Anil Kumar Mishra, Ram Sumer Mishra and Sona Devi vs State of U.P. and Vinod Kumar Upadhyaya

Amar Saran, J.—Heard Sri D.S. Misra, learned Counsel for the applicants, Sri Udai Chandani, learned Counsel for the opposite party No. 2 and the learned A.G.A.

This application has been filed for quashing the charge-sheet dated 20.1.2007 arising out of case crime No. 239 of 2006 pending in the Court of C.J.M., Varanasi as Case No. 1825 of 2007 (State v. Anil Kumar Mishra and Ors.) under Sections 498-A, 323, 504 and 506 IPC and 3/4 of the Dowry Prohibition Act, Police Station Sigra, district Varanasi.

The allegation in the F.I.R. lodged by the opposite party No. 2 Vinod Kumar Upadhyay, father of Shilpi on 17.8.2006 at 3.10 p.m. was that Shilpi was married to the applicant No. 1 Anil Kumar Mishra on 10.5.2005. The opposite party No. 2 had given Rs. 10 lacs to applicant No. 2 Ram Sumer Mishra, who is the father of the applicant No. 1, and various other expensive gift items. The marriage had been solemnised at the informant''s residence in Varanasi. After the marriage, Shilpi was staying in her matrimonial house in Lucknow. In the beginning, the conduct of the applicants, who are the husband, father-in-law and mother-in-law of Shilpi was normal. However, two months after the marriage, Shilpi''s husband applicant No. 1 asked Shilpi to get Rs. 5 lacs from her father, as he wanted to purchase a Scorpio car and his finances were falling short. When Shilpi expressed her inability, then her husband started assaulting, abusing and threatening her that he would give her divorce and when Shilpi complained to her mother-in-law and father-in-law, they stood up in support of their son and they began to torture Shilpi. Shilpi communicated this information on telephone to the informant and her mother. After that the informant visited Shilpi''s matrimonial home in Lucknow at 103 South City. The applicants repeated the demand for Rs. 5 lacs for purchasing a Scorpio car. When the informant met them, they threatened him that if he did not pay the said amount, his daughter would not live peacefully and she would be tortured in the same manner. Thereafter, the informant brought his daughter back to Varanasi. He somehow, made arrangement for Rs. 1 lac and called Anil Kumar Mishra and gave him a draft of Rs. 1 lac, then (sic) took Shilpi back to Lucknow. Even after receiving the draft Anil Kumar Mishra threatened them that they should arrange for the balance amount of Rs. 4 lacs, otherwise his parents would not let Shilpi live peacefully and that he had no option but to follow his parents. After Shilpi returned to Lucknow, after one or three months, again the informant visited Lucknow on 20.5.2006, but Shilpi was again similarly harassed in their presence and the demand of Rs. 4 lacs was raised again and threats were given. On 25.6.2006, the applicants brought Shilpi to her house in Mahmoorganj in Varanasi at 7 a.m. and they pushed her into the house and told the informant that if he cared for the safety of his daughter, he should immediately pay Rs. 4 lacs for purchasing the Scorpio car, otherwise he would not keep his daughter and she would rot in his house and she would be given divorce and if he tried to approach the police or the Courts, then they would eliminate the entire family. Other witnesses Devmohan Malaviya and the informant''s friend A.K. Srivastava and others were present in the house intervened and were shocked by the conduct of Shilpi''s husband and in-laws, but the applicants kept on abusing and issuing threats of divorce etc., and they left the house for Lucknow. The informant, even then, tried to approach the applicants for the welfare of his daughter, as he believed that in the Hindu traditions, after marriage, the marital home was a bride''s real home, but the applicants refused to listen. Thereafter, he lodged the aforesaid F.I.R. on 17.8.2006.

Firstly, it was argued by the learned Counsel for the applicants that the Varanasi Courts had no jurisdiction in the matter, as the offences in question primarily related to Lucknow.

As clearly the incident dated 25.6.2006 took place in the informant''s house, the contention of lack of territorial jurisdiction has no legs to stand. u/s 178 of Cr.P.C., it is clearly provided that when it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or 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.

Learned Counsel for the opposite party No. 2 has drawn my attention to the decision of the Apex Court in (6) 2008 ACC 319, Sanapareddy Maheedhar and Anr. v. State of Andhra Pradesh and Anr., where in paragraph 23 it has been mentioned that the offence of cruelty is a continuing offence and affects the society at large and in such matrimonial offences, the Court should not adopt a narrow and pedantic approach and should extend the jurisdiction. Though that was a case relating to the point of limitation, but in my view the said decision does show that the offence of cruelty in marriage may be committed in different areas and is a continuing offence which could be tried in any of those areas. The decision of Ramesh and Ors. v. State of Tamil Nadu (52) 2005 ACC, 45 cited by the learned Counsel for the applicants, in which learned Counsel for the applicants has referred to paragraph No. 10, which relies on another decision of the Apex Court in Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. (50) 2004 ACC 210 (SC) only points out that where an offence has not at all been committed at a particular place at all, then the case could not tried there and in the case of Ramesh''s case, the acts of cruelty had either been committed in Mumbai or in Chennai. There was no act of cruelty alleged in Trichy, hence the Apex Court observed that the Trichy Court had no jurisdiction. The facts of the said decisions are clearly distinguishable from the facts of the present case, where an incident has clearly occurred in Varanasi on 25.6.2006.

