Misuse of 498a - Quash : Gifts are offered to grab over the bridegroom are later channelized into a dowry tunnel on disruption of ties
between the husband and wife or slight dissensions on account of
their colliding temperaments, strained relationship of the wife with
her parents-in-law, difference in the culture of the two families of
wife and husband, distances of the education between the two
including the difference of mental levels, and extra-marital
relationship of either of the two spouses
Dharm Raj Yadav And Others vs State Of U.P. And Others on 10 January, 2006
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW
Writ Petition MB 528 of 2005
Dharm Raj Yadav and others
petitioners
State of U.P. and others
Respondents
! Dr. L. P. Misra, learned counsel for the petitioners
^ Mr. Janardan Singh, learned Additional Government Advocate &
Mr. B. M. Sahai, learned counsel for the complainant
Hon'ble Bhanwar Singh, J.
Hon'ble J. M. Paliwal, J.
Dated:10/01/2006
:Judgment:
This writ petition has been filed by Sanjeev Kumar Yadav, an
Officer of Indian Revenue Service, posted as Assistant Income-tax
Commissioner, Moradabad and his eleven family members. All
these petitioners have challenged the First Information Report of
11th January, 2005, whereupon a case was registered as Case
Crime No.14 of 2005 under Sections 497/498-A/323/504 and 506
read with 511 I.P.C. and 3/4 Dowry Prohibition Act. This F.I.R.
was sought to be quashed on the ground of being per se illegal,
mala fide and based on concocted facts. During the pendency of
petition, charge-sheet dated February 21, 2005 had been filed in a
hurried manner as alleged and since mala fide has been attributed
to the Investigating Officer as also the first informant and the
latter's father, it is also sought to be quashed alongwith the
criminal proceedings initiated thereupon. After that, another
charge-sheet dated October 25, 2005 has also been filed against all
the petitioners. The main dispute subsists between the husband,
namely, Sanjeev Kumar Yadav, the petitioner No.6 and his wife
Smt. Deepti Yadav, the informant.
Shortly stated the facts giving rise to this petition are as
follows:-
The complainant Smt. Deepti Yadav, D/o Shri Heera Lal
Yadav was married to Shri Sanjeev Kumar Yadav on 9th December,
1999. Sanjeev Kumar Yadav was then an Officer of Provincial Civil
Service (now he is a member of the Central Civil Service and posted
as Assistant Income-tax Commissioner, Moradabad). After her
marriage, she stayed with her husband at the latter's native village.
As usual, the family members and the relatives of Smt. Deepti
offered various gifts on the occasion of marriage. The grandmother
of the informant, Smt. Sechna Devi had gifted a Maruti Zen Car. A
Marshal Jeep was offered by Deepti's father but it was retained in
his own name in all the relevant documents. The case of the
informant is that her father was compelled by her husband to gift
two drafts - one for Rs.75,000/- and the other for Rs.45,000/- in
the name of Rajiv Kumar Yadav (brother of Sanjeev Kumar Yadav)
and two more drafts of Rs.50,000/- and Rs.1 lac in the name of
her husband. All these drafts were encashed by the drawees. The
father of the girl also gifted various household items, like, a Hero
Honda Generator set, colour T.V. and other costly items of day-to-
day use valued at Rs.4 lacs. The relatives of the girl also offered as
presents various jewellary items to the family members of her
husband. Despite huge expenditures incurred by her father, her
husband and his parents were not happy with the gift/dowry
items. As a matter of fact, Sanjeev Kumar Yadav and his family
members had an oblique eye on the ancestral property of her
father. They were all greedy persons and used to pass sarcastic
remarks against her father and maligned him as a miser. They
were not happy even though a cash of Rs.15 lacs and garments
worth Rs.2 lacs had been offered by her father on the occasions of
'lagan' and 'tilak' ceremonies. With this greed in his mind, Sanjeev
Kumar Yadav stopped coming to her when she was living at her
parents' house in Lucknow and when she conceived, Sanjeev
Kumar Yadav pressed her for abortion. However, she did not agree
and in due course delivered a baby son on 17th December, 2000. In
spite of the fact that due intimation was sent to Sanjeev Kumar
Yadav, he did not come to see her and her newly born child. The
petitioner did not keep the informant in her matrimonial home for
long and since she was asked to stay with her parents she came to
Lucknow. In the meantime, Sanjeev Kumar Yadav who was
preparing for the Central Civil Service competition started
demanding a sum of Rs.5 lacs so as to incur expenditure for his
study etc. The informant's father, despite economical constraints,
but keeping in view a concept of happy life for his daughter, paid
the said sum as demanded. But this too was considered to be
inadequate and Sanjeev Kumar Yadav continued to cause her
mental and physical harassment. When the informant's parents
contacted her husband's relatives in village Tadwa (Pilkichha) to
find out the cause of Sanjeev Kumar Yadav's indifferent attitude
towards the informant, they came to know that Sanjeev and his
family members had expected a dowry of Rupees One crore and a
palatial house in Mahanagar, Lucknow.
The efforts for reconciliation taken recourse to in July, 2001
proved futile. The F.I.R. further discloses that the greed of Sanjeev
Kumar Yadav acquired disproportionate dimensions, when he got
selected in Indian Revenue Service (I.R.S.). He and his family
members taking advantage of this development started demanding
a dowry of Rs.10 lacs and a well-equipped and furnished house in
Lucknow. However, such demand was not fulfilled by the
informant's father. As a consequence, Sanjeev Kumar Yadav
refused to take her with him to the place of posting, i.e.
Moradabad. Being compelled in the said circumstances, the
informant's father took her to that place on August 21, 2004 and
she started living with her husband but barely four days after
Sanjeev Kumar Yadav assaulted her and made an abortive attempt
to administer her acid. The informant fell seriously sick. Sanjeev
Kumar Yadav brought her to her parents' house in Vishwas Khand
on 27th August, 2004 and since then he had not taken care of her.
The informant was also beaten when she was living with him in
district Sultanpur, where he was posted as Deputy Collector.
The informant has also accused Sajeev Kumar Yadav for
having illicit relationship with one Neelam Srivastava, Assistant
Consolidation Officer, posted at Varanasi. The other family
members of Sanjeev Kumar Yadav were also accused of
antagonizing the informant by making taunts and jeering remarks.
All the gift items given by the informant's father including the
Martial Jeep had been grabbed over by the accused-persons.
In such circumstances of strained and bitter relationship,
she apprehended a risk to her life and therefore preferred to stay
with her parents at Lucknow. Her husband-petitioner also when
under training at Lal Bahadur Shastri National Academy of
Administration, Mussorie declared himself as unmarried with a
view to invite offers for his marriage.
In view of the above averments, the informant alleged that
the accused persons have committed offences under Sections
3/4/6 Dowry Prohibition Act and under Sections 323/307/504/
511/506/520 and 498-A I.P.C. It was also mentioned in the report
that there was a conspiracy among all the accused persons
including Sanjeev Kumar to harass and victimize the informant
and eliminate her and thereby they committed all the offences
under above Sections read with Section 120-B I.P.C.
The petitioners have denied all the above allegations in their
petition. According to them, Sanjeev Kumar had filed a case (Suit
No.248 of 2004) on September 3, 2004 for judicial separation
against his wife Deepti, the informant, under Section 10 of the
Hindu Marriages Act. The said suit is pending in the court of Civil
Judge (Senior Division), Jaunpur. As a matter of fact, it was in
retaliation of the said proceeding that the informant lodged a false
and fabricated F.I.R. on 11th January, 2005 with the Gomti Nagar
Police Station. As regards Zen Car and the demand drafts in the
name of Sanjeev Kumar and his brother Rajiv Kumar, the
petitioners have stated that they are the self-motivated gifts and
not the dowry, as no one would take dowry in the form of demand
drafts. Delivery of Martial Jeep has been denied and so was
rejected the story of subsequent demand for Rs.5 lacs and Rs.10
lacs. Payment of such amounts has been termed to be a white lie.
If initially some amount was paid by demand drafts why Rs.15 lacs
were not paid by way of the same mode, particularly when
relationship between the husband and wife had become strained.
