Sandeep Aggarwal vs Sudesh Gupta

R.L. Anand, J.

Sarvashri Sandeep Aggarwal, Surinder Mohan Aggarwal and Smt. Sneh Aggarwal, petitioners, have filed the present petition under Section 482, Cr.P.C., with Article 227 of the Constitution of India, seeking the quashment of the complaint titled as nSudesh Gupta v. Sandeep Aggarwal and others under Sections 498A, 406, I.P.C., and the summoning order dated 9.12.1996 passed by the Illaqa Magistrate and all the subsequent proceedings against Sudesh Gupta father of Smt. Madhvi, alleging that the filing of the complaint and the passing of the summoning order amounts to an abuse of the process of the Court and deserves to be quashed.

Shri Sudesh Gupta respondent filed complaint under Sections 406 and 498A, I.P.C. against the present petitioners, alleging that in the month of October 1994 he have his daughter Smt. Madhvi in marriage to Shri Sandeep Aggarwal. This marriage was solemnised at Jammu in a dignified manner at Hari Niwas Palace, Jammu according to the status of the family. In the marriage he gave many costly items including gold ornaments, electrical goods, furniture, utensils, costly clothes and so many other articles of daily use. This marriage was attended by the relations and other friends of the family, who also gave many costly items in the shape of presents. Sandeep Aggarwal is the husband of Smt. Madhvi, Surinder Mohan Aggarwal and Smt. Sneh Aggarwal are the fatherinlaw and motherinlaw, respectively of Smt. Madhvi. The complainant alleged that in spite of the fact that the complainant spent a lot of money on the marriage, which was arranged in a graceful manner, the present petitioners and other persons named in the complaint, were not satisfied with the dowry items, as a result of which the petitioners started misbehaving and illtraeating Smt. Madhvi on the pretext that she had brought inadequate dowry. Immediately after the marriage the petitioners made a demand for a Maruti car and sent Smt. Madhvi to Batala in November 1994 with the direction that the latter should persuade her father to give a Maruti car to the petitioners. Since the complainant had already spent enough amount on the marriage, he showed his helplessness. However, in order to rehabilitate his daughter Smt. Madhvi in a respectable manner in the matrimonial home, the complainant gave Rs. 75,000/ at Batala to the parents of Sandeep Aggarwal. This amount was paid to the parents of Sandeep Aggarwal in the presence of Shri Vinod Aggarwal and a few others. The complainant further states that at the time of the solemnisation of the marriage of his daughter, he gave dowry to Surinder Mohan Aggarwal, Sneh Aggarwal and Sandeep Aggarwal, petitioners, Since in the year 1994, the terrorism was not completely wiped out, especially from Jammu area, therefore the complainant handed over all the articles including furniture, costly clothes, electrical goods to Surinder Mohan Aggarwal on the next day of the marriage. For two months the petitioners remained silent and, thereafter again Smt. Madhvi was sent back to fetch more money for the purchase of a Maruti Car. The complainant in the company of Vinod Aggarwal, Surinder Aggarwal and various others went to Jammu along with Smt. Madhvi and made a request to Sandeep Aggarwal and Surinder Mohan Aggarwal and other accused to keep Smt. Madhvi in the matrimonial home. The complainant also gave assurance to the petitioners that he would do something for the purchase of Maruti Car when his financial condition so permitted, and as at that time his financial position was tight, he could not send any money to them. In September 1995 Smt. Renu Jindal and her husband Sushil Kumar Jindal came to the residence of the complainant and forced him to arrange for the car. However, the complainant flatly refused. On 5.9.1995 Smt. Madhvi came to Batala. At that time she was alone and was at the advanced stage of pregnancy. She told her father that after his refusal, all the accused gave her severe beatings and dragged her out from the matrimonial home. She was in acute depression because of the inhuman behaviour meted out to her. As Smt. Madhvi was quick with the child, the complainant got her admitted as an indoor patient in the Manik Nursing Home at Batala in order to facilitate the delivery. She gave birth to a female child. Neither the husband of Smt. Madhvi nor any of the accused came to Batala in order to see the welfare of Smt. Madhvi and her new born child. The complainant had to bear all the expenses. The complainant and his daughter Smt. Madhvi waited till June 1996. Nobody turned up to take Smt. Madhvi during this period. The complainant tried his level best for a peaceful settlement between his daughter and the accused, but he could not succeed. In the first week of July 1996, Smt. Madhvi wanted to take some articles from her inlaws, which she needed for her personal use including, clothes, utensils, furniture etc. The complaint went to Jammu along with Kashmiri Lal Aggarwal and Vinod Kumar Aggarwal, and made a request to Surinder Mohan Aggarwal, Sandeep Aggarwal and Smt. Sneh Aggarwal and others, but they refused to hand over the articles, which were lying with them as a trust for the exclusive use of Smt. Madhvi. It is further alleged by the complainant that all the accused harassed and tortured his daughter Smt. Madhvi and gave repeated beatings with a view to force her or to force the complainant to meet their demand of Maruti car, which could not be fulfilled. Further it is alleged by the complainant Shri Sudesh Gupta that accused Nos. 1 to 5 have misappropriated the articles of dowry which were lying with them as a trust and refused to hand over the same to Smt. Madhvi, and thus, they committed offences under Section 406 read with Section 498A, Indian Penal Code.

