State of Himachal Pradesh vs Kewal Kumar

R.L. Khurana, J.—Admit. Mr. Ashutosh Burathoki, learned Counsel waives service of notice on behalf of the respondent after admission. With the consent of learned Counsel for the parties the matter is being finally disposed of today.

Respondent Kewal Kumar was sought to be prosecuted for the offences under Sections 498-A and 323, Indian Penal Code, on the basis of F.I.R. No. 21/1997 dated 8.1.1997 of Police Station, Kangra. The learned Magistrate, upon consideration of the material placed before him, came to the conclusion that no prima facie case for the offence u/s 498-A, Indian Penal Code was made out against the respondent. He, therefore, discharged the accused of such offence. Insofar as the offence u/s 323, Indian Penal Code is concerned, the learned Magistrate by observing that such an offence was exclusively triable by the Gram Panchayat, directed that the file be sent to the concerned Gram Panchayat for trial. While coming to the conclusion that no prima facie case u/s 498-A, Indian Penal Code was made out against the respondent, the learned Magistrate has observed in his order dated 5.6.1999 as under :

"...I have perused the charge sheet namely; the statements of the witnesses Pushpa Devi, Mango Devi and Achhari Devi. In their statements, there is nothing from which it could be inferred that the beating of the complainant was done by the accused with the intention to coax her to bring more dowry from the house of her parents. So, in my opinion, there is no material which attracts, even remotely, the commission of offence punishable u/s 498-A of I.P.C. The accused is discharged for the commission of this offence."

In other words, the learned Magistrate primarily was of the opinion that since the cruelty, if any, to which the complainant was subjected to was not in connection with the demand of the dowry, no offence u/s 498-A, Indian Penal Code was made out.

Feeling aggrieved by the order of discharge dated 5.6.1999, as recorded by the learned Magistrate, the State went up in revision before the learned Additional Sessions Judge (I), Kangra at Dharamshala. The learned Additional Session''s Judge while agreeing with the findings of the learned Magistrate dismissed the revision petition vide impugned order dated 26.6.2000. It has been observed by the learned Additional Sessions Judge as under :

"...In these circumstances, therefore, merely because the husband may have given the wife some thrashing would not, by itself, bring such act within the mischief of Section 498-A, I.P.C., unless the husband settles for the dowry or coerces the wife for the said purpose, which does not appear to be the case. In such a situation, no offence, except u/s 323,1.P.C., can be said to have been made out, as rightly held by the Court below."

The State, not being satisfied with the order of the two Courts below, has approached this Court by way of present revision petition.

The learned Counsel for the respondent, at the very outset, has contended that in view of specific bar contained under Sub-section (3) of Section 397, Code of Criminal Procedure, the present second revision petition on behalf of the State is not maintainable and the same is liable to be rejected on this short ground alone. It has further been contended by the learned Counsel for the respondent that in the face of specific bar contained u/s 397(3) of the Code of Criminal Procedure, this Court cannot take recourse to the inherent powers as contained u/s 482, Code of Criminal Procedure. In support of his contention, the learned Counsel for the respondent has placed reliance upon the ratio laid down by the Hon''ble Supreme Court in Arun Shankar Shukla Vs. State of Uttar Pradesh and Others, and in Rajathi Vs. C. Ganesan,

In both the cases relied upon by the learned Counsel for the respondent, the Hon''ble Supreme-Court was primarily concerned with the scope and ambit of Section 482, Code of Criminal Procedure and it was held that the inherent powers as contained in Section 487, Code of Criminal Procedure Code be resorted to in order to entertain a second revision petition which is specifically barred u/s 397(3), Code of Criminal Procedure.

u/s 397(1) read with Section 401, Code of Criminal Procedure, the revisional powers can be exercised by the High Court either on a petition made by a party or suo motu by the Court. The bar contained under Sub-section (3) of Section 397, Code of Criminal Procedure would only debar a party from invoking the revisional powers of this Court for second time having once availed such remedy before the Sessions Judge. This bar will not operate to exercise of suo motu powers by the High Court. The Hon''ble Supreme Court in Krishnan and another Vs. Krishnaveni and another, while dealing with the question whether inherent powers of the High Court were still available u/s 482, Code of Criminal Procedure in view of bar of second revision petition under Sub-section (3) of Section 397 of the Code of Criminal Procedure, held that ordinarily when revision has been barred u/s 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court u/s 397(1) or under inherent powers of the High Court u/s 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It was further observed that the High Court has suo motu power u/s 401 and continuous supervisory jurisdiction u/s 482 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure.

In view of the observations made by the Hon''ble Supreme Court in the above referred to case, the suo motu powers u/s 397 read with Section 401, Code of Criminal Procedure, have been preserved and the bar under Sub-section (3) of Section 397 of the Code of Criminal Procedure would not operate to exercise of such suo motu powers of the High Court.

There is yet another significant aspect of the case. The present second revision petition has been preferred by the State. The Hon''ble Supreme Court in Krishnan and Anr. v. Krishnaveni and Anr, (supra), while dealing with the words "any person", appearing in Sub-section (3) of Section 397, Code of Criminal Procedure, has held that the State does not fall within the ambit of "any person" and, therefore, a second revision petition at the instance of the State would not be barred under Subsection (3) of Section 397, Code of Criminal Procedure.

In view of the above proposition of law, as laid down by the Hon''ble Supreme Court, there is no merit in the objection raised on behalf of the respondent with regard to the maintainability of the present revision petition.

Coming to the merits of the case, as observed above, the respondent has been discharged of the offence u/s 498-A, Indian Penal Code, primarily on the ground that the cruelty/harassment to which the complainant is alleged to have been subjected to was not in connection with or related to the demand of dowry.

Explanation to Section 498-A, Indian Penal Code, defines "cruelty" as meaning :

(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.

The two Courts below while discharging the respondent of the offence u/s 498-A, Indian Penal Code appear to have primarily confined itself to the definition of cruelty as contained in para (b) above. Para (a) above was never referred to. The two Courts below appear to have considered the evidence as to cruelty with reference to para (b) of Explanation to Section 498-A, Indian Penal Code. Even if it be assumed that cruelty to which the complainant was subjected to was not in connection with demand of dowry, the Courts below were required to examine whether the cruelty to which the complainant is alleged to have been subjected to by the respondent was of such a nature as was to likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical). On the failure of the two Courts below to examine the case from such an angle, the impugned orders of the two Courts below discharging the respondent of the offence u/s 498-A, Indian Penal Code, cannot be sustained and are liable to be set aside.

As a result, the orders of the two Courts below discharging the respondent of the offence u/s 498-A, Indian Penal Code, are set aside and the case is remanded to the learned Trial Court for proceeding therewith in accordance with law. It is, however, clarified that before proceeding with the case, the learned Trial Court shall examine the case in order to find out if there is a prima facie case against the respondent for the offence u/s 498-A, Indian Penal Code in the light of definition of cruelty as contained in paragraph (a) of the Explanation u/s 498-A, Indian Penal Code and the observations made above.

The parties through their Counsel are directed to appear before the learned Trial Court on April 16, 2001. The record of the case be returned forthwith so as to reach the Trial Court well before the date fixed. Dasti copy on usual terms.