The F.I.R. allegations regarding the informant being assaulted at
Sultanpur and Moradabad have also been termed to be baseless
and the theory of administering acid to Deepti was also said to be a
strangeful incident and more strange was the omission in not
getting an F.I.R. lodged. Although the coercive method attributed
to Sanjeev Kumar Yadav forcing Deepti to inhale or consume acid
being serious in nature could prove fatal to her life, yet she did not
lodge any report or made any complaint which omission proves
hollowness of the said allegation. It is also alleged further that
Deepti's father is a Junior Engineer in Public Works Department.
He was not expected to have given huge sums of Rs.20 lacs or so in
cash alongwith a Zen Car. The petitioners have expressed their
dismay as they could not know the intelligible source of the said
Engineer having amassed so much of wealth. Sanjeev Kumar
Yadav had disclosed in his petition for dissolution of marriage long
before the First Information Report had been lodged that Smt.
Deepti and her parents exerted their undue pressure upon him to
desert his parents and family and stop supporting them but he did
not agree to their suggestion; as a consequence, he was threatened
by Deepti and her parents of a serious action like false case of
demand of dowry being concocted against him and his family. It
appears that in this background, the case for dowry has been
fabricated to wreak vengeance against Sanjeev Kumar and his
family members. It has also been alleged that one dozen persons of
Sanjeev Kumar including himself have been named as accused of
dowry demand and victimization. No one of Sanjeev Kumar Yadav's
family has been left from being framed in this case and this very
fact shows the dimensions of vengeance that Deepti and her father
had taken recourse to.
The allegation of illicit relationship with Km. Neelam
Srivastava has been termed to be baseless. As regards the
manipulations being conducted by the informant and her father in
collusion with the police, it has been submitted that the
Investigating Officer filed a false affidavit on 23rd February, 2005
stating that charge-sheet against all the accused persons had been
filed and it was on the basis of this misleading and false statement
that the present writ petition was sought to be dismissed.
The Senior Superintendent of Police, Lucknow transferred
the investigation of this case on March 1, 2005 to Shri Brij Kishore
Singh, Station Incharge, Hazaratganj. On the face of this
development, submission of the charge-sheet having been
submitted a week before i.e. February 23, 2005 seems to be not
only false but also a misleading statement given with a view to play
fraud upon the Court. The investigation conducted by the erstwhile
Investigating Officer Shri K.K. Sharma prior to 1st March, 2005 was
a farce and even the statements of the witnesses were noted by
him without actually examining them under Section 161 Cr.P.C.
Shri K.K. Sharma again misconducted himself by extending his
blind favour to the informant by submitting second charge-sheet
dated 25th October, 2005 although he was no longer an
Investigating Officer. As a matter of fact, Shri Brij Kishore Singh
who was seized of the investigation, was appointed as Investigating
Officer by transfer from Shri K. K. Sharma by the Senior
Superintendent of Police, Lucknow vide his order of March 1,
2005. Thus both the charge-sheets are manipulated,
manufactured and submitted in hurried haste - both times to
mislead the Court with a view to fetch dismissal order of the
present writ petition, under the usual course of practice. The
charge-sheets and the criminal proceedings have also been
challenged by the petitioner as a fraudulent act and since
manipulations and interpolations are crystal clear on the part of
the local police and the informant, the petitioners should not be
subjected to hazardous effect of criminal proceedings in pursuance
of such illegal acts. Even the learned Additional Chief Judicial
Magistrate-II has proceeded to take cognizance without applying
his mind, just like putting a rubber stamp on it. It has also been
submitted on behalf of the petitioners that these circumstances -
full of manipulations and interpolations - as narrated above, led to
cancellation of the bail of Sanjeev Kumar Yadav and vacation of the
stay order issued earlier by this Court.
It is in the above mentioned background that the petitioners
have prayed for a Writ in the nature of Certiorari quashing the
F.I.R. (Annexure 1), both the charge-sheets of 21st February, 2005
and 25th October, 2005 as also the criminal proceedings pending in
the Court of II Additional Chief Judicial Magistrate, Lucknow.
Mr. Brij Mohan Sahai, learned Counsel appearing on behalf
of the opposite party No.5 Deepti Yadav has argued that this
petition has become infructuous following the submission of the
charge-sheets against the petitioners.
Dr. L.P. Mishra, learned Counsel for the petitioners however
insisted for hearing of the arguments on the ground that as the
entire investigation and submission of the charge-sheets as also
the criminal proceedings are based on mala fide of the informant,
her father and connivance of the Investigating Officer, this petition
deserves to be heard on merit including the objection of Mr. Brij
Mohan Sahai. As counter-affidavit of Smt. Deepti Yadav has been
filed on 26th November, 2005, this Court with the consent of Dr.
L.P. Mishra, learned Counsel for the Petitioners and Mr. Brij
Mohan Sahai, learned Counsel for the informant as also Mr.
Janardan Singh, learned Additional Government Advocate
proceeded to hear the detailed arguments on merits of the case for
final decision.
Whereas the sum and substance of the petitioners' case is
that they had been victimized by Deepti Yadav's version, as recited
in her counter-affidavits dated 26th November, 2005 and 4th
August, 2005, the informant's contention is that the averments
made by her in her report are true and it was she who was meted
out with maltreatment, not only at the hands of her husband but
all other family members of her husband. She was subjected to
dowry demand and when she could not meet the demand of a
palatial house at Lucknow and a sum of Rs.10 lacs, she was
turned out of her matrimonial home by her husband. Also she was
assaulted and forced to consume/inhale acid during her stay with
Sanjeev Kumar Yadav at Moradabad. Further, she denied in her
counter-affidavit that the First Information Report had been lodged
as a sequel to the suit for dissolution of marriage. She has not yet
been served with any notice of the said proceeding.
The petition is also sought to be dismissed on the ground
that the petitioner No.6 Sanjeev Kumar Yadav has not yet
surrendered following cancellation of his bail granted to him by the
Station Officer, Police Station Gomti Nagar. It was solely on this
basis of Sajeev Kumar Yadav being still absconding that the stay
order granted by this Court had been subsequently vacated on
September 9, 2005. The informant has also controverted the
petitioners' allegation that the Court was in any way or manner
misled by the Investigation Officer Shri K. K. Sharma. Shri Sanjeev
Kumar Yadav being an absconder does not deserve to be granted
any relief. The petition should be dismissed on this ground alone.
We have heard Dr. L.P. Misra, learned Counsel for the
Petitioners, Mr. Janardan Singh, learned Additional Government
Advocate and Mr. Brij Mohan Sahai, learned Counsel for the
opposite party No.5 Deepti Yadav and perused the record.
The first contention pressed into service by Mr. Brij Mohan
Sahai, learned Counsel for the informant is that this petition has
become infructuous as the charge-sheets have been submitted
against the petitioner and the Additional Chief Judicial Magistrate
II, Lucknow has taken cognizance of the case. In this Case, Mr.
Sahai relied upon a decision of the Apex Court in 'State of Bihar
and another v. P.P. Sharma and another [1991 Cr.L.J. 1438]'
and with reference to the findings and observations of the Apex
Court contended that if a Magistrate or Special Judge is seized of
the matter, extraordinary jurisdiction under Articles 226 and 227
of the Constitution should not be exercised.
A careful reading of this case would reveal that the Managing
Director of BISCOMAUN an institution in the Cooperative Sector
lodged a report with the police regarding fraudulent transactions
for purchase of 'Suraj Brand N.P.K.' and it transpired that a
conspiracy was hatched for wrongful gain to M/s. Rajasthan
Fertilizers Pvt. Ltd. The erstwhile Chairman and some officers were
accused of such fraudulent transactions resulting in wrongful loss
to the aforesaid institution as well as the farmers of the State of
Bihar. It was in the background of this case that the Apex Court
did not approve of the High Court's Order regarding quashing of
the complaint and proceedings and held in particular that there
was no material to show that the F.I.R. was based on malice or
there was any enmity between the accused and the informant. The
question of mala fide exercise of power assumes significance only
when the criminal prosecution is initiated on extraneous
considerations and for an unauthorized purpose. It was also held
that the dominant purpose of registering the case against the
accused was to have an investigation done into the allegations
contained in the F.I.R. and in the event of there being sufficient
material in support of the allegations to present the charge-sheet
before the Court. The allegations of mala fide were not found of any
consequence. Obviously thus, the facts of the said case were
entirely different from the one in hand.