Before the Illaqa Magistrate preliminary evidence was recorded and the learned Magistrate after perusing the complaint and statements of the complainant Sudesh Kumar, Madhvi, Vinod Kumar and Kashmiri Lal, who appeared as prosecution witnesses, came to the conclusion that a prima facie case against petitioners Nos. 1 to 3 only under Sections 406/498A I.P.C. was made out and they where summoned for 15.2.1997. The complaint against the remaining persons, namely, Smt. Anu Aggarwal, Anil Aggarwal, Sushil Kumar and Renu Jindal was dismissed on the plea that they were remotely related to the other accused and were not expected to join the main accused in the commission of the offences under Sections 406 and 498A, I.P.C..

In the present petition under Section 482, Cr.P.C., challenge has been given to the complaint and the summoning order on the grounds that the alleged act of cruelty had been committed at Jammu. The marriage was solemnised in Jammu. The alleged articles were handed over to the husband and his parents in Jammu, and, therefore, the Criminal Court of Batala had no jurisdiction to entertain the complaint and to pass the summoning order.

I have heard Shri K.K. Aggarwal, learned counsel for the petitioners, and with his assistance I am disposing of this petition at the motion stage itself.

Section 482, Cr.P.C., lays down that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A perusal of the above provision would show that these provisions can be invoked only when it is established prima facie on going through the averments of the complaint that the allegations set out in the complaint or chargesheet do not constitute any offence. But if a persual of the allegations of the complaint prima facie discloses a commission of offence, the provisions of Section 482 cannot be invoked as it would amount to scuttling down the powers of the Criminal court, who has decided to proceed against the accused according to law. It has been held by the Hon''ble Supreme Court in the celebrated judgment State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 S.C. 604 that the provisions of Section 482, Cr.P.C., have to be invoked in rarest of the rare cases and the Hon''ble Supreme Court further lays own that these provisions can be invoked sparingly in the interest of justice. Some guidelines have also been given by Hon''ble Supreme Court to the Courts subordinate under what circumstances the provisions of Section 482, Cr.P.C., can be invoked. These guidelines are as under:

"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.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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.

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.

Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so abusrd 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.

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.

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.

Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified."

As I stated above, this Court has to see the allegations whether the complaint filed by Shri Sudesh Gupta was an abuse of the process of the Court or that he had a genuine grouse against the present petitioners. The case of the complainant is that the marriage of his daughter was solemnised in the year 1994 and right from the very beginning the petitioners along with some others started making a demand for dowry and they specifically made a demand of Maruti car and to satisfy that demand the complainant at the first instance parted Rs. 75,000/ at Batala to the parents of Shri Sandeep Aggarwal, who was also present there and this amount was parted in the presence of Shri Vinod Aggarwal and others. The act of demand of dowry and its receipt constitutes an offence under the Dowry Prohibition Act. It amounts to cruelty within the meaning of Section 498A of Indian Penal Code. When the money has been allegedly parted at Batala, how the Criminal Courts at Batala had no jurisdiction to try the offence under Section 498A I.P.C. The case of the complainant further is that after the parting of the money, the accused were not satisfied and they again started raising the demand of Maruti car and they compelled Smt. Madhvi to contact her parents for the amount. The poor lady had to go to Batala and she apprised her parents of the matter, who again went to the petitioners to request them not to raise the demand but their conduct was adamant. All this conduct on the part of the petitioners prima facie constitutes an act of cruelty and prima facie the Criminal Courts at Batala had the jurisdiction to try the offence.

