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2009 DIGILAW 39 (CAL)

Priti Kumar Kar v. STATE OF WEST BENGAL

2009-01-29

ARUNABHA BASU

body2009
Judgment :- (1) The revisional application under Section 482 of the Code of Criminal Procedure is directed to quash proceeding in connection with G. R. Case No. 846 of 2001, now pending before the Court of learned Metropolitan Magistrate, 7th Court, Calcutta, challenging the entire proceeding initiated against the petitioners herein including the order dated 12-12-2006, whereby and where under the learned Court below refused to discharge the petitioners who are arrayed as accused in connection with the charge under Section 498A of the Indian Penal Code. (2) The main contention of the petitioners is that they are no way connected with the husband of the de facto complainant either by blood or by marriage and as such their implication in connection with an offence under Section 498A of the Indian Penal Code cannot be sustained in law. (3) It is evident from the F. I. R. lodged by 0. P. No. 2 that in the month of February, 1995 she was given in marriage with accused Asok Shaw (non-petitioner in this application). During her stay, she was subjected to cruelty and torture by her husband and by the petitioners herein, mainly over demand of dowry. (4) In the F. I. R. it is alleged that husband of the de facto complainant was the adopted brother of petitioner Nos. 1 and 2 in this application. It may be pointed out in this context that of the five petitioners, petitioner Nos. 1 and 2 are mentioned in the F. 1. R. as relations of the husband of the de facto complainant by way of adoption of the husband of the de facto complainant as the brother of petitioner Nos. 1 and 2. The other three petitioners namely Bulu Kar is the wife of petitioner No.2 while petitioner Tutu Kar is the daughter of the father of petitioner Nos. 1 and 2, while petitioner Ruby Kar is another daughter of the father of petitioner Nos. 1 and 2. It is evident from the F. I. R. that several acts of alleged assault and torture committed by the petitioners herein have been mentioned in the F. I. R. lodged by O. P. No. 2. 1 and 2, while petitioner Ruby Kar is another daughter of the father of petitioner Nos. 1 and 2. It is evident from the F. I. R. that several acts of alleged assault and torture committed by the petitioners herein have been mentioned in the F. I. R. lodged by O. P. No. 2. (5) The question now arise is whether the petitioners herein even though, they are not connected with the husband of the O. P. either through blood or by marriage can at all be arrayed as accused persons in connection with the charge under Section 498A of the Indian Penal Code. (6) It is the contention of learned advocate for the petitioners that the question of husband of the O. P. No. 2 being the adopted brother of the petitioner Nos. 1 and 2 cannot be taken into consideration, in order to decide that the petitioners herein are relations of the husband of the de facto complainant justifying their impleadment as accused in connection with the charge under Section 498A of the Indian Penal Code. (7) In support of his contention, learned advocate for the petitioner has referred to a decision of the Bombay High Court in Ranjana Gopalarao Thorat v. State of Maharashtra reported in 2007 Cri LJ 3866, wherein in connection with the case under Section 498A of the Indian Penal Code, the learned single Judge of the Bombay High Court held that the word relative within the meaning of 498A of the Indian Penal Code relates to a person who is related by blood or marriage. (8) It may be pointed out that so far as the present case is concerned, in the F. I. R. the husband of the de facto complainant has been described to be the adopted brother of petitioner Nos. 1 and 2. It may further be pointed out that learned Court below on consideration of materials and recital in the F. I. R. refused to discharge the petitioners from the charge under Section 498A of the Indian Penal Code mainly on the ground that petitioner Nos. 1 and 2 are described to be relations of the husband of the de facto complainant by way of adoption. (9) The offence under Section 498 A of the Indian Penal Code was inserted by way of legislation under the Criminal Law (Second Amendment) Act 1983. 1 and 2 are described to be relations of the husband of the de facto complainant by way of adoption. (9) The offence under Section 498 A of the Indian Penal Code was inserted by way of legislation under the Criminal Law (Second Amendment) Act 1983. Section 498A of the Indian Penal Code, is set out below : "498A. Husband or relative 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 purposes 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 demand." (10) The Section 498A of the Indian Penal Code is inserted under Chapter XXA by way of the aforesaid amendment whereby a special provision is created to safeguard the wife or married woman from being subjected to cruelty and harassment at the hands of the husband or the relations of the husband. The language whoever, being the husband or the relative of the husband of a woman.............. clearly indicates that for the purpose of offence under Section 498A of the Indian Penal Code, a restricted meaning of offender is given by the legislature and a person who can be arrayed as accused in connection with the charge under Section 498A of the Indian Penal Code must either be husband or