Gorak Nath Ram and Others vs Smt. Nibha

S.K. Chattopadhyaya, J.—The petitioners who are husband, father-in-law and mother-in-law respectively, of the complainant/opposite party have moved this Court in the instant application for quashing the order dated 14.8.96 by and under which the learned court below having found prima facie case against the petitioners, directed framing of charge under Sections 406/498A of the Indian Penal Code.

Before appreciating the contentions raised on behalf of the parties factual backgrounds may be stated briefly: On 26.5.94 the opposite party filed a complaint before the Chief Judicial Magistrate, Ranchi alleging, inter alia, that she was married with petitioner No. 1 on 26.11.92 and negotiation for the marriage was done at the instance of one Chandrika Prasad in the month of June, 1992. After fulfilling the demands of the accused persons chheka ceremony was performed on 16.7.92 at Ranchi and a specific date was fixed for marriage. Preparation for marriage began and the parents made arrangement for the stay of the Barat party in hotel Apsara at Ranchi. However, a fortnight prior to the marriage her father received a printed invitation card which completely disturbed the parents, friends and well wishers of the complainant. In the meantime, said Chandrika Prasad came to her parents with a printed invitation card which was sent to him by Raj Kumar, brother of petitioner No. 1. It revealed from the said card that marriage of petitioner. No. 1 was fixed with another lady named Poonam, daughter of one R. Prasad of Allahabad. On going through the said card the complainant''s parents became nurvous and to verify the real state of affairs immediately rushed to the residence of the petitioners on the same day. They were pacified by the petitioners but were told to give them Fridge, V.C.P. coloured T.V. and a Maruti car before the date of marriage. The petitioners were requested by the parents of the complainant to give up that excessive demand and to perform the marriage on the agreed demands made earlier. The petitioners were requested to consider the future of the girl and reputation of the family. After a great deal of persuation the petitioners agreed to perform marriage on the condition that the demands made must be fulfilled by the parents of the complainant within three months of the marriage.

Similar invitation card, it is alleged, were distributed only to some persons at Ranchi with sinister design to blackmail the complainant''s parents so that demands made earlier could be increased. In the evening of 26.11.92 Barat party reached Ranchi and stayed at Apsara hotel and at about 7.30 P.M. the party came for Divarpuja at the door of the complainant''s house. Dinner party was hosted to entertain the Barat party and after that it went back to the hotel for performance of other rites. Though nuthrat for the marriage was fixed at 12 in the night but neither the groom nor his relatives nor friends appeared till 11 P.M. which caused great anxiety in the minds of the parents of the complainant. Chandrika Prasad and Ors. were sent to the hotel to know about the reason for delay. Chandrika Prasad and Ors. having found that the Barat party was lazing off in the hotel premies. They went to the father-in-law, petitioner No. 2 and accused No. 4 to know about the delay. On inquiry accused No. 4 asked them to bring the entire ornaments in the hotel and to hand over the same to them. They also demanded the entire price of Maruti car at once threatening that the groom would not go for marriage if the said demands are not fulfilled. Chandrika Prasad and Ors. found with surprise that petitioner No. 1, the groom was also supporting his relatives in the said demand. The matter was conveyed by Chandrika Prasad to the parents of the complainant and on hearing the same the mother of the complainant fell down unconscious. Her father was at a loss having found no way out to over come this critical juncture. Again Chandrika Prasad along with relations and friends of the father of the complainant went to the hotel and handed over the entire ornaments to accused No. 2 and 4 in the hotel in presence of accused No. 1 and had to commit under pressure. Thereafter, the marriage was performed much after the Muharat time.