Reverting to allegations under Section 406, I.P.C., the submission of the learned counsel for the petitioners was that the alleged act of misappropriation has been committed at Jammu and, therefore, this offence could not be tried at Batala, and thus the proceedings should be quashed. The submission of the learned counsel for the petitioners cannot be accepted in view of the provisions of Section 181(4), Cr.P.C. It is the case of the complainant that Smt. Madhvi was turned out from the house of her inlaws and she came to the house of her parents in the advanced stage of pregnancy. She delivered a female child. She went to Jammu in order to bring some of the articles but she was not allowed access to those articles. Under these circumstances, the present petitioners were required to return the entrusted property to Smt. Madhvi at the place where she was residing at that time. As per the complainant, Smt. Madhvi was residing with her parents. The accused were supposed to account for the articles allegedly recovered by them and they were supposed to return the same at Batala and by not doing so, prima facie they had committed offence under Section 406, I.P.C. This Court is not in a position to agree with the submission raised by the learned counsel for the petitioners that there is no allegation in the complaint at the time of handing over the alleged articles of dowry that the goods would be accounted for at Batala and in the absence of any such stipulation, it is the Jammu Court which has the jurisdiction to try the offence under Section 406, I.P.C. The argument is devoid of any merit. In such like cases no stipulation can be expected on the part of the bride or her father, who are more interested in the smooth matrimonial ties. Once the demand for the utilisation of the articles has been made by the wife to her husband or her inlaws and that demand has not been complied with, in that eventuality the husband and the inlaws are supposed to account for the articles at the place where the wife was residing. Where the accused are under liability to deliver the goods at a particular place and fail to do so, by reason of having committed an offence of criminal breach of trust, which is alleged against them, the Court within whose jurisdiction that place is situated, may inquire into and try the offence under the provisions of Section 181(4) of the Code of Criminal Procedure. It has been held in 1991 Marriage Law Journal 341, that refusal to return the Stridhan to the wife, upon which complaint under Section 406, Indian Penal Code, was made, that Court of place where Stridhan was received or entrusted or where it was to be returned to her or where she had settled after estrangement with the husband, had the jurisdiction to try the offence. This Court is of the opinion that the Court where demand for return of dowry was made and declined would per se have the jurisdiction to try the offence.

There is another aspect of this case which justifies is Court for the dismissal of petition. Vide the impugned order the learned Magistrate has only summoned the accused, i.e., the present petitioners. What is the right of the present petitioners in these circumstances to come to an easy remedy under Section 482, Cr.P.C., which has to be invoked sparingly and in rarest of the rare cases or in exceptional cases or he should have approached to the Magistrate for necessary relief, which he is claiming in the present petition. It is well settled that when alternative efficacious remedy is available to the petitioners before the Magistrate, the High Court would be reluctant and slow in exercise of its inherent powers under Section 482, Cr.P.C. because these provisions have been enacted by the Legislature when the High Court finds that the procedure adopted by the Magistrate in summoning the accused was manifestly illegal or unjust or perverse causing a great prejudice to the persons invoking the provisions of Section 482, Cr.P.C. The scheme of the Code of Criminal Procedure would show that the summoning order is in the nature of an interim order giving many rights to the persons summoned by the Magistrate and such persons can always convince the Magistrate for discharging them at any previous stage of the case and if for reasons to be recorded, such Magistrate feels that the allegations are groundless, he had the power to discharge the accused. Reference can be made to the provisions of Section 245(2) of the Code of Criminal Procedure. This position of law was even approved by this Court in Bachan Singh v. Harpreet Kaur, 1996(1) RCR 806 , wherein it was held that when the persons have been summoned by the Magistrate for offences under Sections 406 and 498A of the Indian Penal Code, such accused, who are seeking quashment of the complaint on the ground that allegations were vague and that it should be dismissed, they should have moved the Magistrate for necessary relief. It was held that since alternative efficacious remedy was available to the petitioners before the Magistrate, the High Court was reluctant to exercise its inherent powers under section 482, Cr.P.C. To this effect there is another citation reported as M/s. Garg Forgings and Castings Ltd. v. M/s. Steel Strips Limited, 1996(1) RCR 799 , where it was held that the order issuing process is an interim order and not a judgment and that the Magistrate may drop the proceedings if on reconsideration he is satisfied that there was no offence for which the accused could be tried. Reliance was placed by the Hon''ble Judge upon K.M. Mathew v. State of Kerala and another, 1992(1) RCR 232 a judgment of the Hon''ble Supreme Court in which it was held that it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of its does not disclose any offence against the accused. Similar is the observation of this Court in Dr. T.N. Chaturvedi v. Karnail Singh, 1994(3) RCR 517 , where the Hon''ble Judge was pleased to decline to invoke the provisions of Section 482 of the Code of Criminal Procedure, holding that the summoning order was only an interim order and not a judgment. This ratio was given in para No. 7 of the said judgment, which can be quoted with approval as follows :