In the present case, the wife of Sanjeev Kumar Yadav has
accused him of dowry demand and further use of provocative and
abusive language and coercive method to force her to consume
acid have been alleged. The relationship between the two is
admittedly strained. During their six years of marriage, they have
stayed together for a few months as would be discussed
subsequently. Malice has been attributed to the informant in
getting the F.I.R. lodged and it has pertinently and significantly
been alleged by the petitioners that the Lucknow Court of Criminal
Law, i.e. the Second Additional Chief Judicial Magistrate is not
competent on account of lack of territorial jurisdiction over the
areas in which the alleged offences of forcing informant to consume
acid, dowry demand and assault had taken place. We would delve
upon the territorial issue in detail, but prior to that, we consider it
necessary to deal with the basic question of law as raised by the
learned counsel for the informant that with the submission of
charge-sheet, this Court has become functus officio to proceed
with the writ petition initially filed under Article 226 of the
Constitution.
This core issue has been answered by this Court in 'Atique
Ahmad and another v. State of U.P. and others [2001 (2) JIC
764 (All)]'. Exactly similar point of law was raised in this case.
Rejecting the argument that the jurisdiction of the High Court of
judicial review stands ousted no sooner a charge-sheet has been
submitted by the police, the Court held that this Constitutional
Court can take into account the subsequent events in order to do
complete justice between the parties and to avoid multiplicity of
litigations. In this case, the High Court also made a reference to
the Apex Court's decision in 'State of Haryana and another v.
Bhajan Lal and others [1992 Supp (1) SCC 335]' and
categorically referred to the guidelines framed by the Apex Court in
the said case which for better understanding may be recapitulated
as below:-
" (1) Where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the First Information Report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to
private and personal grudge."
Learned Counsel for both the parties have relied upon
Bhajan Lal's case (supra) with reference to the aforesaid
guidelines. We would deal with these guidelines while delving upon
the allegation of malice and spite attributed to the informant in
getting the First Information Report lodged whereupon charge-
sheets have been submitted and criminal proceedings drawn. But
before that, we may refer to the Pepsi Foods famous case on the
point of jurisdiction of this Court to proceed to decide the writ
petition on merit after charge-sheets having been submitted. The
Hon'ble Supreme Court in the abovereferred decision titled as
'Pepsi Foods Ltd. and another v. Special Judicial Magistrate
and others [(1998)5 SCC 749]' held that the High Court can
exercise its power of judicial review in criminal matters. Under
Article 227, the power of superintendence by the High Court is not
only of administrative nature but is also of judicial nature. Pointing
out at the powers of the High Court under Article 226 and 227 of
the Constitution and Section 482 Cr.P.C. the Hon'ble Supreme
Court held as follows :-
"Nomenclature under which petition is filed is not quite
relevant and that does not debar the court from
exercising its jurisdiction which otherwise it possesses
unless there is special procedure prescribed which
procedure is mandatory. If in a case like the present one
the court finds that the appellants could not invoke its
jurisdiction under Article 226, the court can certainly
treat the petition as one under Article 227 or Section
482 of the Code. It may not however, be lost sight of
that provisions exist in the Code of revision and appeal
but some time for immediate relief Section 482 of the
Code or Article 227 may have to be resorted to for
correcting some grave errors that might be committed by
the subordinate courts. The present petition though filed
in the High Court as one under Articles 226 and 227
could well be treated under Article 227 of the
Constitution."
From the above observations of the Apex Court, it is crystal
clear that if a petition has been filed under Article 226 of the
Constitution, it can be treated to be as under Article 227 of the
Constitution and Section 482 Cr.P.C. for providing immediate relief
available under the said Section of the Code. Section 482 Cr.P.C.
deals with the abuse of process of law and the Hon'ble Supreme
Court held that the High Court should not shy away in exercising
its jurisdiction. In the penultimate para of the decision, the Hon'ble
Supreme Court has observed as follows :-
"It is no comfortable thought for the appellants to be told
that they could appear before the court which is at a far
off place in Ghazipur in the State of Uttar Pradesh, seek
their release on bail and then to either move an
application under Section 245 (2) of the Code or to face
trial when the complaint and the preliminary evidence
recorded makes out no case against them. It is certainly
one of those cases where there is an abuse of the
process of the law and the courts and the High Court
should not have shied away in exercising their
jurisdiction. Provisions of Articles 226 and 227 of the
Constitution and Section 482 of the Code are devised to
advance justice and not to frustrate it. In our view the
High Court should not have adopted such a rigid
approach which certainly has led to miscarriage of
justice in the case. Power of judicial review is
discretionary but this was a case where the High Court
should have exercised it. "
From the above principles of law laid down by the Hon'ble
Supreme Court, it is established that if it is required in the interest
of justice to invoke the jurisdiction of this Court, the Court will do
so under its plenary power irrespective of the fact as to whether
the provisions of Article 226 or 227 of the Constitution or of
Section 482 Cr.P.C. are invoked. Power of the Court to discharge
the accused at the stage of framing of charge or existence of
remedy of appeal and revision is not a bar to invoke the
jurisdiction of the High Court under Article 227 of the Constitution
or under Section 482 Cr.P.C.
We are, therefore, inclined to hold that the contention of Mr.
Brij Mohan Sahai, learned Counsel for Deepti Yadav that this
Court will stop exercising jurisdiction under Article 227 of the
Constitution nor will it proceed to hear this case on merit simply
because the charge-sheets have been submitted in the Magisterial
Court is without any substance. The said objection is rejected in
view of the Hon'ble Supreme Court's decision in Pepsi Foods Ltd.
(supra). As a consequence, we treat this petition under Article 227
of the Constitution of India and also a petition under Section 482
Cr.P.C.
We may now refer to the guidelines laid down in Bhajan
Lal's case (supra) which have been for convenience reproduced
above. Guidelines no.5 and 7 as determined in the said case are of
greater significance for us to be referred to. Guideline no.5
postulates that the F.I.R. and criminal proceedings can be
interfered with where the allegations made in the F.I.R. or
complaint are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused and
similarly guideline no.7 provides that the High Court can interfere
with where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.
Relying upon the guideline no.5 of the aforesaid citation, Dr.
L.P. Misra, learned Counsel for the petitioners referred to the
recitals of the First Information Report to the effect that Sanjeev
Kumar Yadav had forced the informant to consume/inhale acid
during her stay with him at Moradabad and contended that the
said charge is absolutely baseless and imaginary and it goes to the
extent of absurdity, as though such a dastardly attempt was made
by the petitioner no.6 in between 21.8.2004 and 27.8.2004, yet
neither the complainant, namely, Deepti Yadav nor her parents
took any action for nearly six months. It would be relevant to quote
the said absurd accusation which is as follows:-
"Jh latho dqekj ;kno tc izkfFkZuh dks eqjknkckn] tgka ij
lgk;d vk;dj vk;qDr ds in ij rSukr Fks] ugha ys x;s rc
izkfFkZuh ds firk Hkh eq>s fnukad 21-8-2004 dks ogka
ysdj x;s A blds pkj fnuds ckn gh Jh latho dqekj us eq>s
ekjk&ihVk vkSj rstkc Mkdyj fiykus dh ps"Vk dh A
izkfFkZuh xaHkhj :Ik ls chekj gks x;h rks esjs ifr Jh latho
dqekj us fnukad 27-8-04 dks tcjnLrh esjs firkth ds ?kj
y[ku_ fo'okl [k.M NksM- dj okil dkuiqj pys x;s A rc ls vkt
rd esjs ifr Jh laatho dqwekj us dksbZ Hkh esjk ;k esjs
csVs dk gky pky ugha fy;k A"
The above allegations are so absurd and imaginary that had
there been an iota of truth in such allegations, the informant who
is a well-educated person would not have tolerated such a grave
misconduct on the part of her husband and certainly she would
have lodged a report in Moradabad itself and if not there, she
should have informed the police of Lucknow or the higher
authorities of the petitioner no.6 at Moradabad. The silence on her
part further shows that it is a cock and bull story manufactured by
the informant with a view to wreak vengeance with her husband.