The complainant after marriage went to her in-laws'' house on 27.11.92 and stayed there for four days. Since her arrival in in-laws'' house she was made to digest the sarcastic remarks passed by her husband against her parents for not giving them dowry in commensurate with his status. Hurling of dirty abuses at then was a regular affair from petitioner No. 1. The complainant being shocked used to protest it/but in the beginning she was subjected to assault physically by her husband. Constant threat of divorce was also given to her by saying that petitioner No. 1 had many women to spend night and atleast one of such ladies was deeply in live with him and she was ready to please him in more ways than one. These utterances of her husband were not taken seriously by the complainant at first, taking it to be a pressure on her parent to meet the unreasonable demands of dowry. However, with the passage of time the husband hardened his attitude and intensified his torture on her and virtually menacled her in his house preventing her to go out of the house. She was served with scanty food and brutality went to a high extent. It is alleged that all these tortures were with the sole intention to get the demands fulfilled earlier made by the husband with other in-laws. With a hope that her in-laws will one day or other mend their behaviour towards her, the complainant continued to suffer silently. Brutalities and insults were meted out to her by her in-laws. As a result of continuous torture and assault and for lack of proper food and care the complainant became very weak and felt helpless. She was certain that her parents were not in a position to meet such high demands of the accused persons inasmuch her parents had three other daughters to give in marriage and one son to give education. Ultimately on 17.1.93 as a result of brutal assault on her back by the husband, she became breathless and her husband threw her away all her garments etc. from the almirah. The husband, moreover, wrote a letter to her mother informing her about the tough attitude lately taken by him towards his wife. The complainant caught hold of the said letter as the husband forgot to post it and by inadvertence left it one the table. Finding no way the complainant had to send for her father in the last week of May and requested him to purchase a Fridge, VCP and a coloured TV as her husband was insisting upon those article regularly. Father of the complainant had to arrange for money through his friends and relations to save the life of his daughter and paid the husband Rs. 35000/- out of which her husband purchased a fridge, V.C.P. and a coloured T.V.. Even after receiving the said amount pressure for other demands continued with regular feature. On 18.7.93 a personal diary of her husband was found with a note of her husband which was to the effect that he had some association with one Usha Marsaria. As soon as she produced the said diary before her husband in the evening, for a moment, he was taken aback but, thereafter, admitted before her about the relationship with the above lady and few others. Her husband could not deny that the said noting which was in his own hand, bore his signature. Extra marital relations with other women was admitted by her husband before her. On the next day she was mercilessely assaulted by her husband and being restless with pain she immediately sent message to her mother. Her mother came rushing and took her to Dr. Mrs. S. Chakravorty who prescribed her medicine and advised her to get admitted in a Nursing Home for rest and care. The complainant was admitted in Prasad Nursing Home on 19.7.93 in presence of her husband and immediately after her admission in the Nursing Home he disappeared from there and telephonically asked his mother-in-law to take her to her house. Her parents requested the husband of the complainant to take back his wife but without any result and since then her husband has not only refused to take her back but has also refused to maintain her.

Realising the stern attitude of petitioner No. 1 ultimately the ornaments and other stridhan to the complainant. But, it is alleged that the said request was also not give any importance. Ultimately her parents went to accused No. 2 to 4 at Ranchi and narrated the entire episode. The accused persons did not give any importance to their predicaments and, on the other hand, informed them that marriage of accused No. 1 had already been settled with a girl of a rich family who had agreed to meet their demands of dowry including a Maruti car. When the parents of the complainant requested for return of the stridhan, they were refused by saying that those ornaments will be presented to the new bride.

With these allegations the complainant has stated in her complainant petition that realising the miseries and anxities of her parents and other family members she feels like committing suicide but restrained herself from doing so realising the status of her parents and the family n the society and the future of her brothers and sisters. On refusal by the police to take any action the complainant had to file the instant complaint petition before the court below with a prayer to punish the accused persons in accordance with law.

After investigation charge sheet was filed and cognizance was taken and after perusal of the evidence on record and hearing the parties, the learned court below, being prima facie satisfied, directed to frame charge against the petitioners under the a foresaid section of the Penal Code. In this connection it is pertinent to mention that the court below has not framed any charge against accused No. 4, namely, Raj Kumar Ram, Dewar of the complainant as, according to it, no sufficient materials were there to frame charge against him.