"7. I have heard the learned counsel for the parties. It is not such a case that on its bare reading, the complaint can be quashed. Moreover, the summoning order issued on the basis of the complaint by the SubDivisional Judicial Magistrate, Nabha, is only an interim order and not a judgment. Thus, I would not like to got into these questions at this stage under the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. The order can be varied or recalled. The fact that the process has already been issued is no bar to drop th proceedings if the complaint on the very face of it does not disclose any offence against the accused."

Faced with this difficulty, learned counsel for the petitioner has referred to Harjeet Singh Ahluwalia v. State of Punjab and another, 1986(2) C.L.R. 81, and submitted that the Batala Court had no jurisdiction to try the offence, as the alleged cruelty and misappropriation, if any, had been committed at Jammu. This authority is distinguishable. In the complaint there is specific allegation that Rs. 75,000/ were paid to the petitioners at Batala. It is also the case of the complainant that Smt. Madhvi went to Jammu for then return of the articles and she was not accommodated. In these circumstances the petitioners were supposed to account for the articles at Batala after the estrangement of the relations where Smt. Madhvi was residing. The counsel the relied upon B.R. Gupta v. Kaushal Kumar, 1996(1) C.L.R. 28. This authority is not applicable to the facts in hand. A perusal of the complaint would prima facie show that the offences under Sections 406 and 498A, I.P.C. have been committed. Cited was a case where his Lordship was pleased to hold that if the allegations of the complaint are taken on their face value, no offence is made out and in these circumstances the provisions of Section 482, Cr.P.C., can be invoked. This Court is also not in dispute with the proposition of law laid down by his Lordship, but the persual of the complaint prima facie discloses an offence and at this juncture the merits and demerits of allegations cannot be gone into by me while disposing of the present petition, as it would tantamount to usurping the rights of the trial Court, who is yet to take a decision in the matter.

My attention has also been invited to Jatinder Singh and others v. State of Haryana, 1993(2) RCR 121. In the cited case the proved facts were that the husband and the wife resided at Kaithal and the complaint by wife was made under Section 498A, I.P.C. at Jind. In these circumstances it was held the Jind Court had no jurisdiction. In the present case there are allegations that Rs. 75,000/ were paid to the accused at Batala. Reliance was also place on Karambir and others v. State of Haryana and another, 1995(1) RCR 499 ; and Balwinder Kumar Sharma v. State of Haryana, 1994(1) RCR 483. The facts of these cases stand on totally different footings than the one in hand. In the present case prima facie the acts of cruelty have been committed within the jurisdiction of the Batala Court. The petitioners were dutybound to account for the Stridhan and the dowry articles at Batala. Therefore the Batala Court had the prima facie jurisdiction to try the offences.

In the light of the above discussion I do not find any merit in the present writ petition, which is hereby dismissed at the motion stage itself with the observation that the provisions of Section 482, Cr.P.C. cannot be invoked into disputed questions of law and fact which have been raised in the present petition. I allow the petitioners to raise all the pleas before the Magistrate concerned, who has the powers under the Code of Criminal Procedure to drop the proceedings, if he is convinced that the offences are not made out or that those are not triable at Batala.