Such an incident could be taken to be end of the already strained
and bitter relationship. If she was doused with acid, she must have
suffered burn injuries on her person. Medical examination of her
injuries would have proved the occurrence. It is not, that she
escaped the attempt but she suffered grievous setback and fell
seriously sick. No explanation about the omission has been offered.
We therefore hold that it was all a bunkum and a manufactured
story so as to wreak vengeance upon the petitioner Sanjeev Kumar
Yadav.
Before we proceed to discuss the other allegations of the
complaint, it would be most relevant for us to make a reference to
the Hon'ble Supreme Court's decision in '
Y. Abraam Ajith and
others v. Inspector of Police, Chennai and others [2004 SCC
(Cri) 2134]' - a decision which deals with the place of jurisdiction
vis-.-vis the offences alleged to have been committed. Incidentally,
it was also a case of strained relationship between the husband
and wife. All the alleged offences were committed according to the
complainant at Nagarcoil but the wife filed the complaint at
Chennai Court. The Hon'ble Supreme Court held that no part of
cause of action arose in Chennai and therefore, the Magistrate
concerned had no jurisdiction to deal with the matter. Accordingly,
the proceedings were quashed.
In the case in hand also, the alleged offences of an attempt
to force the informant to consume acid and of causing assault to
her had taken place at Moradabad. Although it is not clear as to
whether the attempt of administering acid was foiled by the
informant nor it is clear what injuries she suffered during the
assault, yet even if there was some substance in it, in such matter
with above allegations only the police of Moradabad District or the
Magisterial Court of competent jurisdiction established there were
competent to take cognizance of such accusations and deal with
them in accordance with law. The F.I.R. in question has been
lodged with the police of Gomti Nagar Police Station, Lucknow.
Certainly, we would hold that neither the police at Lucknow nor
the Court of Second Additional Chief Judicial Magistrate, Lucknow
would be competent to take cognizance of the offences which were
alleged to have been committed at Moradabad. The F.I.R. does not
disclose that either of the two such offences had taken place at
Lucknow. Even the allegation of dowry demand was not made at
Lucknow. We therefore hold that the Lucknow Court of Second
Additional Chief Judicial Magistrate is not competent to take
cognizance of the offences alleged to have been committed at
Moradabad. In this context, it would also be relevant to note that
the provisions of Section 178 Cr.P.C. which deals with the place of
enquiry or trial, do not cover the issue of cognizance being taken
by the Lucknow Magisterial Court as none of the offences was
committed partly at Lucknow and it is also clear that none of the
offences was continuing one. The provisions of Section 178 Cr.P.C.
for convenience may be quoted as below:-
"Place of inquiry or trial - (a) When it is uncertain in
which of several local areas an offence was committed,
or
(b) where an offence is committed partly in one local
area and partly in another, or
(c) where an offence is continuing one, and continues to
be committed in more local areas than one, or
(d) where it consists of several acts done in different
local areas,
it may be inquired into or tried by a Court having
jurisdiction over any of such local areas."
A perusal of the First Information Report, as said above,
does not disclose commission of offence either in part or in full or
in continuation at Lucknow. The proper and ordinary venue for the
trial of a case crime of the area is the jurisdiction in which, on the
evidence, the facts occur, and which are alleged to constitute the
crime. Deepti Yadav in her eleven pages long F.I.R. has not stated
even at a single place that Sanjeev Kumar Yadav or any members
of his family either demanded dowry at Lucknow or assaulted the
informant here or did any other offence within the territorial
jurisdiction of the Lucknow Magisterial Court. It appears from the
consolidated facts recited in the F.I.R. that Deepti Yadav stayed
with her husband at Moradabad for short period of seven days only
in August, 2004 and prior to that she either stayed with him at
Sultanpur or in his native village home at Tadwa (Pilkichha) or at
Gorakhpur. The occurrence of an attempt to administer acid
allegedly took place only at Moradabad where she was also
assaulted. In Sultanpur, where her husband was posted earlier,
she was beaten once but she did not lodge any report either at the
concerned police station at Sultanpur nor she complained to any
higher authority of her husband. Also she did not write a letter to
her parents about this inhuman treatment. Except Moradabad
and Sultanpur, there is no other place where she might have been
maltreated or assaulted. Out of the four places in picture, i.e.,
Tadwa, Gorakhpur, Sultanpur and Moradabad, she stayed for
sometime in the native village of her husband, namely, Tadwa
(Pilkichha), District Jaunpur and Gorakhpur. The F.I.R. is
absolutely silent of any occurrence of assault or 'marpeet' at Tadwa
or Gorakhpur. As said above, only two instances of 'marpeet' - one
at Sultanpur and the other at Moradabad, have been quoted, but
no such incident was referred to the duration of her stay at the
remaining two places. The long silence on her part after the two
occurrences at Moradabad and Sultanpur clearly shows that they
are concocted, manufactured with malice and ill-will in order to
wreak vengeance with her husband, namely, Sanjeev Kumar Yadav
and the most significant conclusion which would emerge is that
not a single instance constituting an offence has taken place at
Lucknow.
We would therefore hold that by no stretch of reasoning the
Court of Second Additional Chief Judicial Magistrate is competent
to take cognizance of the matter. Therefore, in the result, the
criminal proceedings initiated against the petitioners
including Deepti's husband are liable to be quashed on the
ground of lack of jurisdiction alone.
In other words, it may be observed that the allegations
regarding 'marpeet' and attempt to administer acid are inherently
improbable besides being absurd and therefore the F.I.R. and the
criminal proceedings including charge-sheets deserve to be
quashed.
The guideline No.7 as referred in Bhajan Lal's case (supra)
provides that if a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge, such
criminal proceedings can be quashed.
In this context, a reference to the allegations of the F.I.R. on
the basis of which the entire investigation and the criminal
proceedings are based would reveal that on occasions more than
one, the dowry demand was made. Precisely, the various instances
of the alleged dowry/gifts can be quoted in seriatim, as follows:-
(1) Gift of a Maruti Zen Car and a Mahindra Marshal Jeep at the
time of marriage;
(2) Two sums of Rs.75,000/- and Rs.45,000/- given to Rajiv
Kumar Yadav, the younger brother of Sanjeev Kumar Yadav
by virtue of bank drafts;
(3) Two sums of Rs.1 lac and Rs.50,000/- in the name of
Sanjeev Kumar Yadav by way of bank drafts;
(4) The gift of valuable items of domestic use valued at Rs.4
lacs;
(5) Golden ornaments weighing from 45 to 55 'tolas' gifted to
Sanjeev Kumar's relatives by the friends and relatives of
Deepti Yadav;
(6) A cash dowry of Rs.15 lacs and valuable items worth Rs.2
lacs given by the informant's father on two occasions of
'lagan' and 'tilak';
(7) Rs.5 lacs demanded by Sanjeev Kumar at the time of his
preparing for Indian Civil Service. The demand was allegedly
met by the informant's father;
(8) A demand of house in Lucknow with Rs.10 lacs in cash;
(9) Reiteration of the demand of Rs.10 lacs by Motilal, the uncle
of Sanjeev Kumar.
We will not scrutinize the above allegations of demand with a
view to hold a trial here, while sitting in the jurisdiction under
Article 226 and 227 of the Constitution of India as the same is not
permissible but certainly we can make an analysis of these
allegations with a view to come to a conclusion upon the
petitioners' argument, that the entire criminal proceeding is
manifestly attended with mala fide. To be specific and explicit in
the scope of our discussion, we would like to mention that the
contention of the learned Counsel for the petitioners is that the
F.I.R. and the consequential criminal proceedings pending in the
Court of Additional Chief Judicial Magistrate-II, Lucknow is
maliciously instituted by Deepti Yadav with ulterior motive for
wreaking vengeance on the petitioners and with a view to spite her
husband Sanjeev Kumar Yadav due to private and personal
grudge. We, therefore, proceed to make an analysis of the
allegations of the complaint in order to examine the merit of the
above argument.