Mr. Kameshwar Prasad, learned Sr. counsel appearing on behalf of the petitioners, has vehemently urged that the court below has committed an error of law in framing charge against the petitioners inasmuch as the complaint petition does not make out any case either u/s 498A or 406 of the Penal Code. Continuing his argument learned Counsel asserts that no case u/s 498A could be made out from the allegations because the complainant was having no sign of assault, rather, she was suffering from dihydration which cannot be said to have any connection with the asslault, as alleged. Referring to Ext. 4 he submitted that the lady herself was arrogant and of dominating character who wanted to rule over her husband which was not liked by her in-laws . Secondly, according to Mr. Prasad, there is inordinate delay in filing the compliant because, as per the allegations, she was admitted in the Nursing Home on 19.7.93 but the complaint was filed on 26.5.94. Relying on the decisions reported in Khedu Mohton and Others Vs. State of Bihar, , he asserts that delay of eight months in filing the complaint is sufficient to throw out the complaint. Thirdly, learned Counsel has argued, that two independent material witnesses i.e. Dr. Chakravorty and Rajak should have been examined and those two persons having not been examined, the whole prosecution case becomes doubtful. Assailing the impugned order Mr. Prasad submits that there being no proof of entrustment of the ornaments to the petitioners, provisions of Section 406 of the Penal Code cannot be attracted. He has referred to the evidence of the witnesses in support of his contention that the statement recorded by the court does not suggest that the petitioners are guilty of any offence u/s 498A or 406 of the Penal Code. Referring to individual acts alleged against the petitioners, it is submitted that as far as the husband is concerned, the complaint could have been filed immediately on the date of discharge of the complainant from Prasad Nursing Home. As far as petitioner No. 2 and 3, the father in-law and mother in-law of the complainant are concerned, it is submitted that the entire allegations, even if taken in their face value, points a finger against the husband and not against the parents in-laws of the complainant. According to him, except in para 29 of the complaint petition, there is no whisper against the parents in-laws of the complainant. In this connection he has submitted that if on the materials on lecord no case was made out against accused No. 4, namely, Raj Kumar Ram, charge could not have been framed practically on the same materials against the parents in-laws as well.

Mr. N.N. Sinha, learned Counsel appearing on behalf of the opposite party/ complainant strongly countering the arguments of Mr. Prasad has submitted that if the allegations in the complaint petition coupled with the evidence recorded by the court do not constitute offence under Sections 498A or 406 of the Penal Code, there cannot be any other allegation which can justify framing of charge under the aforesaid sections Referring to various paragraphs of the complaint petition Mr. Sinha submits that not only the ornaments were handed over to the petitioners but the complaint''s parents were forced to entrust those ornaments on the threat of breaking of the marriage. In this connection he has also relied on the evidence of the complainant herself which, according to him, justifies framing of charge u/s 406 of the Penal Code. Referring to the offence u/s 498A of the Penal Code, Mr. Sinha submits that cumulative effect of the torture should be taken into account which is both mental as well as physical. In this connection he has referred to the anxiety expressed by the complaint in her petition of complaint where she has expressed her desire to commit suicide for the torture and insults meted out to her which resulted in disturbing the whole atmosphere of the family. Explaining the reasonings for delay in filing the complaint Mr. Sinha has subimtted that the court must take note of the harassment and mental agony of a married lady while lodging complaint against nonelse but her husband and in-laws. The complainant might have recovered from the pai which she sustained physically while being treated at the Nursing Home but even after leaving the Nursing Home she was shattered mentally. She went to the police station with a hope that the police administration will come forward to assist her at this juncture but when she realised that no help could be received from the police, she had to knock the door of justice.

On the aforesaid factual backdrops the contentions of the learned Counsels may be tested. Section 227 of the Code of Criminal Procedure relates to discharge where as Section 228 of the Code is regarding framing of charge. In the instant case we are mainly concerned with the provisions of Section 228 of the Code which reads as follows:-

Section 228-Framing of Charge-(l) If, after such consideration and hearing as aforesaid, the judge is of the opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for trial of warrant-cases instituted on a police report

(b) is exclusively trial by the court, he shall frame in writing a charge against the accused.