the relatives of the husband of an woman. (11) It may be pointed out in this context that the word relative of the husband is not defined or explained under Section 498A of the Indian Penal Code. The dictionary meaning of relative, which has been mainly taken into consideration by the learned Judge of the Bombay High Court. (11) It may be pointed out in this context that the word relative of the husband is not defined or explained under Section 498A of the Indian Penal Code. The dictionary meaning of relative, which has been mainly taken into consideration by the learned Judge of the Bombay High Court. According to Concise Oxford Dictionary, 11 th Edition the word relative so far as the relationship between the persons is concerned means, "a person connected by a blood or marriage". But in my view such narrow and restrictive dictionary meaning may not be applicable while dealing with the scope of legal relationship for the purpose of deciding the present issue. (12) Indication of that relationship is available under Section 198A of the Code of Criminal Procedure, which runs as follows : "198A. Prosecution of offences under Section 498A of the Indian Penal Code. -No Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code (45 of 1860) except constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her fathers or mothers brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption." (13) The above mentioned provision under Section 198A discloses a class of per-son who are empowered to present a petition of complaint before the learned Magistrate in connection with an offence under Section 498A of the Indian Penal Code. Such persons would be either the aggrieved person "meaning the wife" or by wifes father, mother, brother, sister or by fathers or mothers brother or sister is or, with the leave of the Court by any other person related to the wife by blood, marriage or adoption. (14) This specific class of persons, who can initiate a criminal case against the husband or relative of the husband in terms of provision under Section 498A of the Indian Penal Code, gives an indication of the persons who can be arrayed as accused. In my view, those persons would be the relatives of the husband either by blood or by marriage or by adoption. In my view, those persons would be the relatives of the husband either by blood or by marriage or by adoption. While discussing this particular aspect of the law, I am of the view that such restricted meaning of offender is required to be given in view of clear legislative mandate and also in view of the nature of the offence which falls within the scope of Section 498A of the Indian Penal Code. (15) Section 498A of the Indian Penal Code deals with an offence under which the woman after marriage may be subjected to cruelty by the husband or the relatives of the husband. The Section came into force with effect from 25-12-1983 and said offence is the outcome of the present need of the society to stop all sorts of cruelty towards a married woman which become a burning problem of the country. (16) It may be pointed out that the menace of dowry is the outcome of greed by the husband and relatives of the husband, whereby the hapless wife is compelled to meet their illegal demands on pains of cruelty, torture and harassment at the hands of the relatives as well as the husband. So this provision of Section 498A of the Indian Penal Code is the outcome when the legislature thought it fit to provide special protection to the women entering into a matrimonial relationship against such harassment, cruelty and torture. It may be pointed out in this context that legislature took into consideration that such harassment or cruelty normally takes place in the confinement of the matrimonial house. As such the involvement of total strangers or outsiders in such offence, which has its root in matrimonial relationship, have been excluded. In other words the offence under Section 498A of the Indian Penal Code is given a restrictive meaning and perpetrators of such offence would be the husband or the relations of the husband, who are connected with the husband either by blood or by marriage or by adoption. Involvement of outsiders having no relation with the husband either by way of blood, marriage or adoption have been ruled out from the purview of such offence by specifically including the term, "the husband or the relatives of the husband". Involvement of outsiders having no relation with the husband either by way of blood, marriage or adoption have been ruled out from the purview of such offence by specifically including the term, "the husband or the relatives of the husband". So it is evident that when the penal law as incorporated in the Indian Penal Code normally takes into its fold, any person who is involved with the commission of offence, the exception to that general rule does appear in the language of Section 498A of the Indian Penal Code. (17) A bare perusal of the scheme of the Indian Penal Code indicates that the word whoever appears in penal provision, meaning thereby that without any restriction any person found to be involved in commission of any offence may face prosecution and resultant punishment and the only consideration will be whether such person is involved with the commission of offence. But in case of offence under Section 498A of the Indian Penal Code, the word whoever is further followed by the words "being the husband or the relatives