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2018 DIGILAW 399 (ALL)

Jai Sur v. State of U. P.

2018-02-13

AMAR SINGH CHAUHAN

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JUDGMENT : AMAR SINGH CHAUHAN, J. 1. Heard Shri Sameer Jain, learned counsel for the applicants, learned A.G.A. for the State and perused the material on record. 2. The applicants Jai Sur and three others, through this application moved under Section 482 Cr. P.C., 1973 have invoked the inherent jurisdiction of this Court with a prayer to quash the proceedings of Complaint Case No. 482/2007 (Sujata Sur v. Jai Sur and other), under Sections 498A, 323 I.P.C., pending in the court of J.M.III, Varanasi and further prayed to stay the proceedings in the aforesaid case. 3. The brief facts which are requisite to be stated for the adjudication of the application are that application under Section 156(3) Cr.P.C., 1973 was moved with the allegation that marriage of the opposite party no. 2 Sujata Sur was solemmized with application no. 1 Jai Sur on 22.11.2004. She went to her sasural and remained there for two years. After four or five months of the marriage, her husband and in-laws used to torture her by raising demand of motorcycle. They also tried to set her ablaze and on non-fulfilment of the demand, she was ousted from the house on 22.11.2006. The application was treated as complaint and after recording the statement under section 200 and 202 Cr.P.C., 1973 and on being heard, the Magistrate summoned the accused-applicants to face trial under Sections 498A, 323 I.P.C. 4. Feeling aggrieved, applicants came up before this court in this application. 5. It is submitted by learned counsel for the applicants that on 23.5.2007, learned Magistrate sent the matter to Dowry Prohibition Officer for enquiry. After concluding the enquiry, Dowry Prohibition Officer submitted its final report dated 29.6.2007 with the fact that the matter does relate to the demand of dowry even then Magistrate issued the summoning order without considering the enquiry report. It is further submitted that the opposite party no. 2 is an obstinate lady who failed to perform her matrimonial duties. She remained in her matrimonial home only for about 56 months. The applicant no. 1 tried his best to fetch her back but all its efforts were in vain. Therefore, he filed the divorce petition before the Family Court, Varanasi being Divorce Petition No. 584 of 2005 which is still pending. It is also submitted that the applicants no. 3 and 4 are nanad and nandoi of opposite party no. The applicant no. 1 tried his best to fetch her back but all its efforts were in vain. Therefore, he filed the divorce petition before the Family Court, Varanasi being Divorce Petition No. 584 of 2005 which is still pending. It is also submitted that the applicants no. 3 and 4 are nanad and nandoi of opposite party no. 2 and no specific role has been assigned to them. No offence is made out against the applicants. 6. Learned counsel for the applicants relied on Rajesh Sharma and others v. State of U.P. and another, AIR 2017 Supreme Court 3869, in which it has been held that- "Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are bona fide. At the time of filing of the complaint, implications and consequences are visualized. At times such complaints lead to uncalled for harassment only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the judgment. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar ( AIR 2014 SC 2756 ) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable." 7. The scope and ambit of power under section 482 Cr.P.C., 1973 has been examined by Hon'ble Apex Court in Union of India v. Prakash P. Hinduja and another, AIR 2003 SC 2612 , and observed as follows: "The grounds on which power under Section 482 Cr. P.C., 1973 can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do prima facie constitute any offence or make out a case against the accused (2) where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Criminal Procedure Code or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection". 8. Before adverting to the claim of the parties, it is useful to refer to Section 498A I.P.C., which is reproduced below: 498A. Husband or relative of husband 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. Husband or relative of husband 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 purpose 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; (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 such demand. 9. In the instant case, allegation is that opposite party no. 2 was subjected to cruelty by raising demand of motorcycle. Ultimately, she was ousted from the house and moved application under Section 156(3) Cr. P.C., 1973 which was treated as complaint. Before issuing the process, the Magistrate sent the matter to the Dowry Prohibition Officer for an enquiry who submitted the enquiry report with the fact that the dispute arose between the parties on the basis of raising some doubt on character of the opposite party no. 2 and there appear no demand of dowry. 10. Hon'ble Supreme Court in the case of Taramani Parakh v. State of Madhya Pradesh and others, (2015) 11 Supreme Court Cases 260, in which it has been held that the question whether the appellant has infact been harassed and treated with cruelty is a matter of trial. It cannot be said at this stage, that no case is made out. Quashing of proceedings before the trial in this case was permissible. Order passed by the High Court is set aside. 11. The expression 'cruelty' in Section 498A covers conduct which may drive women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. On the basis of the report filed by the Dowry Prohibition Officer, the proceedings cannot be quashed. It is a matter of evidence which can be decided on recording evidence during trial. 12. On the basis of the report filed by the Dowry Prohibition Officer, the proceedings cannot be quashed. It is a matter of evidence which can be decided on recording evidence during trial. 12. From the perusal of material brought on record, it cannot be said that no prima facie offence is made out against the applicants. Most of the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C., 1973 Only in cases were the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedural sentence or order was not correct, the High Court may in its discretion prevent the abuse of process or miscarriage of justice. 13. In view of the above discussion, I find no reason to interfere in the proceedings and, therefore, refuse to quash the proceedings in the aforesaid case. 14. Accordingly, the application under section 482 Cr.P.C., 1973 is hereby rejected.