(2) Where the judge frames any charge under Clause (b) of Sub-section (i), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

While interpreting the aforesaid two sections as well as the word ''presume'' their lordships of the Supeme Court in the case of State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., have observed as follows:

The aforesaid shows that if on the basis of materials on record a court could come the conclusion that commission of the offer is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage.

Keeping in mind the law laid down by the Supreme Court if the allegations made in the complaint are scrutinised it will appear that the complainant in unequivocal terms has described the situation right from the settlement of the marriage till the occurrence that happened after she went to her in-law''s house as a married wife of petitioner No. 1.

Five witnesses were examined on behalf of the prosecution before framing of charge. Chandrika Prasad, a family friend and whose name is very much in the complaint petition as witness No. 4, has been exemined as witness No. 1 before the court. About receipt of the card intimating settlement of marriage of the petitioner with another lady, this witness has stated that after receiving the card from Hira Pd., father of the complainant regarding marriage of the complainant with petitioner No. 1, he received another card from Gorakh Ram (father of petitioner No. 1) in which settlement of marriage of petitioner No. 1 with another lady was mentioned. This card is Ext. 3 to the complaint petition. The demand of T.V., V.C.P. and a Maruti car just before the performance of the marriage ceremony has been corroborated by this witness. He has also stated that ultimately on the demand made by the accused persons, he along with others returned from the hotel and narrated the entire episode to the father of the complainant. Thereafter, all the ornaments were removed from the person of the complainant and were handed over to the accused persons. Only then the Earat party come and the marriage was performed beyond the Muhrat hour. The allegation of torture and illtreatement, as alleged by the complainant, has been supported by this witness. Similarly, mother and father of the complainant have fully substantiated the allegations. Hira Prasad, fath of the complainant, has further deposed that on 18th July, 1993 when his daughter was assaulted by petitioner No. 1, her condition became serious and immediately she was taken to Dr. Mrs. S. Chakravorty and on her advice the complainant was admitted in Prasad Nursing Home. The complainant was treated in the Nursing Home upto 21.7.93 and when one Devendra Rajak went to call petitioner No. 1, he flately refused by saying that the victim should be taken to her house. The petitioner No. 1, thereafter, never inquired about the complainant and, as such, this witness took her to his own house from the Nursing Home. Sometimes, thereafter, when he went Chandrika and Prabhat to the house of petitioner No. 1, they were informed that petitioner No. 1 wants to marry another lady in another place. On hearing this, the father requested him to return all the articles but the same was flately refused. This witness being the father of the complainant, has given a detailed accounts of the ornaments and other articles given to petitioner No, 1 for the said marriage.

The most important witness is the complainant herself, who has supported her allegations on all points. A vivid picture has been given by her as to how demand of dowry was made during negotiation and after the settlement of marriage. She has also stated about the intention of the accused persons in extorting more dowry by sending a card which is Ext. 3. The demand of Maruti car, T.V., V.C.P. and fridge, after the marriage was settled, has also been stated by her. The most crucial fact stated by her is that here entire ornaments were removed from her person and were handed over to the accused persons in order to make them agreeable to perform marriage within time About torture and ill-treatment meted out to her she has categorically stated about the same in her deposition. She has also deposed about the request of her father to return the ornaments etc. and refusal by the accused persons. She is specific about the behaviours of her parents in-laws just after 4-5 days of the marriage. All these were the result of nonfulfilment of excessive demand of dowry by the accused persons.

From the above gists it appears that the main allegation to establish a case against the petitioners is that since the date of settlement of marriage till non-return of the ornaments the complainant and her witnesses are unequivoval in their depositions. It is well settled that at the stage of framing of charge probative value of the statement cannot be gone into, which would come to be decided at the conclusion of the trial. I do not propose to express any opinion on the allegations and the depositions of the witnesses as this would be a matter to be decided at the trial when the defence version of the case shall be brought on record.