At the very outset, it may be observed that the eleven long
pages First Information Report which had resulted in launch of
criminal proceedings against the petitioners is so well-worded and
neatly woven that it does not leave any room for doubt that it is a
well-deliberated draft by a legal expert. In fact, it needed to be
quoted as a whole, but we do not consider it appropriate to do that
because of lengthy versions. However, we will do that wherever we
find it necessary to refer to the important parts thereof. If we look
at the second page of the First Information Report (Annexure 1), it
appears to indicate that the father of Deepti was enchanted by the
P.C.S. Service cadre of Shri Sanjeev Kumar Yadav and their
marriage was solemnized on 9th December, 1999 in Vishwas
Khand, Gomti Nagar, Lucknow. It is relevant from the territorial
jurisdiction point of view that in the entire First Information
Report, it is not mentioned that either Sanjeev Kumar Yadav or his
family members made any specific demand of dowry either in cash
or in kind at Lucknow at the time of marriage or even thereafter.
The third page of Annexure 1 further very specifically and with all
modesty on the part of informant says that the informant's family
members and relations according to their capabilities offered
numerous gifts including a Maruti Zen Car given on behalf of the
informant's grandmother Smt. Sechna Devi and a Mahendra
Marshal Jeep by the informant's father. What is of primary
importance to note is that both these vehicles were the gift items
as it is candidly clear from the recitations in the First Information
Report which can be quoted as below:-
"izkfFskZuh ds ifjokj tuksa rFkk lacaf/k;ksa us viuh viuh
lkeF;Z ds vuq:i fookg esa HksaV nh Fkkh ftlesa izeq[k :i
ls izkfFkZuh dh nknh Jherh lspuk nsoh us ,d ek:fr dkj (tsu)
rFkk izkfFkZuh ds firk th dks esjs ifr Jh latho dqekj us
ck/; djds ek'kZy thi (egsUnz) dh vfxze rkSj ij 'kknh ds
igys gh ys yh FkkhA
It is not disputed that the Mahendra Marshal Jeep is still in
the name of the informant's father and the petitioners have denied
their custody over it, although the allegation of the informant was
that the said Jeep was being operated by her husband's father as a
taxi. In other words, it is a property of the informant's father. The
gift of Maruti Zen Car by the informant's grandmother is
admittedly a gift and cannot be said to be a dowry item on
demand. Had it been a demanded dowry, there was no question of
its being given by the informant's grandmother and a candid
admission on the part of the informant that her grandmother
Sechna Devi gave it as a gift rules out the allegations that these
vehicles were given on demand as dowry items. Not only the above
quote of the First Information Report lends assurance to this
conclusion but towards the end of the long drawn First Information
Report also the above admissions on the part of the informant have
been repeated. The last few lines at page 9 of Annexure 1 may be
quoted as below:-
" izkfFkZuh ds fookg ea esjs firkth rFkk ikfjokfjd tuksa]
ikik th ds fe=ksa }kjk HksaV Lo:i iznku fd;s x;s okgu]
vkHkw"k.k] cgqewY; rFkk vU; lkt&lTTkk dh oLrqvksa
dk mi;kssx Jh latho dqekj rFkk muds ifjokjhtu fcuk fdlh
yTtk] ladksp] rFkk Hk; ds LorU= gksdj dj jgs gSa vkSj
bl izdkj izkfFkZuh ds "L=h/ku" ij v/;klu LFkkfir dj og
lHkh yksx Lokeh vkSj vf/"Brk cu x;s gSa A"
It is thus clear that both the vehicles/ornaments and
valuable items of household utility and garments given at the time
of marriage were all gift items. It would be a matter of debate as to
whether these items offered as gifts to Sanjeev Kumar Yadav and
his family members or relations would fall within the ambit of
'STRIDHAN' as a question, to invoke provisions of Section 6 of the
Dowry Prohibition Act, would arise as to whether any list of such
items was drawn as required by Section 3 of the Act. The answer
being negative rules out the alleged claim. Moreover, in case of
some items being permitted to be used will also have an impact of
implied consent. The allegation of the Marshal Jeep being run as a
taxi by the family members of Sanjeev Kumar Yadav has been
categorically denied and the fact that the said Jeep is still in the
name of the informant's father clearly points to the conclusion that
Heera Lal alone is the registered owner of the said vehicle and he
can, therefore, claim his custody over it.
As regards the household items of utility, such as Hero
Honda Generator, Colour T.V. and other items of decoration valued
at Rs.4 lacs, it may be mentioned that the informant has not
asserted in its First Information Report that these items of four
lacs were demanded by the petitioners or anyone else on their side
much less Sanjeev Kumar Yadav. The allegation that Maruti Zen
was purchased in the name of Dharm Raj prior to marriage under
compelling circumstances stands thwarted on the face of the
informant's allegation, in the earlier part of her report, that this
was a gift item offered by Smt. Sechna Devi. A gift cannot be a
dowry as the dictionary meaning of gift is as follows :-
"a thing given willingly to someone without payment"
The position would however be different, if a gift is
demanded at the time of marriage or prior or after the
solemnization of marriage.
Contrary to the above, the term dowry appears to indicate as
a property or money brought by a bride to her husband on their
marriage. Precisely, Section 2 defines dowry as follows :-
"Definition of 'dowry'- In this Act, 'dowry' means any
property or valuable security given or agreed to be given
either directly or indirectly -
(a) by one party to a marriage to the other party to
the marriage ; or
(b) by the parents of either party to a marriage or by
any other person, to either party to the marriage
or to any other person; at or before or any time
after the marriage in connection with the
marriage of the said parties, but does not include
dower or mahr in the case of persons to whom
the Muslim Personal Law (Shariat) applies."
Section 3 of the Act postulates as follows :-
"Penalty for giving or taking dowry - If any person, after
the commencement of this Act, gives or takes or abets
the giving or taking of dowry, he shall be punishable
with imprisonment for a term which shall not be less
than five years, and with fine which shall not be less
than fifteen thousand rupees or the amount of the value
of such dowry whichever is more.
Provided that the Court may, for adequate and special
reasons to be recorded in the judgment, impose a
sentence of imprisonment for a term of less than five
years.
(2) Nothing in Sub-section (1) shall apply to, or in
relation to -
(a) presents which are given at the time of a
marriage to the bridge (without any demand
having been made in that behalf) :
Provided that such presents are entered in a list
maintained in accordance with the rules made
under this Act;
(b) presents which are given at the time of a
marriage to the bridegroom (without any demand
having been made in that behalf) :
Provided that such presents are entered in a list
maintained in accordance with the rules made
under this Act:
Provided further that where such presents are
made by or on behalf of the bride or any person
related to the bride, such presents are of a
customary nature and the value thereof is not
excessive having regard to the financial status of
the person by whom, or on whose behalf, such
presents are given."
The above quoted provisions of sections penalize dowry
excluding the presents, i.e. gifts which are given at the time of
marriage either to the bride or to the bridegroom - of course, such
presents have to be entered in a list and they should also be
customary in nature. The financial status of the giver will also be
of primary importance and learned Counsel for the petitioners
asked for a probe into the financial status of the informant's father
who is a Government Servant. But we would not like to enter into
that arena.
In the case in hand, the informant's father has not prepared
any list of such items and as has been stated by the informant's
husband, he is employed as a Junior Engineer in the Public Works
DepartmentU.P. who will certainly not be in a position to offer gifts
and cash amounting to 30-40 lacs of rupees. All sums seems to be
fantastic. The gift items like ornaments, colour T.V., Hero Honda
Generator and valuable items of decoration are all customary.
Although a vehicle is also acquiring these days the status of a
customary gift item at the time of marriage, yet we will not enter
into that debate here for the simple reason that the informant has
herself termed both the vehicles and all dowry items as the gift
items. Section 4 of the Dowry Prohibition Act provides for penalty
only if there is a demand for dowry. If gift items, though technically
may fall in the category of dowry, are offered without demand,
there is no offence.
Therefore, these gift items will not be called as demanded
dowry in view of the provisions of the Section 3(b) of the Dowry
Prohibition Act. As regards the cash, it may be observed that the
informant's father had allegedly given a sum of Rs.15 lacs at the
time of 'tilak' and Rs.5 lacs at the time when Sanjeev Kumar Yadav
was preparing for the Central Civil Services. Being conscious of the
fact that this Court must not weigh the evidence so as to find out
the veracity over the factual allegations, yet since we are convinced
from careful perusal of the First Information Report that the entire
story is a cock and bull story as regards dowry demand, we are
giving the reasonings pertaining to allegations based on spite and
vengeance which is sought to be wreaked upon Sanjeev Kumar and
his family members at the hands of the informant and her father.