of the husband of a woman". The language of Section 498A of the Indian Penal Code gives an indication that cruelty to which the woman is subjected, as and when, committed either by the husband or by the relatives of the husband, then that class of offenders can only be prosecuted for commission of an offence under Section 498A of the Indian Penal Code. (18) The issue as to involvement of a person in connection with criminal offence, ordinarily depends on the Act of omission and commission committed by a person and when such act is performed in violation of law dealing with crime and punishment. Law has not recognised that a particular offence can only be committed by a particular class of persons. But there is exception to the general rule in relation to offence and offender. Chapter IX Indian Penal Code, deals with "OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS". Section 166 to Section 169 I. P. C. deals with offences which can only be committed by Public Servants, and by no other persons. The above noted section deals with offence which can only be committed by special class of offender. Chapter IX Indian Penal Code, deals with "OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS". Section 166 to Section 169 I. P. C. deals with offences which can only be committed by Public Servants, and by no other persons. The above noted section deals with offence which can only be committed by special class of offender. Similarly, the specific language in Section 498A I. P. C., clearly indicates that offence falling under that Section can only be committed by a specific class of offenders, who are, husband or the relative of the husband. Legislative intent is clear from the specific language of the Section. A person who does not fall into the category of husband or relative of husband can not be prosecuted for an offence under Section 498A I. P. C. While interpreting penal law strict interpretation is required. A liberal interpretation extending the scope of offenders would be, in my view against the specific language of Section 498A I. P. C. (19) Which persons shall be the relatives of the husband, even though, not defined in Section 498A of the Indian Penal Code; a reflection of the said can be gathered from the language used in Section 198-A of the Code of Criminal Procedure. The law has recognised that such relationship will be either by blood or by marriage or by adoption. Save and except, the persons falling within any of the category as mentioned above no other person can be said to be involved for commission of offence under Section 498A of the Indian Penal Code. (20) In view of the legal position as highlighted above, if one looks into the contention of the F. I. R. in connection with the present case, it will be evident that the petitioners herein are not related with the husband of de facto complainant either by blood or by marriage. (21) In the F. I. R. it is stated that husband of the de facto complainant is an adopted brother of petitioner Nos. 1 and 2. A bare perusal of the provision of Hindu Adoption and Maintenance Act gives a clear indication that such adoption is not permissible under law. The recital in the FIR stated that husband of the defacto complainant is the adopted brother of petitioner Nos. 1 and 2, cannot and does not make the petitioners any relative of the husband by way of adoption. The recital in the FIR stated that husband of the defacto complainant is the adopted brother of petitioner Nos. 1 and 2, cannot and does not make the petitioners any relative of the husband by way of adoption. In my view, such words have been inserted in the F. I. R. only to implicate the petitioners in connection with an offence under Section 498A of the Indian Penal Code and if that words are ignored, the same are not applicable with the legal meaning of word adoption. The petitioners herein cannot be said to be any relations of the husband of the de facto complainant. (22) This being the position, I am of the view that the petitioners herein cannot be implicated as accused in connection with the charge under Section 498A of the Indian Penal Code. (23) When the law has given a restrictive meaning to indicate which category of persons can fall within the class of offenders in connection with the charge under Section 498A of the Indian Penal Code, then it is not open to the Court to enlarge the class to any other category of persons, save and except, the persons who are relations or relatives of the husband either by way of blood, marriage or adoption. (24) The petitioners herein cannot be said to be relatives of the husband in any way as highlighted above, and as such the present proceeding against them, in my view cannot continue. (25) On consideration of the entire matter as highlighted above, I am of the opinion that this is a fit case to invoke the inherent power of this Court under Section 482 of the Code of Criminal Procedure and to quash the proceeding against the petitioners herein from the charge under Section 498A of the Indian Penal Code. (26) The proceeding is accordingly quashed against the petitioners. (27) The revisional application is disposed of accordingly. (28) There shall be no order as to costs. (29) Criminal Section is directed to forward a copy of the order to learned Court below. (30) Criminal Section is further directed to supply urgent Photostat copy of the order to the parties as and when applied for. Order accordingly.