I have already noted above that at the time of framing of charge the court is to think that the accused might have committed the offence and not that they have committed the offence. Secondly, whether the allegations made in the complaint petition justify framing of charge u/s 406 of he Penal Code, is to be decided in the trial and the High Court will not be ustified in exercising its inherent power u/s 482 Cr.PC by quashing he complaint holding that no charge could be framed u/s 406 of the Penal Code on the basis of such allegations.

The last but not the least the argument of Mr. Prasad that the complaint petition should have been dismissed solely on the ground of delay in filing of the same, is only to be noted and rejected. From the facts and circumstances discussed above, it is amply clear that after recovery from shock the victim girl gathered courage to inform the police about the offence committed by the accused persons but being frustreted in lodging the FIR, she had to move the court for justice. Moreover, one should not overlook the social status of a married lady who after being thrown out from her in-laws house, seldom approaches either the police or the court to ventilate her grievances. In such cases the reputation of her family is involved and the complainant was to think about the future of her unmarried sisters. In such situation if the complaint was lodged, finding no other way to restore the matrimonial life, after some lapse of time, it cannot be said that the whole complaint should be thrown as belated.

In the case of Vanka Radha Manohari v. V.V. Reddy and Ors. reported in AIR 1993 SCW 3595, their lordships of the Supreme Court have held that in matrimonial cases where allegation of torture, cruelty is alleged by the wife, the court has to apply its mind to the question as to whether it is in the interest of justice to condone the delay and quashing of the proceeding by the High Court on the ground of expiry of limitation, has been depricated by their lordships.

In the case of Pratibha Rani Vs. Suraj Kumar and Another, their lordships under similar circumstances, observed as follows:

Taking all the allegations made above, by no stretch of imagination can it be sai that the allegations do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus, there can be no room for doubt that all the facts stated in the complaint constitute an offence u/s 406 IPC and the appellant cannot be denied the right to prove her case at the trial by preempting it at the very behest by the order passed by the High Court.

Further observation of their lordships in para 60 of the said decision is quoted hereinbelow:

By way of post-script we might add that we are iindeed amezed to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property of a married woman that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relations. Thus, if the husband or his relations misappropriate the same and refuse to hand it over to the wife and convert them to their own use even though these facts are clearly alleged in a complaint for an offence under Sections 405/406 IPC some courts take the view that the complaint is not maintainable. Thus even when clear and specific allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the appeals before the Allahabad and the Punjab and Hariyan High Courts show that it is not so but is a pure figment of the High Court''s imagination as a result of which the High Courts completely shut their eyes to the fact that the husband could also be guilty u/s 405/406 IPC in view of clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustrnent and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in prepertratihg grave and substantial miscarriage of justice to the wife at the hands of the High Courts we cannot countenance such a wrong and perverse approach.

In this connection it is pertinent to consider the submission of Mr. Prasad that the counsel of the complainant before the court below conceded that the prosecution does not want to prosecute the accused persons for the charge under the Prohibition of Dowry Act. In my opinion, learned Counsel was not been advised to make that concession before the court below inasmuch as after perusal of the allegations and the deposition of the witnesses in support of those allegations before the trial court, it was the trial court only to decide as to under what Act and under what sections charge should be framed. In this connection I may refer to a decision of the Apex court in the case of Dipti alias Arti Rai v. Akhil Rai and Ors. reported in AIR 1995 SCC 751 where the Government Advocate appearing on behalf of the State before the High Court submitted that there was no material for framing of charge against the accused persons u/s 498A IPC. The Madhya Pradesh High Court on these grounds allowed the application filed by the accused persons and quashed the charge framed u/s 498A IPC against the parents in-laws of the complainant. This stand of the Government Advocate was depreciated by the Supreme Court by saying that concession was made without going through the records. The Supreme Court also set aside the order of the High Court by which order framing charge u/s 498A of the Penal Code was quashed by the High Court.

Having given my anxious consideration to the facts and circumstances of the case, I am of the view that the learned court below was fully justified in framing of charge against the accused persons/petitioners and I find no any illegality in the impugned order.

In the result, I find no merit in this application which is, accordingly, dismissed. The trial court is directed to proceed with the trial as expeditously as possible. The office is directed to communicate this order forthwith to the court below.