Peeping from that angle into the allegations of the First Information
Report, we would express our dismay that Sanjeev Kumar Yadav
allegedly was paid Rs.1 lac and Rs.50,000/- by way of drafts prior
to marriage but the same mode of payment was not observed by
Shri Heera Lal, the informant's father while handing over a hefty
sum of Rs.15 lacs - which perhaps may not be his entire savings of
his salaried service unless there is some other source of income.
Not only this, but he again gave Rs.5 lacs without any bank draft
or cheque and this amount was given at the time, when Sanjeev
Kumar had allegedly stopped visiting his wife and a small kid living
at Lucknow in desertion. Similarly, the demand of Rs.10 lacs in
2004 appears to be a fabricated story just to express her spite and
retaliate of Sanjeev's act having lost his interest in the informant. It
is astonishing that the informant and her kid had never been
looked after the informant delivered the child, yet a simple demand
of Rs.5 lacs had been very promptly carried out by the informant's
father, when he was preparing for the Central Civil Services
competitive examination. Sanjeev Kumar Yadav allegedly got the
informant sent to her parents' house at Vishwas Khand, Lucknow,
yet her father was benevolent enough to give a huge sum of Rs.5
lacs to his son-in-law and we would note with further surprise that
this entire amount had been borrowed by the informant's father
from his well-wishers (not relatives) with a view to buy peace and
pleasure for his daughter and paid to her husband. Neither bank
cheque nor draft was used as a mode of payment, although a sum
of Rs.15 lacs was paid by draft before marriage. When the
informant's father tried to ascertain the reason of Sanjeev Kumar
Yadav being indifferent to his wife, he came to learn that Sanjeev
had become greedy after being selected in the Central Civil Services
and his greed has acquired dimensions to the extent that he
wanted to contract another marriage and earn Rs.1 crore as dowry.
In this context, a reference was also made to his conduct that he
had shown himself to be 'single' in Lal Bahadur Shastri National
Academy's record, but Sanjeev Kumar controverted such an
allegation by filing a Certificate-cum-letter indicating therein his
status as 'married'. The letter of Shri J.B. Saini, Administrative
Officer (Establishment) dated 7th February, 2005 enclosed as
Annexure No.SA1 to the Supplementary Affidavit dated 1st
December, 2005 of Sanjeev Kumar clearly recites that in the
Descriptive Roll of Academy Sanjeev is recorded as 'married'.
Maybe that somewhere advertently or inadvertently he might have
written himself single but that does not falsify Mr. Saini's letter
certifying Sanjeev Kumar Yadav as 'married'.
The common experience shows that most of the cases of
differences and dissensions between married couples result only in
dowry demand by the husband and by all his family members. The
provisions of the Act are being callously misused by the wives and
their parents with different kinds of stories. The disputes, though
pending in the Courts for decisions, still give rise to the complaints
and F.I.Rs of the wives' victimization of dowry demand. So long the
status of the husband is enchanting, as was the case in hand with
the informant's own allegation that her father was mesmerized
with the status of Sanjeev Kumar - presents and gifts comprising
colour T.V., generator sets, maruti cars or even that of better
brand, houses, cash - are offered to grab over the bridegroom. He
is forced to be attracted of all allurements of huge cash and
numerous gifts of household utility, but with the disruption of ties
between the husband and wife or slight dissensions on account of
their colliding temperaments, strained relationship of the wife with
her parents-in-law, difference in the culture of the two families of
wife and husband, distances of the education between the two
including the difference of mental levels, and extra-marital
relationship of either of the two spouses - everything is
channelized into a dowry tunnel and the wife is said to be
victimized of the dowry demand.
'Draft a qualitative and capturing or a pathetic story of
dowry victimization and harass the husband' has become the
routine of warring couples. As said above, the husband and wife
relationship may become strained on not one but on various issues
as enumerated above, the allegation of demand of dowry is the
eventual result in ninety nine percent of the hundred cases.
Having regard to all these aspects of the matter, we would
like to record a finding that the allegation of demand of Rs.10 lacs
is a fabricated story of the informant and her father with a view to
teach a lesson to the husband, namely, Sanjeev Kumar Yadav, who
if arrested will immediately be placed under suspension and with a
view to force to realize him as to how then the miserable life of an
officer of Indian Revenue Service will commence in and out of jail.
The sole purpose of a novel like story evolved by the
informant and recited in her First Information Report is to take a
revenge with him by getting him sent to jail and further placing
him in sufferings with his eventual suspension. The Courts are to
protect the valuable rights of not only a wife if she is victimized and
maltreated with dowry demand but also a harassed husband who
is also equal in the eyes of law and if a concocted attempt as the
one in hand is made to place the husband in an awkward
situation, certainly the Court must come to the rescue of such a
husband in humiliation. If the dispute between the husband and
wife hinges or surrounds elsewhere, the provisions of the Dowry
Prohibition Act must not be misused. In the case in hand, as is the
allegation of the informant, infidelity seems to be the crux of the
differences between her and her husband. She alleged that her
husband Sanjeev Kumar Yadav had developed illicit relationship
with Km. Neelam Srivastava and as she has now gathered
information, he was all adamant to marry her. The informant was
aggrieved of the alleged love affair going on between her husband
and Neelam Srivastava and it was in the same sequence of events
that the informant alleged about the frequent visits of Sanjeev
Kumar Yadav to Jaunpur where Neelam Srivastava was
conveniently available. Neelam Srivastava is unmarried and posted
as Assistant Consolidation Officer at Varanasi and she has her
house in Jaunpur. The allegation of Sanjeev's proposal to marry
her is in clear conflict with the informant's allegation that he had
desired to marry someone and acquired a dowry of Rs.1 crore. An
Assistant Consolidation Officer cannot fetch him that fantastic
amount nor she would be able to provide a palatial house in
Lucknow. Sanjeev Kumar Yadav has denied the informant's
allegation of infidelity attributed to him vis-.-vis Km. Neelam
Srivastava and said that she is a pious girl.
We are not concerned as to what is the status of Ms. Neelam
Srivastava nor we are concerned as to what is her relationship with
the informant's husband. What we are concerned with is that the
ground of infidelity against a husband must not be misused with
an accusation of dowry demand. If Sanjeev Kumar is guilty of the
offence of extra-martial relationship, he should be penalized, but in
accordance with law. She must file a complaint in the Court of
competent jurisdiction alleging a charge of adultery and the law
will take its own course. But she cannot be permitted to misutilize
and abuse the provisions of the Dowry Prohibition Act and harass
her husband by getting him arrested and suspended from his
service. True that if the dowry demand is made by him he would be
liable for a severe penalty but the informant was not expected to
imagine and fabricate a fantastic story of giving dowry in the shape
of presents and gifts worth Rs.30-35 lacs without demand at the
time of marriage and after the differences broke between the two,
then accuse him of making demand for more dowry and get, the
entire family comprising dozens of persons including young and
unmarried sisters, husbands of the married sisters sent to jail. The
informant in her First Information Report expected the human
values and courtesies to be expected of Sanjeev Kumar Yadav, but
on her own part every such human value went in oblivion when
the two unmarried sisters Jaya and Usha, cousin Santosh were
framed in this case and got them arrested by police. It is
unbelievable on the face of the First Information Report that the
unmarried sisters of Sanjeev Kumar Yadav and husbands of his
married sisters living away would exert their pressure for dowry
demand. Sri Yadav right from very beginning was nicely placed
initially in U.P. Provincial Services and then in Central Civil
Service. He and his parents would well be said to press for dowry
and harass the informant when she failed to fulfil it. The husbands
of the married sisters, brothers-in-law, uncle and cousin might not
have been invited to associate.