The next submission of the learned Counsel for the applicants that neither an offence u/s 498-A IPC nor the other sections mentioned in the F.I.R. are made out. This argument is also devoid of force. Section 498-A reads as under:

498-A. 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; 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 such demand.

Clearly the acts of harassment of the woman with a view to coercing her to meet any unlawful demand for Rs. 4 lacs, which was raised both in Varanasi and in Lucknow and the issuance of threats on that account as well as physical and mental torture practised on Shilpi would at least make out a prima facie case of this offence against the applicants and whether the offence is finally established or not is a matter to be considered by the Trial Court during trial.

Again the contention of the learned Counsel for the applicants that no offence u/s 506, 504 IPC is made out because no offence covered by the definition of the criminal intimidation u/s 503 IPC is made out also appears to be devoid of substance. Section 503 IPC reads as follows:

Criminal intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.

Therefore, threats given to Shilpi in the presence of her parents and otherwise which ought to coerce her father to pay up the illegal demand for Rs. 5 lac or 4 lacs, otherwise she would be divorced and would be harassed was likely to cause alarm to her. Therefore, it cannot be said that no prima facie case of criminal intimidation is disclosed.

Again so far as the offence of Section 323 IPC is concerned, it is made out, even whether there is any visible injury or not because the defining Section of hurt 319 IPC even includes causing bodily pain to a person. Here as Shilpi has alleged that she was belaboured at Lucknow and pushed in Varanasi, it cannot be said that Section 323 IPC is excluded. It is well settled that even if an offence was made out under just one section, no ground exists for quashing the criminal proceedings. It will have to be appreciated during trial as to what offences are made out in the facts of the case.

The next submission made by the learned Counsel for the applicants that as the applicants have filed a suit for divorce on 19.7.2006, hence by way of counterblast the story has been invented. It is not clear whether the divorce suit has been filed by way of counterblast or by way of peshbandi or was an additional coercive measure to compel the informant to meet the unacceptable dowry demands. These are matters to be considered during trial. The incident in question in Varanasi took place on 25.6.2006 and merely because the complainant was trying to save the marriage and did not want to take any immediate action in the matter, the mere delay in fling of the report cannot lead to the inference that it was by way of counterblast to the divorce petition filed by the applicant No. 1 or untrue or merely on the ground of this delay, the criminal proceedings against the applicants should be quashed.

One other submission raised by the learned Counsel for the applicants was that although in the 156(3) Cr.P.C. application it was mentioned that the applicant Smt. Sona Devi, the mother-in-law had also gone to Varanasi to natal residence of Shilpi on 25.6.2006, along with Anil and Ram Sumer Mishra but in the 161 Cr.P.C. statement of Shilpi there was no allegation of the presence of Smt. Sona Devi in the incident which took place at her residence in Mahmoorganj. Merely for this reason the proceedings can also not be quashed against Smt. Sona Devi because undeniably there were allegations of cruelty with Shilpi against Smt. Sona Devi also at Lucknow and as pointed out above that in view of Section 178 even when part of the cause of action takes place at place A and part of cause of action takes place at place B where the trial is being held, then the accused can be tried for the other part of cause of action, which had taken place at place "A" can also be tried at place "B" where the trial is being conducted.

The last submission raised by the learned Counsel for the applicants was that only an order for registering the case had been passed and no detailed reasons have been given and this shows lack of application of mind and the cognizance order should be set aside on this ground.

I do not think that there is any requirement on a Magistrate when he takes cognizance of an offence on a police report to give detailed reasons as to how an offence is made out. It has specifically been stated in paragraphs 8 and 9 in the case of Deputy Chief Controller Import and Export v. Roshan Lal Agrawal (46) 2003 ACC 686 and U.P. Pollution Control Board v. Mohan Meakins AIR 2000 SC 1456 and Kanti Bhadra Shah and Another Vs. The State of West Bengal, that detailed reasons are not required when a summoning order is passed but only when a Magistrate disagrees with the conclusions of the investigating officer and declines to summon the accused, then better reasons need be furnished.

In this view of the matter, there is no merit in this application. It is rejected.

However, if the applicants appeal in the aforesaid case before the Court concerned and apply for bail, their prayer for bail shall be disposed of expeditiously. Trial Court is also directed to conclude the trial expeditiously.