report, which is not permissible. Hence, the revision petition is liable to be allowed by setting aside the order of the Court below. ( 5 ) IN support of his contention, Learned Counsel for the revision petitioner relied upon a decision of the Apex Court case of CHANDRA deo SINGH vs PROKASH CHANDRA BOSE ALIAS CHABI bose AND ANOTHER wherein, it has been held that " (b) Criminal pc. ( 5 ) IN support of his contention, Learned Counsel for the revision petitioner relied upon a decision of the Apex Court case of CHANDRA deo SINGH vs PROKASH CHANDRA BOSE ALIAS CHABI bose AND ANOTHER wherein, it has been held that " (b) Criminal pc. (1808) S. 202 (1) -Scope and object of enquiry -For determining the question whether any process is to be issued or not, what the magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry". Therefore, it is submitted that the facts of the case on hand is similar to that of the law laid down in the aforesaid decision that though the Magistrate is required to see only sufficient grounds to proceed to issue process but not for conviction. ( 6 ) HE has also argued that this Court in case of s. G. MALLIKARJUNA AND OTHERS vs SMT. ASHA has held that "in a private complaint when Court finds that the complainant is handicapped to place the necessary evidence and if the facts warrant a through and a detailed investigation the Magistrate should refer the matter to police for investigation under Section 202 Cr. P. C. for submission of a report. In the course of investigation under Section 202 Cr. P. C. the police would invariably collect necessary evidence and identify the persons who could be witnesses and submit all the material and form of a report. The complainant can make use of the report for effective prosecution of the complaint. In this way, the disadvantages and inequities suffered by the victims under provisions of Section 198 to a great extent gets remedied. The order of the Trial court in referring the matter to the police for investigation under Section 156 (3) Cr. P. C. is set aside". In para 6 of the judgment, it has been held that "the majority of the crimes in general are investigated and prosecuted by the police. The benefit of investigation by the State Agency is denied to the victims of matrimonial crimes under the provisions of Section 198 Cr. P. C. The discrimination in a sense may appear harsh and hostile. In para 6 of the judgment, it has been held that "the majority of the crimes in general are investigated and prosecuted by the police. The benefit of investigation by the State Agency is denied to the victims of matrimonial crimes under the provisions of Section 198 Cr. P. C. The discrimination in a sense may appear harsh and hostile. In matrimonial crimes normally the women and children are the victims who directly need the assistance off State Agencies are denied of the benefit on account of the special procedure but in other view, the legislature in its wisdom does not invest the jurisdiction in the Police to registers and investigate the crimes relating to matrimonial offences and does not permit police likely to result in irreparable damage to social harmony and family welfare", ( 7 ) IT is therefore, argued that the trial Court has committed a grave error in referring the matter to the police for investigation and the impugned order is liable to be set aside. ( 8 ) ON the other hand, learned counsel for the respondent submitted that the trial Court is right in coming to the conclusion that even if the respondent agreed to refund the jewelry and other articles given in the marriage, it will not come within the purview of dowry and it was only a financial help made by father-in-law to the son-in-law, who is the respondent herein. Therefore, the trial Court is right in coming to the conclusion that there is no sufficient ground to proceed with the case against the respondent/accused for the alleged offence of dowry. It is argued that though the marriage took place about 18 years back and after the marriage, he allowed the revision petitioner to continue her studies P. U. C. and T. C. H. and after securing an appointment as Teacher, wife herself started ill-treating him and therefore, amount if any given by the father-in-law to the respondent was while he was about to go to abroad for employment and it is not an amount paid in the form of dowry it is a financial help. Therefore, the trial Court has rightly not believed the version of the petitioner and rightly rejected the complaint. Hence, prayed that the revision petition is liable to be set aside as it is not at all maintainable. Therefore, the trial Court has rightly not believed the version of the petitioner and rightly rejected the complaint. Hence, prayed that the revision petition is liable to be set aside as it is not at all maintainable. ( 9 ) I have carefully examined the material placed on record. The point that arise for my consideration is whether the impugned order passed by the Magistrate; is incorrect and illegal and without any jurisdiction? ( 10 ) OF course, the marriage and relationship of the husband and wife is not disputed. After the marriage, the petitioner filed a private complaint stating that the respondent ill-treated her both mentaly and physically and he was insisting her to bring dowry and when she refused to do the same, he started ill-treating her and sine the harassment meted out to her increased day by day, she filed a private complaint for an offence under Section 498-A, 506 (2) IPC R/w section 3 and 4 of the Dowry Prohibition Act. The matter has been referred to the police. In view of the facts and circumstances of the case, when a private complaint came to be filed by the wife for dowry harassment, it is the duty of the officer to record the statement of the complainant and her witnesses to find out as to whether there is any case to proceed against the respondent/accused by investigating as per the provisions of Section 202 of Cr. P. C. But in the instant case, after investigatin, a 'b' report came to be filed. When the respondent himself has agreed to refund a sum of Rs. 1,80,101/- and issued 6 cheques but whether it is a dowry amount or he has agreed to repay the said amount is yet to be ascertained by the Court during the trial. When some allegation is made against the respondent / husband and when the respondent himself has agreed before the I. O. that he is prepared to refund the amount at a time, a 'b' report came to be filed by the I. O. Therefore, the finding recorded by the Court that amount if any received by the respondent subsequently is only a financial help made by his father-in-law cannot be presumed at a pre trial stage. Therefore, considering the fact that the impugned order is passed without allowing the revision petitioner to prove her case under Section 202 (2) Cr. Therefore, considering the fact that the impugned order is passed without allowing the revision petitioner to prove her case under Section 202 (2) Cr. P. C. , the Magistrate is required to see only the prima facie case against the accused but not the evidence for conviction and the impugned order passed by the Magistrate amounts to an order of acquittal by dissecting the evidence to show the statement of the complainant, which is not permissible in law. Therefore, the impugned order under challenge is illegal and incorrect and it is accordingly liable to be set aside. ( 11 ) ACCORDINGLY, the revision petition is allowed. The impugned order under challenge is set aside. The matter is remitted back to the trial Court with a direction to dispose of the case in accordance with law for the aforesaid offences, after securing the presence of the accused. The observations made by this Court shall not affect the rights of the parties.