Ashwani Kumar And Ors. vs Delhi Administration Etc.
1991 Latest Caselaw 87 Del

JUDGMENT

A.B. Saharya, J.

(1) By this petition under Section 482, Cr. P.C" the petitioners have prayed for an order "to quash the criminal proceedings initiated against them vide F.I.R. No. 131/89 dt. 10-9-89 registered at P.S. Geeta Colony, East Delhi (Ann. B) and the process issued by Metropolitan Magistrate, Shahdara, East Delhi vide its summoning order dt. 21.11.89 (Ann. E)".

(2) The Fir was lodged by Suman Sharma against her husband Ashwani Kumar, father-in-law Ram Parkash, brothers-in-law Satish and Vijay, and mother-in-law Tara Wati, petitioners 1 to 5 respectively. On receipt of the Fir, the police registered a case under Section 406/498-A, Indian Penal Code against the petitioners.

(3) Counsel for the petitioners has contended, on the basis of Pratibha Rani v. Suraj Kumar and another, , that the information given by Suman does not show entrustment of the dowry items by her to the petitioners nor the misappropriation thereof by them; and, therefore, that the offence under Section 406, Indian Penal Code has not been made out. With regard to the offence under Section 498-A, Ipc, he has urged that the allegations of cruelty made by Suman against the petitioners are belied by the fact that she did not come forward to corroborate similar allegations that were made to repose a petition filed by her husband under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which resulted in a decree dated 26th of May 1990 against her. Further, he has contended that the allegations made in the Fir are vague, and hence no specific offence can be said to have been made out against any of the petitioners.

(4) Since the petitioners have challenged the summoning order of the Magistrate, the question which arises for consideration is whether the allegations set out in the complaint constituted any offence against the petitioners. The field, at this juncture is restricted to 'finding, out if a prima facie case has been made out for proceeding against the petitioners. The trial Court could not enter into detailed discussion of the case at this stage. In the exercise of its powers under Section 482-A, Cr. P.C" this Court also cannot launch on a detailed and meticulous examination of the case on merits (See Hareram Satpathy v. Tikaram Aggarwal and others, ). This power has to be exercised sparingly, with circumspection and in the rarest of rare cases (See Kurukshetra University and another v. Slate of Haryana and another, ).

(5) A glance at Sections 154, 157, 170, 173 and 211, Cr. P.C. for the present purpose reveals that an Fir has to be registered on a mere information relating to the commission of an offence. If an officer in charge of the police station has reason to suspect the commission of a cognizable offence, unless it appears to him that there is no sufficient ground for entering on an investigation. he shall proceed to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. If it appears to him that there is sufficient evidence or reasonable ground of suspicion, he shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence along with a report, stating, inter alia, the names of the parties, the nature of the information, whether any offence -appears to have been committed, if so, by whom. On receipt of such a report, if in the opinion of the Magistrate, there is sufficient ground for proceeding, he shall issue his summons for the attendance of the accused.

(6) It is pertinent to note that up to the stage of issue of process by the Magistrate, all that is to be seen is whether any offence appears to have been committed and, if so, by whom. The opinion to be formed by the Magistrate to take cognizance is restricted to there being sufficient ground for commencement of proceedings against the accused person(s). up to this stage, no specific charge is crystalised.

(7) The section of the law alleged to have been offended and stated in the Fir, or anywhere else in the proceedings up to the stage of issue of process by the Magistrate, is not conclusive and it cannot be said that the accused is charged of the specified offence. Mentioning of the offence by the police authorities on receipt of the first information or during investigation and even in the report made to the Magistrate is based upon provisional opinion of the concerned authorities. Such opinion is not decisive.

(8) It is only after the Magistrate has taken cognizance that he would proceed to frame the charge under Section 211, Cr. P.C. It is at that stage only that the offence with which the accused is charged is determined and it must be staled by specific name and description.

(9) In this view of the matter, the scope of discussion in the present case has to be restricted to finding out whether any offence has been made out against the petitioners. Even assuming the plea of the petitioners' counsel with regard to Section 406. Indian Penal Code to be correct, yet, on this alone, the proceedings cannot be quashed. Hence, to avoid unnecessary comments, no further discussion on this score is called for. It should suffice to restrict the discussion to Section 498-A, IPC. It is also unnecessary to go into the further question whether any other offence or offences are made out in the Fir, as argued by the State Counsel.

(10) A bare perusal of the Fir shows that allegations have been made against each of the petitioners which may constitute "cruelty" as explained in Section 498-A, IPC. This observation is based upon the following, among other, allegations made in the FIR. It is stated : "After a few days of marriage, my in-laws started quarrelling with me...Every day some thing happened and I was being taunted to the effect that my parents did not give anything and I did not bring anything in dowry.....They started quarrelling with me after a month of marriage and I was told to bring Rs. 5.000.00 ...1 was not given food. When I took money, they behaved well. Against they started behaving as before. My sister-in law (not an accused) and mother-in-law used to beat me and abused me on every matter and said that here lies the kerosene oil, you burn yourself by putting it on yourself or they will throw it upon her. My brother-in-law Satish and elder brother-in-law Vijay used to quarrel with me and said that they will throw the acid upon her face and will deface her. After quarrelling they will make me board on the bus and my husband who did not behave well even for a day, he also taunted me and used to beat me on the saying of his mother and sister and taunted that my parents have given nothing and my husband and father-in-law used to say to bring Rs. 30.000.00 , they will start some business and again one day they beat me and my mother took Rs.4,000.00 . My elder sister- in-law and mother-in-law took off all my ornaments and said that I should go away in three clothes and I was made to board the bus by getting me a ticket." It is also alleged that on 2nd of December 1988 a quarrel took place when Suman was carry ing a child of 4 months in her womb and she was going to her parents house. Further, it is alleged that when she was blessed with a son, petitioners 1,3 and 4, accompanied by some others, went to the house of Suman's father. There, petitioners 3 and 4 beat her father and her. They also threatened to kill her.

(11) In the matrimonial proceedings under Section 9 of the Hindu Marriage Act, Suman filed a written statement. In it, some allegations of cruelty were made. But, thereafter, no one appeared for her. She was proceeded ex parte. The mere fact that she did not take any steps to prove the allegations of cruelty in those proceedings, it cannot be said that the allegations made in the Fir also are false.

(12) It is apparent from the earlier noticed portions of the Fir that the allegations made therein relate the role of the accused persons collectively as well as individually, that the allegations are quite specific, and that the same cannot be said to be vague.

(13) Whether a case for trial is made out and which particular offence, if any, is made out, would be considered by the trial Court on the basis of the material on record at the stage of framing charge. The further question whether a particular charge can be proved beyond doubt, would arise later on at the trial of the case.

(14) In view of the above discussion, at present, it cannot be said that the information stated in the Fir does not constitute any offence. Therefore the summoning order and the proceedings in the Magistrate's Court cannot be quashed. It is clarified, however, that the observations made herein are tentative, and the same would not have any bearing upon the framing of the charge and the trial of the case on merits.

(15) The petition is dismissed. No costs.