As has also been argued before this Court and pleaded in the
petition and also recited in the regular Civil Suit seeking a decree
for judicial separation, the informant wanted her husband not to
give even the slightest part of his salary to his parents -a cherished
desire of every wife. A perusal of para 7 of the plaint of the Regular
Suit (Annexure 2) reveals that the informant herself started
misbehaving with all members of the plaintiff's family and also
threatened to get all of them falsely implicated in the case of dowry
demand. It seems to be obvious that she implemented her threats
of getting Sanjeev Kumar and his family members framed in a case
of dowry demand by getting the F.I.R. in question lodged. It was
pleaded further by Sanjeev Kumar Yadav in his plaint that while
leaving his place in and around October, 2001, the informant
carried the entire jewellary and all her garments and while leaving,
threatened everyone in the family to snap her ties with all of them
and thereafter she never came back to stay with him. As said
earlier, the suit for judicial separation was filed on 3rd September,
2004, i.e. about five months before the F.I.R. was lodged. The
petitioners' contention is that the F.I.R. was nothing but a
retaliatory action of the informant after she came to learn about
the said suit being instituted. In this way, the petitioners'
contention that the informant swung into action with a view to
take revenge by fabricating a cock and bull but attractive story,
appears to be sustainable.
Mr. B.M. Sahai, learned Counsel for the informant further
pressed into service his argument that since an alternative remedy
of filing a petition under Section 482 Cr.P.C. for challenging the
criminal proceedings pending in the Court of Additional Chief
Judicial Magistrate-II, Lucknow is available to the petitioners, this
writ petition should be dismissed. In support of his contention,
learned Counsel relied upon various citations. The first such
decision of the Apex Court is in '
Basant Kumar v. Eagle Rolling
Mills [AIR 1964 Supreme Court 1260]'. It was held in this case
that when a different forum of Industrial Tribunal could be
approached by the appellant whose medical benefits were
curtailed, a petition under Article 226 of the Constitution would
not be maintainable. This citation is not attracted towards the
facts of the present case, where the petition for quashing of the
F.I.R. was legally maintainable under Article 226 of the
Constitution. During the pendency of the petition, charge-sheets
were filed and the cognizance had been taken. The Hon'ble
Supreme Court in Pepsi Food's case (supra) has held that in such
a circumstance, the petition can be treated as one under Article
227 or even Section 482 Cr.P.C. and the alternative remedy of
filing an appeal or a revision will not operate as a bar to decide a
petition originally filed under Article 226 of the Constitution. On
the basis of the principle of law laid down in the decision by the
Hon'ble Apex Court, the citations reported in 1993 JIC 151, AIR
1993 SC 892, 1999 (1) JIC 883 (All.), 2001 (1) JIC 597 (Alld.)
are not applicable to the facts and circumstances of the present
case.
It was held in the famous case of
Rupan Delol Bajaj v.
Kanwar Pal Singh Gill [(1995) 6 SCC 194] that a prima facie
case was made out against the writ petitioner Shri Gill and there
was sufficient evidence to proceed with, therefore, the FIR lodged
by Mrs. Bajaj and the complaint filed by her husband were liable to
be proceeded with further by the trial Court. The respondent in
that case by slapping on the back of the informant was stated to
have committed an offence of outraging her modesty. We do not
find even an iota of similarity between the two cases and therefore,
we hold that the said decision is of no avail to the informant.
The citation '
State of Bihar v. Rajendra Agrawalla [1996
JIC 363 (SC)]' is also distinguishable from the facts of the present
case. As in that case, a petition under Section 482 Cr.P.C. was
filed by the petitioner who was a Sub-Inspector of Police. The High
Court quashed the criminal proceedings but the Hon'ble Supreme
Court held that there was sufficient evidence to constitute
commission of an offence under Section 414 I.P.C. It was also held
in that case that a criminal proceeding can be interfered with by
the High Court under Section 482 Cr.P.C. only if it is shown that
the complaint together with the other material collected during
investigation taken at their face value do not constitute the
offences alleged. In that case, there was recovery of huge stock of
pieces of the track trolley used in BCCL and since the respondents
could not show any document to prove their ownership, it was held
that they were rightly challaned by the police. In the case in hand,
the facts are not as categorical. Neither there was any recovery nor
the demand of dowry is believable.
Learned Counsel for the informant then referred to a citation
of this
Court Devi Sahai and others v. State of U.P. and others
[2001 (1) JIC 597 (All)] and contended with reference to it that an
application under Section 482 Cr.P.C. for quashing of the F.I.R.
pending investigation is not maintainable. In that case, 482 Cr.P.C.
petition was filed for quashing of the F.I.R. on the ground that the
F.I.R. was totally false and concocted and had been lodged to
wreak vengeance on account of election enmity. We could not
appreciate as to how this could have helped the informant because
the petitioners of the case in hand filed a writ petition under Article
226 of the Constitution and not a 482 Cr.P.C. petition. It is
however different that with the development of the charge-sheets
having been submitted, this petition has been treated to be as one
under Article 227 and under Section 482 Cr.P.C. in view of the
Apex Court's decision in Pepsi Food's case (supra).
Learned Counsel for the informant then relied upon the
citation '
Sadhana Lodh v. National Insurance Company and
and another [2003 (3) SCC 524]'. With reference to this decision,
it has been submitted that where an alternative remedy of filing
appeal is available, interference under Articles 226 and 227 is not
permissible. In that case, in a motor accident claim, an award of
Rs.3.5 lac as compensation was pronounced. The aggrieved insurer
filed a petition under Articles 226 and 227 of the Constitution
which was allowed by the High Court and the amount of award
was reduced. The Hon'ble Supreme Court held that since an
alternative remedy of filing an appeal was available to the insurer,
filing of a petition under Articles 226 and 227 of the Constitution
or interference in any manner was not permissible under law.
Obviously, the facts of the case are entirely different from the one
before us, therefore, the citation is not attracted towards this case.
For the reason that in the decision
Ram Lal Yadava v.
State of U.P. and others [1989 ACC 181], the petition was filed
under Section 482 Cr.P.C. to stay the arrest of an accused during
investigation, the said decision of this Court does not help in any
manner. It was precisely held by this Court in that case that
during investigation arrest of an accused cannot be stayed under
Section 482 Cr.P.C. by the High Court while exercising its inherent
power. Any repetition is unpleasant but since relevant decisions
are not being referred to, we have to observe again and again that
the petition in hand was initially filed under Article 226 of the
Constitution and for the reasons disclosed earlier and in view of
the principle of law laid down in the case of Pepsi Foods Ltd.
(supra), we have treated it to have also been filed under Article 227
of the Constitution and Section 482 Cr.P.C. It is however
significant to note that in this very decision (Ram Lal's case), a
full bench comprising seven Hon'ble Judges clearly postulated in
para 22 of the Judgment that if the High Court is convinced that
the power of arrest by a police officer will be exercised wrongly or
mala fide in violation of Section 41(1)(a) Cr.P.C. the High Court can
also issue a writ of Mandamus under Article 226 of the
Constitution restraining the police officer from misusing the power
and it is for this principle of law ruled by the Full Bench that Dr.
L.P. Misra learned Counsel for the Petitioners too cited this
decision and placed reliance thereupon. Dr. L.P. Misra further
submitted with reference to a decision in Common Cause, a
Registered Society v. Union of India and others [1999 Vol.VI
SCC 667] that powers of a High Court under Article 226 and the
Hon'ble Supreme Court under Article 32 are plenary in nature and
in exercise of such plenary powers, Court can rectify even its own
mistakes. Although there is no case in hand of rectifying an error,
yet emphasis has been laid by the learned Counsel that under
Article 226 a High Court can exercise plenary power to do complete
justice.
Dr. L.P. Misra then contended with reference to another
decision of the Apex Court in Secretary, O.N.G.C. Ltd. and
another v. V.U. Warrier [(2005) 5 SCC 245] that jurisdiction of
the High Court under Article 226 is equitable and discretionary
and it can exercise this power to reach injustice wherever it is
found.
The sum and substance of the discussions made above is
that the facts of this case being peculiar with the developments
during investigation are such that this Court would consider it
equitable to interfere and quash the entire criminal proceedings
pending against the petitioners.
