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Judgment
Subhash Kakade, J.—This revision petition has been preferred by the applicants u/s 397 and 401 of Criminal Procedure Code, 1973, here-in-after in short "the Code" against the impugned order February 11, 2013 passed by learned Judicial Magistrate, First Class, Jabalpur in Criminal Case No. 15352/2012 by which learned Magistrate framed charges against the applicants punishable u/s 498-A read with Section 34 of IPC and Section 3 of Dowry Prohibition Act, 1961. Facts briefly stated are as under: Three accused persons namely Jaideep Banerjee, his mother Smt. Shubhara Banerjee and father Swapan Banerjee were prosecuted u/s 498-A read with Section 34 of IPC and Section 3 of Dowry Prohibition Act. Complainant was married to accused applicant No. 3 Jaideep Banerjee. Applicant No. 2 Smt. Shubhara Banerjee and applicant No. 1 Swapan Banerjee are her mother-in-law and father- in-law respectively. She lodged an report on 29.11.2012 alleging that she was subjected to cruelty and harassment by the applicants to fulfill demand of dowry. On basis of this report offence was registered, statement of complainant, her parents and of one Pawan Kumar were recorded u/s 161 of Code and after completion of investigation, challan were filed.
Learned trial Magistrate after taking into consideration the challan papers framed charges against the applicants as mentioned hereinabove, which is denied by the applicants. Against this order, the instant revision petition has been filed.
Shri Rajnish Choubey, learned counsel for the applicants has submitted that the learned trial Court has framed the charges mechanically without considering the material facts that the complainant herself is living separately on the allegation of impotency against her husband applicant Jaideep. Therefore, applicant Jaideep filed divorce petition u/s 13(1)(ia) of the Hindu Marriage Act, 1955, on 29.10.2012 and Civil Suit No. 182-A/2012 is pending in the competent Court at Jabalpur. Annoyed with this, complainant started making vague and false allegations of cruelty and harassment on the basis of demand of dowry. After marriage, the complainant had even not spent one week at her matrimonial house, despite it, she also implicated the applicants No. 1 & 2 as accused, therefore, the applicants be discharged from the charges levied against them.
Shri Akhilesh Shukla, learned Deputy Government Advocate for the State has opposed the revision vehemently contending that the applicants have rightly been charged, thus, the revision petition is liable to be dismissed.
Considered the rival submissions made by learned counsel for the parties and perused the record available in the case diary.
To resolve the controversy it appears necessary first of all to have a look on the provisions of Section 498-A of the I.P.C. which reads as u/s 498-A of the I.P.C. which reads as follows:--
S. 498-A. 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 purposes 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.
So far as the offence u/s 498-A of the I.P.C. is concerned, it is not every kind of cruelty which constitutes an offence under this section. Explanation given in Section 498-A of the I.P.C. contemplates cruelty of two kinds. The first is that which is detrimental to life, limb or health of woman and second kind of cruelty consists of harassment with a view to coerce her or any person related to her to fulfill the unlawful demand. The case at hand is related with second type of cruelty or harassment.
It is pertinent to mention here that simple desertion of wife by her husband may be covered under cruelty or harassment because, husband is responsible to arrange each and every pleasure, comfort, etc. for his wife.
Once charges are framed u/s 240 of the code, the High Court in its revisional jurisdiction would not be justified in relying upon documents other then those referred to in the sections 239 and 240 of the code except in those cases where in exigencies and formidable compulsions justified such a course. Even in such exceptional cases the High Court can look into only those documents which are on unimpeachable and can be legally translated into relevant evidence. Therefore, contains of divorce petition filed by the applicant Jaideep will not be considered at this stage.
A girl dreams a great days ahead with hope and aspiration when entering into a marriage.
The F.I.R. reveals that from second day relation between complainant and husband Jaideep began to sour which goes to this extent that applicant Jaideep filed petition for divorce, but for all these affairs at the most husband would be responsible and duty is attached with her husband only. At the most desertion by the husband can amounts to cruelty or harassment. But, simple desertion of daughter- in-law by her in-laws does not appear to be covered by the explanation given u/s 498-A of the I.P.C.
As regards section 498-A of the IPC, the allegations against the applicants No. 1 and 2 are vague, unspecific and indefinite. No time or date of the occurrence is given. It was contended only that in month of August, 2012 mother-in-law of the complainant demanded dowry. In the absence of definite date, time and place at which it would the alleged act of cruelty was performed it cannot be said that the ingredients of the offense were spelled out. In a case where it was alleged that the complainant was maltreated in order to where''s her to bring more dowry, such general allegations did not even "prima- facie" constitute the alleged offense and criminal proceedings on the basis of such complaint amounted to abuse of process of courts.
No particulars of cruelty were given. A perusal of the written F.I.R. shows that demand of the dowry was made by in-laws of the complainant but, it is not mentioned whether it was father-in-law or mother-in-law who demanded more dowry. There are no specific particulars regarding time, place and manner of any beating, cruelty or harassment as well as a demand of dowry and in these circumstances it cannot be said that in ingredients of the offense u/s 498-A of the IPC were spelled out.
On the other hand following facts and circumstances with relevant dates are important to mentioned that:--
(i) On 25.09.2012 applicant No. 3/husband tendered notice for divorce.
(ii) On 09.10.2012 complainant/wife given reply of above notice, which can be looked into explained in para 09 above.
(iii) On 29.10.2012 divorce petition filed by applicant No. 3/husband.
(iv) On 29.11.2012 F.I.R. basis of this criminal case filed by the complainant/wife.
Merely because the applicants No. 1 and 2 are the parents of the main accused/husband Jaideep unless they''re in any cogent and convincing evidence to show that the parents/applicants No. 1 and 2 also harassed and ill treated the complainant, it can not be held that parents are also liable for the offense u/s 498-A of the IPC. Since there was no evidence on record particularly to show the part played by the parents in instigating, the charges framed u/s 498-A of the IPC imposed on the parents is likely to be set aside.
Therefore, the learned trial Court, committed a mistake of law in framing charges against the applicant No. 1 Swapan Banerjee and applicant No. 2 Smt. Shubhara Banerjee for offence punishable u/s 498-A of the I.P.C., this revision petition succeeds and is partly allowed and impugned order dated February 11th 2013 so far as passed against the applicants No. 1 and 2 is set aside. However, trial against applicant No. 3 Jaideep will proceed for charge u/s 498-A of the I.P.C. as per provision of law. However, it is made clear that any observation/s made in the present order, shall not cause any prejudice to either of the parties while the case will be decided by the learned trial Judge on its own merits.