Learned Counsel for the informant vehemently argued that
since Sanjeev Kumar Yadav did not surrender before the Court
following cancellation of his bail, no discretionary relief should be
extended to him. In this context, it may be significant to note that
when after his arrest, he was brought to Gomti Nagar Police
Station, the Station House Officer released him on bail on the
ground of his illness and all other petitioners arrested from
Jaunpur were sent to jail. The bail of Sanjeev Kumar Yadav was
cancelled on technical ground that since he was on transit
remand, he could not have been released on bail. Subsequently,
this Court vide its Order of 28th July, 2005 stayed his arrest on the
merit of his plea that the F.I.R. on the face of it carried a concocted
version. However, on September 9, 2005 the said interim order was
vacated. He then moved an application soon thereafter for
modification of the order which was finally heard alongwith the
writ petition. It may be relevant to observe that Sanjeev Kumar
Yadav approached this Court for redressal of his grievance and
since right from very inception of his having filed this petition, his
case was that he has been falsely framed in this case by the
informant after concocting a case of dowry demand out of sheer
vengeance, he was justified in his right to seek a modification of
the order by bringing before the Court all the relevant facts and
circumstances. Every citizen has a right to approach this Court not
once but many a times and the facts and circumstances on the
basis of which a prayer for modification of the vacation order was
made would all be very relevant and significant to be looked into.
Once it has come to the notice of the Court that indeed his stand
about the First Information Report being based on retaliatory
measure is acceptable, he cannot be penalized merely because he
moved an application for modification of the vacation order instead
of surrendering himself before the Court for going to jail.
Learned Counsel for the petitioners has also assailed the
charge-sheets - one submitted on February 21, 2005 and the other
on October 25, 2005 (perhaps the same charge-sheet submitted
twice). The fact regarding submission of the charge-sheet on
21.2.2005 is falsified by the Order dated 1st March, 2005 by the
Senior Superintendent of Police, Lucknow whereby he had
transferred the investigation of this case from S.I. Shri K.K.
Sharma to S.I. Shri Brij Kishore Singh. The very fact that the
investigation was transferred from Shri K.K. Sharma to Shri Brij
Kishore Singh on 1st March, 2005 prima facie proves that there
was some manipulation somewhere in Shri K.K. Sharma's
statement and conduct of his having submitted charge-sheet on
21st February, 2005.
Deepti Yadav filed a copy of the charge-sheet alongwith her
supplementary affidavit dated 2nd December, 2005. A perusal of
this charge-sheet appears to indicate that it was signed by Shri
K.K. Sharma on some date in February, 2005 but the figures of the
date were interpolated and in their place, 21.2.2005 was
substituted. Cognizance of this charge-sheet had been taken on
October 25, 2005. The charge-sheet dated 21.2.2005 with changed
figures of date has been termed to be of 25.10.2005 by Deepti
Yadav in her supplementary affidavit of December 2, 2005.
Virtually, it seems to be the same charge-sheet submitted twice.
The Presiding Officer in his Order dated 25th October, 2005 says it
had been received on 25th October, 2005. There is manipulation in
the figures of the date underneath the signature of the Second
Additional Chief Judicial Magistrate also. In the figures of '10'
meant for the month of October, figure '3' is clearly visible within
the circle of '0' which clearly indicates that the Investigating Officer
has committed some significant errors in changing the date under
his signatures. The Presiding Officer also seems to have towed the
same line and did some alienation in the figures of date
underneath his signature. Further, the Investigating Officer
appears to have added Section 307 I.P.C. possibly by replacing the
letters I.P.C. The interpolations are clearly visible in the head-line
of the charge-sheet as well as in his brief note spreading over
columns 5 to 9 in the charge-sheet. A copy of the order is enclosed
with the charge-sheet and a perusal of the said order dated
25.10.2005 appears to indicate that cognizance was taken by the
learned Second Additional Chief Judicial Magistrate. From bare
perusal, it appears that the learned Second Additional Chief
Judicial Magistrate has not applied his mind while taking
cognizance of the matter. It is simply recited in the order at the
relevant place that the F.I.R. has been perused, which is enough
for taking cognizance, therefore, cognizance is taken. Precisely, the
order may be quoted as below:-
"vkt fnukad 25-10-2005 dks vla0 14@05 /kkjk
498d@323@504@ 506@511@307 n0iz0la0 o 3@4@6 ngst
vf/k0 es vkjksi i= vfHk;qDrxu latho dqekj ;kno] jktho dqekj
;kno] /keZjkt ;kno] eksrhyky ;kno] lUrks"k dqekj ;kno] Jherh
lj;wnsoh] Jherh 'kksHkkorh] Jherh jatuk] dq0 m"kk] dq0 t;k]
Jherh vk'kk o n;kjke ds fo:) vkjkasi i= izkIr gqvk A voyksdu fd;k
x;k x;k laKku ysus gsrq vk/kkj i;kZIr gS A laKku fy;k tkrk gS A
eqdnek ntZ jftLVj gksssA
vkns'k
i=koyh fnukad 28-10-2005 dks is'k gks A"
It is apparent from perusal of the aforesaid order that the
learned Second Additional Chief Judicial Magistrate has not
examined the facts and evidence of the case. Mere recital about the
perusal of the charge-sheet does not indicate about sufficient
reasoning for taking cognizance. It is not mentioned that the
documentary evidence including the F.I.R. or the statements of the
witnesses or any other piece of evidence was or was not perused by
the learned Second Additional Chief Judicial Magistrate. The Order
has been passed in a mechanical manner without applying mind to
the facts of the case and evidence submitted in support of the
charge-sheet. Had the Presiding Officer scrutinized the F.I.R. even,
he would have learnt that no offence had taken place in the
territorial jurisdiction of Lucknow-district. Apart above, it has also
not been explained on behalf of the informant that as to how the
Senior Superintendent of Police ordered for transfer of the
investigation when charge-sheet has already been submitted and
as to why the Senior Superintendent of Police disclosed before the
Court in Criminal Misc. Case No. 1026 of 2005 that no charge-
sheet had been filed till 1st March, 2005, i.e. the date on which the
investigation was transferred from Shri K.K. Sharma to Shri Brij
Kishore Singh.
From these manipulations also mala fide on the part of the
Investigating Officer stands proved.
In view of the above discussed manipulations and non-
application of mind by the learned Second Additional Chief
Judicial Magistrate, the criminal proceedings stand vitiated and
deserve to be quashed.
For the reasons disclosed above, our conclusions may in
brief be recapitulated below :-
The Writ Petition filed initially under Article 226 of the
Constitution of India is treated to be as the one under Article
227 of the Constitution of India and Section 482 Cr.P.C. in view
of the Apex Court's decision in Pepsi Food's case (supra).
The First Information Report was filed by Deepti Yadav with a
view to wreak vengeance upon her husband Shri Sanjeev
Kumar Yadav and his family members.
The First Information Report came into being as a retaliatory
move to teach him and his family members a lesson of filing a
suit for judicial separation on September 3, 2004.
The First Information Report was a sequel to the informant's
suspicion of infidelity against her husband.
The presents and gifts offered at the time of marriage to Sanjeev
Kumar and his family members were gifts offered by the
informant's parents, grandmother and other relatives on their
own. Such presents and gifts do not fall within the category of
'dowry demanded'.
It is falsified that either Sanjeev Kumar or any other member of
his family demanded any dowry.
The Investigating Officer acted in a mala fide way and
manipulated things to mislead the Court of the II Additional
Chief Judicial Magistrate as also this Court by making
manipulations in the charge-sheet as discussed above.
Learned Additional Chief Judicial Magistrate-II has without
application of mind proceeded to take cognizance of the offences
and thereby committed a serious illegality.
The above Magisterial Court at Lucknow has no territorial
jurisdiction to deal with the offences alleged to have been
committed in Tadwa (Pilkichha), District Jaunpur, Sultanpur,
Gorakhpur and Moradabad.
The First Information Report is a well-drafted document based
on spite and animosity.
In view of the foregoing conclusions, we are of the decisive
view that the First Information Report (Annexure 1) as well as the
criminal proceedings pending against the petitioners in the Court
of Additional Chief Judicial Magistrate-II, Lucknow are liable to be
quashed.
Accordingly, the writ petition is allowed and the First
Information Report as also the criminal proceedings including the
charge-sheet(s) dated 21st February, 2005/25th October, 2005 are
hereby quashed.
A writ of Certiorari is issued accordingly.
January 10, 2006
http://indiankanoon.org/doc/1238460/
